MLD 2012 Judgments

2012 M L D 262

[Federal Shariat Court]

Before Shahzado Shaikh and Rizwan Ali Dodani, JJ

AKHTAR HUSSAIN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.20/L of 2010, decided on 29th July, 2011.

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

----Ss. 10 & 11---Zina and abduction---Appreciation of evidence---Sentence, reduction in---Accused though was not nominated in the F.I.R., but victim in her statement under S.164, Cr.P.C. made specific allegation of abduction and zina-bil-jabr against the accused---Lady Doctor who examined the victim had observed that the victim was subjected to sexual intercourse---Report of Chemical Examiner was also positive as the swabs were found stained with semen, which had corroborated the opinion of lady-doctor regarding sexual intercourse with the victim---Solitary statement of victim was sufficient to prove the allegation against accused---Such an intercourse in the absence of valid Nikah, would amount to zina, which needed to be analyzed as to whether it was zina-bil-jabr or not---Medico-legal report of the victim did not show any mark of violence on her body parts, particularly those which could provide evidence of violence or use of force by accused; or resistance offered in that regard by the victim, to indicate forcible act of zina---Zina with consent could be alleged from said facts and circumstances of the case---Offence under Ss.11 and 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, thus could not be proved---Conviction of accused under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was converted to S.10(2) of the Ordinance and his sentence was reduced from fourteen years to ten years' rigorous imprisonment, in circumstances.

Seerat Hussain Naqvi for Appellant

Ch. Muhammad Ishaque, D.P.-G for the State.

Date of hearing: 22nd July, 2011.

2012 M L D 1601

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Rizwan Ali Dodani, JJ

SHER ZAMAN and 4 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.2/I of 2012, decided on 10th July, 2012.

Penal Code (XLV of 1860)---

----Ss. 342 & 395---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Wrongful confinement, dacoity, Haraabah---Appreciation of evidence---Recovery of allegedly snatched steel from accused was doubtful---Said steel was recovered from a graveyard which was a public place and was accessible as well as visible to the passerby public---Place of recovery was not at all owned by accused---Recovery memo vide which said steel was recovered and secured was witnessed by two persons, but none of them had been produced by the prosecution---Identification of recovered steel was not carried out through the regular process of identification---No other evidence was available against accused---Conviction and sentence awarded to accused by the Trial Court, were set aside extending benefit of doubt.

Gohar Rehman Khattak for Appellants.

Aziz-ur-Rehman for the State.

Date of hearing: 10th July, 2012.

2012 M L D 86

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUHAMMAD LATIF KHAN and 17 others---Appellants

Versus

MUHAMMAD RASHEED KHAN and 63 others---Respondents

Civil Appeal No.14 of 2009, decided on 30th September, 2011.

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

----Arts.100 & 114---Civil Procedure Code (V of 1908), S.11---Limitation Act (IX of 1908), S.3---Specific Relief Act (I of 1877), S.42---Suit for declaration---Limitation---Estoppel, principle of---Res judicata doctrine of---Applicability---Suit was dismissed by the Trial Court being barred by time and having no cause of action on account of dismissal of previous suit by the predecessor of the plaintiffs---Validity---Plaintiffs had challenged gift-deed, executed about 35 years before filing of the suit; suit being time-barred had rightly been dismissed by the Trial Court---Suit previously filed by the predecessor of the plaintiffs after execution of said gift-deed was dismissed and the plaintiffs having not filed appeal against said dismissal, same had attained finality---Subsequent suit by the plaintiffs, was not maintain-able due to bar of the principles of estoppel and res judicata---Impugned judgment by the Appellate Court was set aside and decree passed by the Trial Court was restored, in circumstances.

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

---S. 3---Dismissed of suit instituted after limitation---Scope---Under S.3 of Limitation Act, 1908, court of law was duty bound to decide point of limitation suo motu---Court under S.3 was obliged to independently advert to the question of limitation and to determine the same, in spite of the fact that it was not raised in the pleadings---Doors of justice were closed after lapse of prescribed period of limitation and no plea of injustice, hardship and ignorance could be agitated, unless the delay so caused was duly justified and each day's delay must be accounted for by the valid reasons.

Muhammad Hanif and 16 others v. Muhammad Latif Khan and 10 others 2001 MLD 493; Ghulam Nabi v. Noor Ahmed and 12 others 2004 MLD 927; Azad Jammu and Kashmir Government and others v. Gohar Rehman and others 1996 CLC 1502; Muhammad Ilyas and others v. Aziz-ur-Rehman and others 1995 CLC 1200; Ghulam Murtaza v. Qalam Din 2003 SCR 172; Muhammad Saleem v. Azad Govt. and 4 others 2006 SCR 88; Public Health Engineering Division and another v. Aurangzeb Khan 2008 SCR 590 and Khadim Hussain Khan and 9 others v. Mst. Sarwar Jan and 27 others 1999 MLD 824 rel.

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

----S. 11---Res judicata, doctrine of---Object---Main object of the doctrine of res judicata was to prevent multiplicity of suit and to support the public policy that there should be an end of litigation.

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

----Art. 54---Previous judgment, relevancy to bar a second suit or trial---Scope---Previous judgment was relevant to bar second suit or trial as it would bar a second suit---Previous judgment and order could be taken into consideration without referring the same in pleadings.

(e) Limitation---

----Void order---Limitation---Scope---Void order must be challenged within reasonable time, if it was intended to absolve from its effect.

Muhammad Naseer Jahangiri and 13 others v. Abdus Sami Khan and another 1997 PLC (C.S.) 1115; Chaudhry Muhammad Zaman v. Azad Govt. and 4 others 1996 PLC (C.S.) 901; Mirza Lal Hussain v. Custodian of Evacuee Property and others 1993 SCR 214 and Muhammad Ilyas Khan and 5 others v. Muhammad Hafeez Khan and 4 others 2002 PLC (C.S.) 1282 rel.

Sardar Rafique Mehmood Khan for Appellants.

Sardar Iftikhar Ahmed Khan for Respondents.

Date of hearing: 22nd September, 2011.

2012 M L D 422

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

SOHAIL BOSTAN CHAUDHARY---Petitioner

Versus

MDA through Chairman MDA Mirpur AK and 9 others---Respondents

Writ Petition No.84 of 2003, decided on 19th December, 2011.

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ petition---Allotment of plot from overseas quota---Petitioner who stated to be first class State subject; permanent resident of village in Mirpur and settled in U.K claimed to be eligible for allotment from overseas quota but he was allotted the plot from general quota as no such plot was available at that time---Respondent who was also settled in U.K, moved an application for allotment of plot, and authority concerned allotted plot to the respondent from overseas quota---Said allotment was cancelled as respondent failed to pay price of the same---Subsequently when respondent deposited whole amount, the allotment was restored in favour of the respondent---Petitioner presuming the restoration as re-allotment, challenged the order whereby allotment was restored to the respondent---Validity---Order of restoration was not a re-allotment in favour of respondent as alleged by the petitioner, and was in fact restoration of previous allotment---Petitioner failed to challenge the basic allotment order passed by the Authority in favour of respondent---Writ petition, without challenging the basic allotment order was not maintainable---Even otherwise writ petition filed after about six years from restoration of allotment, without any explanation of the delay, was hit by doctrine of laches---When petitioner had applied for allotment no plot was available for allotment as same was already allotted to the respondent---Petitioner, in circumstances, had no locus standi to challenge allotment to respon-dent---Petitioner being not aggrieved party, within the meaning of S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974, writ petition was dismissed, in circumstances.

Muhammad Arshad Khan v. Chairman MDA and 6 others 1997 MLD 3066 and Dr. Muhammad Akram v. Allotment Committee, Mirpur Development Authority PLD 1985 SC (AJ&K) 113 ref.

Muhammad Aslam v. Chairman Municipal Committee, Mirpur and 3 others PLD 1991 AJ&K 23; Azad Government of the State of Jammu and Kashmir v. Haji Summandar Khan 1995 MLD 1350 and Muhammad Aslam v. Chairman Municipal Committee Mirpur and 3 others PLD 1991 AJ&K 23 rel.

Muhammad Riaz Tabassum for Petitioner.

Muhammad Younis Arvi and Ch. Riaz Alam for Respondents.

2012 M L D 562

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

SUPERINTENDENT ENGINEER (RE-SETTLEMENT) MANGLA DAM and another---Appellants

Versus

MUHAMMAD ASLAM and another---Respondents

Civil Appeal No.178A of 2007, decided on 21st December, 2011.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 8, 50(2) & 54---Acquisition of land---Award of compensation---Reference to the court---Reference against award filed by land owner had partly been accepted by the Referee Court---Authority (WAPDA) for whom land was acquired was impleaded in the reference, a notice was issued to it, but on next date of hearing, no one was present on its behalf and ex parte proceedings were not ordered---Issues were also framed in the absence of WAPDA and was not heard, reference was concluded and judgment was recorded without receiving written statement and hearing WAPDA, which was a necessary party---Any institution in whose favour the land had been acquired was fully competent to sue or defend itself and was competent to lodge the reference or appeal---WAPDA had a right of defence in view of S.50(2) of Land Acquisition Act, 1894, but Referee Judge neither provided any chance of hearing to WAPDA nor proceeded ex parte against it---Judgment and decree passed by the Referee Court was set aside and case was remanded to the Referee Court, with direction to decide the same in accordance with law.

AJ&K University v. Mir Alam 2002 YLR 549 rel.

Haji Muhammad Afzal for Appellants.

Ch. Muhammad Hussain for Respondents.

2012 M L D 936

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

Mst. KHURSHID---Appellant

Versus

MUHAMMAD ASLAM and another---Respondents

Civil Appeal No.82 of 2011, decided on 6th March, 2012.

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

----O.VII, R.11---Suit for declaration and perpetual injunction---Rejection of plaint---Scope---Trial Court dismissed suit on the ground that same was not maintainable for want of cause of action; and having been filed after prescribed period of limitation---Appellate Court below maintained findings of the Trial Court---Validity---Trial Court framed issues, including issue with regard to cause of action---Plaintiff had categorically alleged in the plaint that fraud had been committed with her because she had not executed any sale-deed, but an agreement to sell regarding the suit property was executed by her as guarantee of money likely to be spent for sending her son abroad---Plaintiff had also pleaded that she came to know about fraud a month before the institution of the suit---By no stretch of imagination it could be said that plaint did not disclose any cause of action---Both courts below, in circumstances, had failed to attend legal provisions contained in O.VII, R.11, C.P.C. and order of dismissal of suit could not be passed under said provision of law; at the most plaint could be rejected---Disposal of the suit on the ground of limitation, when it was not a pure question of law, was also erroneous---Concurrent judgments of courts below were set aside and case was remanded to the Trial Court to proceed with the case in accordance with law.

Mir Qamar-ul-Zaman's case 1995 CLC 1982 and Mst. Begum Jan's PLD 1988 SC (AJ&K) 142 rel.

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

----O. VII, R.11---Rejection of plaint---Sope---Provisions of O.VII, R.11, C.P.C. relating to the rejection of the plaint, had empowered the court to reject the plaint in four eventualities; where it did not disclose a cause of action; where the relief claimed was under-valued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, failed to do so and where the relief claimed was properly valued, but the plaint was written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp-paper within a time fixed by the court, failed to do so and where the suit appeared from the statement in the plaint to be barred by any law---While exercising the jurisdiction under O.VII, R.11, C.P.C., court had to look into only averments made or facts pleaded in the plaint---Neither the defence set up by the defendant could be taken into consideration by the court nor the order of dismissal of the suit could be passed under O.VII, R.11, C.P.C.

(c) Administration of justice---

----Complicated questions of law and facts could not be resolved without providing the parties a reasonable opportunity to lead evidence in support of their respective pleadings---Courts were not supposed to knock out the parties technically; rather their duty was to administer justice between the parties for which they had been created.

Sadaqat Hussain Raja for Appellant.

Mushtaq Ahmed Janjua for Respondents.

2012 M L D 1508

[High Court (AJ&K)]

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

BEENISH BASHIR---Petitioner

Versus

DEPUTY COMMISSIONER/DISTRICT MAGISTRATE, DISTRICT BHIMBER and 6 others---Respondents

Writ Petition No.326 of 2012, decided on 16th May, 2012.

Pakistan Citizenship Act (II of 1951)---

----S. 17---Azad Jammu and Kashmir State Subjects Act, 1980, S.4---General Clauses Act (X of 1897), S.21---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Cancellation of domicile certificate---Petitioner who claimed to be first class State Subject of Azad Jammu and Kashmir and resident of District Bhimber, obtained her domicile from District Gujrat (Pakistan) as some of the property of petitioner's family was also located in Gujrat District---When domicile certificate from District Gujrat was intact, the petitioner got another certificate from District Bhimber (AJ&K) for the purpose of getting admission in any of the Medical Colleges of Azad Jammu and Kashmir---Domicile certificate obtained by the petitioner from District Bhimber, was cancelled by the District Magistrate---Validity---Order cancelling domicile certificate, by the District Magistrate, had been passed with jurisdictional competence because, the petitioner obtained domicile of District Gujrat after accepting the requirements listed in the relevant provisions of Pakistan Citizenship Act, 1951 and Rules made thereunder---Petitioner was in possession of two domicile certificates i.e. District Bhimber and Gujrat at one and the same time and could not be domiciled of two places---Authority who could issue an order had the power to rescind, revoke or cancel the same under S.21 of the General Clauses Act, 1897---District Magistrate had not acted in violation of the rules while passing the impugned order, especially so when domicile certificate was obtained by misstatement of facts.

Miss Rakhshanda Aslam v. Nomination Board of Azad Jammu and Kashmir and 2 others PLD 1985 AJ&K 41; Syed Nadir Shah v. District Magistrate, Pishin and another PLD 1980 Quetta 29; Sultan Khan v. Federal Public Service Commission 1983 CLC 2803; Saeed Amer v. Principal Khyber Medical College, Peshawar and another PLD 1982 Pesh. 51; Khan Bahadur v. Deputy Commissioner, District Kohistan and 3 other 1992 CLC 395; Raja Aamir Naseem Khan v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and 12 others 1992 MLD 126; Ahmad Hasan v. Abdullah and 5 others PLD 1992 Pesh. 1; Miss Rizwana Sarwat v. Province of Sindh and others 1990 CLC 1372; Mrs. Shushma v. District Magistrate, Thatta and others 1992 CLC 895 and Miss Salma Mughal v. Election Committee, Bolan Medical College Quetta and others 1993 SCMR 2083 ref.

Miss Shahida Bano v. Azad Government and 5 others 1998 CLC 534; Pervaiz Akhtar v. Shaikh Rashid Majeed and 3 others 2002 PLC (C.S.) 1425; Qamar Afzal v. Muhammad Ashfaq Khan and another PLD 1979 SC (AJ&K) 96; Miss Rakhshanda Aslam and another v. Nominatio Board of AJ&K PLD 1986 SC (AJ&K) 1; Fozia Hussain Abbasi's case 1995 CLC 1761; Iffat Siddique Sulehria's case 2003 PLC (C.S.) 554; Mst. Rehana Aziz v. Mst. Shakeela Ashraf and 2 others 1998 SCR 281 and Dr. Muhammad Sarwar v. Dr. Muhammad Sharif Chatter and others 1998 PLC (C.S.) 127 rel.

Sheikh Masood Iqbal for Petitioner.

Muzaffar Ali Zafar, A.A.-G. for the official Respondents.

Nasir Farooq, Advocate for Respondent No.7.

2012 M L D 1562

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MEHMOOD AKRAM QADRI and others---Appellants

Versus

MIRPUR DEVELOPMENT AUTHORITY through Chairman, Mirpur and 13 others---Respondents

Civil Appeals Nos. 245 and 286 of 2006, decided on 23rd May, 2012.

(a) Tort---

----Suit for damages for mental agony---Father of plaintiff applied for allotment of plot in question and he deposited amount Rs.50,000 as price of the plot in the year 1989---Father of the plaintiff died before the allotment and after due process, the allotment Committee allotted said plot in the name of the widow of deceased/mother of the plaintiff---Mother of plaintiff having also died, plaintiff applied for transfer of the plot in the names of legal heirs of deceased, but Authority took no step for transfer of plot in question---Plaintiff also applied to the Authority for approval of the site plan and permission for construction of boundary wall, but the Authority did not accord the approval---Plaintiff claimed that due to the act of Authority he and other legal heirs of deceased allottee had suffered a lot of mental agony; and that they were entitled to the damages including price of the plot to the tune of Rs.50,00,000---Plaintiff had continuously struggled for transfer of plot in the names of legal heirs of deceased allottee, but Authority failed to perform its legal duties---No record was placed by the Authority before the court to prove that allotment of plot in question in the name of the deceased was bogus or that authority was not competent to make allotment---No hurdle existed in the way of the Authority for transfer of the plot in the names of the legal heirs of the deceased allottee, for giving possession plus approval of site plan and permission for raising boundary wall---Plaintiff had requested to Authority for allotment of an alternate plot as he was living in the rented house, which request of the plaintiff was also not accepted---No legal or moral justification was available to the Authority for not handing over possession of vacant plot to the legal heirs of deceased allottee despite elapsing more than two decades---Plaintiff, due to mischievous conduct of the authority suffered mental agony in addition to undergoing peculiar losses---Suit was decreed in terms that plaintiff and other legal heirs of deceased allottee, were entitled to recover Rs.15,00,000 as price of the plot and Rs.5,00,000 as damages for mental torture from the Authority, in circumstances.

Shahida Khadim v. Secretary Education AJ&K and 5 others 2004 PLC (C.S.) 174 and Alam Din v. Mayor, Municipal Corporation Mirpur and 4 others 2000 YLR 1891 ref.

Major (Retd) Ismat Ullah Cheema through his Special Attorney v. Sarfraz Ahmed and 2 others PLD 2006 Lah. 503 and Mst. Sardaran Begum v. Muhammad Fazil and others 1993 CLC 2303 distinguished.

Qurban Hussain v. Mst. Bashir Begum and 6 others PLD 1986 SC (AJ&K) 109; Shahida Khadim v. Secretary Education AJ&K and 5 others 2004 PLC (C.S.) 1074 at pages 1077, 1078 and Alam Din v. Mayor Municipal Corporation Mirpur and 4 others 2000 YLR 1891 at Pages 1892 and 1893 rel.

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

----Arts. 132 & 133---Failure to cross-examine witness---Effect---If any portion of statement of witness was not cross-examined, the same would be deemed as admissible.

Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Walayat Khan and 2 others v. Muhammad Yousaf and 15 others PLD 1995 SC (AJ&K) 41 and Khan Muhammad Badar and 6 others v. Mst. Roshni and 43 others 2008 SCR 46 rel.

Khalid Rasheed Chaudhary for Appellants.

Riaz Alam for Respondents.

Date of Decision: 23rd May, 2012.

2012 M L D 1625

[High Court (AJ&K)]

Before Munir Ahmed Chaudhry, J

DIWAN ALI---Appellant

Versus

NIGHAT FAROOQ---Respondent

Civil Appeal No.625 of 2009, decided on 14th May, 2012.

Civil Procedure Code (V of 1908)---

----O. IX, Rr.3 & 9(3)---Dismissal of suit for non-prosecution---Application for restoration of suit---Limitation---Suit was dismissed for non-prosecution, and application filed by the plaintiff to restore the suit was dismissed by the Trial Court holding that said application was filed beyond the period of limitation---Appellate Court below accepting revision petition against order of Trial Court remanded the case to Trial Court with a direction to dispose of the said restoration application in accordance with the provisions of law after framing the necessary issues---Validity---Application for restoration of suit which was to be filed within thirty days from the date of dismissal of the suit, was filed after 49 days of dismissal of suit---Plaintiff neither mentioned the reason of delay in the restoration application nor she submitted an application to condone the delay---Plaintiff had to prove each day of delay through reliable reasoning---Application to restore the suit having been filed beyond the period of limitation and plaintiff had failed to prove the causes of said delay, judgment and order passed by the Appellate Court, was not sustainable and was set aside.

2004 YLR 2311 rel.

Ch. Muhammad Suleman, Advocate for Appellant.

Raja Khalid Mehmood Khan, Advocate for Respondent.

2012 M L D 1697

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

BABAR ALI---Appellant

Versus

ARSHAD MEHMOOD and 15 others---Respondents

Civil Appeal No.246 of 2010, decided on 11th June, 2012.

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

----S. 100---Second appeal---Scope---Second appeal had limited scope and would lie only on the conditions and grounds covered under S.100, C.P.C. and not otherwise---Said appeal was competent only when findings were based on no evidence, or had been returned in violation of any law, or some important evidence had not been considered by the subordinate courts---Erroneous finding of fact, however gross or inexcusable the error could seem to be, no appeal was competent---Concurrent findings of facts were sacrosanct and immune from challenge only when the evidence had been appreciated properly; and the conditions visualized by S.100, C.P.C., had been fulfilled---Conclusion which was not in line with the criteria laid down in S.100, C.P.C., was not immune from challenge in second appeal; and the court would be responsible to examine the alleged misreading and non-reading of evidence and record---In the present case, both the subordinate courts had misread documents produced on record and not appreciated those in a legal fashion---Interference on the ground of construction of the documents, was within the ambit of S.100, C.P.C.

AIR 1929 PC 152; Din Muhammad v. General Manager Communication PLD 1978 Lah. 1134; Bhirawan v. Ahmed Bakhsh's case PLD 1955 Lah. 187; Karamat Ali v. Muhammad Yunus PLD 1963 SC 191; Ashraf Khan's case PLD 1975 AJ&K 32 and PLD 1975 SC 295 rel.

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

----S. 44---Transfer of joint property by a co-sharer to injure the rights of other co-sharers that a specific Khasra number which had potential value vis-à-vis to the others, was mala fide and could not be protected on any other grounds.

Mustafa Khan's case PLD 1978 SC (AJ&K) 75 rel.

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

----Ss. 39 & 42---Suit for declaration and cancellation of sale-deed---Findings of both courts below were set aside and decree for declaration and cancellation of sale-deed was granted in the terms that sale-deed executed by defendant in favour of other defendant, was declared to have been executed without lawful authority and was of no legal effect and same was inoperative against the rights of other co-sharers.

Ch. Muhammad Taj for Appellant.

Raja Khalid Mehmood for Respondents.

2012 M L D 1718

[High Court (AJ&K)]

Before M. Tabbasum Aftab Alvi, J

HASEEB AKRAM---Petitioner

Versus

DISTRICT MAGISTRATE, MIRPUR (A.K.) and 3 others---Respondents

Writ Petition No.602 of 2011, decided on 10th July, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 523 & 550---Azad Jammu and Kashmir Interior Constitution Act (VIII of 1974), S.44---Writ petition---Seizure of vehicle---Suspected to be stolen---Petitioner had assailed order whereby vehicle in question was seized by the police---Vehicle in question was purchased by the petitioner from its owner subject to payment of Rs.9,00,000 out of which a sum of Rs.5,00,000 was paid by the petitioner to the owner---Documents of ownership were yet to be handed over to the petitioner by the owner after payment of remaining price of vehicle---Possession of the disputed vehicle was handed over to the petitioner by the owner, who was driving the same, when it was seized by Police under S.550, Cr.P.C.---Said vehicle was later on released by Police to Deputy Commissioner Rehabilitation on "superdari"---Impugned order of seizure was issued without lawful authority as police had no power under the law to pass order of seizure as vehicle in question was neither stolen one nor involved in commission of any offence---Police was bound under the law to report the concerned Magistrate about seizure of vehicle under S.523, Cr.P.C., but it was not done---Order of seizure of vehicle and order of "superdari" being patently unlawful and without any legal justification, was quashed, in circum-stances---Vehicle was directed to be handed over to the petitioner.

Hassan Muhammad v. Nazar Hussain and others 2005 SCMR 1063 and Muhammad Ramzan v. Station House Officer, Police Station Baghbanpura, Lahore and 21 others 1995 PCr.LJ 1947 rel.

Sadaqat Hussain Raja for Petitioner.

Sardar M.R. Khan, Additional Advocate General for Respondents.

2012 M L D 77

[Islamabad]

Before Riaz Ahmed Khan, J

SAIF-UR-REHMAN and another---Petitioners

Versus

THE STATE through S.H.O. P.S. Neelor, Islamabad---Respondent

Criminal Miscellaneous No. 491-B of 2011, decided on 13th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---West Pakistan Pure Food Ordinance (VII of 1960), S.23---West Pakistan Foodstuffs (Control) Act (XX of 1958), Ss.3 & 6--Preparing adulterated drinks---Bail, grant of---Further inquiry---Allegation against accused persons was that they were found preparing adulterated cold drinks---Section 23, West Pakistan Pure Food Ordinance, 1960 and not West Pakistan Foodstuffs (Control) Act, 1958 was applicable in the case and the punishment for the offence under S.23 of the Ordinance was one year---No adulterated food was recovered and recovery of other ingredients would make the case of accused persons one of further enquiry---Accused were admitted to bail, in circumstances.

Raja Rizwan Abbasi and Anwar-ul-Haq Butt for Petitioners.

Rao Abdul Ghaffar, Standing Counsel.

Shafique S.I. with record.

2012 M L D 689

[Islamabad]

Before Riaz Ahmad Khan, J

Sheikh IJAZ AHMED---Petitioner

Versus

ZUBAIR ASLAM and 3 others---Respondents

Writ Petition No.2341 of 2008, decided on 8th July, 2011.

Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 2(k) & 7(3)---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Rent Controller, jurisdiction of---Default in payment of rent---Concurrent findings of fact by two courts below---Tenant failed to pay rent for 20 months, therefore, Rent Controller passed eviction order against tenant which was maintained by lower Appellate Court---Plea raised by tenant was that proceedings before Rent Controller were initiated prior to promulgation of Islamabad Rent Restriction Ordinance, 2001, and he did not deposit rent as there was no order for the deposit---Validity---Islamabad Rent Restriction Ordinance, 2001, had become effective on 23-1-2001 and when notification was issued, the urban area in Islamabad stood defined and all buildings situated over that area were within the territorial jurisdiction of Rent Controller---Tenant had not paid rent since 2008, as the case was filed in the High Court and there was no order regarding deposit of rent---Even if there was no order from the court for deposit of rent, that did not mean that tenant was absolved of his duty of paying the rent---Tenant could send rent through post or deposit the same in court---No evidence was available regarding payment of rent during pendency of eviction petition before Rent Controller and appeal before lower Appellate Court---Both the courts below had dealt with the issue regarding deposit of rent and evidence regarding the same could not be discussed in constitutional jurisdiction---High Court declined to interfere in concurrent findings of fact by two courts below---Petition was dismissed in circumstances.

PLD 1974 Quetta 1; PLD 1961 Lah. 601; 2006 SCMR 1630; 1992 SCMR 1149 and 2010 SCMR 1443 ref.

Raja Shafqat Khan Abbasi for Petitioner.

Jehangir Khan Jadoon for Respondents Nos. 1 and 2.

Date of hearing: 4th July, 2011.

2012 M L D 710

[Islamabad]

Before Shaukat Aziz Siddiqui, J

AHMAD SAEED---Petitioner

Versus

COMSATS INSTITUTE OF INFORMATION TECHNOLOGY, ISLAMABAD through Vice-Chancellor---Respondent

Writ Petition No.3222 of 2011, decided on 29th November 2011.

(a) COMSATS Institute of Information. Technology Ordinance (XXXVIII of 2000)--

----S. 4---Constitution of Pakistan, Art. 199---Constitutional jurisdiction---Scope---Educational institution---Provisional Admission---Petitioner was granted provisional admission in a degree programme, and such provisional admission was conditional upon the petitioner fulfilling the minimum eligibility criteria of obtaining a minimum percentage of marks in the Intermediate Examination---Petitioner could not obtain the said minimum percentage of marks in the Intermediate Examination and vide notification issued by the educational institution, provisional admission granted to the petitioner, was cancelled---Petitioner assailed said notification of cancellation of admission---Validity---Meaning of word "provisional" made it abundantly clear that no finality was attached to the admission granted to the petitioner as the same was subject to the obtaining of a minimum percentage of marks in the Intermediate Examination, which admittedly, the petitioner had failed to obtain---Educational institutions were required to maintain the eligibility criteria, and promote merit, transparency, and passions of adherence to rule of law---Contention of petitioner, if accepted, would lead to hideous consequences of evaporating the eligibility criteria, which would lead to reducing the principle of merit into a dead letter---High Court under its constitutional obligation, was duty bound to safeguard the merit in the society and to discourage and defeat cryptic approach committed by any segment of the society--- Constitutional jurisdiction of High Court was meant to be exercised in those cases where any individual brought his grievance with regard to the infringement of any accrued right by a public functionary---Case of petitioner did not warrant exercise of such jurisdiction in his favour---Petitioner was also estopped by his own words and conduct to agitate the matter before any forum---Authorities of the educational institute exercised jurisdiction in accordance with the rules, procedure, and admission policy, therefore, no interference in the same was called for---Constitutional petition was dismissed.

Chairman, Selection Committee/Principal, King Edward Medical College, Lahore v. Wasif Zamir Ahmad and another 1997 SCMR 15; Muhammad Rafique and another v. Director Inservice Agriculture Training Institute and another 2007 CLC 1492 and Umar Najeeb Khan Lodhi v. Bahauddin Zakariya University, Multan and 4 others 2010 MLD 380 distinguished.

Concise Oxford English Dictionary; Black's Law Dictionary (8th Edition) and William c. Burton (Second Edition) ref.

Misbah Riaz v. Government of Pakistan 2007 MLD 701; Sehresh Zainab v. Chairman Selection Committee 2008 CLC 1381; Baha-ud-Din v.. Chairman Joint Admission Committee 2004 CLC 1401; University of Health Sciences v. Sheikh Nasir Subhani PLD 2006 SCMR 243; Mrs. Shehla Shahnawaz v. Board of Intermediate and Secondary Education PLD 2000 Lah. 121; Memoona Noreen v. Vice Chancellor, Fatima Jinnah University for Women 2011 CLC 230 and Muhammad Illyas v. Baha-ud-Din Zakria University 2005 SCMR 961 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Constitutional juris-diction of High Court was meant to be exercised in cases where any individual brought his grievance with regard to the infringement of any accrued right by a public functionary.

(c) Words and Phrases

----"Provisional", meaning of.

Concise Oxford English Dictionary (11th Edition); Black's Law Dictionary (8th Edition) and Legal Thesausus by William c. Burton (Second Edition) ref.

Hafiz Arfat Ahmed Ch. for Petitioner.

2012 M L D 719

[Islamabad]

Before Shaukat Aziz Siddiqui, J

MARYAM IZHAR and another---Petitioners

Versus

INTERNATIONAL ISLAMIC UNIVERSITY and others---Respondents

Writ Petition No.3174 of 2011, decided on 8th February, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational Institution---Petitioners who applied for admission in B.S. Electronic Engineering and were allowed to undertake the entry test, qualified in the same and provisional offers of admission were issued to them; they deposited the requisite university fee, and were issued enrolment slips; petitioners started attending the classes in the university but vide impugned notification, admission of the petitioners were cancelled with immediate effect on the ground that required percentage of marks was not secured by the petitioners---Validity---One of the petitioners secured 59.8% marks which on the principle of accounting and mathematical interpretation, were counted as 60% all over the world---University was required to look into the matter from that perspective and by exercising the parental jurisdiction---Since the said petitioner fulfilled the eligibility criteria, depriving her to continue education on hyper-technical grounds and frictions, was uncalled for---Constitutional petition to the extent of said petitioner was allowed and impugned notification was set aside---University was directed to take the petitioner on roll and allow her to continue/complete her B.S. Electronic Engineering Programme---Said other petitioner had obtained 57% marks, whereas requirement was of 60% marks, she had rightly been debarred from continuing her studies---Requirement of B.S (General) Programme being 50%, said petitioner could if so advised approach the University Authority for conversion of her admission in B.S. Electronic Engineering to B.S. (General) Programme.

PLD 88 SC 356; 1997 CLC 43; 2004 SCMR 1864; 2003 SCMR 410 and 1997 SCMR 15 ref.

(b) Words and phrases---

----"Provisional"---Connotation.

Ms.Shazia Saleem for Petitioner.

Rehan-ud-Din Khan, Standing Counsel for the State.

Date of hearing: 31st January, 2012.

2012 M L D 756

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Mst. SHAKEELA BIBI---Petitioner

Versus

MUHAMMAD ISRAR and others---Respondents

Writ Petition No.1552 of 2010, heard on 26th December, 2011.

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

----Ss.17, 5 & Sched.---Qanun-e-Shahadat (10 of 1984), Preamble---Constitution of Pakistan, Art. 199---Constitutional Petition---Suit for recovery of dowry articles---Non-production of receipts for dowry articles---Effect---Solitary statement of wife was sufficient to prove the claim of dowry articles---Contention of husband that wife, while making claim for dowry articles, was required to prove the case in terms of the requirements of Qanun-e-Shahadat Order, 1984 was not only misconceived but was also besides the mandate of law as envisaged in S. 17(1) of the West Pakistan Family Courts Act, 1964---Section 17 of the West Pakistan Family Courts Act, 1964 was a special law and provisions of Qanun-e-Shahadat Order, 1984 were excluded through said section---Was not possible for any bride / wife in the society to keep the record of purchase receipts, prepare the list of dowry articles and obtain signatures from the husband's side---Mothers start collecting, purchasing, and preserving articles for their daughters from when they start growing up and there was a tradition that the in-laws of any wife were extended esteem and respect and it was considered an insult to prepare the dowry list for the purposes of obtaining signatures from them---Constitutional petition was allowed, in circumstances.

Muhammad Jaffar v. ADJ 2005 MLD 1069; Mst. Amina Begum and others v. Mehr Ghulam Dastgir PLD 1978 SC 220; Muhammad Habib v. Mst. Safia Bibi and others 2008 SCMR 1584 and Mirza Arshad Baig v. ADJ 2005 SCMR 1740 rel.

Mrs. Robina Shaheen for Petitioner.

Haider Mehmood Mirza for Respondents.

Date of hearing: 26th December, 2011.

2012 M L D 790

[Islamabad]

Before Muhammad Azim Khan Afridi, J

SHABBIR HUSSAIN and 5 others---Petitioners

Versus

ABDUL MAJEED TAHIR through Tahir Mehmood ---Respondent

Civil Revision No.100 of 2011, decided on 2nd December, 2011.

(a) 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---Temporary injunction, grant of---Defendants had leased out suit premises to the plaintiff and under terms of such lease agreement, the plaintiff was authorized to subsequently assign the tenancy of the premises to any foreigner---Plaintiff subsequently, under said lease agreement, entered into another lease agreement with the foreigner lessee on enhanced rent payable to the plaintiff---Defendants, approached foreigner lessee for payment of the enhanced rent directly to the defendants, and successfully collected the same from the foreigner lessee---Plaintiff sought temporary injunction from the Trial Court which was allowed by the Trial Court and the foreigner lessee was ordered to deposit the enhanced rent with the Trial Court and the defendants were restrained from disturbing the peaceful possession of the plaintiff over the suit premises---Validity---In pursuance of the lease agreement between the plaintiffs and the defendants, the plaintiff had renovated the premises from his own expenses and paid rent in advance to the defendants, therefore, prima facie, renting out of the suit premises by the plaintiff on enhanced rent to the foreigner lessee seemed to be in consonance with the terms and conditions laid down in the said agreement between the parties---Under terms of the lease agreement between the foreigner lessee and the plaintiff, she was to pay monthly rent to the plaintiff and her deviation from the terms of said agreement made out a prima facie case against the defendants and in favour of the plaintiff---Defendants by entering into a lease agreement with the plaintiff and accepting advance monthly rent from the plaintiff in consonance with the terms of the agreement between the plaintiff and the defendants; and by allowing the plaintiff to spend and invest his own earnings in suit premises, prima facie, entitled the plaintiff to approach the civil court and to seek restraining orders with the object to preserve the terms of the said agreement and against its infringement that was disadvantageous to his interest---Balance of convenience was also in the grant of temporary injunction to plaintiff, as allowing payment of rent to a stranger instead of a party claiming protection of the terms of the said agreement would tantamount to the putting and pushing the plaintiff into a state of inconvenience---Party subsequently found entitled to the claim of the rent from foreign lessee could conveniently receive the same from the court---No illegality or material irregularity was evident from the record---Revision was dismissed.

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

----S.115---Revisional jurisdiction, exercise of---Scope---Question of maintainability of suit was yet to be settled by the Trial Court, as such the same could not be allowed to be agitated for the first time before the High Court in exercise of its revisional jurisdiction.

Rehanuddin Khan Golra for Petitioners.

2012 M L D 828

[Islamabad]

Before Muhammad Azim Khan Afridi, J

KHALID KHAN---Petitioner

versus

THE STATE through S.H.O., Tarnol---Respondent

Criminal Miscellaneous No.756/B of 2011, decided on 12th January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---West Pakistan Arms Ordinance (XX of 1965), S. 13---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Possession of illegal weapons, causing explosion likely to endanger life or property, attempt to cause explosion or for making or keeping explosive with intent to endanger life or property, acts of terrorism---Bail, grant of---Further inquiry---F.I.R. suggested that police was not certain about the nature of the substance and illicit use of the same in any explosive device---Report of investigative authorities was not indicative of any adverse findings---Substance sample sent to laboratory could not be analyzed, as testing facility of the substance was not available with any laboratory, but same would not disentitle the accused from the grant of bail as it brought the case within the parameters and scope of further inquiry---Bail application of accused was accepted and he was admitted to bail.

Laiq Khan Swati for Petitioner.

Shabbir Abbasi, Standing Counsel for the State.

2012 M L D 1002

[Islamabad]

Before Riaz Ahmad Khan, J

SHAHAB-UD-DIN---Petitioner

versus

ZUBAIR ASLAM and 3 others---Respondents

Writ Petition No.2345 of 2008, decided on 8th July, 2011.

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 1, 2(k) & 7(3)---Constitution of Pakistan Art. 199---S.R.O. No. 83(Re)/02 dated 19-7-2002---S.R.O. No.538(I)/2004, dated

24-6-2004---Constitutional petition---Contention of the tenant (petitioner) was that Islamabad Rent Restriction Ordinance, 2001 had practically become effective on 26-6-2004, after issuance of S.R.O. No.538/(I)/ 2004; while the ejectment petition was filed on 4-2-2003 and therefore at the time of filing of said ejectment petition, the Ordinance was not in force---Validity---Islamabad Rent Restriction Ordinance, 2001 had become effective on 23-1-2001; and on 19-7-2002, when the first S.R.O. (S.R.O. No.83(Re)02 was issued, urban area of Islamabad stood defined and all the buildings situated over the said area were within the territorial jurisdiction of the Rent Controller, Islamabad---S.R.O No. 538(I)/2004, dated 24-6-2004 provided that the Ordinance shall extend to the urban areas specified in the earlier notifications and apply to all the residential and commercial buildings and rented lands situated in the said urban area---S.R.O. issued in the year 2004 was only for clarification---Contention of the tenant that the S.R.O. in respect of the buildings was issued in 2004 and that from the year 2001 to the year 2004; the Islamabad Rent Restriction Ordinance, 2001 was not in force; was not correct---Ordinance had clearly provided that it shall come in force at once---Ejectment petition was filed in the year 2003, therefore, the Rent Controller had the jurisdiction to entertain the same---Constitutional petition was dismissed.

PLD 1974 Qeutta 1; PLD 1961 Lah. 601; 2006 SCMR 1630; 1992 SCMR 1149 and 2010 SCMR 1443 ref.

(b) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S. 17---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent was ordered concurrently by the courts below---Tenant contended that prior to the filing of the ejectment petition, the rent was paid and there was no default; however, admitted that afterwards no rent had been paid as the case was pending before the High Court and there was no order from the court for the deposit of rent---Validity---Even if there was no order from the court to deposit the rent, that did not mean that the tenant was absolved of his duty of paying the rent---Tenant could have sent the rent through post or could have deposited the same in the court---No evidence was available regarding payment of rent during the pendency of the eviction petition---Constitutional petition was dismissed.

Raja Shafqat Khan Abbasi for Petitioner.

Jehangir Khan Jadoon for Respondents Nos.1 and 2.

Date of hearing: 4th July, 2011.

2012 M L D 1072

[Islamabad]

Before Riaz Ahmad Khan, J

SAEED AHMAD---Petitioner

versus

Mrs. REHANA ZAHID through Attorney and 2 others---Respondents

Writ Petition No.1008 of 2010, decided on 21st February, 2012.

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Preamble & S. 7---Civil Procedure Code (V of 1908), Preamble---Provisions of the Civil Procedure Code, 1908 were not applicable to the proceedings before the Rent Controller.

(b) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 20 & 17---Constitution of Pakistan, Art. 199---Constitutional petition---Filing of second ejectment petition after withdrawal of first petition---Landlord had earlier filed an ejectment petition which was subsequently withdrawn---Contention of the tenant (petitioner) was that second ejectment petition was not competent on the ground that permission for filing fresh ejectment petition was not sought from the Rent Controller---Validity---Provisions of the Civil Procedure Code, 1908 were not applicable to the proceedings before the Rent Controller---Under S. 20 of the Islamabad Rent Restriction Ordinance, 2001 there was a restriction for filing a second application; however, in the present case the earlier ejectment petition was not decided by the Rent Controller and there was no final order---Second ejectment petition, in circumstances, could be filed.

(c) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S.17---Constitution of Pakistan Art. 199---Constitutional Petition---Ejectment of tenant on ground of bona fide personal need of landlord and expiry of tenancy agreement---Ejectment of tenant (petitioner) was ordered by Appellate Court---Validity---Rights of the tenant had been safeguarded by S. 17(6) of the Ordinance which provided that if the premises were not occupied by the landlord or any member of his family within six months of the tenant's ejection, the tenant would have a right to apply to the Rent Controller for restoration of the possession of the premises to the tenant---Mere statement of the landlord regarding bona fide personal need was, therefore, sufficient in passing an order of ejectment since in law right of the tenant had been safeguarded---Tenancy/Rent Agreement between the parties had expired and not been extended, therefore the tenant on such score too, was liable to be ejected---Constitutional Petition was dismissed.

Nazir Ahmed Bhutta for Petitioner.

Mumtaz Ahmed Bilal for Respondent No.1.

Date of hearing: 13th February, 2012.

2012 M L D 1289

[Islamabad]

Before Shaukat Aziz Siddiqui, J

MUHAMMAD USMAN S Y ED---Petitioner

Versus

COMSATS INSTITUTE OF INFORMATION AND TECHNOLOGY through Vice-Chancellor and 2 others---Respondents

Writ Petition No.415 of 2011, decided on 30th April, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Admission---Petitioner/candidate applied to various universities and degree awarding institutions for admission in B.S. Programme in Computer Science---Provisional offer made by the Institution was accepted by the candidate by depositing fee---Later on, the candidate received an offer from another University to its B. S. Programme, which was accepted by the candidate by depositing dues, as said University was preferred choice by the candidate---Candidate decided to withdraw his acceptance for admission in the Institution and sought refund of the fee deposited by him, _ but Institution refused to refund the same on the ground that there was no such practice prevalent at the Institution---Validity---Non-refund of fee to any student who left the institution at the very initial stage, was harsh and against the principles of natural justice---One of the features of social contract i.e. Constitution of Pakistan, was to eliminate exploitation---Non-refund of the fee of the candidate tantamount to exploitation, resulting into an infringement to constitutionally guaranteed rights to citizen of Pakistan---Management of the Educational Institutions was expected to demonstrate parental conduct and approach towards students instead of businessmen---Every student would make his dreams true by opting for Educational Institution in accordance with his priorities and means---Every student had right to ensure that his educational career was guarded---To apply for getting admission in different institutions, should not be treated as an offence bringing penal consequences of forfeiture of entire fee/dues received by the institution---No rationale existed in the policy of non-refund of entire fee, which was unjust, harsh, illegal besides the mandate of Constitution, principles of natural justice, equity, social justice and dictums laid down by the superior courts---Such a policy could not be allowed to be applied by the public/private sector Institutions.

PLD 2010 Lah. 605; PLD 2009 Lah. 22; 2007 MLD 989; PLD 2006 SC 394; 2000 CLC 471; 1997 CLC 1379; 1992 CLC 2065; PLD 2010 SC 676; 2006 MLD 686; 2010 PLC (C.S.) 184; PLD 2000 Lah. 489; 2011 SCMR 1621; PLD 2007 Kara 116 and PLD 1979 SC 1 ref.

Barrister Omer Farooq for Petitioner.

Raja Abid Hussain for Respondent No.l.

Date of hearing: 2nd April, 2012.

2012 M L D 1594

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

SHAHID MEHMOOD---Petitioner

Versus

Mst. NAUREEN IJAZ and 2 others---Respondents

Writ Petition No.676 of 2012, decided on 25th June, 2012.

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

----S. 13---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dower was decreed concurrently---Execution of decree---Husband (petitioner) was ordered by Executing Court to deliver ten tolas of gold to the wife or pay its current market value which was in excess of Rs.120,000 claimed by the wife in the plaint---Validity---Order of Executing Court was in excess of its jurisdiction as the same was beyond the scope and mandate of the decree for which the wife had filed the execution petition---Wife had herself claimed the alternate price of Rs. 120,000 and decree was also passed to this effect, therefore, in case of non-recovery, she was entitled to the value she herself claimed in the suit---In case of non-recovery of gold ornaments, the wife shall be entitled to recover its price according to the market value prevalent at the time of filing the suit and not as per current market value---High Court set aside impugned order of the Executing Court---Constitutional Petition was allowed, in circumstances.

Mst. Mehbooba v. Abdul Jalil 1996 SCMR 1063 and Shamshad Bibi v. District Judge Multan PLD 2011 Lah. 790 rel.

Barrister Mustafa Aftab Sherpao and Hamid Ahmad for Petitioner.

Nadeem Hussain Mughal for Respondent No.1.

2012 M L D 1662

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

MUHAMMAD ASLAM DAR---Petitioner

Versus

FAZAL UR REHMAN KHAN NIAZI and another---Respondents

Civil Revision No.31 of 2012, decided on 9th May, 2012.

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

----O. IX Rr. 6 & 13---Ex parte decree, setting aside of---Suit for recovery was decreed ex parte against the defendant---Application of the defendant for setting aside ex parte decree was dismissed concurrently---Contention of the defendant was that he was abroad when notices were issued and that he had gained knowledge of the decree a week prior to the filing of the application---Validity---No plausible explanation was furnished by the defendant to substantiate his plea that he was outside Pakistan---Merely filing an application through an attorney by defendant did not mean that he had proceeded abroad and his plea of compromise with the plaintiff was not proved through any corroborative or documentary evidence---Vigilance was the basic principle and not indolence ; and when a party had no right towards his own interest the court could not be instrumented to rescue them for their continuous indolence for a sufficient period despite the fact on record that party after filing written statement caused his disappearance when ex parte decision initiated by Trial Court---Orders of the courts below could not be interfered with---Revision was dismissed, in circumstances.

(b) Administration of justice---

----Vigilance was the basic principle and not indolence; and when a party had no right towards his own interest the court could not be instrumented to rescue them for their continuous indolence.

M. Bashir Khan for Petitioners.

Raja Muqsit Nawaz Khan for Respondents.

Date of hearing: 3rd May, 2012.

2012 M L D 1684

[Islamabad]

Before Muhammad Azim Khan Afridi, J

Messrs AZAD HAFEEZ LTD. through Toor Jan, F.B.R., Islamabad---Petitioner

Versus

CHAIRMAN, F.B.R. ISLAMABAD and 5 others---Respondents

Writ Petition No.1331 of 2012, decided on 22nd June, 2012.

Constitution of Pakistan---

----Art. 199 & 174---Constitutional jurisdiction of High Court---Scope---Petitioner, inter alia, sought writ of mamdus against Customs Authorities for release of consignments held at the port---Validity---According to Art. 174 of the Constitution, the Federation was either to sue or be sued by the name of Pakistan and Province may sue or be sued by the name of such Province---Petitioner, in the present case, had failed to sue "Pakistan" in the prescribed manner---Subject matter of the suit pertained to the territorial limits of the Sindh High Court as the consignments were retained at the Port of Karachi and that cause of action had therefore accrued to the petitioner within such territorial limits ; and thus, High Court Islamabad lacked territorial jurisdiction to adjudicate over the matter---Constitutional petition being not maintainable, was dismissed, in circumstances.

Raja Aamir Abbas and Muhammad Safdar Janjua for Petitioners.

Raja Muhammad Iqbal for Respondents.

Date of Decision : 22nd June, 2012.

2012 M L D 1975

[Islamabad]

Before Iqbal Hameed-ur-Rahman, C.J.

SHALAMAR HOSPITAL through Chief Executive and 9 others---Petitioners

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL, ISLAMABAD and 4 others--Respondents

Writ Petition No. 701 of 2011, decided on 12th September, 2012.

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

----Ss. 2(d), 11, 16 & third Sched. Para-A---Pakistan College of Physicians and. Surgeons Ordinance (XX of 1962), S. 9---Constitution of Pakistan, Art.199---Constitutional petition---Medical consultants in a Hospital---Refusal of Pakistan Medical and Dental Council (PM&DC) to recognize and count full postgraduate teaching experience of petitioners since 1-2-1994 at such Hospital for their appointment as Associate Professor/Professors at proposed Undergraduate Medical and Dental College on ground of absence of recognition of such Hospital for postgraduate training program by PM&DC---Petitioners' plea that impugned refusal was without lawful authority as PM&DC had approved the Hospital for house job training in Medicine, Surgery, Obstetrics and Gynecology since 25-11-1984; and that College of Physicians and Surgeons (CPSP) had accredited the Hospital for FCPS-H training. in anesthesiology, Medicine, Pediatrics, Ophthal­mology, Surgery and Gynecology since 1-12-1994, thus, the Hospital would fall within definition of medical institution given in S.2(d) of Pakistan Medical and Dental Council Ordinance, 1962---Validity---Medical College in question has been notified as recognized by Ministry of Health since 7-1-2010---Neither said Hospital after its accreditation for FCPS and MCPS training w.e.f 1-12-1994 had applied to PM&DC for its recognition as Postgraduate Teaching Hospital nor CPSP had formally informed PMP&DC regarding such accreditation---Teaching experience of petitioners could not be counted under law due to absence of recognition of such Hospital by PM&DC, thus, they would be deprived of their qualifications---High Court directed the Hospital to apply for its recognition since 1-12-1994 through CPSP, which would forward same to PM&DC for granting its approval.

Pakistan Medical and Dental Council V. Ziauddin Medical University PLD 2007 SC 323 rel.

Anwar Kamal for Petitioners.

Malik Qamar Afzal for Respondents Nos. 1 and 2. Saad Rasool for Respondent No.3.

Date of hearing: 28th June, 2012.

2012 M L D 8

[Sindh]

Before Irfan Saadat Khan, J

Mirza MUHAMMAD SABIR BAIG---Petitioner

Versus

SAEED and 8 others---Respondents

Constitutional Petition No.S-1204 of 2010, decided on 26th August, 2011.

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

----S. 15(4)---Constitution of Pakistan, Art. 199---Constitutional petition---Reconstruction of building---Restoration of possession to tenant---Pre-conditions---Petitioner was tenant in building in question and due to dilapidated condition of the building it was demolished and new one was constructed---After about more than three years of construction of new building, the petitioner sought restoration of possession in new building in lieu of the area held by them in the old building---Application filed by petitioner was dismissed by Rent Controller as well by Lower Appellate Court---Validity---Pre-condition attached to the provision of S.15(4) of Sindh Rented Premises Ordinance, 1979, was that tenant had to apply to Rent Controller before completion of new building and before its occupation by another tenant---Rent Controller had the authority under S.15(4) of Sindh Rented Premises Ordinance, 1979, to pass an order directing the tenant to be put in such area of the new building as did not exceed the area in his possession in the old building---Petitioner was in full knowledge that old building was demolished and new building was constructed in its place but he did not make any attempt immediately after construction of new building to approach Rent Controller and it was only after a lapse of considerable time that he approached Rent Controller with the prayer that he should be put in possession of appropriate area in new building---Such action showed mala fide on the part of petitioner and he did not approach the court with clean hands---High Court declined to interfere in concurrent findings recorded by two courts below the orders passed against petitioner were maintained---Constitutional petition was dismissed in circumstances.

Person in Petitioner.

Ch. Muhammad Saleem Iqbal for Respondents.

Date of hearing: 18th August, 2011.

2012 M L D 39

[Sindh]

Before Mushir Alam, C.J. and Aqeel Ahmed Abassi, JJ

Messrs SEA BREEZE LTD. through Authorized Officer---Petitioner

Versus

Mrs. PADMA RAMESH and another ---Respondents

Constitution Petition No.D-1328 of 2008, decided on 9th May, 2011.

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

----S. 24-A, O, V, R. 20 & O. IX, Rr. 3, 4---Limitation Act (IX of 1908), Art. 164 & 181---Constitution of Pakistan, Art. 199---Constitutional petition---Suit pending in High Court transferred to District Court on administrative ground due to change in pecuniary jurisdiction---Dismissal of suit by Trial Court for non-prosecution---Plaintiff's application for restoration of suit dismissed by Trial Court, but accepted by revisional court---Validity---Case Diary of Trial Court showed that plaintiff had not been served with court motion notices through normal process---Report of Process Server regarding service by way of pasting did not show date, time, name and address of person upon whom such service was effected---Process Server had not associated any independent witness while effecting service through pasting---Such report showed that such process had been served upon defendant, but not plaintiff---Nothing on record to show that plaintiff or her counsel had been duly served or she avoided to receive summons or court motion notice---Resort to substituted service would be made only when all efforts to effect service in ordinary manner were verified to have been failed or party was reported to be avoiding to receive summons deliberately----Trial Court had not observed provisions of S.24-A(2) and O. V, R. 20, C.P.C.---Order of dismissal of suit was coram non judice, thus, limitation would not run thereagainst---Impugned order was not suffering from any legal and factual error---High Court dismissed constitutional petition in circumstances.

Mst. Roshan Jehan and 6 others v. Mst. Noor Jehan 1994 MLD 664; S. Irshad Hussain and another v. Azizullah Khan and another 1987 SCMR 150; Saifullah Siddiqui v. Karachi Electric Supply Corporation Ltd. 1997 SCMR 926 and Port Qasim Authority and another v. Mistle-2 Corporation 2001 YLR 1116 ref.

Haji Akbar and others v. Gul Baran and 7 others 1996 SCMR 1703; Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99; Mst. Noor Jehan v. Mst. Roshan Jehan and 6 others 1994 SCMR 2265; Mst. Roshan Jehan and 6 others v. Mst. Noor Jehan 1994 MLD 664; Karachi Shipyard and Engineering Works Ltd. v. M. Nizamuddin 1988 CLC 1208; M. Saadullah and 28 others v. Tahir Ali and 2 others 1986 CLC 2643 and Messrs Rehman Weaving Factory (Regd) Bahawal Nagar v. Punjab Small Industries Corporation Lahore PLD 1981 SC 21 rel.

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

----O. V, R. 20---Substituted service---Scope---Resort to such service would be made only when all efforts to effect service in ordinary way were verified to have been failed or party was reported to be avoiding to receive summons deliberately---Court was competent to issue process simultaneously through all modes or any of specified modes of service.

Haji Akbar and others v. Gul Baran and 7 others 1996 SCMR 1703; Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99 and Mst. Noor Jehan v. Mst. Roshan Jehan and 6 others 1994 SCMR 2265 rel.

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

----S. 115, O. IX, Rr. 2, 3, 4 & O. XLIII, R. 1---Order passed by Trial Court on an application under O. IX, Rr. 2, 3 & 4, C.P.C.---Not appealable, but revisable.

Waseem Akhtar for Petitioner.

Adnan Ahmed for Respondents.

Date of hearing: 18th April, 2011.

2012 M L D 97

[Sindh]

Before Mushir Alam, C.J. and Aqeel Ahmed Abbasi, J

MOULA BUX KHATIAN---Petitioner

Versus

PROVINCE OF SINDH through the Chief Secretary Sindh and 2 others---Respondents

Constitution Petition No.D-2284 of 2008, decided on 19th September, 2011.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Pre- conditions---While invoking extraordinary constitutional jurisdiction of High Court, petitioner has to establish firstly that he is an aggrieved party as defined in Art. 199 (1) (a) of the Constitution; secondly relief sought by petitioner is one which he is legally entitled to seek under any provision of law, rules or regulations; and thirdly for seeking relief prayed by him, no other forum or remedy is available to petitioner---Relief sought under Art. 199 of the Constitution depends on existence of a fundamental or legal right of a person or a party and infringement of such right, which may be a statutory right or a right recognized by law.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Allotment of plot---Petitioner claimed to be a civil servant serving in Sindh Government and was entitled under notification dated 15-1-1996, to allotment of a plot in Defence Housing Authority, out of the remaining plots reserved for such officials---Validity---Petitioner did not seek any declaration regarding his entitlement of allotment of a plot in terms of notification dated 15-1-1996, nor he had been able to show as to what statutory or legal rights were infringed by authorities---During pendency of petition, remaining plots had been allotted to the employees of Sindh Government pursuant to policy dated 15-1-1996, as amended vide notification dated 3-2-2006, through ballot wherein some quota for Chief Minister was also fixed---During pendency of the petition, authorities had also allotted plots to Provincial Government employees through computer ballot as declared under original policy---Petitioner was not entitled for a plot of land who had also disputed the entire process of allottees, allegedly undertaken by ignoring the criteria as laid down in the policy---Petition contained disputed facts and petitioner could not prima facie establish his entitlement to avail the benefit of such policy---Petitioner failed to make out a case to seek discretionary relief from High Court in extraordinary constitutional jurisdiction---Petition was dismissed in circumstances.

Moula Bux Khatian v. Chief Secretary, Government of Sindh 1996 PLC (C.S.) 312; Government of Sindh v. Messrs Khan Ginners (Pvt.) Ltd., PLD 2011 SC 347; Mst. Ummatullah v. Province of Sindh PLD 2010 Kar. 236; Abdul Haq v. Province of Sindh PLD 2000 Kar. 224 and Messrs Abdullah and Co. v. Province of Sindh 1992 MLD 293 distinguished.

Saghir Ahmed v. Province of Punjab PLD 2004 SC 261; Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs and others v. Aftab Ahmed Khan PLD 1992 SC 723; Government of Sindh through Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782; Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCMR 916; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif PLD 2009 SC 644 and Dr. R.A. Siyal v. Federation of Pakistan through the Secretary Establishment and others 2011 SCMR 1194 ref.

Muhammad Mustafa Hussain for Petitioner.

Abudl Fatah Malik, Advocate-General Sindh and Sher Muhammad K. Shaikh, Additional Advocate General Sindh for Respondents.

Date of hearing: 30th May, 2011.

2012 M L D 111

[Sindh]

Before Shahid Anwar Bajwa, J

ALLAH WASSAYIO and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-584 of 2011, decided on 3rd October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395/436/148/149/504/427/ 337-H(2)---Dacoity, mischief by fire---Bail, refusal of---Delay in lodging the F.I.R. had been sufficiently explained, which even otherwise was immaterial and of no consequence in view of the given circumstances---Accused as members of an unlawful assembly had allegedly trespassed into the house of the complainant, committed robbery and thereafter set his house on fire, which was completely burnt---Every member of the unlawful assembly was equally liable and guilty for the commission of the offences in terms of S.149, P.P.C.---Recovery of crime empties and nothing of the footprints in a burnt house was difficult, that too after 42 days of the incident---Accused had allegedly committed the crime of trespassing into the house of the complainant, robbing a family and then putting the house on fire---Such conduct did not deserve discretionary concession of bail---Accused were refused bail accordingly.

Ali Akbar v. The State 2000 PCr.LJ 1796; Sajid Ali v. The State 2009 PCr.LJ 130 and Falak Sher v. The State 2004 PCr.LJ 1676 ref.

Manzoor Hussain Ansari for Applicants.

Muhammad Tariq Maitlo for the Complainant.

Shyam Lal, A.P.-G.

Date of hearing: 3rd October, 2011.

2012 M L D 116

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

ALI QASWAR BOKHARI---Applicant

Versus

THE STATE through Director General, NAB (Sindh) and another---Respondents

Criminal Miscellaneous Application No.D-187 of 2010, decided on 7th October, 2011.

National Accountability Ordinance (XVIII of 1999)---

----Ss.10 & 18---Criminal Procedure Code (V of 1898), S. 561-A---Corruption and corrupt practices---Reference---Application for quashing of order---Allegation in the Reference was that accused had purchased movable and immovable properties in the name of his wife, who also had bank accounts and investments, which were unexplained---Applicant, had challenged said Reference, contending that no attempt was made to record statement of his wife before filing of Reference; that he and his wife had separated; that the Chairman NAB had mechanically passed the order of signing the Reference; and that in doing so Chairman did not apply his mind and failed to give any reasons as required under S.24-A of General Clauses Act, 1897---Validity---Held, where only Reference had been filed, mere non-recording of statement of his wife, would not support the fact that prima facie ground for filing the Reference in law had not been made out or there was defect in the Reference on such ground---Wife in the Reference, was shown to be a benami owner of the properties in question and the real beneficiary was alleged to be the applicant himself---Burden of proof was on the applicant, who had been given opportunity of leading evidence before Accountability Court---Applicant had failed to disclose as to when he and his wife had separated and as to what was meant by the word "separation"---Counsel for the applicant, however, had not admitted that divorce had taken place between the applicant and his wife---One of the paras in the Reference had shown that Chairman had appraised the material and evidence placed before him and that he was satisfied that it was just and proper to proceed further as there was sufficient incriminating material justifying the filing of Reference---Such statement in the Reference, was demonstrative of the fact that the Chairman NAB had applied his mind to material placed before him for referring the matter to the court and also had given reasons for doing so---Contentions of applicant were repelled and his application filed under S.561-A, Cr.P.C. was dismissed, in circumstances.

Khan Asfandyar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607 and Rauf Bakhsh Kadri v. The State and others 2003 MLD 777 distinguished.

Aamir Raza Naqvi for Applicant.

Ashiq Raza, D.A.G.

Noor Muhammad Dayo, Senior Prosecutor NAB.

Date of hearing: 16th August, 2011.

2012 M L D 132

[Sindh]

Before Faisal Arab, J

Messrs DANISH CORPORATION through Proprietor and 4 others---Applicants

Versus

GHULAM HUSSAIN---Respondent

Revision Applications Nos.75, 76, 77 and C.M.As. Nos. 4276, 4400, 1264 of 2011, decided on 11th October, 2011.

Civil Procedure Code (V of 1908)---

----O.XXI, R. 90 (1)---Auction, confirmation of---Sale attaining finality---Past and closed transaction---Offer was made for the entire house of widow of deceased judgment debtor and the sale was confirmed on 17-3-2009, which order was not even challenged by applicant at any stage---Applicant had challenged the sale on 3-1-2011 when sale certificate was issued for the entire house---Validity---Reference to 44.37 % was referred to decretal amount only and it was not to the share in the house---Offer was for the entire house in order to recover 44.37% of the original decretal amount of Rs.77,50,000 which came to Rs.34,84,281, therefore, there was no justification to question sale of entire house---When sale of the entire house was confirmed on 17-3-2009, the same was not challenged in any proceedings which in order had attained finality---High Court declined to interfere in the sale---Revision was dismissed in circumstances.

Abdul Wajid Wyne for Applicants.

Fasih-uz-Zaman Abbasi for Respondent.

2012 M L D 137

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

TIPU SULTAN KHAN---Petitioner

Versus

INSTITUTE OF BUSINESS ADMINISTRATION (IBA)---Respondent

Constitutional Petition No.D-2244 of 2011, decided on 14th September, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Higher Education Commission Scholarship---Criteria---Petitioner applied in year, 2009, for Higher Education Commission Scholarship but he remained unsuccessful---To earn a Higher Education Commission Scholarship, stringent criteria had to be met and was to be followed through by petitioner, which he could not---Neither petitioner was equipped with 50th minimum percentile in Graduate Recorded Examination (GRE) nor he got such score individually in each module and he also failed to qualify in faculty presentation evaluation---If petitioner's performance was gauged in year, 2011, on the criteria of year, 2009, of 40th percentile and he would be allowed to reap benefit of such percentile, it was unfair and discriminatory for the persons who had applied for scholarship in year, 2010, and were refused, falling short of on the stringent 50th percentile but achieved 40th percentile or near to 50th percentile but could not make it through because of such a standard---Petitioner could not claim any preferential right and / or latitude in evaluating his case on the basis of 40th percentile as was applicable in year, 2009---High Court declined to interfere in the decision taken by Higher Education Commission---Petition was dismissed in circumstances.

Petitioner in Person.

Ali Mumtaz Shaikh for Respondent.

Date of hearing: 9th September, 2011.

2012 M L D 145

[Sindh]

Before Muhammad Tasnim, J

Syed MUDDASSIR ALI RIZVI---Petitioner

Versus

NAJEEB MALIK and 4 others---Respondents

Constitutional Petition No.S-197 of 2010, decided on 3rd October, 2011.

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

----Ss. 15 & 18---Civil Procedure Code (V of 1908), S. 12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Change of owner---Eviction order, setting aside of---Eviction order was passed by Rent Controller and Lower Appellate Court against tenant---Validity---Property in question was purchased by landlord through court and under the orders of court, Bank had conveyed the property through registered instrument and thereafter notice of change of ownership under S.18 of Sindh Rented Premises Ordinance, 1979, was served upon sitting tenant---Landlord having purchased the property under registered instrument, he was the owner of the property and landlord of tenant under occupation of property in dispute---Question of fact and question of title could not be resolved under constitutional jurisdiction---Such question could be resolved in a regular suit in which after recording evidence of parties civil court could record its findings in that respect---Order of ejectment passed by Rent Controller affecting tenant adversely or with regard to title of property, such question could not be decided in a constitutional petition---Tenant failed to point out any jurisdictional defect in proceedings before Rent Controller or misrepresentation of facts or any fraud played by landlord---Petition was dismissed in circumstances.

Faqir Muhammad v. Muhammad Sharif 1991 MLD 1578; Mst. Rashida Begum v. Mazhar Iqbal 1983 CLC 380; Nadeem Ahmed Mirza v. Mrs. Shah Sultana Begum and another PLD 1994 Kar. 177; Abdul Hamid v. Ghulam Samdani 1991 CLC 773; Waheedullah Khan and 2 others v. Muhammad Hanif and 2 others 1989 SCMR 2042; Munir Ahmed v. Bara Khan 1990 SCMR 973; Tanveer Jamshed and another v. Raja Ghulam Haider 1992 SCMR 917; Fazal Baqi and another v. Rehmatullah 1995 MLD 303; Shaukat Javed v. Sh. Abdul Khaliq and 2 others 1991 SCMR 215; Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064; Inayatullah Butt v. Umar Hayat Khan and 2 others 1994 CLC 1323 and Khalid Mahmud and 6 others v. Maqbul Mahmood Bajwa, Additional District Judge, Sialkot and another 1999 MLD 1607 distinguished.

Dr. Ubaidur Raza Khan v. Mrs. Saghera Bano and another 1994 CLC 1302; Muhammad Saqlain and others v. Ali Husnain Qadir and others 1987 CLC 2008; Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197; Muhammad Rafiq Butt v. Islamic Republic of Pakistan and others 1992 ALD 470(2) and Rab Nawaz and 2 others v. Shahnawaz Khan and 4 others PLD 1988 Lah. 492 ref.

S.M. Ishrat Ghazali for Petitioner.

Malik Muhammad Riaz for Respondent No.1.

Date of hearing: 22nd September, 2011.

2012 M L D 164

[Sindh]

Before Faisal Arab, J

ASSISTANT EXECUTIVE ENGINEER, NABISAR SUB-DIVISION and 3 others---Applicants

Versus

MANZOOR AHMED and 4 others---Respondents

Revision Application No.76, C.M.A No.603 and M.A. No. 225 of 2010, decided on 7th January, 2011.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Water course, use of---Uninterrupted water supply---Grievance of plaintiffs was that irrigation authorities had started providing them water on rotational basis whereas all other farmers were getting uninterrupted water supply through their watercourses---Both the courts below had concurrently decreed the suit in favour of plaintiffs---Validity---Watercourses must get water without any interruption except when there was annual closure for the purposes of carrying out de-silting work or when work for reinforcing embankments was to be carried out---Banks of relevant canal were being fortified with the result that temporary rotation program was enforced---Rotation program was temporary in nature imposed only for the purposes of carrying out the works of reinforcement of the banks of relevant canal that was in progress in year, 2006 and could not be made a permanent feature as against the original sanctioned flow of watercourse in question which was to run without any rotation program---Both the courts below had rightly decreed the suit filed by plaintiffs and High Court did not find any legal justification to interfere with their conclusions---Revision was dismissed in circumstances.

Allah Bachayo Soomro, Addl.A.G. for Applicants.

Jhamat Jethanand for Respondents Nos. 1, 3 and 4.

Salahuddin Panhwar for Respondent No.2.

Hakim Ali Siddiqui for Intervenors.

Date of hearing: 28th June, 2010.

2012 M L D 171

[Sindh]

Before Munib Akhtar, J

Mrs. RUKHSANA YASMEEN (YAHYA)---Plaintiff

Versus

NAZAZ ALI and 7 others---Defendants

Suit No.198 and C.M.A. No.4711 of 2010, decided on 4th July, 2011.

Civil Procedure Code (V of 1908)---

----O.XXXVIII, Rr. 5 & 6---Specific Relief Act (I of 1877), Ss. 12, 39, 42 & 54--- Specific performance of agreement, cancellation of document, declaration and injunction---Attachment before judgment---Principles---Plaintiff filed suit against defendant on the ground that suit property was booked by her from defendant who did not transfer possession of the property to her---Plaintiff sought attachment of suit property before judgment on the ground that defendant had leased out suit property to a third party---Validity---Crucial element for attachment before judgment was that the concerned defendant intended to dispose of subject property with an intent to delay, defeat or otherwise frustrate any decree that might be made in the suit---Leasing out of property to third party could not in and of itself defeat the rights and interest (if any) of plaintiff, if she would eventually be able to make out a case for grant of judgment and decree---Defendant expressly gave an undertaking and reaffirmed the same---All such factors militated against grant of interim relief by way of attachment before judgment---Application was dismissed in circumstances.

Travel Agent Association of Pakistan v. Skyline (Pvt.) Travels Ltd. 1992 CLC 1644 and Prinze (Pvt.) Ltd. v. Shahid Saeed Khan and others 2002 CLD 391 distinguished.

S.M. Yahya for Plaintiff.

H.A. Rehmani for Defendants Nos. 1, 6 to 8.

Syed Amir Haider and Malik Muhammad Ejaz for Defendant No.5

Muhammad Iqbal Memon for S.B.C.A.

Date of hearing: 17th May, 2011.

2012 M L D 188

[Sindh]

Before Muhammad Athar Saeed and Muhammad Ali Mazhar, JJ

Mst. GHAZALA REHMAN through Attorney---Appellant

Versus

NAJMA SULTANA through Legal Heirs and 2 others---Respondents

High Court Appeals Nos.176 and 177 of 2004, decided on 28th September, 2011.

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

----O. XII, R.6---Specific Relief Act (I of 1877), Ss. 42 & 54---Law Reforms Ordinance (XII of 1972), S. 3---Intra court appeal---Judgment on admission---Scope of application of O.XII, R.6, C.P.C.---Non-recording of evidence---Trial Court without framing proper issues and recording of any evidence, decreed the suit only on the basis of some admission made in written statement filed by defendant---Validity---Pure question of law could be decided without adducing evidence but for the purposes of decree on admission, the party who wanted decision on admission of other party had to file application under O. XII, R. 6 C.P.C. which was mandatory for securing decree on admission---In order to attract provision of O. XII, R. 6, C.P.C. admission should necessarily be unequivocal, clear, unconditional and unambiguous---Court while dealing such application for grant of decree must exercise its discretion in a judicial manner, subject to qualification regarding maintainability of suit on any legal objection going to the very root of the matter---Court should not grant decree on admission without resorting to objections raised---While passing judgment and decree, real question in controversy remained undetermined which could not be decided without adducing evidence by parties and mostly issues framed by Trial Court which were the issues of mixed question of law and fact and required evidence---High Court set aside the judgment and decree passed by Trial Court and remanded the case to Trial Court for decision afresh on merits after recording of evidence---Intra court appeal was allowed accordingly.

Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342; Mst. Farida Sajid v. Syed Muhammad Baqir Ali Shah and others 2000 MLD 1729; Ashiq Hussain and another v. Ashiq Ali 1972 SCMR 50; Azim Khan v. Malik Mobeen Khan 2001 SCMR 34 and Muhammad Bakhsh v. Ellahi Bukhsh 2003 SCMR 286 ref.

Amir Bibi through Legal heirs v. Muhammad Khursheed and others 2003 SCMR 1261 and Macdonald Layton and Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Co. and others 1996 SCMR 696 rel.

Fateh Muhammad v. Fida Hussain 2007 CLC 1885; Muhammad Rafiq v. Muhammad Ali 2004 SCMR 704; Munawar Hussain v. Amanat Ali PLD 2007 Lah. 83; Raza Munir v. Mst. Sardar Bibi 2005 SCMR 1315 and Ashiq Hussain v. Ali Ahmed 1999 YLR 2209 distinguished.

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

----O. XIV, R.1---Issues, framing of---Principles---"Material proposition"---Connotation---Stage of framing of issues arises when a material proposition of fact or law is affirmed by one party and denied by the other---Material propositions are those propositions of law or fact which plaintiff must allege in order to show a right to sue or defendant and must allege in order to constitute his defence---Each material proposition affirmed by one party and denied by the other forms the subject of a distinct issue---Court after reading plaint and written statement, if any and after examination of parties as may appear necessary proceed to frame and record issues on which right decision of case appears to depend.

(c) Maxim---

----Actus curiae neminem gravabit---Applicability---Scope---Rule that act of court should prejudice no man, comes into play with a view to obviate hardships which may otherwise be the result of errors of court itself---Where non-compliance with mandatory provisions of law occurs by complying with the direction of the court which is not in conformity with law, the party complying therewith is not to be penalized.

Ghulam Hassan v. Jamshed Ali 2001 SCMR 1001 and Saadat Hayat Khan v. Muslim Commercial Bank Ltd. 2005 CLC 187 rel.

Sardar Jamal Sukhera for Appellant.

Rizwan A. Siddiqi for Respondent No.1.

Dr. Farogh Nasim for Respondent No.2.

Dates of hearing: 25th January and 24th September, 2011.

2012 M L D 213

[Sindh]

Before Syed Hasan Azhar Rizvi, J

HARIS RANA---Applicant

Versus

Mst. SARWAT AKHTAR and another---Respondents

Civil Transfer Application No.58 of 2011, decided on 27th October, 2011.

Civil Procedure Code (V of 1908)---

----S. 24---Specific Relief Act (I of 1877), S. 12---Suit for damages and suit for specific performance of agreement---Consolidation of two suits---Applicant sought transfer of suit for recovery of damages, from civil court to High Court, where suit for specific performance of agreement was pending---Validity---Transfer of suit from civil court to High Court would be just and proper, as the parties and property involved in both the suits were one and the same---No prejudice would be caused to either party if transfer application was allowed, as no evidence was recorded in the matter yet and only the copy of affidavit-in-evidence had been supplied to the respondent---High Court keeping in view the convenience of both the parties; to avoid conflict in decisions of two suits; and to look after the grievance of parties, directed the suit of respondent pending before civil court, to be transferred to High Court, where suit of applicant was pending---Application was allowed in circumstances.

Mst. Ansar Jehan Jillani and another v. Dr. Mehmood Zulqarnain Jillani 2001 MLD 1024 and Messrs First Women Bank Ltd. v. Registrar, High Court of Sindh and others 2004 SCMR 108 ref.

Abdul Sattar Pirzada and Farhatullah for Applicant

Ahmed Pirzada for Respondent No.1

2012 M L D 235

[Sindh]

Before Muhammad Tasnim, J

SULTAN MURAD---Applicant

Versus

THE STATE---Respondent

Bail Application No.1003 and M.A. No.7975 of 2011, decided on 13th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.376---Rape---Bail, grant of---Further inquiry---Complainant despite having known about the unlawful pregnancy of his daughter had lodged the F.I.R. with an inordinate delay of one month---Date of occurrence was shown in the F.I.R. as not known---Victim girl in her statement recorded under S.164, Cr.P.C. had completely contradicted the version of the complainant given in the F.I.R.---Sessions Court had directed for getting a fresh DNA report after taking samples from the accused, the victim and the born baby, which had made the prosecution case doubtful---Guilt of accused required further inquiry within the meaning of S.497(2), Cr.P.C.---Bail was allowed to accused in circumstances. [pp. 238, 239] A & B

Raja Mir Muhammad for Applicant

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

Date of hearing: 13th October, 2011.

2012 M L D 273

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

KHAN MUHAMMAD MEHAR---Appellant

Versus

THE STATE---Respondent

Accountability Appeal No.3 of 2001 and M.A. No.7190 of 2011, decided on 17th October, 2011.

National Accountability Ordinance (XVIII of 1999)---

----Ss.6(c) & 18---Criminal Procedure Code (V of 1898), S.561-A---Reference, filing of---Deputy Chairman---Powers---Scope---Plea raised by accused was that reference against him was not maintainable as the same was signed by Deputy Chairman---Validity---Deputy Chairman had ample powers under S.6(c) of National Accountability Ordinance, 1999, to act as Chairman NAB, in absence of the Chairman or because of his (Chairman's) inability to perform functions of his office which also included power of signing references; there was, therefore, nothing wrong or illegal on the part of Deputy Chairman, NAB in signing and sending Ehtsab Reference against accused---Application was dismissed in circumstances.

Dr. Mubashir Hussain v. Federal Government PLD 2010 SC 1 and Bank of Punjab v. Haris Steel Industries PLD 2010 SC 1109 distinguished.

Shahab Sraki, Syed Ghulam Shah and Shah Nawaz Sehto for Appellant.

Noor Ahmed Dayo, Special Prosecutor General, NAB for the State.

Date of hearing: 29th September, 2011.

2012 M L D 303

[Sindh]

Before Muhammad Athar Saeed, J

ABDUL SHAKOOR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.672 of 2011, decided on 16th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, grant of---Further inquiry---Order passed by the Trial Court, whereby bail application of accused was rejected, was very sketchy and non-speaking and against the facts of the case---Trial Court had stated that accused were identified at the spot by the complainant, whereas in the F.I.R. it was stated that complainant was not present at the scene of the crime and accused were identified by the complainant's wife by their voice which was a weak evidence---Such an order could not be sustained as Trial Court had not given any cogent reason for rejection of bail---Case of accused was that of further enquiry---Grant of bail in respect of offences for which maximum punishment was less than ten years was a right and refusal an exception---Accused was admitted to bail, in circumstances.

Ahmed Sher and another v The State PLD 1995 Federal Shariat Court 20 and Ali Ahmed v. The State 2007 YLR 1144 ref

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

Aijaz Farooq for Applicant

Ms. Rahat Ehsan, Deputy Prosecutor General Sindh.

2012 M L D 314

[Sindh]

Before Shahid Anwar Bajwa, J

QURBAN ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-354 of 2011, decided on 17th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149/114---Qatl-e-amd---Bail, refusal of---Direct role had been attributed to accused in the F.I.R. lodged within an hour and some minutes of the incident---Six assailments took part in the incident; six pistols and six empties were recovered and there were six entry wounds on the deceased---One pistol was alleged to have been recovered at the pointation of accused, which was sent to Ballistic Expert, who had given a positive report---Case appeared to be a premeditated murder---No other apparent reason existed to believe that the encounter between the parties was by chance---Previous enmity existing between the parties one would murder someone or implicate someone falsely only if there was a previous enmity---Previous enmity, in circumstances, was a sword which would cut both ways---Bail application, was dismissed, in circumstances.

Dilmurad v The State 2010 SCMR 1178; Ahmed v The State 2007 PCr.LJ 987; Shad Muhammad v The State 2002 PCr.LJ 494; Lakhmir Kurio v The State 2005 YLR 1467; Muhammad Siddiq v. Muhammad Sharif, 1981 SCMR 784; Moula Bux v The State 2009 PCr.LJ 472; Ali Nawaz v The State 2008 YLR 2957; Muhammad Arshad v The State 2005 SCMR 756; Umar Daraz v The State 2004 SCMR 1019 and Shahbaz v The State 2006 PCr.LJ 1548 ref

Achar Khan Gabol for Applicant

Shabir Ali Bozdar for the Complainant

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

2012 M L D 333

[Sindh]

Before Imam Bux Baloch, J

PATHAN and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-773 of 2011, decided on 31st October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 201, 311, 34 & 109---Qatl-e-amd, causing disappearance of evidence of offence, Tazir after waiver or compounding of right of Qisas in qatl-e-amd---Bail, refusal of---Accused, on the sole ground of delay in lodging the F.I.R., were not entitled to bail at the earlier stage---Courts had to be very careful and see that bail application was disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the Trial Court---When material available on the record showed that case of accused persons fell within the prohibitory clause of S. 497, Cr.P.C., bail was refused.

Muhammad Najeeb v The State 2009 SCMR 448 distinguished.

Naseer Ahmed v The State PLD 1997 SC 347 rel

Ghulam Shabbir Dayo for Applicants

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

2012 M L D 348

[Sindh]

Before Syed Hasan Azhar Rizvi, J

FAISAL HAYAT alias HAYATULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1115 of 2011, decided on 27th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)---Possessing and trafficking narcotics---Bail, refusal of---Accused was selling heroin in odd time of night, no private witness was available---Recovered material was in the form of one hundred and ten rods of charas, total weighing Eleven hundred grams---Two customers were available as per contents of the F.I.R. who after seeing the Police mobile escaped from the spot taking advantage of the darkness of the night---Counsel for accused had contended that accused was innocent and had falsely been implicated due to mala fide intention and with ulterior motive---Counsel having failed to point out any material to support his plea, his contention was repelled---Innocence of accused could only be determined after recording of the evidence by the Trial Court---Challan having already been submitted before the Trial Court, court was directed to complete the trial within a period of two months' time---Bail application was dismissed, in circumstances.

2009 PCr.LJ 315; Sohail alias Gang v The State 2009 YLR 189 and Gulab Hussain v The State PLD 2000 Lah 361 ref

M. Sahib Khan Buneri for Applicant

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

2012 M L D 353

[Sindh]

Before Ahmed Ali M. Sheikh, J

SHADAB AKHTAR and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.666 and M.A. No.3905 of 2009, decided on 24th February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.342/337-A/ 332(c)/220/386/388/457---Police Order (22 of 2002), Arts.155/156---Wrongful restraint causing Shajjah, commitment for trial or confinement by person having authority, extortion, lurking house-trespass by right, and misconduct by Police---Bail, refusal of---Names of accused persons appeared in the F.I.R.---Alleged abductee and almost all the prosecution witnesses had implicated the accused persons---Counsel for accused persons had contended that accused persons had been falsely involved in the case as complainant sons had been challaned by the Police in different cases, but counsel could not place any document on record to show as to whether son of the complainant had either lodged any case or acted as witness in any case registered against the accused persons---Magistrate raided Police Station concerned and recovered all the alleged abductees---Counsel for accused persons had failed to show any mala fide either on the part of the complainant party or the Police---Accused, in circumstances, were not entitled to extraordinary relief of pre-arrest bail---Bail application was dismissed and order granting pre-arrest bail to accused was recalled.

Muhammad Arshad v. Muhammad Rafiq PLD 2009 SC 427 rel

Maqboolur Rehman for Applicants

Saleem Akhtar, Additional P.G

Zakir Hussain Bughio for the Complainant

2012 M L D 371

[Sindh]

Before Tufail H. Ebrahim, J

TANVEER NAZ---Plaintiff

Versus

ABDUL RASHID and another---Defendants

Suit No.574 and C.M.A. No.4796 of 2011, decided on 20th May, 2011.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Illegal Dispossession Act (XI of 2005), Ss.3 & 4---Declaration of title---Interim injunction, grant of---Concealment of facts---Suit for specific performance filed by defendant was dismissed but plaintiff was not put in possession of suit property through any specific order in that suit nor plaintiff had filed any suit for possession---Plaintiff preferred to file criminal complaint within the meaning of Illegal Dispossession Act, 2005, and as an interim measure he was given possession of the suit property---Validity---Interim measure was subjected to final outcome of criminal complaint and criminal court had directed plaintiff to handover possession of suit property to defendant---Plaintiff was not in lawful possession of suit property and/or defendants were not attempting to dispossess the plaintiff from suit property without due process of law, when the suit was filed by plaintiff---By concealment of fact, plaintiff had obtained ad interim order---Plaintiff having not come with clean hands to High Court, and did not have a prima facie case or balance of convenience in his favour---High Court declined to grant interim injunction---Application was dismissed in circumstances.

Faiz H. Shah for Plaintiff

Z.K. Jatoi for Defendants

Date of hearing: 17th May, 2011.

2012 M L D 377

[Sindh]

Before Shahid Anwra Bajwa, J

MIR HASSAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-1148 of 2010, decided on 21st November, 2011.

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

----S. 498---Penal Code (XLV of 1860), Ss.324/395/337-H(2)---Attempt to commit qatl-e-amd---Pre-arrest bail, refusal of---F.I.R. was very clear that the accused had made a Kalshnikov fire on the injured person---According to medical opinion it was a fire-arm injury---Minute assessment and extent of the said injury could not be determined at bail stage, as the same would amount to deeper appreciation of evidence---Accused had allegedly pressed the trigger of his fire-arm and the bullet had hit the injured person---Whether the accused was such a crack shot that he could hit a moving fly in the air or it was only luck which had saved the victim, was a question which could only be decided by Trial Court after recording evidence---Such like injury so close to eye, grating the temple and so close to ear could not be brushed aside by merely classifying it as "Shajjah-i-Khafifah", because it was not a case of mere injury, but a case under S.324, P.P.C.---Sufficient material was available to prima facie connect the accused with the commission of the offence alleged in the F.I.R.---Pre-arrest bail was declined to accused in circumstances.

Liaqat Ali v. The State 2004 PCr.LJ. 962 rel

Hamza Ali Hamza v. The State 2010 SCMR 1219 distinguished.

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

----S. 324---Attempt to commit qatl-e-amd---Scope and extent---Once an accused presses the trigger of his fire-arm, S. 324, P.P.C. comes in action. [p. 381] B

Liaqat Ali v. The State 2004 PCr.LJ. 962 rel

Qurban Ali Malano for Applicant

Ghulam Shabir Dayo for the Complainant

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

2012 M L D 389

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

GHULAM HUSSAIN---Appellant

Versus

GULSHER and another---Respondent

Criminal Acquittal Appeal No.66 of 2011, decided on 18th October, 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---No eye-witness of the occurrence---Statement of the Tube-Well owner where the deceased was serving as "Chowkidar" was not recorded---No crime empty was collected from the place of incident---No incriminating weapon was recovered from the accused---Statements of prosecution witnesses under Ss.161 and 164, Cr.P.C. had been recorded with delay---Prosecution evidence was contradictory---Star witness claiming to have seen the occurrence had been brought to Police Station by the complainant, but admittedly he had not given the torch to the police in the light of which he had seen the incident, nor he had visited the spot---Said alleged eye-witness had kept mum and did not make any statement against the accused for more than one and a half months---Prosecution, thus, had failed to prove the guilt of accused---Appeal against acquittal of accused was dismissed in circumstances.

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

----S. 417---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Appeal against acquittal---Appreciation of evidence---Principles---Not safe to record conviction when no ocular evidence is available connecting the accused with the commission of the offence, particularly when any link in the chain of circumstantial evidence is missing---Order of acquittal raises a strong double presumption of innocence in favour of accused and, therefore, very strong and exceptional grounds are required to set aside the same---Standards to appraise the evidence in appeal against acquittal are quite different from those laid down for an appeal against conviction---Credence should be accorded to the findings of the subordinate courts while examining the order of acquittal, where the accused had been exonerated from the charge of commission of crime.

Ghulam Shabir Dayo for Appellant.

Date of hearing: 18th October, 2011.

2012 M L D 396

[Sindh]

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

GHULAM HUSSAIN MEMON---Petitioner

Versus

Messrs SHAH ABDUL LATIF EDUCATION through Honorary Secretary and another---Respondents

C.P. No.D-2191 of 2009, decided on 29th November, 2011.

Civil Procedure Code (V of 1908)---

----S.92 & O.VII, R.11---Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration and permanent injunction---Rejection of plaint---Defendant Trust having decided to close shops given to the plaintiff, on rent, plaintiff filed suit against said decision of the Trust---Plaint was rejected by the court below holding that the suit was hit under S.92, C.P.C.---Validity---Plaintiff had filed suit only for protection of his tenancy rights and had not challenged the existence of Trust or sought any relief for the administration of the defendant Trust---Consent of Advocate General in circumstances, was not needed before filing the suit---Clear difference existed between the prayers in the suit filed by the plaintiff and the provisions of S.92, C.P.C. which had been designed for the protection and administration of Trusts created for a public purpose and required the consent of the Advocate General before filing the suit to obtain decree---In the present case, the plaintiff had filed suit for protection of his right that he could not be dispossessed from the shop in question without due course of law; and for such purpose he approached the court and the court had granted such relief directing the defendant not to interfere in the business of the plaintiff and not to dispossess him from premises without due course of law and revision against such order was also dismissed by Appellate Court---Appellate Court below had misconstrued that plaintiff's suit fell within the ambit of S. 92, C.P.C.---Impugned judgment was set aside and case was remanded to the Trial Court to decide the same on merits.

Ganga Puri v. Mohn Lal and others AIR 1924 Lah. 131; Khadam Hussain and 3 others v. ATA Muhammad and 7 others 1970 SCMR 127; Miskin v. Additional District Judge, Mansehra and 32 others 2003 SCMR 121; Kathiawar Cooperative Housing Society Ltd. v. Macca Masjid Trust and others 2009 SCMR 574; Sajid Ali Khan and another v. Muhammad Ahmed Farooqui PLD 1959 (W.P.) Kar. 24 and Begum Hafizunnisa Qureshi and others v. Shaikh Muhammad Hussain and others 2003 CLC 1156 ref

Syed Arif Ali v. Syed Firdous Ali and others 2002 MLD 908; Jamia Masjid Muhammadia and Madassa Faizia v. Shamsher Khan and others 2003 CLC 682 and Ghulam Yahya v. Ali Muhammad Jamal Maternity Homes PLD 2005 Kar. 240 rel.

K.A. Wahab for Petitioner.

Kumail Ahmed Shirazi for Respondent No.1.

Date of hearing: 1st November, 2011.

2012 M L D 415

[Sindh]

Before Faisal Arab and Aqeel Ahmed Abbasi, JJ

Khawaja MUHAMMAD ASGHAR---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Defence, Islamabad and 3 others---Respondents

Constitution Petition No.D-1049 of 2004, decided on 14th December, 2011.

Cantonments Act (II of 1924)---

----Ss. 60, 61 & 62---Constitution of Pakistan, Art.199---Constitutional petition---Approval of building plan for raising house on the plot---Demand of amount as TIR Tax---Plot owned by the petitioner was situated in Housing Scheme, which scheme was part and parcel of Karachi Development Authority---Subsequently the scheme was transferred to Cantonment Board in the year 1997---In the year 2004 the petitioner applied for approval of building plan for raising house on his plot---Cantonment Board vide letter dated 14-6-2004, demanded a sum of Rs.122,592 which included Rs.96000 as TIR Tax---Petitioner had challenged levy of said tax contending that TIR Tax was being charged on the basis of S.R.O. issued by Ministry of Defence in exercise of powers conferred under S.61 of Cantonments Act, 1924; that since the S.R.O. was issued in 1977 and the plot of the petitioner was included in the Cantonment area from the year 1997, said S.R.O. could not be made applicable to the case of the petitioner---Validity---Once a tax had been levied within the jurisdiction of a Taxing Authority, then addition of any area to the jurisdiction of such Authority would make all levies of taxes and charges and laws of the Authority applicable to such additional area---Laws could not be enacted afresh to have their effect on the additional/extended area---Constitutional petition was dismissed.

Khawaja Muhammad Asghar, Petitioner in person.

Ashfaq Ahmed Zafar, D.A.-G. for Respondent No.1.

Cantonment Executive Officer, Shahrah-e-Faisal, Karachi for Respondents Nos.2 and 3.

Chief Controller of Buildings, Karachi Building Control Authority Karachi for Respondent No.4.

Date of hearing: 1st December, 2011.

2012 M L D 433

[Sindh]

Before Nisar Muhammad Shaikh and Imam Buxh Baloch, JJ

DEEDAR ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.D-96 and Criminal Acquittal No.D-33 of 2007, decided on 28th April, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b), 460 & 34---Qatl-e-amd, lurking house-trespass by night for qatl or hurt---Appreciation of evidence---Name and description/features of accused persons were not mentioned in the F.I.R., but their names were shown as unidentified/unknown persons---None of the three accused, was put to identification test for the purpose of identification by the eye-witnesses and the complainant---Even statement under S.164, Cr.P.C. was not recorded during the investigation---No confession was obtained from the accused who was apprehended at the spot---Material brought on record by the prosecution, was silent on material point relating to identification of accused persons---No crime weapon was recovered from accused persons who had surrendered themselves before the Trial Court---Motive of crime as was evident from the F.I.R. itself, was only the theft, but the murder in question was committed at the distance of about one furlong away from the house of complainant---Contention of the counsel for accused carried force that such murder of two persons were allegedly committed by two nominated accused when all of a sudden they were grappled by deceased who were done to death, while the role attributed to unidentified persons at the most was that of ineffective firing---Since there was no pre-planning or premeditation for commission of such murder, accused, even otherwise, could not be held to be vicariously liable for the same---Presence of accused persons at the spot and their participation in commission of alleged crime, was doubtful---Case of accused being at par with the acquitted accused, all were entitled to be given said benefit---Even otherwise accused persons could not be convicted in the case on the basis of same evidence on which co-accused was acquitted---Accused were acquitted of the charge and appeal against acquittal by the complainant was dismissed, in circumstances.

Farid v. Dhaular Sher and 4 others 2001 PCr.LJ 820 and Abdullah v. The State 2006 SCMR 1466 rel.

2005 SCMR 1568 distinguished.

Aftab Ahmed Gorar for Appellants (in Criminal Appeal No.96 of 2007).

Ahsan Ahmed Qureshi for the Complainant.

Aftab Ahmed Gorar for Respondent (in Criminal Acquittal Appeal No.33 of 2007).

Musab Baleegh Dhamrah for the State.

Date of hearing: 28th April, 2010.

2012 M L D 448

[Sindh]

Before Shahid Anwar Bajwa, J

HAKIM ALI---Appellant

Versus

BAKHSHOO and 11 others---Respondents

Criminal Acquittal Appeal No.S-109 of 2010, decided on 22nd August, 2011.

Penal Code (XLV of 1860)---

----Ss. 324/337-H(2)/337-F(i)/114/148/149---Criminal Procedure Code (V of 1898), S.417(2-A)---Attempt to commit qatl-e-amd, causing hurt, abetment, rioting armed with deadly weapons---Appeal against acquittal---Appreciation of evidence---Injuries allegedly sustained by the persons of the complainant party were not supported by medical evidence---Prosecution witnesses did not support the aerial firing allegedly made by the accused at the place of incident---Accused admittedly had not made straight firing on the complainant party---Investigating Officer and the recovery witness had not mentioned recovery of any crime empty from the spot---Prosecution had failed to prove the case against the accused---Appeal against acquittal of accused by Trial Court was dismissed accordingly.

Zamir Ahmed Soomro for Appellant.

Qurban Ali Malano held brief for Irshad Hussain Dharejo for Respondents.

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

Date of hearing: 22nd August, 2011.

2012 M L D 461

[Sindh]

Before Imam Bux Baloch, J

ZAFAR IQBAL---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.S-26 of 2009, decided on 24th November, 2011.

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

----S. 13(d)---Possessing unlicensed arms---Appreciation of evidence---No major discrepancy or contradiction was found in the prosecution evidence---Lengthy cross-examination of prosecution witnesses was conducted, but nothing was found favourable to accused---Recovery and arrest of accused was effected in odd hours of the night from the National Highway and no public witness could be available at such time---Prosecution had proved its case against accused beyond any shadow of reasonable doubt---Accused had not proved any animosity of the complainant---Accused in his statement under S.342, Cr.P.C. had also not produced any evidence to discard the prosecution evidence---Appeal of accused having no merits was dismissed.

Zafar v. The State 2009 SCMR 1254 rel.

Abdul Baqi Jan Kakar for Appellant.

Syed Sardar Ali Shah Rizvi, Assistant Prosecutor-General Sindh for the State.

Date of hearing: 18th November, 2011.

2012 M L D 483

[Sindh]

Before Imam Bux Baloch, J

Shaikh MUHAMMAD NASEEM---Applicant

Versus

Mst. FARIDA GUL---Respondent

Criminal Revision Application No.7 of 2011, decided on 30th September, 2011.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4, 6, 7 & 8---Illegal dispossession---Applicant/complainant, had alleged that he was tenant in the premises and that in his absence at the instance of the respondent some gunda elements after breaking open the locks of the premises, removed articles and had forcibly occupied the said premises---F.I.R., filed by the applicant was duly investigated by the Police and the Police submitted a report for cancellation of case under "C" class---Magistrate agreed with said recommendations of the Police and allowed the summary under S.173, Cr.P.C.---Order of cancellation of F.I.R. passed by the Magistrate had attained finality as applicant had not challenged the same before any competent court of law---Applicant filed complaint under Illegal Dispossession Act, 2005 against the respondent and Trial Court dismissed the same---Validity---Applicant had failed to establish that at the relevant time, he was in possession of the premises in question as tenant, even he had not challenged such tenement before any competent court of law---Applicant having failed to establish his case Trial Court had rightly dismissed the complaint under the Illegal Dispossession Act, 2005---Impugned order of the Trial Court could not be interfered with.

Abdul Hafeez v. Additional District Judge-VII, South Karach and 2 others PLD 2009 Kar. 350; Mst. Mehmooda Aftab v. Marghoob Hussain 2010 MLD 503; Habibullah Khan v. The State 2000 PCr.LJ 1898; Ghulam Nabi v. The State PLD 1966 (W.P.) Lah. 131; The State v. Ghulam Jaffar PLD 1970 Pesh. 66; Muhammad Ashraf and others v. The State 1995 SCMR 626; Sakhi Dost Jan v. The State PLD 2000 Quetta 26; Sate of Madhya Pradesh v. Veereshwar Rao Agnihotri AIR 1957 SC 592; The State v. N.H. Puri and others PLD 1959 (W.P) Kar. 392; Nawab Ferozuddin v. The State 2009 MLD 94 and Habibullah and others v. Abdul Manan and others 2010 YLR 930 distinguished.

Zahoor Ahmed and others v. The State PLD 2007 Lah. 231; Bashir Ahmed v. Additional Sessions Judge Faisalabad and others PLD 2010 SC 661; Rahim Tahir v. Ahmed Jan and others PLD 2007 SC 423; Sami Ul Haq Khilji v. Ali Raza Rizvi and others PLD 2001 Lah. 394; Muhammad Akram and others v. Muhammad Yousaf and others 2009 SCMR 1066 and Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 rel.

Muhammad Rafi Kambo for Applicant.

Abdullah Munshi for Respondent.

2012 M L D 510

[Sindh]

Before Shahiad Anwar Bajwa and Muhammad Ali Mazhar, JJ

ABDUL WAHEED and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.D-112 and Conf. case No.D-5 of 2009, decided on 19th October, 2011.

Penal Code (XLV of 1860)---

----S. 302/34---Qatl-e-amd---Appreciation of evidence---No conflict between ocular and medical evidence---Place of vardat though was surrounded by about 40 houses yet there was no independent witness or even independent Mashir---Incident occurred at 4 a.m. in the quiet of the night and inside the four walls of a house; it was not expected that the other villagers would be awake and watching for such an incident to occur---Evidence of mashirnama of inspection and that of mashir of arrest was merely corroborative in nature---Contention of accused persons in their statements under S.342, Cr.P.C. was that the deceased had committed suicide, was not believable for the reasons, firstly, that if the deceased committed suicide, there must have been some way in which she strangulated herself that she did not hang herself and that medical evidence was clear that she was strangulated with a rope; secondly, that if the deceased had committed suicide, her husband (accused) should have been the first person to report the incident to Police, but he chose not to do so and he absconded for four days---Story by accused that deceased had committed suicide, was belied by the ocular evidence as well as by the medical evidence---Lady, in circumstances, had been murdered by her husband and her brother-in-law---Sentence of death awarded to accused persons by the Trial Court, was confirmed by High Court, in circumstances.

Shah Bakhsh v. State 1990 SCMR 158; Daniel Boyd v. State 1992 SCMR 196; Wazir Muhammad v. State 1992 SCMR 1134; Tariq Pervez v. State 1995 SCMR 1345; Muhammad Ilyas v. State 1997 SCMR 25; Muhammad Aslam Khan v. State 1999 SCMR 172; Muhammad Aslam v. Muhammad Rashid 2002 SCMR 1794; Khalid Javed v. State 2003 SCMR 1419; Jan Alam v. State 2004 PCr.LJ 68; Abdul Khanan v. State 2004 PCr.LJ 92 and Muhammad Saleem v. State 2010 SCMR 374 distinguished.

A.R. Faruq Pirzada for Appellants.

Shyam Lal, Assistant Prosecutor-General for the State.

Date of hearing: 21st September, 2011.

2012 M L D 537

[Sindh]

Before Gulzar Ahmed and Salman Hamid, JJ

SHAHID PERVAIZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.813 of 2011, decided on 19th August, 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, forgery, using as genuine a forged document---Bail, refusal of---First bail application by the accused was dismissed by Special Court and accused then moved another bail application before High Court, which was also dismissed---During the course of bail application before High Court, a copy of the challan was produced, on basis of which, second bail application was moved by accused before the Trial Court, purportedly on new and fresh grounds, which were not the subject matter of the first bail application before the Trial Court---Said second bail application was also dismissed by the Trial Court---Accused, after dismissal of second bail application by the Trial Court, filed bail application before High Court, which was also dismissed---Present bail application was the fifth one in a row---No ground fresh or otherwise, being available to the accused, same was dismissed, in circumstances.

Shamraiz Khan's case 2000 SCMR 157; Jameel A. Durrani v. The State PLD 2003 Kar. 393; Muhammad Akram Nadeem v. The State 2008 YLR 735; Gulzar Hussain Shah v. Ghulam Murtaza and others PLD 1970 SC 335; Khurram Shuja v. The State PLD 2004 Kar. 315; M. Kokab Shahabuddin Ahmed v. The State 2008 YLR 816; Imran-ul-Haq v. The State 2007 MLD 1477; Tariq Hashmi v. The State 2010 YLR 563; Shafique Ahmed v. The State 2004 PCr.LJ 846; Muhammad Saeed Mehdi v. The State 2002 SCMR 282; Zulfiqar Ali v. The State 2008 YLR 2229 and State v. Zubair and others PLD 1986 SC 173 ref.

Mehmood Alam Rizvi for Applicant.

Ashiq Raza, D.A.G. for the State.

Z.U. Mujahid for the Complainant.

Arshad Iqbal for Bank-Al-Falah.

Date of hearing: 19th August, 2011.

2012 M L D 568

[Sindh]

Before Irfan Saadat Khan and Muhammad Tasnim, JJ

NAEEM QASMI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 646 of 2011, decided on 11th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.420/468/471/34---Cheating, forgery, using as genuine a forged document---Bail, grant of---Further inquiry---None of the prosecution witnesses had directly implicated accused in the alleged offence---When cheque book of the complainant was kept in his locker as to how cheques reached the accused, had not been satisfactorily explained---F.I.R. in the case had been lodged after seven months of which no plausible explanation had been furnished by the complainant---Bank employee had stated that signatures appearing on the cheques, as per his opinion, were not forged signatures---Deputy Director, FIA had also conceded that case was of further inquiry and that in view of the facts and circumstances, accused was entitled to grant of bail---Matter in the case pertained to the alleged embezzlement for a sum of Rs.2,850,000, accused was granted bail subject to furnishing solvent surety in the sum of Rs.2,850,000.

Muhammad Naseeruddin for Applicant.

Muhammad Qasim, Standing Counsel for Respondent.

Date of hearing: 11th July, 2011.

2012 M L D 574

[Sindh]

Before Muhammad Ali Mazhar, J

SULEMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.696 of 2011, decided on 16th September, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 337-H(2), 147, 148 & 149---Qatl-e-amd, causing hurt by rash and negligent act---Bail, grant of---Further inquiry---Main role had been assigned to other accused persons who had attacked and caused direct firearm injuries to the deceased---Allegations against the accused were that he was present at the site and engaged in aerial firing---Where 37 persons had been named in one F.I.R. out of which three persons had been assigned specific role, while 34 persons had been nominated without role that would tantamount to a case of further inquiry regarding the guilt of accused---Bail could be granted if an accused had good case for bail on merits and mere abscondance would not come in his way while granting bail---Absondance of accused was never sufficient by itself to prove his guilt---Question of common intention and pre-concert in the case could not be determined, unless trial had commenced and concluded in accordance with law---Bail was granted to accused, in circumstances.

Mitho Pitafi v. State 2009 SCMR 299 and 1995 PCr.LJ 1316 ref.

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

----S. 497(2)---Bail---Concept---Further inquiry---Essential pre-requisite---Basic concept of bail was that no innocent person's liberty was to be curtailed, until and unless proved otherwise---Essential prerequisites of grant of bail by virtue of subsection (2) of S.497, Cr.P.C. was that the court must be satisfied on the basis of material placed on record that reasonable grounds existed to believe that accused was not guilty of an offence punishable with death or imprisonment for life---Condition of clause (2), S.497, Cr.P.C. was that sufficient grounds existed for further inquiry into the guilt of accused, which would mean that question should be such which had nexus with the result of case; and could show or tend to show that accused was not guilty of offence with which he was charged---Bail was not to be refused as punishment.

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

----Ss. 497 & 498---Bail, grant of---Principles---Abscondence of accused---Effect of---Bail could be granted, if an accused had a good case for bail on merits and mere abscondence of accused would not come in the way while granting bail---Conviction must be founded on unimpeachable evidence and certainty of the guilt---Any doubt that would arise in the prosecution case must be resolved in favour of accused---Asbcondence could never remedy the defect in the prosecution case as the same was not necessarily indicative of guilt---Asbcondence was never sufficient by itself to prove the guilt; it depended upon the facts and circumstances of each case as to whether abscondence was a pointer or not---Abscondence as a circumstance proving the guilt, was based upon the assumption that the guilty man would try to escape from the Police violence, the innocent man would rush to the Police and vindicate his innocence---Such assumption was based upon several other assumptions; and it would not be safe to hold that abscondence of accused automatically would amount to prove his guilt---Abscondence, per se was not sufficient to prove the guilt, but abscondence of an accused for a long time for which no satisfactory explanation was given by accused, coupled with other evidence on record would be the criteria to determine the guilt or innocence of an accused.

2002 SCMR 99 and Gul Khan v. State 1999 SCMR 304 rel.

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

----Ss. 497 & 498---Bail, grant of---Principles---Deeper appreciation of material placed on record was not required at bail stage---In order to reach at some logical conclusion, court could tentatively assess the material available on record to find out whether accused was entitled for the grant of bail or not.

Sikandar Ali Silal for Applicant.

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

Date of hearing; 12th September, 2011.

2012 M L D 581

[Sindh]

Before Syed Hasan Azhar Rizvi, J

MUHAMMAD ANEEQ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1094 of 2011, decided on 25th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, refusal of---Nothing had been brought on record by accused that he had any enmity or ill-will with the complainant---Snatched motor cycle was recovered from the possession of accused while he was driving the same---Accused along with his bail application had enclosed memo of arrest and recovery, where engine and chassis number of the snatched motor cycle were mentioned---Matter fell within prohibitory clause of S.497, Cr.P.C., bail application of accused, was dismissed in circumstances.

Israr Ahmed for Applicant.

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

Date of hearing: 25th October, 2011.

2012 M L D 586

[Sindh]

Before Syed Hasan Azhar Rizvi, J

OWAISULLAH KHAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1252 of 2011, decided on 10th December, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Bail before arrest, refusal of---Accused persons had fired upon the complainant and one other injured person with Kalashnikov and pistol, who sustained injuries on their legs and according to final medical report, said other injured person had become permanently disabled for life---Accused persons had been nominated with specific roles and corroboration existed between the ocular evidence and medical evidence---Police had no mala fide or ulterior motives against accused persons to falsely implicate them in the case---Bail before arrest was an extraordinary remedy and would not be allowed just in routine---Bail before arrest would affect and divert nominal course of law---Considerations for bail before arrest were quite different from those for bail after arrest---Bail before arrest could only be allowed in extraordinary circumstances, because basic purpose and object of the same was to avoid humiliation of a respectable and dignified citizen---Court must refrain from exercising such extraordinary power just in routine---Order granting interim pre-arrest bail to accused persons, was recalled and bail before arrest application was dismissed, in circumstances.

Ali Muhammad v. The State PLD 2009 Lah. 312; Murad Khan v. Fazal-e-Subha and another PLD 1983 SC 82; Jumman alias Jummoo v. The State 2003 YLR 2131; Ali Muhammad v. Yamin and another 1981 SCMR 1139; Muhammad Anwar Butt and others v. The State 2007 PCr.LJ 544; Aslam v. The State KLR 2009 Criminal Cases 44; Amjad Javed v. The State PLD 2007 Kar. 336; Muhammad Khalid v. The State 2004 YLR 1835; Aftab v. The State 2004 PCr.LJ 722; Muhammad Ali v. The State 2005 YLR 1239; Katbar and another v. The State 1998 PCr.LJ 1438 and Muhammad Shafiq and another v. The State 1982 SCMR 384 ref.

Rana Muhammad Arshad v. Muhammad Rafiq and another PLD 2009 SC 427 rel.

Khalid Nawaz Khan Marwat for Applicants.

Naseer Shah for the Complainant.

Abdullah Rajput, A.P.-G.

Date of hearing: 7th December, 2011.

2012 M L D 593

[Sindh]

Before Nisar Muhammad Shaikh, J

NABIDAD and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-580 of 2011, decided on 3rd October, 2011.

Criminal Procedure Code (V of 1898) ---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-H(2), 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, causing hurt by rash or negligent act---Bail, refusal of---Two persons were murdered at a van stop and the motive of commission of such murder, as alleged in the F.I.R., was that the deceased persons were pursuing/ dealing/conducting the cases of the complainant party, and were prevented from doing so by the accused party---Such very fact itself was sufficient to support the case of the prosecution that accused were dangerous and hardened criminals and were not entitled for the concession of bail---Report of Superintendent Jail filed together with bail application, itself had shown that accused were also involved in another case of murder, recently registered against them---Trial Court in its judgment had mentioned that on many dates the delay in trial of the case was attributed to accused persons---Provisions for grant of bail on the ground of statutory delay, being not attracted fully in the case, bail application was dismissed with observation that accused would be at liberty to repeat their bail application to be decided by the Trial Court after hearing the parties.

1995 PCr.LJ 1682; 1991 PCr.LJ 534; 2006 YLR 2242; PLD 1997 Kar. 156; 2000 SCMR 79; 2011 YLR 2297; Sain Rakhio v. State 2001 YLR 859; 2002 SCMR 1381; 2004 SCMR 860; 1998 SCMR 897; 2002 PCr.LJ 963; 2004 SCMR 1160; PLD 1982 SC 424 and 1991 PCr.LJ 264 ref.

Sain Rakhio v. State 2001 YLR 859 rel.

Irfan Ahmed Qureshi for Applicants.

Shahzado Saleem, AP.G. for the State.

Syed Tarique Ahmed Shah for the Complainant.

2012 M L D 599

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

MUHARRAM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-493 of 2011, decided on 21st December, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/353---West Pakistan Arms Ordinance (XX of 1965), S. 13-D---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, possession of illegal weapons, acts of terrorism---Bail, grant of---Further inquiry---Gang of dacoits---Police encounter---No specific role had been assigned to accused except that he was arrested and one firearm was recovered from his possession---Blood drops were not found at the place of incidence and only two empties of submachine gun rifle were recovered---Empties of no other firearm, including the one accused was alleged to be in possession of, were found at the place of incident---Accused had allegedly fired from both sides of their car and police in defence had also fired upon them but according to F.I.R. only rear glass/screen of accused's car was broken and no bullet symbols on the car were found---Complainant police official had stated in the F.I.R. that he fired thirty five bullets from his official firearm but only two empties of such firearm were recovered from the place of incident---No reasonable grounds existed to believe that accused was guilty of any non-bailable offence and case was one of further inquiry---Accused was admitted to bail in circumstances.

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

----S. 497(2)---Bail---Further inquiry---Scope---Case could only fall within scope of further inquiry under S. 497(2), Cr.P.C, if the court finds that on the material before it, no reasonable grounds exist for believing that the accused is guilty of a non-bailable offence---Condition laid down in S. 497(2), Cr.P.C, denotes the existence of sufficient grounds for further inquiry into guilt of accused which means that the question should be such which has nexus with the result of the case and may show that accused is not guilty of the offence with which he is charged.

Manzoor Ahmed Junejo for Applicant.

Syed Sardar Ali Shah, Assistant Prosecutor General for the State.

2012 M L D 607

[Sindh]

Before Syed Hasan Azhar Rizvi, J

JOSEPH SARDAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1173 of 2011, decided on 3rd December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.409/420/34---Criminal breach of trust by public servant, or by banker, merchant or agent, cheating---Bail, refusal of---Accused/applicant had fully participated in the business transactions; had appeared before several banks for business transactions as proprietor of the firm; got registered the firm with the Federal Board of Revenue and defrauded the companies internationally---By the conduct of accused persons the name and prestige of country had been badly affected---Submissions and grounds mentioned in the bail application established that accused/applicant had been used as a scape-goat by the other accused persons, but such submission could not absolve him from commission of crime committed by the accused persons---Counsel for applicant having failed to make out case for grant of bail, his bail application was dismissed.

Shaikh Liaquat Hussain for Applicant.

Muhammad Qasim, Standing Counsel along with Inspector Rauf Shaikh, Investigating Officer for Respondent.

Date of hearing: 30th November, 2011.

2012 M L D 617

[Sindh]

Before Syed Hasan Azhar Rizvi, J

ISMAIL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1405 of 2011, decided on 16th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Sindh Public Property (Removal of Encroachment) Act (XVIII of 2010), S.8(1)---Encroachment---Building of boundary wall on the encroached government land---Bail, grant of---Further inquiry---Accused's contention that the complainant refused to identify him when he was produced for identification and F.I.R. was lodged on basis of hearsay evidence as at the time of raid, accused was neither present at the spot nor anything incriminating had been recovered from his possession--Validity---Accused was charged under S. 8(1) of Sindh Public Property (Removal of Encroachment) Act, 2010, which provided minimum punishment of one year because of which case of accused did not fall within the prohibitory clause of S. 497, Cr.P.C, and there was an unexplained delay of four days in lodging of F.I.R.---Prosecution story could not be treated free from doubt and matter requiring further inquiry---Accused was released on bail.

Shehzore and another v. The State 2006 YLR 3167 foll.

Abdul Karim Junejo for Applicant.

Muntazir Mehdi, A.P.-G.

Date of hearing: 15th December, 2011.

2012 M L D 625

[Sindh]

Before Syed Hasan Azhar Rizvi, J

SOOBA KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1365 of 2011, decided on 14th December, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd, attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Delay of eight hours in lodging F.I.R. was not plausibly explained---Accused was not named in the F.I.R. and complainant had involved him in the occurrence through his supplementary statement after one month of the incident---Eye-witnesses also had not implicated the accused in the crime---Co-accused alleged to have caused fatal injuries to deceased had been released under S.169, Cr.P.C.---No specific injury had been assigned to accused---Culpability of accused, thus, needed further probe under S.497(2), Cr.P.C.---Accused actually had never absconded, but even if he was assumed to be an absconder, he could not be denied concession of bail on the ground of abscondence alone after having been found entitled to bail---Accused was admitted to bail, in circumstances.

Rajada v. The State 2005 PCr.LJ 570; Waseem Iqbal v. The State 2009 MLD 154; Abdul Rasheed v. The State PLD 2003 Kar. 682; Ghulam Mustafa and another v. The State PLJ 1999 Cr.C. Lah. 533 and Safdar Ali v. The State 2008 PCr.LJ 129 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd attempt to commit qatl-e-amd---Bail---Abscondence of accused---Effect---Abscondence of accused alone will not deter the court from extending concession of bail to him, if he is found entitled to such concession.

Kashif Hanif for Applicant.

Abdul Rehman Kolachi, A.P.-G. Sindh.

2012 M L D 636

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

MUHAMMAD FAHEEMUDDIN and others---Petitioners

Versus

PROVINCE OF SINDH through Secretary, Revenue Department Sindh and 6 others---Respondents

Constitution Petition No.D-599 of 2002, decided on 21st December, 2011.

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----Ss. 2 & 3---Jurisdiction of Notified Officer---Scope---Such jurisdiction would not extend to any property not available for disposal---Notified Officer would have no jurisdiction to go into question of legality or otherwise of any allotment having attained finality under Evacuee Laws before repeal thereof---Authority, if lacking jurisdiction in a matter under law, could not be vested with jurisdiction by an order of court.

(b) Jurisdiction---

----Authority, if lacking jurisdiction in a matter under law, could not be vested with jurisdiction by an order of court.

(c) Constitution of Pakistan---

----Art. 199---Article 199 of the Constitution is an omnibus Article allowing remedy to an aggrieved person against violation of any provision of law or the Constitution---Scope.

Where order passed by court below suffers from any jurisdictional defect or violates any provision of law, and if the error is so glaring and patent that the same may not be acceptable, invocation of constitutional jurisdiction is justified, and/or when finding is based on insufficient evidence, mis-reading of evidence, erroneous assumption of facts, non-consideration of material evidence, excess or abuse of jurisdiction, arbitrary exercise of power and unreasonable view on evidence has been taken, High Court can interfere in its constitutional jurisdiction. Relief can be granted to the citizens of the country under Article 199 of the Constitution against infringement of any provision of law or of the Constitution as it is an omnibus Article. If the citizens are deprived of the guarantee given to them under the Constitution illegally or not in accordance with law, then provision of Article 199 of the Constitution can always be invoked for redress or where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, High Court in exercise of its constitutional jurisdiction has ample power to grant relief to the aggrieved party.

PLD 2001 SC 149 and PLD 2004 SC 271 rel.

Abdul Naeem for Petitioners.

Imtiaz Ali Soomro, Assistant A.G. for Respondents Nos. 1 to 5.

Nemo for Respondents Nos.6 and 7.

Date of hearing: 21st September, 2011.

2012 M L D 647

[Sindh]

Before Shahid Anwar Bajwa, J

AMIR BUX alias PAPOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.86 of 2011, decided on 15th July, 2011.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 148, 149, 337-H(2) & 109---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, armed with a deadly weapon, common object causing hurt by rash or negligent act---Bail, refusal of---Accused was present at the scene of the offence with a specific role---F.I.R. specifically stated that accused along with another fired at the deceased and medical report showed that deceased had received several injuries---Empty cartridges had been recovered from the place of occurrence---Material available before the Police was sufficient to connect accused with alleged offence---Accused was not entitled to bail on merits---Application for bail, was dismissed, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Syed Amanullah Shah v. The State and another PLD 1996 SC 241; Mir Muhammad and another v. The State 1993 PCr.LJ 88; Amanullah and another v. The State 1997 MLD 1470; Muhammad Amin v. The State 1994 PCr.LJ 369 and Paryal v. The State 2006 PCr.LJ 121 distinguished.

Sarfraz Khan Jatoi for Applicant.

Rashid Mustafa Solangi for the Complainant.

Altaf Hussain Surahiyo, State Counsel.

2012 M L D 660

[Sindh]

Before Muhammad Tasnim, J

IDREES---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-695 of 2011, decided on 4th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd common intention---Bail, refusal of---From the tentative assessment of the record, it appeared that accused was prima facie fully connected with the commission of offence---Trial Court was to decide the matter after recording of evidence as to whether deceased was killed by accused with his weapon or he attacked and accused reacted in self-defence---Gun was recovered from the possession of accused at the time of his arrest---No case for further inquiry, having been made out, bail application was dismissed, in circumstances.

Miss Shabana Kousar Jatoi for Applicant.

Shahzado Saleem Nahiyoon, Assistant Prosecutor General for Respondent.

2012 M L D 665

[Sindh]

Before Syed Hasan Azhar Rizvi, J

MUHAMMAD IMRAN BUTT---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1322 of 2011, decided on 22nd November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd---Bail, refusal of---Accused pointed out the place of incident in presence of witnesses where the deceased was murdered and his dead body was recovered---Accused had admitted his involvement in the commission of offence---Accused had been charged with the heinous offence of killing of an innocent person---Name of accused though was not mentioned in the F.I.R., but accused led the Police party to the place of incident, which connected him with the commission of offence---Unless the unknown killers of innocent persons were dealt with in accordance with law and their cases be proceeded expeditiously in court, the alarming law and order situation could not be restored---Counsel for accused having failed to make out the case of accused for grant of bail, his application was dismissed with direction to the Trial Court to frame charge and record statements of all the witnesses within a period of three months---Bail was refused.

Imtiaz Ahmed Shaikh for Applicant.

Muhammad Iqbal Awan, A.P.-G. for the State.

2012 M L D 682

[Sindh]

Before Imam Bux Baloch, J

RAJIB ALI---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.163 and M.As. Nos.1423 and 1424 of 2011, decided on 23rd June, 2011.

Penal Code (XLV of 1860)---

----Ss. 302 & 338-E---Criminal Procedure Code (V of 1898), S.561-A---Qatl-e-amd---Waiving or compounding of offence---Quashing of order, application for---Appeal filed by the applicant/accused was disposed of by a Division Bench of High Court, whereby death sentence awarded to accused was reduced to life imprisonment and accused had not challenged said judgment before the Supreme Court---Accused had stated that legal heirs of the deceased had entered into a compromise with him and application to that effect was filed in the Trial Court, but the Trial Court was reluctant to accept the compromise application on the ground that the application had to be filed before the High Court---Validity---Under provisions of S.338-E, P.P.C., when no appeal was pending in any court, the Trial Court was competent to decide all questions relating to compounding of offence or waiver thereof---Since the appeal of the applicant was decided by Division Bench of High Court and no appeal was filed by the applicant, the Trial Court was competent to decide the questions relating to waiver and compounding the offence---Trial Court was directed to decide the pending applications within the period of two weeks, in circumstances.

Baz Muhammad v. The State 2000 PCr.LJ 553 rel.

Inayatullah Morio for Applicant.

Altaf Hussain Surahyo, State counsel.

2012 M L D 695

[Sindh]

Before Muhammad Ali Mazhar, J

GHULAM NABI alias PAPU---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-940 of 2010, decided on 26th August, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/147/148/ 427/504/337-A(i)/337-F(i) & 114---Qatl-e-amd, mischief, intentional insult, causing Shajjah-i-Khafifah, and Damiyah---Bail, grant of---Further inquiry---General allegations had been levelled in the F.I.R. against accused that he along with three other co-accused, had caused lathi blows to the deceased---Postmortem report disclosed three injuries out of which two injuries were declared fatal---Matter that as to who had caused the fatal blow required further inquiry as nothing was mentioned in the F.I.R. to show that who had caused the fatal injury to deceased, which resulted in his death---Counter case of the same incident had been lodged by accused party and it was to be determined as to who was the aggressor and who the victim---Case was fit for further inquiry---No reasonable grounds were available for believing that accused had committed a non-bailable offence---Accused, was granted bail, in circumstances.

Jaffar and others v. State 1980 SCMR 784; Yaroo v. State 2004 SCMR 864; Shafi Muhammad v. State 2002 PCr.LJ 494; Hyder Bukhsh v. State 2011 MLD 555; Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and others 2011 SCMR 606 and Qadir Bux v. State 2011 MLD 908 ref.

Jaffar and others v. State 1980 SMCR 784 and Yaroo v. State 2004 SCMR 864 rel.

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

----S. 497---Bail---Concept---Prerequisites for grant of bail---Basic concept of bail was that no innocent person's liberty was to be curtailed, until and unless proved otherwise---Every accused was innocent, until his guilt was proved---Law was not to be stretched in favour of the prosecution, but benefit of doubt would go to accused, even at bail stage---Essential pre-requisite for the grant of bail by virtue of subsection (2) of S.497, Cr.P.C., was that the court must be satisfied on the basis of opinion expressed by the Police or the material placed before it and that reasonable grounds were available to believe that accused was not guilty of the offence punishable with death or imprisonment for life---Deep scrutiny of evidence was not permissible, nor it was the requirement of law at bail stage, however question could not be decided in vacuum; and the court had to look at the material available for arriving at a tentative opinion as to whether accused was prima facie connected with the commission of the offence or not.

Ghulam Shabbir Dayo for Applicant.

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

Dareshani Ali Haider Ada for the Complainant.

2012 M L D 707

[Sindh]

Before Syed Hasan Azhar Rizvi, J

MUHAMMAD BABER---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1483 of 2011, decided on 23rd December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, grant of---Further inquiry---Name, "hulia" or any description of accused had not been mentioned in the F.I.R.; and F.I.R. was lodged after an unexplained delay of about thirty days---Identification parade of accused was not held before the Judicial Magistrate, which was necessary in the cases where the name of accused was not mentioned in the F.I.R.---Case of accused being of further inquiry, accused was admitted to bail, in circumstances.

1997 SCMR 421; 1997 SCMR 971 and 2001 SCMR 1907 ref.

Farman Ali v. The State 1997 SCMR 971 rel.

Ali Zafar for Applicant.

Muntazir Mehdi, A.P.-G. for the State.

2012 M L D 723

[Sindh]

Before Muhammad Tasnim, J

AHSAN and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-318 of 2011, decided on 4th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 506(2), 504 & 34---Qatl-e-amd, criminal intimidation and intentional insult---Common intention---Bail, grant of---One of accused persons though was present at the scene armed with weapon, but no overt act had been attributed to him---Was yet to be decided at the trial that the provisions of S.34, P.P.C. would be attracted in the circumstances of the case or not---Accused was admitted to bail, in circumstances.

Shaukat Illahi v. State 2010 SCMR 966; Mudassar Altaf v. State 2010 SCMR 1861; Haji Inayat-ul-Haq v. State 1988 SCMR 1743; Iqbal-u-Rehman v. State PLD 1974 SC 83; Sardar Munir Ahmed Dogar v. State PLD 2004 SC 822; Assamatullah Khan v. State PLD 1988 SC 621 and Najeeb Gul v. State 1989 SCMR 899 distinguished.

Dilbar Khan Leghari for Applicants.

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

Sajjad Ahmed Chandio for the Complainant.

Date of hearing: 4th November, 2011.

2012 M L D 731

[Sindh]

Before Shahid Anwar Bajwa, J

ABDUL AZIZ and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1199 of 2011, decided on 11th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Foreigners Act (XXXI of 1946), Ss.3/13/14---Bail, grant of---No evidence had been pointed out to establish that the accused were deliberately transporting the foreign nationals---Case against accused, therefore, was of further inquiry---Accused were admitted to bail accordingly.

S. Tajjuddin for Applicants.

S. Qamar-ul-Hassan for the State.

2012 M L D 736

[Sindh]

Before Muhammad Ali Mazhar, J

RAB NAWAZ---Petitioner

Versus

S.H.O., POLICE STATION, DAHARKI and 4 others---Respondents

Criminal Miscellaneous Application No.S-602 of 2011, decided on 19th December, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 561-A---Application to Justice of Peace for registration of F.I.R.---Powers of Justice of Peace---Scope---Grievance of applicant was that he approached Justice of Peace by moving application under S.22-A, Cr.P.C. for seeking direction to the S.H.O. concerned to lodge the F.I.R., but same was declined with the direction to file direct complaint---Impugned order showed that applicant's application was rejected on two grounds; firstly that the S.H.O in his report stated that the nephews of the applicant were involved in a criminal offence for which F.I.R. was lodged and applicant in order to take revenge moved application under S. 22-A, Cr.P.C, and secondly on the basis of respondent's contention that the F.I.R. was being sought to be registered with mala fide intention to harass the police personnel from discharging their lawful duty---Whether the application was moved with mala fide intention or bona fide intention could only be proved after statement of the complainant was recorded by the police---Police report could not be considered as the sole criterion for passing the order by the Justice of Peace---Jurisdiction of Justice of Peace was to see as to why the police officials who were duty bound to record the statement under S. 154, Cr.P.C. have refused to fulfil their duty---Impugned order was set aside and S.H.O was directed to record the statement of the applicant and if any cognizable case was made out, to act in accordance with the law---Application was disposed of accordingly.

Zulfiqar Ali Snagi for Petitioner.

Syed Sardar Ali Shah Rizvi, A.P.-G. for the State along with Nazeer Ahmed Mahar, A.S.-I. and Hamza, H.C. Police Station Daharki.

2012 M L D 751

[Sindh]

Before Shahid Anwar Bajwa, J

YASEEN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-620 of 2011, decided on 23rd December, 2011.

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

----S.498---Penal Code (XLV of 1860), Ss.302/324/337-H(ii)/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, hurt by rash or negligent act, rioting armed with deadly weapons---Pre-arrest bail , refusal of---Absconsion after getting bail---Accused was alleged to have resorted only to ineffective firing but he after getting bail in the case, remained absconder for nineteen months and only surrendered after getting protective bail from the High Court---Accused having misused the concession of bail granted to him earlier, his application for pre-arrest bail was refused.

Mitho Pitafi v. The State 2009 SCMR 299 and Sher Ali alias Sheri v. The State 1998 SCMR 190 ref.

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

---S. 497---Bail---Absconsion, effect of---Principles---Fugitive from law and courts loses some of the normal rights granted by the procedural and also substantive law---Unexplained noticeable abscondence dis-entitles a person to the concession of bail notwithstanding the merits of the case, the principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct)---Accused cannot then seek a reward for such a conduct (in becoming fugitive from law).

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

Ali Nawaz Ghanghro for Applicant.

Naimatullah Bhurgri, State Counsel.

2012 M L D 777

[Sindh]

Before Munib Akhtar and Salman Hamid, JJ

ABDUL AZIZ QAZI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman, Islamabad and 2 others---Respondents

Constitution Petition No.D-4189 of 2011, decided on 4th January, 2012.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 161/217/420/417/109/ 34---Prevention of Corruption Act (II of 1947), S. 5(2)---West Pakistan Land Revenue Act (XVII of 1967), S.42---Public servant taking gratification other than legal remuneration in respect of an official act, public servant disobeying the law with intent to save person from punishment or property from forfeiture, cheating and dishonestly inducing delivery of property, cheating, abetment, common intention, making of that part of periodical records which relates to land-owners--Bail, grant of---Further inquiry---Accused (tapedar) was alleged to have managed and kept sham entries in the Record of Rights and used such entries in collusion with the co-accused (land grabbers) to transfer government lands in the names of private persons, causing huge loss to the public exchequer---Validity---Investigation into the incident was initiated by National Accountability Bureau after which an F.I.R. was registered against the accused and co-accused persons---Investigation report submitted during pendency of Reference against co-accused persons before Accountability Court, revealed that old revenue record of the area was altered and forged by the co-accused and allegation against accused was that he acted with them---Contents of Reference before Accountability Court revealed that co-accused persons forged the record of the office of the Sub-Registrar and also transferred government lands in the name of private persons---Only allegation against accused was that he kept bogus and fraudulent entries during his tenure and that previous entries were inserted in the old Record of Rights by him in connivance with the co-accused---Principal co-accused persons nominated in the F.I.R. had already been granted bail---Accused was a functionary of a government department and was working under his seniors or concerned Mukhtiarkars and fraudulent entries were made and kept as such by other officials together with the accused, which required establishing whether there was any foul play by the accused in respect of the fraudulent entries---Case of accused called for further inquiry, as envisaged under S.497(2), Cr.P.C---Accused was admitted to bail, in circumstances.

Bhajandas Tejwani for Petitioner.

Noor M. Dayo, Special Prosecutor for NAB along with I.O. M. Shahid for Respondents.

Date of hearing: 4th January, 2012.

2012 M L D 783

[Sindh]

Before Ahmad Ali M. Sheikh, J

MUHAMMAD SAEED SHAH---Petitioner

Versus

Mst. PHILPANA and another---Respondents

Constitution Petition No. S-989 of 2011, decided on 18th January, 2012.

(a) Administration of justice---

----Link/Incharge/Vacation Judge in absence of Presiding Officer, powers of---Scope---Such Judge having jurisdiction could perform all judicial functions, record evidence of parties and pass any order on merits within four corners of law.

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

----Ss.15 & 21---Constitution of Pakistan, Art. 199---Constitutional petition---Scope---Ejectment proceedings---Interim order passed by Rent Controller on an interlocutory application---Constitutional petition was not maintainable.

Muhammad Ibrahim v. Zeenat Bibi 1991 CLC 1967; The State v. Ali Akbar Sabzor 1990 PCr.LJ 1729; Haseen Ahmed Khan v. Irshad Khan PLD 1987 Kar. 16; Muhammad Bashir v. Abdul Karim PLD 2004 SC 271; Rasheed Ahmed v. Province of Punjab 2004 SCMR 707; Liaquat Ali v. Zarafat Ali 2009 CLC 471 and Fazal Ahemd Naqvi v. Laiquiddin 1999 YLR 1947 ref.

Mehmood Ahmed v. State Life Insurance Corp. Pak 1998 CLC 1987 and Intesar Ali v. Ahmed Din Khan 1983 CLC 998 rel.

Ms. Farah Saleem for Petitioner.

Muhammad Amin for Respondents.

2012 M L D 794

[Sindh]

Before Muhammad Ali Mazhar, J

ALI AKBAR alias BHALLO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-849 of 2011, decided on 2nd February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/311/34---Qatl-e-amd, tazir after waiver or compounding of right of qisas in qatl-e-amd---Bail, grant of---Further inquiry---Separate private complaint for the occurrence---Scope---False implication of accused---Accused had allegedly murdered his sister---Entire case was based on spy information and there was no eye-witness of the incident---No private mashir was associated while preparing the Mashirnama at the place of incident or at the time of recovery from the accused---Ballistic Examination Report revealed that out of three recovered empties only one was stated to have been fired from the weapon sent for examination---Serious allegations had been leveled in the F.I.R. against the accused, but a private complaint for the same occurrence had been lodged by another brother of the deceased, in which he implicated two other persons for murdering the deceased---F.I.R. had been lodged on complaint of a police official and not on the complaint of brother of deceased---Brother of deceased regularly approached the police officials along with witnesses for lodging of separate F.I.R. for the occurrence, but his request was not acceded to, which explained the delay in lodging private complaint---Direct complaint had not been filed by the opposite party, therefore, it could not be considered a case of counter version---Accused nominated in the F.I.R. and private complaint were different and it could only be proved on conclusion of trial as to who the actual culprit was---Trial Court had already taken cognizance of the private complaint and bailable warrants of the accused nominated therein, had been issued---Possibility of false implication of accused could not be ruled out---Case of accused fell within the ambit of further inquiry as envisaged under S.497(2), Cr.P.C---Bail application of accused was allowed and he was granted bail.

A.R. Faruq Pirzada for Applicant.

Syed Sardar Ali Shah Rizvi, Assistant Prosecutor General for the State.

Date of hearing: 16th January, 2012.

2012 M L D 801

[Sindh]

Before Salman Hamid, J

AKBAR ZADA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1302 of 2011, decided on 23rd November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---West Pakistan Arms Ordinance (XX of 1965), S. 13-D---Possession of illegal weapons---Bail, refusal of---Complainant (police official) upon receipt of spy information, apprehended the accused while in possession of weapons---Contention of accused that he had been implicated falsely after weapons were foisted on him, and that there was violation of Ss. 4, 104 and 156 of Cr.P.C and the arresting agency did not follow the Police Rules, 1934---Validity---Accused was arrested while in possession of and/or carrying the weapons for which he had no explanation except for the contention that the weapons were dumped by workers of political parties which had nothing to do with him---Accused had been arrested on complaint of crime branch of police, which made recovery of the weapons and therefore, was competent in law to lodge the complaint at the police station concerned---Accused had failed to make out a case for bail and therefore, his bail application was dismissed.

Nadeem ul Haq for Applicant.

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

2012 M L D 806

[Sindh]

Before Salman Hamid, J

HAROON KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1280 of 2011, decided on 13th December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/353/186/34---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public function, common intention---Bail, grant of---Further inquiry---Name of accused did appear in the F.I.R. but no specific role had been attributed to him---Alleged recovery of weapon from the possession of accused and sealing thereof seemed to be in violation of the law---Was highly improbable that during cross-firing no injuries were sustained by the police personnel and no damage had been caused to their official vehicle---Accused had received a bullet injury on his hip, which, prima facie, showed that he was not involved in the firing---Was yet to be determined that during cross-firing, from whose bullet the deceased died---Accused had contended that he was a student of an institute located in the area and at the time of the incident he was going to attend the said institute---Record revealed that accused was in fact a student of the institute---Case of accused required further inquiry as contemplated under S.497(2), Cr.P.C, therefore, he was enlarged on bail.

Muhammad Asif v. The State 2006 PCr.LJ 883; Tasaver and another v. The State 2006 PCr.LJ 629; Muhammad v. The State 2007 PCr.LJ 1848; Imran Sikandar v. The State 2007 PCr.LJ 1497 and Abou Bakar v. The State 2010 PCr.LJ 984 distinguished.

Munir Ahmed Malik for Applicant.

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

Date of hearing: 13th December, 2011.

2012 M L D 814

[Sindh]

Before Muhammad Ali Mazhar, J

ZAHID MASEEH and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-867 of 2011, decided on 23rd February, 2012.

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

----S. 497(2)--- Penal Code (XLV of 1860), Ss.395 & 215---Dacoity, taking gift to help to recover stolen property---Bail, grant of---Further inquiry---Allegation against accused persons was that they snatched a new car from the complainant while same was being transported to its destination city, and when complainant contacted accused on their mobile phone, they demanded ransom, which was partly paid by the complainant, but the snatched car was never returned---Validity---F.I.R. was lodged with a delay of twenty two (22) days and complainant failed to explain any compelling or convincing circumstances which prevented him from promptly lodging an F.I.R., except for the contention that he tried to resolve the dispute himself after making part of the ransom payment to the accused persons---Names of both the accused persons were mentioned in the F.I.R. but recovery of allegedly stolen car had not been effected from them---Complainant had mentioned in the F.I.R. that he contacted the accused persons on their mobile phone number but said number had not been mentioned in the F.I.R. and it was also not mentioned as to how the complainant knew the accused persons and obtained their mobile phone number---Accused persons in their bail application had pointed out business rivalry between the parties, but such fact was not stated in the F.I.R. by the complainant--- Complainant had mentioned paying part of the ransom to the accused persons in a hotel, but name of any hotel was not mentioned in the F.I.R.---Complainant had allegedly contacted the accused persons himself and made a deal to pay ransom as if it was not crime but a contractual obligation between the parties---Possibility of false involvement of accused persons could not be ruled out---Accused were charged with Ss. 215 and 395 P.P.C, out of which 215 P.P.C was bailable and lesser alternate sentence of four years imprisonment for S. 395 P.P.C had to be considered at bail stage---Case of accused persons required further inquiry and consequently they were granted bail.

Shehzore v. State 2006 YLR 3167; 1985 PCr.LJ 2048 and 1994 PCr.LJ 2340 fol.

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

----S. 154---Penal Code (XLV of 1860), Ss.395 & 215---Dacoity, taking gift to help to recover stolen property---Prompt lodging of F.I.R.---Scope---Under S. 154 Cr.P.C, it was the responsibility and obligation of police officer to immediately record the statement of a person reporting any incident but at the same time, it was also the responsibility of every person/citizen to immediately lodge the F.I.R. for every cognizable offence so that the law may be set into motion and action could be taken against the criminals.

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

----S. 497---Penal Code (XLV of 1860), S.395---Dacoity---Bail, grant of---When alternate sentence had been provided for an offence then lesser sentence should be considered by the Court in the matter of bail.

Shehzore v. State 2006 YLR 3167; 1985 PCr.LJ 2048 and 1994 PCr.LJ 2340 fol.

Saeed Jamal Lund for Applicants.

S. Sardar Ali Shah, Assistant Prosecutor-General for the State.

Date of hearing: 30th January, 2012.

2012 M L D 824

[Sindh]

Before Muhammad Tasnim, J

SIDDIQUE MASIH and 2 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.745 of 2011, decided on 17th August, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), S.354-A---Assault or use of criminal force to woman and stripping her of clothes---Bail, grant of---Further inquiry---Scope and applicability of S.354-A, P.P.C.---To attract penal provisions of S. 354-A, P.P.C, two conditions must be fulfilled, firstly, there should be stripping of the clothes and secondly the victim in that condition should be exposed to the public view---Both the conditions must co-exist to bring the case within the ambit of S.354-A, P.P.C, but in the present case, ingredients of said section were not met as neither the clothes of complainant-lady were stripped nor she in that condition was exposed to the public view---Case of accused required further inquiry in terms of S. 497(2), Cr.P.C---Accused were admitted to bail, accordingly.

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

----S.354-A---Criminal Procedure Code (V of 1898), S. 497---Assault or use of criminal force to woman and stripping her of her clothes---Scope---To attract penal provisions of S. 354-A P.P.C, two conditions must be fulfilled, firstly, there should be stripping of the clothes and secondly the victim in that condition should be exposed to the public view---Both the conditions must co-exist to bring the case within the ambit of S. 354-A, P.P.C.

Qadir Shah and others v. The State 2009 SCMR 913 ref.

Ch. Muhammad Yaseen for Applicants.

Muhammad Iqbal Awan, A.P.-G. for the State.

Date of hearing: 17th August, 2011.

2012 M L D 830

[Sindh]

Before Muhammad Tasnim, J

SALMAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.765 of 2011, decided on 3rd October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 395---Dacoity---Bail, grant of---Further inquiry---Allegation of dacoity at bank---Allegations against accused and his co-accused were general in nature and no specific role had been assigned to the accused---Recovery of money had been effected from other co-accused persons but accused was not identified by the complainant during the identification parade---Co-accused placed in similar circumstances, had already been granted bail---Mere pendency of criminal cases against the accused did not disentitle him from the grant of bail if he had otherwise made out a case for bail---Accused had made out a case of further inquiry in terms of S.497(2), Cr.P.C---Accused was admitted to bail, in circumstances.

Mahmood Habibullah for Applicant.

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

2012 M L D 850

[Sindh]

Before Salman Hamid, J

MUHAMMAD SIDDIQUE alias SAIF KHAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.1362 of 2011, decided on 21st December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 381/34---Theft by clerk or servant of property in possession of master, common intention---Bail, grant of---Further inquiry---Complainant (security guard) reported the matter to the factory owner after a delay of about two and a half hours---Question as to how the accused managed to take away such a huge quantity of leather and 650 computers, was not clear---Registration number and other particulars of the vehicle allegedly brought in the factory for the offence were not disclosed---Robbery of such a magnitude was not possible in a short span of time and it would have been convenient for the complainant to have reported the incident to the police when it was in progress, but same was not done---Accused was entitled to bail as a matter of right as maximum punishment provided for the offence was seven (7) years---Case of accused required further probe and, in circumstances, he was granted bail.

Shah Imroze Khan for Applicant.

Abrar Ali Khichi, A.P.-G. for the State.

2012 M L D 857

[Sindh]

Before Salman Hamid, J

Malik RIAZ HUSSAIN---Petitioner

versus

GHULAM RASOOL NIAZI and another---Respondents

Constitution Petition No.S-962 of 2011, decided on 29th November, 2011.

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

----S.15---Constitution of Pakistan, Art. 199----Constitutional Petition----Maintainability---Petitioner-assailed orders of the Appellate Court whereby, a finding was given to the effect that the petitioner was a tenant of the respondent----Validity----Title of petitioner in respect of the premises, of which he claimed to be the owner of, had not yet been perfected by the Trial Court, and under such circumstances and in law; the petitioner was not absolved of his responsibility of payment of agreed monthly rent which he had admittedly failed to pay----On admission of such default by the petitioner, the constitutional petition was not maintainable---High Court directed the petitioner to hand over the possession of the premises to the respondent, within 30 days, failing which the Rent Controller should issue writ of possession without notice----Constitutional petition was dismissed, accordingly.

Abdul Irfan for Petitioner.

Muhammad Nazir for Respondent No.1.

2012 M L D 880

[Sindh]

Before Salman Hamid, J

SOOMAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.947 of 2011, decided on 28th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 365, 458, 147, 148, 149 & 504---Qatl-e-amd, attempt to commit qatl-e-amd, kidnapping or abducting with intent secretly and wrongfully to confine person, lurking house-trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint, rioting, rioting armed with deadly weapons, unlawful assembly, intentional insult with intent to provoke breach of peace---Bail, grant of---Further inquiry---Only allegation against accused was that he fired from his weapon straight upon the father-in-law of the complainant---Contents of F.I.R. revealed that twenty three (23) persons during night time barged into the house of the complainant while duly armed, but strangely complainant remembered the details of the names, ages, parentage and weapons of thirteen (13) out of the twenty three (23) accused persons, despite the fact that it was night time---Doubt existed as to whether the injury received by the father-in-law of the complainant was caused by the weapon of the accused and whether he was carrying such a weapon and fired from it---Case of accused required further inquiry---Accused was admitted to bail, in circumstances.

Pervez Ahmed Mastoi for Applicant.

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

Date of hearing: 28th November, 2011.

2012 M L D 891

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

Ms. FATIMA---Petitioner

Versus

PRINCIPAL AND CHAIRMAN ADMISSION COMMITTEE, GHULAM MUHAMMAD MAHAR MEDICAL COLLEGE, SUKKUR and another---Respondents

Constitution Petition No.D-3345 of 2011, decided on 17th January, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Vested right---Migration from one college to other---Petitioner was given admission under Self Finance Scheme in medical college situated at place "N" but she wanted to be migrated to medical college situated at place "S"---Plea raised by petitioner was that she should be accommodated in medical college situated at place "S" keeping in view her option mentioned in her admission form---Validity---Petitioner failed to point out any violation of prospectus or policy of medical college at place "S"---Petitioner, at the time of her admission might have placed an option for admission in medical college at place "S" but she could not claim transfer and or acceptance of her option as a matter of right unless some vested right was shown to have been violated---Petition was dismissed, in circumstances.

Ms. Faiqa Ali v. Vice Chancellor, Government College University Lahore and others 2010 MLD 103; Zaheeruddin Sheikh and 30 others v. United Bank Ltd. 2002 CLC 147; Miss Javaria v. Mehran University of Engineering and Technology SBLR 2011 1393; 2000 SCMR 1222; C.P. No.D-523 of 2000 and 2005 SCMR 961 rel.

Maqbool Ahmed Awan for Petitioner.

Ghulam Ali A. Samtio and Imtiaz Ali Soomro, A.A.-G. for Respondents.

Date of hearing: 17th January, 2012.

2012 M L D 902

[Sindh]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

Messrs EMAN TEXTILE MILL through Chief Executive---Petitioner

Versus

PROVINCE OF SINDH through Secretary Power and Irrigation Sindh and 11 others---Respondents

Constitution Petition No.D-2734 of 2011, decided on 22nd February, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Lease of land---Factual controversy---Petitioner sought restraining respondents from constructing road over land in question---Validity---Land in question was leased out to respondent company by virtue of lease deed which was a registered document---Petitioner's grievance against registered lease could not be redressed unless he had moved to civil court for seeking relief of cancellation of lease deed---High Court, in exercise of constitutional jurisdiction, could neither cancel registered lease deed nor such relief was sought by petitioner---Documents filed by respondent company along with counter affidavit demonstrated that land in question was properly leased out to it---Not only document of lease was executed and registered but possession was also handed over, therefore, petitioner must have invoked jurisdiction of civil court to avail other remedies but constitutional petition was not maintainable---Contentions raised by parties could not be decided without evidence and High Court could not enter into factual realm or embark upon an exercise to determine complicated questions of facts---Resolution of such controversial issues was ordinarily left to proper forums, prescribed by law and indulgence of High Court in such exercise would have effect of pre-empting and enforcing upon jurisdiction lawfully vested in competent courts---Petition was dismissed in circumstances.

State Life Insurance Corporation of Pakistan v. Messrs Pakistan Tobacco Company Ltd. PLD 1983 SC 280 and Mumtaz Ali Jahangir and another v. The Province of Sindh and others Constitution Petition No.D-1273 of 2010 rel.

Muhammad Iqbal Memon for Petitioner.

Munir A. Malik and Nizamuddin Baloch for Respondents Nos.10 and 12.

Liaquat Ali Shar, Additional A.G. Sindh.

Date of hearing: 29th November, 2011.

2012 M L D 919

[Sindh]

Before Shahid Anwar Bajwa, J

ABDUL HAKEEM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-855 of 2011, decided on 23rd January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 365-A/324/147/149---Kidnapping or abduction for extorting property, valuable security, etc., attempt to commit qatl-e-amd, rioting---Bail, grant of---Abductee had been recovered by police after which he recorded his statements under Ss. 161 and 164, Cr.P.C---Contention of accused that abductee recorded his statement under S. 161 Cr.P.C, ten days after being released, which showed that accused had been named falsely and after consultation---Validity---Only piece of evidence against accused were the statements of abductee under Ss. 161 and 164, Cr.P.C---Statement of abductee under S. 161, Cr.P.C was recorded after ten days of his release for which no plausible explanation had been provided---Bail application of accused was allowed and he was released on bail.

Muhammad Khan v. Moula Bux and another 1998 SCMR 570 rel.

Faiz Muhammad v. Zaibul Nisa and another 2009 MLD 518 distinguished.

Nadir Ali Chachar for Applicant.

Zulfiqar Ali Naich for Abductee.

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

2012 M L D 926

[Sindh]

Before Muhammad Tasnim, J

INAYAT alias ANO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.529 of 2011, decided on 12th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9---Possessing narcotics---Bail, grant of---Further inquiry---Alleged recovery of 1050 grams of charas was marginally exceeding boundary of 1000 grams, which did not fall within the prohibitory clause---Was yet to be decided at the trial as to whether case of accused attracted the provisions of Ss.9(b) or (c) of Control of Narcotic Substances Act, 1997---Accused had not been convicted in any of the case in which he was facing trial---Accused could not be denied the concession of bail only for the reason that he was facing trial in some cases---No private witness had been associated by the police at the time of arrest and recovery, which had made the case of prosecution doubtful and entitled accused to be admitted to bail---Accused having made out a case of further inquiry in terms of subsection (2) of S.497, Cr.P.C., he was admitted to bail, in circumstances.

Mst. Fahmida v. The State 1997 SCMR 947; Asif Ali v. The State 2003 PCr.LJ 540; Nawaz v. The State 2004 YLR 1118; Ayaz v. The State 2011 PCr.LJ 177; Taj Ali Khan v. The State 2004 YLR 439; Rayasat Ali v. The State 2005 YLR 1862; Mahboob Ali v. The State 2007 YLR 2968; Gulab Hussain v. The State 2009 YLR 189; Hanook Babar Masih v. The State 2007 YLR 3105 and Noor Ali Khan v. The State and others 2003 MLD 1637 ref.

Muhammad Bakhsh Wahocho for Applicant.

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

2012 M L D 945

[Sindh]

Before Imam Bux Baloch, J

NIZAMUDDIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-141 of 2011, decided on 17th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395, 397 & 506/2---Dacoity, robbery, criminal intimidation---Bail, grant of---Investigating Officer, during investigation found accused as innocent and kept his name in Column No.2 of challan due to insufficient evidence---Accused was entitled to concession of bail, in circumstances.

Muhammad Ilyas v. Ijaz Ahmed Butt and another 1992 SCMR 1857; Muhammad Mumtaz and 3 others v. The State 1988 SCMR 1452 and Muhammad Afzal v. Nazir Ahmed and others 1984 SCMR 429 rel.

Sarfraz Khan Jatoi for Applicant.

Miss Rubina Dhamrah, State counsel.

2012 M L D 957

[Sindh]

Before Muhammad Tasnim, J

ABDUL QADIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.860 of 2011, decided on 29th August, 2011.

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

----S. 497---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Attempt to cause explosion or making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances---Bail, grant of---Accused was in custody in relation to different F.I.Rs., and on his alleged pointation, made during interrogation, police effected recovery of explosive substances and devices from a place which was 40 km away from the place of interrogation---Present F.I.R. had been lodged within one and a half hour of accused's pointation despite a distance of 40 km between the place of interrogation and place of recovery---Accused had already been granted bail in the said different F.I.Rs., during interrogation of which he made the alleged pointation---No private person had been made witness or shown as Mashir from the village from where alleged recovery had been made, therefore, provision of S. 103 Cr.P.C had been violated---Residents of the village from where alleged recovery was effected, had made an application to the Inspector General Police of the province stating that accused was arrested from his house and was not involved in any criminal activity---Accused had successfully made out a case for grant of bail, and in circumstances, was admitted to bail.

State v. Bashir PLD 1997 SC 408 rel.

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

----S. 103---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Search to be made in presence of witness---Scope---Requirement of S.103, Cr.P.C., namely that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public.

State v. Bashir PLD 1997 SC 408 quoted.

Shaukat Hayat for Applicant.

Ms. Rahat Ahsan, D.A.-G. and Muhammad Iqbal Awan, A.P.-G. for the State.

2012 M L D 970

[Sindh]

Before Muhammad Tasnim, J

MASROOR AFZAL PASHA and another---Plaintiffs

versus

DEFENCE HOUSING AUTHORITY through Managing Director and another---Defendants

Suit No.423 of 2004, decided on 13th February, 2012.

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

----O.VII, R.11(a)---Rejection of plaint for not disclosing cause of action---Duty of court---Contents of plaint in suit for such purpose must be read as a whole---Such reading must be informal and practical rather than notional---Principles.

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

----O. VII, R. 11---Rejection of plaint---Filing of subsequent suit on same facts, cause of action and for same relief after rejection of plaint in earlier suit to be time barred and after fourteen (14) years of accrual of cause of action---Validity---Plaint in subsequent suit would be liable to be rejected.

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

----O. VII, R. 11---Rejection of plaint---Duty of court.

Court is bound to reject the plaint where it appears to be time-barred or barred by some law. The object is not only to bury the case on its inception, but also that the party may avail remedy available in law rather than pursuing the matter in a court having no jurisdiction.

M. Junaid Farooqui for Plaintiffs.

Munawar Malik for Defendant No.1.

Khalid Javed and Malik Muhammad Asghar for Defendant No.2.

Dates of hearing: 30th January and 3rd February, 2012.

2012 M L D 990

[Sindh]

Before Salman Hamid, J

MUHAMMAD BAKHSH---Petitioner

versus

V-ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

C.P. No.753 and C.M.A. No.3444 of 2009, decided on 1st December, 2011.

West Pakistan Family Courts Rules, 1965---

----R.13---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of downer---Application for setting aside of ex parte judgment---Limitation---Service of notice---Petitioner's application for setting aside ex parte judgment was dismissed concurrently by the courts below---Validity---Courier delivery report upon which the courts below had relied upon clearly showed that the consignee was the District Judge and not the petitioner---Period of limitation for setting aside ex parte decree started to run upon the acquiring the knowledge of ex parte judgment, which according to the affidavit filed by the petitioner was acquired a week before filing of said application, and therefore his application for setting aside ex parte decree was within the limitation period of 30 days---Petitioner was not served upon at all---High Court set aside orders of the courts below and declared the petitioner to be entitled to contest the suit---Constitutional petition was allowed accordingly.

M. Riaz Shahid for Petitioner.

Ehsan-ul-Haq for Respondent No.3.

2012 M L D 994

[Sindh]

Before Shahid Anwar Bajwa, J

MAZHAR and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Applications Nos.S-213 and S-219 of 2011, decided on 21st July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149/337-H(2)---Qatl-e-amd and causing hurt by rash or negligence act---Bail, grant of---Contradictions were found in two F.I.Rs. regarding same occurrence, with regard to numbers of accused persons, weapons of offences and ocular account---No motive had been stated in the F.I.R. and it was to be seen as to which version was correct---No independent witness except the interested persons was available---Statements under S.161, Cr.P.C. were recorded after more than one week---Accused was admitted to bail, in circumstances.

Shahzaman v. The State PLD 1994 SC 65 and Abdul Hayee v. The State 1996 SCMR 555 ref.

Athar Abbas Solangi for Applicants.

Safdar Ali G. Bhutto for the Complainant (in Criminal Bail Application No.S-219 of 2011).

Amir Ahmed Narejo, State Counsel.

2012 M L D 1012

[Sindh]

Before Muhammad Ali Mazhar, J

KHURSHED HUSSAIN and 4 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.S-80 and M.As. Nos. 415-416 of 2012, decided on 24th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 119/166/34---Police Act (V of 1861), S. 29---Public servant concealing design to commit offence which it is his duty to prevent, public servant disobeying law, with intent to cause injury to any person, common intention, neglect of duty, etc.---Bail, grant of---Allegation against accused persons (police officials) was that they were assigned the task of providing security to some prisoners for bringing them in the court and in their presence a prisoner took out a pistol and fired upon other prisoners due to which one of the prisoners expired---Contention of accused persons that as per order of a Senior Police official they had been sent for trial under Ss.166, 34 of P.P.C and S. 29 of Police Act, 1861, which offences were bailable and entitled them to be released on bail---Validity---Prosecution had no objection to the grant of bail, in view of the order of the Senior Police official---Accused persons were granted bail, in circumstances.

Nisar Ahmed Abro for Applicants.

Ali Raza Pathan, State Counsel.

2012 M L D 1024

[Sindh]

Before Salman Hamid, J

Messrs WARID TELECOM (PVT.) LTD.---Applicant

versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous Application No.382 of 2011, decided on 14th December, 2011.

Penal Code (XLV of 1860)---

----Ss. 420 & 406---Criminal Procedure Code (V of 1898), S. 561-A---Cheating and dishonestly inducing delivery of property, criminal breach of trust---Accused (respondent) was given an official car during his employment with company (petitioner)---Upon termination of employment of accused, he was asked by the company to return the said vehicle, but accused refused to return the same---Company lodged an F.I.R. against the accused but Investigating Officer recommended disposal of the F.I.R. under C-Class with the reasoning that there seemed to be a civil dispute relating to the return of the vehicle as accused contended that as per practice of the company, he was entitled to purchase the vehicle on depreciated value upon termination of his employment---Validity---As per practice of the company, accused was entitled to purchase the vehicle on depreciated value, for which an offer was also made to him---Case under Ss. 406 & 420 of P.P.C was hardly made out in the circumstances of the case---Report submitted by Investigating Officer was rightly accepted by the Magistrate, whereby F.I.R. was disposed of under C-Class---Application of company in circumstances was not maintainable, and consequently was dismissed.

Rajendar Kumar for Applicant.

2012 M L D 1032

[Sindh]

Before Muhammad Tasnim, J

RAWAL---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-772 of 2011, decided on 19th December, 2011.

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---Accused was arrested from a thickly populated area, allegedly being in possession of 1025 grams of charas, but no private witness was associated at the time of the arrest---Section 25 of Control of Narcotic Substances Act, 1997 excluded operation of S. 103, Cr.P.C. but since arrest and recovery was made by police on prior information, police should have arranged private person from vicinity to act as witness for arrest and recovery---Sample of 10 grams sent to Chemical Examiner appeared to be meagre quantity and case was also a border-line case---Prosecution's case appeared to be doubtful and false implication of accused could not be ruled out---Accused's case required further inquiry in terms of subsection (2) of S.497, Cr.P.C. and accordingly he was admitted to bail.

Syed Muhammad Waseem Shah for Applicant.

Shahzado Saleem, A.P.G. for the State.

2012 M L D 1040

[Sindh]

Before Salman Hamid, J

Haji MUHAMMAD IQBAL---Applicant

versus

THE STATE---Respondent

Criminal Miscellaneous Application No.101 of 2011, decided on 16th January, 2012.

Penal Code (XLV of 1860)---

---Ss. 420/468/471/147---Criminal Procedure Code (V of 1898), S. 561-A---Cheating, dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, rioting armed with deadly weapons---Application for quashing of proceedings---Report submitted by police revealed that accused (respondent) had been acquitted in an F.I.R. lodged by the complainant (applicant) in respect of the same sale agreement and that another F.I.R. lodged by complainant against the accused, his son and other persons, was also disposed of in B-class---Complainant had also filed a case against the accused under the Illegal Dispossession Act, 2005, which was also dismissed---Magistrate after looking into the aspects of the case had come to the conclusion that dual trial was against the wisdom of law---Order of Magistrate did not require any interference and therefore application for quashing the proceedings was dismissed.

Haji Muhammad Iqbal, Applicant in person.

Zafar Ahmed Khan, Addl. P.G. for the State.

Raja Muhammad Khaliluz Zaman for the Respondents/accused.

2012 M L D 1059

[Sindh]

Before Muhammad Tasnim, J

DEEDAR ALI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.904 of 2011, decided on 3rd October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 392/34---Robbery, common intention---Bail, grant of---Further inquiry---One of the prosecution witnesses, who was also a private witness, recorded his statement under S. 161, Cr.P.C in which he claimed to have arrested the accused along with the complainant and his brother, but such statement of the said prosecution witness did not support the contents of the F.I.R.---Prosecution case was that accused was arrested at the spot and recovery of weapon was effected from him, but despite presence of a private independent witness at the spot, he was not cited as mashir for the alleged arrest and recovery of weapon---Case of prosecution was doubtful and false implication of accused could not be ruled out---Charge against accused had been framed but not a single prosecution witness had been examined by the prosecution due to their absence---Case against accused required further inquiry in terms of S.497(2), Cr.P.C---Accused was admitted to bail, in circumstances.

Ghulam Sarwar Thebo for Applicant.

2012 M L D 1075

[Sindh]

Before Maqbool Baqar and Nisar Muhammad Sheikh, JJ

HAQ NAWAZ---Petitioner

versus

Haji ALAM KHAN and 8 others---Respondents

Constitutional Petition No.D-656 of 2012, decided on 15th March, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 190---Penal Code (XLV of 1860), Ss. 452/395/504/161/ 337-A(i)---Constitution of Pakistan, Art. 199---Constitutional petition---Cognizance of offence by Magistrate---Scope---Judicial Magistrate while disagreeing with the report submitted by the investigation officer, directed him to submit charge sheet against the accused (petitioner)---Contention of accused was that although Judicial Magistrate was competent to take cognizance under S. 190, Cr.P.C, however, no power vested in the court to override any legal provision and direct the investigation officer either to submit or not to submit a report in a particular manner---Validity---Prosecution conceded to such contention of the accused---Constitutional petition was allowed, impugned order was set-aside and Magistrate was directed to hear the parties and pass an order thereon afresh.

Naseer and other v. Khuda Bakhsh and others 2011 SCMR 1430 rel.

Muhammad Muneer Ahmed for Petitioner.

Adnan Karim Memon, A.A.-G. for Respondents.

2012 M L D 1081

[Sindh]

Before Salman Hamid, J

Mst. SAKINA through Attorney ---Petitioner

versus

Mst. YASMIN TAJ and 2 others---Respondents

Constitution Petition No.S-232 of 2011, decided on 29th November, 2011.

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

----S. 15---Ejectment of tenant on ground of default in payment of rent---Practice and procedure---Initial burden was upon the landlord to discharge that default was committed by the tenant and all that was required of a landlord was to state on oath that rent was not received from the tenant for a given period of time whereafter the burden shifted, under law, upon the tenant, who in his turn had to prove affirmatively, that the payment of rent was made and had to dislodge the claim of default, raised by the landlord, by producing affirmative and convincing evidence.

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

---S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent---Eviction was ordered concurrently by the courts below---Validity---Tenant by her own admission did not make payment for water and conservatory charges, as according to her same were not required to be paid by her under the tenancy agreement, however, after determination of said agreement, tenant became the statutory tenant in the premises, and fell victim to S. 2(i) of the Sindh Rented Premises Ordinance, 1979, wherein water charges were included in the definition of "rent"---Meaning of rent, if tested on the admission of the tenant, would make the tenant a clear "defaulter" in the payment of rent---Constitutional petition was dismissed.

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

----S. 10(3)---Payment of rent---Necessary for the tenant to show that the landlord had refused to accept the rent and upon such refusal, the rent money was sent by money-order or it was deposited with the Rent Controller---Burden was on the tenant when the landlord asserted that no rent was tendered to the landlord.

Riazuddin for Petitioner.

Raja Riaz Ahmed for Respondents.

Date of hearing: 18th November, 2011.

2012 M L D 1092

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Tasnim, JJ

ARBAB ZULFIQUAR ALI and another---Petitioners

versus

SPEAKER PROVINCIAL ASSEMBLY, KARACHI through Secretary, Sindh Assembly Karachi---Respondent

Constitution Petition No.D-482 of 2012, decided on 28th March, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Aggrieved person---Scope---For invoking jurisdiction of High Court through constitutional petition, petitioner has to be an aggrieved person having locus standi to invoke such jurisdiction---Petitioner who invokes jurisdiction under Art. 199 of the Constitution has to establish that any of his legal or fundamental rights guaranteed in the Constitution has been violated---Person who is not an aggrieved party, cannot invoke jurisdiction under Art. 199 of the Constitution, except for relief in the nature of habeas corpus or quo warranto---Petitioner seeking relief under Art. 199 of the Constitution has to show that he is an aggrieved person and it is also imperative for him to show that any of his proprietary or personal right as recognized by law has been invaded or denied---Any person who fails to demonstrate such pre-requisites as recognized by law, has no locus standi or any cause of action to seek any relief under Art. 199 of the Constitution---Legal right can be statutory right or a right recognized by law.

(b) Rules of Procedure of Provincial Assembly of Sindh---

----Rr. 55 & 56---Constitution of Pakistan, Arts. 64 & 199---Constitutional petition---Vacation of seat---Absent without leave---Effect---Petitioner invoked constitutional jurisdiction of High Court for restraining Speaker Provincial Assembly from declaring seat of one of the Members of Provincial Assembly who had remained absent from the Assembly sessions for a long time---Validity---Leave application filed by the Member concerned was read out in the House and the same was deferred by the House for a few days---On the adjourned date, the application was again taken up and again read out in the House and Speaker put question to the House whether leave application be granted or not and House of Provincial Assembly rejected the application---Another leave application was filed in next session which application was also read out to the House who regretted the same---All applications filed by Member Provincial Assembly in question or on his behalf by the petitioner were dealt with strictly in accordance with Rule 55 of Rules of Procedure of the Provincial Assembly of Sindh---Provisions of Rule 56 of Rules of Procedure of the Provincial Assembly of Sindh, were in line with Art. 64 of the Constitution---High Court declined to allow the prayer made by petitioner as the same would amount to suspending operation of Rule 56 of Rules of Procedure of the Provincial Assembly of Sindh and Art. 64 (2) of the Constitution, which relief could not be granted---Petition was dismissed in circumstances.

Muhammad Naeem Akhtar v. The Speaker, Sindh Provincial Assembly 1992 CLC 2043; Mining Industries of Pakistan (Pvt.) Limited v. Deputy Speaker, Balochistan Provincial Assembly Quetta PLD 2006 Quetta 36 and Ahmed Saeed Kirmani M.L.A. v. Ch. Fazal Elahi and others PLD 1956 Lah. 807 rel.

Lt. Col. Farzand Ali and others v. Province of West Pakistan PLD 1970 SC 98 distinguished.

Muhammad Yousif Leghari for Petitioners.

Allah Bachayo Soomro Addl. Advocate General Sindh for Respondent.

Abdul Fattah Malik, Advocate General Sindh on Court notice.

Date of hearing: 21st March, 2012.

2012 M L D 1128

[Sindh]

Before Shahid Anwar Bajwa, J

ABDUL KARIM alias ADOO---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-516 of 2011, decided on 1st March, 2012.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss. 365-B/34-Kidnapping, abducting or inducing woman to compel for marriage etc., common intention---Bail, refusal of---Concerning delay in recording of F.I.R., in cases of abduction it was normally first practice of the families to try to recover the alleged abductee and therefore delay was rarely, if ever, material---F.I.R. had been registered after obtaining an order from an Additional Sessions Judge, and in view of such fact delay had been reasonably and plausibly explained---F.I.R. contained a clear statement implicating the accused in abduction and prosecution witnesses had supported the version stated in the F.I.R.---Contention of accused that no useful purpose would be served by keeping him behind bars was not material in the circumstances because the alleged abductee had not been recovered---Bail application of accused was dismissed in circumstances.

Falak Sher alias Phalli v. State 1999 PCr.LJ 947; Manazar Hussain Shah v. State 1999 PCr.LJ 86; Muhammad Azhar Nadeem v. State 2002 PCr.LJ 12; Liaquat Ali v. State 2005 MLD 1974 and Abdul Rauf alias Rauf v. State 1999 PCr.LJ 1109 distinguished.

Habibullah G. Ghouri for Applicant.

Altaf Hussain Surahio, State counsel.

2012 M L D 1152

[Sindh]

Before Shahid Anwar Bajwa, J

FEROZE KHAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-1039 of 2011, decided on 6th February, 2012.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 324/149/504/114/337-H(2)---Attempt to commit qatl-e-amd, unlawful assembly, intentional insult with intent to provoke breach of peace, abettor presented when offence committed, hurt by rash or negligent act---Bail, grant of---Medical grounds---Medical report of accused revealed that he had recurrent attacks of hypertension with transient ischemic attack (TIA), and his condition was not satisfactory and his treatment in jail was not reasonable---Bail application of accused was allowed, in view of his medical report---High Court while allowing bail application of accused observed that complainant was at liberty to challenge the medical report/certificate of the accused and if the medical Board gave a contrary opinion, complainant would have the right to file application under S. 497(5), Cr.P.C.---High Court further observed that if the accused recovered, the complainant could again file an application under S. 497(5), Cr.P.C---Accused was admitted to bail, in circumstances.

Zulfiqar Ali Sangi for Applicant.

Sikandar Ali Junejo for the Complainant.

Zulfiqar Ali Jatoi, D.P.-G.

2012 M L D 1171

[Sindh]

Before Muhammad Tasnim, J

ABDULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-700 of 2010, decided on 2nd September, 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---Sample for chemical examination was forwarded with the delay of 9 days which delay had not been explained by the prosecution---As per F.I.R., encounter continued for about 25 minutes, but neither any injury was sustained by any body nor any damage was caused to the Police vehicle---Since it was border line case punishment being about 4 years and 6 months, and case requiring further inquiry in terms of subsection (2) of S.497, Cr.P.C., accused was admitted to bail, in circumstances.

Taj Ali Khan v. The State 2004 YLR 439 and Hakeem Jamali v. The State 2009 PCr.LJ 695 ref.

Qurban Ali Malano for Applicant.

Shyam Lal Assistant Prosecutor-General for the State.

2012 M L D 1180

[Sindh]

Before Faisal Arab and Nadeem Akhtar, JJ

DANISH AHMED---Petitioner

Versus

THE STATE through Chairman NAB---Respondent

Constitutional Petition No.D-596 of 2012, decided on 2nd April, 2012.

National Accountability Ordinance (XVIII of 1999)---

----S.9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Delay in conclusion of trial---Accused had earlier filed a constitutional petition before the High Court seeking bail, which was dismissed with a direction to the Trial Court to decide the matter within two months---Trial Court failed to conclude the matter within two months---Contention of accused was that eighty (80) witnesses had been listed by the prosecution out of which only sixteen (16) witnesses had been examined so far---Validity---Accused was in jail since last one year, nine months and fifteen days and the case had not been decided by the Trial Court till date, in spite of directions of the High Court---Prosecution had not argued that any delay in concluding the trial was attributable to the accused---Constitutional petition was allowed and accused was enlarged on bail with directions to the Trial Court to conclude the trial within four months.

Muhammad Naeem Anwar v. National Accountability Bureau and others PLD 2008 SC 645; Khan Afsandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Muhammad Saeed Mehdi v. State 2002 SCMR 282 and Aga Jehanzeb v. NAV and others 2005 SCMR 1666 ref.

Muhammad Muneer Ahmed for Petitioner.

Noor Muhammad Dayo, Senior Prosecutor NAB for the State.

2012 M L D 1190

[Sindh]

Before Salman Hamid, J

Dr. AHMED ALI---Petitioner

Versus

Mst. SHAHANA YOUNUS and 6 others---Respondents

Constitution Petition No.S-1054 of 2010, decided on 30th November, 2011.

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

----Ss.15 & 10---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent and bona fide personal need of landlord---Ejectment was ordered concurrently by the courts below---Tenant had failed to deposit rent regularly in the court and the fault was clear and blatant---Nothing was available on record to dislodge the claim of personal need of the landlord---Contention of the tenant was that since the premises were requisitioned by the Provincial Government, the rent ought to have been paid by the Provincial Government and it was not the liability of the tenant---Such assertion of the tenant was flawed as the premises was derequisitioned subsequently, and thereafter, payment of rent became the exclusive responsibility of the tenant---Rent ought to have been directly tendered to the landlords and not in the court, as it was not pleaded by the tenant that the landlord had refused to accept the rent, and upon such refusal the money order was also refused---Tenant had no justification to deposit rent in the court in terms of S. 10 of the Sindh Rented Premises Ordinance, 1979 on his own wisdom---Constitutional petition was dismissed.

Zahir Laghari for Petitioner.

Muhammad Farooq for Respondents.

Date of hearing: 23rd November, 2011.

2012 M L D 1199

[Sindh]

Before Shahid Anwar Bajwa, J

FAZAL UR REHMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.687 of 2011, decided on 10th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392/34---Robbery---Bail, grant of---Accused had stated that he was less than 17 years of age---Such ground had not been taken by him in his bail application---Question as to the age of accused, could only be determined by the court in accordance with S.7 of the Juvenile Justice System Ordinance, 2000---Contentions of the counsel for accused were that the F.I.R. was recorded after delay of four day and that no recovery had been shown in the report submitted under S.173, Cr.P.C.---Said contentions deserved due weight---Accused was entitled to concession of bail in circumstances.

Applicant produced in Custody.

Shabir Ali Bozdar for Applicant.

Syed Sardar Ali Shah Rizvi, Assistant Prosecutor-General with SIP Muhammad Abdullah Sangri, I.O. for Respondents.

2012 M L D 1213

[Sindh]

Before Irfan Saadat Khan and Muhammad Tasnim, JJ

SHAHID PERVAIZ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 709 of 2011, decided on 11th July, 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, cheating, forgery, using as genuine a forged document---Bail, refusal of---First bail application was dismissed by the Trial Court when challan was not submitted---Bail application was filed before the High Court on the very next day and challan in the matter was submitted before the Trial Court---Deeper appreciation of record could not be gone into at bail stage, but only tentative assessment was to be made just to find out as to whether accused was connected with the commission of offence or not---Bail application of accused filed earlier was dismissed by High Court---No new ground had been raised by the counsel for accused in the present bail application---Name of accused appeared in the F.I.R. and prosecution witnesses had implicated accused with a specific role in commission of offence---Accused was Chairman of Credit Committee and the loan approved by such Committee, bore the signature of accused---Accused, in circumstances, was fully connected with the commission of the offence---Bail application being meritless, was dismissed, in circumstances.

The State v. Zubair and others PLD 1986 SC 173; 2002 SCMR 171 and and Tariq Hashmi v. The State 2010 YLR 563 distinguished.

The State v. Zubair and others PLD 1986 SC 173 ref.

The State v. Zubair and others PLD 1986 SC 173 rel.

Syed Mehmood Alam Rizvi and Habib Ahmed for Applicants.

Muhammad Qasim, Standing Counsel along with Muhammad Iqbal, Inspector FIA, C.B.C., Karachi for Respondents.

Z.U. Mujahid for the Complainant.

Irfan Qureshi, Head of Auto Finance, Bank Al-Falah Ltd., on Court notice.

Date of hearing: 6th July, 2011.

2012 M L D 1246

[Sindh]

Before Muhammad Tasnim, J

AYAZ ALI and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-835 and M.A. 3398 of 2010, decided on 14th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Penal Code (XLV of 1860), Ss.342 & 171---Haraabah, wrongful confinement and wearing garb or carrying token used by public servant with fraudulent intent---Bail, grant of---Further inquiry---Deeper appreciation could not be gone into at bail stage, but only tentative assessment was to be made just to find out as to whether accused was connected with the commission of offence or not---Delay of one day in lodging F.I.R. had not been explained by the prosecution---Recovery was doubtful as all the Mashirs were Police personnel and no private person had been asked to act as Mashir---Neither any weapon had been recovered from accused nor any other article, except truck and tea cartons---Since there appeared to be some dispute between the parties over sale and purchase of truck, it would be just and fair to admit accused to bail---Case was fit in which further enquiry was called for in terms of subsection (2) of S.497, Cr.P.C.---Accused were admitted to bail, in circumstances. [p. 1248] A

Muhammad Iqbal Mahar for Applicants.

Sardar Ali Shah, Assistant Prosecutor General for the State.

2012 M L D 1258

[Sindh]

Before Shahid Anwar Bajwa, J

LIAQUAT ALI and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.S-321 of 2011, decided on 26th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.506(2), criminal intimidation---Pre-arrest bail, grant of---Offence alleged against accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.--Accused could not be termed as absconders---Kicks and fist blows were attributed to accused, but neither any specific injury had been stated in the F.I.R., nor any medical examination report had been produced---Interim pre-arrest bail granted to accused was confirmed in circumstances.

Dareshani Ali Hyder Ada for Applicants.

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

2012 M L D 1298

[Sindh]

Before Shahid Anwar Bajwa, J

GAJI alias DODO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.651 of 2011, decided on 12th September, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to qatl-e-amd---Bail, grant of---Abscondence---Effect---Absconder is not absolutely disentitled to the grant of bail; he loses some of his rights both under the substantive as well as the procedural law---Absconder is not absolutely denuded of all his rights.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd---Bail, grant of---Deceased had received four injuries and two persons had received one injury each---Twenty-five persons, according to F.I.R., had come and fired at the place of occurrence, but only four empties of Kalashnikov and three empties of G-3 rifle had been secured therefrom---F.I.R. did not disclose as to what weapon the accused was armed with---Further inquiry into the guilt of accused, thus, was needed---Bail was allowed to accused in circumstances.

Manzoor Ahmed Junejo assisted by Shahid Ali Memon for Applicant.

Zulfiqar Ali Jatoi, Deputy Prosecutor General for the State.

2012 M L D 1318

[Sindh]

Before Muhammad Tasnim, J

MUHAMMAD IBRAHIM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.853 of 2011, decided on 29th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd, common intention---Bail, grant of---Delay in conclusion of trial---Contentions of accused were that more than four years had lapsed but his trial had not proceeded till date; that such delay was not caused by the accused, and that High Court had given directions to the Trial Court to conclude the trial within three months and to procure the attendance of prosecution witnesses through coercive measures, but despite such directions, trial had not yet concluded---Validity---Examination of the diary sheet of the Trial Court revealed that delay was not attributable to the accused---Despite directions of the High Court , trial of the case had not concluded as yet and accused was behind bars for more than four (4) years---Prosecution had admitted that accused was not previously convicted offender for an offence punishable with death or imprisonment for life or that he was a hardened, desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life---Accused was admitted to bail on ground of delay in conclusion of his trial.

Ahmed Ali Deevan for Applicant.

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

2012 M L D 1334

[Sindh]

Before Aqeel Ahmed Abbasi, J

FAREED ALAM---Appellant

Versus

SHIRAZ AFZAL MALIK---Respondent

First Civil Appeal No.23 of 2009, decided on 16th April, 2012.

Court Fees Act (VII of 1870)---

----S. 13---Refund of Court Fee, application for---Respondent in the appeal was never served in the appeal filed by the applicant nor any counsel was engaged by him, and no restraining order was passed by the court in favour of the applicant/appellant---Matter had been compromised between the parties pursuant to which the applicant/appellant withdrew the appeal at the initial stage---Appellant/applicant, in circumstances, was entitled to refund of the court fee, irrespective of the fact whether the provisions of S.13 of the Court Fees Act, 1870 were attracted or not---Application was allowed accordingly.

Basit Rasool Qadir and others v. First General Leasing Model 2004 CLC 430; Muhammad Tahir v. Karachi Building Control Authority through Chief Controller of Buildings 2008 CLC 464 and Liaquat Hussain v. Saudi Air Line, through Country Manger 2011 CLC 314 rel.

Rao Faisal Ali for Appellant.

2012 M L D 1351

[Sindh]

Before Syed Zakir Hussain, J

GHULAM MUHIYUDDIN alias GAMBOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. S-94 of 2009, decided on 29th November, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Conviction of accused and acquittal of co-accused persons on the same set of evidence---Trial Court made the accused (appellant) responsible for the death of the deceased and exonerated the co-accused persons, despite taking notice of the fact that co-accused persons also fired at the deceased---Co-accused persons were acquitted and the accused was convicted without proper reasoning and distinguishing their cases, which was in total disregard of the ocular evidence and in derogation of the principle that on same set of evidence two different conclusions could hardly be acceptable, and such a situation gave rise to benefit of doubt which had to be extended to the accused---Trial Court failed to take notice of the fact that one of the eye-witnesses (brothers of the deceased) and mashir of the memo were not produced in court for no justified reason or excuse, leaving the court to draw the reasonable inference that had they been produced, they would not have supported the prosecution case---Conviction of accused was not based on sound reasons---Appeal of accused was allowed, impugned judgment of Trial Court was set aside and the accused was acquitted.

Ghulam Ali A. Samtio and Shamsuddin Abbasi for Appellant.

Ali Raza Pathan for Respondent.

Date of hearing: 29th November, 2010.

2012 M L D 1401

[Sindh]

Before Maqbool Baqar and Aqeel Ahmed Abbasi , JJ

ABDUL QADIR JANGDA---Petitioner

Versus

FEDERATION OF PAKISTAN through the Secretary, Ministry of Interior and another---Respondents

Constitution Petition No. D-977 of 2011, decided on 26th August, 2011.

National Accountability Ordinance (XVIII of 1999)---

----S. 5(r)---Constitution of Pakistan, Art.199---Constitutional petition for grant of bail---Wilful default in repayment of bank's loan---Accused (petitioner) was behind bars for having wilfully defaulted in the repayment of Bank's dues---Contentions of accused were that default on his part was not wilful and was merely on account of his financial constraints; that he was suffering from various ailments; that one of his properties was available for sale, proceeds whereof would satisfy the bank's claim to a great extent; that documents of said property were in possession of another bank, and accordingly, directions should be issued to deposit the title documents of the said property with the Nazir of the High Court, who could sell the property and deposit the sale proceeds thereof with NAB authorities---Validity---Said other bank verified that it neither had any charge over the property in question nor any claim against the accused, and would hand over title documents of the property over to the Nazir of the court, if any such directions were issued---Accused had submitted that he was willing to hand over vacant and peaceful possession of the property in question to the Nazir of the High Court---Accused suffered from frail health---Fact that accused had made arrangements for selling his property towards liquidation of his liability, reflected his sincerity to pay the amount to the bank---High Court ordered to release the accused on bail after certain conditions had been fulfilled, namely that title documents of the property, vacant and peaceful possession of the property and all passports of accused were deposited with the Nazir of the High Court; after the accused had paid the amount to the bank within the prescribed time, and after Nazir of the court had verified the authenticity of the title documents of the property-High Court gave directions to put the name of the accused on the Exit Control List (ECL), for which Nazir of the court was ordered to write a letter to concerned authorities to ensure that all measures were enforced so that accused could not leave the country and no fresh/duplicate passport was issued to him---Constitutional petition was disposed of, accordingly.

Ms. Naheed A. Shahid for Petitioner.

Rizwan Ahmed Siddiqui for KASB Bank.

Mushtaq A. Memon for Intervener Messrs NIB Bank.

Noor Muhammad Dayo, D.P.-G., NAB.

2012 M L D 1419

[Sindh]

Before Nisar Muhammad Shaikh, J

BILAWAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S-104 of 2006, decided on 17 February, 2011.

Penal Code (XLV of 1860)---

---Ss. 302(b) & (c)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Murder on account of provocation and loss of self-control---Accused (appellant) did not press his appeal on merits and only requested reduction in sentence with the contention that the offence fell under S. 302(c), P.P.C as according to the Injunctions of Islam, punishment of Qisas was not applicable to the present case---Validity---Complainant, accused, deceased and prosecution witnesses were all related to each other and no allegation of enmity between the parties came on record except the defence version in which accused had shown some enmity between the parties for his false implication---Perusal of F.I.R., material available on record and evidence of complainant, showed that motive of the crime was a provocative occurrence on account of loss of self-control by the accused, as the prosecution itself submitted that deceased used to quarrel with accused daily and taunted him for being jobless---Accused was a first time offender and was aged 24/25 years at the time of the alleged incident and he seemed to have gained no benefit from committing the alleged offence---Accused, in view of the facts and circumstances of the case deserved concession and leniency in the interest of justice---Appeal was allowed and conviction awarded to accused was altered/ converted from S. 302(b), P.P.C to S. 302(c), P.P.C, and sentence of life imprisonment awarded to him by the Trial Court was reduced to one already undergone by him.

Miss Shabana Kausar Jatoi for Appellant.

Shahid Ahmed Shaikh, Assistant Prosecutor General, Sindh for Respondent.

Dates of hearing: 7th and 14th February, 2011.

2012 M L D 1466

[Sindh]

Before Muhammad Tasnim, J

MUHAMMAD ALI and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1022 of 2009, decided on 29th September, 2011.

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

----S. 498---Pre-arrest bail---Principles---Once interim pre arrest bail has been granted by court, the bail application is to be decided on merits instead of dismissing same on technical grounds.

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

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

----S. 498---Pre-arrest bail---Forum---Direct approach to High Court---Accused, in compelling circumstances can approach High Court for pre-arrest bail without filing his bail application before the lower judicial forum.

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

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.324/147/ 148/149/504---Attempt to commit qatl-e-amd, rioting, intentional insult with intent to provoke breach of the peace---Pre-arrest bail, grant of---Case of further inquiry---Accused persons had tried their level best to file bail application before the Sessions Court and even before the Circuit Bench of High Court, but failed to do so due to fear of their arrest and ultimately they filed their bail application before the principal seat of the High Court---Pre-arrest bail application filed by accused directly in High Court, therefore, was maintainable---Case was of two versions regarding the same incident, emanating from one F.I.R. got registered by the complainant party and the other F.I.R. got registered by the accused party---Persons of both sides had sustained fire-arm injuries and it was yet to be determined by Trial Court as to which of the parties was the aggressor---One accused who had allegedly injured a witness by firing with a Kalashnikov had already been admitted to bail by Trial Court---Inconsistent prosecution evidence had made the case doubtful and open to further inquiry in terms of S.497(2), Cr.P.C.---Interim prearrest bail granted to accused was confirmed in circumstances.

Rias Wazir Ahmad v. The State 2004 SCMR 1167; Sultan Ahmed Siddiqui v. The State PLD 2010 Kar. 110; Nadir and 2 others v. The State 1985 PCr.LJ 247; Jaffar and others v. The State 1980 SCMR 784; Shoaib Mehmood Butt v. Iftikhar-ul-Haq and others 1996 SCMR 1845; Noor Muhammad v. The State 2009 SCMR 324; Dilmurad v. The State 2010 SCMR 1178; Kouro and another v. The State 2004 YLR 2434; Meeran Bux v. The State and another PLD 1989 SC 347; Muhammad Shahzad Siddiqui v. The State and another PLD 2009 SC 58; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Haji Muhammad Ali Khan and others v. The State 2010 PCr.LJ 310; Manzoor Hussain v. The State PLD 2008 Kar. 157; Sh. Zahoor Ahmad v. The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Rafiq Ahmad Jilani v. The State 1995 PCr.LJ 785; Agha Muhammad Jamil v. The State 1997 PCr.LJ 901; Shamrez Khan v. The State 1999 PCr.LJ 74; Nadeem Hamid v. The State PLD 1997 Kar. 494; Fazal Muhammad v. Ali Ahmad 1976 SCMR 391; Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682; Ahmed v. Sheru 1979 SCMR 526 and Tariq Bashir v. State PLD 1995 SC 34 ref.

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

----S. 497(2)---Bail---Case of counter-versions---Case of further inquiry---Cases of counter-versions arising from the same incident, one given by complainant in the F.I.R. and the other given by the opposite party, are covered under S.497(2), Cr.P.C. and in such cases normally bail is granted on the ground of further inquiry, for the reason that the question as to which version is correct is to be decided by Trial Court after recording evidence and appraising the same.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and others 1996 SCMR 1845 ref.

Muhammad Ashraf Kazi for Applicants.

Ms. Seema Zaidi, Assistant Prosecutor General for the State.

Salahuddin Panhwar for the Complainant.

Date of hearing: 29th September, 2011.

2012 M L D 1494

[Sindh]

Before Shahid Anwar Bajwa, J

FAWAD HAIDER---Petitioner

Versus

ZAFAR IQBAL QAMAR and another---Respondents

Constitution Petition No.S-167 of 2012, decided on 4th May, 2012.

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

----Ss. 14 & 21---Constitution of Pakistan Art. 199---Constitutional petition---Application for ejectment of tenant on the ground that landlord was going to be retired from service and that the landlord had no other property for his personal bona fide use/business---Ejectment application was concurrently accepted by the Rent Controller and Appellate Court below---Validity---Notice under S.14 of the Sindh Rented Premises Ordinance, 1979, informing the tenant that landlord was going to retire, was to be served within six months of the expected date of retirement---In the present case, said notice had been served 7 months and 22 days prior to the date of retirement, which was pre-mature by one month and 22 days---Said notice, in circumstances, was not valid legal notice within contemplation of S.14 of Sindh Rented Premises Ordinance and was a jurisdictional defect which went to root of ejectment application; and since it was floating on the surface it should have been taken note of by the courts below---Application under S.14 of Sindh Rented Premises Ordinance, 1979 filed by landlord was not maintainable due to invalid notice---Order passed by Rent Controller and judgment passed by the Appellate Court, were set aside; and ejectment application was dismissed, in circumstances---Landlord however, could file ejectment application on such other grounds, as could be available to him in accordance with law.

Syed Hasan Askari Rizvi v. Muhammad Aziz PLD 1989 SC 1 rel.

Mirza Abid Beg v. Mrs. Zarina Shams and 2 others 2003 YLR 2893 ref.

Iqbal Yousuf v. Kishwar Jehan 1991 SCMR 864 distinguished.

Nisar Mehmood Mughal for Petitioner.

Malik Nazar Abbas for Respondent No.1.

Date of hearing: 15th March, 2012.

2012 M L D 1503

[Sindh]

Before Muhammad Tasnim, J

CHRISTOPHE YAKIBONGAY---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.530 of 2011, decided on 13th June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9(c), 14 & 15---Possession of narcotics---Bail, grant of---First bail application of accused had been disposed of by High Court without touching merits of the case, with a direction to Trial Court for conclusion of trial by a specified date---Two co-accused similarly placed in the F.I.R. had already been released on bail---Accused was in custody for the last more than two years and trial was still going on---Accused was entitled to bail on the rule of consistency---Even otherwise, direction of High Court of concluding the trial within the specified period had not been followed by the Trial Court in letter and spirit---Accused was admitted to bail in circumstances.

Gul Hasan Penhyar v. The State 1997 SCMR 390; Munawar Hussain Manj v. The State 2000 SCMR 1585 and Abdul Nadeem v. The State 2003 MLD 1504 ref.

Muhammad Aslam v. The State 1999 SCMR 2147 rel.

Syed Ehsan Raza for Applicant.

Hussain Bux Baloch, Special Prosecutor for ANF.

2012 M L D 1527

[Sindh]

Before Salman Hamid, J

MUHAMMAD IMRAN MOTLANI---Applicant

Versus

MUHAMMAD ASHRAF and 3 others---Respondents

Civil Revision Application No.257 of 2010, decided on 23rd November, 2011.

Civil Procedure Code (V of 1908)---

----O.VI, R. 17---Suit for recovery---Suit was decreed on admission by the defendants---Application under O.VI R. 17, C.P.C. for transposing one of the defendants as respondent in appeal was dismissed---Validity---Narration of events before Trial Court showed that the applicant and the other defendant in the suit having failed to repay the amount to the plaintiff after the suit was decreed, had attempted to wriggle out and in order to cause confusion and difficulties, initiated all sorts of litigation---Application for transposition would amount to changing the whole complexion of the suit wherein no such transposition was claimed and real aim of the applicant and defendants was to defeat the decree of the Trial Court---Revision was dismissed in circumstances.

Sami Ahsan for Applicant.

Abdul Khaliq for Respondent No.1.

Date of hearing: 17th November, 2011.

2012 M L D 1532

[Sindh]

Before Muhammad Ali Mazhar, J

JAFFAR and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Appeal No.39 of 2007 and M.A. No.10509 of 2011, decided on 24th May, 2012.

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

----S. 426(1-A)(c)---Penal Code (XLV of 1860), Ss. 302/114/504/34---Qatl-e-amd, abettor present when offence is committed, intentional insult with intent to provoke breach of the peace, common intention---Suspension of sentence---Statutory delay in disposal of appeal---Contentions of the accused persons (appellants) were that their appeal was pending for the last more than four (4) years; that the accused were neither previously convicted nor dangerous or desperate criminals, and that they had remained in continuous custody for the last eleven (11) years as under trial prisoners---Validity---Accused persons had served out substantial part of their sentences, which part was more than half of their sentence---Record revealed that appeal was delayed due to discharge of board; due to adjournments sought by State counsel; due to production of jail roll; due to application of the co-accused for suspension of his sentence and due to urgent applications moved by the accused persons---Delay in disposal of appeal was not solely attributable to the inaction, lack of concern or lackadaisical attitude of the accused persons but there were many other reasons for the delay for which the accused persons could not be held solely responsible---Prosecution never argued that the accused persons were previously convicted offenders for an offence punishable with death or imprisonment for life and nothing was available before the court to reach an opinion that they were hardened, desperate or dangerous criminals---Appeal of accused persons had not been decided within a period of two years of their conviction---Sentence of the accused persons was suspended and they were granted bail, in circumstances.

Ghulam Mustafa and others v. State PLD 2011 Kar. 394 rel.

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

----S. 426---Application for suspension of sentence pending appeal---Principles and scope---In-depth appraisal of evidence was neither warranted nor desirable while dilating upon and deciding an application under S. 426, Cr.P.C---Court should confine itself to the judgment assailed before it---Thorough scrutiny of evidence and its evaluation should be made while adjudicating upon the appeal as it would be opportune moment for doing so and not while deciding the application moved under S. 426, Cr.P.C. as it would be a premature stage---Conviction could not be set aside while exercising jurisdiction as conferred under S. 426, Cr.P.C---Discretion under S. 426, Cr.P.C, had to be exercised judiciously by considering the relevant facts and without entering into or commenting upon the merits of the case-Where contention raised during application under S. 426, Cr.P.C, required consideration of merits, the Appellate Court would refrain from entertaining such contentions as at such stage, the court could not enter into a reappraisal of evidence, which should be considered at the time of hearing of the appeal.

Allanditta Khan v. State PLD 2002 SC 845 rel.

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

----S. 426---Application for suspension of sentence pending appeal---Accused having undergone half of his sentence---Effect---Accused who had already undergone almost half of his sentence might seek suspension of his sentence in the interest of justice keeping in view the facts and circumstances of a particular case.

2008 SCMR 165 rel.

Khawaja Naveed Ahmed for Applicants.

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

Date of hearing: 12th May, 2012.

2012 M L D 1543

[Sindh]

Before Nisar Muhammad Shaikh and Faisal Arab, JJ

IMTIAZ ALI---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.D-29 of 2011, decided on 24th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Application for superdari of vehicle---Vehicle in question had been secured by the police officials after same was used in the commission of a robbery as well as murder of two police officials during an encounter---Applicant moved application before Trial Court under S. 516-A, Cr.P.C, but same was dismissed---Applicant contended that he had given the vehicle to his driver (accused) for running the same as a private taxi, therefore, it was no fault on part of the applicant if vehicle had been misused; that the vehicle was his only source of income, and that vehicle was lying in the police station and some of its parts had been removed by police officials---Validity---Record showed that applicant was the owner of the vehicle and his driver, along with others, had been arrested by the police---No one except the applicant came forward to claim the vehicle in question, therefore, there appeared to be no cogent reason to deprive the applicant of the custody of his vehicle, especially when the prosecution had yet to prove that vehicle was used by the driver in connivance with its owner---Question as to when the trial would conclude was not known, hence retention of vehicle at police station for an indefinite period would deteriorate/ diminish its value and the same was also likely to be misused and damaged---Application was allowed, impugned order of Trial Court was set aside and vehicle was allowed to be restored to the applicant on superdari with the conditions that the applicant shall produce the vehicle on the dates of hearing as and when required by the Trial Court and he shall not change its colour or shape nor sell the same without prior permission of the Trial Court, which was empowered to take over the custody of the vehicle in case the applicant failed to comply with any of the conditions.

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

Nusrat Hussain Memon for Applicant.

2012 M L D 1551

[Sindh]

Before Salman Hamid, J

SHAFAQAT HUSSAIN HASHMI---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.274 of 2011, decided on 12th December, 2011.

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

----Ss.249-A & 561-A---Penal Code (XLV of 1860), Ss.489-F/420/506---Fraudulently issuing a cheque, cheating and dishonestly inducing delivery of property, criminal intimidation---Power of Magistrate to acquit accused at any stage---Presentation of stale cheque for encashment---Accused (applicant) had filed an application under S.249-A, Cr.P.C, before the Magistrate for acquittal from the charges raised by the F.I.R., but same was dismissed---Validity---Magistrate had missed out on the point that cheque presented for encashment was a stale cheque, as it had been presented for encashment beyond the period of six months from the date of its issue, and in circumstances it was bound to be dishonoured---Complainant (respondent) seemed to know well that the cheque would not be encashed but still presented it for payment, merely to bring a case against the accused under S.489-F, P.P.C---Dishonest intention of the accused was not patent or deducible from circumstances of the case---Charges brought against accused were found groundless, and resultantly proceedings against the accused arising from the F.I.R. were quashed.

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

----Ss. 249-A & 561-A---Penal Code (XLV of 1860), S.489-F/420/506---Fraudulently issuing a cheque, cheating and dishonestly inducing delivery of property, criminal intimidation---Power of Magistrate to acquit accused at any stage---Jurisdiction of Magistrate, determination of---Presentation of stale cheque for encashment---Contention of accused (applicant) that Magistrate did not have the jurisdiction to try the case since bank which issued the cheque and bank where it was presented for encashment were located in different areas---Validity---F.I.R. revealed that accused and complainant (respondent) were neighbours and cheque was issued at the residence of the complainant (respondent) which came within the jurisdiction of the Magistrate---Magistrate in question did have the jurisdiction to try the case.

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

----Ss. 561-A, 249-A & 265-K---Penal Code (XLV of 1860), S.489-F/ 420/506---Fraudulently issuing a cheque, cheating and dishonestly inducing delivery of property, criminal intimidation---Quashing of proceedings by High Court---Scope---High Court in appropriate cases may exercise jurisdiction under S. 561-A, Cr.P.C without waiting for the Trial Court to pass order under S. 249-A or 265-K Cr.P.C, if the facts of the case so warrant---Where High Court comes to the conclusion on the basis of the facts on record that no offence could be made out and it would amount to an abuse of the process of law and allowing the prosecution to continue with the trial would be a waste of time and aggravation of the miseries of the accused, then High Court could quash the proceedings.

Tahir Rahim for Applicant.

Saleem Akhtar A.P.-G. for the State.

Date of hearing: 30th November, 2011.

2012 M L D 1572

[Sindh]

Before Salman Hamid, J

Messrs SHAHKAR AND COMPANY through Partner---Petitioners

Versus

ABDUL HAMEED KARIM and 3 others---Respondents

Constitutional Petition No.1248-S of 2010, heard on 17th January, 2012.

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

----S.15---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant on the grounds of bona fide personal need of landlord and default in payment of rent---Ejectment petition was allowed concurrently by the courts below---Validity---Cross-examination of the tenant before Rent Controller showed wilful default on the part of the tenant and mischief of such default must fall on the tenant---Explicit narration by landlord of establishing a business and/or extending of their business in the premises was enough to show the bona fide need of the landlord, which could not be dislodged or shattered by the tenant in cross-examination of the landlord before Rent Controller---Admission by tenant of non-use of the premises for over ten years showed that the tenant was not using the premises as a shop, but still was holding onto it; and was, thus, depriving the landlord of its fruits even though it was required by the landlord for his bona fide personal need---Concurrent findings of the courts below required no interference---Constitutional petition was dismissed.

Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa 2001 SCMR 338; Amina Nuzhat Babar v. Khan Sher 2002 CLC Pesh. 1; Hussaini v. Mukarram Ali 2006 SCMR 1483 and Abdul Rashid v. Government of the Punjab 1985 CLC Lah. 199 distinguished.

Zahid Marghoob for Petitioners.

Badrudduja Khan for Respondents Nos.1 and 2.

Date of hearing: 17th January, 2012.

2012 M L D 1593

[Sindh]

Before Salman Hamid, J

Mst. NASEEM JAFRI---Petitioner

Versus

Syed HASHIM RAZA and another---Respondents

Civil Petition No.S-583 of 2011, decided on 23rd December, 2011.

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

----S.5, Sched. & S.14---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for restitution of conjugal rights---Suit was dismissed by Family Court, wife filed appeal, which despite being time-barred had been entertained by the Appellate Court---Validity---Husband though served but failed to appear before High Court to argue the case and defend his interest---Constitutional petition was allowed and order passed by Appellate Court was set aside, with the result that appeal filed by the husband was dismissed.

Dr. Muhammad Farogh Naseem for Petitioner.

2012 M L D 1615

[Sindh]

Before Shahid Anwar Bajwa, J

ABDUL SALAM and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.S-1156 of 2010 and S-281 of 2011, decided on 5th September, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.364/452/337-A(i)/337-F(i)/ 337-H(2)/376/148/149---Abduction, rape, hurt caused---Bail, granted of---Plea of alibi---Court can consider the plea of alibi in a bail application even in a case involving capital punishment---Deeper appreciation of evidence, however, cannot be made at bail stage and court has to confine itself to tentative assessment.

Said Akbar v. Gul Akbar 1996 SCMR 931; Muhammad Saleheen v. Arshad Siddiq 1997 SCMR 1829; Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97 and Shoukat Illahi v. Javed Iqbal and others 2010 SCMR 966 ref.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.364/452/337-A(i)/337-F(i)/ 337-H(2)/376/148/149---Abduction, rape, hurt caused---Bail, grant of--Further inquiry---Complainant, in a case involving family honour would hesitate to approach Police and delay of three hours in lodging the F.I.R. was not material---Pistol allegedly recovered from accused was not shown to have been used and report of Ballistic Expert had not been obtained in this regard---Identification of accused was based on the statement of the abductee to the extent that accused were calling themselves by such names---No identification parade had been held in the case---Medical evidence was in conflict with oral evidence---No redness or recent tearing of the hymen of the abductee had been mentioned in the medical report---Medical certificate obtained in the case was stated to be a managed one---Abductee though was alleged to have been raped by about a dozen persons after dragging her, yet her clothes had not been taken into possession---Case against accused, thus, needed further probe---Bail was allowed to accused, in circumstances.

Said Akbar v. Gul Akbar 1996 SCMR 931; Muhammad Saleheen v. Arshad Siddiq 1997 SCMR 1829; Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97; Haji Maa Din and another v. The State and another 1998 SCMR 1528; Syed Abdul Baqi Shah v. The State 1997 SCMR 32; Shoukat Ali v. The State 2008 SCMR 553; Shoukat Illahi v. Javed Iqbal and others 2010 SCMR 966; Rashad v. The State 2002 SCMR 1329; Muhammad Bilal v. The State 2008 PCr.LJ 650 and Dr. Javed Akhtar v. The State PLD 2007 SC 249 ref.

(c) Administration of justice---

----Each case, particularly a criminal case, is to be looked at, both at bail stage as well as at the stage of final decision, in the light and context of its own peculiar facts and circumstances.

Maqbool Ahmed Awan for Applicants (in Criminal Bail Application No.S-1156 of 2010).

A.R. Faruq Pirzada for Applicants (in Criminal Bail Application No.S-281 of 2011).

Mushtaq Ahmed Abbasi for the Complainant.

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

Date of hearing: 22nd August, 2011.

2012 M L D 1656

[Sindh]

Before Sadiq Hussain Bhatti, J

ABD-UR-RAZAK alias KARO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-342 of 2012, decided on 13th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/149/504/114/337-H(2)/147/148/337-A(ii)/337-F(i)---Attempt to commit qatl-e-amd, unlawful assembly, intentional insult with intent to provoke breach of peace, abettor present when offence committed, hurt by rash or negligent act, rioting, rioting armed with deadly weapons, shajjah-i-mudihah, ghayr-jaifah-damiyah---Bail, grant of---Further inquiry---Accused and co-accused persons were alleged to have launched an attack upon the complainant party and accused was specifically alleged to have caused stick (lathi) blows to the brother of the complainant---Contentions of the accused were that the injuries attributed to him were not serious in nature; that it had not been explained as to which injury was caused by which of the accused persons; that there was a matrimonial dispute between the parties, and that no specific role had been assigned to the accused---Validity---F.I.R. was lodged after a delay of one day for which no logical explanation was given---Medico-legal certificate revealed that the injured had received five injuries out of which only one injury was said to be ghayr-jaifah-munaqqillah [337-F(vi), P.P.C], which also did not fall within the prohibitory clause of S.497, Cr.P.C---Question as to whether the alleged assault was with the purpose to commit murder could only be determined after recording of evidence by the Trial Court---Injury on vital part of the injured's body was not only assigned to the accused but also to one of the co-accused---Case against the accused was one of further inquiry---Accused was granted bail accordingly.

Subhan Khan v. The State 2002 SCMR 1797; Jan Muhammad v. Haji Noor Jamal and another 1998 SCMR 500; Muhammad Aslam and another v. The State through A.G. Punjab and another 1997 SCMR 251; Muhammad Safdar v. The State 2007 PCr.LJ 562 and Naveed Masih v. The State and another 2011 PCr.LJ 1198 rel.

Amjad Ali Sahito for Applicant.

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

Date of hearing: 8th June, 2012.

2012 M L D 1702

[Sindh]

Before Shahid Anwar Bajwa, J

RAMESH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-321 of 2012, decided on 2nd July, 2012.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss. 279/322/285/287---Rash driving or riding on a public way, qatl-bis-sabab, negligent conduct with respect to fire or combustible matter, negligent conduct with respect to machinery---Bail, grant of---Accused, who was driver of the van in question, was alleged to have overloaded the van and also allegedly ignored the complaints of the passengers about leakage of gas from the Compressed Natural Gas (CNG) cylinder of the vehicle, which subsequently caught fire, killing the wife and children of the complainant---Contentions of the accused were that punishment prescribed under S. 322, P.P.C. was only Diyat whereas Ss. 279, 285 & 287, P.P.C, were bailable, and that CNG kit was the responsibility of the owner of the vehicle---Validity---Sections of P.P.C under which the accused was charged were either bailable or the punishment prescribed was only Diyat, therefore none of them fell under the prohibitory degree of S. 497, Cr.P.C---Accused was entitled to bail as a matter of right therefore there was no discretion but to grant bail to him---High Court ordered the release of the accused on bail with the observation that both administrative and legislative steps should be taken for providing a more strict regime for regulating CNG based vehicles and most stringent provisions in such regard should be considered.

Tariq Mehmood v. State 2005 YLR 1968; Muhammad Nadeem v. State 1998 MLD 1537; Ahmed Khan v. State 1997 MLD 1591 and Yousuf Khan v. State 2000 PCr.LJ 203 ref.

Waqar Ahmed Laghari for Applicant.

Syed Meeral Shah, Deputy Prosecutor General Sindh for The State.

2012 M L D 1713

[Sindh]

Before Muhammad Tasnim, J

ABDUL NAEEM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 625 of 2011, decided on 17th June, 2011.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail---Assessment of evidence---Principle---Deeper appreciation of the material on record cannot be made at bail stage, but only tentative appreciation thereof is to be made just to find out the prima facie connection of accused with the commission of the offence.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of---Prosecution had associated some private person as witness during the entire process of apprehending the accused and recovering from him the alleged heroin---First memo of arrest had been prepared at the spot without joining any private witness though available and the second memo was prepared after the recovery of capsules containing heroin from the accused four days thereafter without any plausible explanation for such delay---Discrepancy was found in the weight of recovered heroin---According to the challan 780 grams heroin had been recovered, whereas the report of Chemical Examiner showed that recovered substance was 665 grams---Guilt of accused, thus, needed further probe in terms of S.497(2), Cr.P.C.---Case against accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused was admitted to bail in circumstances.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 363; Waheed Raza v. The State 2011 YLR 2760; Muhammad Shahid v. The State 2009 YLR 167; Akhtar Jan v. State 2009 YLR 45; Asghar Ali v. The State 2009 PCr.LJ 660; Ghafoor Ahmed v. The State 2009 YLR 123; Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590 and Nawaz v. The State 2004 YLR 1118 ref.

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

----S. 25---Criminal Procedure Code (V of 1898), S.103---Exclusion of applicability of S.103, Cr.P.C.---Scope---Though private persons are required to witness the recovery of narcotic substance as provided under S.25 of 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.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail, grant of---Further inquiry---Non-association of respectable persons of the locality in recovery proceedings---Effect---Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused---Held, allegations against accused needed further enquiry---Bail was granted.

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

Nasir Mehmood for Applicant.

Hussain Bux Baloch, Special Prosecutor A.N.F. for the State.

2012 M L D 1726

[Sindh]

Before Muhammad Ali Mazhar, J

ZULFIQAR ALI JATOI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-167 of 2012, decided on 11th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/342/337-H(2)/34---Qatl-e-amd, wrongful confinement, hurt by rash or negligent act, common intention---Bail, grant of---Delay in conclusion of trial---Medical ground (Hepatitis-C)---Contentions of the accused were that he was behind bars for more than two years but his trial could not be concluded; that no delay in conclusion of trial had been caused by the accused; that the complainant had filed application under S. 193, Cr.P.C for implicating other accused persons but said application remained pending for a long time and complainant did not press it, which showed his mala fide intention to drag the proceedings, and that the accused was a patient of Hepatitis-C and his proper treatment was not possible in jail premises---Validity---Charge-sheet was submitted against the accused after a lapse of six months---Complainant moved an application under S. 193, Cr.P.C. for joining two more persons as accused but after almost fifteen (15) dates the said application was dismissed for non-prosecution by the Trial Court---Fresh application under S. 193, Cr.P.C, was filed by the complainant after almost eighteen (18) dates, and said application remained pending for almost thirteen (13) dates, and was dismissed by the Trial Court as not pressed---Delay in the trial due to pendency of said applications could not be attributed to the accused---Accused was not produced in court by jail authorities on almost thirteen (13) occasions and this delay also could not be attributed to the accused---Case was adjourned on a few dates due to holidays and leave of presiding officer-Not a single witness had been examined despite numerous dates---Although few dates had been sought by the accused but the entire delay could not be attributed to him---Prosecution had not contended that the accused was previously convicted or was a desperate or hardened criminal-Medical report of the accused showed that he was a patient of Hepatitis-C---Accused was not only entitled to be released on bail on ground of statutory delay but also on medical ground in view of the serious nature of his ailment---Accused was granted bail, in circumstances.

Shabeer v. State 2012 SCMR 354 and Muhammad Jameel Rahi v. D.G. NAB and others 2012 SCMR 552 rel.

Taj Muhammad v. State 2011 PCr.LJ 1910; Abbas v. The State 2000 SCMR 212 and www.wikipedia.org http://www.wikipedia.org ref.

Ghulam Shabir Dayo for Applicant.

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

Date of hearing: 24th May, 2012.

2012 M L D 1744

[Sindh]

Before Muhammad Tasnim, J

GHUFRAN AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.977 of 2011, decided on 8th September, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 324/34---Attempt to commit qatl-e-amd, common intention---Bail, grant of---Allegation against accused was that he hit the injured complainant on his head with a block and co-accused persons caused injuries on the complainant's head with a pistol butt---Validity---Medical report of injured complainant showed that only three minor injuries had been sustained by him---Accused had lodged an F.I.R. against the complainant in the past, and in such circumstances false implication of the accused in the case could not be ruled out---Case against accused required further inquiry in terms of S. 497(2), Cr.P.C and he was admitted to bail, accordingly.

Naheed Afzal Khan for Applicant.

Muhammad Iqbal Awan, A.P.-G. for the State.

2012 M L D 1748

[Sindh]

Before Muhammad Tasnim, J

MUHAMMAD YOUSAF and another---Applicants

Versus

THE STATE----Respondent

Criminal Bail Application No.878 of 2011, decided on 22nd August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/34/109---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, abetment---Bail, grant of---Delay in conclusion of trial---Contention of accused persons that more than two years and seven months had elapsed but their trial had not proceeded till date, and that such delay was not caused by the accused persons---Validity---Examination of the diary sheet of the Trial Court revealed that delay was not attributable to the accused persons---Prosecution had admitted that accused persons were not previously convicted offenders for an offence punishable with death or imprisonment for life or that they were hardened, desperate or dangerous criminals or were accused of an act of terrorism punishable with death or imprisonment for life---Accused persons were admitted to bail on ground of delay in conclusion of their trial.

Ali Jafar for Applicants.

Muntazir Mehdi, A.P.-G. for the State.

Date of hearing: 22nd August, 2011.

2012 M L D 1763

[Sindh]

Before Naimatullah Phulpoto and Salahuddin Panhwar, JJ

MUNAWAR ALI JATOI---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.D-117 of 2009, decided on 23rd August, 2012.

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

---S. 9(b)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4 (2)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Case of spy information----Non-association of private witnesses despite the fact that police had prior spy information and sufficient time to engage witnesses---Original arrival and departure entries of Roznamcha were not produced in court and only copies were provided---Delay of 9 days in sending samples to Chemical Examiner---Police official who had taken samples to Chemical Examiner was not examined by the prosecution---Safe custody of samples before being sent for analysis was not established---Contradictions in evidence of Station House Officer (S.H.O. ) and mashir (police official) with regard to place of recovery of narcotic and manner of arrest of accused---Accused had claimed enmity with police officials, therefore, some corroboration was required for the evidence given by police officials---Appeal was allowed, benefit of doubt was extended to accused and he was acquitted of the charge.

(b) Criminal trial---

---Benefit of doubt---Scope---Where there was the slightest apprehension regarding the truth of the prosecution case, its benefit should be extended to the accused.

Habibullah G. Ghouri for Appellant.

Qazi Muhammad Bux for the State.

Date of hearing: 23rd August, 2012.

2012 M L D 1774

[Sindh]

Before Mushir Alam, C.J. and Imam Bux Baloch, J

TARIQ HUSSAIN---Petitioner

Versus

UNIVERSITY OF KARACHI through Vice Chancellor and 3 others---Respondents

Constitution Petition No.D-2481 of 2010, decided on 21st September, 2011.

Constitution of Pakistan---

----Art.199---Constitutional petition---Educational institution---Admission---Eligibility---Determination---Student (petitioner), who successfully completed the Master's program in question was denied a degree on ground that he was not eligible for admission to the program as he did not have the minimum required marks at time of his graduation---Validity---Admission criteria for the Master's program in question set by the University (respondent) stated that a candidate must have at least secured 45% marks at Intermediate or Graduate/Post Graduate level, but such requirement did not apply to candidates who already possessed a Master's degree therefore, it was clear that already possessing a Master's degree was an independent eligibility for the program in question---Student, in the present case, already possessed a Master's degree when he applied for the program in question---University did not raise any objection or question regarding eligibility of student at any point of time and now that he had earned qualification for the award of a degree, to say that he was not eligible for admission on the basis of his graduation was totally unjustified rather showed mala fide---Student was issued admit/identity card for all the semesters, regularly paid all his fees and ultimately completed the prescribed course and was declared successful by the University (respondent)---Student had earned eligibility to be granted degree for the Master's program in question, which he had successfully completed---Constitutional petition was disposed of accordingly.

Usama Javed v. Chairman HEC 2010 MLD 588; Mehwish Shabbir v. Chief Executive Nishtar Medical College Multan 2008 YLR 57 and Asma Nadeem v. International Islamic University 2002 MLD 290 ref.

Munir Ahmed Malik for Petitioner.

Moin Azhar Siddiqui for Respondents.

Date of hearing: 21st September, 2011.

2012 M L D 1789

[Sindh]

Before Muhammad Tasnim, J

ABDUL RAZZAK alias ZEESHAN and another---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.928 of 2011, decided on 23rd August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 392/34---Robbery, common intention---Bail, grant of---Further inquiry---Allegation against accused and his co-accused was that they threatened the complainant with their weapons and snatched from him Rs.250,000 and two mobile phones---Validity---No recovery of any weapon or snatched article had been effected from the accused---Two prosecution witnesses supported the version in the F.I.R. whereas the third did not fully corroborate the statement of the complainant and stated in his statement under S. 161, Cr.P.C that Rs.500,000 were snatched from the complainant, which amount was different from the amount alleged by the complainant---Arrest of the accused from the spot was disputed and there was also variation in the prosecution story---Previous enmity had been alleged by the accused and his co-accused, therefore, false implication of accused could not be ruled out---Case required further inquiry in terms of S. 497(2), Cr.P.C and, accordingly, accused was admitted to bail.

Abdus Sami for Applicants.

Abdulah Rajput, A.P.-G. for the State.

2012 M L D 1798

[Sindh]

Before Naimatullah Phulpoto, J

SHOAIB---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.420 of 2012, decided on 13th August, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 364/302/34/311/120-B---Kidnapping or abducting in order to murder, qatl-e-amd, common intention, ta'zir after waiver or compounding of right of qisas in qatl-e-amd, concealing design to commit offence punishable with imprisonment if offence be not committed---Bail, grant of---Further inquiry---Co-accused persons allegedly murdered the deceased and abducted his wife from the spot by driving her off in a taxi---Accused, who was driver of the taxi in question, was alleged to have facilitated the co-accused persons in the commission of the offence---Name of accused transpired neither in the F.I.R. nor in the statements of witnesses under S. 161, Cr.P.C.---Abductee had alleged that she was forcibly taken in a car to a different province by accused and co-accused persons but it was strange to note she did not raise and hue and cry on her way, even at petrol pumps---Statement of abductee under S. 164, Cr.P.C. was recorded with an unexplained delay---No allegation against accused was on record about his involvement in the act of murder---No motive was alleged against accused for the commission of offence---No overt act was attributed to accused---Prima facie case against accused appeared to be doubtful with regard to his participation in the case---Case was one of further inquiry and accused was allowed bail accordingly.

Syed Amanullah Shah v. The State PLD 1996 SC 241 rel.

Muhammad Shaheen alias Shan v. The State 2009 PCr.LJ 21 ref.

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

----S.497---Bail---Benefit of doubt---Scope---Benefit of doubt should go to accused even at bail stage.

Rana Hafiz Tanveer Ahmed for Applicant.

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

Date of hearing: 7th August, 2012.

2012 M L D 1809

[Sindh]

Before Shahid Anwar Bajwa and Sadiq Hussain Bhatti, JJ

HABIBULLAH and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. D-60 of 2011, decided on 4th July, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324/353/148/149---West Pakistan Arms Ordinance (XX of 1965), S. 13-D---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-e-amd, assault or criminal forces to deter public servant from discharge of his duty, rioting armed with deadly weapons, possession of illegal weapons, acts of terrorism---Bail, refusal of--- Accused persons belonging to gang of kidnappers---Police encounter---Hostages (abductees) freed---Co-accused apprehended and disclosing names of the accused persons, implicating them in the offence---Contentions of accused persons was that they had been involved in the case on the statement of the co-accused, which was not admissible under the law; that alleged police encounter took place for 30 minutes but no one from either side received any injury, and that statements of alleged abductees were recorded after a delay of 10 days without any plausible explanation---Validity---Act of the accused persons showed that they fired upon the police party and obstructed them from performing their lawful duties---Number of witnesses had witnessed the incident which included police officials and the abductees---Evidence of police officials was also corroborated by the abductees---Accused persons were facing trial in a number of heinous offences---Bail application of the accused persons was dismissed, in circumstances.

2011 MLD 1075 and 2011 YLR 2311 distinguished.

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

----Ss.497 & 498---Bail---Evidence of police officials---Reliance---Scope---Evidence of police officials was as good as that of any private person unless there appeared to be enmity with the police.

Farhad Ali Abro for Applicants.

Shahzada Saleem Nahyoon, A.P.-G. for the State.

Date of hearing: 4th July, 2012.

2012 M L D 1814

[Sindh]

Before Syed Hasan Azhar Siddiqui and Salahuddin Panhwar, JJ

Syed SHARIQ HUSAIN and 2 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Home Department Sindh and 5 others---Respondents

Constitutional Petition No.D-2625 of 2012, decided on 3rd August, 2012.

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

----Ss. 154, 156 & 157---Constitution of Pakistan, Art.199---Constitutional petition---Registration of F.I.R.---Investigation---Powers of High Court to check and interfere in investigation---Scope---High Court could exercise constitutional jurisdiction under Art.199 of the Constitution, if any condition laid down in dictum of Supreme Court in case reported as 2010 SCMR 624, was being violated by Investigating Agency---High Court could not supervise the investigation in any case, that was the purely domain of investigating agency---High Court or any other court had no powers to stop any person from registration of F.I.R.---Accused had no right to be heard before registration of F.I.R.

Ghulam Sarwar Zardari v. Piaro Ali alias Piaro 2010 SCMR 624; Choudhary Shah Muhammad v. Mst. Ramazan Bibi 1998 SCMR 624; Anwar Ahmed Khan v. The State 1996 SCMR 24; Rustam Ali Khan v. Muhammad Hanif 1997 SCMR 2008; Bahadur Khan v. Muhammad Azam 2006 SCMR 373; Riaz Hussain v. The State 1986 SCMR 1934; Liaqat Ali Virk v. Inspector General of Punjab Police PLD 2010 Lah. 224; Suo Motu Case No.18 of 2010 PLD 2011 SC 927 and Syed Ghulam Abbas Shah v. D.I.G. of Police 2001 YLR 186 distinguished.

Muhammad Aslam v. Deputy Commissioner Sialkot 2003 PCr.LJ 56; Muhammad Saleem v. Inspector General of Police PLD 2001 Lah. 474; Messrs Zeenat Manufacturing v. The Secretary Survey, Central Board 1999 SCMR 979; Muhammad Akram v. The District Police Officer 2005 MLD 1600; Haji Noor Ahmed v. Collector Custom Lahore 1999 PCr.LJ 1117; Rana Muhammad Farooque v. Aftab Hussain PLD 2003 Kar. 309; Jehangir v. S.H.O. Police Station Ghazi Abad PLD 1996 598; Mst. Bhaitan v. The State PLD 2005 Kar. 621 and Gul Hassan v. The State PLD 2008 Kar. 567 ref.

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

----S. 392---Criminal Procedure Code (V of 1898), Ss. 154, 156 & 157---Robbery---Transfer of investigation---Complainant lodged F.I.R., but no investigation was carried out, and investigation was transferred to the Crime Branch Police and same was entrusted to Inspector, Crime Branch, with the directions to conclude investigation within seven days---Inspector Crime Branch, without inspection of the place of incident and recording of the statement of witnesses, within three days submitted report under "A" class before Magistrate, with the endorsement that witnesses being not available, due to lack of evidence summary under "A" class could be accepted which proved that Investigating Officer was unaware about the scope of "A" class, according to "Bombay Presidency Police Guide", which was being followed in Sindh, since the days Sindh was part of Bombay Presidency---Investigating Officer in the present case had submitted that witnesses being not available, summary was being submitted---Such conduct of authorities and Investigating Officer fell within the ambit of colourable exercise---No reasons were attributed to justify the transfer of investigation from ordinary Police to Special Police---Transfer orders by police authorities, having no legal sanctity in the eyes of law, same was declared as null and void.

Bombay Presidency Police Guide rel.

Muhammad Haseeb Jamali for Petitioners.

Zia Ahmed Awan for Respondent No.7.

Saifullah, A.A.-G. for Respondents Nos.1 to 6.

Date of hearing: 1st August, 2012.

2012 M L D 1826

[Sindh]

Before Naimatullah Phulpoto, J

FAQEER MUHAMMAD alias HAFIZULLAH JAMALI and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No. S-70 of 2011, decided on 31st July, 2012.

Penal Code (XLV of 1860)---

----Ss.324/353/411---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, dishonestly receiving stolen property---Appreciation of evidence---Allegation of unnatural and unbelievable incident---Non-association of private witnesses---Failure to obtain ballistic report---Accused and co-accused persons (appellants) were alleged to have snatched a motorcycle, whereafter they were identified by the police at a picket and started firing upon the policy party with the intention to kill---Trial court convicted and sentenced the accused and co-accused persons under Ss.324, 353 and 411, P.P.C.---Contentions of accused and co-accused persons were that despite cross-firing with sophisticated weapons, not a single scratch was caused to either party; that they were identified in street light; that person from whom motorcycle was allegedly snatched was not examined at trial; that arrival and departure entries had not been produced in the Trial Court, and that firearm and empties allegedly recovered were not sent to Ballistic Expert for report---Validity---Accused and co-accused allegedly fired at the police from close range but neither any firearm injury was caused to police officials nor any damage was caused to police vehicle---Police had received prior information regarding alleged snatching of motorcycle, therefore, it should have joined independent persons of the locality to act as mashirs---Arrival and departure entries were not produced before the Trial Court---Firearms and bullets were not sent to Ballistic Expert for report---Investigating Officer had admitted that firearms and bullets were not sealed at the spot---Investigation Officer failed to record statement of any independent person from the locality despite the fact that there were hotels, houses and mosque near the place of incident---Mere word of police officials was not sufficient for recording conviction and it was the duty of the court to appreciate evidence in accordance with the law---Appeal was allowed, conviction and sentences recorded by Trial Court were set aside and accused and co-accused persons were acquitted.

Aamir Ali v. State 2009 YLR 2101 rel.

Faiz Muhammad Larik for Appellants.

Altaf Hussain Surahio for the State.

Date of hearing: 25th July, 2012.

2012 M L D 1840

[Sindh]

Before Farooq Ali Channa, J

ZEESHAN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.478 of 2011, decided on 25th July, 2012.

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

----Ss. 302, 324, 353, 393, 397 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, attempt to commit robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Incident had taken place during day time and the complainant having seen both accused from very close range, there was no question of mistaken identity of the accused---Names of other prosecution witnesses, though were not mentioned in the F.I.R., but being the employee of the travelling agency concerned; and brother of the complainant, their presence at the place of incident seemed to be natural without any doubt---No contradiction was noticed in the evidence of prosecution witnesses---F.I.R., had alleged that both accused started firing from their respective weapons; and caused fire shot injuries to complainant and deceased, therefore, both accused were equally responsible of committing the offence in terms of S.34, P.P.C., irrespective of the fact that what role was played by whom in the occurrence---Accused and co-accused had taken active participation in the offence of committing robbery during the course of which one person had lost his life; and other sustained injuries---Both accused were equally responsible to be dealt with in the same manner and thereby guilty of offence irrespective of their role in the incident/ crime---Accused, after the incident, absconded and was declared proclaimed offender after initiating proceedings under Ss.87 & 88, Cr.P.C. and was arrested after a considerable period---Such abscondence of accused seemed to be intentional and deliberate and he being nephew of co-accused, could not claim that he was unaware of the registration of F.I.R. and pendency of trial against him---Defence plea of family dispute between both accused, was not enough to shake the evidence of prosecution witnesses, against whom there existed no enmity and family dispute---No illegality was found in the impugned judgment calling for interference by High Court---Criminal appeal was dismissed, in circumstances.

Ahmed Sher and Zakaullah v. The State PLD 1995 FSC 20; Muhammad Azam and others v. The State 2006 PCr.LJ 62; State v. Asfandyar Wali and 2 others 1982 SCMR 321 and Muhammad Khalil alias Kach v. The State 1997 PCr.LJ 1639 ref.

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

----Art. 22---Identification parade---Evidentiary value---Scope---Identification parade during investigation was mere a piece of evidence collected by Investigating Officer in support of case, but it had no evidentiary value, unless corroborated during trial.

Muhammad Ramzan for Appellant.

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

Date of hearing: 25th July, 2012.

2012 M L D 1864

[Sindh]

Before Syed Zakir Hussain, J

ALI MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.213 of 2006, decided on 15th September, 2010.

Penal Code (XLV of 1860)---

----S. 302---Qatl-e-amd---Appreciation of evidence---Prosecution had advanced two altogether different versions of one and the same incident: In the first instance, wife of deceased as prosecution witness had narrated that the deceased had committed suicide; after 77 days, she had stated that her nephew/accused had committed the murder of the deceased---Police Officer who was cited as prosecution witness in the charge-sheet was not produced in the court to give his evidence---Record of said proceedings was also left unproduced in the evidence---Statement of the complainant was hearsay in nature, which carried not much weight---Lady witness with two different versions of one incident was doubtful as to her being untrustworthy witness of the case, particularly when she too was not eye-witness of the act of the murder in question---Crime weapon, pistol and empties remained in Police Station for the intervening period of its date of securing to that of its dispatch to the Expert---Nothing was available to show as to in whose possession, did the said articles remained, and there appeared nothing ensuring that same remained untampered throughout during the course of their being in Police custody---Ballistic report, in circumstances, was of no avail to the prosecution---Crime weapon being doubtful, was purposeless to the prosecution in circumstances---No blood stained material having been secured from the spot, place of wardat was also doubtful---Evidence of other two witnesses being inordinately delayed, carried no weight---All said reasons were sufficient to make the witness doubtful and untrustworthy---Case being doubtful, impugned judgment was set aside, accused was acquitted of the charge and his immediate release was ordered in the case.

Nasir Mehmood for Appellant.

Abrar Ahmed Khichi, A.P.-G. for the State.

Date of hearing: 15th September, 2010.

2012 M L D 1876

[Sindh]

Before Syed Hasan Azhar Rizvi, J

HIMAT KHAN and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1501 of 2011, decided on 3rd July, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 302/34---Qatl-e-amd, common intention---Bail, grant of---Further inquiry---Allegation against the accused persons was that they murdered the brother of the complainant---Previous enmity existed between the parties---Numerous F.I.Rs. lodged in the past by the parties against each other---No private witnesses associated despite occurrence taking place in broad daylight in a thickly populated area---Prosecution witnesses named in the challan being close relatives of the complainant---Delay of more than hours in lodging F.I.R. not explained---Main accused already granted pre-arrest bail on the plea of alibi---Discrepancy between the statements of eye-witnesses and that of complainant with regard to the number of accused persons present at the spot---Affidavits filed in support of plea of alibi taken by the accused person not to be given deeper appreciation at bail stage but still sufficient material available to make the case of accused persons one of further inquiry---Accused persons were granted bail, in circumstances.

Ajmal Khan v. Liaquat Hayat PLD 1998 SC 97; Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samma 1975 SCMR 219; Aminullah v. The State PLD 1982 SC 429; Muhammad Shahid v. The State 1998 SCMR 217; Sadruddin v. The State 2007 YLR 1667, Tabassum Ali v. The State 2009 YLR 822; Syed Amanullah Shah v. The State PLD 1996 SC 241; Abdul Hayee v. The State 1996 SCMR 555; Naseer Ahmed v. The State PLD 1997 SC 347; Syed Lakhat-e-Hasnain v. The State 2010 SCMR 855; Omer Khan v. Khalid Mehmood 2003 PCr.LJ 1110 and Mst. Zulekha Bibi v. Abdul Samad 1995 PCr.LJ 1730 ref.

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

----S. 497---Bail, grant of---Scope---Reasonable doubt with regard to participation of the accused in the crime and the evidence against him---Effect---Wherever reasonable doubt arose with regard to the participation of an accused person in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail and in such a situation it would be better to keep the accused on bail than in the jail during the trial.

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

----Ss. 497 & 173---Bail---Plea of alibi---Opinion of police on such plea---Reliance---Scope---Opinion of police in respect of plea of alibi taken by the accused was not binding upon the court, but it could be considered for grant of bail, if same was based on sound reasoning.

Amir Mansoob Qureshi for Applicants.

Suleman Badshah for the Complainant.

Muhammad Iqbal Awan, A.P.-G. for the State.

2012 M L D 1889

[Sindh]

Before Syed Hasan Azher Rizvi and Salahuddin Panhwar, JJ

ADIL ALI KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN through Interior Secretary and 10 others---Respondents

Constitutional Petition No. D-307 of 2012, decided on 24th July, 2012.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Recovery of minor son (detenu)---Factual controversy---Petitioner alleged that his minor son had been abducted by respondent, who was mother of the minor---Petitioner sought recovery of his minor son who had been allegedly sent to foreign country---Validity---Alleged abductee was aged about 15 years, who was alleged to have been forcibly taken away by his mother but principal of the school disclosed that respondent and her mother were in touch with minor for quite some time and that a call had been received in school just after start of school---Such shifting of custody of minor by mother or abduction was one of factual controversy and required evidence---High Court refrained in diving into detail of such aspects, as the same was not permissible in constitutional jurisdiction, especially when on same allegations criminal case was pending for adjudication---Petition was dismissed in circumstances.

Suo Motu Case for Recovery of Minor Kids of Mst. Tahira Jabeen 2010 SCMR 1804; Mst. Rehana v. Arshad Khan and others 1991 MLD 1395; Khalida Begum v. Muhammad Altaf 1983 CLC 698; Muhammad Javed Akhtar v. Huma Naz 2000 SCMR 1891; Mst. Khalida Perveen v. Muhammad Sultan Mehmood PLD 2004 SC 1; Muhammad Naseer Humayoon v. Mst Syeda Ummatul Kabir 1987 SCMR 174; Ahmed Sami v. Sadia Ahmed 1996 SCMR 268; Awal Mryam v. Gul Jan 1991 PCr.LJ 717; Natasha Rasheed v. Rashid Zar PLD 2010 Kar. 119; Mst Zenia v. Ahmed Sarwar, PLD 1994 Lah. 577; Zubaida Shehzad v. Muhammad Aslam 2007 MLD 512; Gazala Parveen v. Muhammad Yaseen 2012 PCr.LJ 657; Mst. Nusrat Parveen v. Abdul Gafoor 2011 YLR 1495; Attique Rehman v. Mst. Sadia PLD 2009 Lah. 344; Mst. Raffiat Tariq v. DPO Sanghar 2009 PCr.LJ 118 and Mah Rukh Bajwa v. Aftab Alam 2008 MLD 751 ref.

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

----Ss.22-A, 22-B & 491---Recovery of minor---Res judicata, principal of---Applicability---Justice of peace decided custody of minor in favour of father and thereafter parties reconciled the matter and started their matrimonial life---Later on mother of the minor removed the minor to foreign country without consent of father---Effect---Earlier order passed by Justice of Peace had no legal value under the law as it had lost its legal sanctity being past transaction and the same could not operate as res judicata.

Mst. Razia Rehman v. Station House Officer PLD 2006 SC 533 rel.

Syed Mahmood Alam Rizvi for Petitioner.

Sheikh Liaquat Hussain for Respondents Nos. 8 to 10.

Muhammad Qasim, Standing Counsel for the State.

2012 M L D 1903

[Sindh]

Before Abdul Rasool Memon, J

DHAREL alias KHAMISO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-271 of 2012, decided on 10th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/337-H (2)/147/148/ 149/114---Qatl-e-amd, hurt by rash or negligent act, rioting, rioting armed with deadly weapons, unlawful assembly, abettor present when offence is committed---Bail, refusal of---Belated plea of alibi-Effect---Allegation against the accused was that he was part of an unlawful assembly that committed rioting and he also committed murder of the deceased---Contentions of accused were that he was not present at the scene of the incident and was admitted at a health complex; that there were general allegations of firing against the accused and one of the co-accused, therefore, it was yet to be seen at trial as to whose firing caused death of the deceased; that parties were inimical towards each other as accused's son was murdered by the complainant party in the past, and that two co-accused had been let off by the police while placing their names in Column No.2 of the challan---Validity---F.I.R. was promptly lodged on the same day of the incident---Recovery of empties from place of occurrence supported the role of firing attributed to the accused---Post-mortem report of the deceased showed he had received two fire-arm injuries, which corroborated contents of F.I.R.---Plea of alibi was neither taken by the accused during course of investigation nor before Trial Court during hearing of his bail application---Such plea only appeared to be an afterthought as it was only taken after rejection of bail application by the Trial Court---Bail application was dismissed, in circumstances.

Jaffer v. The State 1980 SCMR 784 and Ahmed v. The State 2007 PCr.LJ 987 ref.

Muhammad Murad Chachar for Applicant.

Muhammad Iqbal Mahar for the Complainant.

Altaf Hussain Surahyo, State counsel.

2012 M L D 1927

[Sindh]

Before Farooq Ali Channa, J

GOHRAM and another---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 364 of 2012, decided on 9th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/114/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, abettor present when offence is committed, rioting, rioting armed with deadly weapons---Bail, refusal of---Accused persons were alleged to have fired at the complainant party resulting in death and injuries caused to the victims---Contentions of the accused persons were that injuries sustained by deceased were specifically attributed to co-accused persons and not to them; that medical evidence and ocular testimony contradicted each other as contents of F.I.R. showed that accused persons fired from their rifles whereas medical certificate revealed that injuries on the person of the deceased were caused with a shotgun; that no crime weapon had been recovered, and that four co-accused persons had already been granted bail---Validity---Although allegations of causing injuries to the deceased were attributed to the co-accused persons but accused persons being members of an unlawful assembly were also facing the charge of committing the murder in prosecution of their common object punishable under S. 149, P.P.C, which provided equal punishment as that of the principal accused---Allegation of causing fire-shot injuries found support from the medical evidence---Opinion of medical officer that injuries to the person of the deceased had been caused by shotgun seemed to be immaterial---Mashirnama of incident showed recovery of empty bullets which supported the version in the F.I.R. that rifles were used in the incident---Victims received their injuries on the front part of their bodies and had exit wound injuries on the back side-Such injuries must have been the result of bullets and not pallets---Non-recovery of crime weapon from the accused would be of no help to accused persons in the presence of ocular testimony which was in line with medical evidence---Reasonable grounds existed for believing that accused persons were involved in the offence---Bail application was dismissed, in circumstances.

Muhammad Mumtaz v. The State 1999 MLD 3302; Ghulam Murtaza v. The State 2011 YLR 1147; Bachal v. The State 2009 PCr.LJ 646; Muhammad Amin alias Irfan and another v. The State 2004 SCMR 1560; Zia Ullah v. The State 2012 MLD 319; Muhammad Mukhtar and others v. The State 1999 MLD 1853; Talib and another v. The State 2012 YLR 509; Allah Ditto v. The State 2011 PCr.LJ 485; Abo ul Hassan and another v. The State 2012 YLR 799 distinguished.

Zahid Shah v. The State 2001 PCr.LJ 134 ref.

Zulfiqar Ali Jalbani for Applicants.

Shahid Ahmed Shaikh, A.P.-G. for the State along with I.O. Abdul Khaliq and Complainant Lakhmeer for Respondent.

Date of hearing: 9th July, 2012.

2012 M L D 1939

[Sindh]

Before Shahid Anwar Bajwa, J

DILDAR and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.850 of 2010, heard on 17th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 364---Qatl-a-amd, abduction---Bail, grant of---Further inquiry---Complainant had alleged that his daughter was forcibly taken away by her husband and his accomplices and since then he had not heard about his daughter; in such like situation, it would be natural for the father to first try to locate his daughter as far as possible---Delay was of no consequence---Such was an incident where murder had not been witnessed by any one and only evidence available was in the nature of last seen evidence--Main person accused of abduction, was husband of the deceased; .it was not a case of simple abduction per se, but at best was a case of husband forcibly taking his wife away with him and accused persons, merely were alleged to be present with the husband of the deceased---Abductee remained for 17 days with the husband and thereafter she was killed---No material whatsoever had been brought forth to establish that accused persons were involved in any way in the murder of the deceased---Case, in circumstances, was that of further inquiry---Accused were admitted to bail, in circumstances.

Ali Gul v. The State 2003 SCMR 201; Ghazi Sarfaraz v. The State 2008 PCr.LJ 1520; Sajid and 2 others v. The State 1998 PCr.LJ 1455; Naseer Ahmed v. The State PLD 1997 SC 347; Abdul Haque alias Qawee v. The State 1996 PCr.LJ 115 and Mst. Shameem Akhtar v. The State 2010 PCr.LJ 135 ref.

Qurban Ali Malano for Applicants.

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

Date of hearing: 17th October, 2011.

2012 M L D 1956

[Sindh]

Before Abdul Rasool Memon, J

SANWAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-667 of 2011, decided on 29th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/337-H (2)/148/149/ 337-F (v)---Attempt to commit qatl-e-amd, hurt by rash or negligent act, rioting armed with deadly weapons, unlawful assembly, ghayr­jaifah-hashimah---Bail, grant of---Further inquiry---No repetition of fire---Injury on non-vital part---Effect---Accused was alleged to have fired at the injured prosecution witness with the intention of murdering him-Alleged motive for the incident was previous enmity between the parties over property---Contentions of the accused were that previous enmity was admitted in the F.I.R.; that police had recommended disposal of case under "B" class; that injured prosecution witness was at his mercy but he did not repeat fire; that injury sustained by the injured had been declared as ghayr-jaifah-hashimah, punishment for which did not fall within the prohibitory clause of S. 497, Cr. P. C, and that injury sustained was not on vital part of the body---Validity---Perusal of F.I.R. showed that all accused persons were armed with weapons but none of them repeated fire, despite the fact that complainant and witnesses were at their mercy---Prima facie, there appeared no intention on part of the accused that he intended to kill the injured prosecution witness---Injury was sustained on non-vital part of the body, which prima facie showed lack of intention to cause qatl-e­amd, therefore, question of applicability of S. 324, P. P. C, would be determined at trial after examining prosecution witnesses---Medical officer had declared the injury as ghayr-jaifah-hashimah, punishment for which did not come under the prohibitory clause of S.497, Cr.P.C---.

Case of accused required further inquiry and accordingly he was released on bail.

Jan Muhammad v. Haji Noor Jamal 1998 SCMR 500 and Saleem Khan v. The State 1999 PCr.LJ 140 ref.

Tariq Bashir v. The State PLD 1995 SC 34 and Umar alias Qaisar v. The State NLR 1996 Criminal 541 rel.

Shamasuddin Abbasi for Applicant.

Muhammad Afzal Jagriani for the Complainant.Miss Rubina Dhamrah, State Counsel.

2012 M L D 1966

[Sindh]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

Syed AZHAR ABBAS RIZVI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.459 and 654 of 2012, decided on 29th August, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 103---Penal, Code (XLV of 1860), Ss. 409/419/420/ 468/471/109/477-A---Criminal breach of trust by public servant, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, falsification of accounts--Bail, grant of---Further inquiry---Benefit of doubt---Unauthorized and fraudulent withdrawal of money from bank account of a company through a stolen cheque---Part of amount withdrawn was allegedly recovered from the possession of accused and co-accused, who were bank employees---Names of accused persons did not transpire in the F.I.R. and no specific role had been assigned to them---Police made no efforts to secure mashirs from the public during time of recovery, which was a violation of S. 103, Cr.P.0 and made the recovery doubtful---Date and time shown in memo of arrest and seizure memo showed that at. the time of recovery of cash made from house of accused, co-accused was already with the investigation agency, which created doubts---Investigation agency searched house of accused and made the alleged recovery of cash, but strangely did not arrest the accused, which created doubt, benefit of which had to go to the accused even at bail stage---Seizure memo indicated that recovered cash was not sealed at the spot---Case required further inquiry---Accused and co-accused were released on bail accordingly.

PLD 1997 SC 408 rel.

1999 PCr.LJ 483; 1997 PCr.LJ 1340; PLJ 2003 Cr.C. (Lahore) 788; PLD 1998 Lah. 35; 1973 PCr.LJ 205; 1999 MLD 1618; 1974 PCr.LJ 137; PLD 2004 Lah. 767; 2008 PCr.LJ 1444; 1996 PCr.LJ (FSC) 181; 2005 SD 258(sic); PLD 1994 (FSC) 24; 2003 YLR (Pesh) 163; 1992 MLD 2205; 1999 PCr.LJ 1546 and PLD 1976 Lah. 35 ref.

A.K. Qureshi and Bhajandas Tehwani for Applicants.

Asif Ali Mangi, Standing Counsel for the State.

Date of hearing: 16th August, 2012.

2012 M L D 1986

[Sindh]

Before Munib Akhtar and Riazat Ali Sahar, JJ

MOAZZAM alias MOAZZAN---Applicant , Versus

THE STATE---Respondent

Criminal Bail Application No.D-20 of 2012, decided on 7th August, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Kidnapping or abduction for extorting property, valuable security etc., common intention, acts of terrorism---Bail, grant of---Accused and co-accused persons allegedly abducted the complainant's son (abductee) for ransom---Abductee was voluntarily released and recorded his statements under Ss.161 & 164, Cr.P.0 on basis of which accused was arrested---Name of accused did not transpire in the F.LR.---Abductee did not disclose the name of accused in his statements under Ss. 161 & 164, Cr.P.C---No identification parade was conducted---No incriminating article was recovered from possession of accused- No ransom had been paid to anyone---Only piece of evidence against accused was statements of prosecution witnesses under S. 161, Cr. P. C whereby they implicated the accused---Said statements under S. 161, Cr. P. C could be considered at time of trial as they had no evidentiary value at bail stage---Challan against accused had been submitted and he was no more required for further investigation---Accused was allowed bail in circumstances.

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

---Ss. 161 & 497---Bail---Statement of witnesses under S. 161, Cr. P.C---Evidentiary value---Such statement, prima facie, had no evidentiary value at bail stage.

Syed Tarique Ahmed Shah for Applicant. Shahzado Saleem, A.P.-G. for the State.

Date of hearing: 7th August, 2012.

2012 M L D 1

[Lahore]

Before Sagheer Ahmad Qadri and Sayyed Mazahar Ali Akbar Naqvi, JJ

Master ABBAS KHAN---Appellant

Versus

Subedar SIKANDAR KHAN---Respondent

Regular First Appeal No. 72 of 2001, heard on 20th September, 2011.

(a) Tort---

----Malicious prosecution---Suit for damages---Maintainability---Scope---Acquittal of accused of charges by extending him benefit of doubt by criminal court---Benefit of doubt---Scope---Such acquittal of accused would not bring his case within ambit of malicious prosecution entitling him to claim damages from complainant---Rationale behind the proposition stated.

If the accused is acquitted of the charges while extending benefit of doubt, he cannot claim damages. The rationale behind the same is that it is a cardinal principle of administration of criminal justice which is a basic norm of Criminal Jurisprudence that you can acquit one hundred guilty, but cannot convict one innocent person. The same principle has also been given much credence in Islamic Jurisprudence as well. As far as Islamic Jurisprudence is concerned, the word of benefit of doubt has been entrusted with more force as compared to one as stated above. In the verse of Holy Qur'an:

Despite the fact that the word "Adal" has been used, which is more comprehensive in its composition, but still the word "Ihsan" has been added, which clearly depicts that in Islam, the element of mercy has attained very high value and the same on its analogical interpretation be termed as what has been stated above and which is cardinal principle of English and Latin jurisprudence.

If a person is acquitted of the charges by extending the benefit of doubt, it does not mean that involvement of accused was an outcome of malice on the part of the complainant; rather the same would be deficient to convict as an abundant caution, because liberty of a person is an inalienable right, which cannot be snatched and if anything comes in favour of the accused, that is to be extended in his favour as a matter of right, therefore, mere acquittal of accused from the criminal case does not bring his case within the ambit of malicious prosecution.

Altaf Gohar v. Wajid Shams-ul-Hassan PLD 1981 Kar. 515; Muhammad Akram v. Mst. Farman B PLD 1990 SC 28; Syed Ahmed Saeed Kirmani v. Messrs Muslim Commercial Bank Ltd. Islamabad 1993 SCMR 441; Muhammad Yousaf v. Syed Gayur Hussain Shah 1993 SCMR 1185; Sufi Muhammad Ishaque v. Metropolitan Corporation Lahore through its Mayor PLD 1996 SC 737; Sub. (Retd.) Fazale Rahim v. Rub Nawaz 1999 SCMR 700 and United Bank Ltd. v. Raja Ghulam Hussain and others 1999 SCMR 734 ref.

Government of the Punjab through Secretary, Health Department, Lahore v. Salamat Ali Khan PLD 1991 SC 699; Sher Hassan v. The State PLD 1959 SC (Pak) 480; Sadaruz Zaman v. State 1990 SCMR 1277; Feroze Khan v. Fateh Khan and 2 others 1991 SCMR 2220 and Mahmood Akhtar v. The Muslim Commercial Bank Ltd. and another PLD 1992 SC 240 rel.

(b) Criminal trial ---

----Benefit of doubt---Scope.

(c) Precedent---

----Each and every case having its own facts would be dealt with keeping in view such facts independently.

Ch. Afrasiab Khan for Appellant.

Sardar Muhammad Zameer for Respondent.

Date of hearing: 20th September, 2011.

2012 M L D 14

[Lahore]

Before Asad Munir, J

AMJAD ALI and another---Petitioners

Versus

Mst. SAMARA YASMEEN and 2 others---Respondents

Writ Petition No.2066 of 2007, decided on 21st September, 2011.

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

----S. 5, Sched. & S.17---Qanun-e-Shahadat (10 of 1984), Art. 33---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dower in shape of gold ornaments weighing 2 tolas fixed on 18-4-2004---Parties agreeing to refer dispute to their named Referee and accept his decision on oath to be binding on them---Appointment of Referee by Family Court on the basis of such agreement of parties---Filing of Salsi Faisla by Referee in favour of plaintiff---Suit decreed by Family Court on 24-11-2005 for recovery of Rs.18,000 as value of such gold ornaments upheld by Appellate Court---Defendant's plea that Family Court could not appoint Referee due to non-applicability of Qanun-e-Shahadat, 1984 to family suit in view of S. 17 of West Pakistan Family Courts Act, 1964; and that under Art. 33 of Qanun-e-Shahadat, 1984, a Referee could give only an information, but not a decision, and if he gave a decision, then same would be treated as an award and dealt with under provisions of Arbitration Act, 1940 allowing parties to file their objection thereto---Validity---West Pakistan Family Court Acts, 1964 did not contain any provision regarding allowing or prohibiting appointment of a Referee---Family Court, for purpose of settlement of family disputes, could adopt any procedure not expressly barred or prohibited by law---Principles sans technicalities embodied C.P.C., and Qanun-e-Shahadat, 1984 could be applied by Family Court to advance ends of justice in absence of any conflict or inconsistency with provisions of West Pakistan Family Courts Act, 1964---Referee's act of acquiring further information by hearing parties could not vitiate his statement or decision---Statement or decision of Referee, if given on basis of his own personal knowledge without hearing parties, could be challenged by a party adversely affected thereby for failing to hear him---Family Court on its own had not appointed Referee, but had appointed him on express consent and desire of both parties having agreed to abide by his decision---Referee having relations with parties had based his decision on his own knowledge as well as admission and statements of parties---Impugned judgments could not be challenged---Valuation of such gold ornaments fixed by Family Court did not reflect current price of gold, which defendant was liable to pay to plaintiff---High Court dismissed constitutional petition while modifying impugned judgments by declaring plaintiff to be entitled to recover current price of such gold from defendant.

Ghulam Farid Khan v. Muhammad Hanif Khan and another 1990 SCMR 763; Nazir Ahmad and others v. Muhammad Qasim and others 2004 SCMR 1292; Muhammad Akram v. Mst. Hajra Bibi and 2 others PLD 2007 Lah. 515; Mst. Sharif Bibi and another v. Syed Muhammad Nawaz Shah and others 2008 SCMR 1702; Mst. Lalan v. Noor Muhammad and 12 others 1994 SCMR 1771; Muhammad Arif and others v. Farrukh Hafeez 2005 YLR 3106; Haji Anwar Ali and others v. Bashir Ahmad 2002 CLC 421; Mehr Din and 2 others v. Siraj Din and 2 others PLD 1980 Baghdad-ul-Jadid 45; Abdul Majid v. Judge Family Court, Kehror Pacca District Lodhran and 2 others 2003 YLR 884 and Shahid Raza v. Dr. Fauzia Shaheen and 2 others 203 MLD 1212 ref.

Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95; Ejaz Mahmood v. Mst. Humaira and another 1983 CLC 3305; Mirza Shahid Baig v. Lubna Riaz and 2 others 2004 CLC 1545; Abdul Majid v. Judge Family Court Karore Pacca and 2 others 2003 YLR 884; Akhtar Ali Said Bcha v. Mst. Naheed Bibi PLD 2003 Pesh. 63; Mst. Sharif Bibi and another v. Syed Muhammad Nawaz Shah and others 2008 SCMR 1702 and S.E. Makudam Mahommad T. v. Mahommad Sheikh Abdul Kadir and another AIR 1936 Madras 856 rel.

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

----S. 5 & Sched.---Civil Procedure Code (V of 1908), S. 9---Constitution of Pakistan Art. 199---Constitutional petition---Suit by wife for recovery of Rs. 2,00,000 as compensation (in case of divorce) on basis of agreement and promissory note---Execution of agreement between parties and promissory note in favour of plaintiff at time of marriage making defendant liable to pay such compensation in case of divorcing plaintiff or contracting second marriage without her permission---Filing of such suit after defendant divorced the plaintiff---Reference of dispute to Referee by Family Court at request of parties---Filing of Salsi Faisla by Referee in favour of plaintiff---Decree passed by Family Court upheld by Appellate Court---Validity---Court lacking jurisdiction under law could not be vested with same with consent of parties---Neither Family Court had jurisdiction nor consent of parties could vest the court with jurisdiction to try such suit, which could only be tried by Civil Court of ordinary jurisdiction---High Court set aside impugned judgments/decrees in circumstances.

(c) Jurisdiction---

----Court lacking jurisdiction under law could not be vested with same with consent of parties.

A.G. Tariq chaudhry for Petitioner.

Riasat Ali for Respondent No.1.

2012 M L D 53

[Lahore]

Before Altaf Ibrahim Qureshi and Abdus Sattar Asghar, JJ

MUHAMMAD SADIQ---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeals Nos.210-J, 225 of 2008 and M.R. No.48 of 2009, heard on 13th September, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Daylight occurrence and parties were well known to each other---Accused was nominated in the promptly lodged F.I.R. with specific attribution of the fatal firearm injuries to the deceased, which were verified in postmortem report and furnished full corroboration to the ocular account---Complainant/eye-witness, a real brother of the deceased was a natural witness, who had furnished reasonable and probable cause of his presence at the time and place of occurrence---Other eye-witness was nephew of the deceased and the complainant and relative of accused---Said witness though was resident of other village, situated at some distance from the place of occurrence, but he had furnished a reasonable and probable cause of his presence at the time and place of occurrence---Details of the occurrence, as alleged by the complainant, were fully corroborated by prosecution witness; his testimony in that regard was in line with the prosecution version---Ocular account produced by the prosecution bearing inherent worth and intrinsic value, could safely be relied upon---Despite lengthy searching cross-examination upon the prosecution witnesses, nothing material elicited in favour of the defence---Crime empties recovered from the spot had been matched with the offence weapon, recovered from accused vide report of the Forensic Science Laboratory---Ocular account was fully corroborated by medical evidence and the recoveries made were sufficient reliable incriminating material to connect accused with murder of deceased beyond any shadow of doubt---Motive of the occurrence, had been reflected in the F.I.R. through the mouth of accused himself, wherein accused had killed the deceased on account of Ghairat and family honour i.e. as accused had suspicion or belief that deceased had developed illicit relations with his wife---Prosecution, in circumstances, had brought the guilt home to accused with regard to murder of deceased---Conviction of accused under S.302(b), P.P.C. was maintained, but the sentence of death awarded to accused was modified into the sentence of imprisonment for life---Accused was also given benefit of S.382-B, Cr.P.C.---With the said modifications in the sentence appeal was dismissed, in circumstances.

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

----S.302(b)---Criminal Procedure Code (V of 1898), S. 417(2-A)---Appeal against acquittal---Benefit of doubt---Record showed that co-accused had been found innocent in the police investigation and was challaned in Column No.2 of the report under S.173, Cr.P.C.---Complainant side had never questioned the findings of the police investigation before any higher authority---No overt act or injury to the deceased was attributed to said co-accused; his implication in the case appeared to be result of throwing a wider net to involve him in the case---Principle of 'falsus in uno falsus in omni bus' was alien to the criminal jurisprudence being followed in Pakistan---Testimonies of the complainant/eye-witnesses, with regard to implication of co-accused were exceptionable under the principle of separation of "grain from the chaff"---Trial Court had rightly appraised the ocular account of the prosecution, while granting acquittal to accused, giving benefit of doubt---Findings of the Trial Court in that regard, did not call for any interference.

Malik Sadiq Mehmood Khuram for Appellant.

Muhammad Ali Shahab, D.P.-G. for Respondent.

Hafiz Shahid Nadeem Kahlon for Respondents No.2.

Date of hearing: 13th September, 2011.

2012 M L D 69

[Lahore]

Before Kh. Imtiaz Ahmad, J

GHULAM HUSSAIN through Legal theirs---Appellants

Versus

KHADIM HUSSAIN---Respondent

R.S.A. No.102 of 2005, decided on 2nd May, 2011.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 19 & 24---Specific Relief Act (I of 1877), S. 42---Suit for declaration and permanent Injunction---Grant of proprietary rights in State land to plaintiff through registered sale deed---Transfer of such land by plaintiff through gift mutation within five years of such grant without prior approval of Board of Revenue---Cancellation of gift mutation by Authority due to such transfer---Suit decreed by Trial Court was dismissed by Appellate Court---Validity---Restriction on transfer of such land within five years without permission of the Board imposed through Notification No. 3215-79-2973-C-II was not part of such original sale deed, but was added thereto subsequently at its end after signatures through typing as same did not bear signatures of any authority---Collector under S. 24 of Colonization of Government Lands (Punjab) Act, 1912 could proceed against a grantee for his failure to perform or commit breach of any terms or conditions of his grant either by imposing penalty not exceeding Rs. 5,000 or ordering resumption of tenancy---Revenue authorities had no jurisdiction to cancel mutation of gift made by plaintiff/original allottee---Such restriction on alienation could not be imposed upon person having been granted proprietary rights---High Court set aside impugned judgment/ decree and restored that passed by Trial Court.

2003 SCMR 286; PLD 2003 SC 688; PLD 2009 Lah. 407; PLD 1965 SC 15 and PLD 1986 SC 519 ref.

Abdul Rashid v. Member Board of Revenue and others (in Writ Petition No.1560 of 2006) rel.

Malik Javed Akhtar Wains for Appellants.

Syed Asif Raza Gillani for Respondents.

Date of hearing: 29th April, 2011.

2012 M L D 78

[Lahore]

Before Malik Shahzad Ahmed Khan, J

Malik YARAN KHAN---Petitioner

Versus

CHIEF LAND COMMISSIONER, PUNJAB, LAHORE---Respondent

Writ Petition No.3102 of 2006, decided on 9th September, 2011.

(a) Land Reforms Regulation, 1972 (M.L.R. 115)---

----Paras 7 & 13---Constitution of Pakistan, Art. 199---Constitutional petition---Order of resumption of excess land in year 1984 confirmed in year 1986 by Land Commissioner---Dismissal of revision before Chief Land Commissioner filed after sixteen (16) years of passing of resumption order---Petitioner's plea that provisions of Land Reforms Regulations, 1972 about resumption of land had been declared as un-Islamic by Supreme Court vide judgment reported as PLD 1990 SC 99, thus, question of limitation would not arise against resumption order and resumed land was available till target date i.e. 23-3-1990 fixed in such judgment, thus, same was liable to be returned to him---Validity---Petitioner had complete knowledge about resumption order and had not been condemned unheard---Petitioner had not given any plausible explanation for such delay, which could not be condoned merely on ground that resumption order was void---Decisive steps regarding resumption of petitioner's land had been taken much prior to such target date fixed in the Supreme Court judgment---Petitioner could not be returned such land as the Supreme Court judgment had no retrospective effect---High Court dismissed constitutional petition in circumstances.

Sardar Muhammad Jafar Khan Leghari v. Balochistan Land Commissioner, Quetta through its Secretary and others 1997 MLD 1934; Qazalbash Waqf and others v. Chief Land Commissioner, Punjab Lahore and others PLD 1990 SC 99; Aacher and 5 others v. Dur Muhammad Usto and 8 others 2002 SCMR 958; Chief Land Commissioner Punjab and others v. Chief Administration of Auqaf, Punjab PLD 1998 SC 132; Mst. Ulfat Jan and 3 others v. Deputy Land Commissioner Bahawalpur 2001 YLR 1539 and Begum Syeda Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914 ref.

Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99; Sardar Muhammad Jaffar Khan Leghari and others v. Balochistan Land Commissioner, Quetta through Secretary and others 1997 MLD 1934; Shah Jehan Khan Abbasi v. Deputy Land Commissioner, Bahawalpur and another 2006 SCMR 771 and Mst. Ulfat Jan and 3 others v. Deputy Land Commissioner Bahawalpur and 9 others 2001 YLR 1539 rel.

(b) Void order---

----Void order, if created certain consequences, must be challenged within shortest possible time by aggrieved person---Principles.

Void order is only a type of an illegal order, and if it has created certain consequences, an aggrieved person must get rid of it within the shortest possible time. If it is accepted that no limitation runs against void order, then there may not be any limitation at all to challenge an illegal order by describing it as a void order.

Begum Syeda Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914 ref.

Mujeeb-ur-Rehman Kiani for Petitioner.

Rashif Hafeez, A.A.-G. for the State.

2012 M L D 95

[Lahore]

Before Mamoon Rashid Sheikh, J

ALLIED BANK LTD.---Petitioner

Versus

SECURITY ORGANIZATION SYSTEM PAKISTAN (PVT.) LTD.---Respondent

Civil Revision No.581 of 2011, decided on 13th July, 2011.

Arbitration Act (X of 1940)---

----S.20---Civil Procedure Code (V of 1908), S. 20(c)---Reference to arbitration---Territorial jurisdiction---Determination---Plaintiff filed application under S.20 of Arbitration Act, 1940, before court at place "M"---Defendant assailed the application on the ground that such application could only be filed at place "K"---Validity---Provision of S.20(c), C.P.C. provided that civil courts within whose territorial jurisdiction the cause of action wholly or partly had arisen could exercise jurisdiction in the matter---Agreement between the parties was executed at place "M" and plaintiff was to render services all over Pakistan including place "M"---Part of cause of action having arisen at place "M", civil courts at place "M" were vested with territorial jurisdiction to adjudicate upon the matter---High Court declined to interfere in the order passed by Lower Appellate Court---Revision was dismissed in circumstances.

Cementation Intrafor and others v. Indus Valley 1989 MLD 4906; Hitachi Limited and another v. Rupali Polyester and others 1998 SCMR 1618; Special Communication Organization through Director-General, Rawalpindi v. Messrs Ibeel (Pvt.) Ltd., Lahore 2007 CLC 248 and Baig and Co. v. The Province of West Pakistan and others PLD 1969 Lah. 453 ref.

Malik Muhammad Riaz Aora for Petitioner.

Ch. Abdul Sattar Goraya for Respondent.

2012 M L D 108

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

Haji MUHAMMAD SAEED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE---Respondent

Writ Petition No.5740 of 2011, heard on 26th September, 2011.

Punjab Rented Premises Act (VII of 2009)----

----Ss. 5, 10 & 15---Specific Relief Act (I of 1877), S. 12---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Execution of sale agreement by landlord in favour of tenant after entering into tenancy agreement---Tenant's application for grant of leave to defend ejectment petition on ground of pendency of his civil suit for specific performance of sale agreement---Order of Rent Tribunal dismissing leave application and passing ejectment order upheld by Appellate authority---Validity---Without revoking tenancy agreement in manner provided under Punjab Rented Premises Act, 2009, sale agreement would have no bar and effect upon un-denied tenancy agreement and would not affect relationship of landlord and tenant between the parties---Tenant had not moved Rent Tribunal in writing for revoking tenancy, thus, he could not take benefit of sale agreement yet to be proved before competent civil court---Ejectment proceedings could not be stayed till decision of such suit---Tenant had to surrender possession of demised premises to landlord, and if tenant later on succeeded in obtaining decree in such suit, then he might pray for restoration of its possession---High Court dismissed constitutional petition, in circumstances.

Shahid Zaheer Syed for Petitioner.

Sh. Naveed Shaharyar for Respondent No.3.

Date of hearing: 26th September, 2011.

2012 M L D 114

[Lahore]

Before Abdus Sattar Asghar, J

M. SHARIF---Petitioner

Versus

S.H.O. and others---Respondents

Writ Petition No.3487 of 2011/BWP, decided on 13th September, 2011.

Criminal Procedure Code (V of 1898)---

----Ss.195 & 561-A---Penal Code (XLV of 1860), S. 188---Constitution of Pakistan, Art.199---Constitutional petition---Disobedience to order duly promulgated by public servant---Quashing of F.I.R.---Even, if the offence under S.188, P.P.C. had been declared cognizable, the fact would remain that S.195(1)(a), Cr.P.C., had not provided that no court was competent to take cognizance of the offence under Ss.172 to 188, P.P.C., unless a complaint in writing was made by the public servant concerned or by some other public servant to whom he was subordinate---F.I.R. was lodged on the statement of private person---Registration of impugned F.I.R., in circumstances was violative to provision of S.195(1)(a), Cr.P.C. and was void ab initio---Mere forwarding of challan to the Trial Court was no hurdle in quashing of F.I.R. lodged violative to provisions of S.195(1)(a), Cr.P.C.

Rao Nasir Mahmood Khan for Petitioner.

Mehr Muhammad Iqbal, A.A.-G. and Shaukat Ali A.S.-I.

2012 M L D 120

[Lahore]

Before Muhammad Qasim Khan and Mehmood Maqbool Bajwa, JJ

SHABBIR and 5 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3216-B of 2011, decided on 25th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365-A & 201---Anti-Terrorism Act (XXVII of 1997), S.7---Abduction, causing disappearance of evidence of offence and act of terrorism---Bail, grant of---Supplementary statement---Value---Scope---Accused were not nominated in the F.I.R. and were implicated by way of supplementary statement made by complainant which was second in series and that too made after six months---Evidentiary value of supplementary statement was always subject to legal reservation---Said supplementary statement did not disclose source of information in order to connect accused persons with the offences under which accused were charged---Abductees in their respective statements also did not attribute any overt act to accused persons---Nothing was recovered at the instance of accused persons---Co-accused who was also implicated in the second supplementary statement having same role, was admitted to bail by the High Court---Registration of case under the provisions of the Anti-Terrorism Act, 1997, by itself was not sufficient to decline bail in the absence of sufficient incriminating evidence---Accused were no more required---Further detention of accused, in circumstances, would not serve any useful purpose as the bail could not be withheld as punishment---Accused were admitted to bail, in circumstances.

Abid Hussain Bhutta for Petitioners.

Malik Muhammad Jafar, D.P.-G.

Zafar Khan S.I. with record.

2012 M L D 128

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

ALLAH BAKHSH and 2 others---Petitioners

Versus

RAHIM BAKHSH through L.Rs.. and 7 others---Respondents

Civil Revision No.1283 of 1996, heard on 6th July, 2011.

Civil Procedure Code (V of 1908)---

----O. XLI, R.25---Remand of case---Scope---Appellate Court under R.25, O.XLI, C.P.C., was fully empowered to remand the case after framing of issues; where it appeared to the Appellate Court that the Trial Court had omitted to frame proper issues; or determine any question of fact essential to the right decision of the case---Order XLI, R.25 at the same time had provided that the Trial Court, on remand, would try such issues, return the evidence to the Appellate Court along with its findings---Appellate Court was not justified to direct the Trial Court to decide the matter afresh on all issues---Remand should not be ordered in routine and where evidence on record was sufficient for Appellate Court to pronounce judgment and deal with the matter, remand of case for fresh decision to lower court was not necessary---Appellate Court was not justified to frame additional issue, which was beyond the pleadings of the parties and the controversy between the parties already covered by the issues framed in the suit by the Trial Court---High Court remanded the case with observation that appeal by the defendants/respondents would be deemed pending before the Appellate Court below, which would decide the same expeditiously.

2007 YLR 2870; 2004 CLC 1331; 1993 MLD 1333; 2008 SCMR 1384; 1999 SCMR 786; 1998 SCMR 724 and PLD 1995 (sic) P.629 ref.

United Bank Ltd. v. Mrs. Bilquees Begum and 3 others 1988 CLC 1613; Badarul Hassan Nizami and 4 others v. Muhammad Sultan Khan through Legal Heirs 1994 SCMR 669 and Arshad Ameen v. Messrs Swiss Bakery and others 1993 SCMR 216 rel.

Islam Ali Qureshi for Petitioners.

Ch. Abdul Hakeem for Respondents Nos.2 to 8.

Date of hearing: 6th July, 2011.

2012 M L D 179

[Lahore]

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

MANZOOR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.283-J and Murder Reference No.131 of 2006, heard on 21st February, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Story narrated in the F.I.R. by the complainant, did not inspire confidence---Place of occurrence was neither the residence nor business place of the eye-witnesses and reason given by them for their presence at the place of occurrence, was neither natural nor probable---Place wherefrom blood stained earth was taken into possession was not mentioned---Contention of counsel for accused that the F.I.R. was registered after preparation of Inquest Report, appeared to be correct, because the story given in the F.I.R. and in the Inquest Report was altogether different---Statement of both prosecution witnesses, could not be believed---Over-writing was noticed on the date of recovery of chhurri, coupled with the fact that report of Serologist was not available on the record to show that the blood on the chhurri was of human origin---Recovery of chhurri, in circumstances was of no avail to the prosecution---Motive part of the prosecution case also remained un-substantiated---Facts and circumstances of the case had created doubts in the prosecution case; and it was a settled and universally recognized principle of law that convictions must be based on unimpeachable evidence and certainty of guilt; and any doubt arising in the prosecution case must be resolved in favour of accused---Prosecution having failed to prove its case against accused beyond any shadow of doubt, impugned judgment was set aside and accused was acquitted from the charge by extending him the benefit of doubt and he was ordered to be released in circumstances.

Muhammad Khan and another v. The State 1999 SCMR 1220; Muhammad Akram v. The State 2009 SCMR 230 and Ayub Masih v. The State PLD 2002 SC 11048 rel.

(b) Criminal trial---

----Appreciation of evidence---To believe or disbelieve a witness all depended upon the intrinsic value of his statement---Interested witness, in every criminal case, would be disbelieved or believed was not a universal principle---Statement of a person and not the person himself was to be seen and adjudged by the court.

Abid Ali and 2 others v. The State 2011 SCMR 208 rel.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Medical evidence---Medical evidence could confirm ocular account with regard to seat of injuries, their duration, nature of injuries and kind of weapon, with which those injuries were caused, but the injuries could not tell the name of its inflictor.

Haider Rasool Mirza, Defence Counsel at State expense for Appellant.

Ch. Muhammad Mustafa, D.P.G. for the State.

Rana Zahid Iqbal for the Complainant.

Date of hearing: 21st February, 2011.

2012 M L D 209

[Lahore]

Before Ch. Muhammad Younis, J

MUHAMMAD EJAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.371 of 2010, decided on 2nd June, 2011.

Penal Code (XLV of 1860)---

----Ss. 302/109/148/149---Qatl-e-amd---Defective and dishonest investigation of the State case by the police had necessitated the filing of a private complaint, which had been dismissed by the Trial Court vide impugned order---Validity---Trial Court had erred in law by summoning the record of State case and dismissing the private complaint relying on the proceedings conducted therein by the police, which had been disputed by the complainant having not been done fairly and honestly---Trial Court could not brush aside the cursory evidence of the complainant, rather it was obligatory on the Trial Court to make a tentative assessment of the same---Trial Court could not find faults with the private complaint by comparing the same with the police proceedings, which were never accepted by the complainant as honest---Opinion regarding the commission of any offence by the accused must have been formed by the Trial Court confining itself to the cursory evidence adduced by the complainant and the evidence produced before the Judicial Magistrate in private complaint during inquiry under S.202, Cr.P.C.---Private complaint could not be dismissed outrightly for want of incriminating material, when it was supported by the statement of the complainant as well as the postmortem report of the accused and the statements of the three other witnesses---Delay in lodging the private complaint could not be fatal in the given circumstances---Petition for change of investigation was also pending before the competent forum---Trial Court on one hand had dismissed the private complaint, whereas it was proceeding with the State case in which supplementary challan was yet to be submitted after reinvestigation, if ordered by the Board---Trial Court, thus, had caused grave miscarriage of justice and serious prejudice to the rights of the complainant---Impugned order was, consequently, set aside and the private complaint was remanded to Trial Court for fresh decision in the light of above observations strictly in accordance with law---Petition was allowed accordingly.

Munawar Ali v. Ali Dost and others 2008 SCMR 853; Ahmed Ali v The State 2007 PCr.LJ 372 and Muhammad Zulfiqar v. Muhammad Aslam and 7 others 2003 PCr.LJ 1442 ref

Mehr Allah Bakhsh Hiraj for Petitioner

Anwar Ali, DPP for the State.

02012 M L D 216

[Lahore]

Before Malik Shahzad Ahmed Khan, J

Mst. TALAT SHAHEEN and others---Petitioners

Versus

MUHAMMAD IBRAR and others---Respondents

Writ Petition No.432 of 2011, decided on 9th September, 2011.

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

----S. 5, Sched. & S.7---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance, dowry articles, etc.---Production of documents as additional evidence---Scope---Plaintiffs moved an application for submission of documents as additional evidence, in order to prove the monthly income and financial status of the defendant, during the trial of the suit---Said application was dismissed vide impugned order on the ground that documents intended to be produced, were neither appended with the plaint nor were relied upon by the plaintiffs in the list of reliance---Family Court under first proviso to S.7(ii) of West Pakistan Family Courts Act, 1964 was possessed with the powers to allow any document to be produced, which was expedient and just for the fair administration of justice---Additional evidence which was necessary for just and fair decision of the case, could be allowed at any stage of the case---Documents intended to be produced by the plaintiffs were expedient and important for the just decision of the case---Judge Family Court had not exercised his jurisdiction properly while passing the impugned order and dismissed the application by the plaintiffs on the ground that they did not append said documents with the plaint at the time of filing the suit---Impugned judgment of the Judge Family Court, being illegal and void was set aside and the plaintiffs were permitted to produce additional evidence, in circumstances.

Mst. Faiza Firdous v. Ghulam Sabir 2002 CLC 1801 and Zar Wali Shah v. Yousaf Ali Shah and others 1992 SCMR 1778 rel.

Nemo for Petitioner

Khawaja Hassan Riaz for Respondent No.1

2012 M L D 222

[Lahore]

Before Muhammad Anwaarul Haq, J

SIKANDAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.4630/B of 2010, decided on 2nd March, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365/302/201/109/148/149---Abduction, qatl-e-amd---Bail, grant of---Case was initially registered under S.365, P.P.C. and Ss.302, 201, 109, 148 and 149, P.P.C. had been added subsequently---Accused had already been allowed bail under S.365, P.P.C. by Trial Court---F.I.R. had been lodged after a delay of three years---No incriminating evidence was, statedly, available on the file against the accused---Co-accused, whose case was at par with the accused, had been granted bail by Trial Court---Complainant, father of the deceased, present in the court, did not oppose the grant of bail to accused---State also did not oppose the bail petition in view of the circumstances---Accused was admitted to bail, in circumstances.

Abdul Aziz Khan Niazi for Petitioner

Ch. Muhammad Akbar, Deputy Prosecutor General for the State.

Shahab-ud-Din for the Complainant

Wazir Ali, S.-I., with record

2012 M L D 232

[Lahore]

Before Malik Shahzad Ahmad Khan, J

RIAZ JAFAR NATIQ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 8167-B of 2011, decided on 21st July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, refusal of---Disputed cheque which was dishonoured on presentation, was issued by accused who was named in the F.I.R.---Sufficient material was available on record to connect accused with the alleged offence---Accused had issued four cheques and out of those four cheques, two had been dishonoured on presentation which had shown that accused was in the habit of repeating the same offence---Accused remained fugitive from law---Grant of bail in offence, which did not fall within the ambit of prohibitory clause of S.497, Cr.P.C., was a rule and refusal was an exception, but, in view of facts of the case, case of accused fell under the exception of said general rule---Accused was not entitled to concession of bail, in circumstances.

Shameel Ahmed v. The State 2009 SCMR 174; Awal Gul v. Zawar Khan and others PLD 1985 SC 402 and Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 rel.

Sarwar Khilji for Petitioner.

Arshad Mehmood, Deputy Prosecutor-General for the State with Khalid Mahmood, A.S.-I

2012 M L D 242

[Lahore]

Before Abdul Waheed Khan, J

SARFRAZ AHMAD---Petitioner

versus

RABNAWAZ and 5 others---Respondents

Civil Revision No.3555 of 2010, decided on 4th July, 2011.

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

----Ss. 6 & 13---Suit for pre-emption---Superior right of pre-emption and making of Talbs---Plaintiff filed suit for pre-emption on the ground that he had superior right of pre-emption qua vendee in his capacity as co-sharer on the basis of contiguity and common water channels---Defendant in his written statement denied plaintiff's superior right of pre-emption and non-fulfilment of talbs by him---Trial Court dismissed the suit and judgment of the Trial Court had been upheld by the Appellate Court---Validity---Plaintiff had stated that he came to know about the sale transaction while he was present at his Dera in the presence of one 'S', but the plaintiff had failed to appear before the court to substantiate the contents of his plaint---Plaintiff had failed to explain and clarify as to why he did not appear before the court as his own witness to prove the contents of his plaint, especially the requirements of Talb-e-Muwathibat, Talb-e-Ishhad and the superior right of pre-emption---Non-appearance of the plaintiff before the court to prove all said facts, was fatal to his suit---Special Attorney of the plaintiff while appearing as witness, did not state that he was present with the plaintiff when the informer came there and told him about the sale transaction and that the plaintiff allegedly made Talb-e-Muwathibat---Entire examination-in-chief of the special Attorney as witness was based on hearsay, which had no evidentiary value---Said witness was not the resident of the village, nor he had any holding in the estate---Plaintiff having failed to prove his case, his suit was rightly dismissed, concurrently by two courts below.

Muhammad Mal Khan v Allah Yar Khan 2002 SCMR 235; Muhammad Hafeez v Muhammad Hanif Khan and another 1991 MLD 1576 and Abdul Qayum v. Muhammad Sadiq 2007 SCMR 957 rel

Ch. Irshad Ullah Chatha for Petitioner

2012 M L D 253

[Lahore]

Before Ch. Muhammad Tariq, J

NAWAZ KHAN through L.Rs.---Petitioner

Versus

DEPUTY LAND COMMISSIONER and others---Respondents

Writ Petition No.1181 of 2006, decided on 16th June, 2011.

Land Reforms Act (II of 1977)---

----Ss. 3, 9, 15 & 16---Constitution of Pakistan, Art.199---Constitutional petition---Cancellation and resumption of portion of allotted land---Land measuring 94 Kanal, 18 marlas was allotted to the petitioner by Deputy Land Commissioner---Land measuring 40 Kanals out of the allotted land, was cancelled and same was resumed in favour of Provincial Government on the ground that petitioner was not entitled to be allotted said land; because he was neither in possession of said land nor he was tenant thereof---Record had further revealed that allotment to the extent of said 40 Kanals in the name of petitioner was based on fraud---Main thrust of counsel for the petitioner was that provisions of Land Reforms Act, 1977 were declared repugnant to Injunctions of Islam, therefore, Deputy Land Commissioner had no authority to proceed with the matter and resume the land in favour of Provincial Government; or cancel the allotment from the name of petitioner---Allotment of land in question in the name of petitioner was based on fraud, question of such land would always be open to scrutiny---No illegality was found in the impugned order because counsel for the petitioner had failed to produce any supporting evidence in favour of the petitioner that on the crucial date, he was in possession of suit land as tenant.

Qazalbash Waqf v. Chif Land Commissioner PLD 1990 SC 99 and Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691 rel.

Malik Itaat Hussain Awan for Petitioner.

Raja Muhammad Hameed, A.A.-G for Respondents Nos.1 and 2.

Nemo for Respondents Nos. 3 to 8.

2012 M L D 259

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD IMRAN---Petitioner

Versus

JUDGE FAMILY COURT, BAHAWALPUR and another---Respondents

Writ Petition No.6607 of 2011/BWP, decided on 1st December, 2011.

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

----S. 5, Sched. & S.7(2)---West Pakistan Family Courts Rules, 1965, R.6---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage, maintenance and recovery of dowry articles---Territorial jurisdiction---Application of defendant bearing objection regarding territorial jurisdiction of the court having been dismissed by the Trial Court, defendant had filed constitutional petition against such dismissal---Defendant contended that plaintiff belonged to District "K" and marriage was also solemnized in that District, whereas suit filed by the plaintiff at District "B" was decided by court at place 'B' despite defendant having raised objection with regard to territorial jurisdiction of the court---Defendant had himself admitted that plaintiff's suit for dissolution of marriage and recovery of maintenance allowance, was decided by the court at place 'B' and he did not raise any objection with regard to territorial jurisdiction of the court---Latest objection of defendant with regard to territorial jurisdiction of same court to try suit for recovery of dowry articles, was devoid of any force---Objection of the defendant regarding territorial jurisdiction of Family Court at place 'B', was rightly turned down---No legal infirmity or unlawful exercise of jurisdiction existed in the order passed by Family Court---Defendant having no case to invoke the constitutional jurisdiction of High Court, petition was dismissed, in circumstances.

Hafiz Munir Ahmed for Petitioner

2012 M L D 278

[Lahore]

Before Ijaz Ahmad Chaudhry, C.J. and Mazhar Iqbal Sidhu, J

NASIR ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1974 of 2006, Criminal Revision No.149 of 2007 and Murder Reference No.61 of 2007, heard on 2nd June, 2011.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Occurrence had taken place all of a sudden at the spur of the moment---Accused had given only one "sota blow" on the head of the deceased---Prosecution had not exaggerated its version of the incident---Prosecution witnesses had seen the occurrence and they had no reason to make false statements against the accused---Ocular testimony could not be discarded merely due to kinship of the eye-witnesses with the deceased---"Sota" recovered at the disclosure of accused was found to be stained with human blood---Recovery of the weapon of offence had further corroborated the prosecution version---Conviction of accused was, therefore maintained---No previous enmity existed between the parties---Incident had occurred at the spur of the moment due to the rage present in the mind of accused against the deceased on account of an incident that took place one hour before the occurrence---Despite having the opportunity to repeat the blow accused had caused the solitary "sota" injury to the deceased---Death sentence of accused was reduced to imprisonment for life, in circumstances.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Accused had not caused any injury to the deceased and the role of holding the deceased in his clasp at the time of occurrence, did not appeal to reasons---Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.

M. Anwar Sipra for Appellants (in Criminal Appeal No.1974 of 2006)

M. Anwar Sipra for Respondent (in C.R. No.149 of 2007)

Mian Khalid Saeed Akhtar for Petitioner (in Criminal Revision No.149 of 2007)

Tariq Javed, D.P.-G. for the State.

Date of hearing: 2nd June, 2011.

2012 M L D 293

[Lahore]

Before Sagheer Ahmed Qadri and Ch. Muhammad Tariq, JJ

ABDUL KHALIQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.22-J and Murder Reference No.4/RWP of 2008, heard on 2nd March, 2011.

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

----Ss. 302(b), 324 & 337-F(i)---Qatl-e-amd, attempt to commit qatl-e-amd and causing injuries "damiyah"---Appreciation of evidence---Complainant had narrated the circumstances under which he was present at the right time in the house of accused and his deceased sister---Narration of the complainant was corroborated by two injured prosecution witnesses---Both said witnesses were cross-examined at length, but they remained consistent and corroborated each other on material aspects---Complainant and other eye-witnesses who were closely related to accused had no reason to falsely implicate accused in the case---Plea of substitution raised by accused in his statement under S.342, Cr.P.C., was just an afterthought, having no substance---Motive part of evidence was also proved on record and above all, the ocular account, was further corroborated by the medical evidence---Prosecution, in circumstances, was able to prove charge against accused beyond any reasonable shadow of doubt---Accused was rightly convicted and sentenced, in circumstances.

Riaz Ahmad v. State 2003 SCMR 1067; Muhammad Arshad alias Papu v. ASJ, Lahore PLD 2003 SC 547 and Khan Muhammad v. State 2005 SCMR 599 ref.

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

----S.345---Penal Code (XLV of 1860), Ss. 302(b), 324, 337-F(i), 309 & 310---Compounding offences, qatl-e-amd, attempt to commit qatl-e-amd and causing injuries 'damiyah'---Compromise---Three legal heirs/ walies of deceased (three daughters of deceased as well as accused) had made their statement that they had forgiven accused in the name of Allah Almighty and had compromised with accused, without getting any compensation; they had shown their intention to waive their right of Qisas and Diyat against the accused---Out of said legal heirs/walies, who claimed to be adult walies of the deceased had waived their right of Qisas and Diyat, but accused was convicted under S.302(b), P.P.C. and was awarded death penalty as Tazir---No doubt, if qatl-e-amd was penalized under S.302(a), P.P.C. as Qisas, then each and every adult sane wali under S.309, P.P.C. could waive his right of Qisas or under S.310, P.P.C. could compound the offence with accused, but where death penalty was provided as Tazir under S.302(b), P.P.C., then keeping in view S.342(2), Cr.P.C., until and unless all the walies would compound the offence, compromise could not be allowed and court could not permit such compromise.

Khan Muhammad v The State 2005 SCMR 599 rel

Syeda B.H. Shah Defence Counsel for Appellant

Rana Kashif Saleem Arfaa, Law Officer for the State.

Date of hearing: 2nd March, 2011.

2012 M L D 306

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD SHAHZAD alias BABU---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Petition No.3139-B of 2011, decided on 20th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/34/337-A(i)/ 337-F(v)/337-F(vi)/337-L(2)---Attempt to commit qatl-e-amd---Bail, grant of---Case was of two versions---Two men from the side of accused had sustained injuries during the occurrence, which had not been explained in the F.I.R.---Question as to which of the parties had initiated aggression was of great importance and the same would be determined at the trial after recording of evidence---Case of accused was amply covered by S.497(2), Cr.P.C. calling for further inquiry into his guilt---Accused was behind the bars for the last about five months and was stated to be a previous non-convict---Bail was allowed to accused in circumstances.

Muahmmad Rafique v The State 2008 SCMR 678 and Muhammad Ali v The State 2003 SCMR 1697 ref

Asghar Ali Gill for Petitioner

Khurram Khan, Deputy Prosecutor General Respondent No.1/State with Shaukat Ali A.S.-I with police record.

M. Javed Iqbal Ramday for Respondent No.2.

2012 M L D 319

[Lahore]

Before Muhammad Qasim Khan, J

ZIA ULLAH---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Petition No.6077-B of 2011, decided on 17th June, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd---Bail, grant of---No motive was attributed to accused---Nomination of the accused with a specific role in the F.I.R. was not sufficient for refusal of bail---Accused during investigation was found present at the spot empty handed---No weapon of offence had been recovered from the accused---Ocular account, prima facie, was in conflict with medical evidence, which had created doubt about the prosecution version and benefit of every doubt, howsoever slight, might be given to accused even at bail stage---Such fact alone was sufficient to make out the case of accused of further inquiry within the meaning of S.497(2), Cr.P.C.---Accused was admitted to bail, in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149---Bail---Benefit of doubt---Scope---Benefit of every doubt, howsoever slight, should always be extended to accused even at bail stage.

Abid Saqi for Petitioner

Nisar Ahmad Virk, Deputy Prosecutor-General for the State along with Irshad, A.S.-I with record

Rai Zameer-ul-Hassan for Respondent No.2/Complainant

2012 M L D 331

[Lahore]

Before Shahid Hameed Dar, J

ABDUL HAMEED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.10399-B of 2011, decided on 14th September, 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---Allegation against the accused was merely that of raising "lalkara" being empty handed at the time of occurrence---Said "lalkara" could not be deemed to be commanding in nature---Accused, during police investigation, was found merely to be present empty handed at the scene of occurrence without having committed any overt act during the entire episode---Opinion of the Investigating Officer though not binding on the court, yet its persuasiveness in view of the attending circumstances of the case could not be easily overlooked---Being father of the principal accused, false implication of accused in the case could not be ruled out---Further inquiry into the guilt of accused, thus, was needed as envisaged under S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Ch. Nawab Ali Mayo for Petitioner

Rana Tasawar Ali Khan, Deputy Prosecutor General Punjab.

Hasham Sabir Raja for Complainant

Iftikhar S.-I with record

2012 M L D 343

[Lahore]

Before Shahid Hameed Dar, J

RAFIULLAH---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.255/B of 2011, decided on 15th March, 2011.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324/365/511---Qatl-e-amd, attempt to commit qual-e-amd, kidnapping or abduction with attempt to commit the same---Bail, grant of---Case was of two versions---Supplementary statement of complainant, inconsistent medical evidence, suppression of injuries of the accused, challaning of the accused of the cross case set up by the accused, barren physical remand of the accused for 13 days and the mystery hovering over the prosecution case as to the initiation of launching of aggression were the circumstances, which had made the case of accused one of further inquiry as contemplated under S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 ref.

Sh. Muhammad Yaqub for Petitioner

Kh. Sohail Iqbal D.P.-G

Nazar Muhammad S.I. with record.

2012 M L D 351

[Lahore]

Before Muhammad Yawar Ali, J

MAQSOOD AHMAD---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.105/B of 2011, decided on 18th January, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395 & 412---Dacoity, dishonestly receiving property stolen in the commission of dacoity---Bail, grant of---Accused was not named in F.I.R., but was implicated on the basis of a supplementary statement which was recorded by the complainant after three months of the F.I.R. being lodged---Complainant in his supplementary statement had not stated as to how and when he came to know that offence in question was committed by accused along with other co-accused---Submission of challan and framing of charge by the Trial Court alone would not be enough to disentitle accused from concession of bail---No identification parade had been held in the case---Accused was admitted to bail, in circumstances.

Malik Muhammad Suleman for Petitioner

Ms. Muqadass Tahira, Deputy Prosecutor General Punjab

Amir Wakeel Butt for Respondent No.2/Complainant

Khadim, S.I. in person.

2012 M L D 355

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD YAQOOB alias KALA---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.11230-B of 2011, decided on 6th September, 2011.

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

----S. 498---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting---Bail before arrest---Principle---Mala fide, no doubt, is a sine qua non for grant of pre-arrest bail, but court can even look and evaluate the same from the facts and circumstances of the case.

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

----S. 498---Bail before arrest---Principle---Arrest for ulterior motives such as humiliation and unjustified harassment is a valid consideration for grant of pre-arrest bail.

Ajmal Khan v Liaquat Hayat and another PLD 1998 SC 97 and Syed Muhammad Firdous and others v. The State 2005 SCMR 784 ref

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

----S. 498---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting---Bail before arrest---Nomination in F.I.R.---Effect---Mere mentioning the name of any person in a murder case does not disentitle him for grant of pre-arrest bail---Court while deciding the petition can examine the accusations, report of investigating agency and even can touch upon the merits of the case.

Meeran Bux v The State and another PLD 1989 SC 347 and Muhammad Riaz Minhas v The State 1990 PCr.LJ 1353 ref.

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

----S. 498---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting---Bail before arrest, grant of---Direct allegation of causing a fire-arm injury on the non-vital part of the body of a prosecution witness, had been made against the accused---Possibility of the prosecution having thrown a wider net involving as many male members of the family of the accused, could not be ruled out---Accused was the brother-in-law of the main accused and the allegation made against him had been found false during investigation---Investigation in the case was complete and nothing was to be recovered from accused---Pre-arrest bail was granted to accused in circumstances.

Ajmal Khan v. Liaquat Hayat and another PLD 1998 SC 97; Syed Muhammad Firdous and others v The State 2005 SCMR 784; Meeran Bux v The State and another PLD 1989 SC 347 and Muhammad Riaz Minhas v The State 1990 PCr.LJ 1353 ref

Rana Sajjad Hussain for Petitioner

Mian Muhammad Awais Mazhar, Deputy Prosecutor General Punjab.

Muhammad Noman Shamas for the Complainant

Muhammad Basharat, S.I. with the police record.

2012 M L D 362

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

NADEEM HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1321/B of 2011, decided on 15th September, 2011.

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

----S. 498---Penal Code (XLV of 1860), Ss.337-F(v)/337-L(2)/452/34---Causing hurt, house trespass---Pre-arrest bail, grant of---F.I.R. had been lodged with an unexplained delay of three days---Daughter of the complainant was married with the accused and due to strained relations between the spouses suits were pending adjudication before the Family Court---Persons from both sides had received injuries during the occurrence and at this stage it could not be determined as to which party had acted in aggression---Complainant had suppressed the injuries sustained by the accused party while getting the F.I.R. registered---Medical Board had opined that the injury sustained by the complainant on her index finger could be self-suffered or by a friendly hand---Investigating Officer had conceded that the occurrence had taken place on the basis of some domestic issue---Court while deciding pre-arrest bail could touch upon the merits of the case---Accused appeared to have been roped in the case with mala fide intention---Pre-arrest bail was granted to accused in circumstances.

Meeran Bux v. The State and another PLD 1989 SC 347 ref

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

----S. 498---Pre-arrest bail---Assessment of evidence---Principle---Court while deciding an application for pre-arrest bail can touch upon the merits of the case.

Meeran Bux v. The State and another PLD 1989 SC 347 rel

Malik Fateh Khan for Petitioner

Malik Riaz Ahmed Saghla, Deputy Prosecutor General.

Malik Tariq Mehmood for the Complainant

Kausar, S.I. with record.

2012 M L D 374

[Lahore]

Before Muhammad Qasim Khan, J

KAUSAR PARVEEN---Petitioner

Versus

THE STATE---Respondent

Crimnal Miscellaneous No.7233-B of 2011, decided on 7th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302/109/148/149---Qatl-e-amd, abetment, rioting armed with deadly weapons---Ad interim pre-arrest bail confirmation of---Accused was alleged to have been present at the spot of occurrence where she raised lalkara to provoke her two sons (co-accused) who were carrying fire-arms, for the commission of the alleged crime---Role of raising lalkara attributed to accused appeared to be quite unnatural as her sons (co-accused) were present at the spot carrying fire-arms with pre-meditation and in such situation, there was hardly any occasion for the accused to provoke her sons for the commission of the crime---Accused's husband had already been murdered and through the present case, she along with her two sons as well as brother-in-law had been involved to humiliate and disgrace her, being a woman and elder of her family---Accused could have been implicated to use her attempted arrest as a tool for effecting the arrest of her absconding sons---Complainant in his statement during trial had made a statement to the effect that he did not nominate accused and other co-accused and the police had itself incorporated the names of said persons---Accused's arrest in the light of such statement of complainant appeared to be tainted with mala fides of the police---Accused remained fugitive from the law for some time, but she had sufficiently explained the reasons for the absconsion by stating that her husband had been murdered, her two sons and brother-in-law had been involved in the case and as such she genuinely apprehended danger to her life at the hands of the complainant---Accused's involvement and attempted arrest appearing to be tainted with mala fides, interim pre-arrest bail granted to her was confirmed.

Mst. Zakia Begum v The State 1991 SCMR 297; Meeran Bux v The State and another PLD 1989 SC 347; Mitho Pitafi v The State 2009 SCMR 299 and Saeed v The State and another 2008 PCr.LJ 726 ref

Shehbaz Ali Khan for Petitioner

Naveed Inayat Malik for the Complainant

Mian Hamayum Aslam, D.P.-G with Akram Khan S.H.O

2012 M L D 382

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

SIKANDAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1102 of 2005, heard on 30th September, 2010.

Penal Code (XLV of 1860)---

----Ss.302(b) & 302(c)---Qalt-e-amd---Appreciation of evidence---Sentence, reduction in---Occurrence, no doubt, had taken place, but the manner and mode of occurrence as stated by complainant did not sound sense---Plea taken by accused to have fired in exercise of his self defence though might not be exact as depicted in his statement recorded under S.342, Cr.P.C. yet the same could be equated with the prose-cution version, which at the most had attracted S.302(c), P.P.C.---Deceased had fired upon the accused and the injury sustained by the accused had been suppressed by the prosecution---Deceased after the incident had been brought in injured condition at Police Station first, where he remained for 30 minutes without any medical aid---Eye-witness closely related to both the complainant and the deceased, had not accompanied complainant to shift the deceased to hospital in the injured condition, nor did he report the matter to police---Accused was behind the bars for the last more the seven years---Conviction of accused under S.302(b), P.P.C. was altered to S.302(c), P.P.C. and his life imprisonment was reduced to the imprisonment already undergone by him in circumstances.

Syed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502 ref

Ms. Bushra Qamar for Appellant

Mian Muhammad Awais Mazhar, Deputy P.G. for the State.

Date of hearing: 30th September, 2010.

2012 M L D 392

[Lahore]

Before Abdus Sattar Asghar, J

MAH RUKH---Petitioner

Versus

UNIVERSITY OF HEALTH SCIENCES---Respondent

Writ Petition No.2755 of 2011, decided on 16th September, 2011.

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

----S. 10---Statutes and Regulations of University of Health Sciences, Lahore notified for MBBS First, Second, Third and Final Professional Examinations, Regln. 9---Pakistan Medical and Dental Council Regulations, 1998, Regln. 4(3)---Constitution of Pakistan, Art. 199---Constitutional petition---Medical College---MBBS Part-I examination---Failure of petitioner to clear such examination in two attempts i.e. annual and supplementary examinations---Refusal of authority to allow petitioner to join MBBS Part-II---Petitioner's plea that she was entitled to be promoted to MBBS Part-II class without passing previous class on basis of "carry on system" in order to enable her to continue professional education without wastage of time---Validity---MBBS doctors would be supposed to be fully conversant and equipped with professional knowledge and skill in relevant discipline to attend patients in order to cure their diseases and restore their health---Promotion of petitioner to next higher class without passing previous class would amount to seek permission to "carry on basis", which was not permissible under relevant rules---Petitioner was not entitled to indulgence of High Court---Such plea could not be acceded on the basis of principle of equality between the citizens---High Court dismissed constitutional petition in circumstances.

Miss Khalida Zafar v. Controller Nursing Examination and others 1996 CLC 1750; Muhammad Ilyas v. Bahauddin Zakriya University Multan and another 2005 SCMR 961 and Muhammad Umar Wahid and others v. University of Health Sciences Lahore and others PLD 2006 SC 300 rel.

Nadeem Iqbal Choudhary for Petitioner.

Mehr Muhammad Iqbal, A.A.-G.

M.A. Hayat Harraj for Respondents Nos.1 and 2.

2012 M L D 412

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD ILYAS---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1743-B of 2011, decided on 18th May, 2011.

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

----S. 498---Penal Code (XLV of 1860), Ss.324/148/149---Attempt to commit qatl-e-amd---Pre-arrest bail, grant of---Benefit of doubt---Medico-legal report did not show that the victim had sustained any injury on his back as attributed to the accused by the prosecution---Prosecution witnesses also had not specifically stated that accused had caused any injury to the victim---Involvement of accused in the case, therefore, was doubtful, benefit of which had to be given to him---Abscondence of accused, in such circumstances, could not disentitle accused from getting the concession of pre-arrest bail---Pre-arrest bail was allowed to accused, in circumstances.

2011 YLR 72 and 2000 MLD 1718 ref.

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

----Ss. 497/498---Bail---Abscondence of accused---Effect---Benefit of doubt---Usually, an absconder disentitles himself from the concession of bail, but when his involvement in the case is established to be highly doubtful, then courts are always vested with the power to give relief under Ss.497/498, Cr.P.C.

Ch. Khawar Sadique Sahi for Petitioner.

Muhammad Amjad Rafique, D.P.-G. for the State.

Mehar Irshad Ahmad Agwana for Respondent No.2.

Muhammad Anwar S.I. with record.

2012 M L D 417

[Lahore]

Before Mehmood Maqbool Bajwa, J

MOAZAM MAJEED BAJWA---Petitioner

Versus

TARIQ MUNAWAR and others---Respondents

Civil Revision No.1537 of 2011, decided on 11th October, 2011.

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

----S. 12---Civil Procedure Code (V of 1908), O. XIII, R. 2---Qanun-e-Shahadat (10 of 1984), Art.85---Suit for specific performance of sale agreement---Plaintiffs' application for permission to produce utility bills, receipts of Excise & Taxation Department and receipts showing payment of loan of House Building Finance Corporation after fixation of case for defendant's evidence---Defendant's plea that plaintiff had neither relied upon such documents nor produced same along with plaint nor showed good cause therefor; and that grant of such permission would be a premium to plaintiff to fill in gaps through additional evidence, thus, he was not entitled to produce same at such late stage---Dismissal of application by Trial Court---Validity---Provision of procedural law would be required to be complied with, but non-compliance thereof would not be strictly construed in each and every case---Expression "good cause" as used in O.XIII, R. 2, C.P.C. being wider than "sufficient cause" would be construed liberally---Suit property was subject to charge---Such documents for being public documents were per se admissible in evidence---Concept of bar against filling gaps through additional evidence was no more available in law---Party should not be knocked out on technical grounds, rather adjudication had to be made on merits---Dismissal of such application had resulted into failure of exercise of jurisdiction vested in Trial Court---High Court set aside impugned order and permitted plaintiff to produce such documents in evidence subject to payment of Rs.3,000 as cost.

Iqbal Ahmad Khan Lodhi v. Mirza Muhammad Ajmal PLD 1983 Kar. 501 and Messrs Liyas Mortine and Associates (Pvt.) Ltd. v. Muhammad Amin Lakhani and others 1999 MLD 3018 ref.

Zar Wali Shah v. Yousaf Ali Shah and others 1992 SCMR 1778; Muhammad Nawaz v. The Additional District Judge Jhang and 4 others 1993 MLD 2295 and Iqbal Ahmad and others v. Khurshid Ahmad and others 1987 SCMR 744 rel.

(b) Interpretation of statutes---

----Provision of procedural law would be required to be complied with, but non-compliance thereof would not be strictly construed in each and every case.

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

----S. 115---Revisional jurisdiction, exercise of---Scope---Such jurisdiction could be exercised in cases of non-assumption, illegal assumption or exercise of jurisdiction illegally or with material irregularity.

Mirza Hafeez ur Rehman for Petitioner.

Afzaal Ahmad Qureshi for Respondents Nos. 1 and 3

S.M. Nazim for Respondent No.4.

Muhammad Aamir Nawaz Bhatti for Respondent No.5.

2012 M L D 430

[Lahore]

Before Shahid Hameed Dar, J

SHAHID IQBAL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 14397-B of 2010, decided on 29th December, 2010.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.324/148/149---Attempt to commit qatl-e-amd, rioting armed with deadly weapons---Pre-arrest bail, grant of---Complainant of the cross-version had alleged that accused along with others being armed with different weapons had trespassed into his "Haveli" by scaling over the walls and gave a beating to his wife---Veracity of the said allegation could not be ascertained in the absence of any medical evidence---Accused being an injured prosecution witness was the star witness of the case and his false implication in the cross case due to malice and ulterior motive of the complainant could not be ruled out and it was difficult to ascertain as to who was the aggressor---Reasonable grounds existed to believe that the case of accused was open to further probe into his guilt as contemplated under S.497(2), Cr.P.C.---Pre-arrest bail was granted to accused in circumstances.

Hamza Ali Hamza and others v. The State 2010 SCMR 1219 and Muhammad Shahzad Siddique v. The State and another PLD 2009 SC 58 ref.

Muhammad Azhar Solehria for Petitioner.

Muhammad Ashfaq Mughal for the Complainant.

Mian Hamayun Aslam D.P.-G. with Allah Ditta, S.I. with record.

2012 M L D 439

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD NAZIR---Petitioner

Versus

MUHAMMAD YOUSAF through General Attorney and others---Respondents

Civil Revision No.2933 of 2010, decided on 18th May, 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---Application for temporary injunction, dismissal of---Petitioner had filed an application for temporary injunction along with his suit for declaration and permanent injunction---Said application was dismissed by Trial Court and Appellate Court---Respondent had filed an application before District Officer Revenue for cancellation of mutation concerning disputed property, levelling the allegation of fraud and fabrication which was allowed ex parte and consequently said mutation was cancelled---Petitioner also filed an application before District Officer Revenue for setting aside said ex parte order which was dismissed---Petitioner had assailed the order of District Officer Revenue before the civil court which was not the proper forum---High Court declined to interfere in orders passed by courts below---Revision petition was dismissed in circumstances.

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

----S.9---Jurisdiction---West Pakistan Land Revenue Act (XVII of 1967), Preamble---Civil court, jurisdiction of---When a remedy provided under the Punjab Land Revenue Act is exhausted, then jurisdiction of civil court is invoked.

Rana Muhammad Anwar for Petitioner.

Ch. Naveed Akhtar Bhatti for Respondents.

2012 M L D 447

[Lahore]

Before Nasir Saeed Sheikh, J

Mst. NAZIR BEGUM and 2 others---Petitioners

Versus

Mst. MUKHTAR BEGUM and 13 others---Respondents

Civil Revision No.1303 of 2004, decided on 26th October, 2010.

Suit for partition---

----Revision against order of Appellate Court remanding case to the Trial Court on the ground that legal heirs of deceased joint-owner of suit property were not impleaded in the original suit---Validity---Order of Appellate Court was in accordance with law and no illegality having been found in the same, revision was dismissed.

Mian Israr-ul-Haq for Petitioners.

Mian Muhammad Arif for Respondents Nos. 1 to 4.

2012 M L D 452

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Ch. Iftikhar Hussain, JJ

JAHAN KHAN NIAZI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.63 of 2011, decided on 31st January, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 517---Penal Code (XLV of 1860), Ss.337-A(i) & 337-A(ii)---Hurt Shajjah---Superdari of rifle, refusal of---Appeal of accused after his conviction by Trial Court was pending in High Court---Co-accused in the case was still fugitive from law and on his arrest he would be tried separately and at the time of his trial case property would have to be produced in court---Accused petitioner could not claim custody of rifle, which was case property as a matter of right under S.517, Cr.P.C.---Impugned order of Trial Court refusing to give his rifle to accused on "superdari", was well reasoned and did not call for any interference by High Court---Petition was dismissed in limine accordingly.

Muhammad Rafique and another v. The State 1986 MLD 2628; Manzoor Hussain Tatoi v. The State 1997 PCr.LJ 500 and Mst. Rashida Begum and another v. Muhammad Saeed and 4 others 1978 PCr.LJ 160 distinguished.

Ghulam Hussain Malik for Petitioner.

2012 M L D 459

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD AFZAL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SARGODHA and another---Respondents

Writ Petition No.15304 of 2009, decided on 17th May, 2011.

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

----S.13---Constitution of Pakistan Art. 199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent---Denial of relationship of landlord and tenant---Rent Controller dismissed ejectment petition on the ground that no relationship of landlord and tenant existed between the parties---Appellate Court set aside order of Rent Controller and found that relationship of landlord and tenant existed between the parties---Validity---Landlord had to discharge burden of proof initially by leading evidence about his relationship whereafter the tenant was bound to rebut such evidence placed on record---In the present case, respondent (landlord) had established that he was the owner of the house and had given the same on rent---Petitioner (tenant) failed to establish his status in the demised premises by leading convincing and cogent evidence---Order of Appellate Court was maintained---Constitutional petition was dismissed, in circumstances.

1984 CLC 2908; 1991 SCMR 1376 and 2006 CLC 1886 rel.

Sarfraz Khan Gondal for Petitioner.

Malik Muhammad Imtiaz Mohal for Respondents.

2012 M L D 474

[Lahore]

Before Ijaz Ahmed Chaudhry, C.J.

MUSARRAT BIBI and 3 others---Petitioners

Versus

MUHAMMAD NAWAZ---Respondent

T.A. No.123-C of 2011, decided on 7th April, 2011.

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

----S. 25-A---Suit for recovery of maintenance allowance---Suit was pending before Family Court at place "G"---Petitioner sought transfer of suit to place "M" on the ground that both parties were now residing at place "M" and petitioner being a pardanasheen lady was facing hardships appearing before court at place "G"----Petitioner had obtained an ex parte decree against respondent and the application of the respondent for setting aside the same was pending before the same court at place "G" that was likely to be decided within a short span of time---Held, petitioner had herself chosen to file suit at place "G" and court was not supposed to oblige the petitioner merely for the reason that she was no more resident at the given address after the filing of the suit---No useful purpose would be served if suit was transferred at the request of the petitioner---Application for transfer was dismissed, in circumstances.

Syed Tahir Ahmad Shah for Petitioners.

Waqas Qadeer Dar, Assistant Advocate General.

Rana Abdul Majeed Khan for Respondent.

2012 M L D 501

[Lahore]

Before Ijaz Ahmad Chaudhry, C.J.

ABDUL ALEEM---Petitioner

Versus

ISLAMIC WELFARE TRUST through Hafiz Hussain Azhar and another---Respondents

Transfer Application No.342-C of 2011, decided on 14th October, 2011.

Civil Procedure Code (V of 1908)---

----S.24---Transfer of case---Petitioner sought transfer of case pending before Additional Sessions Judge on the ground that Presiding Officer had earlier decided on two criminal revisions on the same subject-matter and parties; and was now dealing with the same on the civil side---Held, fair play of justice was the right of every party and the petitioner could not be deprived of this right especially when he had lost confidence upon the Presiding Officer---Transfer of the case would cause no prejudice to the other side---Application for transfer was accepted, in circumstances.

A.G. Tariq Chaudhry for Petitioner.

Mubsahir Iqbal Alvi for Respondents.1.

2012 M L D 507

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

ISHRAT alias SHAISTA---Petitioner

Versus

STATION HOUSE OFFICER---Respondent

Criminal Miscellaneous No.1378-H of 2011, decided on 12th August, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 491 & 497---Penal Code (XLV of 1860), Ss.420, 468 & 471---Cheating, forgery, using as genuine a forged document---Habeas corpus petition---Conversion of habeas corpus petition into petition for bail after arrest---Challan in the case had been prepared and was sent to the Prosecution Branch for onward transmission to the court concerned---Contention that, retention of alleged detenu had become illegal for not passing the proper remand order, was of no consequence for the reason that alleged detenu was being produced in the court on each adjourned date---Argument that no request for sending detenu to judicial lock up from the side of the Police was available on the file, rendering the remand order illegal, was untenable for the reason that after sending the challan to the Prosecution Branch, the Police had completed its probe whereafter the only duty of the Police left in the matter was the production of accused from the jail before the court on the adjourned date---Making of any request for sending detenu to the judicial remand was not needed as same was required in cases where challan was not prepared and file was with the Police---Detention of alleged detenu with the Superintendent Jail was not illegal---Offences charged against alleged detenu not being of heinous nature, habeas corpus petition was treated as petition for bail after arrest---Offences of Ss.468, 471, P.P.C. were non-cognizable while the offence under S.420, P.P.C. was bailable in nature---Alleged detenu was admitted to bail, in circumstances.

Allah Ditta v. The State 1991 PCr.LJ 408 and Syed Azmat Ali Shah and another v. The State and another PLD 1999 Pesh. 39 distinguished.

Abdus Samee Khawaja for Petitioner.

Muhammad Ishaq, D.P.G.

Ch. Abdur Razaq for the Complainant.

2012 M L D 518

[Lahore]

Before Manzoor Ahmad Malik and Sardar Tariq Masood, JJ

RAJAB ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.60-J, 11 of 2006 and M.R. No. 15 of 2007, heard on 8th October, 2010.

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

----S.302(b)/34---Qatl-e-amd---Appreciation of evidence---Occurrence being unseen, prosecution case was based on circumstantial evidence---Strangely both the accused had made extra-judicial confession before the complainant of the case and other prosecution witness, who themselves had gone to the accused and appeared to be investigating the case---Said witnesses had no social status which could prompt the accused to make a confession before them, rather civil and criminal litigation was still pending between their families---No reliance, therefore, could be placed on the said extra-judicial confession in the absence of any independent corroboration---Recovery of some incriminating articles at the instance of accused by the police, even if accepted as correct, did not connect them with the commission of the crime---Injuries present on the person of the deceased as revealed in his post-mortem examination were not proved to have been caused by the accused---Injuries on the hands of one accused also did not help the prosecution, as the duration of the said injuries and the thing with which the same were caused, were not mentioned in his medical report---Mother of the deceased who was admittedly living in the house of occurrence and was the most important and natural witness of the motive, had not been produced in the court, which had given rise to an adverse impression against the prosecution---Accused were acquitted in circumstances.

Akhtar Ali and others v. The State 2008 SCMR 6; Ahmed v. The State 2008 SCMR 119; Zafar Iqbal and others v. The State 2006 SCMR 463; Wazir Muhammad and another v. The State 2005 SCMR 277; The State v. Manzoor Ahmad PLD 1966 SC 664; Asadullah and another v. State and another 1999 SCMR 1034; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Siraj v. The Crown PLD 1956 FC 123; Sarfraz Khan v. The State 1996 SCMR 188; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Ghulam Mustafa and another v. State 2009 SCMR 916 and Muhammad Rafique and others v. The State and others 2010 SCMR 385 ref.

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

----S.302(b)/34---Qatl-e-amd---Circumstantial evidence, appreciation of---Principles and guidelines stated.

The State v. Manzoor Ahmad PLD 1996 SC 664 ref.

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

----S.302(b)/34---Qatl-e-amd---Appreciation of evidence---Circumstantial evidence---Principle---Circumstantial evidence should be so interconnected as to form such a continuous chain that its one end touches the dead body and the other end touches the neck of the accused, excluding all the hypothesis of his innocence. [p. 524] C

Asadullah and another v. State and another 1999 SCMR 1034; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Siraj v. The Crown PLD 1956 FC 123; Sarfraz Khan v. The State 1996 SCMR 188 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Circum-stantial evidence---Extra-judicial confession---Corroboration---Extra-judicial confession is not direct evidence and, therefore, it must be corroborated in material particulars before making it a basis for conviction.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 ref.

Sardar Ahmad Khan for Appellant (in Criminal Appeal No.60-J of 2006).

Mumtaz Hussain Bazmi for Appellant (in Criminal Appeal No.11 of 2006).

Ch. Muhammad Zafar Khan, D.P.-G. for the State.

Muhammad Afzal Shad for the Complainant.

Date of hearing: 8th October, 2010.

2012 M L D 535

[Lahore]

Before Tariq Javaid, J

MAJID AHMAD and 4 others---Petitioners

Versus

UMAT-UL-AZIZ and 9 others---Respondents

Civil Revision No.1957 of 2010, decided on 26th November, 2010.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell immovable property---Concurrent judgments of dismissal of suit---Petitioners contended that findings of the courts below were based on misreading and non-reading of evidence and suffered from material irregularities---Validity---Perusal of testimony of witnesses did not show that petitioners could prove lawful execution of the agreements to sell or the execution of documents allegedly executed by the predecessor-in-interest of the respondent---Petitioners had not addressed any arguments with regard to the question of limitation---Courts below had discussed both documentary and oral evidence in sufficient detail and conclusions of the same were fully supported by the evidence on record---Discrepancy in testimony of witnesses was also material---Stamp paper allegedly purchased by petitioners had not been issued by the stamp vendor---None of the witnesses had established that consideration for sale of suit property was paid in their presence nor could show that possession of suit property was given to the predecessor-in-interest of the petitioners---No illegality having been found in the judgments of the courts below, revision was dismissed.

Ch. Muhammad Ayub for Petitioners.

Nemo for Respondents.

2012 M L D 543

[Lahore]

Before Amin-ud-Din Khan, J

TAHIR HUSSAIN---Petitioner

Versus

MEMBER, BOARD OF REVENUE---Respondent

Writ Petition No.4697 of 2010, heard on 23rd June, 2011.

West Pakistan Board of Revenue Act (XI of 1957)---

----S. 5---Land Acquisition Act (I of 1894), Ss.4 & 17---Constitution of Pakistan, Art.199---Constitutional petition---Grant of land on the basis of "Patta Malkiat"---Acquisition of land---Implementation of order---Land in question which lay under the control of 'Cholistan Development Authority' was given to a person on the basis of 'Patta Malkiat'---Said land was subsequently sold by said person to the petitioners, who were 89 in numbers---Defence of Pakistan Authority, acquired said land and all other persons, whose land was acquired had received their amount of compensation, whereas the petitioners applied for the grant of alternate land through their application filed to Board of Revenue---Said application having not been attended to by the concerned Officials of the Board, petitioners filed constitutional petition praying that respondents/officials be directed to process the application filed by the petitioner and decide the same in accordance with law---Member Board of Revenue allowed said application and directed Revenue Officer to implement said order---Deputy Commissioner, who was not happy with the order of allotment of land to the petitioners, wrote a letter to Deputy Secretary (Colonies) Board of Revenue to withdraw the order passed earlier by Member Board of Revenue---After a period of 3 years Member Board of Revenue (Colonies) observed that earlier allotment order had rightly been withdrawn---Validity---Order of allotment of alternate land passed by the Member Board of Revenue, was in field as same was not set aside by the High Court and the Supreme Court---Order of withdrawal of allotment, earlier passed in favour of the petitioners, was declared, illegal and without lawful authority---Authorities were directed to act in accordance with earlier order of allotment passed in favour of the petitioners and redress the grievance of the petitioners.

Hamid Ali Al-Makki and others v. Settlement Commissioner and others 1991 CLC 981 ref

Sardar Muhammad Hussain Khan for Petitioners.

Masood Ashraf Sheikh and Naved Khalil Chaudhary, A.A.-G. for Respondent.

Date of hearing: 23rd June, 2011.

2012 M L D 550

[Lahore]

Before Ch. Iftikhar Hussain and Sayyed Mazahar Ali Akbar Naqvi, JJ

KASHIF alias SHAHID alias CHACHI and 2 others---Appellants

Versus

SPECIAL JUDGE CNS, FAISALABAD and another---Respondents

Criminal Appeal No.17 of 2011, heard on 19th January, 2011.

Criminal Procedure Code (V of 1898)---

----S.540---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing narcotics---Summoning of some persons as court witnesses---Application filed by accused after closure of prosecution evidence for summoning certain persons as court witnesses had been dismissed by Trial Court vide impugned order---Court, after being satisfied with the prosecution evidence that the same was sufficient to arrive at a just conclusion was under no compulsion for summoning anyother witnesses---Trial court, however, in addition to the evidence already recorded had ordered to summon the Medical Officer and the Ward Incharge considering them as necessary witnesses---Other nine persons, were left on the option of accused to produce them as defence witnesses by the court---Impugned order did not suffer from any infirmity whatsoever---Accused, if so advised, could avail the opportunity of producing the aforesaid persons in defence to supplement defence version---Appeal was dismissed accordingly.

Sharjeel Adnan Sheikh for Appellants.

A.D. Naseem, Special Prosecutor ANF for the State.

Date of hearing: 19th January, 2011.

2012 M L D 560

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

QAISAR MEHMOOD---Petitioner

Versus

MUHAMMAD AFZAL and another---Respondents

Civil Revision No.2963 of 2010, heard on 4th November, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXIII, Rr.1 & 3---Suit for recovery---Application for filing of appeal as pauper---Application of petitioner to file appeal as a pauper was dismissed by Appellate Court---Contention of petitioner was that his appeal should have been entertained as a pauper since revenue officials after inquiry had declared the petitioner as having no movable or immovable property and petitioner was working under a veterinary dispenser---Validity---Order of Appellate Court had duly taken into consideration the factum of litigation between the parties which had revealed that the petitioner was running a poultry farm and purchasing poultry feed and chicks from dealers, including from the respondents---Petitioner was also an animal husbandry technician, in view of which, Appellate Court came to the opinion that to avoid payment of court-fee and decretal amount, the petitioner with a mala fide intention was claiming to be a pauper---Petitioner throughout the litigation including in the present revision, had been represented by counsel whose fee and travelling expenses had been borne by the petitioner, and on that account the petitioner could not be considered to be a pauper---No illegality or irregularity having been found in the order of the Appellate Court, revision was dismissed.

Mst. Malook Bibi v. Additional District Judge and others 2005 CLC 1613 and Lal Hussain and another v. Muhammad Suleman and another 2001 MLD 117 ref.

Mehr Manzeer Ahmed for Petitioner.

Mian Shehzad Seraj for Respondents.

Date of hearing: 4th November, 2010.

2012 M L D 564

[Lahore]

Before Abdul Waheed Khan, J

MUHAMMAD YOUSAF and others---Petitioner

Versus

MUHAMMAD YOUNIS and others---Respondents

Civil Revision No.175 of 2003, decided on 2nd June, 2011.

Specific Relief Act (I of 1877)

----S.8---Qanun-e-Shahadat (10 of 1984), Art. 100---Suit for possession---Concurrent judgments of dismissal of suit---Contention of petitioner that suit was dismissed as petitioners could not produce marginal witnesses of the agreement dated 5-6-1934 and the said agreement fell within definition of Art. 100 of Qanun-e-Shahadat, 1984 and the courts below misconstrued facts on record---Validity---Points of determination were as to whether petitioners were the owners of the suit land and were entitled to recover the same from the respondents---Perusal of record revealed that the ownership was not proved in favour of petitioners and did not suggest as to what was the right with which the predecessor of petitioners gave possession temporarily to the respondents---No documentary evidence was available on record for the petitioners to prove ownership of the suit land----No illegality and infirmity having been found in the judgments of the courts below, revision was dismissed.

Syed Mukhtar Abbas for Petitioner.

Muhammad Aslam Zar for Respondents.

2012 M L D 571

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD ZAFAR and another---Appellants

Versus

PUNJAB PROVINCIAL CO-OPERATIVE BANK LTD. through Zona Chief ---Respondent

S. As. Os. Nos. 82 and 83 of 2010, heard on 22nd November, 2011.

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

----Ss. 2(d), (f)(g), 5-A, 13 & 15---Ejectment of tenant on grounds of default in payment of rent and bona fide personal need of landlord---Earlier ejectment petition was filed by the landlord on the ground of subletting, which did not find favour with the courts below and finally matter was settled by High Court---Ground of personal need, which had been taken in the present petition had not been taken in the said petition---Effect---Present petition was not barred by principle of res judicata---Contention of tenant that landlord did not get plan for constructing the Branch of the Bank sanctioned, was without substance, as it was not essential for the landlord to get sanction for the site plan prior to the filing of the ejectment petition, which act could be performed after having the vacant possession of disputed property---Such sanction could add to the bona fides of the landlord but it was not a condition precedent for filing an ejectment petition on the same ground---Counsel for the tenant had contended that S.5-A of West Pakistan Urban Rent Restriction Ordinance, 1959 was not applicable to the facts of the case as the plot was rented out to the tenant, which could not be treated as "non-residential building", and that enhancement of rent as envisaged by S.5-A of the Ordinance was only applicable to the buildings mentioned in S.2(d) of the Ordinance---Tenants had installed 'Ara'/Saw Machine at the premises, which was a kind of business and a trade---Contention of counsel for tenants, was repelled because provisions of S.5-A of West Pakistan Urban Rent Restriction Ordinance, 1959 were squarely applicable in the case---Tenants having never paid the enhanced rent, when it had become due against them, they had defaulted in payment of rent---Courts below, in circumstances, had rightly passed ejectment order against the tenants after properly appreciating the evidence on record---Findings of the courts below being unexceptional, were maintained, in circumstances.

Qari Nadeem Ahmad Awaisi for Appellants.

Haroon Dugal for Respondent.

Date of hearing; 22nd November, 2011.

2012 M L D 579

[Lahore]

Before Sardar Muhammad Shamim Khan, J.

MUHAMMAD RAMZAN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.721-B of 2010, decided on 19th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.376(2)---Rape---Bail, refusal of---Accused was nominated in the F.I.R. with the specific allegation of having committed zina-bil-jabr with the complainant along with co-accused turn by turn---Medico-legal report of the complainant had, prima facie, supported the said allegation---Delay of 7/8 days in lodging the F.I.R. was no ground to enlarge the accused on bail, as bail application could be decided only on the basis of tentative assessment of evidence of prosecution---Charge against the accused had been framed, but the trial was being delayed by the accused, as witnesses were not being cross-examined by his counsel---Charge against accused besides being heinous fell within the prohibitory clause of S.497(1), Cr.P.C.---False involvement of accused in the case was not pleaded---Bail was declined to accused in circumstances.

Sikandar Javed for Petitioner.

Raja Sultan Khurram-uz-Zaman for the Complainant.

Muhammad Suleman, DDPP.

Ghulam Mustafa, S.I.

Khalid Pervez Ahmad with judicial record.

2012 M L D 583

[Lahore]

Before Shahid Hameed Dar, J

SAJAWAL alias BHOLA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.7556-B of 2011, decided on 15th July, 2011.

Criminal Procedure Code (V of 1898) ---

----S.497---Penal Code (XLV of 1860), Ss.302, 364, 347, 452, 337-H(2), 148, 149 & 109---Qatl-e-amd, kidnapping, house-trespass, hurt by rash or negligent act---Bail, grant of---Petition for bail had not been filed by accused on merits of the case, but only on the ground of statutory delay---Accused was arrested on 26-11-2008 and prosecution could produce only two witnesses before the Trial Court after about two and a half years---Challan in the case was submitted after about one month of arrest of accused, which progressed at snail's pace and then the complainant filed a private complaint against accused---Said complaint case equally matched the pace of progress of the challan case---Bail application was filed almost seven months after the dead-line set by the statute under S.497(1), Proviso (v), Cr.P.C., for conclusion of the trial qua an offence entailing capital punishment within two years, had already gone by---Accused had not been previously convicted for an offence, entailing capital punishment, nor was he a hardened, desperate or dangerous criminal---Accused did not contribute in any manner towards delay in conclusion of the trial, nor any other person acting on his behalf had done so---Accused was admitted to bail, in circumstances.

Mian Muzaffar Ahmad for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General Punjab.

Muhammad Afzal Siddiqi for the Complainant. Ayub S.I. with record.

2012 M L D 590

[Lahore]

Before Ijaz Ahmad Chaudhry C.J. and Mazhar Iqbal Sidhu, J

ZULFIQAR ALI and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.7692-B of 2011, decided on 12th July, 2011.

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

----S. 497---Drugs Act (XXXI of 1976), Ss.23/27---Seizure of misbranded, unregistered and drugs without warranty---Bail, refusal of---No ill-will or ulterior motive on part of the complainant party to foist a false case against accused persons---Both accused were apprehended from the spot and the material collected from there, had been found to be spurious---Preparation of spurious medicine, was not only penalable act under the law, but also a sin---Accused were not only termed as criminals, but also desperate criminals---Case of accused persons, did not fall within the prohibitory clause of S.497, Cr.P.C., but fell within the exceptional legal clause, wherein bail could be refused to accused, despite his case not falling within the prohibitory clause of S.497, Cr.P.C.---Bail petition was dismissed, in circumstances.

(b) Words and phrases---

----"Criminal" and "desparate"---Meaning.

Criminal in Oxford Advance Dictionary and Criminal in Black's Law Dictionary ref

M. Yousaf Baig for Petitioners

M. Jahanzeb Wahala, Standing Counsel along with Abdul Hafeez, Assistant Director, FIA, and Muhammad Zeshan Ali, Drug Inspector, Iqbal Town, Faisalabad.

2012 M L D 597

[Lahore]

Before Rauf Ahmad Sheikh, J

GHULAM FARID---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3439-B of 2011, decided on 12th September, 2011.

Criminal Procedure Code (V of 1898) ---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/447/427/ 342/148/ 149/506---Attempt to commit qatl-e-amd, criminal trespass, mischief, wrongful confinement and criminal intimidation---Bail, grant of---Further inquiry---Complainant and his son, were overpowered and tied down, but they did not receive any injury during the occurrence; although they were at the mercy of accused and others, who were allegedly armed with firearms---Such fact alone was sufficient to show that accused had no intention to commit qatl-e-amd---Case to the extent of commission of offence under S.324, P.P.C., needed further probe and inquiry---Remaining offences allegedly committed by accused were bailable---Mere absconsion of accused was not sufficient to withhold the bail, which was made out on merits---Accused was more than 65 years of age and was no more required for further investigation---Accused was admitted to bail, in circumstances.

Ata-ul-Manan Malik for Petitioner.

Muhammad Amjad Rafique DPG.

Farrukh Shabab, Naib Daradar BMP D.G. Khan with record

2012 M L D 604

[Lahore]

Before Umar Ata Bandial, J

NIGAR BIBI and others---Petitioners

Versus

SALAH-UD-DIN and others---Respondents

Civil Revision No.2252 of 2009, heard on 19th April, 2010.

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

----S. 18---Forum of appeal---Determination---Expression "value of original suit" in S.18, West Pakistan Civil Courts Ordinance, 1962---Meaning---Appeal filed by petitioner was returned by Appellate Court on the ground that Trial Court's decree for possession along with mesne profit amounting to Rs.6.95 million exceeded the pecuniary jurisdiction of the Appellate Court---Contention of petitioner was that original suit was valued at Rs.1.063 million whereas pecuniary jurisdiction of Appellate Court extended to suits valuing up to Rs.2.5 million---Respondent contended that once value of suit was determined by Trial Court, appellate forum was to be determined on the basis of such ascertained value and not on the value originally fixed in the plaint---Held, that where the value of the suit fixed in the plaint was under dispute, judicially ascertained value of the suit overrode the value that is fixed in the plaint to determine the appellate forum and the amount of court fee payable---In the present case, there was no such dispute between the parties---Meaning ascribed to the expression "value of original suit" in S. 18(1) of the West Pakistan Civil Courts Ordinance, 1962 was confined to the valuation given in the plaint, and the value given in the plaint determined the forum of appeal---View taken by Appellate Court was, therefore, misconceived---Revision was allowed , in circumstances.

Muhammad Ayub and others v. Dr. Obaidullah and 6 others 1999 SCMR 394 and National Bank of Pakistan v. Muhammad Akram Khan 2000 CLC 1493 rel.

Abdul Majid and others v. Muhammad Walayat Khan 1987 SCMR 1139 fol

Fateh Ali v. Tassadad Hussain and 5 others PLD 1975 Lah. 1094; Abdul Majid v. Muhammad Afzal Khokhar 1992 CLC 1152 and Farman Ali v. Mansoor Ali PLD 1962 Dacca 214 distinguished.

Taki Ahmed Khan and Mirza Hafeez-ur-Rehman for Petitioners

Ahmed Waheed Khan for Respondents.

Date of hearing: 19th April, 2010.

2012 M L D 614

[Lahore]

Before Sagheer Ahmed Qadri, J

Mst. ANWAR BIBI---Petitioner

Versus

MUHAMMAD AKRAM and others---Respondents

Writ Petition No.2312 of 2011, decided on 22nd November, 2011.

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

----S. 7(2)---Constitution of Pakistan, Art. 199---Constitutional Petition---Suit for recovery of maintenance allowance, dower, a buffalo and cash---Production of witnesses---Trial Court after closing of evidence of petitioner and at the stage of recording evidence of respondent; dismissed petitioner's application to call a witness not cited in the list of witnesses---Contention of petitioner was that under first proviso to the West Pakistan Family Courts Act, 1964, it was the discretion of the court to allow any party, with the permission of the court, at any later stage, to call any person as a witness if the evidence of such witness was considered expedient in the interest of justice---Validity---Whenever any such discretion was left open with a court, such discretion should be liberally exercised in a beneficial manner---Basic intention of law, in the light of proviso to S.7(2) of the West Pakistan Family Courts Act, 1964, was that for the settlement of controversial factual aspects, parties be provided ample opportunities to lead their respective evidence so that such disputes be resolved within the minimum possible time at the earliest stage---Trial Court, in the peculiar circumstances of the case must have allowed application of the petitioner so that the matter could be resolved in its entirety at that stage---Order of Trial Court was set aside and constitutional petition was allowed, in circumstances.

Malik Irfan Ahmed Gheba v. Zubi Irfan and 4 others 2004 MLD 635 and Muhammad Akram v. Judge, Family Court and others 2009 CLC 269 rel.

Sana Muhammad v. Family Judge, Karachi and another 1983 CLC 3246 ref.

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

----S.7(2), poviso---Object of S.7(2), proviso, West Pakistan Family Courts Act, 1964---Production of witness---Basic intention of law in the light of proviso to S.7(2) of the West Pakistan Family Courts Act, 1964 was that for the settlement of controversial factual aspects, parties be provided ample opportunities to lead their respective evidence so that such disputes be resolved within the minimum possible time at the earliest stage.

Miss Shagufta Jabeen Malik for Petitioner.

Raja Altaf Hussain Satti for Respondent No.1.

2012 M L D 624

[Lahore]

Before Amin-ud-Din Khan, J

BAGOO---Petitioner

Versus

GHULAM HUSSAIN---Respondent

Civil Revision No.225-D of 1996/BWP, heard on 24th June, 2011.

Civil Procedure Code (V of 1908)---

----S. 115---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Respondent objected to competency of the revision application on ground that documentary evidence produced by the parties before Trial Court had not been appended in the revision---Validity---Objection of respondent was valid as documentary evidence that had not been appended with the revision could not be taken into consideration---Documentary evidence was not available on the record and without considering or going through the same, judgment passed by Appellate Court could not be set aside---Petitioner had admitted the possession of respondent over suit property and had simply filed suit for declaration without praying for possession over the suit property---Suit was not competent in the light of the bar contained in S.42 of the Specific Relief Act, 1877---Revision having no merits, was dismissed accordingly.

Sardar Muhammad Hussain for Petitioner.

Nadeem Iqbal Chaudhary for Respondent.

Date of hearing: 24th June, 2011.

2012 M L D 633

[Lahore]

Before Abdul Waheed Khan, J

MUHAMMAD ASIF SAIGOL---Petitioner

Versus

Mian MUHAMMAD SHAFI and another---Respondents

Writ Petition No. 18914 of 2011, decided on 22nd November, 2011.

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

----S.3/5---Criminal Procedure Code (V of 1898), S.265-K---Constitution of Pakistan, Art. 199---Constitutional petition---Accused petitioner had filed an application under S. 265-K, Cr.P.C. for his acquittal in a private complaint filed by complainant under Ss. 3 and 5 of the Illegal Dispossession Act, 2005---Trial Court had dismissed the said application on the only reason that all the points raised by the accused petitioner required evidence---Validity---Said reason did not appear to be a valid reason for the dismissal of the application---Judgment or order must be speaking one, so that its reader may understand with clarity the reason for passing the same---Every order passed under the provisions of any statute in judicial or quasi judicial capacity or even in executive capacity, should contain reasons and there should be objectivity in the reasons---Expression "reason" has not been defined in any law, but in common parlance the expression denotes an action taken or order passed by the person, office or authority which is reasonable conforming to the requirement of reasonability---Proper cause for the Trial Court should have been to consider all the points raised before it during arguments and then to decide each point after assigning valid reason for the same---Impugned order suffered from such lacuna and was resultantly set aside---Case was remanded to Trial Court for deciding the application under S.265-K, Cr.P.C. afresh in the light of the aforesaid observations---Constitutional petition was accepted accordingly.

(b) Judgment---

----Importance of "reasons" in the judgment emphasized.

Iftikhar Ullah Malik for Petitioner.

Muhammad Masood Akhtar Khan for Respondents.

2012 M L D 643

[Lahore]

Before Abdul Waheed Khan, J

Mst. NASREEN BIBI---Petitioner

Versus

ABDUL RASHID and others---Respondents

Writ Petition No.3599 of 2009, decided on 7th July, 2011.

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

----O. X, R.2, O.XXXII, R.15 & S.151---Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration---Contention of petitioner was that court was not vested with the powers to record the statement of the plaintiff in the suit in absence of the parties due to which right of petitioner to contest the suit had been seriously prejudiced---Validity---Suit was filed by next friend of plaintiff as it was claimed that the plaintiff was of unsound mind and to ascertain that fact, court deemed it appropriate to summon the plaintiff---Court was fully competent to examine a party under O.X, R.2, C.P.C.---Oral examination of a party was meant for the purpose of ascertaining the matter in controversy---Court had not exceeded its jurisdiction while summoning the petitioner in the suit and recording his statement for the purpose of ascertaining whether he was a person of unsound or healthy mind---Court was also justified in recording statement of the plaintiff in-camera for dispelling the impression of influence of any parties---Court, in exercise of powers under S.151, C.P.C. could make such orders as may be necessary for ends of justice or to prevent abuse of process of the court---Courts were not to act upon the principle that every procedure is to be taken to be prohibited unless it was expressly provided for by C.P.C., but on the converse principle that every procedure was to be understood as permissible till it was to be prohibited by law---Prohibition could not be presumed as a matter of general principle---Trial Court did not commit any illegality or irregularity while recording statement of plaintiff, and resultantly, constitutional petition was dismissed.

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

----Preamble---Courts are not to act upon the principle that every procedure is to be taken to be prohibited unless it is expressly provided for by the Code of Civil Procedure, 1908, but on the converse principle that every procedure is to be understood as permissible till it is to be prohibited by law---Prohibition cannot be presumed as a matter of general principle.

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

----S. 151---Court, in exercise of powers under S.151, C.P.C. could make such orders as may be necessary for ends of justice or to prevent abuse of process of the court.

Abdul Majeed for Petitioner.

Ch. Abdul Salam for Respondents.

2012 M L D 655

[Lahore]

Before Mazhar Iqbal Sidhu, J

SAFIA BEGUM---Petitioner

Versus

MUHAMMAD MUKHTAR alias MUKHA and 4 others---Respondents

Writ Petition No.28303 of 2011, decided on 28th December, 2011.

Criminal Procedure Code (V of 1898)---

----S.491---Habeas corpus petition---Custody of minor---Minor detenu aged 7 years had been produced in the court, who was presently living with the respondent---Minor was the step son of the deceased in which murder case his real mother was involved---Petitioner being real grand maternal mother of the minor child, through an intrigue needed his custody with a view to extract benefit in the murder case for her daughter---Respondent with whom the minor was living was the complainant of the said murder case and he was not directly related to him---Affection had developed between the minor and the respondent and the minor in the court had expressed his will to live with him---Respondent had no issue---Minor had reached the brink of level of expressing his opinion and the same could not be ignored---Impugned order passed by Sessions Court as to the custody of minor needed no interference---Custody of minor was directed to remain with the respondent---Petition was dismissed accordingly.

Azam Sultan Suharwardy for Petitioner.

Muhammad Maqsood-ul-Hassan, A.A.-G. with Sarfraz Inspector.

Nazir Ahmad Rehmani for Respondent No.1.

2012 M L D 662

[Lahore]

Before Amin-ud-Din Khan, J

AHMAD KHAN and 4 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, RAHIM YAR KHAN and others---Respondents

Writ Petition No.1715 of 2002/BWP, decided on 9th June, 2011.

Civil Procedure Code (V of 1908)---

----Ss. 12(2) & O.III, Rr. 1, 2---Limitation Act (IX of 1908), Art.181---Constitution of Pakistan, Art. 199---Constitutional Petition---Suit of petitioner was decreed by Trial Court, but the said decree was set aside on application under S. 12(2) of the C.P.C.---Contention of the petitioner was that the said application had been fictitiously filed as the applicant had died long before filing of said application and that the application was filed by a person claiming to be attorney of another person who was stated to be the attorney of the applicant---Validity---Suit of petitioner was decreed in the year 1978 and application under S.12(2) of the C.P.C. against the decree was filed on 21-3-1987, which was clearly time-barred---Applicant never appeared in court despite clear assertion of the petitioner in the written reply to the said application that she had died before filing of said application---Application in question had been filed fictitiously---Basis for filing the application and all proceedings were defective because alleged attorney of the applicant had further delegated powers to another person---Original attorney of the applicant did not come on record to show the link of such person with the applicant, and even otherwise under the law the attorney could not further delegate his powers to any other person---Courts below fell into error while recording their findings against the settled principles of law, which were against the record---Orders of courts below were said aside, and the decree in favour of the petitioner was restored----Constitutional Petition was accepted, accordingly.

Raja Muhammad Sohail Iftikhar for Petitioners.

Naveed Khalil Chaudhry, A.A.-G.

Muhammad Jamil Khan, Tehsildar Rahim Yar Khan with Riaz Hussain and Muhammad Saleem, Patwaries for Respondents.

2012 M L D 670

[Lahore]

Before Rauf Ahmad Sheikh, J

IFTIKHAR AHMAD CHISHTI---Petitioner

Versus

DISTRICT JUDGE, CHAKWAL and others---Respondents

Writ Petition No.699 of 2009, decided on 16th January, 2012.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Suit for custody of minors---Contest between father and mother of minors---Suit of petitioner (father) for custody of minors was dismissed concurrently by the Guardian Court and Appellate Court, and such dismissal was assailed in the constitutional petition---Petitioner had admitted that a suit for maintenance of minors against the petitioner was filed in the year 2003 while suit for custody of minors was filed by him in the year 2007---Petitioner also admitted that he had filed an appeal against the judgment and decree of Family Court in the suit for maintenance, and had been litigating against the minors throughout, and had failed to pay the maintenance under the decree of Family Court and was detained in civil prison---If a father failed to pay maintenance, and then litigated against the custody of minors and finally did not pay the maintenance even after the decree of the court and preferred to go to civil prison , it could be safely presumed that he was not interested in the welfare and well-being of the minors---Petitioner appeared to be disinterested in the well-being of the minors and was living with his second wife and could not categorically deny that he had children from his second wife---Step-mother could not bestow the love and affection which would be given by the real mother---Courts below had rightly found, in such circumstances, that it was not in the welfare of the minors to be given to the petitioner (father)---Contention that better education facilities were available at the place where the petitioner was residing or that the petitioner had better means than the respondent, were not valid grounds to give the minors in his custody---Constitutional petition was dismissed with the observation that the petitioner may move application for visitation rights with minors.

PLD 2008 Lah. 527; 2006 YLR 4; 2000 MLD 1216; 2008 YLR 168; 2008 SCMR 480 and 2001 CLC 1983 ref.

Malik Muhammad Jahanzeb Khan Tamman for Petitioner.

Haroon Irshad Janjua for Respondent No.2.

2012 M L D 677

[Lahore]

Before Muhammad Qasim Khan, J

MUHAMMAD ARIF SABRI and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.11675-B of 2011, decided on 14th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365-B---Abduction---Bail, grant of---Further inquiry---Benefit of doubt---Complainant despite having been informed by the witnesses about the abduction of his two daughters by the accused, had kept on searching them without informing the police for twenty one days---Said inordinate delay of 21 days in lodging the F.I.R. had cast serious doubts about the veracity of the complainant---Both the alleged abductees had completely contradicted each other in their statements recorded under S.161, Cr.P.C.---One abductee had stated that the accused had not abducted her or her sister and that she had contracted Nikah with a person with her free-will---Other abductee had levelled allegation of abduction and zina against the accused---Both these statements when juxtaposed had, prima facie, made the case against the accused doubtful requiring further inquiry into the matter---Benefit of doubt, howsoever slight, had to be given to accused even at bail stage---Nothing was to be recovered from the accused and their further detention behind the bars would not be useful for the prosecution---Bail was allowed to accused in circumstances.

Ch. Tariq Ali for Petitioners.

Gohar Razzaq Khan for the Complainant.

Mian Hamyun Aslam, D.P.-G. with Arshad Ali A.S.-I.

2012 M L D 686

[Lahore]

Before Rauf Ahmad Sheikh, J

ABDUL REHMAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI and others---Respondents

Writ Petition No.773 of 2008, heard on 12th January, 2012.

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

----Ss. 30 & 31---Constitution of Pakistan, Art.199---Constitutional petition---Pre-emption suit---Sale through registered deed---Limitation, computation of---Pre-emption suit of petitioner was dismissed on the ground that the same was barred by time---Contention of the petitioner was that issuance of a notice under S.31 of the Punjab Pre-emption Act, 1991 was a mandatory provision and non-compliance of the same by the vendee would not affect the rights of the pre-emptor adversely and that in case no notice as required under S.31 of the Punjab Pre-emption Act, 1991 was given, limitation would start from the date of knowledge and not from the date of attestation of the sale deed or mutation---Validity---Plain reading of S.30 of the Punjab Pre-emption Act, 1991 revealed that the period of limitation for the filing of a suit to enforce the right of pre-emption was four months from the date of registration of sale-deed, attestation of mutation, delivery of physical possession if sale was made other than through the sale-deed or mutation ; and knowledge if the same was not made in any one of the three modes---Limitation in the present case, would start from the date of registration of the sale-deed, which by itself would be deemed to be a notice to the public for the purposes of institution of suit for pre-emption---Section 31 of the Punjab Pre-emption Act, 1991 which , inter alia ,required the issuance of notice by the Registering Officer of the attestation of the mutation or sale deed was an independent provision of law and had no nexus with S.30 of the Punjab Pre-emption Act, 1991---Had the intention of the legislature been that in case of non-service of notice by the Registering Officer the limitation would start from the date of knowledge; it could have easily and clearly enacted so---Provisions of S.30 of the Act were independent and had to be construed strictly keeping in view the text of the same---Limitation could not be extended due to non-service of notice under S.31 of the Punjab Pre-emption Act, 1991---Constitutional petition was dismissed, in circumstances.

Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499; Shoukat Hayat v. Liaquat Khan 2005 YLR 60; Qasim Ali v. Rehmatullah 2005 SCMR 1926 and Rahm Badshah v. Zalia Khan and 5 others 2004 SCMR 1941 ref.

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

----Ss. 30 & 31---Interpretation---Non-service of notice required under S.31, Punjab Preemption Act, 1991---Effect---Section 31 of the Punjab Pre-emption Act, 1991 which required the issuance of notice by the Registering Officer of the attestation of the mutation or the sale-deed was an independent provision of the law and had no nexus with S.30 of the Punjab Pre-emption Act, 1991---Limitation could not be extended due to non-service of the notice required under S.31 of the Punjab Pre-emption Act, 1991.

Ziafat Hussain Cheema for Petitioner.

Muhammad Idrees Mirza for Respondent No.3.

Date of hearing: 12th January, 2012.

2012 M L D 693

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD MUMTAZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.16488-B of 2011, decided on 22nd December, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd common intention---Bail, refusal of---Accused had allegedly hit the deceased twice with a brick on the back of his chest, which caused swelling on the back of the deceased's chest and his underlying muscles and soft tissues were found damaged with clotted blood at two different places, underneath the said injuries---Medical officer had declared the cause of death as cardio-genic shock resulting from traumatic injuries on the back of the deceased's chest---Complainant had categorically alleged in the F.I.R. that accused hurled a brick twice on the back of deceased's chest which sent him to the ground in an injured condition--Opinion of Investigating Officer that deceased went back to his house from the place of occurrence and lived for two and a half hours after the occurrence before he suffered a fatal heart attack, was without any substance as the medical officer had recorded that the probable time that elapsed between injuries and death was one hour---Statements of eye-witnesses under S. 161, Cr.P.C. were in line with the version of the complainant as contained in the F.I.R.---Deceased was murdered in daylight and parties were fully known to each other and there was no possibility of mistaken identity of the accused---Sufficient incriminating evidence was available to formulate that accused's case did not call for further probe into his guilt---Bail application of accused was dismissed accordingly.

Shahid Nawaz Langrial for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor-General Punjab for the State with Munir Ahmad A.S.-I.

Miss Aalia Neelum for the Complainant.

2012 M L D 701

[Lahore]

Before Amin-ud-Din Khan, J

Mst. GAMAN and others---Petitioners

Versus

MUHAMMAD AMIN and others---Respondents

Civil Revision No.91-D/BWP of 1991, decided on 9th June, 2011.

(a) Islamic law---

----Inheritance---Suit for sharaee share from ancestral property---Predecessor of the parties who was the owner of agricultural land and residential Ihatas, died in the year 1947 leaving behind four daughters and two widows/the plaintiffs and four sons/the defendants---Plaintiffs/females claimed that they being legal heirs, were entitled to take share from the property of their predecessor in accordance with Sharia as their family was governed by Shariat---Plaintiffs alleged that sons of deceased/defendants with the connivance of Revenue Staff, had fraudulently got the land transferred in their favour, ignoring them/daughters and widows of the deceased---Defendants resisted the suit, contending that mutations in their favour were in the knowledge of the parties from their attestation, the suit filed by the plaintiffs was time barred; that the plaintiffs had agreed for the attestation of the mutation in favour of the defendants; that they having made no claim at the time of attestation of mutation, they were estopped to challenge the mutation in the suit and that there was custom that females of the family, were not entitled in the inheritance in the existence of male legal heirs of the deceased---All the legal heirs of deceased had been entered in Column No.9 of the mutation in question---Cuttings on the names of widows and daughters were found in the entries and their names were deleted whereas in the order of sanction of mutation presence of plaintiffs had been shown---After cutting the names of the ladies, the mutations had been sanctioned only in the names of defendants/sons of the deceased---Pleadings and evidence of the defendants led towards the point that there was no question of custom in the case---Only the plea of custom taken in the written statement, was not sufficient and they were bound to prove the same---Contention of counsel for the defendants that plaintiffs having appeared before the Revenue Officer, they were estopped to file the suit was repelled as plaintiffs/daughters of the deceased, being minors at the time of sanction of mutations, there was no benefit for the defendants, but it was against them, that as to how they procured the consent of minors; and whether consent of minors was binding upon them---Such situation did not constitute estoppels against the minors---Even otherwise the defendants had not claimed any gift or Tamleeq from their sisters and the widows of the deceased/the plaintiffs---Family of the parties in the matter of inheritance, in circumstances, was governed by Shariat and not by the custom---Findings of both the courts below, being contrary to law as well as based on mis-interpretation of documentary evidence on record and giving preference to the oral evidence against the documentary evidence and violation of law---Judgments and decrees passed by the courts below, were set aside in circumstances and suit filed by the plaintiffs was decreed.

Umar Din and another v. Mst. Sharifan and another PLD 1995 SC 686; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Dr. Azeemur Rehman and others v. Government of Sindh and others 2011 SCMR 835 and Mst. Sharam v. Taj Muhammad and others 2002 CLC 2001 rel.

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

----S. 115---Revisional jurisdiction---Scope---Concurrent findings of facts by the two courts below---Revisional court had to see as to how the concurrent findings had been recorded---No hard and fast rule existed to the effect that in case of concurrent findings, High Court lacked jurisdiction to entertain the petition under S.115, C.P.C.; to scrutinize evidence, where mis-interpretation of documentary evidence was visible on the record; and interfere where the findings were based on non-reading and misreading of the material evidence on the file.

M.A. Rasheed Chaudhry for Petitioners.

Jamshaid Iqbal Khakwani for Respondents.

Date of hearing: 9th June, 2011.

2012 M L D 716

[Lahore]

Before Syed Iftikhar Hussain Shah, J

Raja FAZAL-UR-REHMAN---Petitioner

Versus

GULRAIZ AKHTAR and another---Respondents

Criminal Miscellaneous No.8217-CB of 2011, decided on 22nd September, 2011.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/364/109---Qatl-e-amd, abduction, abetment---Application for cancellation of bail, refusal of---Accused was not nominated in F.I.R. and he was subsequently involved in the case on the basis of supplementary statement of the complainant, extra-judicial confession allegedly made by him before two ladies and judicial confession made by the co-accused---Extra-judicial confession was always considered to be a very weak evidence---Value of judicial confession of co-accused implicating the accused would be considered as a corroborative piece of evidence at the trial---Nothing was recovered from the accused during investigation---No allegation was made against accused to the effect that he had misused the concession of bail, he was likely to abscond, he was hindering in fair investigation of case or he had threatened the witnesses---No cogent reason or legal justification was available to withdraw the concession of bail granted to accused by Sessions Court---Petition was dismissed accordingly.

Raja Fazal-ur-Rehman v. Muhammad Afzal and another 2010 SCMR 179 ref.

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

----S. 497(5)---Bail, cancellation of---Principles---Considerations for cancellation of bail are altogether different from those required for grant or refusal of bail---Once an accused is admitted to bail by a competent court, then extraordinary circumstances are required to interfere with the said order---Such circumstances are, conduct of accused; whether he had misused the facility of bail; there is likelihood of absconding of accused from the jurisdiction of court; whether the accused is hampering the investigation; threatening the witnesses or is creating obstruction in the course of justice.

Ch. Muhammad Zubair for Petitioner.

Mirza Abid Majeed, D.P.G. for the State.

Muhammad Afzal, A.S.-I. with record.

Mian Zulfiqar Ali, for Respondent No.1.

2012 M L D 725

[Lahore]

Before Shahid Hameed Dar, J

Mian ZAHID---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.7444-B of 2011, decided on 13th July, 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 common object---Bail, refusal of---Counter versions of both the parties would be decided by Trial Court through independent trials by keeping their respective pleas in juxtaposition inter se---Accused, according to F.I.R., while armed with Kalashnikov had caused six firearm injuries on the body of the deceased and killed him at the spot---Opinion of Investigating Officer did not bind the court in any manner---Injuries allegedly received by a couple of accused during the occurrence and submission of challan in the cross version, would gather importance when the accused of cross version would vie for their bails---Offence against accused entailed capital punishment---Case of accused did not constitute need for further inquiry into his guilt---Bail was declined to accused in circumstances.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; Nasir Muhammad Wassan and another v. The State 1992 SCMR 501 and Muhammad Ashraf v. The State 2007 MLD 482 ref.

Munir Ahmad Bhatti for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor-General Punjab for the State with Zafar S.I.

2012 M L D 729

[Lahore]

Before Syed Iftikhar Hussain Shah, J

RIFAT NAZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.8615-B of 2011, decided on 7th September, 2011.

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

----S. 103---Penal Code (XLV of 1860), Ss.365/382---Abduction, theft---Recovery, admissibility of---Only such recoveries are admissible in evidence which are effected on the pointation of the accused.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.365/382---Abduction, theft---Bail, grant of---Further inquiry---Stolen gold bangles were not recovered on pointation of accused and the same were brought to police station by the brother of the accused, which had been taken into possession by Investigating Officer vide recovery memo---Said recovery was not a legal piece of evidence---Accused had a one year old suckling baby with her in jail---Accused was not nominated in the F.I.R., nor her features were mentioned therein---Guilt of accused, thus, needed further probe---Bail was allowed to accused in circumstances.

Ch. Ifran Saeed for Petitioner.

Ch. Irfan Salamat Ali Bajwa for the Complainant.

Rana Taswar Ali, A.P.-G. along with M. Asghar S.I.

2012 M L D 732

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

SHAKEEL AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.17587-B of 2011 and 104-M of 2012, decided on 19th January, 2012.

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

----S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Pre-arrest bail, refusal of---Contumacious conduct of bail applicant---Falsely posing to be on bail---Accused was alleged to have misappropriated an amount which he obtained after selling the house of the complainant---Pre-arrest filed by accused was dismissed by court below but accused was not arrested by the police---Complainant procured an order of issuance of non-bailable warrants of arrest against accused in return of which accused lodged F.I.R. against the complainant---Accused provided a certificate to the Investigating Officer of the case showing that accused was granted ad interim pre-arrest bail in the case and due to such certificate Investigating Officer did not arrest the accused---Complainant, on noticing the matter, filed an application for cancellation of the bail before the court below, where it transpired that bail petition filed by accused was for a different F.I.R. than the one in which he had been nominated and that affidavit appended with bail application contained F.I.R. number in which accused was nominated but the front page of the said bail application contained a different F.I.R. number, which clearly showed that accused deceitfully obtained an interim order of bail from the court below by mentioning the incorrect number of F.I.R.---Accused had failed to place on record any evidence to prove that the bail application was not filed by him---Accused had also filed a constitutional petition before the High Court, which was disposed of with the direction to the Superintendent Police (Investigation) for conducting honest and transparent investigation into the matter---Accused had misused the process of court for his own advantage and posed himself to be on bail in a different F.I.R. than the one he was nominated in and had not approached either court below or High Court with clean hands---Court not being inclined to lend any benefit to accused for his wrongs, his bail petition was dismissed.

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

----S. 498---Pre-arrest bail---Scope---Relief of anticipatory bail is an extraordinary relief, which cannot be granted to a person, who comes to court with unclean hands.

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

----Ss. 497 & 498---Bail---Principles---No bar for refusing bail to person whose conduct is contumacious and who is willing to play with the courts.

Shoaib Zafar for Petitioner.

Muhammad Ishaque, D.P.-G. with Liaqat Ali, A.S.-I.

Nadeem Shibli for the Complainant.

Criminal Miscellaneous No.104-M/2012

2012 M L D 737

[Lahore]

Before Malik Shahzad Ahmad Khan, J

MUHAMMAD SHAFIQ and 2 others---Petitioners

Versus

SECRETARY TO GOVERNMENT OF PUNJAB and 2 others---Respondents

Writ Petition No.13831 of 2010, decided on 27th July, 2011.

(a) Punjab Local Government (Auctioning of Collection Rights) Rules, 2003---

----Rr. 3, 27-A & Second Sched., Part-III, Item No. 2---West Pakistan Municipal Committees (Cattle Market) Rules, 1969, R. 6---Constitution of Pakistan, Art. 199---Constitutional petition---Auction of lease of collection of fee of Cattle Market---Order of authority directing petitioner to hand over charge of such market on expiry of one year---Plea of petitioner (highest bidder) was that such lease was given for three years as approved by Tehsil Nazim, Town Municipal Council and Provincial Government---Validity---Period of such lease as advertised and mentioned in contract document was one year---Petitioner had knowingly participated in auction proceedings that period of such collection rights was one year and not three years---Such auction was held under Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 and not under West Pakistan Municipal Committee (Cattle Market) Rules, 1969---Record showed that such lease had been approved by the Town Municipal Council for a period of one year---Under R. 3 of West Pakistan Municipal Committee (Cattle Market) Rules, 2003, such lease could not be awarded beyond period of one year---Under R. 27-A of said Rules no extension in such contract could be granted beyond period of one year---Lease would be illegal and void, if executed for a period of three years in violation of law/rules---Local Government itself had no authority to extend such contract beyond period of one year, thus, Provincial Government had no power to approve its extension for three years---High Court dismissed constitutional petition in circumstances.

Writ Petition No.24544 of 2009 ref.

Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others PLD 2001 SC 169 and Tanveer Hussein v. Divisional Superintendent, Pak Railways PLD 2006 SC 249 rel.

Ahmad Khan Niazi v. Town Municipal Administration, Lahore through Town Municipal Officer and 2 others PLD 2009 Lah. 657 distinguished.

(b) Administration of Justice---

----Anything required to be done in a particular manner must be done in such manner and not otherwise.

(c) Punjab Local Government (Auctioning of Collection Rights) Rules, 2003---

----Rr. 3, 27-A & Second Sched., Part-III, Item No. 2---Constitution of Pakistan, Art. 199---Constitutional petition---Contract for collection of fee of Cattle Market, cancellation of---Contractor's plea that he shifted market to another village due to reason that area acquired by Town Municipal Administration was not enough for holding such market---Validity---Contractor had no lawful authority to take on lease any other land for holding of a cattle market and shift market from place acquired by authority to such other place---High Court dismissed constitutional petition in circumstances.

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

----S. 23---West Pakistan General Clauses Act (VI of 1956), S.22---Publication of new Rules under a statute---Effect---Previous Rules would be deemed to be expressly repealed, if same were obviously and vividly inconsistent with such new Rules.

(e) Interpretation of statutes---

----Special Law would prevail over general law.

Neimat Ali Goraya and 7 others v. Jaffar Abbas, Inspector/ Sargent Traffic through S.P., Traffic, Lahore and others 1996 SCMR 826 and Dur Muhammad v. Abdul Sattar PLD 2003 SC 828 ref.

(f) Estoppel---

----No estoppel against law/statute.

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

----S.11---Res judicata, applicability of---Scope---Decision on a question of law without proper adjudication would not operate as res judicata.

Muhammad Saleemullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511 and Noor Muhammad v. Muhammad Iqbal Khan and 7 others 1985 CLC 1280 rel.

Ali Sibtain Fazli for Petitioners.

Mahmood A. Sheikh for Respondents Nos. 2 and 3.

Ch. Muhammad Maqsood-ul-Hassan, A.A.-G. for Respondent No.1

2012 M L D 754

[Lahore]

Before Abdus Sattar Asghar, J

Mst. ROBINA KAUSAR---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.17204-B of 2011, decided on 28th December, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.319 & 334---Qatl-e-khata, itlaf-e-udw---Ad interim pre-arrest bail, confirmation of---Further inquiry---Mishandling of child's delivery---Ultrasound report---Accused was alleged to have mishandled the delivery of complainant's wife resulting in the death of the child---Accused's contention that according to ultrasound report of complainant's wife conducted before the delivery, the child was already dead and accused neither operated nor handled the complainant's wife rather she was taken to the clinic of another doctor who mishandled the delivery of complainant's wife and delivered the dead child---Validity---Ultrasound report of complainant's wife was concealed in the contents of the F.I.R. and it was only obtained later by the Investigating Officer during the course of investigation---Was yet to be determined whether accused had taken the complainant's wife to her home/clinic to attempt delivery of baby and prosecution had not associated the other doctor who had allegedly operated upon the complainant's wife to deliver the dead baby---No confidence inspiring material was available on record to connect the accused with the offences for which she was charged---Accused's false implication could not be ruled out which made the matter one of further inquiry---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

Syed Faizul Hassan for Petitioner.

Muhammad Ishaq, D.P.-G. for the State along with Nazar, S.-I.

Muhammad Sohail Anjum for the Complainant.

2012 M L D 760

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

Mst. NAZISH KANWAL---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No.24253 of 2011, decided on 17th February, 2012.

Criminal Procedure Code (V of 1898)---

---Ss. 22-A & 22-B---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Order of registration of F.I.R. by Justice of Peace against petitioner was assailed---Husband (respondent) had submitted an application before the ex-officio Justice of Peace, alleging that on the day of occurrence when he returned to his house, his wife (petitioner) was not present and cash and gold ornaments were missing from his house---Ex-Officio Justice of Peace issued directions to the S.H.O. for registration of case to redress grievance of husband---Wife (petitioner) had challenged the order passed by ex-officio Justice of Peace, contending that she could not be charged for committing theft of an article in the absence of her husband in the house, as she was equal owner of that property---Validity---Constitutional petition was not entertainable for the reason that interference by High Court in the impugned order could have amounted to quashing of F.I.R., which was to be registered by the S.H.O. under the orders of the court of competent jurisdiction---Contentions raised by wife would be available to her when she would avail her legal remedies available to her under the law---High Court could not indulge for resolving factual controversies between the parties---High Court declined to interfere in the order of the ex-officio Justice of Peace---Constitutional petition was dismissed.

Azmat Ali Chohan for Petitioner.

Ch. Khadim Hussain Qaiser, Additional Advocate-General Punjab.

Rana Muhammad Amin Azeemi for Respondent No.3.

Rab Nawaz, S.I. along with record.

2012 M L D 768

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

FAISAL MEHMOOD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, SHEIKHUPURA and 7 others---Respondents

Writ Petition No.1112 of 2012, decided on 19th January, 2012.

Criminal Procedure Code (V of 1898)---

---Ss. 22-A & 22-B---Constitution of Pakistan, Art. 199---Constitutional petition---F.I.R. was registered against the petitioner and his co-accused---Petitioner sought registration of separate F.I.R. in respect of the same occurrence and submitted an application before ex-officio Justice of Peace, but same was dismissed after relying on the report of the S.H.O. of the concerned police station---Validity---Application for registration of F.I.R., filed by petitioner disclosed that the respondents were involved in the commission of a cognizable offence and the Justice of Peace was duty bound to direct the S.H.O. of the concerned police station to register a separate F.I.R.---Justice of Peace without giving any independent finding had relied upon the police report and committed an illegality in dismissing the application of the petitioner---Constitutional petition was allowed and Justice of Peace was directed to re-decide the petitioner's application filed under Ss. 22-A and 22-B, Cr.P.C.

Mian Shahid Iqbal for Petitioner.

2012 M L D 770

[Lahore]

Before Sh. Ahmad Farooq and Muhammad Qasim Khan, JJ

Mst. NASREEN BIBI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.250 of 2006, decided on 5th July, 2011.

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

----Ss. 9(c), 21 & 2(t), (v), (w)---Appreciation of evidence---Assistant Sub-Inspector of Police was fully competent, in given circumstances, to conduct raid and seize the narcotics---Section 21 of the Control of Narcotic Substances Act, 1997, being directory in nature, any violation thereof was not fatal to prosecution case---Requirement to obtain search warrant could be dispensed with where a quick action was required to be taken---Delay in sending the recovered narcotic substance to Chemical Examiner for analysis could not be fatal in the absence of an objection regarding the same having been tampered with---Poppy straw and poppy heads included all parts of the poppy plant---"Phakki" (post) recovered from the accused was a narcotic substance as defined in Ss.2(t), 2(v) & 2(w) of the Control of Narcotic Substances Act, 1997---Law did not require sending the whole narcotic substance to Chemical Examiner, only a small quantity thereof would be enough to prove that the entire recovered material was contraband---Both the recovery witnesses were consistent on the point of time, date and place of raid, search, recovery of "post" from the accused, preparation of sample and its dispatch to the Office of Chemical Examiner---Investigating Officer had clarified that persons present at the place of recovery had refused to become witnesses in the case---Police Officials were as good witnesses as public witnesses, until and unless defence would establish some specific enmity or malice against them---Non-association of any witness from public, therefore, was not fatal to prosecution case---Report of Chemical Examiner was positive---Conviction and sentence of accused were upheld in circumstances.

Muhammad Akram v. The State 2007 SCMR 1671 and Niaz Muhammad v. The State 2006 PCr.LJ Pesh. 228 ref.

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

----S. 21---Entry, search, seizure and arrest without warrant---Dispensation of---Requirement to obtain search warrant can be dispensed with in cases where a quick action is required to be taken and it would be difficult to obtain search warrant where due to paucity of time apprehension of narcotics being removed or culprits having chance to escape are eminent.

Muhammad Akram v. The State 2007 SCMR 1671 ref.

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

----S.9(c)---Appreciation of evidence---Delay in sending the incriminating articles to the concerned quarters for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with.

Niaz Muhammad v. The State 2006 PCr.LJ (Pesh.) 228 ref.

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

----S. 9(c)---Appreciation of evidence---Police witnesses, credibility of---Police officials are as good witnesses as public witnesses until and unless the defence establishes some specific enmity or malice against them.

Zubair Afzal Rana for Appellant.

Muhammad Ikhlaq Ahmad, Deputy Prosecutor-General for the State.

Date of hearing: 1st June, 2011.

2012 M L D 780

[Lahore]

Before Rauf Ahmad Sheikh, J

Mst. AZRA BEGUM---Petitioner

Versus

CAPITAL CITY POLICY OFFICER and 2 others---Respondents

Writ Petition No.25209 of 2011, heard on 9th December, 2011.

Criminal Procedure Code (V of 1898)---

----S.22-A(6)---Constitution of Pakistan, Art.199---Penal Code (XLV of 1860), S. 302---Constitutional petition---Qatl-e-amd---Registration of F.I.R.---Complainant was real mother of the girl who had been murdered due to her refusal to involve herself in prostitution---Deceased had been abducted after she had obtained a decree for dissolution of marriage and failure of her ex-husband to obtain her custody from Sessions Court through an application under S.491, Cr.P.C.---Station House Officer was duty bound to reduce such information into writing and proceed further in accordance with law---Respondents/Police Officers had not only flouted the orders of the Justice of Peace, but also failed to perform their duties in spite of direction of a competent forum---Ex-officio Justice of Peace could lawfully require the S.H.O. to register the case as provided under S.22-A(6), Cr.P.C. and in case of contumacious disobedience of the order, High Court through exercise of its powers under Art.199 of the Constitution could direct the concerned Police Officer to perform his duties as required under the law---Respondents/Police Officers were, consequently, directed to ensure that the statement of the complainant was recorded under S.154, Cr.P.C. and thereafter investigation of the case was conducted on merits strictly in accordance with law---Petition was disposed of accordingly.

Rai Zameer-ul-Hassan for Petitioner.

Ch. Naseer Ahmad Gujjar-I, Arif Yaqub Khan, A.A.-G., Mujahid Hussain, S.-I. and Ashfaq, S.I. along with record for Respondents.

Date of hearing: 9th December, 2011.

2012 M L D 802

[Lahore]

Before Amin-ud-Din Khan, J

AADUT---Petitioner

Versus

NOOR AHMAD---Respondent

Civil Revision No.697 of 2001/BWP, heard on 3rd October, 2011.

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

----S.39---Suit for cancellation of mutation---Suit of plaintiff was decreed by Trial Court, and said decree of Trial Court was set aside by Appellate Court---Validity---Plaintiff had contended that fraud was alleged in the plaint, and it was the duty of the defendant to prove the transaction and attestation of mutation---Fraud being a criminal act, it was necessary that pleadings of fraud be specific and with required details---If said details were missing, the pleading of fraud was defective---Alleging fraud without details would not help the plaintiff to prove the same with evidence---When a party came to know about a fraud, before filing any lis, it would definitely try to connect every link to prove such fraud---Fraud, in the present suit, had been pleaded without any details and without any evidence---Objection of the plaintiff that mutation did not create a title was true only when the transaction had not been proved by the parties and if parties relied on just a mutation, it certainty did not create or confer a right or title---When the event of transaction was fully proved and on the basis of such transaction, the mutation had been attested and proved, then the same certainly created a right and title in favour of the person, in whose favour mutation of sale had been attested---Registered sale deed was not required as the Transfer of Property Act, 1882 was applicable on urban area and not applicable to the rural area---Suit of plaintiff was not competent under S. 39 of the Specific Relief Act, 1877, and it was not a case for cancellation of document but was a suit for declaration which was to be filed under the relevant provisions of the Specific Relief Act, 1877---Even if suit of plaintiff was taken to be competent, then officials of the Revenue Department who attested the mutation and the Provincial Government had not been made party to the suit---Plaintiff, had got his statement recoded in rebuttal after the close of the defendant's evidence, and such statement could not be read as an affirmative part of his evidence---Defendant had fully proved the agreement of sale of suit land, the payment of earnest money and the mutation of suit land---Revision was dismissed.

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

----S.39--Civil Procedure Code (V of 1908), O.VI, R.4---Suit for cancel-lation of mutation---Allegation of fraud in the plaint---Proof---Scope---Fraud being a criminal act, it was necessary that pleadings of fraud be specific and with required details---If said details were missing, the pleading of fraud was defective---Alleging fraud without details would not help the plaintiff to prove the same with evidence---When a party came to know about a fraud, before filing any lis, it would definitely try to connect every link to prove such fraud.

Raja Muhammad Sohail Iftikhar for Petitioner.

Ch. Muhammad Amjad Khan for Respondent.

Date of hearing: 3rd October, 2011.

2012 M L D 812

[Lahore]

Before Rauf Ahmad Sheikh, J

Mst. SIKANDAR JAN---Petitioner

Versus

ABDUL RAZZAQ---Respondent

Civil Revision No.352 of 2004, decided on 25th January, 2012.

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

----Ss.115 & 151---Revision---Scope---Application for restoration of revision petition dismissed for non-appearance---Validity---Cases pertaining to the rights of the parties in respect of immovable property should be decided on merits and not on technicalities---Revision petition was admitted to regular hearing, which indicated that it was deemed proper that revisional jurisdiction be exercised to decide if the judgment of the Appellate Court was without any illegality or irregularity---High Court may call for any case, which had been decided by any subordinate court and make such order as it deemed fit if the subordinate court appeared to have exercised the jurisdiction not vested in it or had failed to exercise jurisdiction so vested or had exercised jurisdiction illegally or with material irregularity---Once revision petition under S. 115, C.P.C. was admitted to regular hearing, High Court should appraise the record and decide the same on merits instead of dismissing the same for non-appearance, even if both or one of the parties failed to appear on the date fixed for hearing---Expedient for the ends of justice that such delay be condoned and that the civil revision be decided on merits---Application for restoration was allowed by High Court, in circumstances.

PLD 1974 Kar. 339; 2002 SCMR 212 and PLD 1991 SC 250 ref.

(b) Civil Procedure Code (V of 1908)

----S.115---Civil Revision---Non-appearance of parties after regular admission of revision for hearing---Effect--- Once revision petition under S. 115, C.P.C. was admitted to regular hearing, then High Court should appraise the record and decide the same on merits instead of dismissing the same for non-appearance, even if both or one of the parties failed to appear on the date fixed for hearing.

(c) Administration of justice---

----Cases pertaining to rights of the parties in respect of immovable property should be decided on merits and not on technicalities.

Syed Zahid Hussain Bukhari for Petitioner.

Sardar Zaheer Ahmad for Respondent.

2012 M L D 820

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

BASHIR AHMED and others---Petitioners

Versus

SECRETARY IRRIGATION and others---Respondents

Civil Revision No.887 of 2009, heard on 5th 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---Suit of plaintiff and plaintiff's application for interim relief were dismissed concurrently by Trial Court and Appellate Court---Plaintiff had sought a restraining order against construction of watercourse outlet on the plaintiff's property---Validity---Perusal of record revealed that no document showed that an outlet had been constructed in compliance with impugned orders---Plaintiff's application for interim relief was only meant for restraining the construction of an outlet and in case the outlet was constructed, the application was bound to fail---For establishing the said fact, prima facie, the defendant was bound to prove construction of the alleged outlet in the personal property of the plaintiff which the defendant had failed to do---Trial Court had dismissed the plaintiff's application for interim relief on assumption and without consulting the record---Plaintiff's application for interim relief merited acceptance---High Court set aside orders of the courts below and the case was remanded to Trial Court---Revision was accepted, accordingly.

Inam Ullah Hashmi for Petitioners.

Sikandar Hayat Khan Sial, A.A.-G. for Respondents.

Date of hearing: 5th August, 2010.

2012 M L D 832

[Lahore]

Before Muhammad Ameer Bhatti, J

HAMIDA BEGUM and others---Petitioners

versus

PROVINCE OF PUNJAB through Collector and 4 others---Respondents

Civil Revision No.2059 of 2003, heard on 19th September, 2011.

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

----S. 77---Civil Procedure Code (V of 1908), S. 11---Specific Relief Act (I of 1877), S. 42---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 10 & 11---Suit for declaration---Transfer of evacuee land obtained by defendant alleged by plaintiff to be illegal and in fraudulent manner---Subsequent sale of suit land by defendant through sale-deed and refusal of Sub-Registrar to register the same---Defendant's suit under S. 77 of Registration Act, 1908 against such refusal decreed by Trial Court was upheld upto the Supreme Court---Defendant's plea that question of his ownership being in issue in his suit under S. 77 of the Registration Act, 1908 and decided in his favour could not be re-agitated in plaintiff's suit by virtue of S. 11, C.P.C.---Validity---Trial Court had decreed suit under S. 77 of Registration Act, 1908 on ground that as defendant was shown in revenue record to be owner of suit land, thus, Sub-Registrar could not refuse registration of its sale-deed---Trial Court in suit under S. 77 of the Act had rightly not decided ownership of either party, but had kept pending such question to be decided in an independent suit--For applying principle of res judicata there must be same claim, prayer and determination between parties on same point---Matter qua determination of ownership about suit land was not directly and substantially in issue in suit under S.77 of the Registration Act, 1908---Defendant's such plea was repelled in circumstances.

Defence Housing Authority, Lahore Cantt. through Secretary v. Punjab Cooperative Housing Society Ltd. through Secretary 2011 CLC 520; Flt. Lt. (Dr) Shariq Saeed v. Mansoob Ali Khan and 5 others 2010 YLR 1647; Mst. Sabiran Bibi and others v. Ahmed Khan and others 2008 SCMR 226; Waheed Azmat Sheikh v. Chairman, Habib Bank Limited and 2 others 2002 CLC 929; Muhammad Sadiq (decd.) through L.Rs and others v. Mushtaq and others 2011 SCMR 239; Muhammad Iqbal Khan v. The Chief Settlement Commissioner and Nasir ud Din Khan PLD 1965 SC 404; Masooda Begum through Legal Heirs v. Government of Punjab through Secretary Forest, Lahore and 9 others PLD 2003 SC 90 and Ghafoor Bukhsh v. Haji Muhammad Sultan and others 2001 SCMR 398 ref.

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

----S. 11---Res judicata principle of---Object.

The underlying purpose behind the principle of res judicata is that once an issue has been settled between the parties, the same should not be re-agitated or re-opened so as to ensure perpetual resolution of dispute and put an end to duplicity of litigation on the same issue.

(c) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 10 & 11---Civil Procedure Code (V of 1908), S. 9---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Transfer of evacuee land alleged to have obtained by defendant in fraudulent manner---Jurisdiction of civil court---Scope---Fraud could be challenged before civil court for being court of plenary jurisdiction---Civil court could decide such question after recording evidence of party.

Province of Punjab v. Muhammad Mehmood 1991 SCMR 1426 rel.

Khawar Ikram Bhatti and Miss Yasrab Gulzar for Petitioners.

Ms. Firdous Butt, A.A.-G. with Muhammad Asim SDEO, Forest Department, Silakot and Imtiaz ul Hassan, Incharge, Litigation Branch, Forest Division, Sialkot for Respondents.

Date of hearing: 19th September, 2011.

2012 M L D 852

[Lahore]

Before Rauf Ahmad Sheikh, J

GHULAM HUSSAIN through Legal Heirs ---Petitioner

versus

MUHAMMAD AHSAN and others---Respondents

Civil Revision No.1013 of 2003, heard on 3rd December, 2010.

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

----S. 6---Qanun-e-Shahadat (10 of 1984), Art. 30---Pre-emption suit---Admission procured through forgery---Binding effect---Plaintiff had contended that he had superior right of pre-emption on the basis of being a co-sharer in "Khata" and had annexed a copy of the "Jamabandi" with the plaint, and that the defendant had made an admission to that effect in their written statement---Validity---Trial Court summoned the Patwari for the Halqa who categorically stated that the said Jamabandi produced by the plaintiff was a result of forgery---Where admission was procured through forgery, the party making the same was not bound by it---Admission of the defendant was not made in good faith but was a result of a forged document---Relationship with the vendor did not constitute the superior right of pre-emption under the Punjab Pre-emption Act, 1991 and the admission could not have been used against the defendants and they could not be non-suited on the basis of the same---Revision was dismissed.

Said Kamal Shah's case PLD 1986 SC 360; Muhammad Yaqoob through Legal Heirs v. Feroze Khan and others 2003 SCMR 41; Secretary to Government (West Pakistan) Now N.-W.F.P. Department of Agriculture and Forests, Peshawar and 4 others v. Kazi Abdul Kafil PLD 1978 SC 242; Muhammad Rafiq and others v. Muhammad Ali and others 2004 SCMR 704; Qabil Shah and others v. Shaday PLD 1972 Pesh. 144; Mst. Hameeda Begum and others v. Khadim Hussain and others 2001 MLD 427 and Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 ref.

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

----Art. 30---Admission procured through forgery---Binding effect---If admission was procured through forgery, then the party making the same was not bound by it.

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

----Ss.6 & 5---Pre-emption suit---Shafi Khalit and Shafi Jar---Contention of plaintiff was that he had the superior right of pre-emption being "Shafi Khalit", as the source of irrigation in his land and the suit land was the same and was also "Shafi Jar" as he was the owner of land adjacent to suit land, and that it was not necessary to have pleaded that he was "Shafi Khalit" or "Shafi Jar" before the Trial Court as the same was proved through reliable documentary evidence---Validity---No evidence could be led regarding the contention of plaintiff that was not specifically raised in the pleadings before Trial Court---Even otherwise, "Aks Shijra" or "Fard Warabandi" did not prove that the plaintiff was a "Shafi Khalit" or "Shafi Jar", as documentary evidence did not prove the ownership or participation of the plaintiff in the special rights to irrigation---Revision was dismissed.

Mst. Hayat Begum v. Faiz Ahmad and another PLD 1986 (W.P.) Lah. 581 ref.

Muhammad Yousuf v. Manzoor Ahmad 2005 CLC 835 rel.

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

----S.6 (2)---Pre-emption suit---Non-mentioning of "Zaroorat" and avoidance of "Zarrar" in suit filed prior to 31-12-1993---Effect---Suit was dismissed on non-mentioning lack of avoidance of "Zarar" and non-mentioning of "Zaroorat"--­Validity---Section 6(2) of Punjab Pre-emption Act, 1991 was declared to be repugnant to Injunctions of Islam and it ceased to have effect from 31-12-1993---Suit of plaintiff was filed on 8-7-1985, therefore, the non-mentioning of filing of the suit for "Zaroorat" or for avoidance of "Zarar" was sufficient to non-suit the plaintiff on such ground---No illegality or infirmity in the judgments of the courts below---Revision was dismissed.

Haji Rana Muhammad Shabbir Ahmad Khan's case PLD 1994 SC 1; Ghulam Hussain and others v. Mushtaq Ahmad and others PLD 1994 SC 870; Falak Sher v. Muhammad Mumtaz and 2 others 1992 MLD 1879; Muhammad Aslam v. Jamil Ahmed 2005 YLR 2347 and Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200 rel.

Sh. Naveed Shaharyar for Petitioner.

Muhammad Ahsan Gondal for Respondents.

Date of hearing: 3rd December, 2010.

2012 M L D 859

[Lahore]

Before Amin-ud-Din Khan, J

CHOLISTAN DEVELOPMENT AUTHORITY---Petitioner

versus

JAMAL KHAN and others---Respondents

Writ Petitions Nos.1523, 1842, 250 of 2007 and 444 and 458 of 2008, decided on 11th July, 2011.

Cholistan Development Authority Act (XIV of 1976)---

----Ss. 1(2) & 16(1)---Constitution of Pakistan, Art.199---Constitutional petition---Determination and demarcation of land---Controversy between the parties was whether the land in dispute fell within the administration of Cholistan Development Authority or in the Colony area governed by the Secretary (Colonies) Board of Revenue---Board of Revenue demarcated the land as colony area which fell under the control of Board of Revenue---Validity---Petitioners had challenged the decision of Board of Revenue and urged that the decision be set aside on the basis of various contradictory reports made by the lower staff of the Revenue Department---No one had pointed out any illegality or material defect in the impugned decision of Board of Revenue---Reports of the lower staff, which were made at various times, could not be termed as 'order'---Board of Revenue had relied on the report and consulted the additional record before reaching to the decision---Only the Authority had a right to initially allot the land and the final determination was with the government, through the Member (Colonies) Board of Revenue---Cholistan Development Authority, in the matters of development and allotment of land was subservient to the Board of Revenue---When Board of Revenue, the Custodian of the land owned by the government, after full deliberation and consultation of the record had determined that the land in dispute fell in the colony area under administration of Colony Department of the Board of Revenue, there was no jurisdictional error or defect in such determination of Board of the Revenue---Extraordinary constitutional jurisdiction, could not be exercised in favour of the petitioners---Constitutional petitions were dismissed.

Masud Ashraf Sheikh for CDA Petitioner.

Ahmad Awai for Petitioners Jamal Khan and others.

Murad Ali Malik, Hafiz Abdul Qayyum, Mumtaz Hussain Bazmi and Malik Mumtaz Akhtar Addl.A.G. for Respondents.

Dates of hearing: 8th and 11th July, 2011.

2012 M L D 873

[Lahore]

Before Ch. Shahid Saeed, J

MUKHTAR AHMED and 4 others---Petitioners

Versus

TAJ DIN and others---Respondents

Civil Revisions Nos.1021 and 1022 of 1992, decided on 30th November, 2011.

(a) Fraud---

----If any party takes plea of fraud then that party is bound to prove the same through solid evidence.

Yasin alias Muhammad Hussain and 7 others v. Muhammad Siddique and 5 others 1994 CLC 836 rel.

(b) Evidence---

----Related witness---Principle---Evidence of witness cannot be brushed aside only because of his relationship, if otherwise it is disinterested and credible.

Abdul Rahim v. Mukhtar Ahmed and others 2001 SCMR 1488 rel.

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

----Art. 17 & 79---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Agreement---Proof---Plaintiff claimed that owners of suit land executed agreement to sell in his favour and received earnest money but sold the land to defendants---Suit filed by plaintiff was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of plaintiff---Validity---Plaintiff succeeded in establishing that in fact the owners agreed to sell the land in favour of plaintiff and in that respect agreement in question was genuinely executed by them in his favour---Plaintiff successfully proved the agreement by producing two attesting witnesses as well as scribe of the document---Defendants who claimed themselves as bona fide purchasers did not produce any solid and confidence inspiring evidence in support of their version and possession was not delivered to them---If defendants were bona fide purchasers of disputed property and mutation was attested in their favour then why the possession of the property was not given to them---Mutation in favour of defendants was sanctioned in league with the original vendors---Defendants failed to point out any illegality or material irregularity in the judgment and decree passed by Lower Appellate Court---High Court declined to interfere in the judgment and decree passed by Lower Appellate Court---Revision was dismissed, in circumstances.

Ahmed Waheed Khan for Petitioners.

Sh. Naveed Sharyar for Respondent No.1.

Mian Hmaeed-ud-Din Kasuri for Respondents.

Date of hearing: 21st November, 2011.

2012 M L D 882

[Lahore]

Before Muhammad Anwaarul Haq and Syed Iftikhar Hussain Shah, JJ

FARZAND ALI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Appeal No.496 of 2011, decided on 2nd February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302/392/337-F(i)/460---Qatl-e-amd, robbery, ghayr-jaifah damiyah, lurking house-trespass or house-breaking by night punishable for qatl or hurt caused---Suspension of sentence---Accused was not nominated in the F.I.R. and was implicated in the case on the statement of his co-accused---Accused was identified at the identification parade, but no role was assigned to him---Accused had neither caused any injury to the deceased nor to any of the injured witnesses---Recovery of weapon of offence made on the pointation of the accused was inconsequential as there was no positive report from Forensic Science Laboratory and accused had not used the weapon in the occurrence---Role of accused in the occurrence needed appreciation of evidence at the time of hearing of his main appeal and there was no likelihood of hearing of his appeal in the near future---Application for suspension of sentence was accepted and sentence awarded to accused was suspended and he was released on bail.

Arshad Ali Chohan for Petitioner.

Tariq Javed, DDPP for the State.

Syed Sammar Hussain Shah for the Complainant.

Criminal Miscellaneous No.1 of 2012

2012 M L D 889

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MAQSOOD AHMED---Petitioner

Versus

JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, LAHORE and others---Respondents

Writ Petitions Nos.3784 and 3785 of 2012, decided on 17th February, 2012.

Criminal Procedure Code (V of 1898)---

---Ss. 22-A & 22-B---Penal Code (XLV of 1860), S.489-F---Constitution of Pakistan, Art 199---Constitutional petition---Dishonestly issuing a cheque---Registration of F.I.R.---Petitioner had moved application before senior police official for taking action against respondents, which was still pending---Respondent, during pendency of petitioner's application, obtained direction for registration of case against petitioner by submitting application under Ss. 22-A and 22-B, Cr.P.C before Justice of Peace---Validity---Petitioner had issued cheques in favour of respondent which were dishonored and Justice of Peace had issued direction for registration of case on basis of dishonored cheques---If F.I.R. was registered against petitioner, he could use the application pending before senior police official as his defence---Interference by High Court in the order passed by the Justice of Peace, therefore, would amount to quashing the F.I.R.---Facts provided by petitioner required detailed inquiry which exercise could not be undertaken through the present constitutional petition---Factual controversy between the parties was to be settled by the Investigating officer---Constitutional petition was dismissed, in circumstances.

Haseeb Bin Yousaf for Petitioner.

Ch. Khadim Hussain Qaiser, Additional Advocate-General Punjab on court's call.

2012 M L D 899

[Lahore]

Before Rauf Ahmad Sheikh, J

HASSAN SHEHZAD (MAKHAN)---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.16612-B of 2011, decided on 29th December, 2011.

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

----S. 497(2) & 87---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd---Bail, grant of---Further inquiry---Accused was not nominated in the F.I.R.---Bus conductor had allegedly hit the deceased with a rod, but no prosecution witness had stated that accused was the bus conductor---Supplementary statement also did not specifically state that accused had given the fatal blow and caused the injury sustained by the deceased---Occurrence took place at the spur of the moment, when complainant and other people in a wagon stopped the bus and a quarrel started---No identification parade had been held---Question of sharing of common intention could be determined only after recording of evidence as it was not a pre-meditated occurrence---Recovery of rod, which caused death of deceased, was not sent to Chemical Examiner or to Forensic Science Laboratory to determine if it was stained with human blood/hair---If proclamation under S.87, Cr.P.C had been issued without mentioning the correct name, parentage and address of the accused, he could not be deemed to be a proclaimed offender for failing to appear in pursuance of the case and even otherwise mere abscondence of accused was not a ground for withholding the concession of bail---Case of accused needed probe within the meaning of S.497(2), Cr.P.C---Bail petition of accused was accepted and he was admitted to bail.

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

----S.87---Proclamation for person absconding---If proclamation under S.87, Cr.P.C had been issued without mentioning the correct name, parentage and address of the accused, he could not be deemed to be a proclaimed offender for failing to appear in pursuance of the case.

Maqbool Ahmad Bhatti for Petitioner.

Muhammad Omer Malik for the Complainant.

M. Naeem Sheikh, D.P.-G., Tariq, Inspector/S.H.O. and Noor Ahmad, A.S.-I. along with record for the State.

2012 M L D 909

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD IRFAN KHAN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.10243-B of 2011, decided on 7th September, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 148, 149 & 109---Attempt to commit qatl-e-amd, rioting armed with deadly weapons, abetment---Bail , grant of---Accused had been admitted to bail for the first F.I.R. by Magistrate on the ground that the case required further inquiry---Second F.I.R. was registered against accused for repeating the offence but he was granted bail for the same---Complainant's application for cancellation of bail, granted in first F.I.R., was accepted by court below on the ground that accused had repeated the offence---Accused had not been attributed any specific injury in the first F.I.R.---Investigating Officer had found the accused innocent and not involved during the first occurrence and had not made any firing during the second occurrence---Accused being only 13 years and 1 month old at the time of the first occurrence, deserved a lenient view, he was admitted to bail.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 148, 149 & 109---Attempt to commit qatl-e-amd, rioting armed with deadly weapons, abetment---Bail, refused of---Accused (co-accused) had been admitted to bail for the first F.I.R. by Magistrate on the ground that the case required further inquiry---Second F.I.R. was registered against accused for repeating the offence but he was granted bail for the same---Complainant's application for cancellation of bail, granted in the first F.I.R., was accepted by court below on the ground that accused had repeated the offence---Accused had made fire which hit the complainant of the first F.I.R.---Accused's contention that he was forced to pick up the arm and had resorted to firing in self-defence could not be accepted as same could be determined only after recording and appraisal of evidence---Bail granted to accused was rightly cancelled by the court below and no ground existed to extend the same concession of bail to accused---Accused's bail petition was dismissed accordingly.

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

----S. 497---Bail---Prohibition on grant of bail---Principles---Grant of bail in cases falling under the prohibitory clause of S. 497 Cr.P.C is a concession and every accused so released is expected to abide by the law and not to resort to violence in order to force the complainant or the witness to enter into compromise or resile from the evidence.

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

----S. 497(5)---Cancellation of bail---Principles---Bail granted by court should not be normally cancelled under S.497(5), Cr.P.C unless it is found that the order is whimsical or fanciful but if it is established that the person released on bail has repeated the offence in order to put pressure on the complainant or witness to effect compromise and resile from the evidence then naturally he cannot be allowed to remain at liberty and enjoy the concession of bail granted by the court.

Muhammad Zubair Saeed Awan for Petitioners.

Zafar Iqbal Malik, for the Complainant.

M. Akhlaq D.P.-G. and Nasrullah Khan, A.S.-I. along with record for the State.

2012 M L D 914

[Lahore]

Before Ch. Shahid Saeed, J

MEHARBAN through L.Rs. and others---Petitioners

Versus

MUHAMMAD ASGHAR through L.Rs. and others---Respondents

Civil Revision No.2614 of 2002, decided on 26th September, 2011.

Specific Relief Act (I of 1877)---

----Ss.12 & 22---Suit for specific performance of agreement to sell---Discretionary jurisdiction---Non-delivery of possession---Effect---Owner of suit property died issueless and after his death the property devolved upon defendant, while plaintiff was excluded from inheritance---Plaintiff claimed that he paid full consideration amount to deceased owner who had executed agreement to sell in his favour---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of plaintiff---Validity---Jurisdiction under S. 22 of Specific Relief Act, 1877, to decree specific performance of contract was discretionary---Court was not expected to decree suit of specific performance where circumstances in which contract was made were such as to give plaintiff unfair advantage over vendor or legal heirs of the property---Plaintiff after disappointment in getting any share in property of deceased owner manoeuvred with stamp vendor/scribe and marginal witnesses, one of them being his brother-in-law and prepared forged agreement to sell, which was an unregistered document---Plaintiff remained mum until mutation was sanctioned in favour of defendants and then he filed the suit---If he had paid almost major portion of total consideration amount, he would have demanded for mutation in his favour along with possession of suit land or at least registration of agreement to sell---Defendants were near relatives, so property of deceased who was issueless was rightly inherited to them---Person who had paid almost whole of the amount of property would not demand its possession and mutation in his favour for some meagre amount---Lower Appellate Court failed to appreciate evidence available on record in accordance with law, therefore, judgment and decree passed by the Court was not sustainable in the eye of law---High Court in exercise of revisional jurisdiction set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court and suit filed by plaintiff was dismissed---Revision was allowed in circumstances.

Muhammad Farooq Qureshi Chishti for Petitioners.

Malik Muhammad Akram Khan Awan and Muhammad Shahbaz Awan for Respondents.

Date of hearing: 26th September, 2011.

2012 M L D 922

[Lahore]

Before Nasir Saeed Sheikh, J

FAIZ AHMAD---Petitioner

Versus

ZAHOOR-UL-HAQ SIDDIQUI and another---Respondents

Civil Revision No.414 of 2010, decided on 13th January, 2012.

Civil Procedure Code (V of 1908)---

----O.XVI, R.1---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement---Plaintiff having not submitted list of witnesses along with plaint, defendant filed application for dismissal of suit on the ground of failure plaintiff to submit the list in compliance with provisions of O.XVI, R.1, C.P.C.---Trial Court allowed the application---Validity---Plaintiff who had not produced list of witnesses along with plaint, did not move any application before the Trial Court seeking production of any witness through the process of the court---No penal provision for the dismissal of the suit was incorporated in the O.XVI, R.1, C.P.C., in case the plaintiff did not submit a list of witnesses within the time prescribed in R.1 of O.XVI, C.P.C.---Application moved by the defendant, in circumstances, was misconceived and should not have been entertained by the Trial Court---Court had entertained said application without applying its mind upon the facts of the case and passed order of closing the right of the plaintiff to produce his witnesses, which was not at all prayed in the application filed by the defendant; which order, even could not have been passed as the plaintiff had every right to produce the witnesses of his own, without involving the process of the court during trial of the case.

Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq 1999 SCMR 799 distinguished.

Ghulam Murtaza v. Muhammad Ilyas and 3 others PLD 1980 Lah. 495; Iqbal Parekh and 4 others v. Karachi Building Control Authority (K.B.C.A) through Chief Controller of Buildings (C.C.O.B) Karachi and 4 others 2008 CLC 1334; Mst. Rukhsana Bibi v. Muhammad Ansar 2006 YLR 666; Mst. Aisha Bibi v. Mst. Kaneezan Bibi and others 1988 CLC 2218 and Haji Muhammad Tufail v. Muhammad Iqbal 2005 MLD 688 rel.

Muhammad Ashraf Shagufta for Petitioner.

Akhtar Awan for Respondents.

2012 M L D 931

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD TAHIR NADEEM---Petitioner

Versus

Syed QASIM ALI ZAIDI ZAFAR and others---Respondents

Civil Revision No.835 of 2008, heard on 19th December, 2011.

Contract Act (IX of 1872)---

----S.202---Civil Procedure Code (V of 1908), O.VII, R.11---Specific Relief Act (I of 1877), Ss.12 & 42---Suit for specific performance of agreement to sell and declaration of title---Rejection of plaint---Irrevocable power-of-attorney---Owner of suit property received full consideration amount and executed agreement to sell in favour of buyer along with general power-of-attorney in favour of mother of buyer---Attorney further sold the property to plaintiff, received consideration amount, executed agreement to sell and special power of attorney in his favour---After the death of owner, his legal heirs declined to transfer the property in favour of plaintiff on the ground that they were not bound by agreement executed by general attorney appointed by deceased owner---Suit filed by plaintiff was rejected by Trial Court and Lower Appellate Court concurrently---Validity---Deceased owner, with his free will, sold disputed property and since buyer was minor, he also executed general power of attorney in favour of her mother---General power of attorney executed in favour of mother of buyer with interest was thus irrevocable even after the death of owner by virtue of S. 202 of Contract Act, 1872---Buyer and attorney had got interest in suit property which was subject matter of the agency, they were owners of the same and had every right to sell the property in favour of anyone else---Both the courts below erred in law while rejecting plaint as Trial Court was to frame issues, record evidence of parties and then proceed with matter in accordance with law---High Court in exercise of revisional jurisdiction set aside orders passed by two courts below and remanded the case to Trial Court for decision afresh after framing of issues and recording of evidence---Revision was allowed accordingly.

Mst. Hajran Bibi and others v. Suleman and othes 2003 SCMR 1555 rel.

Ch. Inayat Ullah for Petitioner.

Mian Belal Ahmed, Asadullah Siddiqui and Moeen Ahmad Siddiqui for Respondents Nos.1 to 10.

Date of hearing: 19th December, 2011.

2012 M L D 941

[Lahore]

Before Amin-ud-Din Khan, J

Mst. JANNOO MAI and others---Petitioner

Versus

SHAMASUDIN and others---Respondents

Civil Revision No.75 of 1997/BWP, heard on 3rd October, 2011.

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

----S. 42---Suit for declaration of title over land---Suit of plaintiff was dismissed by Trial Court, but was decreed in favour of the plaintiff by the Appellate Court---Validity---Plaintiffs had challenged entries of revenue record and had not challenged specific mutation, registered sale deeds or specific entries of the revenue record; and had only prayed for declaration of title over the land---Plaintiffs had challenged the validity of record of rights and entries therein, after a period of almost hundred years and the suit was time-barred---Claim of adverse possession of the defendants over suit land was not fatal enough to have the suit decreed against them on the basis of such claim---Oral assertion against a right, when made, was not binding upon the party making such assertion---Admission against the record was not binding on the party admitting such facts against the record---Objection of the plaintiffs that the defendants had not proved as to how the name of the defendants/ predecessors came in the jamabandi as owner---Defendants were not obliged to show after 100 years that how the name of their predecessors came in the jamabandi---Plaintiffs under law were bound to prove that the name of the predecessor of the defendants had been wrongly entered into the jamabandi, which they had failed to do---Plaintiffs had not proved their case and could not take benefit of the weakness of the defendants---High Court set aside order of Appellate Court and dismissed the suit---Revision was allowed, accordingly.

(b) Evidence---

---Oral assertion against a right, when made, was not binding upon the party making such assertion---Admission against the record was not binding on the party admitting such facts against the record.

Muhammad Asghar Khan for Petitioner.

Raja Muhammad Sohail Iftikhar and Mumtaz Mustafa for Respondnets.

Date of hearing: 3rd October, 2011.

2012 M L D 948

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

ADMINISTRATOR MUNICIPAL CORPORATION, MULTAN through T.M.O. and 2 others---Petitioners

Versus

HAIDER ZAMAN QURESHI---Respondent

Civil Revision No.1273-D of 2010, heard on 24th February, 2011.

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

----Arts. 72, 117 & 120---Specific Relief Act (I of 1877), S.42---Suit for declaration of title---Document, proof of---Onus to prove---Objection not decided---Plaintiff claimed to be lessee of defendant Municipal Corporation and had constructed a building over leased land---Defendant Corporation denied status of plaintiff as lessee and objected to original documents of defendant Corporation produced by plaintiffs---Trial Court and Lower Appellate Court concurrently decided suit and appeal in favour of plaintiff---Validity---Defendant Corporation objected production of documents but Trial Court did not decide objection while passing judgment and decree and as such without deciding objection of defendant Corporation, the documents could not be relied upon---Plaintiff had filed suit asserting that he was lessee in terms of agreement and defendant Corporation denied existence of document and claimed that it was a fake and forged document and as such it was incumbent upon plaintiff to prove the documents according to law---Documents were not proved and as such judgments of both the courts below suffered from misreading and non-reading of record---Both the courts below had fallen in error while relying upon documents which were not proved---High Court in exercise of revisional jurisdiction set aside judgments and decrees passed by two courts below, resultantly suit filed by plaintiff was dismissed---Revision was allowed in circumstances.

Kaura and others v. Allah Ditta and others 2000 CLC 1018 and Wali Muhammad and another v. Dur Muhammad and 5 others 1998 SCMR 964 ref.

Abdul Saleem Alvi for Appellants.

Ch. Saqlain Ahmed for Respondent.

Date of hearing: 24th February, 2011.

2012 MLD 961

[Lahore]

Before Abdul Waheed Khan, J

IMRAN ASHRAF---Petitioner

versus

Mst. AYESHA ARSHAD and 3 others---Respondents

Writ Petition No.7835 of 2009, decided on 15th February, 2012.

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

----S.5 & Schell.---Constitution, of Pakistan, Art. 199---Constitutional petition---Award of maintenance for minor children and recovery of dowry articles---Family Court while decreeing the suit filed by the wife (respondent) granted maintenance allowance to minor at the rate of Rs.2000/month but Appellate Court enhanced the same to Rs.5000/month---Contentions of husband (petitioner) were that maintenance allowance of minor was excessive; that wife had filed an exaggerated list of dowry articles, and that Appellate Court had erroneously enhanced the amount of the value of the dowry articles---Validity---Determining the rate of allowance was the function of the Family Court and the Appellate Court, which had to keep in view the financial status of the father---Power of High Court under constitutional jurisdiction was not analogous to that of an Appellate Court, and although it could strike down an order passed by a subordinate court or Tribunal as without lawful authority and of no legal effect, but it could not substitute its own judgment with that of the subordinate court or Tribunal---Maintenance allowance of minor to the amount of Rs.5000/month did not appear to be excessive in the finding of the High Court---Petition was dismissed, accordingly.

Shah Jahan and others v. Syed Amjad Ali, Hawaldar and others 2000 SCMR 88 rel.

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

----S.5 & Sched.--- Constitution of Pakistan, Art. 199---Constitutional petition---Award of maintenance for minor children by Family Court-Scope---Assessment of evidence or to determine the amount of maintenance, was the function of the Family Court which was vested with exclusive jurisdiction to decide such matters.

Shah Jahan and others v. Syed Amjad Ali, Hawaldar and others 2000 SCMR 88 quoted.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---When High Court exercises constitutional jurisdiction, its powers are not analogous to those of an Appellate Court---High Court although can strike down an order passed by a subordinate court or a Tribunal as without lawful authority and of no legal effect but it could not substitute its own judgment for that of the subordinate court or Tribunal.

Shah Jahan and others v. Syed Amjad Ali, Hawaldar and others 2000 SCMR 88 quoted.

Nazim Ali Awan for Petitioner.

Haris Azmat for Respondents.

2012 M L D 978

[Lahore]

Before Muhammad Khalid Mehmood Khan and Abdul Waheed Khan, JJ

MUHAMMAD SHAHID and others---Appellants

versus

ZIA ULLAH and others---Respondents

R.F.A. No.594 of 1996, decided on 2nd February, 2012.

Specific Relief Act (I of 1877)---

----S.12---Specific performance of agreement to sell---Proof---Plaintiff claimed that predecessor-in-interest of defendants entered into agreement to sell with him and handed over possession to him---Defendant raised the plea that real owner of suit house was some other person and their predecessor-in-interest was only benamidar, who had temporarily given possession to plaintiff in November 1984---Suit was decreed by Trial Court in favour of plaintiff---Validity---Predecessor-in-interest of defendants died on 1-4-1986, and till his death there was no dispute or difference between parties about possession of plaintiff---High Court did not believe that period of temporary possession could remain uninterrupted for a long period of one and half year that too when predecessor-in-interest of defendants was alleged benamidar---High Court disbelieved that predecessor-in-interest of defendants invested huge amount but did not earn any rent or profit for real owner---At the time of entering into agreement to sell predecessor-in-interest of defendants was owner of house, further possession of plaintiff was uninterrupted---Defendants admitted that their father handed over possession of suit house to plaintiff temporarily but they failed to establish such fact---Plaintiff purchased the house against consideration and it was predecessor-in-interest of defendants who committed fraud---Defendants failed to prove their defence and plaintiff proved his case and Trial Court had rightly passed decree in suit for specific performance of agreement and dismissed suit of defendants---Appeal was dismissed in circumstances.

Muzammal Akhtar Shabbir for Appellants.

Hafiz Muhammad Yousaf and Irshad Ullah Chathha for Respondents.

Date of hearing: 18th January, 2012.

2012 M L D 999

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD SABIR---Petitioner

versus

BASHARAT and others---Respondents

Civil Revision No.840-D of 2011, decided on 15th February, 2012.

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

----Arts. 23 & S. 3----Suit for damages---Plaintiff had sought damages ensuing from a suit filed by the defendant against the plaintiff which was subsequently dismissed---Suit of plaintiff was decreed concurrently----Contention of the defendant was that suit of plaintiff was time barred and it was duty of the courts below to determine the question of limitation at the first instance even if it was not raised by the defendant---Validity---Appeal filed by the plaintiffs in the earlier suit filed by the defendant was decided on 23-2-2006 whereas the suit for damages filed by them was filed on 12-6-2008---Limitation for filing of suit for damages would commence from the date of decision of the appeal and the same was one year under Article 23 of the First Schedule to the Limitation Act, 1908---Suit of the plaintiff, was therefore, barred by time---Section 3 of the Limitation Act, 1908 provided that a time-barred suit would be dismissed even if limitation had not been set up as a defence---Duty of the court to see if the suit instituted, appeal preferred, or application made before it was within the prescribed period of limitation---Mere fact that plea of limitation was not raised in the written statement was neither sufficient to overlook such important aspect of the matter nor to condone the delay---Courts below committed material irregularity and caused gross miscarriage of justice---Revision was accepted.

(b) Limitation---

----Duty of court to see if the suit instituted, appeal preferred, or application made before it was within the prescribed period of limitation---Mere fact that plea of limitation was not raised in the written statement was neither sufficient to overlook such important aspect of the matter nor to condone the delay.

(c) Suit for damages---

----Limitation.

Hafiz Hamid Saeed Awan for Petitioner.

Sajjad Haider Khan for Respondents.

2012 M L D 1013

[Lahore]

Before Muhammad Ameer Bhatti, J

Mst. RABIA BIBI and others---Petitioners

versus

MUHAMMAD ANWAR and another---Respondents

Civil Revision No.1439 of 2004, heard on 13th October, 2011.

(a) Islamic law---

----Inheritance---Inheritance would always be open according to Sharia.

(b) Islamic Law---

----Inheritance---Deceased being issueless having pre-deceased and surviving brothers---Inheritance mutation of deceased attested in presence of his surviving brother giving half land to orphan sons of their pre-deceased brother even though surviving brother was entitled to inherit entire land---Suit by legal heirs of surviving brother after nine years of his death and after 18 years of attestation of suit mutation in favour of such orphans alleged to be collusive, fictitious and forged---Proof---Surviving brother for about 18 years during his life time and his legal heirs for about nine years after his death remained silent and never agitated such matter---Legal heirs after death of surviving brother/original owner had no locus standi to assert for their inheritance by challenging suit mutation independently after 27 years of its attestation---Legal heirs were not present at the time of attestation of suit mutation, thus, they could not prove alleged collusion---Attestation of suit mutation in presence of surviving brother would give rise to presumption that he himself had advised Revenue Authorities for division of land out of love and affection with his orphan nephews and surrendered his share in their favour---Impugned mutation was legal, in circumstances.

Kala Khan and others v. Rab Nawaz and others 2004 SCMR 517; Sameen Khan and 4 others v. Haji Mir Azad and others 2002 CLC 754; Muhammad Yaqoob v. Hameeda Begum and 4 others 2005 CLC 870; Gul Nawab and others v. Naimatullah and others 2004 CLC 973; Haji Ghulam Sarwar v. Syeda Roohi Begum and 19 others 1996 CLC 172; Fazal Din v. Rehabilitation Commissioner (Lands) and 2 others 1987 CLC 1053; Mst. Mumtaz Begum and others v. Abdur Rashid and others 1988 CLC 2023; Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962; Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5; Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another 2010 SCMR 817; Abdul Ghafoor and others v. Kallu and others 2008 SCMR 452 and Nazir Ahmed and others v. Abdullah and others 1997 SCMR 281 ref.

Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330 rel.

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

----S.115---Concurrent findings of facts by courts below---Revisional jurisdiction of High Court---Scope---Failure of courts below to consider real facts of case and evidence available on record would amount to mis-reading and non-reading of evidence---High Court in such circumstances would set aside such findings of facts.

Khalik Ahmed v. Abdul Jabbar Khan and others 2005 SCMR 911 and Mubarik Ali through L.Rs v. Amroo Khan through L.Rs, 2007 SCMR 1714 rel.

Taki Ahmad Khan for Petitioners.

Naveed Ahmad Khawaja for Respondents.

Date of hearing: 13th October, 2011.

2012 M L D 1025

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD ABBAS and others---Petitioners

versus

MUHAMMAD MUNIR and others---Respondents

Civil Revision No.1605 of 2001, heard on 1st February, 2012.

(a) Constitution of Pakistan---

----Arts. 203-D & 264---General Clauses Act (X of 1897), S.6---Declaration of law against Injunctions of Islam---Effect of repeal of laws---Scope---Introducing new law by repealing old one and declaration of some existing law against Injunction of Islam are two different things---In the former case, old law is replaced by a law which is combination of old and new provisions, the old law is generally not declared un-Islamic and new law always speaks itself about its effectiveness upon cases in hand or for cases to come; but in latter case, old law is never repealed or replaced by a new law but some existing law is declared against Injunctions of Islam after due considerations by court---Article 264 of the Constitution and S.6 of General Clauses Act, 1897, in such matter, are not attracted because these provisions deal with repealing of a law---When any law or provision of law is held by court to be repugnant to the Injunctions of Islam, such law or provision of law ceases to have effect on the day on which decision of the court takes effect.

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

----Ss.20 & 28---Transfer of Property Act (IV of 1882), S.58---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Adverse possession---Mortgage, failure to redeem---Past and closed transaction---Plaintiffs claimed to be owners in possession of suit property on the basis of adverse possession as property was mortgaged with them and was not redeemed even after sixty years---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of plaintiffs---Validity---Suit was filed on 2-3-1989, while law of adverse possession was declared un-Islamic on 31-8-1991---Since no decree till target date i.e. 31-8-1991, was passed, therefore, after that date, no decree under old law could be passed and suit was not maintainable as S.28 of Limitation Act, 1908, had already been declared un-Islamic and ceased to have effect any more---If suit had been decreed before target date, situation would have been different---If some law or provision of law was declared against Injunctions of Islam, that meant that it was not only un-Islamic on that day but it was un-Islamic in the past too, as such, it would apply upon all cases pending at the time of announcement of judgment/declaration by the Supreme Court i.e. 31-8-1991---In order to avoid complications, cases which already stood decided or at least first decree had been passed therein would be decided in accordance with law prevailing before such declaration by Supreme Court and treated as past and closed transactions---Mortgaged land was usufructuary and possession of the land was with plaintiffs from date of mortgage of land---Plaintiffs were enjoying possession of the land and benefiting through getting produce therefrom which would be treated as payment to mortgagees for the purpose of limitation regardless of the intention of parties receiving such usufructs in view of provisions of S.20 of Limitation Act, 1908, which had provided that where mortgage land was in possession of mortgagee, receipt of rent or produce of such land would be deemed to be a payment---High Court in exercise of revisional jurisdiction set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed accordingly.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063; Said Kamal Shah's case PLD 1986 SC 360; Baidullah Jan and 3 others v. Hawas Khan and 11 others PLD 2002 Pesh. 1992 and Abdul Haq v. Ali Akbar 1999 SCMR 2531 rel.

Abdul Rehman and 12 others v. Muhammad Akram and 79 others 1999 SCMR 100 distinguished.

Ch. Muhammad Aslam Khan v. Malik Sher and others 1992 CLC 196 dissented from.

Taki Ahmad Khan for Petitioners.

Muhammad Iqbal Mohal for Respondents.

2012 M L D 1045

[Lahore]

Before Muhammad Khalid Mehmood Khan and Malik Shahzad Ahmad Khan, JJ

PROVINCE OF PUNJAB through Collector and another---Petitioners

versus

Malik SHAH NAWAZ and others---Respondents

I.C.As. Nos.158, 354 of 2000 and Constitutional Petitions Nos.5896, 5897, 9050 of 2000, 3793 of 2008, 1602, 13413, 1924, 9252 of 2010, 324 and 1054 of 2011, decided on 11th January, 2012.

(a) Administrative law---

----Invocation of doctrine of legitimate expectation---Burden of proof---Person basing his claim on such concept would have to rely on representation of public authority and its denial would be infringement of his right---Court would interfere only when decision of such denial was arbitrary, unreasonable, abuse of powers and against principles of natural justice and public interest.

(b) Administrative law---

----Opinion/recommendations of a subordinate official regarding a matter---Legal status---Such opinion/recommendations would culminate into an enforceable order conferring right to its beneficiary only after when same was accepted by competent authority and final order was communicated to its beneficiary, otherwise its status would be that of an official noting or a correspondence between an official and competent authority not creating any enforceable right in favour of its beneficiary---Competent authority could either accept or reject such opinion/recommendations and would not be bound to accept the same---Illustration.

Robertson v. Defra 2005 EWCA Civ 138; Govt. of Balochistan v. Azizullah Memon PLD 1993 SC 341; Miss. Shazia Batool v. Govt. of Pakistan 2007 SCMR 410; Persson Manufacturing Ltd. v. Petroleum and Natural Resources 1995 MLD 15; Dr. Mobashir Hassan v. Federation of Pakistan and others PLD 2010 SC 265; Dr. Tariq Nawaz v. Govt. of Punjab 2000 SCMR 1956; PLD 2003 Pesh. 14; Fida Hussain v. State PLD 2002 SC 46; Province of East Pakistan v. Abdul Jalil Khan PLD 1970 Dacca 718; Rab Nawaz Qureshi v. Govt. of West Pakistan PLD 1974 Note 153 at P.233; Sardar Muhammad Aslam Sial v. Government of Pakistan PLD 1973 Note 148 at P.225; Ghulam Muhammad v. The Collector Montgomery PLD 1973 Lah 528; Karim Dad v. Arif Ali PLD 1987 Lah. 679; Muhammad Ayub v. Muhammad Yaqub PLD 1975 Lah 445; Mst. Karim Bibi and others v. Hussain Bakash and others PLD 1984 SC 344; Hafiz Muhammad Khan v. Member (Colonies) Board of Revenue Punjab Lahore 1985 SCMR 92; Naheed Ahmed v. Asif Riaz and 3 others PLD 1996 Lah. 702; Manzoor Hussain and others v. Sajawal and others 1983 SCMR 465; District Council Faisalabad v. Ch. Muhammad Yaseen 2000 YLR 440; Noon Sugar Mills Ltd. v. Market Committee, and others PLD 1989 SC 449; Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle-I, Gujranwala v. Government of the Punjab through Services, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645 and Mst. Sahiran Bi v. Ahmed Khan 2000 SCMR 847 ref.

Council of Civil Services Unions and others v. Minister for the Civil Service (1948) All ER 953; Attorney General of Hong Kong v. Ng. Yuen Shiu (1983) All ER 346; National Buildings Construction Corporation v. S. Raghunthan and others (1998) 7 SCC 66 and Bachiiltar Singh v. The State of Punjab 1962 Sapp 3 SCR 713 rel.

(c) Constitution of Pakistan---

----Art.25---Equality before law---Scope---Such equality was subject to reasonable classification and based on intelligible differentia---Such equality must be between persons placed in same set of circumstances.

Muhammad Iftikhar-ur-Rasheed, Assistant Advocate General, Punjab with Javed Iqbal, Tehsildar Sargodha and Azfar Ali Raja for Appellants.

Muhammad Farooq Qureshi Chishti, Khadim Nadeem Malik and Mian Bilal Ahmad for Respondents.

2012 M L D 1069

[Lahore]

Before Nasir Saeed Sheikh, J

MUHAMMAD ANWAR---Petitioner

versus

Mst. ZUBAIDA BEGUM and 3 others---Respondents

Civil Revision No.3254 of 2011, decided on 16th March, 2012.

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

----Ss.115 & 151---Limitation Act (IX of 1908), S. 5---Revision---Limitation---Condonation of delay---Sufficient ground---Application under S. 5 of the Limitation Act 1908---Maintainability---Application under S. 5 for condonation of delay in a civil revision was not maintainable---"Unavoidable circumstances" hardly constituted a sufficient ground for condonation of delay---Inherent powers of the courts could only be exercised with respect to some procedural matters and the exercise of inherent powers must not affect substantive rights of the parties---Question of bar of limitation was not a procedural matter and affected the substantive rights of the parties.

Nasir Ali v. Umar Draz and others PLD 2011 Lah. 599 distinguished.

Collector of Central Excise and Sales Tax v. Pakistan Fertilizer Company Ltd. 2007 SCMR 351 and AIR 1961 SC 218 rel.

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

----S.151---Exercise of inherent powers of the court---Limitation---Inherent powers of the court could only be exercised with respect to some procedural matters and the exercise of inherent powers must not affect substantive rights of the parties.

Collector of Central Excise and Sales Tax v. Pakistan Fertilizer Company Ltd. 2007 SCMR 351 and AIR 1961 SC 218 rel.

Muhammad Anwar Ghuman for Petitioner.

Syed Muhammad Javed Rizvi for Respondent.

2012 M L D 1079

[Lahore]

Before Abdul Waheed Khan, J

MUHAMMAD SALEEM CHOHAN---Petitioner

versus

MAZHAR HUSSAIN---Respondent

Civil Revision No.691 of 2011, decided on 19th October, 2011.

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

----Ss. 24 & 6---Suit for possession through pre-emption---Non-deposit of one-third sale price (Zar-e-Soam) of suit land within a period of thirty days from the filing of the suit---Effect---Plaintiff filed said suit on 27-10-2007; and vide order dated 29-10-2007; plaintiff was directed by Trial Court to deposit Zar-e-Soam within 30 days from the date of filing of the suit---Plaintiff deposited Zar-e-Soam on 29-11-2007; and Trial Court dismissed suit of plaintiff on ground that deposit of Zar-e-Soam was not within the prescribed period of 30 days---Validity---Plaintiff was required to deposit Zar-e-Soam on or before 27-11-2007; in terms of the first proviso to S. 24 of the Punjab Pre-emption Act, 1991---Terms of the order of the Trial court were clear and the same required the plaintiff to deposit the Zar-e-Soam within 30 days, and did not mention that the period of 30 days would commence from the date of the said order---Plaintiff had failed to deposit the Zar-e-Soam within the stipulated period of 30 days from the date of the filing of the suit, and therefore, Trial Court rightly dismissed the suit---Revision was dismissed.

Maqsood Ahmad Malik for Petitioner.

2012 M L D 1089

[Lahore]

Before Umar Ata Bandial, J

MUHAMMAD ALI KHAN and others---Petitioners

versus

PROVINCE OF PUNJAB, and others---Respondents

Writ Petition No.20979 of 2010, decided on 17th January, 2011.

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

----Ss. 4 & 11---Constitution of Pakistan, Art. 199---Constitutional petition---Locus standi---Revival and transfer of dealership licence---Unauthorized partnership agreement---Petitioners' contention was that respondent (Home Secretary, Province of Punjab) had declined revival of dealership licence issued in favour of petitioners' partner (original licensee) thereby rejecting the consequent transfer of the dealership licence in the name of the petitioners---Petitioners had earlier filed a constitutional petition whereby they had been granted an opportunity to produce law and precedents before the authorities in support of their claim of transfer of dealership licence but they neither placed any law nor cogent material to substantiate such claim---Fact that petitioners' partner (original licensee) had not challenged the cancellation of his dealership licence nor raised any grievance was material---Petitioners could not have locus standi in the matter unless they were duly reflected on record as an affected party and the relief that the petitioners were seeking in the constitutional petition did not find backing from any provision of law---Matter of fundamental importance was that business activities that affect public security and peace be carried out under close vigil of licensing authorities and accordingly every operator in arms field must satisfy the lawfully determined criteria of assessment and evaluation for a license before he commences or is allowed to continue such business---Authorities had found no grounds to validate or condone the activities of the petitioners during the last several years under claim but unauthorized partnership agreement with the licensee so as to revive such license and thereafter to transfer the same to petitioners---No grounds existed for High Court to interfere with the impugned order of the authorities---Constitutional petition was dismissed accordingly.

Muhammad Shahzad Shaukat for Petitioners.

Zaka-ur-Rehman Awan, Addl. A.G.

A. Hasib Shah Jehan, Section Officer, Home Department.

Nazir Assistant, D.C.O., Gujranwala.

2012 M L D 1106

[Lahore]

Before Kh. Imtiaz Ahmad, J

ALI SHER and 11 others---Petitioners

versus

ABDUL HAQ and 39 others---Respondents

Civil Revision No.110-D of 2007, decided on 16th November, 2011.

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

----Ss.26 & 10---Civil Procedure Code (V of 1908), O.VII, R.11---Suit challenging consolidation proceedings and confirmation order passed by Consolidation Officer---Maintainability---Rejection of plaint---Plaintiffs had challenged the consolidation proceedings and confirmation order passed by Consolidation Officer---Defendants filed petition under O.VII, R.11, C.P.C., for rejection of plaint on the ground that civil court had no jurisdiction under S.26 of West Pakistan Consolidation of Holdings Ordinance, 1960---Trial Court accepting said petition rejected the plaint, but Appellate Court below vide impugned order accepted appeal of the plaintiffs and remanded case to the Trial Court for its decision on merits---Civil court, no doubt had the ultimate jurisdiction to see, if the fraud had been committed or the question of title was involved, but no such thing was found in the case---Only controversy in the case was that according to the plaintiffs the land which was in their possession was of more value than the land they obtained in the consolidation proceedings; and for that purpose they had availed all the forums available to them, but they failed to succeed---Civil court had no jurisdiction in view of the bar by S.26 of the West Pakistan Consolidation of Holdings Ordinance, 1960---Appellate Court below, in circumstances, had committed illegality by remanding the case to the Trial Court for its decision on merits---Impugned judgment of Appellate Court below was set aside; and that of Civil Judge, stood restored.

1974 SCMR 356; PLD 1983 Lah. 258 and Muhammad and 19 others v. Muhammad Hayat and 8 others 2006 CLC 907 distinguished.

Arbab Jehangir Khan and others v. Inayatullah Khan and others 2006 SCMR 1692; Mst. Roshan Bibi v. Member Board of Revenue (Consolidation), Lahore and 2 others 1994 MLD 1513; Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262; Ahmad and others v. Karam Hussain and another 1986 SCMR 1384; Muhammad Ajmal and others v. Province of Punjab and others 2008 SCMR 1431; Muhammad Yaseen v. Province of Punjab and others 2009 SCMR 753; Nawab v. Ghulab and 4 others 2004 SCMR 1833 and Farman Ali and 7 others v. Khani Aman and 400 others PLD 2005 Pesh. 186 rel.

Muhammad Tufail Alvi for Petitioners.

Muhammad Akbar Sajid Chaudhry for Respondents.

Date of hearing: 15th November, 2011.

2012 M L D 1121

[Lahore]

Before Mehmood Maqbool Bajwa, J

RASHEED AHMAD and 5 others---Petitioners

versus

Mst. SURRAYA BIBI and 4 others---Respondents

Civil Revision No.199 of 2009, heard on 27th October, 2011.

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

----O.XVII R.3, [Lahore High Court Amendment] O.XVII R.1(3)]---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and perpetual injunction---Evidence of the plaintiff was closed by Trial Court under O. XVII R.3, C.P.C. for non-production of evidence after successive adjournments whereafter suit was dismissed---Contention of the plaintiff was that since the case was not adjourned at the request of the plaintiff, therefore, penal provisions of O. XVII, R. 3 of the C.P.C. would not be attracted---Validity---Such fact by itself was not sufficient to set at naught the order of the Trial Court in view of O.XVII, R.1(3) (Lahore High Court Amendment) , according to which, where sufficient cause was not shown for grant of an adjournment, the Trial Court shall proceed with suit forthwith and close the evidence of the plaintiff---Text of O.XVII, R.1(3) (Lahore High Court Amendment) and O.XVII R. 3 of the C.P.C. were entirely different---Expression "to whom time has been granted" had been used in R.3 of O.XVII, C.P.C. but the said expression did not find mention in O. XVII R. 1(3) of the C.P.C. ( Lahore High Court Amendment)---Provisions of O. XVII R.3, C.P.C. were therefore not attracted to the facts of the case---Evidence could have been closed in exercise of powers under O. XVII R. 1(3) of the C.P.C. [Lahore High Court Amendment]---Plaintiff failed to produce evidence despite eleven opportunities being granted and no justification for the same was put forward by the plaintiff---Order regarding closure of evidence could be deemed to be an order under O.XVII, R.1(3) of the C.P.C. (Lahore High Court Amendment)---Mention of provision of law (O. XVII, R. 3 of the C.P.C.) in the order of the Trial Court, which was not applicable by itself, was not sufficient to grant premium to the plaintiff---Revision was dismissed.

Nowsheri Khan v. Said Ahmad Shah 1983 SCMR 1092; Haji Muhammad Ramzan Saifi v. Mian Abdul Majid and others PLD 1986 SC 129; Kamran Co. and others v. Messrs Modern Motors and another PLD 1990 SC 713 and Mst. Nazima Batool alias Nazim Batool v. Sabar Ali Shah 2004 CLC 1175 ref.

The Administrator Lahore Municipal Corporation v. Abdul Hamid 1987 CLC 1261; Messrs A.C.E. Enterprises v. Additional District Judge, Lahore and others 1987 SCMR 1174 and Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others 2002 Civil Law Cases 1111 rel.

(b) Administration of justice---

----Mention of provision of law in order passed by Trial Court where said provision of law was not applicable by itself, was not sufficient to grant premium to the plaintiff.

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

----O.VII, Rr. 3 & 5---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Non-appearance of parties---Presumption of existence of certain facts---Counsel for the plaintiff submitted affidavit stating that he was not present on the date when evidence of plaintiff was closed and that wrong date had been intimated to him due to a misconception----Validity---Presumption of correctness was available in favour of judicial proceedings, and strong and unimpeachable evidence was required to rebut such presumption---Giving preference to sworn affidavit of counsel regarding attendance in court, over judicial proceedings, would leave to a large number of complications.

Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964 and Chiragh Din v. Mumtaz Ali and another 2009 PCr.LJ 126 rel.

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

----Art. 152 & S. 5---Condonation of delay---Decree and judgment of Trial Court was given on 18-7-2008 and the appeal filed by the plaintiffs on 31-10-2008---Limitation period of thirty days, excluding the day on which the said judgment and decree were drawn up, expired on 16-8-2008---Benefit of summer vacations, even if given, required the plaintiffs to prefer the appeal on the first day of September 2008, when the courts reopened---Plaintiffs had applied for certified copies of order of Trial Court after a period of 3 months and no sufficient cause within the meaning of S. 5 of the Limitation Act, 1908 was shown---Petition was dismissed.

Ch. Manzoor Hussain Basra for Petitioners.

Abdul Khaliq Safrani for Respondents Nos.1 to 3.

Date of hearing: 27th October, 2011.

2012 M L D 1130

[Lahore]

Before Muhammad Anwaarul Haq and Sardar Muhammad Shamim Khan, JJ

MUHAMMAD ARIF and others---Appellants

versus

THE STATE and others---Respondents

Criminal Appeal No.673 of 2006, Criminal Revision No. 6 of 2007 and Murder Reference No.292 of 2007, heard on 13th September, 2011.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Complainant had properly explained the delay of about five hours in lodging the F.I.R.---F.I.R. contained full details of the occurrence, names of accused, manner of occurrence, weapon of offence and the names of the prosecution witnesses---Motive for the occurrence had been proved against the accused---Eye-witnesses had furnished full account of events leading to the murders of the two deceased and injuries to the prosecution witnesses, remaining unanimous on all material points---Mere relationship of eye-witnesses with the deceased was not a valid ground to discard their testimony---All the three eye-witnesses were the natural witnesses of the occurrence and their evidence inspired confidence---Medical evidence being in conformity with ocular testimony had corroborated the same fully---Crime empties secured from the spot were found to have been fired from the pistol recovered at the instance of accused---Such recovery had further corroborated the ocular evidence---Accused did not deserve any leniency in his sentence---Conviction and sentence of death of accused were upheld in circumstances.

Khizar Hayat v. The State 2001 SCMR 429 ref.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Related witnesses---Credibility---Mere relationship of prosecution witnesses with the deceased is not a valid ground to discard their testimony.

Khizar Hayat v. The State 2001 SCMR 429 ref.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Interested witness, credibility of---Corroboration---No rule of law exists that statement of an interested witness cannot be considered without corroboration and even an uncorroborated version can be relied upon, if supported by the surrounding circumstances.

Khizar Hayat v. The State 2001 SCMR 429 ref.

Malik Imtiaz Haider Maitla and Zafar Iqbal Chadher for Appellants.

Munir Ahmad Khan Sial, D.P.G. for the State.

M.A. Hayat Haraj and Tahir Mahmood for the Complainant.

Date of hearing: 13th September, 2011.

2012 M L D 1150

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

SAFDAR HUSSAIN---Petitioner

versus

EX-OFFICIO JUSTICE OF PEACE and 2 others---Respondents

Writ Petition No.8244 of 2012, decided on 4th April, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan, Art.199---Constitutional petition---Duties of Justice of Peace---Scope---Petitioner had challenged the legality of order passed by Ex-officio Justice of Peace whereby S.H.O. concerned was directed to record the statement of the applicant to proceed in accordance with law, if any cognizable offence was made out---Duty of S.H.O. was not to determine, whether any cognizable case was made out or not, but it was the duty of Justice of Peace to look into the contents of the application filed under Ss.22-A and 22-B, Cr.P.C.; and if he found that any cognizable case was made out then he should issue clear direction to the S.H.O. concerned for registration of the case---Order of Justice of Peace, was set aside, with direction to redecide the application; and if from the contents of the application any cognizable case was made out, he should issue direction to S.H.O. for registration of the case.

Muhammad Musthaq v. Additional Sessions Judge, Lahore and others 2008 YLR 2301 and Rana Inamullah Khan v. S.H.O. and others 2007 YLR 2406 rel.

Muhammad Shoaib Khokhar for Petitioner.

Wali Muhammad Khan, Assistant Advocate-General Punjab on court's call.

2012 M L D 1154

[Lahore]

Before Muhammad Anwaarul Haq, J

NAZIR AHMED SHAHID---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.3246-B of 2012, decided on 19th March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 498---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3 & 4---Prohibition or manufacture, etc., of intoxicants, owning or possessing intoxicant---Ad-interim pre-arrest bail, confirmation of---No evidence was available on record against the accused except the statement of co-accused, which had no evidentiary value---Accused had not been apprehended by the police at the spot and there was no evidence that accused was connected with the place, from where alleged recovery of liquor had been effected---No evidence existed on record regarding offence Art. 3 of Prohibition (Enforcement of Hadd) Order 1979, while Art. 4 of the said Order was bailable---Accused had no previous criminal record---False implication of accused in the case by the police with mala fide intention could not be ruled out---Ad interim pre-arrest bail already allowed to accused was confirmed, in circumstances.

Mian Mahmud Ahmad Kasuri and Javed Bashir for Petitioner.

Ch. Muhammad Akram Tahir, Deputy District Public Prosecutor for the State with Amjad Farooq A.S.-I. with record.

2012 M L D 1163

[Lahore]

Before Shahid Hameed Dar, J

GUL FAROOQ---Petitioner

versus

THE STATE and 2 others---Respondents

Writ Petition No.21350 of 2011, decided on 19th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 435---Penal Code (XLV of 1860), Ss.354, 452, 506, 148 & 149---Constitution of Pakistan, Art.199---Constitutional petition---Assault or criminal force to woman with intent to outrage her modesty, house-trespass, criminal intimidation, rioting, common object---Revision petition---Limitation---Extension of time---Scope---Application filed by the respondent/complainant seeking arrest of petitioner/accused was rejected by the Magistrate/Trial Court---Said rejection was assailed by the complainant through revision petition, which revision had been accepted by Appellate Court below---Petitioner had alleged that revision petition filed by the complainant being time-barred, should have been outrightly dismissed on the point of limitation---Validity---Revision petition could not be rejected on mere ground of delay or laches---What required the court to observe, was that a revision petition should be filed within a reasonable period of time, which could change from case to case; and situation to situation---Rule to file a revision petition within 30 days against an order complained of was not inflexible; and time could be extended in exceptional cases---Trial Court/Magistrate in the present case had traversed beyond its jurisdictional authority by misinterpreting the law and passing an order in favour of petitioner/ accused without caring for the law on the subject; even in the slightest term and dealt with the matter in an unlawful and ridiculous manner---Mere technicalities, could not be taken into consideration to annul a lawful judgment passed by revisional court.

Muhammad Nur Ali and others v. The State PLD 1961 Dacca 239 and Luqman Ali v. Hazaro and another 2010 SCMR 611 rel.

Irfan Ahmad Khan for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor-General Punjab (on Court's call).

2012 M L D 1173

[Lahore]

Before Muhammad Qasim Khan, J

GHULAM QADIR---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION CANTT., BAHAWALPUR and 4 others---Respondents

Writ Petition No.5032-Q of 2010/BWP, decided on 22nd February, 2011.

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

----S. 195(1)(c)---Prosecution for certain offences---Applicability and scope.

S.195(1)(c), Cr.P.C. does not apply to cases in which the forgery was committed before the institution of a suit or other proceedings in which the forged document was produced or given in evidence.

As the two interpretations of clause (c) of subsection (1) of section 195 of the Cr.P.C. are so evenly balanced, the one that does not deprive the ordinary Criminal Courts of their ordinary jurisdiction and persons of the right of redress must be adopted. On that view of the matter also, the view that clause (c) of subsection (1) of section 195 of the Cr.P.C. does not apply to cases in which the forgery was committed before the institution of a suit or other proceedings in which the forged document is produced or given in evidence should be preferred.

Muhammad Shaffi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others PLD 1992 Lah. 178 ref.

(b) Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), Ss.468/471/420---Forgery, using as genuine a forged document, cheating---Constitutional petition---Maintainability---Quashing of F.I.R.---Offence under S.420, P.P.C. was, prima facie, made out from the contents of the F.I.R.---Report under S.173, Cr.P.C. had been submitted in the court and many alternate remedies were available to accused under the Criminal Procedure Code, 1898, including those under Ss.249-A and 265-K, Cr.P.C.---In the presence of other legal remedies, constitutional petition was incompetent and not maintainable---Disputed questions of facts requiring detailed inquiry or recording of evidence, could also not be decided by High Court in exercise of its constitutional jurisdiction---Petition was dismissed in circumstances.

Mrs. Zara Shah through his Attorney v. S.H.O., Police Station Defence Area Lahore and 2 others 2002 YLR 390; Iftikhar Ali v. Abdul Hafeez Awan 1999 PCr.LJ 1239; Muhammad Ashfaq v. State and 2 others PLJ 2010 Lah. 506; Mohabat Khan and 5 others v. SSP Faisalabad and 5 others 1999 MLD 2243; Muhammad Shaffi v. Deputy Superintendent of Police (Malik Gul Nawaz), Norwal and 5 others PLD 1992 Lah. 178; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Mst. Kaniz Fatima through Legal heirs v. Muhammad Salim and 27 others 2001 SCMR 1493 and Mir Zaman v. Mst. Sheda and 58 others 2000 SCMR 1699 ref.

(c) Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), Ss.468/471/420---Forgery, using as genuine a forged document, cheating---Constitutional jurisdiction---Scope---Factual controversies, decision of---Disputed questions of facts requiring detailed inquiry or recording of evidence, cannot be decided by High Court in exercise of its constitutional jurisdiction.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Adequate remedy, non-availing of---Effect---Where a particular statute provides self-contained machinery for determination of questions arising under the statute and law provides a remedy by appeal or revision to another tribunal fully competent to give any relief, any indulgence to the contrary by High Court is bound to produce a sense of distrust in statutory tribunals.

Mst. Kaniz Fatima through Legal heirs v. Muhammad Salim and 27 others 2001 SCMR 1493 ref.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Adequate remedy, non-availing of---Effect---In the presence of other legal remedies, constitutional petition is incompetent and not maintainable.

Mir Zaman v. Mst. Sheda and 58 others 2000 SCMR 1699 ref.

Sardar Muhammad Aslam Khan Dhukkar for Petitioner.

Sardar Mehmood Iqbal Khakwani for the Complainant.

Malik Mumtaz Akhtar, Additional Advocate General with Farman A.S.-I.

2012 M L D 1187

[Lahore]

Before Muhammad Yawar Ali, J

SAJJAD AHMAD alias SHAHBAZ---Appellant/Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1 of 2011, in Criminal Appeal No.1078 of 2010, decided on 29th February, 2011.

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

----S. 426---Penal Code (XLV of 1860), Ss. 302/337-A(i)/337-F(iii)/ 337-L(2)/148/149--- Qatl-e-amd, shajjah-i-khafifah, ghayr-jaifah-mutalahimah, other hurt, rioting armed with deadly weapons, unlawful assembly---Suspension of sentence---Conviction of accused on basis of evidence appearing in cross-version case---Validity---Challan case and cross-version case were decided by the Trial Court by means of one judgment and the court had erred in deciding the challan case on the basis of evidence recorded in the cross case, which action was not permissible in law---Trial Court had also observed that the occurrence took place on account of a sudden flare up between the parties leading to a free fight in which both sides received injuries---Trial Court had disbelieved the motive as alleged in the F.I.R., which entitled the accused for suspension of his sentence---Sentence of accused was suspended and he was admitted to bail.

Muhammad Gulzar v. Muhammad Ashraf and 3 others 1981 SCMR 435 and Muhammad Saleem alias Buggi v. The State 2004 YLR 97 rel.

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

----S. 426---Penal Code (XLV of 1860), Ss. 302/337-A(i)/337-F(iii)/ 337-L(2)/148/149---Qatl-e-amd, shajjah-i-khafifah, ghayr-jaifah-mutalahimah, other hurt, rioting armed with deadly weapons, unlawful assembly---Suspension of sentence---Failure to prove motive---Effect---Where the motive had been disbelieved by the Trial Court, the accused was entitled for suspension of sentence.

Muhammad Saleem alias Buggi v. The State 2004 YLR 97 rel.

Malik Muhammad Saleem and Syed Badar Raza Gilani for Appellant/Petitioner.

Ch. Muhammad Akbar, Deputy Prosecutor General.

Ch. Faqir Muhammad and Muhammad Nadeem Kanju for the Complainant.

Criminal Miscellaneous No.1 of 2011.

2012 M L D 1202

[Lahore]

Before Rauf Ahmad Sheikh, J

NISAR AHMAD SIDDIQUI---Petitioner

Versus

CANTONMENT BOARD---Respondent

Writ Petitions Nos. 562 of 2003 and 1881 of 2007, decided on 21st March, 2012.

Cantonments Act (II of 1924)---

----Ss. 14, 84, 88 & 277---S.R.O. No.1293(I)/2008 dated 22-12-2008---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Scope---Objection to proposed assessment of property tax---Remedy against objection---Objection filed by the petitioner/ assessee in respect of the proposed assessment of property tax, having been rejected, petitioner was directed to file appeal before the District Magistrate---Petitioner urged that the post of District Magistrate did not exist at the relevant time; that determination of the points raised by him being beyond the power and jurisdiction of the District Magistrate/ Appellate Authority under Cantonments Act, 1924, appeal before the District Magistrate was not an adequate and efficacious remedy; and that only High Court had jurisdiction to decide the matter authoritatively---Validity---Section 84 of the Cantonments Act, 1924, had clearly provided that an appeal against the assessment or levy of any tax under said Act, would lie to the District Magistrate, or such other Officer as could be empowered by the Central Government in that behalf---Vide notification dated 22-12-2008, the Director Military Land and Cantonment had been designated as Appellate Authority---Period when the Office of the District Magistrate did not exist, that power was conferred upon the District Judge---Remedy in form of appeal, therefore, was always available---In addition to the appeal, the remedies were also available in the form of review under S.88 and revision under S.277 of Cantonments Act, 1924---When law had provided efficacious remedy, no one could invoke the constitutional jurisdiction in presence of said remedies---Petitioner had contended that the disputed bill contained the rate with retrospective effect, whereas, counsel for the authorities had urged that the petitioner had himself agreed to the rental value of the house and the bill included arrears also---Such was primarily a question of fact, which could not be resolved in exercise of the constitutional jurisdiction of High Court.

1997 SCMR 1; 2004 SCMR 400; PLD 1991 SC 102 and 2002 YLR 1557 rel.

M. Kowkab Iqbal for Petitioner.

Mirza Viqas Rauf for Respondent.

2012 M L D 1223

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD RAMEEZ---Petitioner

Versus

QUAID-E-AZAM MEDICAL COLLEGE, BAHAWALPUR through Principle and 3 others---Respondents

Writ Petition No.888 of 2011/BWP, heard on 15th March, 2011.

Constitution of Pakistan---

----Art.199---Constitutional petition---Educational jurisdiction---Order of Disciplinary Committee expelling petitioner (student of Final year of M.B.B.S.) from College Rolls for two years and debarring his entry in the College and Hostel premises during such period---Validity---Record showed that throughout of his admission in M.B.B.S., petitioner had created problems and disturbances in College and had been found repeatedly involved in very serious offences of moral turpitude within College and had committed a number of criminal acts against Principal and teachers---Petitioner had been expelled from Hostel and College for several times, but he had failed to mend his conduct---Petitioner had for several times tried to outrage modesty of female students and by such conduct and behaviour, had badly injured reputation of the College---Petitioner was a nuisance to College, wherefrom he was liable to be expelled in order to provide safeguard to other students and maintain discipline according to set standard---Disciplinary Committee had not committed any illegality or irregularity in passing the impugned order---High Court dismissed constitutional petition while observing that if petitioner submitted unconditional apology, then authorities might consider his case sympathetically under parental jurisdiction.

Muhammad Aslam Khan Dhukar for Petitioners.

Sardar Muhammad Hussain Khan for Respondents.

Naveed Khalil Chaudhry, A.A.-G. with Abdul Ghafoor, Litigation Clerk.

Date of hearing: 15th March, 2011.

2012 M L D 1234

[Lahore]

Before Ch. Muhammad Younis and Ibad-ur-Rehman Lodhi, JJ

ALAMDAR HUSSAIN---Appellant

Versus

NAZIR HUSSAIN SHAH and 3 others---Respondents

R.F.A. No.1027 of 2010, heard on 12th April, 2012.

Suit for Damages---

----Recovery of damages and compensation---Quantum---Proof---Plaintiffs sought recovery of damages and compensation with the background of long standing litigation which ended into their favour---Trial Court partially decreed the suit in favour of plaintiffs---Validity---Breakup of amount claimed by plaintiffs was provided in the plaint but when one of the plaintiffs appeared in witness box as prosecution witnesses, he failed to provide details of his claimed losses and no supporting evidence in order to substantiate claim of plaintiffs was produced---Remaining two witnesses mainly deposed to what was not their direct and personal knowledge---Pleadings could not attain status of evidence and a fact pleaded by a party must have been proved by unimpeachable evidence---Plaintiffs failed to establish their claims for which decree was granted in their favour---Mere saying of plaintiffs or witness was not enough to put a stamp of solid proof upon such version---Trial court fell in to error while granting imaginary losses, therefore, findings of Trial Court were reversed---High Court in exercise of appellate jurisdiction set aside judgment and decree passed by Trial Court and suit of plaintiffs was dismissed---Appeal was allowed in circumstances. [pp. 1237, 1238] A & B

Muhammad Yasin Chughtai for Appellant.

Sh. Sakhawat Ali for Respondent.

Date of hearing: 12th April, 2012.

2012 M L D 1243

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

GHULAM SARWAR---Petitioner

Versus

VICE-CHANCELLOR, KING EDWARD MEDICAL UNIVERSITY, LAHORE and 3 others---Respondents

Writ Petition No.11993 of 2008, heard on 14th May, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational Institution---Petitioner after availing three chances for appearing in First Professional MBBS examination, was declared as having failed and was held as ineligible for further medical education in Pakistan---Contention of the petitioner was that according to the University regulations, he could avail up to four chances to clear his examination---Validity----By virtue of the statute and regulations contained in the calendar of the University, a candidate who failed to clear the First Professional MBBS examination in four chances availed or not availed, offered by the University, shall cease to be eligible for further medical/dental education---Said regulation was amended by the Vice-Chancellor who curtailed the number of chances for appearing in the examination to three and this was made effective retrospectively on the petitioner and it was clear from the language of the notification that the same was issued in anticipation for the approval from other relevant body and no such subsequent approval was accorded---Petitioner, in circumstances, was illegally refused the opportunity to avail his fourth chance---High Court directed the University to allow the petitioner to appear in the examination---Constitutional petition was allowed, accordingly.

Muhammad Amjad Ali Sherazi for Petitioner.

Muhammad Nasir Chohan, A.A.-G., Muhammad Farooq Qureshi Chishti and Ejaz Farrukh, Law Officer for Respondents.

Date of hearing: 14th May, 2012.

2012 M L D 1249

[Lahore]

Before Khawaja Imtiaz Ahmad, J

HASHIM KHAN and others---Petitioners

Versus

Sh. JAWAD WADOOD---Respondent

Civil Revision No.245 of 2004, decided on 15th February, 2012.

Civil Procedure Code (V of 1908)---

----S.115---Limitation Act (IX of 1908), Art. 181---Revision, restoration of---Limitation---Revision filed by petitioner was dismissed for non-prosecution on 20-9-2004 and application for restoration was filed on 15-2-2008---Validity---Petition was moved after prescribed period of limitation, i.e. three years provided under Art.181 of Limitation Act, 1908---Nothing was mentioned about the counsel, who was representing the petitioners---Petitioners did not mention that their counsel did not inform them or that they were not in touch with their counsel---High Court declined to restore revision petition---Transaction had become past and closed, since both the parties had admitted that in the light of final decree, possession was handed over to the sharers---Application was dismissed, in circumstances.

Al-Haaj Muhammad Rafique v. Mst. Khalida Shehzadi 2003 CLC 559; Muhammad Sadiq v. Mst. Bashiran and 9 others PLD 2000 SC 820; Aman Ullah Soomro v. PIA through Managing Director/Chairman and another 2011 SCMR 1341 and Mst. Hajran Bibi and others v. Abdul Ghani 2002 SCMR 1405 ref.

Khalid Mahmood Shahzaid Awan for Petitioners.

Malik Muhammad Yousaf for Respondents.

2012 M L D 1254

[Lahore]

Before Abdul Waheed Khan, J

GHULAM ALI and others---Petitioners

Versus

Mst. GULZAR BEGUM and others---Respondents

Writ Petition No.1813 of 2007, decided on 12th October, 2011.

Civil Procedure Code (V of 1908)---

----O.VI, R.11---Amendment of written statement---Scope---Suit for possession through partition---Defendants had twice filed a consenting written statement in reply to the plaint and subsequently filed an application for amendment of the said written statements---Contention of the defendants was that their counsel obtained their signatures on blank paper and filed the consenting written statement contrary to the instructions given to him---Validity---Perusal of record showed that the consenting written statement was filed twice; which showed hat the defendants had admitted the contents of the plaint and the matter was also adjourned time and again for effecting compromise between the parties and it was not believable that the defendants were not aware that the counsel had signed two successive written statements without their consent---Admissions made in pleadings were of a very special nature and the party making admission in pleadings could not be allowed to withdraw the same---Substitution of written statement if allowed would mean that the earlier two written statements stood cancelled and were substituted---Amendment in the written statement could be allowed where as a result of the plaintiff's evidence , a new defence became available to the defendants---Admissions made in written statement had altogether different legal significance than admissions generally---Defendant had in the written statement admitted to a fact, and could not be by amendment, make out a new case by denying such fact subsequently---Defendant could not be allowed to substitute the consenting written statement at a belated stage by seeking the amendment---Revision was dismissed.

Secretary to Government (West Pakistan) now N.-W.F.P. Department of Agriculture and Forest, Peshawar v. Qazi Abdul Kafeel PLD 1978 SC 242 and Islamic Education Trust, through Official Assignee v. Province of Sindh through Secretary, Education Department 2008 YLR 2960 rel.

Muhammad Ameer Butt for Petitioners.

Maulvi Ijaz ul Haq for Respondents.

2012 M L D 1260

[Lahore ]

Before Muhammad Anwaarul Haq, J

MUHAMMAD ASIF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.14778-B of 2011, decided on 24th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/337-F(vi)/34---Attempt to commit qatl-e-amd, ghayr-jaifah badiah, common intention---Bail, grant of---Further inquiry---Contentions of the accused were that his co-accused had been declared innocent during the investigation; that injuries on the person of the injured were superficial; that contents of the F.I.R. did not disclose the intention to commit the murder of the injured, as he was at the mercy of the accused but he received only superficial injuries; that dagger mentioned in the F.I.R. had not been recovered rather a knife (churri) had been shown to be recovered from the accused, and that the accused had no previous criminal record---Validity---Medico-legal Report of the injured showed that two minor injuries allegedly caused by the accused on the person of the injured had been declared as jurh jaifah damiyah and jurh jaifah badiah, for which maximum punishment of one year and three years respectively had been provided---Question as to whether accused had the intention to commit murder of the injured was a matter of further inquiry, since no one was present at the spot to save the injured from the accused who was allegedly armed with a dagger---Evidentiary value of the recovered knife was to be determined by the Trial Court at the time of the trial---Accused had no previous criminal record---Accused was admitted to bail, in circumstances.

Hafiz Wazir Ali Malik for Petitioner.

Ch. Muhammad Akram Tahir, DDPP for the State and Ehsan Ullah S.I.

Malik Aftab Aslam for the Complainant.

2012 M L D 1265

[Lahore]

Before Mazhar Iqbal Sidhu and Muhammad Qasim Khan, JJ

KARIM BAKHSH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.91 and M.R. No.52 of 2006/BWP, decided on 24th March, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Medical evidence was in conflict with ocular version, which had negated the presence of eye-witnesses at the scene of occurrence---Gun recovered at the instance of accused and the crime empties secured from the spot had been sent to Forensic Science Laboratory after an unexplained considerable delay---Fabrication of crime empties, therefore, could not be ruled out and positive report of Forensic Science Laboratory could not be relied upon---Benefit of doubt was extended to accused and he was acquitted in circumstances.

Talat Mehmood Kakazai for Appellant.

Muhammad Afzal Wattoo for Respondent.

Date of hearing: 24th March, 2010.

2012 M L D 1270

[Lahore]

Before Ch. Shahid Saeed, J

Ch. NIZAM DIN---Petitioner

Versus

WAPDA through Chairman and others---Respondents

Civil Revision No.1298 of 2012, decided on 2nd May, 2012.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Electricity Act (IX of 1910), S. 24(1)---Specific Relief Act (I of 1877), S. 42---Plaintiff (petitioner) had filed a suit for declaration against the authority (respondent) on the ground that the latter with mala fide intention disconnected the electricity connection of the plaintiff and got registered a criminal case against him with the allegation that the plaintiff had committed theft of electricity---Authority issued a detection bill to the plaintiff, who along with the declaratory suit filed an application under O. XXXIX, Rr. 1 & 2, C.P.C, but same was dismissed by the Trial Court---Appeal against order of Trial Court was allowed by the First Appellate Court subject to the plaintiff depositing half the amount of the impugned detection bill within one month, and furnishing a surety bond for the remaining amount before the Trial Court---Contentions of the plaintiff were that the F.I.R. registered against him had been cancelled after thorough investigation, and that notice under S. 24(1) of the Electricity Act, 1910, had not been given to him before disconnecting his meter---Validity---Record revealed that F.I.R. against the plaintiff regarding theft of electricity had not been cancelled as yet but same was only recommended for cancellation---Ingredients required for grant of temporary injunction were lacking in the case---Question of fact was involved in the case which could not be decided without recording evidence---Order of First Appellate Court was reasonable and the court had rightly accepted the application of the plaintiff subject to deposit of one half of the impugned detection bill and to furnish surety bonds for the remaining amount---Discretionary relief had already been granted to the plaintiff and no illegal or material irregularity was found in the impugned order---Revision petition was dismissed, in circumstances.

Mian Tariq Ahmed for Petitioner.

Barrister Muhammad Ahmed Pansota for Respondents.

Muhammad Iqbal Javed SDO Mansorabad, Faisalabad.

2012MLD1274

[Lahore]

Before Sardar Muhammad Shamim Khan and Rauf Ahmad Sheikh, JJ

KHALID RASHEED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.71 of 2007 and C.S.R. No.1 of 2008, heard on 20th October, 2011.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-e-amd---Appreciation of evidence---Eye=witnesses while corroborating each other even in minor details had described the occurrence in a straightforward manner, disclosing the style in whicfi the accused had killed both the deceased---Medical evidence had fully supported the ocular testimony---Presence of eye-witnesses on the spot at the relevant time was natural and they had no previous grudge or ill-will against the accused--F.I.R. had been promptly lodged---Inquest reports contained the brief details of the case, which reconciled with the contents of the F.I.R., so the omission of Investigation Officer to mention the name of complainant on two memos and name of accused on some memos did not affect the prosecution case in any manner---Insufficiency, carelessness or bona fide omission of Investigating Officer should not hamper the course of justice and the prosecution should not suffer for . the same---Report of Forensic Science Laboratory is merely a corroborative piece of evidence and any weakness in that regard would not take away the intrinsic value of the ocular evidence duly corroborated by medical evidence---Motive as alleged by prosecution had been proved by strong and reliable documentary evidence---Accused had killed, two innocent persons in their office, he deserved the sentences awarded to him by Trial Court---Appeal was dismissed in circumstances.

The State v. Muhammad Sharif and 3 others 1995 SCMR 635;. Mst. Zahida v. The State 1996 MLD 476; Gul Muhammad alias Gullu v. The State PLD 1987 Lah. 196; Noor Ahmad v. State 1983 PCr.LJ 164; Muhammad Shafi and another v. The State 1974 PCr.LJ Note 10 at P.7, Muhammad Achar v. The State 1991 PCr.LJ 522; Muhammad Ashraf v. The State 2011 SCMR 1046 and Sh. Muhammad Abid v. The State 2011

(b) SCMR 1148 ref.Penal Code (XLV of 1860)---

--S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-e-amd---Appreciation of evidence---Imperfect investigation---Effect---Insufficiency, carelessness or bona fide omission of Investigating Officer should not hamper the course of justice and the prosecution should not suffer for the same.

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

----S. 302(b)---Anti-Terrorism Act (XXVMI of 1997), S.7---Qatl-e-amd---Appreciation of evidence---Report of Forensic Science Laboratory---Value---Report of Forensic Science Laboratory is merely a corroborative piece of evidence and in the presence of strong ocular account duly corroborated by medical evidence, any weakness in this regard does not take away the intrinsic value of the said evidence.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd---Appreciation of evidence-Motive, discovery of-Motive is. always hidden in the mind of the criminal and only the attending circumstances coupled with evidence, lead to discover the same.

Malik Muhammad Saleem for Appellant.

M. Amjad Rafiq, D.P.-G. for the State.

Sh. Jamshed Hayat for the Complainant.

Date of hearing: 20th October, 2011.

2012 M L D 1286

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD ABDULLAH---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No.25378 of 2011, decided on 16th November, 2011.

Penal Code (XLV of 1860)---

----Ss. 337-A(ii), 337-F(i), 379 & 34---Constitution of Pakistan, Art.199---Shajjah-i-mudihah, ghayr jaifah-damiyah, theft, common intention---Constitutional petition---Quashing of F.I.R.---Medico-legal report of the victims revealed that all of them were examined in the hospital on the same day the F.I.R. was registered, therefore, contention of accused (petitioner) regarding delay in lodging of F.I.R. became insignificant---Affidavit of one of the injured prosecution witnesses, alleging compromise between the parties, was not sufficient to hold that the offence had been validly compounded---Affidavit of arbitrator between the parties did not reveal that the complainant had given any consent to the compromise---Question as to whether allegations embodied in the F.I.R. were true or false, was a question of fact which could not be resolved in a petition under Art. 199 of the Constitution or under S. 561-A, Cr.P.C-Accused could prove his contentions during the investigation or the trial---Constitutional petition was dismissed, in circumstances.

M. Tanveer Chaudhry for Petitioner.

Amjad Ali Chattha, A.A.-G., for on Court call.

2012 M L D 1295

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD AKRAM and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.8522-B of 2011, decided on 3rd August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 354-A/452/337-A(i)/337-F(i)/337-L(2)/148/149---Assault or criminal force to woman and stripping her of her clothes, house trespass after preparation for hurt, assault or wrongful restraint, sha,,jjah-i-khafifah, ghayrjaifah damiyah, other hurt, rioting armed with deadly 'weapons, unlawful assembly---Pre-arrest bail , confirmation of---Contentions of accused persons were that the police found them as innocent after thorough investigation; that under S. 91, Cr.P.C, Trial Court was obliged to accept bonds for appearance of the accused persons during the process of trial, and that provisions of S. 497, Cr.P.C, were not operative in the present private complaint---Validity---Case lodged by complainant had been found as false after thorough investigation and investigation agency did not find it fit to arrest the accused persons---Physical custody of the accused persons was not required by the police for the present private complaint---Bail application of accused persons was allowed and pre-arrest bail already granted to them was confirmed.

Muhammad Yousuf Iqbal v. The State and another Criminal Petition No.393-L of 2011 rel.

Malik Fida Hussain for Petitioners.

Umer Daraz Baig for the Complainant.

Ch. Kiramat Ali, D.P.G. with M. Hussain A.S.-I.

2012 M L D 1300

[Lahore]

Before Amin-ud-Din Khan, J

ALLAH DIWAYA and others---Petitioner

Versus

Mst. SUKAH KHATOON and others---Respondents

Civil Revision No.746 and Regular Second Appeal No.5 of 2001, decided on 30th November, 2011.

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

----S.6---Superior right of pre-emption qua vendee---Proof---Pre-emptor would be bound to prove such right at three stages i.e. at time of sale, filing of suit and passing of decree---Pre-emptor could not get pre-emption decree, if there was any loophole in evidence.

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

----S. 6(a)---West Pakistan Land Revenue Act (XVII of 1967), S. 42---Civil Procedure Code (V of 1908), O. XVIII, Rr. 1 & 2---Pre-emption suit---Superior right of pre-emption---Proof---Scope---Plaintiff claimed to be owner in estate on basis of gift mutation sanctioned in his favour---Proof---Onus to prove superior right of pre-emption would lie on plaintiff---Plaintiff in affirmative evidence had neither examined himself nor produced any witness to prove his such right, but got exhibited in statement of his counsel copy of Jamabandi and copy of gift mutation issued by Patwari from Parth-Patwar---Such copy of gift mutation per se would not be admissible in evidence---Such copy of gift mutation, though got exhibited in statement of plaintiff's counsel, would have no evidentiary value and plaintiff on its basis could not be granted any right---Statements of plaintiff and his witnesses recorded after close of evidence of defendant could not be read in affirmative evidence, rather same would only be read in rebuttal evidence---Plaintiff had failed to prove his superior right of pre-emption qua defendant at time of sale, filing of suit and decree---Suit was dismissed, in circumstances.

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

----S. 42---Partt-Patwar---Copy of mutation issued by Patwari from Parth-Patwar---Evidentiary value---Such copy would not be admissible in evidence---Partt Patwar even if got exhibited in statement of plaintiff's counsel, would have no evidentiary value and plaintiff on its basis could not be granted any right.

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

----Ss. 96, 100 & 115---Appeal/revision---Maintainability---Right of appeal being substantive right would be determined from the date of filing of the lis---Party having a right of appeal on basis of jurisdictional value of subject matter of suit could not file revision petition, which, if filed, would be incompetent---Principles.

Mian Muhammad Bashir and Ch. Manzoor Ahmad for Petitioners.

Mrs. Samina Qureshi for Respondent.

Date of hearing: 30th November, 2011.

2012 M L D 1308

[Lahore]

Before Amin-ud-Din Khan, J

ELAHI BAKHSH and others---Petitioners

Versus

AHMAD BAKHSH and others---Respondents

Civil Revision No.423 of 1996, decided on 9th January, 2012.

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

----S. 12(2)---Specific Relief Act (I of 1877) S. 42---Appellate Court, in a suit for declaration, dismissed appeal of the defendants against decree of Trial Court, on the ground that the same was time-barred---Contention of the defendants was that time period starting from the date of making of the application for obtaining certified copies of the orders of Trial Court, till the delivery of such copies of the plaintiffs, was to be excluded from the computation of the time period for limitation---Validity---When no notice for preparation of certified copies was given, the period in which such copies were delivered to the defendants, was to be excluded from the computation of time of limitation---Application for delivery of certified copies was made on 31-7-1993, and the certified copies were delivered to the defendants after about two months---Notice for preparation of certified copies should necessarily have been given by the Copying Agency to the defendants---Said period was to be excluded from the computation for the period of limitation.

(b) Islamic Law---

----Inheritance---Claim of the defendants was that original owner of the suit property had four bothers, who died in his lifetime, and his property would be distributed in four shares and the son or sons of each of his brother would be entitled to inherit the share which was to go to each brother as the original owner if they were alive---Validity---Held, such interpretation advanced by the defendants that the nephews were to receive share of their father if the latter would have been alive at the time of the death of the original owner was not correct.

Para 75 of the Mommadan Law by Mulla rel.

Muhammad Naveed Farhan for Petitioners.

Nemo for Respondents.

Date of hearing: 9th January, 2012.

2012 M L D 1315

[Lahore]

Before Altaf Ibrahim Qureshi, J

YASIR CHAUDHRY---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.2243-Q of 2011/BWP, decided on 31st January, 2012.

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

----Ss. 249-A & 561-A---Surrender of Illicit Arms Act (XXI of 1991), S.7---Penal Code (XLV of 1860), S. 302/34---Power of Magistrate to acquit accused at any stage---Surrender of illicit arms, qatl-e-amd---Application of accused (petitioner) filed under S.249-A, Cr.P.C against charge under S.7 of Surrender of Illicit Arms Act, 1991 was dismissed by the Trial Court---Contention of accused was that he had been acquitted of the main case of murder by the High Court and present case was an offshoot of the main case; that accused had served out more than seven years of his sentence, and recovery of weapon was effected from the house of the deceased which was not in possession of the accused---Validity---Recovery of weapon of offence was effected from the house of the deceased and no independent witness from the locality was cited---Accused had served out more than seven years and four months of his sentence and acquittal of accused by the High Court had not been challenged---Present case being an offshoot of the main case, petition of accused was allowed, his application under S.249-A, Cr.P.C was accepted and proceedings before Trial Court were quashed and he was acquitted of the charge.

Manjhi v. The State 1996 SD 518 foll.

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

----S. 249-A---Power of Magistrate to acquit accused at any stage---Scope---When the accused had been acquitted in the main case, he would become entitled to acquittal in a case which was an offshoot of the main case.

Manjhi v. The State PLD 1996 Kar. 345 ref.

Malik Muhammad Aslam for Petitioner.

Malik Muhammad Latif, D.P.-G. for the State.

2012 M L D 1321

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD GULZAR---Appellant

Versus

ADALAT HUSSAIN and others---Respondents

Criminal Appeal No.201 of 2009, heard on 20th December, 2011.

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

----Ss. 337-F(i) , 337-F(iv) & 34---Criminal Procedure Code (V of 1898), S.417---Ghayr-jaifah (damiyah), ghayr-jaifah (mudihah)---Appeal against acquittal---Appreciation of evidence---Prosecution had not produced radiologist to prove the nature of injuries and in this way same had not been legitimately proved---Accused had already spent time in jail and occurrence having taken place more than ten years, much water had flown under the bridge and in circumstances impossibility existed to reverse the order of acquittal into conviction---Appellant having failed to point out any perversity, illegality and incorrectness in the order of the court below, his appeal against acquittal was dismissed.

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

----S. 417---Appeal against acquittal---Principles---Presumption of innocence---Presumption of innocence is attached with an accused after acquitted.

(c) Criminal trial---

---Acquittal---Presumption of innocence---Every accused is blue eyed child of law and is presumed to be innocent unless and until he is held guilty by due course of law.

Altaf Elahi Sheikh for Appellant.

Rana Kashif Saleem Arfaa for the State.

Qazi Muhamad Amin for Respondents.

Date of hearing: 20th December, 2011.

2012 M L D 1330

[Lahore]

Before Muhammad Qasim Khan and Mazhar Iqbal Sidhu, JJ

Professor MUNAWAR HUSSAIN and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 205-B of 2011, decided on 6th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/353/186/148/149---Explosive Substances Act (VI of 1908), Ss.3/4/5---Anti-Terrorism Act (XXVII of 1997), S.7---Bail, refusal of---Accused had been apprehended at the spot, not only along with his weapon but also with his co-accused, pre-concertedly having heavy weaponry in order to cause huge loss to innocent people or property by act of terrorism---Role played by accused mentioned in the F.I.R. could not be played by an ordinary person, except the trained one---Nothing had been brought on record to indicate false implication of accused---Investigation had revealed involvement of accused in the case---Prima facie, overwhelming evidence was available on record to connect the accused with the commission of offence falling within the prohibitory clause of S.497(1), Cr.P.C.---Bail was declined to accused in circumstances.

Sardar Mehmood Iqbal Khan Khakwani for Petitioners.

Malik Muhammad Latif, Deputy Prosecutor-General for the State with Muhammad Rafiq Sub-Inspector.

2012 M L D 1335

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

Mst. CHANDA---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Criminal Miscellaneous No.2289-H of 2011, decided on 18th January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 491---Guardians and Wards Act (VII of 1890), S. 25---Habeas corpus petition---Custody of minor---Title of guardian to custody of ward---Mother (petitioner) had filed an application under S. 491, Cr.P.C, before court below for the custody of her minor-daughter from her adoptive-parents (respondents), but said application was dismissed with the observation that minor had been residing with her adoptive-parents satisfactorily and happily---Validity---Paternity of minor child was not disputed because even the adoptive-parents admitted that she was the real daughter of the mother---Minor had been handed over to the adoptive-parents by her mother without any coercion and with her free will and consent at a time when the relationship between the parties was cordial---Minor when appearing before the High Court showed more affection with her adoptive-parents, who even otherwise were her real uncle and aunt---Question as to whether custody of the minor was illegal or improper could evenly be resolved by the Guardian Court in terms of S. 25 of the Guardians and Wards Act, 1890, keeping in view the welfare of the minor, when admittedly she had been residing with her adoptive-parents since seven years and had developed love and affection with them---Custody of minor was not improper/illegal, falling within the ambit of S. 491, Cr.P.C---Petition of mother was disposed of by the High Court with the observation that mother would be at liberty to file application under S.25 of the Guardians and Wards Act, 1890, for redressal of her grievance.

Abdul Rehman Khakwani v. Abdul Majid Khakwani 1997 SCMR 1480 and Mst. Aisha Bibi v. Nazir and 2 others 1981 SCMR 301 rel.

Azeem Sarwar for Petitioner.

Muhammad Iftikhar-ur-Rasheed, A.A.-G.

Ch. Ameen Rehmat for Respondents Nos. 2 and 3.

2012 M L D 1342

[Lahore]

Before Syed Iftikhar Hussain Shah, J

IMTIAZ SHARIF---Petitioner

Versus

THE STATE and others---Respondents

Criminal Revision No. 1266 of 2010, decided on 31st January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 88---Emigration Ordinance (XVIII of 1979), Ss.17/22---Attachment of property---Object---Release of attached property---Accused petitioner had been declared proclaimed offender in the case by Trial Court and his agricultural land measuring four Kanals had been attached under S.88, Cr.P.C.---Petitioner's application for the release of his attached property had been dismissed by Trial Court, vide impugned order---Object of attachment of property under S.88, Cr.P.C. is to procure attendance of accused and this object had already been achieved---Property of the petitioner was simply attached and no further proceedings had been conducted so far---Petitioner had appeared before Trial Court within seven days of declaring him as proclaimed offender, then there was no legal justification for keeping his property under attachment for an indefinite period---Impugned order was not in accordance with law and the same was set aside---Property of accused was released accordingly by accepting the petition.

Mira Jan v. The State and 2 others 2007 YLR 389 and Said Johar v. State 2007 YLR 3270 ref.

Amin Ahmad for Petitioner.

Malik Karamat Ali Awan, Standing Counsel along with Kashif Nazir S.I./ACE, Ghulam Muhammad Naib Tehsildar and Muhammad Ameer Javed Patwari for Respondents.

2012 M L D 1345

[Lahore]

Before Ch. Shahid Saeed, J

FATEH DIN and others---Petitioners

Versus

MUHAMMAD ALI through L.Rs. and others---Respondents

Civil Revision No.1044 of 2008, decided on 3rd February, 2012.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration of title and permanent injunction---Custom (Punjab)---Applicability---Scope---Contention of the defendants that mutation sanctioned at the time of the independence (1947) did not mention the name of the predecessor-in-interest of the plaintiff had no force as mere mutation did not create any right in favour of the party unless and until the same was validated by the competent authority; which at the relevant time was the Custodian of Evacuee Property---Plaintiffs being legal heirs were entitled to get a share from the property in dispute---Land in question was an evacuee property, hence custom was not applicable to the said property as custom was only applicable on the inherited property---No illegality having been found in the order of the Appellate Court, revision was dismissed.

2002 SCMR 1330; 2011 SCMR 808; 2011 SCMR 480; PLD 2011 SC 657 and 2007 SCMR 480 distinguished.

Sh. Naveed Shahryar and Mian Suban Sadiq Klasson for Petitioners.

Mian Shah Abbas for Respondents.

Date of hearing: 24th January, 2012.

2012 M L D 1355

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

Mian ZAKI-UR-REHMAN and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Revision No.605 of 2011, decided on 9th May, 2012.

(a) Administration of justice---

----Civil and criminal proceedings on the same subject---Stay of criminal proceedings---Scope---Revenue proceedings, nature of---Dispute between the parties related to the execution of relinquishment deed registered by the accused in favour of a co-owner in the joint khata whereupon a mutation was attested by the halqa patwari---Complainant asserted that the document was fake and fabricated as the same related to a specific khasra number, therefore, the accused had committed an offence triable by the criminal court---F.I.R. was lodged against the accused but the Trial Court stayed further proceedings in the F.I.R. on the ground that civil and revenue courts had taken cognizance of the matter---Complainant impugned such order of Trial Court with the contentions that the Trial Court had wrongly assumed that civil proceedings were pending; that the civil suit in question had been withdrawn at the time when the Trial Court passed the impugned order; that proceedings pending before the Deputy District Officer (Revenue) had also been stayed due to the F.I.R. against the accused---Validity---Civil suit in question had been withdrawn on the ground that subject matter of the suit was under consideration with the Deputy District Officer (Revenue) but none of the parties informed the Trial Court of such withdrawal, therefore, it could not be taken as an error on part of the Trial Court---Civil proceedings included revenue matters and it could be safely said that revenue proceedings pending before the Deputy District Officer (Revenue) could be treated as civil in nature, and they would determine the dispute between the parties, where after the complainant might revive the proceedings in relation the F.I.R.---Trial Court had exercised the jurisdiction vested in it in accordance with the law---Revision petition was dismissed, accordingly.

Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others 2010 SCMR 1835 rel.

(b) Administration of justice---

----Civil and criminal proceedings on the same subject---Stay of criminal proceedings---Principles---Where it is clear that criminal liability is dependent on the outcome of civil litigation, then criminal proceedings must be stayed.

Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others 2010 SCMR 1835 rel.

Mian Muhammad Abbas for Petitioners.

Muhammad Ishaque, D.P.-G. for the State.

Adnan Shuja Butt for Respondents Nos. 2 to 4.

ORRDER

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---Order dated 7-4-2011 passed by the learned Special Judge Anti-Corruption, Lahore has been questioned through the instant criminal revision petition filed under section 439, Cr.P.C. Learned Court through the impugned order had stayed further proceedings in case F.I.R. No.118 of 2008 on the ground that civil and revenue Courts have taken cognizance of the matter.

1. Learned counsel for the petitioners contended that the learned Special Judge has wrongly assumed that any civil proceedings were pending at the time when the order in question was passed as such the order is bad in law. Further submission in this context is that there is no bar for taking proceedings in a criminal matter during the pendency of the civil dispute before the civil Court as such the order of staying proceedings is legally not correct. In this connection learned counsel has referred to an order dated 28-2-2011 passed by the learned Civil Court in the suit titled "Muhammad Zaki ur Rehman v. Muhammad Aslam" and submitted that the civil suit instituted on 19-3-2008 was withdrawn on 28-2-2011 as such on 7-4-2011 when the impugned order was passed by the learned trial Court no civil suit was pending in the civil court. He further admitted that the proceedings are pending with the Deputy District Officer (Revenue), Nishtar Town, Lahore, that too had been stayed due to the pendency of the instant criminal case against the respondents.

2. On the other hand, learned counsel for the respondents Nos.2 to 4 submitted that the result of instant criminal case is dependent on the outcome of the civil as well as revenue litigation as such the learned Special Judge had rightly followed the principle laid by this Court as well as by the apex Court in the cases mentioned in the impugned order, thus the order passed by the Court below is within four corners of law.

3. Parties heard and record perused.

2012 M L D 1368

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

SHARAFAT ALI KHAN---Petitioner

Versus

AKRAM ALI KHAN alias MUHAMMAD AKRAM KHAN and others---Respondents

Writ Petition No.1754 of 2011, decided on 7th June, 2012.

(a) Punjab Rented Premises Ordinance (XXI of 2007)---

----S.15---Qanun-e-Shahadat (10 of 1984), Art. 100---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent---Denial of relationship of landlord and tenant---Ejectment petition was allowed concurrently---Contention of the tenant was that landlord had claimed his title over the premises on the basis of a deed of will and the tenant had challenged the validity of the same in a civil suit---Validity---Will deed was registered in the year 1966 and the same had not yet been set at naught---Presumption of truth was attached to a document more than 30 years old by virtue of S.10 of the Qanun-e-Shahadat, 1984---Mere pendency of a civil suit in court could not defeat prima facie established title for the purpose of case under Punjab Rented Premises Ordinance, 2007---Constitutional petition was dismissed.

Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5; Jang Bahadar and others v. Toti Khan and another 2007 SCMR 497; Mst. Hameeda Begum and others v. Mst. Irshad Begum and others 2007 SCMR 996; Syed Abdul Ghafoor Shah v. Syed Luqman and others 2009 SCMR 45 and Mst Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45 rel.

(b) Islamic Law---

----Will---Inheritance---Scope stated.

Surah-e-Baqra, Ayah No.180 rel.

Sh. Naveed Shahryar for Petitioner.

Javed Anwar Janjua and Malik Saboor Alam for Respondents.

Date of hearing: 29th May, 2012.

2012 M L D 1377

[Lahore]

Before Rauf Ahmad Sheikh, J

Raja MULTAN HUSSAIN and others---Petitioners

Versus

E.D.O. (R) and others---Respondents

Writ Petition No.1314 of 2006, decided on 25th April, 2012.

Land Acquisition Act (I of 1894)---

----Ss. 5 & 5-A---Punjab Private Site Development Schemes (Regulation) Rules, 2005, Rr.2 (g) & 5---Constitution of Pakistan, Arts. 23, 24 & 199---Constitutional petition---Compulsory acquisition---Private housing scheme---Property rights---Petitioners were owners of land in question which was compulsorily acquired by authorities for respondent company, which was a private housing scheme developer---Validity---Land acquired, under the provisions of Rule 2(g) of Punjab Private Site Development Schemes (Regulation) Rules, 2005, could not exceed 20% of total area of scheme---As per notification of acquisition and award, total land acquired was more than the prescribed limit of 20% and only land measuring 728 Kanals and 7 Marlas i.e. 20 % of the total area could have been acquired---Respondent company did not provide houses to public at large or any class of public on philanthropic basis or at actual purchase price including development expenses---Respondent company was as good a private developer as any other individual, firm or company engaged in such business---No justification at all existed to waive of the provisions of Ss. 5 and 5-A of Land Acquisition Act, 1894, and deprive the owners of their rights to file objections---Basic rights of petitioners regarding holding and protection of property as guaranteed under Arts. 23 and 24 of the Constitution had been infringed and violated through such act of authorities---Petitioners were deprived of their property illegally and as such notifications and award to their extent were illegal and void---Petition was allowed in circumstances.

Muhammad Afzal Bhatti and 17 others v. Province of Punjab through Collector, Rawalpindi and 4 others 1997 SCMR 296; Federal Government Employees Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad PLD 2002 SC 1079; Ghulshan Hussain and another v. Commissioner (Revenue), Islamabad/Deputy Commissioner/District Collector I.C.T./Assistant Commissioner, Saddar, Islamabad and another 2000 YLR 1711; Nazir Ahmad and 8 others v. Commissioner, Lahore Division, Lahore and 3 others 2000 MLD 322 and Shalimar Fabrics v. D.O.R. 2005 MLD 789 ref.

Muhammad Afzal Bhatti and 17 others v. Province of Punjab through Collector, Rawalpindi and 4 others 1997 SCMR 296 and Bostan v. Land Acquisition Collector, Rawalpindi and 4 others PLD 2004 Lah. 47 distinguished.

Faisal Mehmood Raja for Petitioners.

Saif-ur-Rehman, A.A.-G. for Respondents Nos. 1 to 3 and 5.

Muhammad Ilyas Sheikh and Qaiser Qadeer Qureshi for Respondent No.4.

Dates of hearing: 12th and 25th April, 2012.

2012 M L D 1394

[Lahore]

Before Sagheer Ahmad Qadri, J

Ch. MUHAMMAD BASHIR---Petitioner

Versus

Mst. ANSARUN NISA and 7 others---Respondents

Writ Petition No.2200 of 2011, decided on 13th February, 2012.

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

----S.5---Maintenance---Wife, entitlement of---When matrimonial bond is intact between the parties, husband is bound under law to maintain his wife.

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

----S.5---Maintenance---Daughters---Mere age of majority itself is not sufficient to declare unmarried daughters disentitled to maintenance allowance, if otherwise it is not proved with cogent and sufficient evidence that daughters were living apart from father against his wishes and were not ready to obey his lawful and reasonable demands.

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

----S.5---Constitution of Pakistan, Art. 199---Constitutional petition---Maintenance allowance---Quantum---Husband was aggrieved of quantum of maintenance allowance fixed by courts below---Validity---Husband had brought on record his pay slip to prove that he was earning 2000 Dirham per month but in his own statement he admitted him as owner of property worth crores of Rupees in Pakistan, which had shown his financial status---Rate of maintenance allowance fixed by two courts below was not in excess for plaintiffs being daughters of defendant---High Court, in exercise of constitution jurisdiction, declined to interfere in judgments and decrees passed by two courts below---Petition was dismissed in circumstances.

Mst. Iqbal Bibi v. Bashir Ahmad 2006 CLC 1754; Mst. Ghulam Fatima v. Sheikh Muhammad Bashir PLD 1958 (W.P.) Lah. 596; Syeda Adrish and another v. Syed Anwar-ul-Haq and 2 other PLD 2011 Lah. 569; Abdul Rehman v. Khalida Bi and 2 others 1980 CLC 1098; Mst. Sherinzadgi v. Gul Muhammad PLD 1961 (W.P) Pesh. 66 and Rashid Ahmed v. Additional District Judge Lahore and 4 others 2011 YLR 1632 distinguished.

Paragraph 370 of Principles of Muhammadan Law by D.F Mulla quoted.

Mujeeb-ur-Rehman Kiani for Petitioner.

Malik Jamil Akhtar for Respondent.

2012 M L D 1405

[Lahore]

Before Mehmood Maqbool Bajwa, J

Mst. SAMEENA AKHTAR---Petitioner

Versus

MUHAMMAD HANIF CHAUDHRY and 2 others---Respondents

E.F.A. No.820 of 2010, decided on 13th January, 2012.

Civil Procedure Code (V of 1908)---

----Ss. 47, 51, O.XXI, Rr. 59 & 60---Execution of decree---Objections---Estoppel---Applicability---Inquiry by Executing Court---Property attached by Executing Court was objected to by wife of judgment debtor and she relied upon Nikahnama produced at her instance to suggest that property in question was given to her in lieu of her dower---Validity---Executing Court summoned Secretary Union Council along with original Nikah Register and Nikah Khawan, where in copy of Nikahnama there was no such stipulation and Nikah Khawan denied insertion of such recital in his hand---Executing Court also issued direction to Secretary Union Council to produce copy of Nikahnama (fourth leaf) available in record and there was also no such stipulation---Inquiry was conducted by Executing Court and whole proceedings were carried out in presence of counsel of objector and no objection was made at the instance of objector regarding mode and manner in which investigation was conducted by Executing Court---Silence on the part of objector at the relevant time created estoppel against her to agitate the matter---If objector was not satisfied with mode and style of investigation, she could have agitated the matter drawing attention of Executing Court in such regard---Participation of objector in whole proceedings without objecting it, demonstrated that she was satisfied with the mode of investigation but table was turned on her behalf after passage of attachment order passed by Executing Court---Collusion between objection and judgment debtor while alienating property in favour of objector which transaction was fake, fraudulent and was entered upon in order to frustrate execution of decree in favour of decree holder---Miseries of litigant in fact had started after having decree from a court of law when devices were adopted in order to frustrate it by adopting different modes---High Court declined to interfere in attachment order passed by Executing Court---Appeal was dismissed in circumstances.

Shahida Parveen v. Saeed Mirza and another 1990 CLC 938; Messrs Wool Ways Shop Cum Office, Chandigarh and others v. Central Bank of India, Chandigarh and others AIR 1990 Punjab and Haryana 92; Mian Muhammad Rafiq Saigol v. Trust Modarba through Trust Management Services (Pvt.) Ltd. 2003 CLD 646; Mian/Muhammad Khalid v. Messrs Bank of Punjab and 2 others 2004 CLD 1243 and Shahida Parveen v. Saeed Mirza and another 1990 CLC 938 ref.

Naveed Shahryar Sheikh for Appellant.

Mehmood Ahmad Alwari for Respondent No.1.

2012 M L D 1413

[Lahore]

Before Ijaz Ahmad and Ibad-ur-Rehman Lodhi, JJ

MUHAMMAD ASGHAR and 5 others---Petitioners

Versus

SECRETARY TO GOVERNMENT OF PUNJAB, EDUCATION DEPARTMENT, PUNJAB and 3 others---Respondents

Writ Petitions Nos.16844, 15724, 15918, 15569, 14929, 9878, 1229, 21755, 15813, 2130, 3519, 4208, 3002, 5468, 23465, 3415 of 2010, 23067 of 2009 and I.C.As. Nos. 249, 87, 248, 257, 258 of 2010, heard on 23rd April, 2012.

(a) National Training Ordinance (IX of 1980)---

----Ss.2(fb) [as inserted by National Training (Amendment) Ordinance (II of 2002)], 3(i) & 4---Higher Education Commission Ordinance (LIII of 2002), Preamble & S.2(g)---Skill Development Council constituted by National Training Board---Diploma issued to a student acquired skill education or vocational training from an institution recognized by such Council or Board---Validity---Functions of such Council and Board would be to promote technical education and vocational skill by establishing institutions in collaboration with private sector and to certify skilled workers---Diploma issued by such Council to students of different institutions recognized by Council or Board would be a valid certificate in recognition of Skill Education and Training received by them from such institutions---Such diplomas being post Matric education would not require recognition from Higher Education Commission---Education or training imparted by such Council or Board could not be termed as High Education as contemplated in S.2(g) of High Education Commission Ordinance, 2002---Commission had no jurisdiction to interfere into affairs of "Lower Education".

(b) Interpretation of statutes---

----Preamble of a statute would always be considered key to the legislation.

(c) Interpretation of statutes---

----Office memorandum containing directions or instructions---Status---Statutory provisions would be preferred to such memorandum, which could neither contradict nor abridge nor run counter to statutory provisions---Statutory provisions would prevail in case of conflict between such memorandum and statutory provisions---Departmental practice could neither amend nor supersede rules or statutory provisions---Statutory provision could be amended by another piece of legislation, but not through departmental instructions.

Muhammad Nadeem Arif and others v. Inspector General of Police, Punjab, Lahore and others 2011 SCMR 408 rel.

Mian Muhammad Ismail Thaheem for Petitioners.

Zia-ul-Qamar Bhatti, Deputy Attorney General and Muhammad Siraj-ul-Islam Khan for Respondents.

Date of hearing: 23rd April, 2012.

2012 M L D 1424

[Lahore]

Before Ch. Shahid Saeed, J.

NAVEED MERCHANT---Petitioner

Versus

SAFDAR GONDAL and 4 others---Respondents

Civil Revision No.2644 of 2010, decided on 19th December, 2011.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Contract Act (IX of 1872), S.73---Breach of contract---Suit for damages and compensation---Necessary or proper party---Defendant's application for striking out his name as a defendant in the suit was dismissed by Trial Court---Validity----Plaintiff had filed suit on the basis of an oral agreement between him and the other defendant and no specific role had been mentioned in the plaint against the defendant---Main grievance of the plaintiff was against the defendant Company and its officials whereas the defendant was only an estate advisor for said Company---Defendant was not a beneficiary of the alleged oral agreement---Compensation for breach of contract could be claimed from a party which had breached the terms of the agreement---Person who was not a party to contract was neither necessary nor proper party in a suit for damages---High Court set aside order of Trial Court and allowed the defendant's application for striking out his name as defendant in the suit---Revision was allowed, accordingly.

Province of the Punjab through Secretary, Sports Government of the Punjab and another v. Messrs Qavi Engineers (Pvt.) Ltd. through Director and 2 others 2007 MLD 89 rel.

Aamir Mehmood for Petitioner.

Bilal Kashmiri for Respondents.

2012 M L D 1431

[Lahore]

Before Rauf Ahmad Sheikh, J

KARAM ELLAHI---Petitioner

Versus

Mst. ZAITOON BIBI WIDOW and 19 others---Respondents

Civil Revision No.337-D of 2012, decided on 23rd April, 2012.

Civil Procedure Code (V of 1908)---

----O. XXVI, R. 13 & S.97----Suit for partition---Preliminary decree for partition was passed whereafter a local commission was appointed, before whom the parties compromised, and a final decree was passed by the Trial Court which was upheld by the Appellate Court---Contention of the defendant was that he did not consent to any compromise and that the disputed property had already been partitioned long ago---Validity----Contention was that the property had already been partitioned and therefore, impugned orders of the courts below were not sustainable, could not be agitated in view of the fact that the defendant had not assailed the preliminary decree---Party to a suit for partition, if it does not assail the preliminary decree, then in view of S.97 of the C.P.C., it could not contend that the property was not divisible or the shares as determined in the preliminary decrees were not correct or the private partition had already taken place---Defendant had not at any stage agitated that he was not present at the time of the proceedings conducted by the local commission and he had agreed to the proposed partition---Mode of partition as approved by the courts below was equitable---Revision was dismissed.

Khalid Mehmood Shahzaib Awan for Petitioner.

2012 M L D 1438

[Lahore]

Before Muhammad Qasim Khan, J

GHULAM HAIDER---Petitioner

Versus

FARKHANDA IQBAL and 2 others---Respondents

Writ Petition No.1192 of 2012, decided on 22nd February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Constitution of Pakistan, Art. 199---Constitutional petition---Superdari of vehicle---Complainant (petitioner) lodged F.I.R. against the accused for criminal breach of trust with regard to a tractor, and during investigation said tractor was recovered, accused was found guilty and the tractor was handed over to the complainant on superdari---Accused was not arrested for the offence and complainant filed a constitutional petition, whereupon, direction was issued to a senior police official to look into the matter and hold an inquiry and proceed against the police official who was found guilty---Senior police official (respondent) found that the investigation officer of the case had acted beyond his territorial jurisdiction and directed the same to recover the tractor from the complainant and produce the same before him---Validity---Custody of tractor had been handed over to the complainant on superdari by an order of the Magistrate---Superdari order was neither set aside by any court nor was it cancelled for any other reason---Prima facie order of superdari through which complainant got possession of the tractor still held the field and in presence of such an order, senior police official was not vested with any authority to direct the investigation officer to recover the tractor from the complainant for its production before him---Impugned order of senior police official to the extent of recovery of tractor from the complainant was declared illegal and without lawful authority---Impugned order contained factual assessments and High Court under its constitutional jurisdiction, could not determine the truth or falsity of such conclusions---Constitutional petition was partially allowed, accordingly.

Rana Khalid Mehmood for Petitioner.

2012 M L D 1475

[Lahore]

Before Muhammad Anwaarul Haq and Syed Iftikhar Hussain Shah , JJ

THE STATE---Appellant

Versus

YASIR NAZIR and 3 others---Respondents

Criminal Appeal No.2127 of 2009, decided on 30th January, 2012.

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

----Ss. 302/109/148/149---Criminal Procedure Code (V of 1898), S.417(1)---Qatl-e-amd, abetment, rioting---Appeal against acquittal---Accused were not nominated in the F.I.R. and they had been subsequently involved in the case by the complainant on the information of an unknown person, who was not examined---Identification parade held by Magistrate for identification of accused suffered from many infirmities and being doubtful could not be relied upon---Prosecution had failed to establish any connection or relation of the accused with the absconding co-accused to whom the main role and the motive had been attributed---Recoveries of weapons of offence were insignificant in the absence of report of the Forensic Science Laboratory regarding their matching with the crime empties---Weapon of offence shown to have been recovered from one accused related to another case and nothing was recovered from him in the present case---Case against accused was replete with doubts---Trial Court had not misread or non-read the evidence and had based the finding of acquittal on accepted principles of appreciation of evidence---Appeal was dismissal in limine in circumstances.

Iftikhar Hussain and others v. The State 2004 SCMR 1185; Azhar Ali v. The State PLD 2010 SC 632 and Haji Aman-ullah v. Munir Ahmed and others 2010 SCMR 222 ref.

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

----S. 417---Appeal against acquittal---Principles---Accused after his acquittal enjoys double presumption of innocence in his favour---Courts seized with acquittal appeal under S.417, Cr.P.C., therefore, are obliged to be very careful in dislodging such presumption.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 ref.

Tariq Javed, DDPP for the State with Muhammad Ashraf S.-I.

2012 M L D 1492

[Lahore]

Before Muhammad Anwaarul Haq, J

SHAKEEL AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1464-B of 2012, decided on 20th February, 2012.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Bail before arrest, grant of---Further inquiry---Delay of about seventeen (17) months in lodging F.I.R. had not been sufficiently explained by the prosecution---Handing over of amount to the accused was not supported by any document on record- Cases where arrest of accused was not a necessary requirement of the Investigating agency, sending the accused behind bars only for the reason that he may be released on bail after his arrest was unjustified---Offence with which accused was charged was, prima-facie, a matter of further inquiry---Bail petition of accused was accepted and ad-interim pre-arrest bail granted to him was confirmed, in circumstances.

Muhammad Aslam v. The State PLJ 1999 Cr.C. 1504 fol.

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

----S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Pre-arrest bail---Principles---Cases where arrest of accused was not a necessary requirement of the Investigating agency, sending the accused behind bars only for the reason that he may be released on bail after his arrest was unjustified.

Muhammad Aslam v. The State 2000 YLR 1341 ref.

Altaf Ahmad Hanjra for Petitioner.

Ch. Muhammad Akram Tahir, Deputy District Public Prosecutor for the State with Munir Ahmad A.S.-I. with record.

Muhammad Akbar Awan for the Complainant.

2012 M L D 1499

[Lahore]

Before Sardar Tariq Masood, J

MUHAMMAD IMRAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.14867-B of 2011, decided on 23rd November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302/392/404/411---Qatl-e-amd, robbery, dishonestly receiving stolen property-Bail, grant of---F.I.R. was lodged on the same night on which occurrence took place---Accused were not named in the F.I.R., but on the same day alleged abductee made statement under S.161, Cr.P.C, that at the time of occurrence accused committed robbery and shot the deceased when he refused to hand over money---Accused allegedly took the abductee with them and left him on a road---Alleged abductee had specifically mentioned the description of accused and two prosecution witnesses also made statements to the effect that they had seen the accused in the light of a tractor on the road on which they left the abductee---Prosecution witnesses and alleged abductee identified the accused during identification parade---Accused could not point out any enmity with alleged abductee, complainant or prosecution witnesses for implicating them with the offence---Sufficient evidence existed on file against the accused and their trial was already in progress---Bail petition of accused was dismissed, in circumstances.

Babar Razzaq Awan for Petitioner.

Ch. Karamat Ali, DPP with Amir Afzal S.-I.

Naseem Ullah Khan Niazi for the Complainant.

2012 M L D 1507

[Lahore]

Before Manzoor Ahmad Malik, J

EJAZ AHMAD TARAR and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.255-B of 2012, decided on 24th January, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 345---Penal Code (XLV of 1860), Ss.395/412---Dacoity, dishonestly receiving property stolen in the commission of a dacoity---Ad interim pre-arrest bail, confirmation of---Compromise between parties---Agreement to compensate complainant---Complainant had stated in court that he would have no objection to the confirmation of interim pre-arrest bail of the accused persons and would not pursue the case against them if the loss suffered by him was compensated by the accused---Accused accepted the offer of the complainant and paid cash amount to the complainant after which both parties stated that they had no objection on the confirmation of bail before arrest and complainant agreed not to pursue the case to the extent of the accused---Interim bail before arrest allowed to accused was confirmed, in circumstances.

Azam Nazeer Tarar for Petitioners.

Arshad Mehmood, Deputy Prosecutor-General.

Sabir Ali Padyar for the Complainant.

Noor Muhammad, S.-I. with record.

2012 M L D 1519

[Lahore]

Before Sagheer Ahmad Qadri, J

MUHAMMAD NAZIR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.621/B of 2012, decided on 14th May, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Complainant had allegedly provided a loan to the accused, who in order to fulfil his undertaking issued a cheque in favour of the complainant, which cheque was dishonored on presentation---Contentions of the accused were that the complainant had lodged an F.I.R. against his brother under S. 489-F, P.P.C, but the matter was compromised on the agreement that the brother of the accused would transfer his land to the complainant; that the cheque in question was provided to the complainant as a guarantee for the said agreement; that the accused had sent a legal notice to the complainant for return of the cheque in question; that a declaratory suit concerning the present matter had been filed by the complainant, which was still pending, and that the accused did not have previous record of cases similar to the present one---Validity---Section 489-F, P.P.C was not a device for recovery of an amount/loan and if any such recovery was required to be made, aggrieved person might file a suit for recovery before the court of competent jurisdiction---Offence alleged against the accused did not fall within the prohibitory clause of S. 497, Cr.P.C, and in such like cases bail was a rule and its refusal an exception---Accused was released on bail, in circumstances.

Zahid Iqbal v. The State 2011 YLR 1284 ref.

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

Muhammad Nasrullah Malik for Petitioner.

Raja Sagheer-ur-Rehman for the Complainant.

Muhammad Ishaq Hanjra, Additional Prosecutor General.

Fayyaz, A.S.-I. along with record.

2012 M L D 1524

[Lahore]

Before Shahid Hameed Dar, J

IMRAN FAISAL LUMBERDAR and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.106-B of 2011, decided on 15th February, 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---Bail, refusal of---Accused sharing common intention with their co-accused had launched a premeditated attack upon the complainant side---Accused had actively participated in the occurrence and not only vicariously contributed towards the murder of the deceased, but also fired on the left thigh of the complainant and injured him, but he luckily escaped death---Pistols had been recovered from the accused---Earlier bail application of accused had been dismissed by High Court as withdrawn after some discussion---Charge against accused was, prima facie, believable and there was no need for any further inquiry into their guilt---Bail was declined to accused in circumstances.

Sardar Mehboob for Petitioners.

Abdul Aziz Khan Niazi for the Complainant.

M. Abdul Wadood, Deputy Prosecutor General

Falak Sher, A.S.-I. with record.

2012 M L D 1530

[Lahore]

Before Sagheer Ahmad Qadri, J

MUHAMMAD SIDDIQ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.592-B of 2012, decided on 16th May, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 365-B-Kidnapping, abducting or inducing woman to compel for marriage etc.---Bail, grant of---Further inquiry---Allegation against the accused was that he abducted the daughter of the complainant and took her to another city, where he subjected her to zina---Contentions of the accused were that the alleged abductee was his legally wedded wife; that his Nikah Nama had not so far been challenged; that the alleged abductee had filed a private complaint before the Magistrate, wherein she admitted to be the lawfully wedded wife of the accused; that alleged abductee had filed a petition under S. 22-A, Cr.P.C, against her father and uncle; that alleged abductee had filed a suit for jactitation of marriage while the accused had filed a suit for restitution of conjugal rights, which suits were pending before the Family Court, and that there was an unexplained delay of nineteen (19) days in lodging of the F.I.R.---Validity---Alleged abductee had admitted in her statement under S. 164, Cr.P.C, that she had eloped with the accused---Alleged abductee accompanied the accused to a different city where both of them lived together---Copies of the Nikah Nama, application under S. 22-A, Cr.P.C. filed by the alleged abductee, private complaint lodged by the alleged abductee against her parents, and suits filed before the Family Court, were present on record---Family Court had not as yet decided about the genuineness of the Nikahnama---Investigating officer was unable to satisfy the court whether he had ever tried to investigate about the genuineness of the Nikah Nama---Case of accused required further probe in terms of S. 497(2), Cr.P.C---Bail petition of the accused was allowed and he was released on bail, in circumstances.

Muhammad Shehzad and another v. State and another PLJ 2010 Cr.C. 324; Muhammad Ayub and another v. The State 2005 MLD 421 and Shahbaz Ahmed v. The State and another 2011 PCr.LJ 943 ref.

Miss Qurat-ul-Ain for Petitioner.

Syed Mansoor Hussain Bukhari for the Complainant.

Muhammad Ishaq Hanjra, Additional Prosecutor General.

Rashad, Sub-Inspector along with record.

2012 M L D 1538

[Lahore]

Before Ijaz Ahmad and Ibad-ur-Rehman Lodhi, JJ

Ch. ZAFAR HUSSAIN and 5 others---Petitioners

Versus

BORDER AREA COMMITTEE through Chairman and 6 others---Respondents

Writ Petition No.174-R of 2011, heard on 29th May, 2012.

West Pakistan Border Area Regulations, 1959---

----Reglns. 10 & 11---Constitution of Pakistan, Arts. 23, 24 & 199---Constitutional petition---Land was allotted to the Army Officer who transferred the land to one of the respondents after obtaining a "No Objection Certificate", whereafter said respondent sold the land to the predecessor-in-interest of the petitioners---Border Area Committee cancelled the allotment of land in favour of the said respondent, and said action of the Border Area Committee was assailed by the petitioners---Validity---Allotment made in the name of the original allottee could be cancelled but once it was further transferred, and that too after obtaining a "No Objection Certificate" from the General Headquarters or Border Area Committee by the original allottee, then power to cancel the land from the subsequent transferee's name would not be within the powers of the Border Area Committee---No allotment was liable to be cancelled finally till the allottee had been given a fair chance to explain such conduct complained against---Once original allotee had been allowed to transfer his property under a "No Objection Certificate", issued by the Border Area Committee or the General Headquarters, then in case of transfer to another individual , the terms and conditions which were applicable to the original allottee would come to an end and the subsequent purchaser would be considered a free citizen of Pakistan and would be at liberty to deal with his acquired land in any manner which he deemed fit and proper---Subsequent purchaser would no more be bound to observe the conditions which were made applicable to the original allottee under the West Pakistan Border Area Regulations, 1959 and subsequent matters would be regulated by the Constitution which guaranteed every citizen under Art.23 to have a right to acquire, hold and dispose of his property in any part of Pakistan and by virtue of Art. 24, it was a fundamental right of a citizen of Pakistan that he would not be deprived of property---Land allotted under the West Pakistan Border Area Regulations, 1959 was undoubtedly situated within Pakistan and was thus subject to be held with under provisions of the Constitution---High Court declared the transfer of land in favour of the petitioners to be in accordance with law---Constitutional petition was allowed, in circumstances.

Nauman Qaiser for Petitioners.

Muhammad Siraj-ul-Islam Khan, Addl. Advocate General and Amir Zahoor Chohan for Respondents.

Date of hearing: 29th May, 2012.

2012 M L D 1545

[Lahore]

Before Amin-ud-Din Khan, J

JAM MUHAMMAD ISMAIL and others---Petitioners

Versus

JAM BAHAWAL and others---Respondents

Civil Revision No.44 of 1998, heard on 27th October, 2011.

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

----S. 42---Limitation Act (IX of 1908), S. 3 & Art. 120---Suit for declaration---Limitation---Gift of suit land in favour of defendant-widow made in year 1974 by her deceased issueless husband challenged after his death in 1983 by plaintiff (his brother) through suit filed on 15-10-1988---Validity---Deceased never disputed gift in favour of defendant even though remained alive nine (9) years thereafter---Nothing was available on record to show that deceased had ever claimed to be owner of suit land after making its gift in favour of defendant---Since attestation of gift mutation on 1-6-1974 and its incorporation in Jamabandi, defendant was recorded as owner of suit land---Defendant after attesting inheritance mutation of deceased and getting his share in land left by deceased had transferred same to his sons---Defendant had successfully proved gift, its mutation and delivery of possession through revenue record---Previous suit filed by plaintiff for administration of property left by deceased and suit filed by plaintiffs son against defendant had negated plaintiff's version---Period of limitation to challenge gift mutation, which was six years under Art.120 of Limitation Act, 1908, started from date of its attestation---Plaintiff had filed suit after 14 years of attestation of inheritance mutation of deceased---Suit was dismissed to be time barred.

Muhammad Ali and 25 others v. Hassan Muhammad and 6 others PLD 1994 SC 245 rel.

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

----S. 3---Suit---Limitation---Duty of court---Scope---Primary duty of Trial Court would be to see that whether plaintiff's claim was within limitation even in absence of any objection of opposite party.

(c) Islamic Law---

----Gift---Objection for non-delivery of possession of gifted property to donee---Scope---Where gift was challenged by donor, then such objection would be relevant---Such objection would not be available to a third person---Where donor was husband and donee was his wife, then such objection would not be available---Illustration.

(d) Islamic Law---

----Gift in favour of wife by her husband---Non-delivery of possession of property to wife---Effect---Possession of husband after such gift would be presumed for donee (his wife)---Husband, if having collected rent etc., would be presumed to be in possession of property gifted by him in favour of his wife.

Paragraph No.153 of Muhammadan Law by Mulla rel.

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

----S. 42---Mutation of gift---Non-recording of Rappat Roznamcha by Patwari---Validity---Any discrepancy by Revenue Department and violation of S. 42 of West Pakistan Land Revenue Act, 1967 in attestation of such mutation could not be attributed to donee---When such mutation was entered by Patwari and he had mentioned in detail event of gift in its column 14, then non-recording of such Rappat would not be fatal.

(f) Pleadings---

----Party could prove a case pleaded by it and no case other than the pleadings could be advanced by a party---Evidence led on a point, if not pleaded, could be ignored---Illusion.

(g) Islamic Law---

----Gift---Objection about non-delivery of possession of suit land to donee---Absence of issue regarding such objection---Effect---Court would not be competent to record finding about non-delivery of possession.

Muhammad Ismail v. Barkhurdar PLD 1977 SC 144 rel.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Entries in revenue record---Evidentiary value---Presumption of truth would be attached to such entries.

Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832 rel.

Ch. Naseer Ahmad for Petitioners.

Ch. Muhammad Shafi Meo for Respondents Nos. 2-A to 2-D.

Raja Muhammad Sohail Iftikhar for Respondents Nos. 6 to 8.

Date of hearing: 27th October, 2011.

2012 M L D 1559

[Lahore]

Before Shahid Waheed, J

IMAM DIN---Appellant

Versus

ISHAQ AHMAD---Respondent

Regular Second Appeal No. 21 of 1996, decided on 18th May, 2012.

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

----S. 30---Suit for pre-emption was dismissed concurrently on the ground of being barred by time---Validity---Suit was filed within the prescribed period of limitation as sale mutation was dated 30-11-1988 and the suit was filed on 26-10-1989, which was within one year of the mutation---Suit was, therefore, not barred by time.

Abdul Waris v. Muhammad Yousaf PLD 1997 SC 366 distinguished.

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

----S.6---Suit for pre-emption filed on 26-10-1989---"Zarorrat" and avoidance of "zarrar"---Plaintiff was required, under law, to first assert "Zaroorat" or avoidance of "Zarar" in the plaint---Date of institution of suit was 26.10.1989 and the date of sale of suit land was 30-11-1988 and both said dates fell prior to the cut off date of 31-12-1993 fixed by the Supreme Court (which declared provisions of S.6(2) of the Punjab Pre-emption Act, 1991 as against the injunctions of Islam)---Decree was passed on 29-9-1993 when provisions of S.6(2) of the Punjab Pre-emption Act, 1991 were no longer in force---Plaintiff could only have succeeded in proving the right of pre-emption as it existed on three dates i.e. date of sale, date of filing of suit and date of decree---Plaintiff was required to assert "Zarrorat" and avoidance of "zarar" in the plaint but did not do so; and therefore, failed to establish his right of pre-emption on the date of the institution of the suit---Appeal was dismissed.

Rab Nawaz v. Mehmood Khan 1993 SCMR 2318; Ms. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200; Fazal Elahi and 2 others v. District Judge Attock and 3 others 1993 CLC 85; Falak Sher v. Muhammad Mumtaz and 2 others 1992 MLD 1879; Fazal Din v. Farzand Ali and others 2004 YLR 927; Atta Muhammad v. Dost Muhammad and others NLR 2004 CLJ 451; Shabir's case PLD 1994 SC 1 and Fateh Din Shah v. Ahmad Khan 2006 MLD 934 rel.

Mian Abbas Ahmad and Mian Muhammad Shahid Riaz for Appellants.

Mian Bashir Ahmad Bhatti for Respondent.

Date of hearing: 16th May, 2012.

2012 M L D 1582

[Lahore]

Before Rauf Ahmad Sheikh and Shahid Hameed Dar, JJ

MUHAMMAD AKHLAQ---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.144, Criminal Revision No.67 and Murder Reference No.27/RWP of 2009, heard on 9th April, 2012.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Recovery of the weapon of offence from room, which was raided and searched many times, had become highly doubtful and it appeared that same had been planted on the last date of the physical remand---If none of the attesting witnesses came forward to prove the alleged recovery of weapon then same would become cladded with doubt---Motorcycle allegedly recovered from the garden of the house, was not in working condition---House which was raided many times earlier, was owned by the father of accused and was not in his exclusive possession---Ownership of motorcycle, was not ascertained---Said motorcycle was not proved to be belonging to the accused and was used in the occurrence---Prosecution witnesses had stated that Investigating Officer had recovered four empties but report of Forensic Science Laboratory showed that eight empties were deposited in the office of the Laboratory and that all said eight empties matched with the test empties which had shown that empties were prepared subsequently---Such fact also created reasonable doubt in respect of the prosecution version regarding recovery of the weapon of offence---Both the prosecution witnesses admittedly had long enmity with the accused and other members of his family---Evidence of said inimical witnesses, should be scrutinized with great caution and care---Motive was a double edged weapon; it could be a motive for commission of offence, and at the same time could be a reason for false implication---Contradiction in the medical evidence and ocular account, doubtful recovery and unreliable report of Forensic Science Laboratory were sufficient to draw an inference that accused was roped in the case falsely by throwing a wider net through the F.I.R., which appeared to have been recorded after consultation and deliberations---Trial Court did not appreciate the evidence in its true perspective and had erred in recording the conviction and sentence to accused against whom the prosecution case was not established beyond reasonable doubt---Conviction and sentence awarded to accused, were set aside and he was acquitted and released, in circumstances.

Hilam Mutema v. The State 2002 PCr.LJ 1670; Rahab v. Muhammad Ismail and 2 others 2002 SCMR 233 and Tayyab Hussain and Ansari Ali and others 2008 SCMR 90 ref.

Malik Jawad Khalid for Appellant.

Ch. Muhammad Waheed Khan, D.P.-G. for the State.

Raja Ikram Ameen Minhas for the Complainant.

Date of hearing: 9th April, 2012.

2012 M L D 1605

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD INAYAT---Petitioner

Versus

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

Writ Petition No.25112 of 2011, heard on 7th March, 2012.

Civil Procedure Code (V of 1908)---

----O.V, Rr. 17 & 18 & O. IX, R. 13---Constitution of Pakistan Art.199---Constitutional petition---Suit for recovery---Service on defendant---Requirements---Application for setting aside ex parte decree on the ground that service was not properly effected on the defendant---Application was dismissed concurrently---Validity---Petitioner/defendant refused to accept summons according to the report of the Process Server, and if there was refusal on part of the petitioner/ defendant to accept the summons, then the Process Server was bound under R. 17 of O. V of C.P.C. to make affixation of the summons on any conspicuous place of the house of the petitioner/defendant; but the same was not done by the Process Server---Provisions of O.V, R. 17 of the C.P.C. were mandatory---No verification on oath by the Process Server was available on the summons---Serving Officer did not make sufficient effort to effect the service of the petitioner---Time at which petitioner/defendant refused to accept summons was also missing from the report of the Process Server---Substituted service was made without any plausible reasons and proper procedure was not complied with and therefore the same was not sustainable in the eye of the law---Service on the petitioner, in circumstances, was incomplete and could not be relied on to initiate ex parte proceedings against the petitioner/ defendant---High Court set aside impugned orders of the courts below and allowed the application of the petitioner/defendant for setting aside ex parte decree---Constitutional petition was allowed, accordingly.

Javed Imran Ranjha for Petitioner.

Zafar Iqbal for Respondents.

Date of hearing: 7th March, 2012.

2012 M L D 1613

[Lahore]

Before Shahid Waheed, J

NAZIR AHMAD---Petitioner

Versus

MUHAMMAD AKBAR and others---Respondents

Writ Petition No.18508 of 2012, decided on 17th July, 2012.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 9, 22, 28 & Preamble---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Interlocutory order---Additional issues, non-framing of---Application for framing of additional issues, filed by tenant was dismissed by Rent Court---Validity---Punjab Rented Premises Act, 2009 was promulgated to regulate relationship of landlord and tenant expeditiously and to provide a mechanism for settlement of disputes inter se in an expeditious and cost effective manner---If interlocutory orders regarding framing of additional issues, summoning of witnesses and closing of evidence were challenged in constitutional jurisdiction of High Court, then it would delay adjudication of disputes between landlord and tenant and result in defeating the object for which Punjab Rented Premises Act, 2009, was enacted---Petitioner should wait till final order was passed and then to attack same in proper exclusive forum created for the purpose for examining such orders---High Court declined to exercise constitutional jurisdiction in a manner by which object of Punjab Rented Premises Act, 2009, was defeated and the same was rendered nugatory---Petition was dismissed in circumstances.

Syed Saghir Ali Naqvi v. Province of Sindh and others 1996 SCMR 1165 and Muhammad Iftikhar Muhmand v. Javed Muhammad and 3 others 1998 SCMR 328 ref.

Ch. Iqbal Javed Dhillon for Petitioner.

2012 M L D 1631

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

AHSAN SULEMAN and 2 others---Petitioners

Versus

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

Writ Petition No.1353 of 2008, heard on 4th June, 2012.

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

----Ss.5 & 17---West Pakistan Family Courts Rules, 1965, Rr.5 & 6---Civil Procedure Code (V of 1908) Ss. 16 & 20---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dower---Applicability of Ss.16 & 20, C.P.C.---Scope---Husband's (petitioner) application for return of plaint of the wife on the ground of lack of territorial jurisdiction of the Family Court; was dismissed concurrently---Validity---Language of Rule 6 of the West Pakistan Family Courts Rules, 1965 were clear that where the cause of action wholly or in part arose, the court of such place would have the exclusive jurisdiction to try the suit filed before it---In view of S. 17 of the West Pakistan Family Courts Act, 1964; Ss. 16 & 20 of the C.P.C. were not to be taken into consideration particularly when the prevailing position of legal provisions was contained in the special law, the West Pakistan Family Courts Act, 1964---Provisions of S. 5 of the Act and Rules 5 and 6 of the West Pakistan Family Courts Rules, 1965 catered the position with regard to the determination of jurisdiction of the Family Court and in presence of such provisions, the provisions of general law should not be taken into consideration---Constitutional petition was dismissed.

Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others PLD 2012 SC 66; Shakeel Ahmad v. Additional District Judge, Lahore and another PLD 2008 Lah. 410; Muhammad Iqbal through Special Attorney Faiz Sultan v. Parveen Iqbal PLD 2005 SC 22 and Syed Zia ul Hassan Gilani v. Mian Khadim Hussain and 7 others PLD 2001 Lah. 188 distingiushed.

Ch. Ali Muhammad for Petitioners.

Muhammad Nasir Iqbal Siddiqui for Respondents.

Date of hearing: 4th June, 2012.

2012 M L D 1659

[Lahore]

Before Amin-ud-Din Khan, J

Mst. SIDDIQUA BIBI and others---Petitioners

Versus

Mst. IRSHAD BATOOL and others---Respondents

Civil Revision No.199-D of 2004/BWP, heard on 26th September, 2011.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration challenging validity of mutations was decreed by Appellate Court---Plaintiffs had fully proved that the impugned mutations were malafidely sanctioned against the record---Plaintiffs had produced a rent deed wherein the defendants were shown to be tenants over the suit property; therefore the claim of the defendants to be bona fide purchasers was not proved.---No illegality in the order of the Appellate Court---Revision was dismissed.

Ch. Naseer Ahmad for Petitioners.

Malik Abdul Ghafoor Awan, A.R. Aurangzeb and Raja Muhammad Sohail Iftikhar for Respondents.

Date of hearing: 26th September, 2011.

2012 M L D 1668

[Lahore]

Before Sh. Najum ul Hassan and Altaf Ibrahim Qureshi, JJ

MUHAMMAD RAFIQUE---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.355 of 2003, heard on 30th April, 2012.

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

----Ss. 302(b) & 377---Qatl-e-amd, sodomy---Appreciation of evidence---Benefit of doubt---Occurrence was unseen---Prosecution case was based on circumstantial evidence consisting of last seen evidence and extra-judicial confession of accused---F.I.R. was registered after nine months of the occurrence implicating the accused only as a suspect and on the same day prosecution had produced the last seen evidence---Said evidence was highly doubtful as no plausible reason had been brought on record as to why the witness giving evidence of last seen had remained quiet for nine long months and suddenly on the day of registration of the case he made such statement to the police---Witnesses of extra-judicial confession being closely related to the complainant were interested witnesses and they could not be relied upon without corroboration of their statements by other evidence, which was lacking in the case---Accused had no reason to make extra-judicial confession before the said witnesses just on the very next day of registration of F.I.R.---Post mortem report of the deceased victim child had falsified the extra-judicial confession allegedly made by accused---Positive report of the Doctor regarding commission of sodomy on the deceased child was hardly believable, because stains of semen could not be detected when the dead body had remained in canal water for 24 hours and remained buried till 42 days and was in advanced stage of putrefaction---No incriminating article connecting accused with murder of the deceased child was recovered from him during investigation---Prosecution evidence against accused being insufficient, he was entitled to benefit of doubt---Accused was acquitted in circumstances.

Sarfraz Khan v. The State and 2 others 1996 SCMR 188 and Altaf Hussain v. Fakhar Hussain 2008 SCMR 1103 ref.

(b) Criminal trial---

----Confession---Extra-judicial confession---Nature---Rule of caution--- Extra-judicial confession is a weak type of evidence which can easily be procured whenever direct evidence of the crime is not available---While placing reliance on such confession, courts have emphasized the use of utmost care and caution---Three-fold proof is required to make extra-judicial confession the basis of conviction.

Sarfraz Khan v. The State and 2 others 1996 SCMR 188 ref.

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

----Ss. 302(b) & 377---Qatl-e-amd, sodomy---Appreciation of evidence---Extra-judicial confession---Extra-judicial confession is always considered as a weak type of evidence and can only be relied if such statement of accused is corroborated by other evidence, material or circumstances, and if it is contradicted by evidence, circumstances and material like medical evidence, such claim of witnesses about statement of accused in the form of extra-judicial confession is not worth reliance and the same cannot be used against the accused.

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

----Ss. 302(b) & 377---Qatl-e-amd, sodomy---Appreciation of evidence---Circumstantial evidence---Principles---Every part of the chain of circumstances has to be linked together to form a continuous chain without the loss of any link and all the circumstances should lead only to one conclusion i.e., involvement of accused in the main occurrence.

Altaf Hussain v. Fakhar Hussain 2008 SCMR 1103 ref.

Tahir Mehmood for Appellant.

Sardar Zafar Ahmed Lound for the Complainant.

Muhammad Amjad Rafique, D.P.-G. for the State.

Date of hearing: 30th April, 2012.

2012 M L D 1687

[Lahore]

Before Kh. Imtiaz Ahmad, J

GULSHAN JABEEN---Petitioner

Versus

SHAHBAZ KHAN and another---Respondents

Writ Petition No.2394 of 2009, heard on 18th June, 2012.

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

----S.25---Constitution of Pakistan, Art. 199---Constitutional petition---Territorial jurisdiction---Guardian, appointment of---Application filed by mother for custody of minors at place "R" was dismissed by Lower Appellate Court due to lack of territorial jurisdiction, as minors were ordinarily residing at place "F"---Validity---Both minors were never brought to place "R" as alleged by mother nor they were taken back by father of minors from place "R"---Both the minors were continuously in the custody of their father at place "F", where they were getting education also---Lower Appellate Court had committed no illegality by holding that Family Court at place "R" had no jurisdiction and rightly directed the mother to move petition at place "F", where minors were permanently residing---Petition was dismissed in circumstances.

Muhammad Iqbal through Special Attorney Faiz Sultan v. Parveen Iqbal PLD 2005 SC 22 and Anne Zahra v. Tahir Ali Khilji and 2 others 2001 SCMR 2000 ref.

Major Muhammad Khalid Karim v. Mst. Saadia Yaqoob and others PLD 2012 SC 66 fol.

Syed Rafaqat Hussain Shah for Petitioner.

Muhammad Akhtar Butt for Respondents.

Date of hearing: 18th June, 2012.

2012 M L D 1704

[Lahore]

Before Sardar Tariq Masood and Shahid Hameed Dar, JJ

ASIM ALI alias CHAHLI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.7726-B of 2012, decided on 14th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 224/225/382/353/148/ 149/186---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Resistance or obstruction by a person to his lawful apprehension, resistance or obstruction to lawful apprehension of another person, theft after preparation made for causing death, hurt or restraint, in order to the committing of the theft, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapons, unlawful assembly, obstructing public servant in discharge of public functions, possession of narcotic---Bail, grant of---Further inquiry---Allegation against the accused and co-accused was that they launched an assault on a raiding police party and snatched the main accused from the custody of the police, and that they snatched a motorcycle from a police constable and fled from the spot of occurrence---Validity---No specific role had been attributed to the accused except for being a member of the mob, which allegedly resorted to rioting---Accused was not found possessing any narcotic substance at the time of his arrest by the police---Contents of the F.I.R. did not divulge as to what was the relationship between the accused and the main accused, who was caught by the police during the raid---Police constable had not alleged in specific terms whether his motorcycle had been stolen or snatched by the accused---Accused and co-accused had been shown to have attacked the police party with different weapons but there was no evidence to believe that any of the members of the police party had received even the slightest scratch---Story contained in the F.I.R. looked bizarre and preposterous---Fact that a heavy contingent of police showed little courage in coping with the situation and apparently wilted under the pressure of a disorderly attack of the accused and co-accused painted a blurry picture of the prosecution case, which brightened the probability of invocation of S.497(2), Cr.P.C, in favour of the accused---No reason existed to believe that the case of the accused was covered by prohibitory clause of S.497(1), Cr.P.C---Bail application of the accused was accepted and he was admitted to bail.

Talish Umer Javed for Petitioner.

Muhammad Akhlaq, D.P.-G. with Yousaf S.-I. for Respondents.

2012 M L D 1711

[Lahore]

Before Sardar Tariq Masood and Muhammad Yawar Ali, JJ

TALIB HUSSAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.5827-B of 2012, decided on 24th May, 2012.

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

---S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail, refusal of---Allegation against the accused was that 1500 grams of charas was recovered from him after his personal search---Contentions of the accused were that the charas had been planted on him by the police-officials with mala fide intent; that the case fell within the borderline of Ss. 9(b) & 9(c) of the Control of Narcotic Substances Act, 1997, and that the offence under S. 9(b) of the said Act did not fall within the prohibitory clause of S. 497, Cr.P.C---Accused was caught red-handed with 1500 grams of charas and offence with which he was charged fell within the prohibitory clause of S. 497, Cr.P.C---No material particulars of the mala fide alleged against the police-officials had either been pleaded or mentioned by the accused---Benefit of the contention that F.I.R. was lodged in a contumacious manner and the police officials were inimically disposed towards the accused, could not be given to the accused---Bail petition was dismissed, in circumstances.

The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151 rel.

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

---S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail petition---Allegation of mala fide---Pleadings---Scope---Mala fide could not be alleged unless all the material particulars were given in the body of the petition and dilated upon by the counsel of the accused---Mala fide had to be pleaded with particularity.

The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151 rel.

Rana Liaquat Ali Khan for Petitioner.

Muhammad Akhlaq, D.P.G. with Zafar A.S.-I. for the State.

2012 M L D 1723

[Lahore]

Before Shahid Hameed Dar, J

MEHBOOB ALAM, ADVOCATE---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No.4943/B-2012, decided on 30th May, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/109/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Injured prosecution witness turning hostile and refusing to support the prosecution case---Effect---Injured prosecution witness swore an affidavit and also recorded his statement under S. 164, Cr.P.C, and took a complete somersault as regards his previous version, entailed in his statement under S. 161, Cr.P.C, which was in-line with the F.I.R.--Admittedly the injured prosecution witness happened to be a crucial figure in the prosecution case but it did not mean that his lone resiling act would eclipse the credibility of the statement of the complainant as well as those of other eye-witnesses---Act of injured prosecution witness in disowning the prosecution case at bail stage was a reflection of an attempt of the accused to tamper with the prosecution evidence, which did no good to the accused---Bail application of the accused was dismissed, in circumstances.

Naseer Ahmed v. The State PLD 1997 SC 347; Sanaullah and 3 others v. The State 1983 SCMR 15 and Muhammad Sharif and another v. The State 1988 SCMR 541 ref.

Naseer Ahmad's v. The State PLD 1997 SC 347 rel.

Ch. Anwaar-ul-Haq Pannun for Petitioner.

Mrs. Muqadass Tahira, Additional Prosecutor-General Punjab for the State.

Raja Abdul Rehman for the Complainant.

Mohsin Ali, A.S.-I. with record.

2012 M L D 1736

[Lahore]

Before Nasir Saeed Sheikh, J

ABDUL HAMEED---Petitioner

Versus

MUHAMMAD GIYAS SAJID---Respondent

Civil Revision No.615 of 2012, decided on 28th February, 2012.

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

----O.XXXVII, R.4---Limitation Act (IX of 1908), Art.164---Application for setting aside of ex parte decree---Delay, condonation of---Judgment-debtor's plea was that he was prevented from attending court by his previous counsel, who had not informed him about dates of hearing; and that continuous strike by lawyers for a considerable long period had resulted in passing of ex parte decree---Validity---Allegations levelled in the application were general and non-specific---Ex parte decree was passed on 8-8-2011---Judgment debtor made such application on 8-12-2011, though he was arrested on 2-11-2011 during execution proceedings and was released by court on same day after furnishing surety bond---Plea raised by judgment debtor during arguments that his previous counsel was arrested in a criminal case, had not been mentioned in such application---Judgment debtor had failed to make out a case of any special circumstances for setting aside ex parte decree---Application was dismissed in circumstances.

Qaim Ali Khan v. Muhammad Siddique 1987 SCMR 733; Hashim Khan v. National Bank of Pakistan 1992 SCMR 707; Qazi Muhammad Tariq v. Hasin Jahan and 3 others 1993 SCMR 1949; Krishen Lal Malhotra v. 1. Madan Lal 2. Pindi Dass and 3. Harbans Lal Malhotra PLD 1950 Lah. 82; Muhammad Hussain v. Allah Dad and 13 others PLD 1991 SC 1104; Water and Power Development Authority through Chairman and 3 others v. Mir Khan Muhammad Khan Jamali and another 2006 CLC 92; Dhanjishaw Behramji Ghadially and others v. Abdul Latif Khan 1983 SCMR 1003; Water and Power Development Authority v. Muhammad Hayat Khan and 7 others PLD 1986 Pesh. 81; Javed Hussain Ansari v. Muhammad Ayaz Khan 2005 SCMR 1655; Allied Bank of Pakistan Ltd. v. V.C.Khilnani and 2 others PLD 1984 Kar. 127; Habib Bank Ltd. v. Abdul Latif Nasir and 3 others PLD 1990 Kar. 212; National Bank of Pakistan v. Messrs Home Aids Corporation and another PLD 1989 Lah. 213; Muhammad Yousaf v. Abdul Majid PLD 1993 Lah. 244 and Naseer Ahmed v. Muhammad Mushtaq 2006 MLD 1936 ref.

Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 rel.

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

----O.IX, R.13 & O.XXXVII, R.4--Limitation Act (IX of 1908), Art.164--Ex parte decree passed under O. XXXVII, C.P.C., setting aside of---Applicability of provision of O. IX, R. 13, C.P.C. to such decree---Scope---Special provision of O. XXXVII, R. 4, C.P.C. would apply to such decree, but not general provision of O. IX, R. 13, C.P.C.---Application for setting aside such decree if made within prescribed time, even then judgment debtor could not seek relief without making out a case of special circumstances to satisfaction of court---Principles.

The court passing the decree under Order XXXVII of C.P.C. has to be satisfied with the existence of special circumstances for setting aside the decree passed against the judgment debtor under the special procedure. The phraseology adopted by the provisions of Order XXXVII, Rule 4 of C.P.C. is quite distinct and different from the provisions of Order IX, Rule 13 of C.P.C. The later law visualizes the moving of an application for setting aside of an ex parte judgment and decree where the judgment debtor is prevented by any sufficient cause from appearing when the suit was called on for hearing. The term "special circumstances" adopted in Order XXXVII, Rule 3, C.P.C. is restrictive in its scope than the terms "good cause" and the "sufficient cause" adopted under the provisions of Order IX, Rule 13 of C.P.C. A special provision has been enacted regarding a particular situation for setting aside of a decree passed under the procedure of Order XXXVII of C.P.C., therefore, the general provisions of Order IX, Rule 13 of C.P.C. cannot be invoked by a judgment against whom a decree under Order XXXVII of C.P.C. has been passed.

An applicant seeking setting aside of the judgment and decree moving the court even within the prescribed period of limitation, cannot seek the relief without making out a case of special circumstances for setting aside of the judgment and decree passed against as visualized by the provisions of Order XXXVII, Rule 4 of C.P.C.

Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 rel.

Tahir Mahmood Khokhar for Petitioner.

2012 M L D 1742

[Lahore]

Before Manzoor Ahmad Malik, J

TANVEER SHAH---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1974-B of 2012, decided on 28th February, 2012.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 381-A & 411---Theft of a car or other motor vehicles, dishonestly receiving stolen property---Bail, grant of---Further inquiry---Allegation against accused was that the stolen car of the complainant was recovered from his possession---Validity---No evidence on record existed against the accused to attract the provisions of S.381-A, P.P.C, and at the most S. 411, P.P.C was attracted against the accused---Accused had been acquitted in other three cases registered against him and was behind bars and was no more required for the purpose of investigation---Offence alleged against accused did not fall within the prohibitory clause of S.497, Cr.P.C--- Bail petition of accused was allowed and he was admitted to bail.

Rai Salah ud Din for Petitioner.

Arshad Mehmood, Deputy Prosecutor General.

Ch. Shaukat Islam for the Complainant.

Ghulam Shabbir, S.-I. with record.

2012 M L D 1746

[Lahore]

Before Rauf Ahmad Sheikh, J

Mst. SARDAR KHANAM and others---Petitioners

Versus

MUHAMMAD ASLAM and others---Respondents

Civil Revision No.169/D of 2012, decided on 1st March, 2012.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration of title---Plaintiffs had filed suit for declaration, challenging mutation of suit land in favour of the defendant (brother of plaintiff) on the ground that said mutation was obtained through forgery and fraud and that the plaintiffs would be entitled to inherit the suit land after demise of the other defendant (mother of plaintiff)---Suit was decreed by Trial Court and the Appellate Court set aside said order of Trial Court, on the ground that the plaintiff had no locus standi to file the suit---Validity - Admitted fact was that the said other defendant had not assailed the mutation and had never filed a suit challenging the same, although she was alive----Plaintiffs were only said other defendant's prospective heirs and the property had not yet been devolved upon them----Plaintiffs had no interest, right or title over the suit property at present----During the lifetime of the vendor/transferor, the prospective heir's had no locus standi to challenge alienation of land----Prospective heir's did not possess any title to the property and could not, as such, file a suit for declaration in respect thereto----Defendant was still alive and had appeared before Trial Court and got her statement recorded and filed written statement without a next friend----Only the other defendant could therefore, file a suit for declaration challenging the mutation of suit land----Revision was dismissed.

1996 SCMR 354 distinguished.

Malik Inayat Ali Khan for Petitioners.

2012 M L D 1755

[Lahore]

Before Ijaz Ahmad, J

BUSHRA ASGHAR---Petitioner

Versus

Dr. REHMAT ALI and 3 others---Respondents

Writ Petition No.16340 of 2010, decided on 22nd March, 2012.

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

----Ss.7 & 25---Guardian, appointment of---Principle---Father is natural guardian of minor children---In presence of father any other person cannot put a claim to be a guardian of minors---Court is not authorized to appoint or declare a guardian of person of a minor whose living father is not, in the opinion of court, unfit to be guardian of the person of that minor---For the purposes of the welfare of minor, the custody, however, may be entrusted to mother.

(b) Administration of justice---

----Relief, moulding of---Court can, as per requirement of circumstances, grant such a relief that would meet the ends of justice.

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

----Ss.7 & 25---Constitution of Pakistan, Art. 199---Constitutional petition---Guardian and custody of minor---Scope---Minor sons were living with their father and their mother filed application for custody of minors and her being appointed as their guardian---Trial Court and Lower Appellate Court dismissed application and appeal filed by mother of minors---Validity---Minors being kept separately, could not enjoy company of each other, that two brothers had a right to do---Although children needed guidance of their father yet could not be denied company of the equals who inter se share the thoughts, activities and urges---Father was pre-occupied with his profession and he had little time to spare for the children---Paternal aunt might spare a lot of time but that would leave little time for the minors to lead a life suitable for the youth---Mother who always had a better understanding with her children, with whom the children enjoyed intimacy and had a superior right of custody of minors---Intelligence preference made by minors who were old enough to make a right preference deserved a consideration and respect---Child needs a proper control as well as a room for free thoughts and actions and mother's lap is proper place for such optimum restrictions and liberties---High Court found welfare of minors in giving their custody to their mother---As the minors were boys, they needed masculine company of their father as well for grooming and training as men---Father had a right of visitation to the children as settled between parties before Lower Appellate Court---High Court in exercise of constitutional jurisdiction, set aside the orders passed by two courts below and let the father remain as guardian of minors, while custody of minors was given to mother---Petition was allowed accordingly.

Muhammad Ameer and another v. Syed Shujat Ali Tirmizi 2007 CLC 357; Additional District and Sessions Judge, Khushab and 4 others Malik Safdar Ali Khan and another v. Public-at-large and others 2004 SCMR 1219; Mst. Hameed Mai v. Irshad Hussain PLD 2002 SC 267; Mst. Rubia Jilani v. Zahoor Akhtar Raja 1999 SCMR 1834 Mst. Najma Yasmin and others v. Javaid Akhtar and 2 others 2003 CLC 729; Mst. Fauzia Begum v. Amin Saddruddin Jamal Gonji 2007 CLC 1403; Rafiq v. Smt. Bashiran and another AIR 1963 Rajasthan 239 and Fakhr-ud-Din Khan alias Harbans Rai v. Mt. Biro AIR 1926 Lah. 393 ref.

Fahimuddin Khokhar v. Mst. Zaibunnisa PLD 1968 Kar. 774 and Muhammad Sadiq Butt v. Mst. Khalida Parveen PLD 1967 Kar. 645 rel.

Ch. Muhammad Ameen Javed for Petitioner.

Ahmad Awais and Rai Shahid Saleem Khan, Advocates for Respondent No.2.

2012 M L D 1768

[Lahore]

Before Kh. Imtiaz Ahmad, J

MUHAMMAD ASLAM SHAH and others---Appellants

Versus

PROVINCE OF THE PUNJAB and others---Respondents

Civil Revision No.483-D of 2002, decided on 22nd November, 2011.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Father of the plaintiffs and one of the defendants who was member of co-operative society, was allotted land in dispute in 1948 and allottee died in the year 1961 and said defendant being one of his sons, was his nominee---Land of deceased allottee, which was in joint ownership of plaintiffs and defendant (son) having been allotted to nominee of the deceased, other legal heirs of deceased/plaintiff filed suit for declaration, which had concurrently been dismissed by the Trial Court and Appellate Court below---Validity---Nominee of deceased allottee himself had no right for allotment of entire land of deceased allottee, but all his legal heirs were entitled to the same---Plaintiffs, in circumstances, were justified to challenge the allotment order made in favour of the defendant/ nominee---Merely on the technical ground that the order of allotment was not produced, claim of the plaintiffs could not be dislodged---Suit was filed by the plaintiffs after 16 years of the allotment in favour of the defendant/nominee---No doubt that no limitation would run against the legal heirs or against the void order, but when the plaintiffs had come to know of the fraud, then the limitation would start running---Suit filed by the plaintiffs with the delay of 16 years, being time-barred, courts below had rightly dismissed the suit on ground of limitation---Subsequent vendee from defendant/nominee appearing to be bona fide purchaser of the suit property, was rightly held as such.

Qazalbash Waqf and others v. Chief Land Commissioner Punjab PLD 1990 SC 90; Muhammad Shafi v. Mushtaque Ahmed through Legal Heirs and others 1996 SCMR 856; Yummy Milk Products (Pvt.) Ltd. through Managing Director v. Government of Punjab and 4 others 1999 CLC 1443; Mooso through Legal Heirs and 2 others v. Allah Ditto through Legal Heirs and 7 others 1999 CLC 798 and National Bank of Pakistan v. Khairpur Textile Mills Ltd. and others 2001 CLC 1187 ref.

Fazal Shah v. Muhammad Din and others 1990 SCMR 868; Ghulam Haider v. Hafiz Allah Bakhsh 1985 SCMR 1218; Luqman and others v. Gul Muhammad and others 1984 SCMR 63 rel.

Rana Muhammad Nazir Saeed for Appellant.

Malik Bashir Ahmed Lakhesire, A.A.-G., Sajjad Hussain Khan Khera for Respondent No.2.

Mehr Nizam ud Din Sial and Malik Muhammad Tariq Noonari for Respondent No.3.

Date of hearing: 16th November, 2011.

2012 M L D 1778

[Lahore]

Before Nasir Saeed Sheikh, J

HAYAT AHMAD KHAN through Legal Heirs and 4 others---Appellants

Versus

Mst. SAMEENA MUZZAM---Respondent

E.F.A. No.123 of 2012, decided on 3rd February, 2012.

Civil Procedure Code (V of 1908)---

----S. 104(ff), O.XXI, Rr.10, 23-A & O.XLIII, R.1---Execution of decree---Objection petition---Rejection of objection petition---Decree-holder through an application initiated execution proceedings, and judgment-debtors had filed objection petition---Objection petition having been rejected by the Executing Court, judgment-debtors had filed appeal against rejection order---Contention of judgment-debtor that Executing Court had rejected objection petition without hearing him, was against the record---Order rejecting objection petition referred to the presence of counsel for judgment-debtors as well as decree-holder at the time of passing said order---Judgment-debtors had not stated any ground in appeal that they had been condemned unheard by Executing Court---Authenticity of the judicial proceedings could not be doubted simply on the oral arguments made by the counsel for judgment-debtors, when particularly such arguments were negated by order passed by Executing Court and no such ground of not hearing the judgment-debtors by the Executing Court had been raised in the memo of appeal by the judgment-debtors---Counsel for judgment-debtors was not justified to urge that the execution proceedings should have been stayed by Executing Court on account of pendency of petition for leave to appeal before the Supreme Court, wherein no injunctive order had been issued by Supreme Court---No absolute rule or practice of High Court existed to admit every Execution First Appeal to regular hearing and then decide the matter.

Hilbro Instruments (Pvt.) Ltd. through Chief Executive, Lahore v. Mst. Sikandar Begum through Special Attorney PLD 2008 Lah. 57; Shagufta Shaheen v. Muhammad Ismail Qureshi and 2 others PLD 2011 Pesh. 238; Ghulam Rasool v. The State 1992 MLD 2455; Haji Inayat Ali v. Haji Rehmat Ali and 16 others 2010 MLD 894; Muhammad Usman v. Shabana Naureen and 3 others 2008 CLC 590 and PLD 2008 Lah. 57 rel.

Syed Iftikhar Hussain Shah for Appellants.

Mirza Hafeez-ur-Rehman for Respondent.

2012 M L D 1791

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD ASGHAR and 3 others---Petitioners

Versus

REHMAT ULLAH and 2 others---Respondents

Civil Revision No.2744 of 2010, heard on 24th January, 2012.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2-A [as amended by West Pakistan Muslim Personal Law (Shariat) (Amendment) Ordinance (XIII of 1983)]---Specific Relief Act (I of 1877), S.42---Inheritance---Custom---Applicability---Predecessor-in-interest of parties who was owner of land died in 1934 leaving behind a son and a daughter---Both of them inherited the property of the deceased---Son of the deceased had been paying share of his sister, who later on expired---When legal heirs of deceased sister approached the brother of their mother for their mother's share in land, he told them that no land had devolved upon their mother---Legal heirs of deceased sister filed suit for declaration, which suit was concurrently dismissed by the Trial Court and Appellate Court below---Validity---After death of owner predecessor-in-interest of the original owner of land, mutation of inheritance was sanctioned in favour of his son, excluding his daughter---Claim of the plaintiffs was that their mother was entitled to inherit 1/3rd of the property of deceased original owner being his daughter according to the law of inheritance---Applicable Custom was at the time of sanctioning of impugned mutation, whereby in presence of male, the females were excluded to inherit the property of deceased---Mutation was sanctioned in the year 1935 and whole property was inherited by defendant/son of deceased original owner and daughter/mother of the plaintiffs was excluded to inherit the same due to the application of custom at the relevant time and Shariat was not applicable in the case of inheritance---Mother of the plaintiffs never challenged said mutation in favour of her brother/defendant during her life time---Mutation was rightly sanctioned in favour of the defendant being sole male member---Concurrent findings of the courts below could not be interfered with in revisional jurisdiction of High Court, as courts below while passing orders and decrees had taken into consideration all material aspects of the case; and findings were based on proper appreciation of oral as well as documentary evidence led in the suit.

2008 SCMR 905; 2006 SCMR 884; 2003 SCMR 362; PLD 1985 SC 407 and 2009 SCMR 1014 distinguished.

Atta Muhamamd v. Maula Bakhsh and others 2007 SCMR 1446 rel.

Muhammad Saqib Qadeer for Petitioners.

Muhammad Yaqoob Ch. for Respondent No.1.

Date of hearing: 24th January, 2012.

2012 M L D 1802

[Lahore]

Before Ch. Shahid Saeed, J

DEFENCE HOUSING AUTHORITY, LAHORE CANTT. through Secretary---Petitioner

Versus

ASIF RIAZ and 3 others---Respondents

Civil Revision No.1146 of 2001, heard on 10th April, 2012.

Specific Relief Act (I of 1877)---

----S.39---Suit for cancellation of document---Plaintiff sought cancella-tion of general power of attorney and registered sale deed dated 3-1-1980, being illegal, void and result of fraud---Trial Court and Lower Appellate Court concurrently decided suit and appeal in favour of plaintiff---Validity---Evidence produced by defendant before Trial Court was not properly appreciated by both the courts below---Some material issues were not framed by Trial Court and defendant also did not file any application at any stage for framing of additional issues---Most of the important aspects of case were not considered by the courts below while deciding matter in issue---High Court in exercise of revisional jurisdiction remanded the case to Lower Appellate Court for deciding the appeal afresh---Revision was allowed accordingly.

Tariq Masood for Petitioner.

Jehangir A. Jhoja and Rana Zulfiqar Ali for Respondents.

Date of hearing: 10th April, 2012.

2012 M L D 1824

[Lahore]

Before Ch. Muhammad Younis, J

Miss SIDRA NAEEM---Petitioner

Versus

VICE-CHANCELLOR, BAHAUDDIN ZAKARIYA UNIVERSITY MULTAN and 4 others---Respondents

Writ Petition No.7602 of 2011, decided on 21st June, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational Institution---Petitioner sought direction to the effect that University be directed to release degree certificates for her Martic, intermediate, and bachelors degrees; which were withheld on the ground that the petitioner had failed in the matriculation examination---Validity---Petitioner had not passed the matriculation examination and had failed in the compulsory subject of math. and had not reappeared in the said examination though she had applied for the same---Without having passed the matriculation examination, petitioner was not entitled to appear in the intermediate and bachelors examinations---Report card clearly mentioned that "error and omissions were expected" and in the result card of the bachelors examination; it was stated that " the result card was issued as a notice only and any entry appearing in it did not itself confer any right or privilege independently to the grant of a proper certificate/degree, which will be issued under the Regulations in due course"---Petitioner had not come to the court with clean hands, when she knew very well that she had not passed the matriculation examinations, and she could not apply for appearing in the intermediate examinations---High Court could not issue any direction as it would amount to perpetuating an illegality committed by the petitioner---Constitutional petition, was dismissed, in circumstances.

(b) Administration of justice---

----No one could be given the benefit of his or her own wrong or fraud.

Rana Muhammad Shakeel for Petitioner.

2012 M L D 1832

[Lahore]

Before Abdul Sami Khan, J

AKBAR ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.38 of 2006, heard on 1st August, 2012.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Names of the complainant and the eye-witnesses were not mentioned in the inquest report, which had shown that the F.I.R. in the case had been chalked out by the Police after procuring the eye-witnesses, who actually were not present at the spot at the relevant time---Occurrence had taken place at 7.30 P.M, during winter night, but no source of light had been shown in the scaled site-plan as well as in the rough site-plan---Identification of accused, in circumstances, was doubtful---According to F.I.R. the deceased was called and taken away to the place of occurrence by an unknown boy---Said boy was never traced by the Police; and his whereabouts during the whole episode were kept unknown, and he was never produced before the Police, neither during the investigation, nor during the trial before the Trial Court to substantiate the story set forth in the F.I.R.---Prosecution had also withheld the important evidence of a shopkeeper in front of whose shop the occurrence had taken place---At one stage the parents of the deceased had effected compromise with accused and forgiven him, but due to non-availability of widow of the deceased, the compromise could not be finalized, which fact had created an impression regarding innocence of accused---Material contradictions existed between the ocular account and the medical evidence---Motive could not provide support to the ocular account---Recovery of Kalashnikov was effected from accused after more than one year of the occurrence from the place which was not in exclusive possession of accused---Report of Forensic Science Laboratory with regard to weapon of offence and empties was negative---Recovery, in circumstances, was of no help to the prosecution---Eye-witnesses were not present at the spot at the relevant time---Two co-accused, who had been attributed firearm injuries on the person of the deceased, had already been acquitted---Prosecution, in circumstances, having failed to prove its case against accused beyond any reasonable doubt, he was acquitted of the charge and was released from the jail, in circumstances.

(b) Criminal trial---

----Motive---Once motive was alleged by the prosecution in the F.I.R., then it had to prove the same, failing which, its benefit would go to accused.

Khawaja Waseem Abbas for Appellant.

Nisar Ahmad Virk, Deputy Prosecutor-General for the State.

Date of hearing: 1st August, 2012.

2012 M L D 1851

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD ARSHAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.8271-B of 2012, decided on 27th July, 2012.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss. 324/148/149---Attempt to commit qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Accused and co-accused were alleged to have fired at the complainant party---Alleged motive for the occurrence was that accused and co-accused were engaged in racketeering and complainant party refused to pay them---Contentions of the accused were that he had been implicated on account of previous enmity and his relation with one of the co-accused; that he was a school teacher; that injury attributed to him was simple in nature and he did not repeat the fire-shot, and that police had opined that accused did not cause any firearm injury to the injured---Validity---Although accused was alleged to have fired at the injured but he did not repeat fire---No fracture was found on account of fire shot allegedly made by the accused---Accused was related to one co-accused, who happened to be a proclaimed offender---Police had found that accused was present at the spot but he did not cause any injury to the injured---Although accused had disappeared after the occurrence, but such practice was common in order to avoid manhandling by the police---Abscondence of accused did not create any bar for refusing bail provided a case of bail was made out---Abscondence of co-accused could not handicap the court from releasing an accused on bail-Case was one of further inquiry and accordingly accused was released on bail.

PLD 2004 SC 477; 2008 SCMR 1621 and 2010 MLD 804 ref.

Azam Nazeer Tarar for Petitioner.

Muhammad Akhlaq, D.P.G. with Imtiaz A.S.-I.

Mrs. Tayaba Ramzan Chaudhry for the Complainant.

2012 M L D 1873

[Lahore]

Before Amin-ud-Din Khan, J

ABDUL HAFEEZ---Petitioner

Versus

Mst. RASHIDA BIBI and another---Respondents

Civil Revision No.494 of 1998, decided on 12th January, 2012.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of oral agreement to sell immovable property---Appellate court decreed the suit partially in favour of the plaintiff for return of earnest money as one of the defendants had admitted the agreement and receipt of earnest money---Plaintiff, was however, denied a decree for specific performance---Contention of the plaintiff was that on the admission by one of the defendants that he had entered into the agreement with the plaintiff as attorney for the other defendant; a decree for specific performance should have been passed in his favour---Validity---Other defendant had admitted on record that the defendant who entered into said agreement was her attorney with regard to suit property and said power of attorney only got cancelled after the agreement came into existence---Said other defendant never challenged the power of attorney and had not filed any suit to impugn the agreement to sell in favour of the plaintiff---Only question was whether the agent (the consenting defendant) had committed any fraud with the principal (the other defendant)---Plaintiff was required to ascertain whether the consenting defendant was validity appointed attorney and if he had the right under the power of attorney to sell the suit property---Defendant on the basis of the record was valid attorney for the other defendant and had the authority to sell the suit land---Plaintiff was, therefore, entitled to decree for specific performance---High Court set aside orders of the courts below and decreed the suit---Revision was allowed, in circumstances.

Ch. Muhammad Amjad Khan for Petitioner.

Muhammad Aslam Khan Dhukar for Respondents.

Date of hearing: 12th January, 2012.

2012 M L D 1881

[Lahore]

Before Ijaz ul Ahsan, J

Mirza IBRAHIM HAMAYUN BAIG---Petitioner

Versus

SECRETARY, HOME DEPARTMENT, GOVERNMENT OF THE PUNJAB and 3 others---Respondents

Writ Petition No.16455 of 2012, decided on 29th June, 2012.

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

---S. 12(1)(a)---Constitution of Pakistan, Art. 199---Constitutional petition---Cancellation and suspension of arms licence---Show cause notice, legality of---Petitioner was issued a show cause notice by an administrative officer from the office of the District Coordination Officer (DCO)---Contentions of petitioner were that show cause notice could only be issued by the officer by whom the licence was issued in the first instance or by an officer to whom he might be subordinate or any District Coordination Officer (DCO), therefore, show cause notice in question was without jurisdiction and violative of S. 12(1)(a) of West Pakistan Arms Ordinance, 1965- Advocate General (on behalf of the concerned Department) contended that administrative officer in question had been nominated as Incharge, Arms Licensing Branch by an order of the DCO, therefore, show cause notice issued to the petitioner was duly authorized---Validity---Said order of DCO prima facie did not delegate any of the powers enjoyed by the DCO in terms of S.12 of West Pakistan Arms Ordinance, 1965---Powers under S.12(1)(a) of West Pakistan Arms Ordinance, 1965, could not be delegated at least in the manner adopted by the DCO through his order---Show cause notice in question did not indicate that it was being issued in delegated/representative capacity---Constitutional petition was allowed, show cause notice was declared null, void, without lawful authority and of no legal effect with the observation that competent Authority under S. 12(1)(a) of West Pakistan Arms Ordinance, 1965, was not precluded from initiating fresh proceedings against the petitioner in accordance with the law.

Mian Abdul Ghaffar for Petitioner.

Faisal Zaman Khan, Additional Advocate General for Respondents Nos. 1 to 3.

2012 M L D 1894

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

IMRAN alias SUNNY---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.6011-B of 2012, decided on 1st August, 2012.

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

----Ss. 497 & 164---Bail---Judicial confession, retraction of---Admissibility of such confession at bail stage---Scope---Judicial confession even if retracted cannot be discussed at bail stage and the Trial Court is the competent forum to determine admissibility and veracity of such piece of evidence.

Farooq Mengal v. The State through A.G Sindh Karachi 2007 SCMR 404 and Raja Muhammad Irshad v. Muhammad Bashir Goraya and others 2006 SCMR 1292 rel.

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

----Ss. 497 & 164---Penal Code (XLV of 1860), Ss. 302/201/337-J/ 148/149---Qatl-e-amd, causing disappearance of evidence of offence, causing hurt by means of a poison, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Judicial confession, retraction of---Admissibility of such confession at bail stage---Scope---Accused was alleged to have murdered the deceased lady---Accused had recorded his statement (confession) before the Magistrate stating that he had illicit relations with the deceased lady, who blackmailed him and extorted money and gold ornaments from him and being fed up, he administered sleeping pills to her and committed her murder---Accused subsequently retracted from said statement (confession)---Contentions of the accused were that accused had retracted from his self-inculpatory statement, therefore, same could not be relied upon to convict him---Validity---Statement of accused was available on the record which showed that he voluntarily made self-inculpatory statement admitting that he was the person who killed the deceased---Question of retracted judicial confession could not be addressed at bail stage---Ample incriminating evidence was available on record to connect the accused with the commission of the offence---Bail application was dismissed in circumstances.

Mir Zaman and 5 others v. The State and others 2012 SCMR 580; Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329; Aala Muhammad and another v. The State 2008 SCMR 649; Malik Jehanair Khan and others v. Sardar Ali and 2 others 2007 SCMR 1404; Shahid Hussain alias Multani v. The State and others 2011 SCMR 1673 and Abid Ali alias Ali v. The State 2011 SCMR 161 distinguished.

Farooq Mengal v. The State through A.G Sindh Karachi 2007 SCMR 404 and Raja Muhammad Irshad v. Muhammad Bashir Goraya and others 2006 SCMR 1292 rel.

Ch. Muhammad Zunair Fareed for Petitioner.

Ch. Rizwan Hayat for the Complainant.

Muhammad Ishaq, D.P.G. With Saad Ahmad, S.I. for the State.

2012 M L D 1924

[Lahore]

Before Amin-ud-Din Khan, J

Mst. ZARINA MAI and others---Petitioners

Versus

Sahibzada IRSHAD AHMAD ABBASI and others---Respondents

Civil Revision No.1005 of 1994, decided on 29th November, 2011.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration of title was dismissed by Appellate Court---Finding of the Appellate Court that statement of two witnesses were not recorded; was factually incorrect and statement of said witnesses were recorded by Trial Court---Claim of the plaintiffs for being legal heirs of the original owner of suit property on scrutiny was determined to be legal---Plaintiffs had rightly filed the suit and the form of the suit was correct---High Court decreed suit of the plaintiffs. [pp. 1926, 1927] A, B & C

Ahmad Mansoor Chishti and Malik Abdul Ghafoor Awan for Petitioners.

Ch. Muhammad Shafi Meo and Ch. Abid Hussain Meo for Respondents.

Date of hearing: 29th November, 2011.

2012 M L D 1931

[Lahore]

Before Mazhar Iqbal Sidhu and Abdul Sarni Khan, JJ

MUHAMMAD SAFDAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.21 of 2008 and Murder Reference No.295 of 2007, heard on 14th June, 2012.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 337-D---Qa.tl-a-amd, attempt to commit qatl-e-arm, causing Jaifah---Appreciation of evidence---Matter was reported with sufficient promptitude---Both the eye-witnesses had consistently explained the mode and manner in which occurrence took place; the weapons used by accused and the locale of injuries on the bodies of both the deceased---Prosecution witness who had received a grievous firearm injury from the hand of accused, his presence at the place of occurrence was not doubtful---Said star prosecution witness had sufficiently supported the prosecution story mentioned in the F.L'R.--. Both the eye-witnesses were subjected to lengthy cross-examination, but they remained consistenton. each and every material point---Defence could not extract anything, which proved fatal for the prosecution or could provide any benefit to the defence for creating doubt regarding their presence at the place of occurrence; or making false statement against accused---Incident was a broad daylight occurrence and both the parties being relatives inter se known to each other, which fact disproved possibility of any mistaken identity-No plausible reason had been brought on record by the defence for false implication of accused in the case--Complainant would not leave the real culprit who committed the murder of his father and close relative and involve accused without any rhyme or reason---Evidence provided by two eye-witnesses had inspired confidence of the Trial Court for convicting and sentencing accused-Defence remained unable to shatter the credibility of the eye-witnesses---Ocular account furnished by both the eye-witnesses had been proved beyond any shadow of doubt---Medical evidence amply proved the locale of injuries, the weapons used by accused to do away with the deceased, and the time of taking place of the occurrence---Medical evidence was apt with the ocular account and provided sufficient support thereto---Report of Forensic Science Laboratory with regard to weapon of offence, was positive---Motive set up by the prosecution against accused had amply been proved against hint; which had provided support to the ocular account---Accused, who had acted mercilessly and committed cold blooded murder of the deceased, deserved sentence of death---Death sentence awarded to accused by the Trial Court, was confirmed and Murder Reference was answered in the positive.

Ch. Zafar Ighal Chadhar for Appellant.

Munir Ahmad Sial, Deputy Prosecutor-General for the State.

Ch. Khalid Malmlood Arain for the Complainant.

2012 M L D 1943

[Lahore] .

Before Ibad-ur-Rehman Lodhi, J

RAZIA BIBI and another---Petitioners

versus

MUHAMMAD IQBAL and 2 others---Respondents

Writ Petition No.15512 of 2011, decided on 12th September, 2012.

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

----S. 5 & Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Wife (petitioner) assailed order of Family Court whereby after marriage was dissolved on the basis of khula, wife was ordered to relinquish right to maintenance allowance in lieu of condition of khula---Validity---Maintenance allowance' was considered not as "benefit" but a "right" of the wife---Claim of maintenance being not a benefit the wife had received from husband was not returnable in case of khula as it was duty of the husband to maintain his wife so long as she remained in wedlock---Wife was entitled in law to maintenance during pendency of suit and period of iddat and would not forfeit such right merely because she had sought divorce on basis of khula---Order of Family Court was set aside---Constitutional petition was allowed, in circumstances.

Muhammadan Law by D.F. Mulla; Shafiqan Bibi v. Senior Civil Judge/Judge Family Court, Okara and another 1999 CLC 160; Iftikhar Ahmed v. Husan Pari and others 1988 CLC 2355 and M. Saglain Zaheer v. Mst. Zaibun Nisa Zaheer alias Zaibi and another 1988 MLD 427 rel.

(b) Islamic Law

------Dissolution of marriage by way of Khula---Effect---Divorce effected by khula or mubarat operated as a release by the wife of her dower, but did not affect the liability of the husband to maintain the wife during her Iddat.

Muhammadan Law by D.F. Mulla rel.

Muhammad Ehsan Gondal for Petitioners.

2012 M L D 1948

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD FAZAL RASOOL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FEROZEWALA and 4 others---Respondents

Writ Petition No.15651 of 2012, decided on 25th July, 2012.

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

----S. 5, Sched., Ss.7 & 8---Constitution of Pakistan, Art. 199-Consti­tutional petition---Ex parte decree, setting aside of---Suit for recovery of , dower and maintenance allowance was decreed ex parte against husband concurrently---Contention of the husband (petitioner) was that decree against him was obtained in a clandestine manner and he was not served at all---Validity---Husband in his application for setting aside ex parte decree had mentioned the same address as given in the suit by the wife and according to the Nikahnamma, the address of the husband was the same as mentioned by the wife in the suit---Contention of the husband that the wife obtained ex parte judgments against him by giving his wrong address was not tenable and he was well aware of the suit filed against him by the wife---Husband had not denied proclamation issued in the newspaper and close relatives of the husband were residing. in the area where the newspaper was circulated, therefore, presumption of. truth was attached to the fact that after the issuance of proclamation in the newspaper, the husband was served in accordance with law---Choice of newspaper was not of the parties but rather the court had the discretion to direct issuance of proclamation in the newspaper from amongst the list approved by the court---Husband, at present juncture, could not claim that he was not given an opportunity to defend himself---Husband, held, was proceeded ex parte in accordance with law---Constitutional petition was dismissed, in circumstances.

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

----S. 5, Sched., Ss.7 & 8---Jurisdiction---To determine the jurisdiction of the Family Court; the ordinary residence of the wife (plaintiff) was considered as her place of abode and the court concerned at such place had the jurisdiction to try the suit---Since two brothers of the wife were residing at place the wife being their real sister, could reside with them; and therefore the Court at place `K' had jurisdiction to decide the suit.

Farid Ullah Khan Kundi v. Rustam Khan PLD 2012 Pesh. 121;Qazi Laeeq v. Najeebur Rehman and others 2012 MLD 50; Muhammad Bakhsh v. Additional District Judge and 2 others 2012 MLD 990; Muhammad Ahmed v. Muhammad Younus Lakhani 2011 YLR. 1912; Mubarak Ali v. First Prudential Modaraba 2009 CLC 849; Ijaz Ahmad v. Habib Bank ' Limited, Karachi 2012 CLC 1762; Mst. Nasreen v. Additional District Judge with Power of Guardian Judge, Alipur and others PLD 2007 Lah. 576; Messrs Bashir Leather Int. (Pvt.) Limited and 2 others v. Muslim Commercial Bank Limited through Manager 2006 CLD 132; Manzoor Ahmad v. District Officer Revenue, Lahore and others 2006 CLC 1647; Syed Salim Imtiaz Hussain through Syed Imtiaz Hussain v. Muhammad Salim and 2 others 2004 MLD 1548; Muhammad Aslam v. Muhammad Usman and others 2004 CLC 473; Messrs Mahmood Brothers through Mahmood Ahmad and another v. National Bank of Pakistan through Manager and another 2004 CL.D 771; Messrs Quetta Silk Centre through Sole Proprietor and 2 others v. Muslim Commercial Bank Limited through Branch Manager/General Attorney 2003 CLD 254; Arshad Ali v. Additional District Judge, Vehari and others 2002 CLC 1450; Asim Shahzad v. Muslim Commercial Bank Limited through President and another 2002 CLD 1258; M. Saleem Ahmad Siddiqui v. Mst. Sabira Begum and others 2001 YLR 2329; Ghazanfar Abbas v. Asifa Bokhari 2000 YLR 841; Mst. Faiz Noor v. Dilawar Hussain and others 1995 CLC 1319; Zahid Hussain Dar v. Ahmad Shaukat Dar and, 3 others 1994 MLD 574; Shaikh Muhammad Hussain v. Additional District Judge, Lahore and others 1993 CLC 795; Mst. Muhammadi v. Jamil-ud-Din PLD 1960 (W.P.) Karachi 663; Mst. Rahilan v. Sana Ullah PLD 1959 (W.P.) Lahore 470 and Ahmed Ali v. Sabha Khatun Bibi and others PLD 1952 Dacca 385 distinguished.

Farhat Jabeen v. Muhammad Safdar and others 2011 SCMR 1073 rel.

Zafar Iqbal. Bhatti for Petitioner.

Ch. Kashif Ali for Respondent No.3.

2012 M L D 1958

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUSHTAQ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1041-B of 2012, decided on 29th May, 2012.

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---Plea raised by the counsel for accused was that alleged abductee had contracted marriage with accused, which was performed in the presence of the witnesses by a Nikah Khawan---Police, during investigation, had reached at a conclusion that the abduction of the alleged victim was not established from the record---Victim of the case, had not approached any Family Court seeking jactitation of marriage---Matter of existence of Nikah between accused and the victim, was yet to be probed by the Trial Court---Case being fit for, grant of bail, accused was admitted to bail, in circumstances.

Muhammad Yousaf Zubair for Petitioner.

Malik Riaz Ahmad Saghla, Deputy Prosecutor General along with Habib, A.S.-I. with record. .

2012 M L D 1965

[Lahore]

Before Mazhar Iqbal Sidhu, J

NIAMAT ALI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 11095-B of 2012, decided on 13th August, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 377---Juvenile Justice System Ordinance (XXII of 2000), S. 10(5)---Unnatural offence (carnal intercourse)---Plea of juvenility---Rule of consistency---Accused and co-accused were alleged to have committed sodomy with the victim, who was a child aged about four years---Contentions of accused were that co-accused had been granted bail on the same set of allegations; that accused was aged about 14/15 years, therefore, being a juvenile he was entitled for the concession of bail, and that investigation was complete and accused was no more required for further investigation---Validity---Accused was a juvenile being less than 15 years of age---Investigation was complete---Co-accused had already been granted bail---Although accused was charged with peadophilia but circumstances warranted acceptance of bail petition---Accused was admitted to bail, in circumstances.

Ch. Muhammad Anwar Zahid for Petitioner.

Muhammad Akram Tahir, DDPP with Afzal, A.S.-I. for the State.

2012 M L D 1971

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

ZEESHAN SAJID---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.' 10113-B of 2012, decided on 30th July, 2012.

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

----S. 497(2)-Penal Code (XLV of 1860), Ss. 381-A & 411--Theft of a car or other motor vehicles, dishonestly receiving stolen property---Bail,' grant of-Further inquiry---Accused was alleged to have committed theft of car belonging to the complainant and said car was also allegedly recovered from the possession of the accused---Accused was allowed bail by Magistrate but same was cancelled the very next day by Sessions Judge on an application moved by the complainant---Validity---Accused was not named in the crime report nor in any supplementary statement---Test identification parade had not been held-Investigating officer had stated before court that accused was arrested on basis of spy information---Evidentiary value of recovery of vehicle could be.. determined by Trial Court after recording of evidence---Offence alleged, in view of its prescribed punishment, did not fall under prohibitory clause of S. 497(1), Cr.P.C---Accused was no more required for further investigation---Case was one of further inquiry and accordingly accused was admitted to bail with the observation that cancellation of bail was procured in a slipshod manner by the complainant on the very next day when the accused had not yet been released from jail and Sessions Judge, while cancelling bail, had acted with extreme high-handedness thereby misusing his judicial powers, therefore, Registrar of High Court was directed to place said observation of the High Court in the personal file of the Sessions Judge so that the matter could be taken up on administrative side.

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

----S. 497---Bail, grant of---Cases not punishable with death, transportation for life or 10 years' imprisonment---Grant of bail was a rule and refusal an exception in such cases.

Tariq Bashir v. The State PLD 1995 SC 34 and Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 rel.

(c) Administration of justice---

----Right to be heard in proceedings---Scope---Affording an opportunity of hearing was part and parcel of every statute irrespective of the fact whether it was embodied therein or not.

Pakistan and others v. Public at Large and others PLD 1987 SC 304 rel.

Javed A.khtar Siddiqui for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General. Hafeez-ur-Rehman Chaudhry for the Complainant.

Nasir Abbas, A.S.-I. with record.

2012 ML D 1984

[Lahore]

Before Abdul Waheed Khan, J

ASHRAF ALI---Petitioner

Versus

JUDGE FAMILY COURT, OKARA and 2 others---Respondents

Writ Petition No. 57 of 2012, decided on 25th January, 2012.

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

----S.7(2)---Constitution of Pakistan, Art.199---Constitutional petition--Suit for recovery of maintenance allowance---Production of witnesses----Principles---Petitioner's application for production of witnesses after the conclusion of evidence of both parties was dismissed by Family Court on the ground that list of such witnesses was not furnished by the petitioner with the petitioner's written statement-Validity-Proviso to S.7(2) of the West Pakistan Family Courts Act, 1964 contemplated that the parties may, with the permission-of the court, call any witness at any later stage, if the court considered such evidence expedient in the interest of justice---Family Court in the impugned order, did not appear to have given any such observation as to whether the evidence of such witnesses was expedient to the interest of justice or not---Mere fact that the list of witnesses was not furnished along with written statement, did not place any bar for the production of any witness at any belated stage---Family Court, in exercise of its powers could make such orders as may be necessary for the ends of justice---Court was not to act upon the principle that every procedure was to be taken to be prohibited unless it was expressly provided for. but on the converse principle that every procedure was to be understood as permissible till it was shown to be prohibited by law---As a matter of general principle, prohibition could not be presumed---Order of Family Court was set aside with the direction that the petitioner's application for production of witnesses be deemed to be accepted---Constitutional petition was allowed accordingly.

Ch. Sarfraz Ali Diyal for Petitioner.

Malik Zahid Hussain for Respondents Nos. 2 and 3.

2012 M L D 1988

[Lahore]

Before Kh. Imtiaz Ahmad, J

MUHAMMAD SHABBIR---Petitioner

versus

ZAFAR JAVED and others---Respondents

Writ Petition No.550 of 2012, decided on 29th February, 2012.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 19(4) & 25---Constitution of Pakistan, Art. 199---Constitutional petition---Tenant (petitioner) assailed orders of Rent Tribunal, whereby, tenant's objection that the landlord (respondent) could only produce such witnesses whose affidavits had been annexed with the ejection petition, was rejected---Contention of tenant was that under S.19(4) of the Punjab Rented Premises Act, 2009, it was mandatory for the landlord to submit his affidavit and affidavits of not more than two witnesses, and thereafter only such witnesses could be produced in evidence---Validity---Section 25 of the Punjab Rented Premises Act, 2009 dealt with the aspect of recording and evidence and did not relate to the affidavits previously filed by the landlord at the time of filing the ejectment petition---Landlord could submit the affidavits of any person of his own choice, at the time of evidence and then the Rent Tribunal might direct the attendance of the deponent of such affidavit, for cross­examination---Rent Tribunal had committed no illegality by allowing the landlord to submit the affidavit of any person---Constitutional petition was dismissed.

Ch. Muhammad Shahzad Aslam Naz v. Special Judge (Rent), Multan and another 2011 CLC 1503 rel.

Sardar Nasir Mahmood for Petitioner.

2012 M L D 23

[Peshawar]

Before Syed Sajjad Hassan Shah, J

Syed MUHAMMAD ALI SHAH---Petitioner

Versus

Syeda KALSOOM HASSAN and 2 others---Respondents

Civil Revision No.171 of 2009, decided on 4th July, 2011.

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

----O. XIII, R. 4---Qanun-e-Shahadat (10 of 1984), Art. 133---Document exhibited in evidence without any objection regarding its validity, authenticity, scribing and signing by opposite party---Effect---Objection as to authenticity of proof must be taken at earlier stage---Document once admitted in evidence, objection against its admissibility could not be allowed to be raised at any subsequent stage---Execution of such document would be deemed to be proved in all respects.

Malik Din and another v. Muhammad Aslam PLD 1969 SC 136; Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140; Ghulam Muhammad v. United States Agency for International Development (U.S. Aid) Mission, Islamabad and another 1986 SCMR 907; Haji Abdullah and 10 others v. Yahya Bakhtiar PLD 2001 SC 158 and Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 rel.

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

----Arts. 31 & 133---Statement of a witness made in examination-in-chief including scribing of receipt and affixation of signatures thereon by opposite party, if not challenged during cross-examination by opposite party, would amount to an admission as envisaged in Art. 31 of Qanun-e-Shahadat, 1984---Principles.

Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 rel.

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

----Arts. 57, 58, 59 & 120---Suit for recovery of money lent against receipt signed by defendant---Defendant's plea that limitation would run from date of receipt, thus, suit filed beyond period of three years was barred by law of limitation---Validity---Defendant had borrowed money from plaintiff for purchasing a plot---Defendant in receipt had not fixed time for repayment except that he would sell plot as soon as possible on profit and return borrowed amount to plaintiff---Plaintiff had proved execution of receipt by defendant---Defendant had not brought on record anything to show purchase and sale of plot by him---Defendant had not properly replied plaintiff's plea taken in plaint that initially he was reluctant to pay, but a week prior to filing of suit, he had flatly refused to pay the amount---Defendant had not cross- examined plaintiffs statement made to that effect---Plaintiff, in cross-examination had further added that no period was fixed for repayment of amount, rather defendant had promised to pay loan after sale of plot---Defendant had intentionally avoided payment for a period of four years---No provision existed in Limitation Act, 1908 to apply to the present case, which was covered by Art. 120 thereof---Suit brought within six years from date of accrual of cause of action could not be treated as barred by time---Objection was repelled and suit was decreed in circumstances.

West Pakistan Water and Power Development Authority v. Sohrabji and sons and another 1986 CLC 2592 and Hakman and others v. Mst. Satto PLD 1958 (W.P.) Lah. 936 rel.

Malik Atta Muhammad Khan Sowag for Petitioner.

Muhammad Wahid Anjum for Respondents.

Date of hearing: 4th July, 2011.

2012 M L D 35

[Peshawar]

Before Attaullah Khan and Syed Sajjad Hassan Shah, JJ

WAHEED ULLAH KHAN and 2 others ---Petitioners

Versus

KALIM ULLAH and 3 others---Respondents

Writ Petition No.827 of 2010, decided on 26th May, 2011.

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

----Ss. 11 & 12(2)---Application for setting aside of decree in subsequent suit---Applicant's ground that after dismissal of earlier suit filed by respondent with respect to same subject matter, such decree could not be passed in subsequent suit for being not maintainable under S. 11, C.P.C.---Validity---Applicant had not placed on record copies of judgment and pleadings of previous suit in order to satisfy requirements of S. 11, C.P.C.---Such ground would not fall under any of pre-requisites to invoke jurisdiction of court under S.12(2), C.P.C.---Such application was dismissed in circumstances.

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

---S. 12(2)---Specific Relief Act (I of 1877) S. 42---Application for setting aside of declaratory decree---Applicant's ground that such decree obtained on 14-1-1984 had lost its legal value by afflux of time as same was neither executed nor registered with Sub-Registrar till 14-7-2009---Validity---Such decree could not be put to execution legally---Such decree could be presented to Revenue Officer at any time for its incorporation in revenue record, for which purpose no period of limitation was prescribed---Such ground being alien to S. 12(2), C.P.C., could not be agitated for setting aside such decree---Application was dismissed in circumstances.

1972 SCMR 322 and PLD 1977 SC 75 rel.

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

----O. XXI, R. 10---West Pakistan Land Revenue Act (XVII of 1967), S. 42---Specific Relief Act (I of 1877), S. 42---Declaratory decree, execution of---Scope---Such decree could not be put to execution legally---Such decree could be presented to Revenue Officer for attestation of mutation at any time for its incorporation in revenue record, for which no period of limitation was prescribed---Principles.

Legally declaratory decree cannot be put to the execution. However, it can be presented to Revenue Officer for attestation of mutation to incorporate the same in the revenue record at any time after its passing. It can be done at any time as no period of limitation is prescribed for the purpose of incorporating the declaratory decree in the revenue record. The Revenue Officer is duty bound to attest the mutation whenever produced before him for such purpose.

1972 SCMR 322 rel.

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

----S. 12(2) & O. VI, R. 4---Application under S. 12(2), C.P.C., on ground of fraud---Maintainability---Applicant must bring on record particulars of fraud allegedly committed by respondent during course of proceedings---General allegations of fraud in pleadings would not be sufficient to fulfil requirements of law---Without specifying in pleadings nature of fraud, its date and time, mere applicant's statement would not be sufficient to declare a decree to be obtained by practising fraud---Failure to furnish particulars of fraud would render such application liable to be rejected.

PLD 1977 SC 75 rel.

Asghar Ali Khan for Petitioners.

Abdur Rashid Marwat for Respondents Nos. 1 and 2.

2012 M L D 50

[Peshawar]

Before Waqar Ahmad Seth, J

QAZI LAEEQ---Petitioner

Versus

NAJEEBUR REHMAN and others---Respondents

Civil Revision No.1581 of 2010, decided on 15th August, 2011.

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

----O. IX, Rr. 7 & 13---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Ex parte order and decree, setting aside of---Technicalities---Two reliefs---Scope---Defendant filed application to set aside ex parte order and decree passed against him---Trial Court as well as Lower Appellate Court dismissed the application on the ground that two reliefs could not be sought in one application---Validity---Application for setting aside ex parte proceedings/decree contained all facts and prayers regarding ex parte proceedings as well decree and all orders regarding ex parte proceedings stood merged in ex parte order---Court was duty bound to have decided the application in question on merits instead of dismissing the same merely on technicalities---Recording of pro and contra evidence on the application for setting aside ex parte decree was mandatory---High Court set aside the order passed by two courts below and matter was remanded to Trial Court for deciding the application afresh after recording evidence of both the parties---Revision was allowed accordingly.

PLD 1992 Pesh. 130; 1993 SCMR 609; 2011 YLR 2008; 2005 MLD 1514 and PLD 2010 SC 582 ref.

Syed Arshad for Petitioner.

M. Tariq Afridi and Saadullah Marwat for Respondents.

Date of hearing: 15th August, 2011.

2012 M L D 122

[Peshawar]

Before Attaullah Khan and Khalid Mehmood, JJ

SHAFIQ AHMED---Petitioner

Versus

ABDUL WAJID and 2 others---Respondents

Writ Petition No.114 of 2010, decided on 11th October, 2011.

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

----Ss. 2(c)(i), 13(2)(i), (3)(ii) & 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment application on ground of default in payment of rent and personal need of landlord---Existence of---Relationship of landlord and tenant---Rent Controller framed issues regarding the title of the parties and jurisdiction of Rent Controller---Rent Controller would have jurisdiction only when relationship of landlord and tenant existed between the parties---Petitioner, from the very initial stage, had claimed that he owned the suit property on the basis of unregistered sale-deed, coupled with approval of construction plan by Municipal Committee, in 1935 when relationship of landlord and tenant was denied, Rent Controller was bound to frame preliminary issue for resolving the controversy regarding relationship of landlord and tenant between the parties---Rent Controller, while deciding said issue had assumed the jurisdiction of civil court and decided the title of the parties---Appellate Court had rightly found that Rent Controller had no jurisdiction to decide the title---By giving said findings, Appellate Court should have directed the landlord to approach the civil court for establishing the title of the suit property---Landlord had failed to produce any rent deed or counter foil of any receipt of rent issued to the petitioner by the alleged owner from whom he had allegedly purchased the property---To prove the relationship of landlord and tenant, it was incumbent upon the landlord to produce the rent deed or at least the counter-foil of receipt book---Mere entries in the record of Excise and Taxation Department would not create relationship of landlord and tenant between the parties---Very title of the suit property being involved, landlord was directed by High Court to approach the civil court for establishment of his title---Constitutional Petition was allowed, impugned judgment and order of courts below, was set aside.

Ifzal Ahmed v. Mursaleen 2001 SCMR 1434 and Rehmat Ullah v. Ali Muhammad 1983 SCMR 1604 rel.

M.A. Tahir Kheli for Petitioner.

Muhammad Shoaib Khan for Respondents.

Date of hearing: 11th October, 2011.

2012 M L D 142

[Peshawar]

Before Attaullah Khan, J

ABDUL GHAFOOR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.490 of 2011, decided on 31st October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365-B/376/494---Kidnapping, abducting or inducing woman to compel for marriage, rape and marrying again during life time of husband or wife---Bail, refusal of---F.I.R. though was lodged with delay of about three days but contents of F.I.R. itself explained the delay because the complainant was busy in searching for his wife/abductee---Delay does occur in such like cases which was natural and would not affect the prosecution case---Abductee who was examined under S.164, Cr.P.C., had stated that she was forcibly seated in the vehicle and was taken to another city and later accused forcibly performed Nikah with her---Alleged abductee also charged the accused for zina-bil-jabr and stated that she had informed the accused of her earlier Nikah with her husband---Such statement of abductee, had shown that she had charged the accused for forcible Nikah and commission of zina-bil-jabr---Accused was connected with the commission of offence which was heinous in nature---Trial had commenced and at the stage it was not fair to record comments in the matter---Bail application was dismissed, in circumstances.

Qasim Goher Tanoli for Petitioner.

Malik Amjad Ali and Saima Abbasi for the State.

Date of hearing: 31st October, 2011.

2012 M L D 152

[Peshawar]

Before Fazal-i-Haq Abbasi, J

LAJBAR KHAN--Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.744 of 2010, decided on 21st September, 2011.

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

----Ss.302/148/149---Criminal Procedure Code (V of 1898), S.417(2A)--Qatl-e-amd---Appeal against acquittal---Appraisal of evidence---Eye-witnesses contradicted each other on material points---One prosecution witness, did not mention the presence of other two witnesses on the spot at the time of occurrence---Said prosecution witness in his cross-examination had stated that he was not in the knowledge of what had transpired between the deceased and accused prior to the occurrence as he was not present---Another prosecution witness did not mention the presence of the complainant or any other witness at the time of occurrence---F.I.R. was lodged after a delay of more than 24 hours and explanation offered by the complainant for such delay, was neither reasonable nor plausible which showed that time was consumed in deliberation and consultations---Occurrence was unseen and the witnesses were set up; they were closely related inter se with the deceased and inimical towards accused and were contradicted by the medical evidence---Empty shells allegedly taken from the spot by the complainant were not found wedded with the Kalashnikov allegedly recovered---Double presumption of innocence was attached to the order of acquittal passed by the court of competent jurisdiction---Finding of acquittal could not be reversed, upset and disturbed, except when the judgment of acquittal was found to be perverse, arbitrary, shocking, artificial and suffering from error of jurisdiction, mis-reading or non-reading of evidence---Even if on appreciation of evidence another view was possible, view favourable to accused was to be preferred---Judgment of acquittal passed by the Trial Court, being unexceptionable, needed no interference---Appeal against acquittal was dismissed, in circumstances.

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

----Ss.302/148/149---Qatl-e-amd---Appreciation of evidence---Motive---Motive was a double edged weapon, which would cut both ways---If it could be a reason for aggression against the deceased, it was equally possible that the same could prompt the witnesses to falsely implicate the accused---Motive would lose its importance when ocular account was not trustworthy.

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

----Ss. 302/148/149--- Qatl-e-amd--- Appreciation of evidence---Abscondance of accused---Abscondance was a corroborative piece of evidence; it may be consistent with his guilt or innocence, which was to be decided keeping in view over all facts and circumstances of the? case---Abscondence alone would not be sufficient by itself to warrant conviction in a case involving capital punishment.

??????????? Amir Gulab Khan for Appellant.

2012 M L D 168

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Mst. SHAH TARINA and another---Petitioners

Versus

Mst. SHAHIDA ZAFAR---Respondent

Civil Revisions Nos.55, 61 and 62 of 2004, decided on 3rd October, 2011.

Specific Relief Act (I of 1877)

----S. 42---Suit for declaration---Suit land owned jointly by many persons being used as water channel by entire locality for irrigation purposes---Defendant having house adjacent to such channel---Construction of small bridge by defendant to cross such channel---Plaintiff having joint ownership in suit land raised plea that defendant for not being co-sharer could not use suit land as a thoroughfare---Validity---Other owners of suit land had never objected to its use as a water channel---Report of Local Commissioner showed that such bridge was not a hindrance in flow of water in such channel---Entire suit had been converted into a regular drain, which was under control and supervision of City District Government---Plaintiff did not remain owner of suit land and could not change nature and status of such channel---Plaintiff had no locus standi to file such suit as he could not establish infringement of his right by defendant---Mere entry of ownership of plaintiff would not entitle him to deny right of flow of water to inhabitants of area---No one even an owner of such channel could stop flow of water---Suit was dismissed in circumstances.

Mazullah Barkandi for Petitioner.

Mushtaq Ahmad for Respondent.

Date of hearing: 3rd October, 2011.

2012 M L D 220

[Peshawar]

Before Waqar Ahmad Seth, J

MUHAMMAD AFZAL and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No.1746 of 2011, decided on 25th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession and trafficking of narcotics---Bail, grant of---Further inquiry---Border line case---High Court, in similar circumstances, had granted bail to accused, where the contraband was four kgs.---Whether accused were in conscious knowledge of the recovered stuff lying in the vehicle or not, was a question to be determined after recording of evidence, but accused could not be kept behind the bars for indefinite period and that too when they had no previous history of involvement in such like cases---Three accused were involved and was yet to be ascertained the connection and extent of the contraband with the accused persons---Offence for which accused were charged, though, prima facie, fell within the prohibitory clause of S.497, Cr.P.C., but under the law, the punishment likely to be awarded to accused after the trial as per recovery of alleged contraband, would not fall within the said prohibitory clause---Whether accused could be awarded sentence attracting prohibitory clause, in view of the quantity of substance recovered, would be a question which required further inquiry---Alleged recovered "Garda charas" was not narcotic in its entirety and the Chemical Examiner had not mentioned percentage of narcotic substance, therein, which had made the case of accused that of further inquiry---"Garda" was dust and its quantity allegedly recovered from accused would not make them traffickers/peddlers of contraband---Border line case was made out, which must go in favour of accused---Accused were admitted to bail, in circumstances.

Mohd Ajmal Latif and Farhana Marwat for Petitioner

Mehwish Bakhtiar for the State

Date of hearing: 25th November, 2011.

2012 M L D 240

[Peshawar]

Before Dost Muhammad Khan and Nisar Hussain Khan, JJ

KHAN FOREST through, Managing Director---Petitioner

Versus

ABDUL QAYUM KHAN and 3 others---Respondents

C.R. No.1029 with C.M. No.1042 of 2011, decided on 6th October, 2011.

Civil Procedure Code (V of 1908)---

----O.VII, R.10---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Return of plaint---Controversy according to the pleadings of the parties was with respect to the forest situated at District 'D.K.', whereas suit was filed by the plaintiffs in court at District 'P'---Third rival claimant had filed a suit against same parties/the plaintiffs, in the court at place 'D.K.' involving the same controversy---Civil court at place 'P' was having no territorial jurisdiction in the subject matter---Suit was neither cognizable nor triable by the civil court at place 'P'---When the second suit with regard to the same dispute was pending disposal before the civil court at "D.K." possibility of conflicting judgments and decrees could not be ruled out---Impugned judgment of the Trial Court, whereby application of defendant filed under O.VII, R.10, C.P.C. for return of plaint was dismissed was without jurisdiction and was not sustainable in law---Same was set aside holding that it was having no jurisdiction in the subject matter---Plaint was ordered to be returned to the plaintiffs to be presented in the court at "D.K." and preferably in the same court where the second suit was pending disposal.

Gul Sadbar Khan for Petitioner.

Zahid Ullah Khan for Respondent No.1.

2012 M L D 250

[Peshawar]

Before Mazhar Alam Khan and Waqar Ahmad Seth, JJ

GHANI SHER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.519 of 2011, decided on 22nd November, 2011.

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

----S. 9(c)---Possession and trafficking of narcotics---Appreciation of evidence---Sentence, reduction in---Accused was apprehended on the spot having in his possession four Kgs. charas and report received from Forensic Science Laboratory regarding the same was positive---Accused had been involved in such like crime, but had claimed to have been acquitted---Overwriting regarding the weight of contraband charas had been corrected subsequently---Testimony of five prosecution witnesses, could not be shattered despite lengthy and taxing cross-examination---Witnesses were consistent on each and every aspect of the matter---Nothing had been brought from their mouth, which could favour the accused---Conviction recorded by the Trial Court being in accordance with law and material available on record, same was maintained, in circumstances---Mandatory provisions of S.103, Cr.P.C. had not been complied with in the case by the Police---Some other minor contradictions were found in the statements of prosecution witnesses, benefit whereof must go to accused---Accused was stated to have been acquitted in earlier case against him---Case for reduction of sentence having been made out, while maintaining the conviction of accused, sentence of 5 years' R.I. awarded to him by the Trial Court, was reduced to 2 years' R.I. and amount of fine Rs.50,000 was also reduced to 25,000, in circumstances.

Mian Muhd Murad Kakakhel for Appellant.

Mattiullah Baloch for the State.

Date of hearing: 22nd November, 2011.

2012 M L D 255

[Peshawar]

Before Khalid Mehmood Khan, J

MUHAMMAD IRSHAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Q. No.41 of 2010, decided on 21st October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.419/420/468/471---Cheating, forgery and using as genuine a forged document---Petition for quashing of judgment/order---No bargain between the complainant and petitioner/accused, had been struck down and nothing was on record that any deed or pro note had been executed between the parties---F.I.R. was based on written complaint, but complainant during his examination-in-chief had made deliberate and dishonest improvement to fill up the lacuna of his case---During the trial and examination of complainant, documents were produced and exhibited for the first time, which were not produced during the course of investigation, which was material irregularity and such document had no value in the eye of law---Investigating Officer had not taken into possession the card wherein the specimen signature were obtained by the Bank Manager at the time of opening of his account---Prosecution had also failed to get the expert opinion from Laboratory for comparison of the signature of accused on cheque as well as in account opening card---Except the statement of complainant, prosecution had failed to prove the time and place; and in whose presence the disputed cheque was delivered to the complainant---Courts below were not justified to rely upon the solitary statement of complainant---Documents produced for the first time during trial, were unjustifiably exhibited by the Trial Court---Case of prosecution case was full of contradictions, dishonest improvements and non-availability of any other independent witness for corroboration of prosecution---Judgment of the courts below, were set aside and accused was acquitted from the charge---Accused being already on bail his sureties were absolved of the liabilities of the bail bonds.

Musa Khan v The State PLD 1983 Pesh. 76 and Anand Ram v. Moti Ram and others PLD 1987 Quetta 230 rel.

Naseem Khan Swati for Petitioner

Miss Andir Iqbal for the Respondent

Riaz Ahmed Khan for the Complainant

Date of hearing: 21st October, 2011.

2012 M L D 269

[Peshawar]

Before Miftahuddin Khan and Khalid Mehmood Khan, JJ

SIKANDAR SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.110 of 2011, decided on 13th September, 2011.

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

----S. 9(b)---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Benefit of doubt---Contraband and the pistol recovered from the accused were not sealed into parcels just after recovery---Sample of recovered substance was sent to Forensic Science Laboratory after an unexplained delay of four days---Investigating Officer had not weighed the recovered contraband---No one from the general public had been examined by the Investigating Officer---F.I.R. and prosecution evidence revealed that heroin was recovered from the accused, whereas in the examination of accused under S.342, Cr.P.C. recovery of "charas" was mentioned---Such typographic mistake, if any, was not tried to be corrected by the prosecution by making an application at any stage during the trial or even before High Court---Whole story of prosecution, thus, had become doubtful---Pistol recovered from accused was stated to be an unlicensed one---Copy of the licence of the said pistol had been produced in High Court, which had been admitted as correct by State counsel---Pistol being a licensed one it would be a futile exercise to remand the case to Trial Court on technical ground---Case of prosecution was replete with doubts---Accused was acquitted in circumstances.

Muhammad Shah v. The State 2010 SCMR 1009 and Sherdal v The State 1999 SCMR 697 ref

Sultan Sheharyar Khan Marwat for Appellant

D.A.G. for the State

Date of hearing: 13th September, 2011.

2012 M L D 301

[Peshawar]

Before Ejaz Afzal Khan, C.J

INAM ULLAH---Petitioner

Versus

EJAZ ALI SHAH and another---Respondents

Criminal Miscellaneous Bail Cancellation Petition No.323 of 2008, decided on 12th September, 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---Bail, cancellation of---Accused was directly charged for having effectively fired at the deceased and the injured---Trial Court while deciding the bail petition of accused, not only embarked upon deeper appreciation of evidence, but also referred to certain statements which under no stretch of imagination benefited the accused---Data collected had clearly and squarely connected accused with the crime---Trial Court, appeared to have laboured hard to make out a case for the grant of bail, even on medical ground, despite nothing being on record in that behalf---Order granting bail being whimsical, arbitrary, capricious and even perverse, on the face of it, merited recall---Bail granting order, was recalled, in circumstances.

Noor Alam Khan for Petitioner

Imran Khan and Abdul Latif Afridi for Respondent No.1

Date of hearing: 12th September, 2011.

2012 M L D 309

[Peshawar]

Before Mazhar Alam Khan and Azmatullah Malik, JJ

RAHEEM KHAN---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.181 of 2008, decided on 13th September, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Complainant was not an eye-witness of the occurrence and her information regarding the occurrence and involvement of accused in the crime was based upon the disclosure of a widow with whom accused was on friendly relations and she was not produced at the trial and her presence was also not shown at the time of making the report in the hospital by the complainant---Except making of report, complainant did not join investigation and entire exercise was carried out by the Police with the help of star witness at whose instance site plan was prepared---Site plan prepared at the instance of said star witness, contradicted his story regarding the mode and the manner of the occurrence---Story of firing at the deceased by accused was contradicted by the medical evidence---Narration of said witness did not find support from the circumstance as per site plan---Non recovery of blood and empty from the spot, also cast doubt on the version of said prosecution witness, which could not be resolved in favour of prosecution---Presence of said witness at the spot at relevant time was not proved---Medical evidence belied the ocular evidence---Alleged occurrence remained unwitnessed--Case of prosecution was not only doubtful, but also unbelievable---Conviction and sentence of accused was set aside and he was acquitted of the charge and released in circumstances.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Evidence of an independent witness was sufficient to hold conviction, provided same was unimpeachable and reliable.

Hussain Ali for Appellant

Alamgir Durrani for the State

Muhammad Hayat for the Complainant

Date of hearing: 13th September, 2011.

2012 M L D 322

[Peshawar]

Before Miftah-ud-Din Khan, J

RUSTAM KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Miscellaneous Quashment Petition No.16 of 2011, heard on 12th July, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A, 523, 550 & 561-A---Superdari of vehicle---Quashing of order, application for---Vehicle in question was in possession of the Local Police since 25-10-2010 and no one had reported regarding the theft or snatching of the said vehicle---Said vehicle was also neither a case property nor required for further investigation to the Police---Applicant was the sole claimant of the vehicle who was in possession of its open transfer letter as well as affidavit of last owner/transferee of the vehicle---In absence of any rival claimant, as well as the fact that neither the vehicle was stolen property nor involved in any criminal case, superdari of the same could not be refused to the applicant on mere ground that the chassis number was refitted and welded per laboratory report---Vehicle which was neither stolen property nor involved in any criminal case, could not be kept by the Police for indefinite period without any further progress in the investigation of the case---Vehicle was likely to be rusted, damaged and deteriorated by parking in Police Station---Courts below were not justified to refuse the superdari of vehicle in question to the applicant---Impugned orders of both the courts were set aside and vehicle was given to applicant on superdari, in circumstances.

2007 YLR Lah 2867; Mehboob Khan v. State 2003 YLR 791 and 2006 YLR 1831 rel

Raees Khan for Petitioner

Muhammad Nawaz Khan Swati, Additional Advocate General for the State

Date of hearing: 12th July, 2011.

2012 M L D 337

[Peshawar]

Before Mian Fasih-ul-Mulk, J

GUL RAUF and others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.417 of 2011, decided on 7th September, 2011.

Penal Code (XLV of 1860)---

----Ss. 367 & 342---Abduction, wrongful confinement---Appreciation of evidence---Benefit of doubt---No eye-witness of the occurrence---Sole statement of the alleged abductee was not corroborated by any witness, rather one prosecution witness had contradicted him to the extent of his release and handing him over by the accused---Statement of the abductee regarding recording of his statement by DSP had been categorically denied by the Investigating Officer stating that the abductee had presented a pre-written statement in police station---Prosecution had not produced three independent witnesses to whom the abductee had been handed over---Deliberations and consultations were apparent on record---Possibility of false implication of accused could not be ruled out because of enmity and pendency of criminal and civil litigation between the parties---Conviction could only be recorded on the basis of unimpeachable and confidence inspiring evidence, which was lacking in the case---Accused were acquitted on benefit of doubt in circumstances.

Muhammad Ibrahim Khan for Appellants

Manzoor Hussain for the State

Ishtiaq Ibrahim for Respondents

Date of hearing: 7th September, 2011.

2012 M L D 360

[Peshawar]

Before Waqar Ahmad Seth, J

Mst. ZAREENA and others---Petitioners

Versus

JUMAT KHAN and others---Respondents

Civil Revision No.1574 of 2010, decided on 28th September, 2011.

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

----Arts. 100, 117 & 118---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Transfer of property in favour of defendant through thirty years' old mutation alleged by plaintiff not to be genuine---Burden of proof---Scope---Burden to prove a document or transaction effected orally or through registered or unregistered document would lie on its beneficiary---Presumption of genuineness would attach to suit mutation for being public document attested in accordance with law and thirty years old having protection under Art. 100 of Qanun-e-Shahadat, 1984---Burden in the present case shifted to plaintiff to rebut defendant's stance by proving suit mutation not to be genuine---Illustration.

Jawad Ehsanullah for Petitioners

Murtaza Khan Durrani for Respondents

Date of hearing: 28th September, 2011.

2012 M L D 410

[Peshawar]

Before Fazl-i-Haq Abbasi, J

SHAH ZAMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No.1230 of 2011, decided on 2nd August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---West Pakistan Arms Ordinance (XX of 1965), S.13---Explosive Substances Act (XI of 1908), S.5---Recovery of unlicensed arms, making or possessing explosives---Bail, grant of---Further inquiry---No public witness of the locality as required under S.103, Cr.P.C., was associated with the recovery proceedings---Arms and ammunition recovered by the complainant, were not sent to the expert to ascertain as to whether same were in working condition and were operatable---Said articles were recovered from another person, but that person was neither made an accused nor a witness---Said articles were found lying on a cot---Case of accused, in circumstances, had become one of further inquiry---Consent and sanction of the Provincial Government for prosecution of case had not been obtained---Accused was released on bail, in circumstances.

Khawaja Muhammad Khan Gara for Petitioners

Aamirullah Khan Chankani for the State.

Date of hearing: 2nd August, 2011.

2012 M L D 441

[Peshawar]

Before Dost Muhammad Khan and Mian Fasih ul Mulk, JJ

AIMAL KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.972 and Murder Reference No.41 of 2010, decided on 13th October, 2011.

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

----S. 302(a)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---One of star witnesses who was brother of the deceased was an interested witness, his name did not find mention in the F.I.R., which had clearly suggested that he was not present on the spot at the time of occurrence---Other star witness was the friend of brother of deceased, his name was also not mentioned in the F.I.R., he was stated to be present on the spot at the time of occurrence, but he was abandoned by the prosecution being won over---Motive for the occurrence had not been proved---Complainant/deceased who lodged the F.I.R. himself while injured, had not mentioned the name of said two star witnesses---Such lapse, on the part of the prosecution, was fatal and had caused dent to the prosecution case---Abscondence of accused per se was neither indicative nor sufficient by itself to prove the guilt of accused---Since the ocular account through testimony of said two star witnesses was not confidence inspiring and if the same was read in juxtaposition of medical evidence, the situation had created serious doubt in the prosecution case---Benefit of such doubt must go to accused, because he was entitled to the benefit of said doubt as of right and not as a grace or concession---When one reason would create doubt in the prudent mind, that alone would be sufficient for discarding the prosecution evidence---Present case was that of no evidence and occurrence had not taken place in the manner as disclosed in the F.I.R.---Trial Court had failed to properly appreciate the scanty evidence available on record, because conviction could not be based on such a weak type of evidence---Conviction and sentence of accused were set aside and he was acquitted of the charge against him and was set free, in circumstances.

Tariq Pervez v. The State 1995 SCMR 1345; Riaz Masih alias Mitto v. The State 1995 SCMR 1730 and Saeedullah v. Shah Nazar and others 2001 PCr.LJ 1740 rel.

(b) Criminal trial---

----Benefit of doubt--- When one reason would create doubt in the prudent mind, that alone would be sufficient for discarding the prosecution evidence.

Ishtiaque Ibrahim for Appellant.

Hassan Muhammad Shinwari and Ijaz Muhammad Khan for the Complainant.

Date of hearing: 13th October, 2011.

2012 M L D 455

[Peshawar]

Before Khalid Mehmood Khan, J

SHADDI ULLAH/SHAMSHAD KHAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.15 of 2011, decided on 12th September, 2011.

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

----Ss. 336, 337-R & 337-X---Causing Itlaf-i-Salahiyyat-i-Udw---Appreciation of evidence---Complainant had promptly lodged the report which had duly been supported by prosecution witness who was incharge of the Institution concerned---Nothing had been brought on record from the complainant as well as from prosecution witness that accused had falsely been charged by complainant due to previous enmity, ill-will or on mala fide grounds---Complainant lost his right eyesight and his eye had been fully damaged due to incident committed by accused---Medico-legal report also supported the version of the complainant---There was no suggestion from accused side that the injury caused to the complainant was self-inflicted or a previous one---No ground existed for interfering with the conviction of accused, but amount of Arsh had been reduced from Rs.5,47,000 to Rs.377,210 accordingly.

2010 SCMR 401 rel.

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

----Ss. 435 & 439---Penal Code (XLV of 1860), Ss. 336, 337-R & 337-X---Causing Itlaf-i-Salahiyyat-i-Udw---Petition for enhancement of sentence---Petitioner had failed to make out a case sufficient for enhancement of sentence---Trial Court was competent forum to decide the quantum of sentence---Sentence awarded to accused being sufficient, revision petition, was dismissed.

Abdul Latif Khan Baloch for Appellant.

D.A.G and Allah Nawaz Khan for the State/Respondent.

Date of hearing: 12th September, 2011.

2012 M L D 472

[Peshawar]

Before Khalid Mehmood Khan, J

SONA KHAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous B.C.A. No.269 of 2011, decided on 12th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.365/302/201/34---Abduction, qatl-e-amd and causing disappearance of evidence of offence---Bail cancellation of---Grounds---Accused/respondent was neither charged in the F.I.R. nor in the statements of other prosecution witnesses recorded under S.164, Cr.P.C.---Accused had been charged merely on suspicion by the petitioner/complainant without mentioning the source of information---Once a court of competent jurisdiction passed bail order, very strong and exceptional grounds were required to cancel the same---Bail could be cancelled where person on bail would repeat offence, hamper investigation, make some efforts to tamper with evidence, commit some acts of violence against Police or prosecution witnesses or manage to flee away from country or beyond control of sureties---None of said grounds was available in the petition filed by the complainant for cancellation of bail---No justification being available to cancel the bail granted to accused, cancellation petition, was dismissed in circumstances.

2004 SCMR 231 and 2011 MLD 725 rel.

Muhammad Ismail Khan Alizai for Appellant.

Saifur Rehman Khan for Respondent.

Date of hearing: 12th August, 2011.

2012 M L D 480

[Peshawar]

Before Attaullah Khan, J

ZAHEERA BIBI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.451 of 2011, decided on 17th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, refusal of---Complainant being not an eye-witness, could not name the accused, but later on, when he came to know he charged the accused---Circumstances of the case were peculiar---Accused who made confession before the competent forum, in his statement had clearly confessed his guilt and had also disclosed the mode and manner of the offence---Said confession though had been retracted later on, but such retraction would be thrashed out at the trial and not at bail stage---Confessional statement, in circumstances, had connected accused with the offence---Police had recovered scarf from the bathroom of the house, which was used as weapon of offence---Said recovery on the pointation of accused also connected accused with the offence---Two children of accused had recorded their statements under S.161, Cr.P.C. in which they had deposed that accused (their mother) had committed the murder of their father---Said statements, though were recorded with some delay, but that itself was not sufficient to discard its value---No ulterior motive had been established at that stage---Ample evidence was available against the accused in the shape of her confession, evidence of her own children and recovery of weapon of offence, which had connected her with the offence---Accused was not entitled to the concession of bail, in circumstances.

2004 YLR 3309 and 2011 PCr.LJ 1126 rel.

Sohail Ayub Tanoli for Petitioner.

Sardar Muhammad Asif for the Complainant and Ms. Saima Abbasi for the State.

Date of hearing: 17th October, 2011.

2012 M L D 495

[Peshawar]

Before Attaullah Khan and Syed Sajjad Hassan Shah, JJ

MAHMOOD KHAN---Appellant

Versus

Mst. SHAHEEN alias SHAMIM and 7 others---Respondents

Criminal Appeal No.134 of 2010, decided on 24th May, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Accused did not press appeal on merits, but had prayed for alteration of sentence from death to the life imprisonment, because several mitigating circumstances were available which warranted lesser punishment---Three co-accused were empty handed, while accused was armed with .30 bore licensed pistol which had reflected the attitude of accused to the effect that they had not come to the spot with preparation, intention to kill and with pre-planning; after the demand of money was denied by the deceased, accused got provoked and fired at the deceased which was a sudden provocation, in circumstances; all the injuries were on the knee and thigh of the deceased, which were non-vital parts of the body of the deceased; injuries on non-vital part of the body of deceased proved that accused had no intention to cause murder, such attitude of accused was a mitigating circumstance for the award of lesser punishment---While awarding death sentence or life imprisonment, the Trial Court was required to record reasons and apply judicial application of mind---Motive as set up by the complainant in the F.I.R. remained unproved---Another fact which emerged from the evidence was that there was altercation between deceased and accused, but nature of altercation had not been disclosed in the evidence---All said circumstances were of mitigating nature and in circumstances lenient view was required to be taken---Sentence of death was altered to life imprisonment---Appeal was dismissed with said modification qua the sentence.

Muhammad Iqbal and others v. The State 1984 SCMR 1184; Naubahar v. The State 1999 SCMR 637; Muhammad Ashraf v. The State 1998 SCMR 1764; Gul Muhammad and others v. The State 1985 SCMR 491; Muhammad Nawaz v. The State 2001 PCr.LJ 1014 and Israr Ali v. The State 2007 SCMR 525 rel.

Muhammad Karim Anjum for Appellant.

Sanaullah Shamim D.A.G. for the State.

Muhammad Arif Khan and Anwarul Haq for the Complainant.

Date of hearing: 24th May, 2011.

2012 M L D 503

[Peshawar]

Before Shah Jehan Khan and Fazal-e-Haq Abbasi, JJ

MUNAWAR KHAN---Petitioner

Versus

POLITICAL AGENT KHYBER AGENCY STATION and 4 others---Respondents

Writ Petition No.632 of 2011, decided on 11th August, 2011.

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

----Ss. 365/400/401/411---Frontier Crimes Regulation, 1901, Ss.11 & 48---Criminal Procedure Code (V of 1898), Ss.180 & 403--- Constitution of Pakistan, Arts.199 & 13---Constitutional petition---Abducting, belonging to gang of dacoits and dishonestly receiving stolen property---Jurisdiction of court---Double jeopardy---Counsel for petitioner/accused had contended that as the case was registered at Police Station at Peshawar, and according to the F.I.R. alleged abductee was abducted from settled area, Assistant Political Agent had no jurisdiction to try and convict accused; that no person would be prosecuted or punished for the same offence more than once and that all judgments under Frontier Crimes Regulation as well as by Judicial Magistrate Peshawar, be set aside and accused be acquitted of the charge---Validity---Alleged abductee was abducted from the jurisdiction of Police Station at Peshawar; and was recovered from a place situated in Tribal Areas falling within the jurisdiction of Assistant Political Agent---Both Assistant Political Agency and Judicial Magistrate Police Station Peshawar had the jurisdiction to try accused as provided under S.180, Cr.P.C.---Article 13 of the Constitution provided that no person would be prosecuted or punished for the same offence more than once which had also been provided under S.403, Cr.P.C.---Subsequent trial of accused person by Judicial Magistrate Peshawar and his judgment, were violative of Art.13 of the Constitution and S.403, Cr.P.C. and were of no legal consequence.

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

----Ss. 365/400/401/411---Constitution of Pakistan, Arts.199 & 247---Constitutional petition---Abduction, belonging to gang of dacoits and dishonestly receiving stolen property---Administration of Tribal Areas---Jurisdiction of High Court and Supreme Court in relation to Tribal Areas---Scope---Petitioner/accused had prayed that judgments passed by the Assistant Political Agent, Commissioner and Tribunal, Frontier Crimes Regulation, be set aside and accused be acquitted---Validity---Article 247(7) of the Constitution had provided that neither the Supreme Court nor High Court would exercise jurisdiction under the Constitution in relation to Tribal Areas, unless Majlis-e-Shoora (Parliament) by law otherwise provided---High Court had no jurisdiction in the matter relating to Tribal Areas.

Nawabzada Khan Askar Afridi for Petitioners.

Lal Jan Khattak, A.A.-G. for Respondents.

Date of hearing: 11th August, 2011.

2012 M L D 531

[Peshawar]

Before Mian Fasih-ul-Mulk, J

TAJ MUHAMMAD and another---Petitioners

Versus

BAHADAR KHAN and others---Respondents

Civil Revision No.403 of 2002, decided on 28th October, 2011.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Making of Talbs---Plaintiffs claiming superior right of pre-emption on the basis of co-sharership, contiguity, amenities and appendages, filed suit for pre-emption---Suit was decreed by the Trial Court, but on appeal, Appellate Court below set aside judgment and decree of the Trial Court and dismissed the suits of the plaintiffs---Validity---Plaintiffs on gaining knowledge about the sale transaction of suit property in favour of the defendants/vendees, made the jumping demand there and then followed by notice of Talb-e-Ishhad; and filed suit within time claiming their superior right of pre-emption---Plaintiffs claimed superior right of pre-emption in respect of suit property on the basis of co-sharership and contiguity, whereas the defendants/vendees had failed to prove such qualifications---Trial Court after analyzing the evidence available on record had rightly passed decree in favour of pre-emptors, which had wrongly and illegally been set aside by the Appellate Court below---Impugned judgment and decree of Appellate Court was set aside and that of Trial Court stood restored, in circumstances.

PLD 1981 Lah. 321; PLD 1982 Baghdad-ul-Jadid 58 and 1987 CLC 229 ref.

Mian Muhibullah Kaka Khel for Petitioners.

Muhammad Aman Khan for Respondents.

Date of hearing: 10th October, 2011.

2012 M L D 602

[Peshawar]

Before Fazl-i-Haq Abbasi, J

LATIF KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1229 of 2011, decided on 2nd August, 2011.

Criminal Procedure Code (V of 1898) ---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking of narcotics---Bail, grant of---No evidence was on record to show that shop in question, wherefrom the recovery of charas was made belonged to the accused---Accused was arrested on 8-7-2011, but challan had not been submitted in the court---Was yet to be determined after adducing evidence at trial as to whether accused was the actual owner of the shop wherefrom charas in question was recovered---Investigation in the case was complete and accused was no more required for further inquiry---Accused was admitted to bail.

Miss Farhana Marwat for Petitioner.

Miss Sabiha Iqbal for Respondent.

Date of hearing: 2nd August, 2011.

2012 M L D 611

[Peshawar]

Before Waqar Ahmad Seth, J

YASIR ARAFAT---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.586 of 2011, decided on 20th January, 2012.

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

----Ss.320/279---Qatl-e-khata by rash or negligent driving, rash driving or riding on a public way---Appreciation of evidence---Lacunas in prosecution evidence---Failure to establish rash and negligent driving---Trial Court had convicted the appellant under Ss. 320 & 279, P.P.C---Contention of appellant was that there was no eye-witness of the occurrence and record did not establish rash and negligent driving on his part---Validity---Appellant had been charged with rash and negligent driving but such fact had neither been mentioned in the murasila nor in the F.I.R.---Occurrence did not appear to have been witnessed by anyone-Driving of vehicle at high speed could not be considered and taken as a rash and negligent act, because modern technology in vehicles had provided for reasonable safeguard of stopping the same within no distance and time---Prosecution did not show that condition of traffic or road was such, which necessitated a slower speed and that vehicle was being driven in excessive speed in view of the quantum of traffic or the nature of the road---Record also did not show that vehicle was being driven in violation of any traffic rules, which led to the accident---Approximate speed at which appellant was allegedly driving his vehicle had not been fixed by any prosecution witness to establish that his speed was excessive in view of the quantum of traffic and nature of the road---Conviction and sentence awarded to accused was set aside by High Court and he was acquitted of the charge--Appeal was allowed.

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

----Ss.320/279---Rash or negligent driving---Scope---Excessive speed---Effect---Driving of vehicle at high speed could not be considered and taken as a rash and negligent act because modern technology had provided for reasonable safeguard of stopping the same within no distance and time---Fact of rash and negligent driving is not proved by expression of 'high speed' alone.

Abdul Lateef Afridi for Appellant.

Qazi Baber Irshad for the State along with the Complainant.

Date of hearing: 20th January, 2012.

2012 M L D 620

[Peshawar]

Before Dost Muhammad Khan C.J. and Waqar Ahmed Seth, J

Mst. YASMEEN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.16 of 2009, decided on 17th January, 2012.

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

----S. 9(c)---Possession and trafficking of narcotics---Appreciation of evidence---Trial court had convicted the appellants under S. 9(c) of the Control of Narcotic Substances Act, 1997---Contentions of appellants was that no independent witness was associated ; that police officials had planted the narcotics on them, and that sealed parcels containing narcotics were opened before sending them for examination, which made the recovery doubtful---Validity---Samples from recovered narcotics were sent to Forensic Science Laboratory (FSL) for chemical analysis and report received was positive---Narcotics recovered from appellants were in such huge quantity, that same could not have been planted by the police---Statements of prosecution witnesses were found consistent and their testimonies were not shattered in cross examination---Minor discrepancies in statements of prosecution witnesses, did not imply that recovery effected was false and concocted---Section 25 of Control of Narcotic Substances Act 1997, overrode the provision of S. 103, Cr.P.C, and for such reason contention of appellants that no independent witness was associated, had no force---Appellants had failed to make out a case for reduction in sentences as Trial Court had already recorded alternate sentences for the alleged crime---Appeals were dismissed in circumstances.

Muhammad Fakhar-e-Alam Jhagra for Appellant.

Alam Zeb Khan for the State.

Date of hearing: 17th January, 2012.

2012 M L D 629

[Peshawar]

Before Khalid Mehmood Khan, J

Haji LAL KHAN---Petitioner

Versus

GHULAM HAIDER and 7 others---Respondents

Civil Revision No.323 of 2006, decided on 22nd August, 2011.

Specific Relief Act (I of 1877)---

---S. 12---Suit for specific performance of sale agreement---Execution of sale agreement by first defendant regarding suit property after gifting same to his minor sons---Refusal of defendant to transfer suit property to plaintiff after obtaining guardianship certificate of minors---Transfer of suit property in favour of second defendant through registered gift deed by minors after attaining age of majority on ground of service rendered by him---Validity---First defendant had given possession of suit property to plaintiff at the time of executing suit agreement, thus gift thereof made by first defendant in favour of his minor sons was without delivery of possession---Guardian certificate obtained by first defendant found mention all the terms of sale agreement to be correct---Second defendant had failed to prove that for what reason such minors had executed gift deed in his favour when he had no relation with them---Second defendant had also failed to prove his plea of having rendered service to such minors causing them to execute gift deed in his favour---Plea raised by second defendant was mala fide---Plaintiff had paid sale consideration to first defendant---Suit was decreed in circumstances.

2004 CLC 421; 2007 YLR 2440; Ibrahim and another v. Muhammad Hayat 2004 CLC 421; Sher Muhammad and 2 others v. Muhammad Ali and 11 others 1990 MLD 232; Malik Muhammad Iqbal v. Ghulam Muhammad 1990 CLC 670 and Ali Akbar Khan v. Ghulam Sarwar and 19 others PLD 1986 Pesh. 1 ref.

Malik Muhammad Bashir for Petitioner.

Syed Saeed Hassan Shah Shrazai for Respondents.

Date of hearing: 22nd August, 2011.

2012 M L D 651

[Peshawar]

Before Khalid Mehmood Khan, J

SALIMULLAH---Petitioner

Versus

NOOR ALI and 10 others---Respondents

Civil Revision No.341 of 2007, decided on 5th September, 2011.

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

----S.8---Limitation Act (IX of 1908), Art. 142---West Pakistan Land and Revenue Act (XVII of 1967)---Suit for possession---Limitation---Cause of action---Every fresh Jamabandi would create fresh cause of action.

2000 SCMR 1574 rel.

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

----S. 8 & 54---Limitation Act (IX of 1908), Art. 142---West Pakistan Land Revenue Act (XVII of 1967), S.39---Suit for possession and mandatory injunction for demolishing construction raised on suit land by defendant---Plaintiffs plea was that during his stay abroad, defendant had taken possession of suit land without having any right or title thereto and raised construction thereon; and that Khasra Girdawri for year 1992 showed defendant possessing suit land---Defendant's plea that suit was time barred; and that vendor had delivered him possession of suit land after attestation of its sale mutation in his favour---Dismissal of suit by Trial Court and Appellate Court---Validity---Sale mutation attested in favour of defendant was not regarding suit Khasra Numbers owned by plaintiff---Vendor at the time of executing sale mutation in favour of defendant was neither owner of suit land as per column of ownership nor having possessory right as per column of cultivation, thus, he could transfer better title which he did not have---Shajra Kishtwar showed that land purchased by defendant and suit land was away from each other as they were intervened by two roads---Plaintiff had filed suit in year 2001 after new settlement of year 1992 and preparation of new settlement Jamabandies for years 1995-96 & 1999-2000---Every fresh Jamabandi would create fresh cause of action---Cause of action accrued to plaintiff in year 1999, thus, suit was within time as per Art. 142 of Limitation Act, 1908---Tenant on basis of entry of his name in Jamabandi as tenant-at-will could not claim any title to suit land---Defendant for not having any title to suit land was not entitled to compensation regarding construction raised thereon without lawful authority and permission of plaintiff---Suit was decreed with direction to defendant to remove such construction at his own cost.

2000 SCMR 1574; 1985 CLC 2020 and 1989 CLC 2066 rel.

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

----S. 8---Suit for possession---Construction raised on suit land by defendant without lawful authority and permission of plaintiff---Effect---Defendant would not be entitled to any compensation regarding such construction.

1985 CLC 2020 and 1989 CLC 2066 rel.

Ahmad Ali Khan for Petitioner.

Inamullah Khan Marwat for Respondents.

Date of hearing: 5th September, 2011.

2012 M L D 657

[Peshawar]

Before Khalid Mehmood Khan, J

NOOR KAMAL KHAN---Petitioner

Versus

MIR GHULAM and 5 others---Respondents

Civil Revision No.306 of 2009, decided on 5th September, 2011.

Civil Procedure Code (V of 1908)---

----S.12(2)----Limitation Act (IX of 1908), S.5---Suit for possession---Limitation---Application for setting aside ex parte proceedings---Defendant who was proceeded ex parte for his failure to appear in the court, filed an application for setting aside ex parte proceedings initiated against him on the plea that he was neither served upon personally nor through any other means and that he was quite unaware of the proceedings---Trial Court dismissed the application; Appellate Court upheld judgment of the Trial Court---Validity---Parties were legal heirs of common predecessor and the defendant once appeared in the court at stage of interlocutory appeal filed by another legal heir against the order passed by the Trial Court regarding temporary injunction---Defendant along with his counsel appeared before the Appellate Court in said appeal, but that fact had been suppressed by him in his application filed before the Trial Court setting aside ex parte proceedings and that fact had also been concealed before the High Court---Application for setting aside ex parte proceedings was filed by the defendant after the lapse of more than six years and same was not filed along with application for condonation of delay---Conduct of the defendant, especially concealment of fact from the High Court as well as from the lower courts, did not oblige any concession to him---In absence of any illegality or irregularity in the judgments/orders passed by the courts below, same could not be interfered with in revision.

Ehsan-ul-Haq Malik for Petitioner.

Jamal Abdul Nasir Khan Awan and Muhammad Farooq Khan for Respondents.

Date of hearing: 5th September, 2011.

2012 M L D 667

[Peshawar]

Before Yahya Afridi, J

JEHANGIR ALAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.581 of 2011, decided on 15th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Drugs Act (XXXI of 1976), Ss. 23(1)(a), 23(c), 27(1), 27(3) & 30---Selling unlicensed drugs, obstructing Drug Inspector from his official duties---Bail, grant of---Further inquiry---Provincial Drug Inspector with the assistance of Federal Investigation Agency (FIA) staff, inspected the accused's shop and allegedly found unregistered drugs, without manufacturing licences, which were seized---No credible evidence on record connected the accused with the commission of the offence---Record showed that Inspector had seized over thirty nine drugs at the time of the raid but there was no certificate regarding their analysis by the Government Analyst, required under the enabling provisions of the Drugs Act, 1976---Certificates which were available on the record, predated even the date of the raid, which surely pointed to the colourable exercise of authority by the Inspector---Case of further inquiry was made out in favour of the accused and he was released on bail accordingly.

Shuaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1854 ref.

Arshad Hussain Yousafzai for Petitioner.

Muzamil Khan, D.A.-G. for Respondent.

Date of hearing: 15th April, 2011.

2012 M L D 787

[Peshawar]

Before Qaiser Rashid Khan, J

ASSISTANT ADMINISTRATOR, EVACUEE TRUST PROPERTY, D.I. KHAN

AND BANNU DIVISIONS---Petitioner

Versus

SADAULLAH KHAN and another---Respondents

Civil Revision No.294 of 2006, decided on 9th January, 2012.

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

----Ss. 8 & 14---Specific Relief Act (I of 1877), Ss.54 & 55---Civil Procedure Code (V of 1908), O.VII, R.10---Suit for perpetual, mandatory and prohibitory injunction---Return of plaint---Plaintiff filed suit for perpetual, mandatory and prohibitory injunction against the authorities from blocking the passage of his shop; and not to raise any construction thereon---Plaintiff had claimed his ownership of shop in question on the basis of wasiqa with its specific boundaries, but, in the suit brought before the Trial Court, he came up with different boundaries, and had sought a perpetual injunction both in prohibitory and mandatory form in respect of evacuee trust property to bring the same within the jurisdiction of civil court---Property in question was evacuee trust property and with the permission of authorities wanted to carry out repair of the main gate of the passage on the said property---Civil court lacked jurisdiction in such matters in view of the bar contained in S.14 of Evacuee Trust Properties (Management and Disposal) Act, 1975---Appellate Court below had erred by overstretching the jurisdiction of civil court in impugned judgment in utter disregard to the statutory provisions of the said Act---Impugned judgment and decree passed by the Appellate Court below, was set aside and that of civil court upheld.

1992 SCMR 1313 rel.

Muhammad Yousaf Khan for Petitioner.

Malik Muhammad Bashir for Respondent No.1.

Muhammad Daud Khan for Respondent No.2.

Date of hearing: 9th January, 2012.

2012 M L D 799

[Peshawar]

Before Khalid Mehmood Khan, J

WAJID AMAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.347 of 2011, decided on 29th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, refusal of---Alleged offence, though did not fall within prohibitory clause of S.497, Cr.P.C., but accused had committed fraud with the complainant by issuing the cheques which bounced due to insufficient balance---Accused had committed such like offence before and said allegation was supported by F.I.R. registered against him---Conduct of accused had made it clear that accused was involved in such like other cases---Offence though was punishable only for three years, but keeping in view the conduct of accused and nature of offence of similar cases, he was not entitled for concession of bail---Bail petition was dismissed, in circumstances.

Rab Nawaz Khan Awan for Petitioner.

Imran Khan Gandapur for the State.

Zahid Mohibullah for the Complainant.

Date of hearing: 29th August, 2011.

2012 M L D 810

[Peshawar]

Before Khalid Mehmood Khan, J

ALAMGIR alias GULLA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.346 of 2011, decided on 29th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.376---Rape---Bail, grant of---Further inquiry---Report having been lodged after 4/5 months of the occurrence, probability of false involvement of accused in the case, could not be ruled out---Application on behalf of accused moved for DNA test of the complainant, was resisted by the prosecution, which made the case of accused of further inquiry---Keeping in view the circumstances of the case, except the allegation of the complainant, nothing was on record which reasonably connected the accused with the commission of offence---Accused was allowed bail, in circumstances.

Saleemullah Khan Ranazai for Petitioner.

Khiyal Muhammad Khan for the State.

Ghulam Hur Khan Baloch for the Complainant.

Date of hearing: 26th August, 2011.

2012 M L D 818

[Peshawar]

Before Khalid Mehmood Khan, J

KAMRAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.311 of 2011, decided on 8th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.452/337-A(iii)/337-F(i)---House-trespass, causing Shajjah-i-Hashimah and Damiyah---Bail, grant of---Further inquiry---No previous enmity existed between the parties and the occurrence was based on sudden provocation---Complainant, in the F.I.R. had not stated that his teeth had been broken; he had only charged the accused for giving fist and kick blows---Injury was caused to the complainant by blunt weapon---Complainant had alleged that accused had given Kassi blow to him, but no Kassi had been recovered from the accused, neither same had been mentioned in the site plan---No independent witnesses from the locality had been examined by the Investigating Officer---Case against accused requiring further inquiry into his guilt, he was released on bail, in circumstances.

Rabnawaz Awan for Petitioner.

Farooq Akhtar for the Complainant.

Khiyal Muhammad Khan for the State.

Date of hearing: 8th August, 2011.

2012 M L D 822

[Peshawar]

Before Attaullah Khan, J

FAZAL HAMEED---Petitioner

versus

KAMRAN and 5 others---Respondents

Criminal Miscellaneous/Bail Cancellation Application No. 1146 of 2011, decided on 6th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302/148/149---Qatl-e-amd, rioting armed with deadly weapons---Application for cancellation of bail, refusal of---F.I.R. revealed that none of the accused had been charged in the case by the complainant, but were implicated on the statement of an injured (applicant) in his statement under Ss. 161 and 164, Cr.P.C---Injured had not disclosed the source of his information for charging the accused and no identification parade had been held to establish guilt of the accused---No direct evidence existed against the accused and evidentiary value of statements of injured recorded under Ss.161 and 164, Cr.P.C were to be seen at the trial---No allegations of misuse of concession of bail or any apprehension of tampering with evidence on part of the accused was alleged---Accused were rightly extended bail as their case was one of further inquiry---Trial of the accused had commenced and bail granting order of court below did not appear to be perverse or arbitrary or whimsical---Application for cancellation of bail was dismissed accordingly.

Ghulam Mohiudin Malik for Petitioner.

Pir Fayaz Ali and Mujeed ur Rehman for Respondents.

Date of hearing: 6th February, 2012.

2012 M L D 848

[Peshawar]

Before Qaiser Rashid Khan, J

PIRZADA---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Application No.439 of 2011, decided on 21st November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapons---Bail, grant of---Further inquiry---Accused had initially been mentioned as an unknown person in the F.I.R. and was only implicated in the offence through supplementary statement of the complainant, who did not disclose his source through which he came to know about the name of the accused---Four persons had been shown in the site plan for causing injuries to one of the injured and it could not be said with certainty as to whose fire shot caused the injuries---F.I.R. did not mention any description, features or physique of the nominated unknown persons and no identification parade was conducted to ascertain whether the accused was amongst the persons so nominated---Bail could not be refused to the accused for his abscondance when he was otherwise entitled to bail on the basis of available record---Case of accused called for further inquiry into his guilt---Bail application of accused was allowed and he was admitted to bail.

Muhammad Yousaf Khan for Petitioner.

Khan Wali Khan, A.A.-G. for the State

Muhammad Ismail Khan Alizi for the Complainant.

Date of hearing: 21st November, 2011.

2012 M L D 870

[Peshawar]

Before Fazal-i-Haq Abbasi, J

MUHAMMAD SUHAIL---Petitioner

Versus

THE STATE and another---Respondents

Bail Application No.1301 of 2001 decided on 16th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Customs Act (IV of 1969), Ss.2(s), 18, 32, 32-A, 79, 80, 156, 157 & 178---Smuggling, untrue statement, fiscal fraud etc.---Bail, refusal of---Accused had sought bail on the ground that he had been detained for a continuous period exceeding one year in the case; and the trial had not concluded---Accused, in order to avail third proviso to S.497, Cr.P.C. relating to delay in trial, had to satisfy the court that delay in trial had not been occasioned by an act or omission of accused or any other person acting on his behalf---Accused moved repeated bail applications before the Trial Court as well as before High Court; and consumed sufficient time in such process---Accused appeared to be more anxious for his release on bail than conclusion of the trial---Bail application filed by accused, was dismissed, in circumstances.

Issac Ali Qazi for Petitioner.

Muhammad Iqbal Mohmand, D.A.-G. for the State.

Date of hearing: 16th August, 2011.

2012 M L D 885

[Peshawar]

Before Waqar Ahmad Seth, J

JAVED AKBAR KHAN---Petitioner

Versus

HIDAYATULLAH KHAN---Respondent

Civil Revision No.1416 with C.M. No.1212 of 2011, decided on 9th December, 2011.

Civil Procedure Code (V of 1908)---

----O.IX, R.13 & S.12(2)---Suit for recovery of damages for mental torture, damaging reputation---Ex parte decree, setting aside of---Challenging validity of judgment and decree on plea of fraud and mis-representation---Trial Court having passed ex parte decree in favour of the plaintiff, defendant filed application for setting aside ex parte judgment and decree, which was dismissed being time barred---Defendant filed application under S.12(2), C.P.C. on the ground of fraud and misrepresentation and collusion, which application was dismissed---Validity---Once judgment and decree had been passed and same was maintained by the High Court, in its constitutional jurisdiction, same could not be termed as void---Defendant was supposed to have come to the court within time and with proper care because he had already approached the court for setting aside ex parte decree as well as by filing application under S.12(2), C.P.C. on different grounds---Defendant was bound to be vigilant by that time and by then it was a closed chapter---Law would help those who were vigilant and not the idle---Trial Court had dealt with the matter in a proper and reasonable manner---No exception could be taken to the said view as the same was neither perverse nor arbitrary---Counsel for defendant argued the case at sufficient length, but could not point out any loopholes in the impugned judgment; nor any illegality was shown to have been committed by the court---Revision was dismissed.

1987 SCMR 1440 and 2003 SCMR 1300 ref.

Sardar Ali Raza for Petitioner.

Muhammad Arif Khan for Respondents.

Date of hearing: 9th December, 2011.

2012 M L D 913

[Peshawar]

Before Ejaz Afzal Khanm C.J. and Mazhar Alam Khan, J

RESHAM DIN---Petitioner

Versus

Mst. NEKAM ZADI and 2 others---Respondents

Writ Petition No.2077 of 2010, decided on 19th July, 2011.

Civil Procedure Code (V of 1908)---

----O.IX, R. 13---Constitution of Pakistan, Arts. 199---Constitutional petition---Application for setting aside of ex parte decree---Limitation---Petitioner was abroad at the time when ex parte decree was issued and his service through proclamation was made in a newspaper having limited circulation---Petitioner was arrested in the execution of the decree and moved an application for setting aside the ex parte decree, contending that he came to know about the ex parte decree on the day he was arrested---Validity---In view of the contention of the petitioner, his application for setting aside ex parte decree was not filed beyond the period of limitation prescribed by law---Constitutional petition was allowed and orders passed by courts below were set aside and the case was sent back to Trial Court for decision afresh in accordance with the law.

Nasir Mehmood Khattak for Petitioner.

Salamat Shah Masud for Respondent.

Date of hearing: 19th July, 2011.

2012 M L D 964

[Peshawar]

Before Mazhar Alam Khan Miankhel and Fazal-i-Haq Abbasi, JJ ABDUL MAJEED and 2 others---Appellants

versus

THE STATE and another---Respondents

Criminal Appeal No.342 of 2010, decided on 19th January, 2012.

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

----S. 302(b)/34---Qatl-e-amd---Appreciation of evidence---Registration of case after an unexplained delay of three hours and fifty minuteshad cast doubt about the prosecution story and presence of eye-witnesses at the scene of occurrence---Conduct of the prosecution witnesses, three sons of the deceased, who had gone to their house after the occurrence, had besides being highly strange made the prosecution case suspicious---Ocular testimony was contradictory and mutually destructive Medical evidence was in conflict with ocular account of occurrence---Positive report of Fire-arms Expert had no evidentiary value, as the recovered arms and ammunition had been sent to Expert after an unexplained delay of sixteen days, without disclosing as to where the same remained during this period---Benefit of doubt was extended to accused in circumstances and they were acquitted accordingly.

2002 SCMR 1986; 2008 SCMR 707; 2005 PCr.LJ 1384 and 2007 PCr.LJ 1891 ref.

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

----S.302(b)/34---Qatl-e-amd---Appreciation of evidence---Burden of proof---Defence plea---Principle---Accused may or may not take a defence plea or may take a false plea, the burden of proof remains on the prosecution to prove its case beyond reasonable doubt.

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

----S.302(b)/34---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of---Principles---Many reasons are not required, but a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused, shall entitle him to benefit of doubt, not as a matter of grace but as a matter of right.

Khawaja Muhammad Khan Gara for Appellant.

Amir Gulab Khan for the Complainant.

Salah-ud-Din for the State.

Date of hearing: 19th January, 2012.

2012 M L D 992

[Peshawar]

Before Attaullah Khan, J

SARDOOR KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous Bail Petition No.1917 of 2011, decided on 3rd February, 2012.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail, refusal of---Accused and co-accused, brothers inter se, were present in the vehicle from which allegedly one maund of narcotic was recovered---Co-accused was driver of the vehicle and remained an absconder---Possibility of accused being in league with his co-accused and the fact that he had conscious knowledge regarding presence of narcotic in the secret cavities of the truck could not be ruled out---Quantity of narcotic recovered weighed one maund and the Forensic Science Laboratory report was positive---Investigation in the case was complete and challan had already been sent to the court for trial---Prima facie case existed against the accused which disentitled him from the concession of bail---Bail petition of accused was dismissed, in circumstances.

Criminal Miscellaneous No.1091 of 2011 decided on 1-8-2011; Criminal Miscellaneous No.1862 of 2011 decided on 5-1-20102 and Criminal Miscellaneous No.1935 of 2011 distinguished.

Noor Alam and Qazi Babar Irshad Khan for Petitioners.

Matiullah Baloch for Respondent.

Date of hearing: 3rd February, 2012.

2012 M L D 1006

[Peshawar]

Before Nisar Hussain Khan, J

DIN MUHAMMAD---Petitioner

versus

KHAN BAD SHAH and another---Respondents

Civil Revision No.27-B of 2004, decided on 8th March, 2012.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 31(c)---Limitation Act (IX of 1908), Ss.5, 29(2)(b)---Suit for pre-emption---Failure to mention time and date of Talb-e-Muwathibat---Computation of time from knowledge of pre-emptor---Scope--Place of performance of Talb-e-muwathibat in the plaint was ambiguous, as only reference to the property had been made without clearly disclosing the location or Khasra number of the property---High Court taking a lenient view, assumed that pre-emptor (petitioner) had mentioned the place of performance of Talb-e-Muwathibat, but another important ingredient viz. time of Talb-e-Muwathibat had not been mentioned at all in the plaint---Date, time and place of Talb-e-muwathibat had to be mentioned in the plaint and if any of them was missing, suit of pre-emptor was liable to be dismissed---Logic behind said principle was that pre-emptor must come with clear facts in his plaint, so that he should lead his evidence accordingly and may not improve his case during the trial, nor may make a departure there from---Vendee (respondent) contended that after purchasing suit property, he had constructed a house on it by spending a huge amount, whereas pre-emptor in his cross-examination stated that vendee did not raise any construction after institution of suit---Trial Court appointed Commissioner to ascertain market value of vendee's house, who reported that there was a cemented construction in an area of 4 to 5 Kanals---Pre-emptor filed objection to said report of Commissioner, only objecting to the market value assessed, but did not dispute the age or venue of constriction, which meant that construction was admittedly raised in the suit property---Construction could not have been raised within days or months but might have consumed at least a year, which could have not gone unnoticed from the co-villagers, therefore, contention raised by pre-emptor in his cross-examination was not believable---Pre-emptor failed to prove the date of taking over of physical possession of suit property by the vendee and evidence clearly suggested that vendee took possession of suit property, much earlier, than as alleged by the pre-emptor---Under S. 31(c) of Khyber Pakhtunkhwa Pre-emption Act, 1987, time would not be computed from knowledge of the pre-emptor, but from the date on which the vendee took physical possession of the property, if the sale deed was effective, otherwise, than through registered sale deed or mutation---Pre-emptor had also failed in filing his suit within time and it was not only a case of delayed revision petition but original suit was also time barred---High Court did not find any jurisdictional defect or any illegality or material irregularity in the concurrent findings of both the courts below---Revision petition was dismissed, accordingly.

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

----S.115---Limitation Act (IX of 1908), Ss.5 & 29(2)(b)---Extension of period for admitting revision petition---Condonation of delay---Scope---Revision petition was delayed by five (5) days---Validity---Section 29(2)(b) of Limitation Act, 1908, barred application of S. 5 of the said Act, to any local or special law, wherein the limitation for filing suit, appeal or application, had been prescribed---Section 115 C.P.C, itself prescribed limitation of 90 days for filing of revision petition, so the provisions of S.5 of Limitation Act, 1908, could not be availed or invoked for condonation of delay---Revision petition filed beyond the prescribed period, might be entertained, when the Revisional Court exercised suo motu revisional jurisdiction, in a case where the subordinate court, had exercised the jurisdiction not vested in it or had failed to exercise the jurisdiction so vested or had acted illegally or with material irregularity---Where facts of the case earnestly demanded the interference of the Revisional Court, for correction of the errors or illegality of the lower Tribunals, the Revisional Court should not withhold its exercise, merely on the point of limitation---Present case was not only a case of delayed revision petition but original suit was also time-barred---High Court did not find any jurisdictional defect or any illegality or material irregularity in the concurrent findings of both the courts below---Revision petition was dismissed, accordingly.

Mst. Banori v. Jilani through legal heirs PLD 2010 SC 1186 ref.

C.A. No.2650 of 2006 Hafeez Ahmed v. Civil Judge Lahore and others decided in February, 2012 and Allah Dinao and another v. Muhammad Shah and others 2001 SCMR 286 rel.

Rustam Khan Kundi and Younas Tahim for Petitioner.

Mukhtiar Ali Khattak for Respondents.

Date of hearing: 8th March, 2012.

2012 M L D 1021

[Peshawar]

Before Qaiser Rashid Khan, J

Dr. MISSAL KHAN and 2 others---Petitioners

versus

THE STATE and 3 others---Respondents

Criminal M. Q. Petition No. 19 of 2012, decided on 15th March, 2012.

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

----S.561-A---Penal Code (XLV of 1860), Ss.506/454/427/380/147/34---Criminal intimidation, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, mischief causing damage to the amount of fifty rupees, theft in swelling house, etc., rioting, common intention---Quashing of F.I.R.---Record revealed that both accused and compliant had locked horns since the accused had been transferred from his post and complainant was transferred to the same post---Report of complainant stemmed from the same controversy---Accused had even approached the Service Tribunal for redressal of his grievance and a status quo order was passed in his favour---Basis of present report was a call made to the complainant by his subordinate doctor informing the complainant about the breaking of lock of the hospital gate, and strangely enough such information prompted the complainant to lodge the F.I.R., but statement of said subordinate doctor was never recorded---Official record allegedly stolen by the accused was not recovered from him---Where there was no witness or evidence worth the name to support the prosecution version during trial and where the end result would be the acquittal of the accused, it would be a futile exercise to proceed with the F.I.R.---Quashment petition was accepted and F.I.R. registered against the accused was quashed.

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

---S. 561-A---Quashing of F.I.R.---Scope---Where there was no witness or evidence worth the name to support the prosecution version during trial and where the end result would be the acquittal of the accused, it would be a futile exercise to proceed with the F.I.R.---F.I.R. registered against the accused was quashed.

Bahadur Khan Marwat for Petitioner.

Sana ullah Shamim D.A.G. for the State.

Muhammad Khurshid Qureshi for Respondent No.4.

2012 M L D 1043

[Peshawar]

Before Miftahuddin Khan and Waqar Ahmed Seth, JJ

SALIH MUHAMMAD---Appellant

versus

NIAZ MUHAMMAD and another---Respondents

Criminal Appeal No.624 of 2011, decided on 13th March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 517---Control of Narcotic Substances Act (XXV of 1997), Ss.48/ 32/33/74---Order for disposal of property regarding which offence committed---Articles connected with narcotics, procedure for making confiscation, application of other laws---Vehicle (truck) which had been used in the commission of the offence was confiscated to the State during trial because the person in whose name it was registered did not turn up despite issuance of notices to him---Contentions of alleged owner (appellant) were that he was the legal, genuine and last bona fide purchaser of the vehicle in question; that there was no other rival claimant of the vehicle, and that prior to confiscation, no notice had been issued to him---Validity---Alleged owner was never a party before the Trial Court and if he was the genuine owner of the vehicle in question he would have applied before the Trial Court for the release of the vehicle, because being an owner it was presumed that after the custody by the Anti-Narcotics Force staff , the owner would have knowledge of the same---Alleged owner could not be given licence of the ownership of the vehicle on the basis of a photocopy of a document/affidavit obtained on a stamp paper---Authenticity of document produced could not be made---In absence of any solid, genuine and convincing material, appeal was dismissed.

Noor Alam Khan for Appellant.

Shakeel Ahmed for Respondents.

Qazi Babar Irshad for the Complainant.

2012 M L D 1062

[Peshawar]

Before Nisar Hussain Khan, J

Malik BAHADUR SHER KHAN---Petitioner

versus

Haji SHAH ALAM KHAN and others---Respondents

Civil Revision No.106-B of 2011, decided on 22nd March, 2012.

(a) Pleadings---

----Facts mentioned in written statement---Scope---Such facts would not be sufficient for proving stance of defendant because pleadings are never considered as evidence unless the same are proved by party itself, while deposing in witness box and offering himself for cross-examination.

Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 rel.

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

----S.12---Specific performance of agreement to sell---Concurrent findings of fact by two courts below---Defendant received half of consideration amount, in year, 2008, from plaintiff and thereafter tried to back out from agreement, when he was offered some higher rate by some other party and he was merely refusing to honour the agreement on one pretext or the other by carving out lame excuses to put whole blame on plaintiff and fetch double benefit thereby---Suit and appeal were concurrently decreed by Trial Court and Lower Appellate Court, respectively, in favour of plaintiff---Validity---Evidence and circumstances of the case showed that defendant was contacted by plaintiff, before expiry of stipulated time, fixed for payment of balance amount and attestation of mutation but he put off the matter on pretext of his fasting---Such fact was deposed by property dealer who was an independent witness and the same was not specifically denied by attorney of defendant---No misreading or non-reading of evidence or any other illegality or material irregularity in concurrent findings of facts recorded by both the courts below was noticed---Revision was dismissed in circumstances.

Seth Essabhoy v. Saboor Ahmed PLD 1972 SC 39 and Muhammad Hussain and others v. Dr. Zahoor Alam 2010 SCMR 286 rel.

(c) Administration of justice---

----Courts, duty of---While parting justice, it is the substance and not form of suit to be considered and party should be given to which he is found entitled---Litigants may not be entrapped into procedural technicalities, rather courts should apply its dynamic approach to do complete justice, while appreciating pleadings and evidence.

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

----S.115---Revisional jurisdiction---Suo motu power---Scope---High Court while sitting in revisional jurisdiction under S.115 C.P.C. can suo motu rectify any illegality or material irregularity, found in judgment of Lower Court.

Sardar Naeem for Petitioner.

Muhammad Nisar Khan Sokari and Saleem Shah for Respondents.

Date of hearing: 22nd March, 2012.

2012 M L D 1076

[Peshawar]

Before Qaiser Rashid Khan, J

IRFAN---Petitioner

versus

SHAH JEHAN and another---Respondents

Criminal Miscellaneous Bail Petition No.47 of 2012, decided on 6th March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 380/457/411---Theft in dwelling house, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, dishonestly receiving property stolen---Bail, grant of---Further inquiry---Record revealed that theft in the store was committed somewhere in the thick of the night, whereas the complainant came to know about the same after opening the store at early morning, whereafter he lodged the report after a delay of over eight hours---Consultation and deliberation could not be ruled out in the matter---Complainant in his report had only mentioned the commission of theft of amount, but in statement of the accused recorded under S. 161 Cr.P.C, stealing of certain items from the store had also been attributed to him,, which cast doubts over the contents of the report---Alleged recovery of some cash from the accused alone, did not per se show his involvement in the commission of the offence, but certainly made it one of further probe entitling the accused to the concession of bail---Bail application was accepted and accused was admitted to bail.

Saifur Rehman Khan for Petitioner.

Khan Wali Khan, Addl. A.G. for the State.

Rab Nawaz Awan for the Complainant.

Date of hearing: 8th March, 2012.

2012 M L D 1085

[Peshawar]

Before Khalid Mahmood, J

Mst. GUL FAROSH JAN---Petitioner

versus

MEHR ANGEZ and 13 others---Respondents

Civil Revision No.155 of 2008, decided on 4th January, 2012.

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

----S.42 (7)----Qanun-e-Shahdat (10 of 1984), Art. 100---Specific Relief Act (I of 1877), Ss. 8, 42, 54---Suit for declaration, possession and permanent injunction---Mutation---Presumption of truth attached to mutation---Scope---Suit of plaintiff was decreed by Trial Court but Appellate Court set aside the decree of Trial Court---Validity---Suit land was transferred in the name of the predecessor-in-interest of the defendants and mutation to that effect was attested in the year 1954; which was prior to the coming into force of the West Pakistan Land Revenue Act, 1967, and therefore at that time no procedure was prescribed wherein the obtaining of signature/thumb impressions of executant was necessary for mutation---Provision regarding obtaining of signatures/thumb impressions of the vendor on mutation became mandatory after issuance of notification in the year 1980---Admission of legal heir of the plaintiff's sister regarding genuineness of the mutation had rightly been appreciated by the courts below---Predecessor-in-interest of the defendants was enjoying the possession of suit property usufruct and mutation was duly incorporated in the register of the owners, and presumption of truth was attached to long standing entries---Mutation was attested in the year 1954 whereas the suit had been brought in the year 1996; after a lapse of 42 years---Said mutation being older than thirty years, therefore, under Article 100 of the Qanun-e-Shahdat, 1984, presumption of truth was to be attached to the said mutation.

Adalat Khan v. Mst. Begum Bibi through Legal heirs and another 1991 SCMR 1381; Abdul Jabbar and others v. Muhammad Jabbar and others 2002 SCMR 1173; Muhammad Amir and others v. Mst. Beevi and others 2007 SCMR 614 and Faqir Muhammad and others v. Fida Muhammad and others 2004 CLC 162 rel.

Sher Afzal Khan for Petitioner.

M. Ayub Khan for Respondents.

Date of hearing: 4th January, 2012.

2012 M L D 1143

[Peshawar]

Before Mian Fasih-ul-Mulk, J

NOORZA ALI---Petitioner

versus

CANTONMENT BOARD and others---Respondents

Civil Revision No.2026, 227 of 2010 with C.M. Nos.169 of 2011 and 2183 of 2010 decided on 2nd April, 2012.

Specific Relief Act (I of 1877)---

----S.54---Suit for injunction---Error of law---Dispute over title---Plaintiffs claimed to be tenants of Auqaf Department regarding shops in question and sought injunction against Cantonment Board---Trial Court dismissed suit filed by plaintiffs and the judgment was maintained by Lower Appellate Court---Validity---Property in question was out of that total area which was Waqf property, under the control of Auqaf Department---Cantonment Board claimed that property in question was part of a survey number, which was lying as vacant plot---No other evidence was produced by Cantonment Board to draw correct conclusion that suit shops were situated in their survey number and not in survey number, the ownership of which was with Auqaf Department---Serious question of ownership existed, which according to Auqaf Department was under their control whereas Cantonment Board also asserted its title over the same---Both parties, in support of their claims placed reliance on certain documents---Courts below though had stated that plaintiffs failed to show that suit property fell within that area of Waqf property, which was given to Auqaf Department but Cantonment Board had also failed to establish its title over the same---Both the courts below committed error by not resolving such an important question involved in the case---High Court, in exercise of revisional jurisdiction, set aside judgments and decrees passed by the Courts below and remanded the case to Trial court for deciding question of title by giving full opportunity to parties to establish it through cogent evidence---Revision was allowed accordingly.

Sardar Muhammad Ramzan v. Muhammad Yahya Khan 2000 CLC 296; Anjuman-e-Islamia, Sialkot through Khawaja Mahmood Ahmad v. Haji Muhammad Younas and 3 others PLD 1997 Lah. 153; Chaudhry Muhammad Sharif through legal heirs and 13 others v. Hassan Din and 12 others 1999 YLR 1163; Abdur Rahim v. Muhammad Tahir Khan and others 2010 MLD 1230; Noor Muhammad and 5 others v. Additional District Judge, Ferozewala and 2 others 2002 YLR 3744; Sikandar and 2 others v. Muhammad Ayub and 5 others PLD 1991 SC 1041; Mst. Bibi Baghdiya v. Abdullah Khan and others 2012 CLC 165; Province of the Punjab through Secretary Irrigation Department v. Ch. Mehraj Din and Co. 2003 CLC 504 and Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another 2010 SCMR 817 ref.

M. Shoaib Khan, Khanzeb Hassan Zeb and Asif Hamid Qureshi for Petitioners/Appellants.

Ihsanullah for Respondents.

Date of hearing: 2nd April, 2012.

2012 M L D 1161

[Peshawar]

Before Attaullah Khan and Waqar Ahmad Seth, JJ

NAZEER KHAN---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.473 of 2011 in Criminal Appeal No.207 of 2011, decided on 22nd March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S. 302/324/34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Application for suspension of sentence on medical grounds---Contention of the accused was that he was suffering from ailment of a fatal nature, the treatment whereof was not possible in the jail---Validity---Report of Medical Board revealed that accused was suffering from hemiplegia and exaggerated reflexes and needed proper management and regular physiotherapy---Said report did not mention the fact that the accused could not be treated in the jail hospital---Accused was undergoing imprisonment for life and his disease was not of the nature which called for his release on bail or suspension of his sentence---Application for suspension of sentence was dismissed, in circumstances.

Zahoorul Haq for Petitioner.

Khawaja Muhammad Khan Gara and Miss Surriya Jabeen for the State.

Date of hearing: 22nd March, 2011.

2012 M L D 1168

[Peshawar]

Before Qaiser Rashid Khan, J

AMANULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No.51-D of 2012, decided on 19th March, 2012.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9---Possession of narcotic---Bail, grant of---Further inquiry---F.I.R. revealed that on spy information, police intercepted/stopped the vehicle and effected the recovery of 3700 grams of contraband charas from the secret cavities of its "diggi"---Timing of occurrence and that of the report were one and the same despite the fact that the police station concerned was at a distance of 16/17 kilometers from the spot---Question as to whether it was the act of one of accused persons, or of both, or of some passenger travelling in the vehicle, could best be resolved during trial---Alleged extra-judicial confession of the accused persons was subject to scrutiny during trial---Prima facie case squarely fell within the ambit of further inquiry entitling both the accused persons to the concession of bail---Bail application was accepted and both the accused were admitted to bail.

Allah Nawaz Khan for Petitioner.

Miss Farhana Jabeen for the State.

Date of hearing: 19th March, 2012.

2012 M L D 1196

[Peshawar]

Before Azmatullah Malik, J

AZIM SHAH---Petitioner

Versus

MIRAJ BIBI and 23 others---Respondents

Civil Revision No.1400 of 2010, decided on 20th February, 2012.

Specific Relief Act (I of 1877)---

----S.42---West Pakistan Land Revenue Act (XVII of 1967), S.45---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Suit for declaration---Entries in Record of Rights---Onus to prove---Concurrent findings of fact by courts below---Plaintiff claimed to be owner in possession of suit land and assailed entries in revenue record in name of defendants---Trial Court and Lower Appellate Court dismissed suit and appeal respectively, filed by plaintiff---Validity---Defendants failed to bring anything on record as to how the property in question was allotted to their predecessor-in-interest but such lapse on the part of defendants did not give any benefit to plaintiff unless he had proved his case on the strength of his own evidence---When it was not the case of plaintiff that in fact suit property was wrongly entered in favour of non-Muslims and subsequently transferred to Central Government, defendants had rightly claimed ownership over the suit property---Revenue officer of the area, while appearing as witness of plaintiff, had also denied status of plaintiff as owner of suit property on the strength of what he had alleged in the plaint, rather he confirmed that according to revenue record, defendants were owners in possession of suit land---High Court declined to interfere in concurrent findings of fact recorded by the courts below as the same did not suffer from any mis-reading or non-reading of evidence nor there was any jurisdictional error---Revision was dismissed in circumstances.

2008 SCMR 1384; PLD 1993 Pesh. 127; 2000 SCMR 157 and 1995 SCMR 284 distinguished.

S. Muhammad Ateeq Shah for Petitioner.

Khan Ghawas for Respondents.

Date of hearing: 20th February, 2012.

2012 M L D 1227

[Peshawar]

Before Mian Fasih-ul-Mulk, J

ALI AHMAD---Petitioner

Versus

MUKAMIL SHAH and others---Respondents

Civil Revision No.83 of 2005, decided on 23rd April, 2012.

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

----Ss. 12, 42 & 54---Suit for specific performance of contract, declaration and perpetual prohibitory injunction---Case of plaintiff was that he was in possession of the suit property, which he had purchased from the defendant through an agreement for sale consideration of Rs.50,000 who received the sale considerations, delivered possession of the suit property to the plaintiff---Plaintiff had successfully proved the execution of agreement deed by producing its scribe as well as marginal witnesses---Suit filed by the plaintiff was dismissed on the ground that scribe had not written the N.I.C. number of the defendant in the register and the signature of defendant on the register as well as deed were different---National Identity Card number though was not mentioned in the register, but the same was duly written on the deed---Scribe had stated that signatures of the defendant differed on the deed and the register but neither the court itself made any comparison nor the same were referred to an expert for the opinion on that score---Genuineness of the agreement deed, could not be doubted in view of overwhelming evidence available on file---Sale consideration was admittedly paid to the defendant before scribing the deed---Both courts below, in circumstances, had failed to appreciate the evidence in its true perspective and had committed an illegality by non-suiting the plaintiff---Whole evidence on record had not been taken into consideration, but selective minor parts and insignificant conflicts were allegedly made foundation for refusal to grant relief to the plaintiff---Findings of both courts below, were not only arbitrary, but fanciful and the result of mis-appreciation of law---Judgment and decrees of the courts below, being not sustainable in the eyes of law were set aside and suit filed by the plaintiff stood decreed, in circumstances.

Wali Muhammad v. Saif-ur-Rehman 2004 CLC 610; Saheb Khan through Legal Heirs v. Muhammad Pannah PLD 1994 SC 162; Haji Din Muhammad through Legal Heirs v. Mst. Hajra Bibi and others PLD 2002 Pesh. 2; Nawab Din v. Abdul Khaliq and another 2004 MLD 827; Yar Muhammad Khan v. Bashir Ahmad PLD 2003 Pesh. 179; Messrs Kashmirian Pvt. Ltd. through Shomaila Loan Marker and 6 others v. Ghulam Nabi Gujjar and another 2006 CLC 482 and Muhammad Akbar v. Mst. Manna and 3 others 2001 SCMR 1700 rel.

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

----S. 115---Revisional jurisdiction---Scope---Where concurrent findings of fact by the courts below were found perverse, arbitrary or fanciful, same could be interfered with in exercise of revisional jurisdiction of High Court under S.115, C.P.C.

Noorul Hakam for Petitioner.

Naeem Khan for Respondent.

Date of hearing: 23rd April, 2012.

2012 M L D 1251

[Peshawar]

Before Mian Fasih-ul-Mulk, J

Mian MUHAMMAD ASLAM SHAH---Petitioner

Versus

PAZEER MUHAMMAD---Respondent

Civil Revisions Nos. 445, 446 and 487 to 489 of 2011, decided on 12th March, 2012.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 24(2)---West Pakistan General Clauses Act, (VI of 1956), S.8---Suit for pre-emption---Computation of time---Suit of plaintiff was dismissed concurrently by the courts below on the ground that the plaintiff failed to deposit one-third sale price within the given period of 60 days---Contention of the plaintiff was that the date of the order was to be excluded from the computation of 60 days and therefore, his deposit of the said amount was within the stipulated period of 60 days--Validity---Khyber-Pakhtunkhwa Pre-emption Act, 1987 left it to the discretion of the Trial Court to direct the per-emptor to deposit the pre-emption amount within such period as the Trial Court may fix---In computing any period of time prescribed or allowed by order of a court or by any statute or regulation, the date of the act or event after which the designated period of time began to run, was not be included---Courts below, in circumstances, were not justified to have included the date on which the said order for deposit of one-third price of suit land towards the calculation of the period of sixty days, was made and the said date should have been excluded from the computation---Impugned order was set aside---Revision was allowed, accordingly.

2003 CLC 1597 and 2003 CLC 661 ref.

Muhammad Yousaf and 3 others v. Zafarullah and another 1992 SCMR 117 fol.

Utman Khel Muhammad Younas for Appellant.

M. Younas Khan for Respondent.

Date of hearing: 12th March, 2012.

2012 M L D 1262

[Peshawar]

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

ARIFULLAH KHAN---Petitioner

Versus

HUKAM ZAD KHAN and 5 others---Respondents

Writ Petition No.170-B of 2011, decided on 28th February, 2012.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & Preamble---Constitution of Pakistan, Art. 199---Constitutional petition---Basic idea and philosophy behind the enactment of Illegal Dispossession Act, 2005--Petitioner filed a complaint against the respondents under Ss. 3 and 4 of the Illegal Dispossession Act, 2005 which was dismissed by the Trial Court after obtaining inquiry report from the Police Station---Validity---Dispute between the parties had a long and chequered history and involved several litigations which had culminated into registration of F.I.Rs.---Basic idea and philosophy behind the enactment of the Illegal Dispossession Act, 2005 was to rid the people from the menace of "Qabza groups"/property-grabbers and land mafia and to curb their activities to the maximum---Complainant had to bring sufficient evidence to show that an accused belonged to either a Qabza group, land mafia or had the credentials or antecedents of a property grabber---Petitioner, in the parameters of the Illegal Dispossession Act, 2005 had been unable to place the respondents in either of the laid down criteria---Constitutional petition was dismissed.

PLD 2010 SC 661 and PLD 2007 Lah. 331 rel.

Sultan Shaharyar Khan for Petitioner.

Asghar Ali Khan for Respondents.

Date of hearing: 28th February, 2012.

2012 M L D 1273

[Peshawar]

Before Dost Muhammad Khan and Miftah-ud-Din Khan. JJ

Mst. ZARBAKHT SHAH---Petitioner

Versus

POLITICAL AGENT KHYBER AGENCY and 4 others-Respondents

Write Petition No.2816 of 2011, decided on 15th November. 2011

Constitution of Pakistan---

----Arta 199---Constitutional petition for issuance of directions for production of detenu---Detention of the detenu being preventive in nature and was in default of surety bonds, there was no legal impediment to release him---Assistant Political Agent was directed by High Court to release the detenu, if he would execute bail bonds with two sureties.

Arshad Hussain Yousafzai for Petitioner.

Lal Jan Khattak, A.A.-G. along with Iqbal Durrani Standing Counsel for PA Bara.

2012 M L D 1282

[Peshawar]

Before Attaullah Khan, J

ATTA-UR-REHMA N---Petitioner

Versus

MUHAMMAD ANWAR KHAN and others---Respondents

Civil Revision No.1096 of 2011, decided on 2nd April, 2012.

Civil Procedure Code (V of 1908)---

--0.1, R.3---Appeal against deceased defendant---Scope---Suit was dismissed by Trial Court and appeal against the, same was dismissed by the Appellate Court on the ground that it had been filed against a dead person---Contention of the plaintiff was that the appeal should have been decided on merits and not dismissed on a technicality as the legal heirs of the deceased were available---Validity---Plaintiff had filed an appeal before the Appellate Court against a dead person---Defendant had died during pendency of the suit before the Trial Court and his legal heirs were brought on record---Plaintiff had committed an illegality by filing an appeal against a dead person and not including, the legal heirs of the said persons by amending the appeal---Appeal against a dead person was not maintainable, especially when during the pendency of the appeal, the legal representatives/heirs of the dead person were not impleaded as respondents---Revision was dismissed.

Rehmat Din. and others v. Mirza Nasir Abbas and others 2007 SCMR 1560 The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82 rel.

Saadatullah Khan. for Petitioner.

Gul Saban Khan for Respondent.

Date of hearing: 2nd April, 2011.

2012 M L D 1288

[Peshawar]

Before Shah Jahan Khan Yousafzai, J

VEZAR ALI---Petitioner

Versus

FAIQ ZAMAN and another---Respondents

Criminal Miscellaneous No.103 of 2011, decided on 12th March, 2011.

Criminal ProceduretCode (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd, common intention---Bail, grant of----Accused along with his three brothers were charged for single injury sustained by the complainant---One of the. brothers of accused was murdered on the following day of the occurrence, while another one was still absconding and other co-accused was allowed bail---Accused on principle of consistency, also deserved the same treatment as case against the accused and co-accused was identical on all aspects---Deputy Advocate General, did not oppose the concession of bail to accused as his co-accused with the same role and circumstances was -allowed bail---Accused was admitted to bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Muhammad Rafiq Khan, D.A.G. for the State.

Date of hearing: 8th March, 2011.

2012 M L D 1306

[Peshawar]

Before Qaiser Rashid Khan, J

SHAUKAT ZAMAN---Petitioner

Versus

MUHAMMAD FARAKH KHAN and another---Respondents

Criminal Miscellaneous Quashment Petition No.213 of 2011, decided on 6th April, 2012.

Criminal Procedure Code (V of 1898)---

---S. 561-A---Penal Code (XLV of 1860), Ss. 419/420---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating---Quashing of F.I.R.---Dispute over repayment of loan---Complainant (respondent) had given a loan to the accused (petitioner) in respect of which the accused allegedly executed a pro note but refused to repay the said loan---Contentions of accused were that allegations made in the application of the complainant did not make a cognizable case under Ss. 419 and 420, P.P.C, and that a civil dispute had been made the subject of an F.I.R. against the accused---Validity---Matter had credentials of a civil dispute and even the police had stated in its final report that there were business dealings between the parties---Application was made to the police after a period of one year and nine months had lapsed since the execution of the alleged pro note---Complainant had every right and opportunity to approach the civil court for redressal of his grievance in the form of a recovery suit rather than harassing the accused through present F.I.R.---Continuation of further proceedings would tantamount to the abuse of the process of the court---Quashment petition was accepted and F.I.R. registered against the accused was cancelled by the High Court with the observation that practice of portraying a civil liability as a criminal liability and in the process harassing the alleged delinquent to return the loan was unwarranted under the law.

Muhammad Shoeb Khan for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Muhammad Khursheed Qureshi for the Respondent No.1.

Date of hearing: 6th April, 2012.

2012 M L D 1323

[Peshawar]

Before Yahya Afridi, J

R&S PHARMACY ESTABLISHMENT, through Rizwan Hameed---Petitioner

Versus

MEDICAL SUPERINTENDENT, DHQ HOSPITAL, HARIPUR and 3 others---Respondents

Civil Revision No.228 of 2010, decided on 2nd April, 2012.

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

----O. XXXIX, Rr. 1 & 2---Interim relief beyond the term of the contract between the parties---Scope---Term of the contract having expired, the plaintiff could not seek the same beyond his pleadings---High Court observed that the practice of availing judicial protection of interim orders beyond the term of the contract, reflected adversely not only on the legal fraternity but also upon the courts.

(b) Khyber Pakhtunkhwa Medical and Health Institutions and Regulations of Health Care Services Ordinance (XLVII of 2002)---

----Ss. 1, 2, 3, 4 & 7-----Specific Relief Act (I of 1877) S. 42---Suit for declaration praying, inter alia, that the Provincial Government could not interfere in the management of the Hospital and therefore, the orders of the Secretary Health adverse to the plaintiff were illegal; was dismissed concurrently---Contention of the plaintiff was that under the Khyber Pakhtunkhwa Medical and Health Institutions and Regulations of Healthcare Services Ordinance, 2002, the management of the Hospital, being a health institution, was vested in the Management Committee, to be established under S. 7 of the Ordinance, and the Hospital being an autonomous and independent organization under the said Ordinance, the management of the same could not be interfered into by the Provincial Government---Validity---Hospital would fall into the definition of "health institution" provided under S. 2(h) of the Ordinance---Hospital being a "Health Institution" functioning since 1999; would only come within the management regime provided in the Ordinance, when it was notified in such regard by the Provincial Government---Provincial Government had till date did not issue any such notification; and therefore, provisions of the Ordinance were not applicable to the running of the affairs and management of the Hospital.

Mushtaq Ali Tahirkheli for Petitioner.

Muhammad Nawaz Khan, A.A.-G. for Respondent and Rashid-ul-Haq Qazi as Avicus Curiae.

Date of hearing: 2nd April, 2012.

2012 M L D 1339

[Peshawar]

Before Qaiser Rashid Khan, J

NOOR NAMA---Petitioner

Versus

NAQIBULLAH and another---Respondents

Criminal Miscellaneous Bail Cancellation Petition No.471 of 2011, decided on 24th February, 2012.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324/34---Attempt to commit qatl-e-amd, common intention---Application for cancellation of bail---Allegation against accused (respondent) was that he along with his brothers (co-accused) effectively fired at the complainant (applicant) on account of a previous blood feud between the parties---Contentions of complainant were that accused was directly charged for inflicting the firearm injury; that medico legal report of the complainant fully supported the charge against the complainant, and that accused had a strong motive to commit the act---Validity---Complainant had received a solitary injury on her leg for which she had charged three real brothers (accused and co-accused) and it was not known as to whose fire shot injured the complainant---Inordinate and unexplained delay in lodging the report---Medico legal report of the complainant was not in consonance with the ocular account of the complainant---Chances of false charges against the accused could not be ruled out on account of the previous blood feud between the parties---Application for cancellation of bail was dismissed, in circumstances.

Muzzafar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231 fol.

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

----S. 497(5)---Bail, cancellation of---Principles---Grounds for the grant of bail and that of cancellation of bail are quite different from each other---Where bail was granted by a competent court of law, then strong, cogent and exceptional grounds including misuse of the concession of bail or tampering with the prosecution evidence are required for recalling the same.

Sh. Iftikhar Haq for Petitioner.

Sarwar Khan Kundi for Respondents.

Muhammad Imran Khan Gandapur for the State.

Date of hearing: 24th February, 2012.

2012 M L D 1371

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

MIRAJ-UD-DIN---Petitioner

Versus

MUHAMMAD SHOAIB and 2 others---Respondents

Civil Revision No.794 of 2010, decided on 13th March, 2012.

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

----S. 7(vi)---Suits Valuation Act (VII of 1887) Ss. 9 & 7---Civil Procedure Code (V of 1908) S. 115---Khyber Pakhtunkhwa Pre-emption Act (X of 1987) S. 5---Suit for pre-emption---Revision----Defendant objected to the maintainability of the revision on the ground that keeping in view the valuation of the suit by the plaintiff, he should have preferred a regular first appeal---Plaintiff had valued the suit at Rupees 200 inspite of the fact that sale in question was with regard to a house---No issue with regard to court fee was framed by the Trial Court---Valuation of the suit should have been according to the market value of the house as provided in S. 7 of the Court Fees Act, 1870 but the same was not altered by the Trial Court----Valuation of the suit was the job of the court under the Suits Valuation Act, 1870; whether pointed out by any party or not but in a situation where two courts below had decided the case on merits, remand for the purpose of the court fee would not be justifiable---High Court altered the valuation of the suit to Rupees Twelve Lakhs and directed the plaintiff to deposit the court fee in accordance with said valuation.

Munawar Hussain and 2 others v. Sultan Ahmad 2005 SCMR 1388; Ilahi Bakhsh and others v. Mst. Bilqees Begum PLD 1985 SC 393 and Gul Zaman v. Muhammad Shafique, PLD 1989 Pesh. 247 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 24, 13 & 5---Suit for pre-emption---Trial Court had found that plaintiff had not performed Talbs in accordance with law for the reason as to how he came to know that the sale in question was effected through registered sale deed and on the ground of contradictions in the statements of attesting witnesses regarding actual place of writing of notice---Suit was dismissed concurrently---Validity---Record established the fact that the plaintiff had fully established the performance of Talbs in accordance with law---No material contradictions in the evidence of the plaintiff was pointed out---Grounds taken by trial court were not sufficient to discard the entire evidence of the pre-emptor for performance of Talbs---Plaintiff had deposited the one-third price of the amount alleged by him and no amount had been specified by the Trial Court---Had the Trial Court given a specified amount, then non-compliance by the pre-emptor would have been fatal for him---Pre-emptor, in such a situation, could not suffer due to an act of the court; and the maxim "actus curiae neminem gravabit" (the act of the court shall prejudice no man), would come to his rescue---Defendant had also not objected to the amount deposited by the plaintiff---Plaintiff could not suffer when no mala fide intention on his part had been shown---High Court set aside concurrent findings of the courts below and decreed the suit of the plaintiff---Revision was allowed, accordingly.

Muhammad Ghaffar v. Mst. Irum and others 2010 CLC 106 rel.

Aziz ur Rehman for Petitioner.

Abdul Wadood for Respondents.

Date of hearing: 13th March, 2012.

2012 M L D 1411

[Peshawar]

Before Qaiser Rashid Khan, J

MUHAMMAD ISMAIL---Petitioner

Versus

HAJI KHAN and another---Respondents

Civil Revision Petition No.116-D of 2012, decided on 12th April, 2012.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for possession through pre-emption---Scope---Rejection of plaint---Subsequent vendee, non-impleading as party---Concurrent findings of facts by two courts below---Suit filed by pre-emptor was rejected by Trial Court on the ground that suit property had already been sold out by defendants to some third person vide registered sale deed, before the performance of Talb-e-Ishhad and Talb-e-Khasumat, who was not impleaded as party---Validity---Pre-emptor was required to have pre-empted transaction of sale between defendants and subsequent vendees, which he failed to do---Subsequent sale by defendants did not fall within the parameters of principle of lis pendens---Both the courts below had rightly rejected suit of pre-emptor under O.VII, R.11 C.P.C. and pre-emptor failed to point out any illegality, irregularity or non-reading/mis-reading of evidence brought on record and the same was upheld by High Court---Revision was dismissed in circumstances.

Abdul Yameen Khan v. Ashrat Ali Khan and others 2004 SCMR 1270 rel.

Muhammad Salim Bhatti for Petitioner.

2012 M L D 1426

[Peshawar]

Before Syed Sajjad Hassan Shah, J

MUHAMMAD ASHRAF---Petitioner

Versus

Haji MUHAMMAD YAR and 3 others---Respondents

Civil Revision Petition No.317 of 2011, decided on 23rd April, 2012.

(a) Administration of justice---

----Relief claimed on certain facts by party is bound to prove the same in accordance with the requirements of law.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss.2 (d) & 13---Suit for pre-emption---Exchange of land---Plea of better management---Proof---Suit was concurrently decreed in favour of pre-emptor by Trial Court and Lower Appellate Court---Plea raised by defendant/vendee was that land in question was not sale and in fact was an exchange for better management of land---Validity---Word "better management" was not defined in Khyber Pakhtunkhwa Pre-emption Act, 1987, because it could vary from case to case and would be a question of fact for all times to come---Every question of fact required to be distinctly alleged and thereafter proved---Though "better management" was alleged but not for agricultural purposes, rather nature of better management necessitating transaction of exchange in dispute was not disclosed---Defendant / vendee failed to specify detail and did not utter a single word about exchange, nature and purpose for which it was acquired, as without which, no justification could be put forward that it was in fact acquired for "better management"---Solitary statement of defendant/vendee was neither supported by witness nor by any document whereof produced on record to show reasons for such exchange to take it out of sale transaction---Both the courts below had correctly appreciated evidence brought on record and arrived at just and lawful conclusions---Judgments passed by both the Courts below were not suffering from any illegality or material irregularity calling for interference by High Court---Revision was dismissed in circumstances.

Akbar Nawaz Khan v. Sher Dil Khan and 2 others 1994 MLD 2325 and Inayat v. Nadar Khan 2007 SCMR 1702 ref.

Zain-ul-Abidin for Appellant.

Muhammad Sajid Awan for Respondents.

Date of hearing: 23rd April, 2012.

2012 M L D 1448

[Peshawar]

Before Yahya Afridi and Khalid Mehmood, JJ

MUHAMMAD ASHRAF---Appellant

Versus

JAVED and another---Respondents

Criminal Appeals Nos.134 to 137, M.R. No.12, and Criminal Revision No.36 of 2010, decided on 9th May, 2012.

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

----Ss. 302(b), 324, 148 & 149---West Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, attempt to commit qatl-e-amd, rioting and possessing unlicensed arms---Appreciation of evidence---Testimony of two eye-witnesses, did not inspire confidence in relation to charging one of the accused persons and same was rejected for roping in one set of accused falsely---Injured witness who was closely related to the deceased party, had not been produced and no evidence was led to explain the reason for said non-production---Non-production of the injured witness had seriously damaged the case of the prosecution---Three ladies, who, according to the prosecution, were also the eye-witnesses of the occurrence and had identified the accused were not produced as witnesses---Non-production of said witnesses, would lead to presumption in favour of accused persons---Conduct of the complainant immediately preceding the tragic incident, was contrary to the natural course of human conduct---Complainant saw his father and close relatives in shock and injured condition, but he did not take them for any medical treatment---Six persons duly armed with automatic weapons, fired at the complainant party and hit; and done to death three persons, injured one and two eye-witnesses, who were in close proximity, remained unhurt; it did not hold to reason that the assailants, who knew the complainant party would fire injured and left the complainant, who was not only an eye-witness to the crime, but also the son of deceased---Level of fairness in the investigation called for much to be desired---Motive as was introduced by the prosecution had not been proved by the prosecution---When ocular testimony had not been considered worthy enough, then the importance of abcondance of accused as a corroborative evidence, would be diminished---Prosecution had failed to substantiate the recovery of crime weapon from accused by producing reliable, trustworthy and unimpeachable evidence---Mode and manner showing arrest of accused persons with crime weapons, the custody of crime empties and efforts made to procure a positive forensic report, had created doubts and established that the investigation was not conducted honestly---All said serious issues had created doubts regarding the prosecution of proving the guilt of accused persons beyond the reasonable doubt---Conviction and sentence recorded against accused by the Trial Court, were set aside and accused were acquitted of all the charges against them and were set free, in circumstances.

Iftikhar Hussain and others v. The State 2004 SCMR 1185; Muhammad Rafique and others v. The State 2010 SCMR 385; 2006 SCMR 1707; Mst. Saddan Bibi v. Muhammad Ameer and others 2005 SCMR 1128; Abdul Wahab v. State Criminal Appeal No.49 of 2009 decided on 22-2-2012, Gul Zaman v. Shereen Bahadur 2010 YLR 3019; 2006 PCr.LJ 1082; 2008 YLR 1926; Ghulam Qadir v. The State 2008 SCMR 1221; Riaz Ahmad v. State 2010 SCMR 846; Muhammad Tufail v. State 2010 PCr.LJ 1389; 1997 SCMR 25; 1999 SCMR 172; Muhammad Nadeem alias Banka v. The State 2011 SCMR 1517; 2002 SCMR 1986; Ghulam Akbar v. State 2008 SCMR 1065; 2007 PCr.LJ 1585; 2010 SCMR 105; Muhammad Akbar v. The State 1990 SCMR 1129), Imran Shah v. Mst Dil Pari Jana 2011 YLR 311; Muhammad Khan v. The State 1999 SCMR 1220; Qaisar Shah v. State 2006 YLR 622; Jafar Ali v. The State 1998 SCMR 2669; Muhammad Younas and another v. The State and others 1990 SCMR 1272; 1997 SCMR 89, Awais and another v. The State and another 2004 PCr.LJ 377; Anar Gul v. The State 1999 SCMR 2303; Afzal-ur-Rehman v. The State 2003 SCMR 355; Fatima Bibi and 5 others v. Sardar Ali and 3 others 2002 PCr.LJ 668; The State v. Waheed Iqbal and others 2005 PCr.LJ 1384; Saeed Akhtar and others v. The State 2000 SCMR 383, Sarfaraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Muhammad Asghar and others v. The State 2010 SCMR 1706; The State v. Aminullah and another PLD 1972 Pesh. 92; Riaz Hussain v. The State 2001 SCMR 177; 2005 PCr.LJ 1384, The State v. Moula Bakhsh alias Moulak 2005 PCr.LJ 794; Muhammad Yaqoob and others v. The State and others 2007 PCr.LJ 1860; Zahid Imran and others v. The State and others PLD 2006 SC 109; Nazir Ahmad and others v. The State and others PLD 2005 Kar. 18; Ameer Ali v. The State 1999 MLD 758; Ch. Muhammad Siddique v. Muhammad Zubari and 4 others 1995 SCMR 1112; Muhammad Afzal and another v. The State 1982 SCMR 129; Ghazanfar Ali and 16 others v. The State NLR 2007 PCr.LJ 110; Aminullah v. The State PLD 1976 SC 629; Pahlwan and 2 others v. The State 2000 Cr.LJ 299; Mohtarama Benazir Bhutto and another v. The State PLD 2000 SC 795; Imtiaz Ahmad v. The State 2001 SCMR 1334; Nawaz Ali and another v. The State 2001 SCMR 726; Talib Hussain and others v. The State 1995 SCMR 1776; Khurram Malik and others v. The State and others PLD 2006 SC 354; Mst. Bismillah and another v. Muhammad Jabbar and others 1998 SCMR 862; Muhammad Ashraf and others v. The State PLD 1983 SC 216; Sheikh Hassan v. Bashir Ahmad and another PLD 1966 (W.P) Pesh. 97 and Ghulam Mustafa v. The State 2009 SCMR 916 rel.

Muhammad Ahmad v. The State 1997 SCMR 89; Siraj Din v. Kala PLD 1964 SC 26; Taj Muhammad v. Resham Khan 1986 SCMR 823; Sardar Khan v. State 1998 SCMR 1823 and Muhammad Khan v. The State 1999 SCMR 1220 rel.

(b) Criminal trial---

----Duty and function of the court---Courts were to sift the 'grain' from 'chaff'---Such was essentially a rule of prudence to ensure that the actual criminal would not go unpunished.

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

----Ss.302(b), 324, 148 & 149---Qatl-e-amd, attempt to qatl-e-amd and rioting---Appreciation of evidence---Ocular testimony could generally be divided into three categories---First was the testimony of a witness, who was naturally present at the place and time of occurrence; his testimony was logical and trustworthy; in such a situation, his sole testimony could saddle the capital punishment upon an accused and there was no need for any corroboration---Second was testimony of witnesses whose testimony had no truth or confidence arising therefrom; no matter how much corroboration was placed on the record, the said testimony would not have the force or veracity of truth that could lead to the conviction of an accused charged for a capital offence---Third was testimony of witness which was partly truthful and remaining unreliable; it was in such circumstances, that the court had to be cautious and prudent; entire testimony of said witness should not be outrightly rejected and the court had to be dynamic and seek whether the part of the testimony, which appeared to be truthful, was corroborated by other evidence, emanating from an independent source or otherwise.

Muhammad Iqbal v. Muhammad Akram 1996 SCMR 908 rel.

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

----Ss.302(b), 324, 148 & 149---Qatl-e-amd, attempt to qatl-e-amd and rioting---Abscondence of accused---Abscondence alone could not saddle conviction of a capital charge upon an accused---Abscondence at best, could be taken as corroborative evidence.

Saeed Akhtar Khan for Appellant.

A.A.G. for the State.

M.A. Tahir Kheli for the Complainant.

Date of hearing: 2nd May, 2012.

2012 M L D 1487

[Peshawar]

Before Mian Fasihul Mulk, J

MUHAMMAD IQBAL---Petitioner

Versus

SARDAR KHAN---Respondent

Civil Revision No.1039 of 2010, decided on 9th March, 2012.

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

----O.IX, R. 13---General Clauses Act (X of 1897) S. 27---Ex parte decree, setting aside of---"Sufficient-cause"---Meaning---Suit for recovery was decreed ex parte against defendant by the Appellate Court and his salary was attached in execution proceedings---Defendant's application for setting aside ex parte decree was dismissed, inter alia, on the ground that the defendant was served through publication in the newspaper and by registered post---Validity---Nothing on record showed that the registered service card issued to the defendant was retuned back with any report of its service upon the defendant and the newspaper was an English daily, that had no wide circulation in the area---Meaning of the words "sufficient cause" used in O. IX, R. 13 of the C.P.C. was "adequate" or "enough" inasmuch as may be necessary to answer the purpose intended---While deciding whether there was sufficient cause or not, the court must bear in mind the object of doing substantial justice to all parties concerned and that technicalities of law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it---Under S. 27 of the General Clauses Act, 1897 there was a presumption that the addressee had received a letter sent by registered post but said presumption would be gathered from the fact if the same was returned back with a postal endorsement that the addressee refused to accept the same---Defendant was serving at place P at the relevant time and his address in the plaint was of the village K---Defendant was not personally served and prejudice was caused to the defendant by the impugned orders---High Court set aside ex parte decree---Revision was allowed, accordingly.

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

----O. IX, R. 13---Ex parte decree, setting aside of---"Sufficient cause" meaning/connotation---Meaning of the words "sufficient cause" used in O. IX, R. 13 of the C.P.C. was "adequate" or "enough" inasmuch as may be necessary to answer the purpose intended---While deciding whether there was sufficient cause or not, the court must bear in mind the object of doing substantial justice to all parties concerned and that technicalities of law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it.

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

----S. 27---Service by post---Meaning and scope---Under S. 27 of the General Clauses Act, 1897 there was a presumption that the addressee had received a letter sent by registered post but said presumption would be gathered from the fact if the same was retuned back with a postal endorsement that the addressee refused to accept the same.

Abdul Haleem for Petitioner.

Syed Sardar Hussain for Respondent.

Date of hearing: 9th March, 2011.

2012 M L D 1521

[Peshawar]

Before Azmatullah Malik, J

GUL ANWAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No.1628 of 2011, decided on 28th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession and trafficking of narcotic---Bail, grant of---Further inquiry---Recovery of narcotics from a consignment---Allegation against the accused (Custom Clearing Agent) was that he facilitated the export of a consignment from which seven (7) kilograms of heroin was recovered---Failure to prove conscious knowledge of narcotics---Effect---Contentions of the accused were that he was only a custom clearing agent and neither was he the exporter nor the owner of the consignment; that the job of the accused was only to facilitate the transaction of exporters, and that the company exporting the consignment had given an undertaking that the consignment in question did not contain any antiques, narcotics, drugs, explosives or any such items and in case the same were found, the company would be responsible for the same---Validity---Accused had facilitated the export of the consignment on valid documents including an undertaking of the manager of the exporting company---Prosecution had failed to establish the requisite conscious knowledge of the accused about the presence of the narcotics in the consignment---Mere presence without knowledge of the concealment of narcotics in the consignment did not automatically make the accused responsible for the alleged recovery---Case against the accused called for further inquiry entitling him to the concession of bail---Accused being only a clearing agent was admitted to bail, in circumstances.

Abdul Jalil v. The State Criminal Miscellaneous No.1274 of 2009 and Fazal Badshah v. The State Criminal Miscellaneous No.1290 of 2003 ref.

Noor Alam Khan for Petitioner.

Tariq Kakar for the ANF.

Date of hearing: 28th October, 2011.

2012 M L D 1542

[Peshawar]

Before Dost Muhammad Khan, C.J.

NOOR KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 820-P of 2012, decided on 9th July, 2012.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing narcotic---Bail, grant of---Accused had no past criminal history, as neither he was previously booked for such crime nor had been convicted---Case being of borderline, benefit of the same would go to accused---Accused was admitted to bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Ms. Mehwish Mukhtar for the State.

Date of hearing: 9th July, 2012.

2012 M L D 1555

[Peshawar]

Before Mian Fasih-ul-Mulk, J

Mst. HUKAM JANA through L.Rs.---Petitioner

Versus

KABEER KHAN---Respondent

Civil Revision No.413 of 2011, decided on 7th June, 2012.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 15---Suit for pre-emption was decreed by Appellate Court---Validity---Time, date and place were the most important for proving the first Talb in accordance with law and both witnesses to the Talb-e-Ishhad notice had stated that they did not know about the contents of the notice---Evidence showed that the plaintiff / pre-emptor was in knowledge of the house being sold by the vendor and that he himself wanted to purchase the same, but at a lesser amount, and hence he waited for the sale of the suit house in order to get the same through the exercise of his right of pre-emption---Plaintiff's refusal to purchase the suit house after full knowledge of it being sold would, therefore, be an estoppel in his way to pre-empt the sale---Record was indicative of the fact that the plaintiff was in knowledge of the sale much prior to the attestation of the registered sale deed---Section 15 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, in circumstances would be fully attracted for holding that the plaintiff had waived his right to pre-emption---High Court set aside decree of Appellate Court and dismissed the suit of the plaintiff---Revision was allowed, in circumstances.

Anwar Baig and another v. Mst. Naziran Bibi and 8 others 1987 CLC 1855 and Zahidullah v. Muhammad Ishaq 2012 YLR 1039 rel.

Shumail Ahmad Butt for Petitioner.

Muhammad Riaz Muhammad for Respondents.

Date of hearing: 7th June, 2012.

2012 M L D 1576

[Peshawar]

Before Mazhar Alam Khan Miankhel and Fazal-i-Haq Abbasi, JJ

NASIR---Petitioner

Versus

Mst. RUBINA and 2 others---Respondents

Writ Petition No.1971 of 2010, decided on 17th May, 2012.

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

----S.5 & Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dower and maintenance allowance was decreed in wife's favour and marriage was also dissolved by the Family Court on basis of Khula---Contention of the husband (petitioner) was that if the wife opted to dissolve the marriage on basis of khula, she was bound to return all the benefits received by her at the time of marriage and therefore, decree of recovery of dower in her favour was against Shariah and the law---Validity---Wife had asked for dissolution of her marriage on the grounds other than "khula" along with claim of recovery of maintenance and dowry articles---Perusal of judgment of Family Court revealed that it was mindful of the fact of period of wedlock of the spouses, the birth of the children out of the wedlock, second marriage of the husband and hatred the wife had towards living with the husband ; and said reasons might have been before the Family Court which precluded it to order the return of benefits---Family Court had to see and determine as to whether the wife would be liable to return any benefit she received at the time of marriage and had also the authority to determine the quantum of such return---Constitutional petition, being meritless, was dismissed.

Quranic verse No.229 of Surah Al-Baqarah quoted.

Dr. Fakhr-ud-Din v. Mst. Kausar Takreem and another PLD 2009 Pesh. 92 and Muhammad Tariq v. Mst. Shaheen and 2 others PLD 2006 Pesh. 189 rel.

Mahboob v. Mst. Siraj Bibi Writ Petition No.1381 of 2007 and Shaista v. Haseeb Ahmad Writ Petition No.1220 of 2010 distinguished.

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

----S.6---Marriage---Polygamy---Muslim under Shariah could marry four wives, but there were certain restraints in the shape of equal treatment between all the wives and doing justice among them---Law of the land also prohibited second marriage unless permission was given by the first wife.

Javid A. Khan for Petitioner.

Muhammad Rahim Shah for Respondents.

Date of hearing: 17th May, 2012.

2012 M L D 1589

[Peshawar]

Before Syed Sajjad Hassan Shah and Qaiser Rashid Khan, JJ

Syed MUMTAZ ALI---Petitioner

Versus

MUHAMMAD NAWAZ and 16 others---Respondents

Writ Petition No.710 of 2011, decided on 13th December, 2011.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Plaintiff (petitioner) had filed a declaratory suit against the defendants (respondents) claiming ownership of property on the basis of an agreement/sale deed allegedly executed by him and the defendants in the presence of witnesses---Plaintiff requested Trial Court to issue proclamation in a newspaper to secure attendance of defendants, whereafter all the defendants were placed ex parte---Trial Court, summoned revenue record of the suit property which showed the same as government property and the court passed ex parte decree in favour of the plaintiff which was challenged by the one of the defendants through an application under S. 12(2), C.P.C, which was dismissed but revision petition against the same was accepted by the court below---Contentions of plaintiff were that the defendant who filed the application under S. 12(2), C.P.C, before court below did not have the locus standi to file such application; that court below lacked the jurisdiction to reopen a closed case and to implead Federal and Provincial governments and its functionaries as defendants in the suit, as none of the said functionaries assailed the ex parte judgment and decree and they were also not proper and necessary parties to the suit---Validity---Exercise of giving notices to the defendants was done in a surreptitious manner and a single address was provided for numerous defendants, which fact raised suspicion---Summons were sent through a letter under registered AD cover, which were returned with the remarks that the address provided by the plaintiff was inadequate, and rather than asking the plaintiff to provide the correct and complete address of the defendants, the Trial Court obliged the plaintiff by straightaway acceding to his request for publication in the newspaper---Trial Court hastened to place the defendants as ex parte---One of the witnesses had stated that some of defendants were not present during the time of the agreement and their consent was solicited through telephone---Revenue department official had stated that almost the entire suit property belonged to the government, which fact was not taken into consideration by the Trial Court and despite such fact plaintiff thought it fit not to implead the government as a party in the main suit, which spoke volumes of the hasty and doubtful manner in which the proceedings were conducted before the Trial Court---No efficacious decree could have been passed by the Trial Court without impleading the government functionaries as defendants in the suit and affording them an opportunity of hearing through de novo trial---Impugned order of court below did not suffer from any illegality or jurisdictional defect which would warrant interference by the High Court in its constitutional jurisdiction---Constitutional petition was dismissed, in circumstances.

Muhammad Khurshid Qureshi for Petitioner.

2012 M L D 1609

[Peshawar]

Before Mian Fasih-ul-Mulk, J

FAIZULLAH and 3 others---Petitioners

Versus

RUSTAM and 11 others---Respondents

Civil Revision No.318 of 2004, decided on 21st May, 2012.

(a) Islamic Law---

----Inheritance---Pedigree table, authenticity of---Scope---Suit for declaration of title was dismissed on the ground that the pedigree table was prepared on hearsay and did not come from any authentic source---Validity---Records and facts left no doubt that the pedigree table prepared by the plaintiffs was correct and as per evidence on record, both the plaintiffs and defendants were descendants of the original owner of the suit property---Property devolved on both the parties shall be deemed to be joint for all intents and purposes and the respondents could not assert their exclusive right thereon---High Court observed that on the point of onus to prove genuineness or lack of genuineness of pedigree table when both parties to a suit led evidence on an issue, in such a case placing of onus to prove on one or the other party loses its significance as the issue was then to be decided on the basis of preponderance of evidence---Civil cases ought to be decided on probabilities only as to which of the party had probably proved its case or in other words which of the party being true should succeed and be granted relief---High Court set aside orders of the courts below and decreed the suit of the plaintiffs---Revision was allowed, accordingly.

Zaheer Ahmad Qureshi through Legal Heirs v. Syed Iftikhar Hussain Shah 1999 SCMR 2605; Nazir Ahmad and others v. Abdullah and others 1997 SCMR 281; Yar Muhammad Khan v. Bashir Ahmad PLD 2003 Pesh. 179 and Muhammad Akbar v. Mst. Manna and 3 others 2001 SCMR 1700 rel.

(b) Administration of justice---

----Civil cases ought to be decided on probabilities only as to which of the party had probably proved its case or in other words which of the party being true should succeed and be granted relief.

Yar Muhammad Khan v. Bashir Ahmad PLD 2003 Pesh. 179 rel.

Ghafoor Ahmad Qureshi for Petitioners.

Alamzeb Khan for Respondents.

Date of hearing: 21st May, 2012.

2012 M L D 1652

[Peshawar]

Before Attaullah Khan and Waqar Ahmad Seth, JJ

WALIFA JANA and 2 others---Petitioners

Versus

RAHIM JAN and another---Respondents

Writ Petition No.1833 of 2009, decided on 9th May, 2012.

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

----Ss. 3 & 4---Constitution of Pakistan, Art. 199---Constitutional petition---Complaint under S.3 of the Illegal Dispossession Act, 2005---Scope and requirements---Concurrent civil and criminal proceedings---Stay of criminal proceedings---Scope---Submission of bogus stamp paper to establish ownership of disputed property---Effect---Complainant (petitioner) filed a complaint under Ss. 3 and 4 of the Illegal Dispossession Act, 2005, against the accused (respondent), who presented a bogus stamp paper claiming to be the owner of the property in question---F.I.R. was lodged against the accused regarding the said bogus and forged stamp paper---Trial Court without recording any pro and contra evidence dismissed the complaint of the complainant under the Illegal Dispossession Act, 2005---Contentions of the complainant were that the accused prepared a forged and bogus stamp paper, against which inquiry was conducted and an F.I.R. was registered but the Trial Court ignored said aspect of the case, and that the Trial Court dismissed the complaint without recording any evidence---Validity---Record showed that the accused had initiated civil litigation after institution of the complaint in order to defeat the applicable law---Illegal Dispossession Act, 2005, was applicable to all the cases of illegal and unauthorized occupation by anyone, without any distinction---Accused seemed to be an illegal and unauthorized occupant of the premises, especially in circumstances when in order to prove his legitimacy, he submitted a bogus and fictitious stamp paper, for which an F.I.R. had also been registered against him---To reach a just and proper conclusion in a complaint filed under S. 3 of the Illegal Dispossession Act, 2005, recording of pro and contra evidence was required, which the Trial Court had failed to do and thus committed gross illegality---Pendency of civil litigation did not debar the complaint under the Illegal Dispossession Act, 2005---Court could not summarily dispose of the proceedings in the manner done by the Trial Court in the present case---Trial Court in its impugned order had not even discussed the F.I.R. registered against the accused regarding the bogus stamp paper---Constitutional petition was allowed, impugned order of the Trial Court was set-aside and the matter was remanded to the Trial Court for deciding the same afresh after recording pro and contra evidence.

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

----Ss. 3 & 4---Complaint under S. 3 of the Illegal Dispossession Act, 2005---Requirements to be examined by the court---Scope---For the purpose of attracting provision of S. 3 of the Illegal Dispossession Act, 2005, the court was required to examine, firstly, that the property was immovable property; secondly, that the person was the owner of the property or same was in his lawful possession; thirdly, that the accused entered into or upon the property unlawfully and fourthly, that such entry was with the intention to "dispossess" (ouster, evict or drive out of lawful possession a person, against his will) or to "grab" (capture, seize, take greedily or unfairly) or "control" (exercise power or influence, regulate or govern, or relate to authority over what was not in one's physical possession) or to "occupy" (holding possession or residing in).

Attique Shah for Petitioners.

Qamar Nadeem for Respondents.

Date of hearing: 9th May, 2012.

2012 M L D 1675

[Peshawar]

Before Mazhar Alam Khan Miankhel and Khalid Mahmood, JJ

SANA ULLAH---Petitioner

Versus

Mst. NASEEM BEGUM and 3 others---Respondents

Writ Petition No.1008 of 2010, decided on 29th June, 2012.

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

----S. 5, Sched.---Constitution of Pakistan Art. 199---Constitutional petition---Suits for recovery of dower, dowry and maintenance---Main grievance of the defendant was that as the plaintiff had withdrawn her case, on the basis of principle of res judicata; present suit was not maintainable---Said law point (issue of res-judicata) had properly been addressed by the Trial Court because for the subsequent events (i.e. cruelty, non-maintenance etc.,) the plaintiff had rightly brought the suit on the basis of "fresh cause of action"---Court, below after proper appreciation of evidence and in the light of the statement of both the parties had rightly granted decree of dower---Defendant had not filed appeal against decree, wherein the recovery of dowry articles had specifically been mentioned, which was granted to the plaintiff---Plaintiff (wife) was expelled by the defendant (husband) from his house and dowry articles were certainly left in the house of the defendant---Decree in respect of dowry articles, in circumstances, was rightly granted in favour of the plaintiff---Judgments of the both courts below being reasonable, equitable, just and proper, could not be interfered with, in circumstances---Constitutional petition was dismissed.

Malik M. Ajmal Khan for Petitioner.

Mian Hussain Ali for Respondents.

Date of hearing: 29th June, 2012.

2012 M L D 1691

[Peshawar]

Before Khalid Mahmood, J

Mst. NOOR JEHAN BIBI---Petitioner

Versus

ISLAM-UD-DIN through Legal Heirs and 9 others---Respondents

Civil Revisions Nos.470 and 604 of 2003, decided on 27th June, 2012.

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

----Arts.17 & 79---Specific Relief Act (I of 1877), Ss. 8, 42 & 54---Suit for declaration, perpetual injunction and possession---Claim of plaintiffs was that they were deprived from their respective Shari shares in the legacy of their deceased father and that defendants could not prove gift mutation in their favour by their late father---Defendants who claimed two gift mutations in their favour by the deceased owner of the property, being beneficiaries were obliged to have proved the same by producing cogent evidence, but they failed to produce the witnesses in support of the gift mutations---Defendants were obliged to have produced the Patwari Halqa, who entered the alleged mutations, Tehsildar who had attested the mutation and the other marginal witnesses of the mutations, but they failed to produce the said witnesses for the proof of suit mutations---Deceased being owner of the suit property was competent to have transferred his property in the shape of sale, mortgage, exchange, hibbah, tamleek, etc.; and in each case when the same mutations/deeds were challenged, the beneficiary was bound to prove the same by producing cogent evidence as prescribed under Arts.17 & 79 of Qanun-e-Shahadat, 1984, which the defendants had failed to prove---Appellate Court below without considering the legal and factual aspect of the impugned gift mutations had decided the case in cursory manner---Judgment of the Appellate Court was non-speaking, because evidence had not been properly appreciated nor the law laid down regarding the case had been discussed by the Appellate Court below---Judgments and decrees of both the courts below were set aside and suit filed by the plaintiffs was decreed as prayed for.

Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 ref.

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

(b) Remand---

----Justice should not be delayed, because delay in justice was denial of justice---In case of remand the parties would suffer mental and physical torture and would increase their agony.

Mst. Shahida Parveen v. Iqrar Ahmad Siddiqui 2010 SCMR 1119 ref.

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

----Ss. 39 & 52---Mutation---Mutation does not create title of the parties, and is only meant for the fiscal purpose and entries in the revenue record---Long standing entries in the revenue record would earn the presumption of truth and create rights of the concerned parties-Whenever a legal heir is deprived from due shari share, the question of limitation or any other unproved document, would create no hurdle for filing a suit regarding the entitlement in the legacy of the deceased.

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

Sher Muhammad Khan for Petitioner.

Abdul Halim Khan for Respondent.

Date of hearing: 26th June, 2012.

2012 M L D 1731

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

NOORANI GUL---Petitioner

Versus

GOVERNMENT OF N.-W.F.P. and others---Respondent

Civil Revision No.425 of 2003, decided on 19th March, 2012.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984) Arts. 126---Suit for declaration of title was decreed by Trial Court but said order of Trial Court was set aside by Appellate Court---Validity---Record revealed that it had been established that the plaintiff was in possession of the suit property since long and initially his father was in possession of the same since the time of the Ex-Ruler of Swat---Plaintiff although had not shown the origin of his ownership, but it was an admitted position that properties were originally owned by the Ex-Ruler of Swat who used to gift the same and this was normally done through verbal or oral means---Most people in the area of the suit property had nothing to show the origin of ownership except their longstanding possession---Defendants should have proved that the plaintiff though was in possession of the suit property but was not its owner as was required under Art. 126 of the Qanun-e-Shahadat, 1984---Plaintiff being the owner of the suit property, order of the Appellate Court was set aside and suit of the plaintiff was decreed---Revision was allowed, in circumstances.

Syed Tawakal Hussain and others v. Mst. Shamim Fatima Rizwi and others 1999 MLD 1, Aksar Ali and 2 others v. Fazal Karim and 11 others 1982 CLC (SC (AJ&K) 1309; Sardar Muhammad and 2 others v. Haider Zaman and 3 others PLD 1993 Pesh. 81 and Mst. Sanawar Jan v. Temash Khan PLD 1991 Pesh. 101(d) ref.

Muhammad Sher Shah for Petitioner.

Ikramullah Sehar, A.A.-G. for Respondent.

Date of hearing: 19th March, 2012.

2012 M L D 1761

[Peshawar]

Before Assadullah Khan Chamkani, J

NOOR ALI SHAH---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Application No.802-P of 2012, decided on 31st July, 2012.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324/34---Attempt to commit qatl-e-amd, common intention---Bail, grant of---Further inquiry---Accused and co-accused persons were alleged to have fired at the complainant from a short distance with the intention to kill him---Motive for the alleged incident was a previous blood feud---Complainant had thrown the net wide by charging three persons for causing injuries to him---Indiscriminate firing had been attributed to accused persons but only one empty was recovered---No bullet or blood was recovered from the spot---Distance between complainant and accused persons was 3 to 4 paces as per site plan, yet only injuries were sustained by complainant and one of the injuries bore charring marks--Discrepancy between the F.I.R., site plan and medico-legal report could be determined at trial stage---Case was one of further inquiry---Accused was admitted to bail, in circumstances.

Ishtiaq Ibrahim for Applicant.

Gul Daraz Khan for Respondent.

Abdul Fayaz Khan for the Complainant.

Date of hearing: 30th July, 2012.

2012 M L D 1786

[Peshawar]

Before Qaiser Rashid Khan, J

Mst. HABIBA BEGUM---Petitioner

Versus

Haji IQBAL-UD-DIN through Legal Heirs and 4 others---Respondents

Civil Revision Petition No. 32 of 2009, decided on 4th May, 2012.

Civil Procedure Code (V of 1908)---

----O.IX, R.8---Limitation Act (IX of 1908), Arts. 181 & 163---Dismissal of suit for non-prosecution---Scope---Limitation---Dismissal of suit in default of appearance of the plaintiff on a date not given by the Presiding Officer but by the Reader of the Court should not be treated to be a date of hearing within the meaning of O.IX, R.8, C.P.C.---Period of limitation in such a case would be governed by Art. 181, and not Art. 163 of the Limitation Act, 1908.

1983 SCMR 1092; 1995 SCMR 218; 2006 SCMR 789; PLD 1990 Kar. 227; PLD 1997 Pesh. 995; 2002 CLC 1272; 2003 YLR 1994; PLD 2004 Pesh. 38; 2005 CLC 333; 2007 YLR 2188 and 2009 CLC 351 ref.

Zainul Abideen for Petitioner.

Nemo for Respondent.

Date of hearing: 4th May, 2012.

2012 M L D 1795

[Peshawar]

Before Mazhar Alam Khan Miankhel and Fazal-i-Haq Abbasi, JJ

Mst. SHABNAM BIBI and 3 others---Petitioners

Versus

KHAN BADSHAH and 3 others---Respondents

Writ Petition No.2785 of 2010, decided on 28th February, 2012.

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

----Ss. 5 & 17---Civil Procedure Code (V of 1908), O. XXIII, R. 1---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dower and maintenance allowance---Res judicata, principle of---Applicability---Wife (petitioner) had filed a suit for recovery of maintenance allowance and dower, which included a house---Appellate Court had decreed the suit partially and excluded the house---Wife thereafter, filed application to withdraw the suit with permission to file a fresh suit, which was allowed during pendency of a constitutional petition filed by her---Wife subsequently filed a fresh suit for recovery of maintenance allowance and dower (including the house)---Courts below decreed the suit partially excluding her claim on the house, on the ground that the same was barred by the principle of res judicata---Validity---At the time of allowing the application of the wife for withdrawl of the suit it was not specifically held that the decree of Appellate Court was set aside, but when the original suit to the extent of the house was decreed/granted; was withdrawn and was no more in the field, then any subsequent order passed would automatically not remain in field---Permission to withdraw the suit to the wife was within the parameters of O. XXIII R. 1 of the C.P.C. and would not create any bar of res judicata---High Court set aside concurrent findings of the courts below---Constitutional petition was allowed, in circumstances.

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

---Preamble---Civil Procedure Code (V of 1908), Preamble---Although the provisions of the Civil Procedure Code, 1908 were not applicable in family matters, but the procedure provided in the C.P.C. to achieve the ends of justice could well be adopted by the courts seized of the matter.

Iftikhar Elahi for Petitioners.

Faridullah Khan for Respondent.

Date of hearing: 28th February, 2012.

2012 M L D 1812

[Peshawar]

Before Assadullah Khan Chamkani, J

MUHAMMAD SHERIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.925-P of 2012, decided on 10th August, 2012.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.419/420/468/471---Explosive Substances Act (VI of 1908), S.5---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, possessing explosives under suspicious circumstances---Bail, grant of---Further inquiry---Accused was apprehended at a police barricade and allegedly a hand grenade was recovered from his possession and he also did not posses any valid documents of the vehicle he was driving---Some of the offences alleged were bailable while others did not fall within the restrictive clause of S.497, Cr.P.C.---Prosecution had not collected any evidence or material to show that accused had possession of grenade for an unlawful purpose to carry out subversive activities or to cause damage to life or property---No opinion of any expert had been brought on file to show that hand grenade in question was live and could explode---Accused was neither a previous convict nor involved in similar offences in the past---Investigation Officer had not found any link of accused with militants---Case of further inquiry was made out, therefore, accused was granted bail.

M. Amin Khattak for Petitioner.

F.M. Sabir for the State.

Date of hearing: 10th August, 2012.

2012 M L D 1830

[Peshawar]

Before Attaullah Khan and Miftahuddin Khan, JJ

HAIDER KHAN and 10 others---Petitioners

Versus

ADDITIONAL CHIEF SECRETARY, FATA and 4 others---Respondents

Writ Petitions Nos.2693 and 2812 of 2011, decided on 23rd May, 2012.

Constitution of Pakistan---

----Art. 199---Lease for extraction of coal from mine---Cancellation of lease---Petitioners claimed to be owners of the area where coal mines were located---Authorities granted lease to respondent for a period of 15 years---Validity---Respondent was granted said lease after execution of "Qaumi Agreement", which agreement had shown that two of the petitioners were signatories of said agreement, which would mean that they were stopped by their own conduct to challenge said lease agreement---If the petitioners being 'Qaum' and owners of the leased out area in question were aggrieved of the lease agreement in favour of respondent they would have resorted to the relevant provisions of said agreement; and the matter should have been resolved by the Committee constituted for the purpose---Even if the Committee failed to resolve the matter, the petitioners would have approached the competent Authority which had granted licence and appeal should have been filed, but no such appeal was filed under N.-W.F.P. Mining Concession Rules---Matter in question pertained to factual controversy, High Court while sitting in writ jurisdiction, could not resolve that controversy, which required recording of evidence.

Wali Khan Afridi for Petitioner.

Arshad Javed Qureshi, Iqbal Ahmad Durrani, Jehanzaib Khan Muhammadzai, Qazi Javed Ihsanullah Qureshi, Abdul Latif Afridi and Lal Khattak Khan for Respondents.

Date of hearing: 23rd May, 2012.

2012 M L D 1846

[Peshawar]

Before Miftahuddin Khan and Irshad Qaiser, JJ

ALI REHMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.533 of 2010, decided on 30th July, 2012.

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

----Ss. 9(c) & 29---Smuggling of narcotic---Appreciation of evidence---Accused was on the driving seat of vehicle allegedly carrying narcotics and was driving the same at the time of occurrence---Date, time and arrest of accused from the spot, were not questioned during the course of cross-examination---Both prosecution witnesses who furnished ocular account, had made no departure from their earlier version and had fully supported the prosecution story---Said witnesses had remained fully consistent, coherent and had successfully faced the test of cross-examination and no material contradiction had been pointed out from their evidence---Minor contradictions pointed out by the counsel for accused, were not serious in nature, and those could never be considered sufficient to vitiate the trial, or make the recovery doubtful---Mere fact that said witnesses belonged to Anti-Narcotic Force, by itself could not be considered a good ground to discard their statements---Accused had not produced any convincing straightforward and coherent evidence---Accused though had produced defence, but he failed to prove his version of having no conscious knowledge of narcotics in the vehicle driven by him---Story narrated by accused in his statement under Ss.342 and 340(2), Cr.P.C., did not appeal to the prudent mind---Material contradictions existed in his statement, which had belied the story of accused---Witnesses produced by accused, had not toed the lines of accused in letter and spirit---Story narrated by accused was nothing, but a bull and cock story, while against him the story narrated by the prosecution witnesses, was natural, true and supported by the recovery of huge quantity of narcotics and the truck which was under the control of accused---Recovery witnesses were not shown to be motivated by any ill-will or enmity towards accused---Accused had failed to prove his case by producing convincing and strong evidence---Accused could not point out any mala fide or ulterior motive on behalf of seizing officer to falsely charge him for the recovery of huge quantity of narcotics recovered from the vehicle which was under his control---Appeal was dismissed.

PLD 2012 SC 38 and 2005 PCr.LJ 1151 ref.

2004 SCMR 1361; 2004 SCMR 988; 2010 SCMR 927; 2011 PCr.LJ Lah. 221; PLD 2007 Pesh. 135 and 1988 SCMR 1899 rel.

(b) Criminal trial---

----Appreciation of evidence---Police Officials as complainant---Police Officials were not prohibited under the law to be a complainant, if they were a witness to the commission of offence; and also to be Investigating Officers, so long as it did not in any way prejudiced the accused.

PLD 1997 SC 408 rel.

Nasrum-Minallah for Appellant.

Shakeel Ahmad for the State.

Date of hearing: 30th July, 2012.

2012 M L D 1854

[Peshawar]

Before Shah Jehan Akhundzada, J

NASREEN and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1081-P of 2012, decided on 23rd August, 2012.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Bail, grant of---Further inquiry---Accused persons were alleged to have launched an attack on the complainant party with weapons which resulted in the death of complainant's brother---Midnight occurrence---Accused persons were identified through their voice only---All accused persons were charged with effective firing but only one inlet wound was received by the deceased---Previous blood feud between parties was admitted---No confession made by accused persons after their arrest and nothing incriminating recovered from them---Case required further inquiry---Accused persons were released on bail, in circumstances.

Muhammad Murad and others v. The State 2009 SCMR 348 rel.

Ajmal Latif for Petitioners.

Arshad Hussain for the State.

Date of hearing: 23rd August, 2012.

2012 M L D 1868

[Peshawar]

Before Syed Sajjad Hassan Shah, J

SAHIB JAN---Petitioner

Versus

RIFATULLAH and another---Respondents

Civil Revision No.62 of 2009, decided on 7th June, 2012.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 5 & 2(d)---Civil Procedure Code (V of 1908) O. VII R. 11---Suit for pre-emption---Maintainability---"Sale"---Connotation---Plaint of the plaintiff was rejected by Trial Court inter alia on the ground that the sale mutation of the suit land was cancelled at the instance of defendants; and said order of Trial Court was upheld by Appellate Court---Validity---Plaintiff had fulfilled requirements of Talb-e-Muwathibit by declaration made on attaining the knowledge of the sale transaction in presence of the informer at the given date, time and place after which notices of Talb-e-Ishhad had been attested by two witnesses which were sent through registered post---Suit was filed within the period of limitation and Talb-e-Khusamat had also been performed---Suit of the plaintiff was legally maintainable and plaintiff had the cause to institute the suit and was thus triable---Expression "sale" as defined in the Khyber Pakhtunkhwa Pre-emption Act, 1987 was the transfer of ownership of an immoveable property in exchange for valuable consideration and same had nothing to do with attestation of mutation and could be considered effective from the date it was entered into---Non-attestation of mutation or registration would not affect its means and objects as the parties had entered into a sale transaction in respect of an immovable property and received sale consideration---Subsequent attestation of mutation or its cancellation would not destroy its validity or propriety---Subsequent cancellation of sale mutation to defeat rights of the prospective pre-emptor would not affect the rights of such a pre-emptor to seek possession through filing of a pre-emption suit---Order of Trial Court was set aside and Trial Court was directed to proceed with the suit in accordance with law---Revision was allowed, in circumstances.

Muhammad Subhan and others v. Mir Qadam Khan and others 2001 MLD 1716 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 2(d)---"Sale"---Connotation---Non-attestation of sale mutation---Scope and effect---Expression "Sale" as defined in the Khyber Pakhtunkhwa Pre-emption Act, 1987 was the transfer of ownership of an immoveable property in exchange for valuable consideration and same had nothing to do with attestation of mutation and could be considered effective from the date it was entered into---Non-attestation of mutation or registration would not affect its means and objects as the parties had entered into a sale transaction in respect of an immovable property and received sale consideration---Subsequent attestation of mutation or its cancellation would not destroy its validity or propriety---Subsequent cancellation of sale mutation to defeat rights of the prospective pre-emptor would not affect the rights of such a pre-emptor to seek possession through filing of a pre-emption suit.

Muhammad Subhan and others v. Mir Qadam Khan and others 2001 MLD 1716 rel.

Muhammad Anwar Awan for Petitioner.

Nemo for Respondents.

Date of hearing: 7th June, 2012.

2012 M L D 1884

[Peshawar]

Before Mian Fasihul Mulk and Shah Jehan Akhundzada, JJ

NAVEED SHAHZAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.102 of 2010, decided on 7th August, 2012.

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

----Ss. 9(c) & 29---Possessing and trafficking narcotics---Appreciation of evidence---Trial Court, had rightly found that prosecution had undoubtedly established the recovery of contraband charas weighing 99 Kgs. and heroin powder weighing 4 Kgs. from the secret cavities of vehicle driven by accused, regarding which he had full knowledge---Witnesses who appeared in the Trial Court against accused had no enmity or malice against him---Though witnesses were officials of Anti-Narcotic Force, but in the absence of enmity or grudge, they were as competent witnesses as other public witnesses; and their testimony could not be discarded or brushed aside on the sole ground that they were members of Anti-Narcotic Force---All the prosecution witnesses who had witnessed the recovery of the contraband from the vehicle being driven by accused, had remained consistent so far as the time, place and mode of recovery was concerned, despite lengthy cross-examination by the defence---No reason existed to discard their testimony---Trial Court had rightly rejected defence version of accused after considering each and every piece of evidence on record before recording conviction against accused---Prosecution had successfully established its case through confidence inspiring evidence of eye-witnesses, which was not at all shattered by the defence during cross-examination---Report of Forensic Science Laboratory in respect of the samples separated from lot of contraband, was in positive---Accused had not discharged his burden within the meaning of S.29 of Control of Narcotic Substances Act, 1997---Impugned judgment and order of the Trial Court was well founded and needed no interference---Conviction and sentence of accused was maintained and appeal being devoid of force, was dismissed.

Muhammad Shah v. State 2010 SCMR 1009 and Gul Meer v. State 2011 YLR 411 distinguished.

Ismaeel v. State 2010 SCMR 27 rel.

Ms. Farhana Marwat for Appellant.

Said Rehman for Respondents.

Date of hearing: 7th August, 2012.

2012 M L D 1945

[Peshawar]

Before Assadullah Khan Chamkani, J

MUHAMMAD WAHEED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Applications Nos.1142-P and 1132-P of 2012, decided on 17th August, 2012.

Criminal Procedure Code (V of 1898)---

--S. 497---Penal Code (XLV of 1860), S. 161---Prevention of Corruption Act (II of 1947), S.5(2)---Public servant taking gratification other than legal remuneration in respect of an official act,, criminal misconduct---Accused persons (Sanitary Officers of Health Department) allegedly took bribe from the complainant, which amount was subsequently recovered from them after trap proceedings/raid was conducted by Judicial Magistrate---Offence alleged did not fall within the prohibitory clause of S. 497, Cr.P.C, as it entailed punishment which might extend to seven years---Grant of bail was a rule and refusal an exception, for offences which carried punishment up to ten years or less---Accused persons were granted bail, in circumstances.

Muhammad Asif for Petitioner.

Matiullah Baloch for the State.

Date of hearing: 17th August, 2012.

2012 M L D 1960

[Peshawar]

Before Khalid Mahmood, J

TAIMUR KHAN---Petitioner

Versus

D.P.O., HARIPUR and others---Respondents

Writ Petition No.621 of 2010, decided on 5th September, 2012.

Police Rules, 1934---

----Rr.23.4 & 23.9---Constitution of Pakistan, Art.199---Constitutional petition---Entering a person's name in Surveillance Register No. X without issuing him a show cause notice---Legality---No embargo existed on the police to enter the name of any absconder, convict, hardened, desperate or person habitual to crime in the Surveillance Register No. X, however, the person whose name was so entered in the said register should know the facts on the basis of which he was declared history sheeter in the prescribed register---Police while passing an order for entering the name of the history sheeter in the prescribed register had to issue a show. cause to the person concerned---No notice was issued to the petitioner in the present case, therefore, opening of history sheet against him and entering his name in Bundle B of Surveillance Register maintained by the police, was without lawful authority and of no legal effect---Constitutional petition was allowed accordingly.

Rana Muhammad Afzal v. Inspector General of Police, West Pakistan Lahore and another PLD 1974 SC 31; Sardar Malik Jan v. The State and 3 others PLD 2007 Pesh. 116 and Malik Khan Afsar v. The State and 3 others PLD 1992 Pesh. 114 rel.

Saeed Akhtar Khan for Petitioner.

M. Nawaz Khan Swati, A.A.-G. for the State.

Date of hearing: 5th September, 2012.

2012 M L D 1970

[Peshawar]

Before Khalid Mehmood; J

JAMIL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.306 of 2012, decided on l.6th July, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/353/186/34---West Pakistan Arms Ordinance (XX of 1965), S. 13--Qatl-e-amd, attempt to commit Qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public function, common intention, possession of illegal weapons---Bail, refusal of Allegation against the accused and co-accused was that they committed the murder of a police official and also made an attempt on the lives of other police officials by resorting to indiscriminate firing---Accused was directly charged in a promptly lodged F.I.R.---Medical report fully supported the prosecution version---Accused resorted to indiscriminate firing which resulted in the death of a police official- Attempt to commit murder of other police officials was also made---Accused was arrested on the spot along with his weapon---Empties recovered from the spot were sent to arms expert along with the recovered weapon, and the report received in this behalf was also positive---Prima facie, accused was found reasonably connected with the commission of an offence, which fell within the prohibitory clause of S. 497, Cr. P.C---Bail application of accused was dismissed accordingly.

Khursheed Azhar for Petitioner.

M. Nawaz Khan Swati, A.A.-G. for the State Maqbool Hussain for the Complainant.

Date of hearing: 16th July, 2012.

2012 M L D 32

[Balochistan]

Before Jamal Khan Mandokhail and Abdul Qadir Mengal, JJ

NATIONAL HIGHWAY AUTHORITY through General Manager---Petitioner

Versus

MEHRULLAH KHAN and another---Respondent

Civil Miscellaneous Application No.14 of 2007, decided on 16th August, 2011.

Land Acquisition Act (I of 1894)---

----S. 18 (3) [as amended by Land Acquisition (Balochistan Amendment) Ordinance (V of 2000), S. 2]---Civil Procedure Code (V of 1908), O. XX, R. 5---Appeal by acquiring authority---Maintainability---Acquiring authority was aggrieved of increase of compensation made by Trial Court on reference filed by landowners---Plea raised by acquiring authority was that judgment passed by Trial Court was violative of the provisions of O.XX, Rule 5, C.P.C.---Contention of landowner was that appeal was not maintainable as same could only be filed by Provincial Government and not by the acquiring authority---Validity---In view of the amendment in law, authority for whom land was to be acquired had the right to file appeal, thus appeal was rightly and competently filed by acquiring authority---Trial Court while deciding reference neither framed any issue nor called any evidence to ascertain the contents of reference or to consider objections filed by acquiring authority---Provisions of Civil Procedure Code, 1908, were applicable to proceedings under Land Acquisition Act, 1894, as far as procedure for conducting the case and decision of reference was concerned---By not adopting proper procedure i.e. framing of issues and recording of evidence, Trial Court acted illegally and unlawfully---Judgment passed by Trial Court was not in conformity with the provisions of O.XX, R. 5 C.P.C. and the same was an illegality and irregularity on the part of Trial Court---High Court set aside the judgment passed by Trial Court and remanded the matter for decision afresh after framing of issues, recording of evidence and hearing the parties---Appeal was allowed in circumstances.

Pakistan Atomic Energy Commission and others v. Land Acquisition Collector and others 2008 SCMR 1280 distinguished.

Muhammad Qahir Shah for Appellant.

S.A.M. Quadri for Respondent No.1

2012 M L D 63

[Balochistan]

Before Muhammad Noor Maskanzai, J

MUHAMMAD and 7 others---Petitioners

Versus

MUHAMMAD---Respondent

Civil Revision No.22 of 2006, decided on 19th August, 2011.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Declaration of title and permanent injunction---Judgments at variance---Principles---Plaintiffs claimed to be owners in possession of suit land and alleged that defendant was interfering into their lawful possession---Trial Court decreed the suit in favour of plaintiffs but Lower Appellate Court dismissed the same---Validity---Version of plaintiffs was self-contradictory as according to plaint a piece of barren land was given to defendant by a deceased brother of plaintiffs for cultivation with a condition that Rs.10,000 was to be paid to plaintiffs and embankment was to be constructed at the expenses of defendant---Till the life time of deceased brother, the defendant abode by the terms but thereafter resiled---Suit for declaration was not competent and plaintiffs were required to have filed a suit for specific performance of agreement---Lower Appellate Court properly appreciated the material available on record and rightly drawn conclusions, which were not open to exception and findings of Appellate Court deserved due weight---High Court declined to interfere in judgment and decree passed by Lower Appellate Court---Revision was dismissed in circumstances.

Sahib Dad v. Inam and 4 others PLD 1985 Quetta Page 69; Abdul Nabi and 29 others v. Jan Muhammad and 26 others 1998 CLC 1998 1842 and Mst. Mumtaz Begum v. Allauddin and 2 others PLD 1993 Quetta 37 rel.

Muhammad Ibrahim Lehri, for Petitioner.

Taj Muhammad Mengal for Respondents.

Date of hearing: 22nd July, 2011.

2012 M L D 134

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

Mst. KUBRA KHANAM and another---Appellants

Versus

ANJUMAN-E-IMAMIA ASSN-E-ASHRIA (REGD)---Respondent

F.A.O. No.75 of 2009, decided on 28th September, 2011.

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

----S. 13---Constitution of Pakistan, Arts. 23 & 24---Ejectment petition---Demised shops being part of Imam Bargah---Bona fide personal need of landlord of demised shops---Proof---Landlord being a registered Anjuman was running and managing affairs of Imam Bargah---Demised shops were part and portion of Imam Bargah---Landlord, in order to run its religious affairs was holding "mahafil" and "majalis" and for purpose of "za-e-reens", who used to come from different part of country and stay in Imam Bargah before proceeding to ziarat of Holy Shrines in Iran, Iraq and Syria---Evidence on record showed that existing accommodation available with landlord was inadequate and not sufficient to cater requirement for "mahafil" and "majalis" fully and completely---Tenant had failed to shatter veracity of statements of landlord and its witnesses that landlord was not in need of demised premises---Right of property as fundamental right was protected under Arts. 23 & 24 of the Constitution---Right of ownership was superior than right of tenancy---Tenant being inferior in status regarding utilization of demised shops could not determine sufficiency or insufficiency of landlord's requirement---Ejectment petition was accepted in circumstances.

Messrs F.K. Irani and Co. v. Begum Feroze 1996 SCMR 1178 rel.

(b) Natural justice, principles of---

----"Audi alteram partem" (no one should be condemned unheard), principle of---Scope---Such principle would be deemed to be part of every statute, unless its application was specifically excluded.

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

----S.13---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Ejectment proceedings---Presumption of truth would attach to such proceedings carried out by Rent Controller.

Manzr Siddique for Appellants.

Mujeeb Ahmed Hashmi for Respondent.

Date of hearing: 16th September, 2011.

2012 M L D 158

[Balochistan]

Before Muhammad Hashim Khan Kakar and Jamal Khan Mandokhail, JJ

SHER AHMED---Petitioner

Versus

KHUDA-E-RAHIM---Respondent

C.P. No.495 of 2011, decided on 13th October, 2011.

(a) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)---

----Ss. 4, 5 & 5-A(7)---Penal Code (XLV of 1860), Ss. 302/34---Double murder on allegation of siyahkari---Conviction of accused after his trial in absentia---Validity---According to provisions of Ss. 4 & 5 of Suppression of Terrorist Activities (Special Courts) Act, 1975, an accused could be tried in absentia, where court was satisfied that such absence was deliberated with a view to impede course of justice---Court had ordered publication of proclamation against accused in three newspapers, but none of such newspapers was available on record---Special Court had failed to observe codal formalities prior to declaring accused as absconder in circumstances.

Zaiullah Khan v. Khan v. Govt. of Punjab PLD 1989 Lah. 554 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.

(b) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)---

----Ss. 4 & 5---Penal Code (XLV of 1860), Ss. 302/34---Anti-Terrorism Act (XXVII of 1997), Ss. 3, 6, 13 [as amended by Anti-Terrorism (Amendment) Ordinance (XXXIX of 2011)] & 39(1)---Constitution of Pakistan, Arts. 9 & 199---Constitutional petition---Double murder on allegation of siyahkari---Conviction and sentence awarded to accused on 27-10-1999 by Special Court after his trial in absentia---Order of Sessions Judge suspending such conviction/ sentence and directing fresh trial of accused on his application made in November, 2010 under S. 5-A(7) of Suppression of Terrorist Activities (Special Courts) Act, 1975---Validity---Special Court was not in existence on the date of such application, rather its successor forum i.e. Anti-Terrorism Court established under Anti-Terrorism Act, 1997, was in existence---Suppression of Terrorist Activities (Special Courts) Act, 1975 was repealed vide S. 39(1) of Anti-Terrorism Act, 1997, but acts done under Act of 1975 were given due protection by S. 39(2) of the Anti-Terrorism Act, 1997---Accused had committed double murder on bald allegation of siyahkari in a brutal manner by means of firing with kalashinkov---Such act of accused being a Scheduled offence fell within ambit of S. 6(ii)(g) of Anti-Terrorism Act, 1997 and his case was exclusively triable by Special Court constituted under S. 3 thereof---Neither law nor religion permitted so-called honour killing, which amounted to murder---Such iniquitous and vile act of accused was violative of Art. 9 of the Constitution---Present case was instituted under repealed Act of 1975, whereunder accused could be punished by Judge of Anti-Terrorism Court, if prosecution succeeded to establish his guilt---High Court set aside impugned order and directed Sessions Judge to transmit main case along with such application to concerned Anti-Terrorism Court for its decision in accordance with law.

Muhammad Akram Khan v. The State PLD 2001 SC 96 rel.

Abdul Ghani Mashwani for Petitioner.

Muhammad Qahir Shah for Respondent No.1.

Amanullah Kanrani, Advocate General and Miss Sarwat Hina, Addl. P.G. for the State.

Date of hearing: 29th August, 2011.

2012 M L D 224

[Balochistan]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

MUHAMMAD HAYAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.(s)19 and Murder Reference No.3 of 2008, decided on 6th October, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---All the prosecution witnesses were inter se related, as well as closed to the deceased---Mere relationship with the deceased by itself was not sufficient to discard their evidence---All the witnesses had fully supported the prosecution version and the defence had failed to create any dent in their veracity---Said witnesses were residents of same village and their presence at the time and place of occurrence, could not be doubted by any degree of seriousness---Occurrence having taken place in broad daylight, neither any question of mistaken identification, nor substitution would arise at all---Evidence of said witnesses did not suffer from any material contradiction or discrepancy, but was consistent with the probabilities materially fitting in with the other evidence, more particularly the medical evidence supported by the recovery of crime weapon from the possession of accused and positive report of Firearm Expert---Besides ocular account, furnished by two prosecution witnesses, the prosecution had also placed reliance on the last seen evidence furnished by a witness---Accused had been nominated with specific role of firing in the promptly lodged F.I.R.; it was not believable that complainant would involve accused falsely and would allow the real culprits to go scot-free---Positive report of Firearms Expert, further corroborated the ocular evidence furnished by prosecution witnesses---Prosecution had proved its case against accused beyond shadow of doubt---Counsel for accused had not been able to point out any illegality in findings of fact, recorded by the Trial Court, which could persuade to hold that they were against the evidence produced on record---Impugned judgment passed by the Trial Court was neither perverse, nor arbitrary nor against the evidence on file---Order of the Trial Court whereby accused was convicted was upheld.

2000 SCMR 727 rel

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Circumstantial evidence---Capital punishment could be based on circumstantial evidence, provided all circumstances constituted chain and no link was missing; and their combined effect was that the guilt of accused was established beyond shadow of doubt.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Counsel for accused was quite justified, while not challenging the conviction awarded to accused on merits, as the prosecution had proved its case against accused beyond the shadow of doubt---Motive as it was mentioned in the F.I.R. had not been proved by cogent evidence---Capital punishment, was not at all warranted, in circumstances---Sentence of death of accused was converted into imprisonment for life---Amount of compensation to the legal heirs of deceased as provided under S.544-A, Cr.P.C., would remain intact---Benefit of S.382-B, Cr.P.C. would also be extended to accused.

Muhammad Ishaq Khan and others v The State and others PLD 1994 SC 259 rel

Ahsan Rafiq Rana for Appellant (in Criminal Appeal No.(s) 19 of 2008).

Anwar-ul-Haq for the Complainant (in Criminal Appeal No.(s) 19 of 2008).

Abdullah Kurd Addl. P.G. for the State (in Criminal Appeal No.(s) 19 of 2008).

Abdullah Kurd Addl. P.G. for the State (in Murder Reference No.3 of 2008)

Anwar-ul-Haq for the Complainant (in Murder Reference No.3 of 2008)

Ahsan Rafiq Rana for Appellant (in Murder Reference No.3 of 2008)

Date of hearing: 29th September, 2011.

2012 M L D 285

[Balochistan]

Before Muhammad Noor Meskanzai and Naeem Akhtar Afghan, JJ

Mir HAZAR KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.89 of 2007, decided on 18th July, 2011.

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

----S. 9(c)---Possessing narcotics, arms and ammunition---Appreciation of evidence---Prosecution had proved its case beyond reasonable doubt that the narcotics along with arms and ammunitions were recovered from the house in possession of accused---Disclosure, followed by the statement recorded under S.161, Cr.P.C. coupled with the recovery of contraband items and the arms and ammunitions from the conscious possession of accused, had proved the case against accused to the hilt---Despite lengthy cross-examination, the defence had failed to create any dent or doubt in the prosecution case---Witnesses remained firm and the evidence so recorded inspired confidence---Prosecution evidence was straight, consistent, believable and there seemed no reason to disbelieve the same---Statements of prosecution witnesses had clearly established the guilt of accused---Prosecution had succeeded to produce sufficient material against accused and had successfully established the case against accused beyond any shadow of reasonable doubt---Accused was rightly convicted and sentenced, in circumstances.

(b) Criminal trial---

----Statement of hostile witness---Scope---Statement of a hostile witness could not be discarded as a whole, if the statement would find support from the rest of the material, and in such circumstances, same could be taken into consideration.

Syed Ayaz Zahoor for Appellant

Abdul Sattar Durrani, Addl: P.G. for the State.

Date of hearing: 30th June, 2011.

2012 M L D 325

[Balochistan]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

MUHAMMAD ALI alias KHAMISA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.(s)17 of 2008, decided on 11th August, 2011.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Complainant, who was not only the resident of village concerned, but was also accompanying the deceased at the time of incident, had fully supported the prosecution version, narrated a straightforward and confidence inspiring story and despite lengthy cross-examination, remained firm and nothing material was brought on record to doubt his veracity, except a few minor contradictions not affecting the intrinsic value of his statement---Presence of complainant at the relevant time could not be doubted, nor his statement could be discarded only on the ground that he was related to the deceased, because he had no ill-will or motive to falsely implicate accused in the commission of the offence---Defence had failed to lay down foundation for substitution of accused in place of real culprit---F.I.R. was promptly lodged, wherein accused was nominated---Prior to lodging of F.I.R., no deliberation was made nor any time was taken by the complainant to concoct the story---One of the prosecution witnesses was dropped on the request of District Attorney, being won over by the defence---Other prosecution witness could not be produced due to his migration to some unknown destination---Non-production of said witness was neither deliberate, nor an attempt on the part of prosecution to withhold its evidence---Occurrence having taken place in broad daylight, no question of mistaken identification arose at all---Complainant's evidence did not suffer from any material contradiction, discrepancy or inherent infirmity, his evidence was supported by medical evidence, recovery of shotgun from the possession of accused and positive report of Firearm Expert---Star witness, though was father of the deceased, but only on account of relationship with deceased, he could not be termed as interested witness as he had no direct animosity with accused, who had been attributed fatal injuries to the deceased---Ocular account, furnished by the complainant was corroborated by the alleged motive, which had been stated to be an allegation of 'Siyah-kari'---Accused did not enter into witness box to face test of cross-examination---Prosecution had successfully proved that accused had committed the murder of deceased---Trial Court, after proper appraisal of evidence, had rightly found accused guilty of the offence which did not call for any interference by High Court.

2000 SCMR 727 and 1999 PCr.LJ 1179 rel

Nadir Ali Chalgari for Appellant

Abdullah Kurd for the State

Date of hearing: 4th August, 2011.

2012 M L D 365

[Balochistan]

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

QADIR BAKHSH and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.(s)37 of 2011, decided on 25th August, 2011.

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

----Ss. 302(b)/149---Qatl-e-amd---Appreciation of evidence---Solitary witness---Conviction can be based on the evidence of a solitary witness if he is found to be truthful and his evidence corroborated by other independent evidence inspires confidence.

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

----Ss. 302(b)/149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-e-amd---Appreciation of evidence---Solitary eye-witness had not only made dishonest improvements in his statement at the trial, but he being a resident of a far-off place was a chance witness and he had not shown any specific reason for his being present at the scene of occurrence---Conduct of the said eye-witness on the spot was offensive to normal human behaviour and his presence thereat could not be believed---Unexplained delay of two and a half hours in lodging the F.I.R. had led to the inference of cooking a concocted story by deliberation---Medical evidence had belied the ocular testimony---Withholding of an independent eye-witness mentioned in the F.I.R. by the prosecution had led to an adverse inference under Art.129(g) of Qanun-e-Shahadat, 1984---Said eye-witness had been examined as a defence witness and he had categorically stated that the present accused were not the culprits in the case---Two sticks recovered as weapons of offence did not assist the prosecution as the same were not shown to be stained with human blood---Prosecution evidence was replete with doubts, benefit of which had to be given to accused as a matter of right---Accused were acquitted in circumstances.

1972 SCMR 28; 1996 SCMR 167 and Tariq Pervez v The State 1995 SCMR 1345 ref

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

----Ss. 302(b)/149---Qatl-e-amd---Appreciation of evidence---Benefit of doubt, extension of---Principle---Benefit of every doubt must accrue in favour of accused as a matter of right and not of a grace.

Tariq Pervez v. The State 1995 SCMR 1345 ref

Muhammad Aslam Chishti for Appellants

Abdullah Kurd for the State

Date of hearing: 11th August, 2011.

2012 M L D 401

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

Mullah GUL MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.77 of 2010, decided on 19th July, 2011.

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

----Ss. 322 & 337-L(2)---Qatl-bis-sabab, hurt---Appreciation of evidence---Benefit of doubt---Accused was not nominated in the F.I.R., which had been registered after preliminary inquiry---Accused was implicated in the case on the basis of the statements of the victims---No identification parade was held after arrest of the accused---Victims who were also eye-witnesses of the occasion had identified the accused for the first time before Trial Court, but they being not previously familiar to the accused, said identification needed corroboration, which was lacking---Mere identification of accused before the court was not enough---Investigating Officer had failed to collect important evidence---Evidence of the said witnesses regarding identity of accused, therefore, could not be relied upon---Accused had been described as the owner of the Hotel from where the victims had been boarded on the container and proceeded to the deadly journey, but no interrelation of the accused with the said Hotel was established on record---Accused even was not proved to run the business of said Hotel---Prosecution had failed to connect the accused with the commission of the offence---Accused was acquitted on benefit of doubt in circumstances.

Farman Ali v. The State 1997 SCMR 971; Muhammad Azam v. The State 1997 SCMR 1489 and Asghar Ali v. The State 1992 SCMR 2088 ref

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

----Art. 22---Identification parade---Holding of identification test becomes necessary in the case where names of the culprits are not given in the F.I.R.---Holding of such test is a check against false implication and it is a good piece of evidence against the genuine culprits.

Farman Ali v. The State 1997 SCMR 971 ref.

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

----Ss. 322 & 337-L(2)---Qatl-bis-sabab, hurt---Identification of accused in court---Legal requirement---Identification in court of the accused who was produced months after the event cannot satisfy the requirement of law for proving the identity of the culprit.

Asghar Ali v. The State 1992 SCMR 2088 ref.

Wali Khan Nasar for Appellant.

Haji Liaquat Ali for the State.

Date of hearing: 3rd November, 2010.

2012 M L D 466

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ

ZAFFAR---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.32 of 2010, decided on 22nd December, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---There being no eye-witness of the occurrence, prosecution case rested upon circumstantial evidence---Judicial confession made by accused was not voluntary and was a result of torture---Deceased was lastly seen not in the company of accused, but of co-accused---Axe stained with human blood allegedly recovered at the instance of accused was sent to Forensic Science Laboratory after an unexplained delay of one and a half months and the positive report of the said Laboratory did not show that the blood found on the axe was of the same group as that of the deceased---Even otherwise, evidence of recovery of crime weapon being only of corroboratory nature, by itself was not sufficient for conviction in the absence of direct or substantive evidence---Similarly, the positive report of the expert for the same reason could not be made a basis for holding the accused guilty---Recovery of the dead body of the deceased from the house of accused alone would not prove that the deceased had been killed by him---No other evidence was available on record to connect the accused with the crime---Accused was acquitted in circumstances.

State v. Muhammad Yaqoob PLJ 2000 SC 1863 and Bashir Ahmed v. The State PLJ 1974 Cr.C. Lah. 460 ref.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Principles---Universally recognized principle of law is that conviction must be based on unimpeachable evidence and certainty of guilt---Any doubt that arises in the prosecution case must be resolved in favour of the accused---Imperative for the court to examine and consider all the relevant events, preceding and leading to the occurrence, so as to arrive at a correct conclusion---When the evidence examined by the prosecution is found inherently unreliable and against natural course of human conduct, then the conclusion must be that the prosecution has failed to prove the guilt beyond reasonable doubt.

Miss Shabana Azeem for Appellant.

Abdul Sattar Durrani, A.P.-G. for the State.

Date of hearing: 7th December, 2011.

JUDMGENT

MUHAMMAD HASHIM KHAN KAKAR, J.---Pauper appellant Zafar son of Mushtaq has challenged the validity of judgment dated 30th August, 2010, passed by the Sessions Judge, Mekran at Turbat, by means of instant Criminal Jail Appeal No.32 of 2010 sent through Superintendent, District Jail, Turbat, whereby he was convicted and sentenced under section 302(b) of the P.P.C. to suffer life imprisonment and to pay an amount of Rs.100,000 (rupees one hundred thousand only) as compensation to the legal heirs of deceased Aqeel, in default whereof to further undergo S.I. for six (6) months, with the benefit of section 382-B of the Cr.P.C.

1. On 20th February, 2010, complainant Adil (P.W.1) in his written application (Exh.P/1-A), addressed to Station House Officer (S.H.O.), Police Station. Turbat, alleged that last night, he, along with his brother Aged, was sitting in their Bhaitak, when at about 11-00 p.m., Nooral and Faisal came there on a motorcycle and since his brother was their friend, therefore, he accompanied them on their call. The complainant further alleged that at about 4-00 a.m., Fazeel, who happens to be the brother of Nooral, informed him telephonically that his brother Aqeel is admitted in the emergency ward of civil hospital, Turbat in injured condition. On that, he, along with Hanif, Fareed Ahmed and Abdul Majeed, rushed to the hospital and reached there at about 5-00 a.m., where he saw the dead body of his brother lying in the emergency ward. The complainant also alleged that when they reached hospital, Fazeel, Nooral, Faisal and Zafar were present there and or their arrival, they left the hospital premises. Consequently, a case vide Crime No 12 of 2010, under section 302 read with section 34 of the P.P.C. was registered against the above named accused persons at Police Station City, Turbat.

2. After registration of F.I.R. Exh.P/7-A, the investigation of the case was entrusted to P.W.7 Riaz Hussain, S.-I., who went to civil hospital along with other police officials, where the dead body of the deceased was lying, which was taken into possession vide memo. Exh.P/2-A and its inquest report Exh.P/7-B was prepared. He released the dead body of the deceased to his heirs without conducting postmortem examination on their request. He recorded the statements of P.Ws. and, thereafter, went to the place of occurrence, where on the pointation of the complainant, he prepared site sketch Exh.P/7-C, secured blood-stained earth of the deceased vide memo. Exh.P/2-B. On the spot, the father of accused persons Faisal and Zafar, namely, Mushtaq produced before him a pair of black shoes, which were taken into possession vide memo. Exh.P/2-C. He arrested the accused persons and during course of interrogation, accused Zafar made disclosure about the commission of the offence and in consequence whereof, recovery of crime weapon i.e. axe was effected on his pointation from the courtyard of his house which was taken into possession vide recovery memo. Exh.P/3-A and site sketch of the place of recovery was prepared vide memo. Exh.P/7-D. The accused also pointed out the place of occurrence, at which memo of pointation Exh.P/3-B was prepared. Thereafter, he went to police station, where the brother of the deceased i.e. complainant produced the blood-stained clothes of the deceased, which were taken into possession vide recovery memo. Exh.P/2-D. He sent the blood-stained articles etc. to FSL for analysis, obtained medico legal certificate regarding the deceased from the doctor concerned. During course of investigation, co-accused Nooral was brought by his father to police station and he was taken into police custody. He got recorded the confessional statement of accused Zafar under section 164, Cr.P.C. through Judicial Magistrate concerned and in view of the confessional statement recorded by accused/appellant Zafar, he sent the papers to SP investigation for guidance and since there was no evidence against the co-accused persons, therefore, they were discharged under section 169 of the Cr.P.C., whereas, after completion of the investigation, the documents were placed before the S.H.O. concerned, who prepared incomplete challan Exh.P/7-E. On receipt of FSL report Exh.P/7-F, supplementary challan Exh.P/7-G was prepared and the appellant was sent to face the trial.

3. On the state allegation, a formal charge was framed and read over to the appellant, to which he did not plead guilty and claimed trial. To prove the accusation, the prosecution produced seven witnesses. P.W.1 Adil is complainant of the case, who placed on record his written application Exh.P/1-A. P.W.2 Javed Ali, on receiving information about the death of deceased, reached Civil Hospital, where he stood mushir to recovery memos. Exh.P/2-A, Exh.P/2-B, Exh.P/2-C and Exh.P/2-D. P.W.3 Muhammad Ikram is witness to the recovery of crime weapon i.e. axe on the disclosure and pointation of accused Zafar, which was taken into possession vide recovery memo Exh.P/3-A as well as memo of pointation Exh.P/3-B. P.W.4 Dr. Kahoor Khan, Senior Medical Officer, DHQ Hospital, Turbat, examined the dead body of the deceased and issued certificate Exh.P/4-A. P.W.5 Muhammad Hanif took the complainant to hospital in his Suzuki vehicle, where he saw the brother of the complainant dead. P.W.6 Inayatullah, Judicial Magistrate, recorded the confessional statement of the accused and produced the same as Exh.P/6-B and certificate Exh.P/6-C and P.W.7 Riaz Hussain, S.-I., is the investigating officer of the case. Then the prosecution closed its side.

4. The accused was examined under section 342 of the Cr.P.C., wherein he once again denied the prosecution allegation. He did not opt to record his statement on oath as provided under section 340(2) of the Cr.P.C., nor produced any witness in his defence.

5. On conclusion of the trial, the trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced, as mentioned and detailed above, whereas the co-accused persons were acquitted of the charge.

6. We have heard the learned counsel for the pauper appellant as well as the counsel for the State and have gone through the record with their valuable assistance. It has been argued by the learned counsel for the pauper appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. On the contrary the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and therefore, the present appeal deserves dismissal.

7. Reappraisal of evidence would show that there is no eye-witness of the incident and the case of the prosecution mainly rests upon the judicial confession of the appellant, the recovery of crime weapon "axe" on his pointation and the expert's report, showing that the axe was stained with human blood. It is the case of prosecution that on the fateful night at about 11-00 p.m. one Nooral and Faisal came to the house of complainant on a motorcycle and deceased Aqeel accompanied them on their call and, subsequently, at about 4-00 a.m. one Fazeel, who happens to be the brother of Nooral, informed the complainant through telephone call regarding the injuries sustained by deceased Aqeel. On receiving this information, complainant, along with Hanif, Fareed Ahmed and Abdul Majeed, rushed to the hospital, where they found the dead body of deceased Aqeel, lying in the emergency ward.

8. The record is indicative of the fact that the appellant Zafar was arrested on 20th February, 2010, while his confessional statement was recorded on 1st March, 2010, after a delay of about 11 days. We have examined the confessional statement and found that the Magistrate, after performing requirements of law and giving a time of 15 minutes, recorded the same and he was of the opinion that the confession was true and voluntary. Admittedly, there is no hard and fast rule as to how much time is to be allowed to the accused for reflection before confession is recorded. However, period of time depends on each case. In the present circumstances of the case, we find that the period given by the Magistrate for reflection purposes to the appellant Zafar Mushtaq was not sufficient and it has caused prejudice to the appellant, specially keeping in view the fact that it has been recorded after 11 days of his arrest, thus, the lapse by the Magistrate in recording of confessional statement is fatal to the evidentiary value of confession, which adversely affected the voluntariness and truthfulness of the confession. It is to be noticed that in response to questions Nos.6 and 8, of the confession, the accused replied in the following manner:--

"Ans.No .6.

Ans.No 8.

1. The answers given by the appellant clearly demonstrate that the confession in question is neither voluntary, nor truthful, rather it is a result of torture as is evident from perusal of Exh.P/6-B. There is no cavil to the proposition that a, sole judicial confession is sufficient for conviction of the maker, if it is voluntary, true and corroborated by other independent pieces of evidence, which is lacking in the instant case, as has already been observed hereinabove that the confession in question is not voluntary and is a result of torture. According to the evidence of complainant, deceased Aqeel was lastly seen in the company of co- accused Nooral and Faisal, whom the deceased accompanied on the fateful night. According to the medico legal certificate that initially deceased Aqeel was brought to the hospital by said Faisal and Nooral and the whole episode, except the alleged judicial confession, does not figure the name of the appellant.

2. Moreover, much emphasize has been laid on the positive report of Forensic Science Laboratory Exh.P/7-F, whereby the axe, recovered at the instance of appellant Zafar Mushtaq, has been found to be stained with human blood. This piece of evidence, apparently, appeal to reasons, however, when examined minutely, it also looses it intrinsic value. According to the prosecution evidence, the alleged axe was recovered at the instance of the appellant on 21st February, 2010, whereas the same was received by the FSL authorities on 3rd April, 2010, after an unexplained delay of about one and half month. We are afraid the evidence of recovery of crime weapon by itself being evidence purely of corroboratory nature, in the absence of direct or substantive evidence, alone, was not sufficient to bring home charge against the appellant. Although according to the FSL report the axe in question was blood stained, but it does not purport the same blood group as that of the deceased.

3. The simpliciter positive report of the expert would not be sufficient for conviction of the appellant. The opinion of an expert has a corroborative value only and useful for ascertaining whether the direct evidence is true or not. It is absolutely unsafe to base a conviction on that opinion only. When there is no other evidence in the case, it can never be said with certainty that the weapon with which the crime is said by the expert to have been committed, though found in possession of the accused person, was in his possession when the offence was committed. Reference can be made to a judgment titled "State v. Muhammad Yaqoob", PLJ 2000 SC 1863.

4. Learned counsel, appearing on behalf of the State, argued that since the dead body was recovered from the house of the appellant, thus, he was responsible to disclose the real facts, if he was not the accused. It may be noted that mere recovery of dead body, adjacent to the house or from the house, is not sufficient to prove the deceased was killed by the appellant. We may quote findings arrived at on the point in a case of "Bashir Ahmed v. The State", PLJ 1974 Cr.C. Lahore 460, wherein it has been held as under:--

"8. No doubt, the dead body of the deceased was seized from the house of Bashir appellant but this alone would not show that the deceased was killed by the appellant and that even if it be said that he was killed by the appellants, in the manner and the circumstances as deposed by Abdul Sattar (P.12)."

2012 M L D 673

[Quetta]

Before Mrs. Syeda Tahira Safdar, J

MOHI UD DIN---Petitioner

Versus

MUHAMMAD IFTIKHAR SIDDIQUE and 4 others---Respondents

Criminal Revision No.40 of 2011, decided on 20th January, 2012.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4, 5 & 7---Prevention of illegal possession of property, investigation and procedure, eviction and mode of recovery as an interim relief---Petitioner claimed to be bona fide purchaser of the property in question, and on the basis thereof claimed his title and possession to be legal but Trial Court, allowing complainant's interim application, restored possession of premises to the complainant while exercising powers under S. 7(4) of Illegal Dispossession Act, 2005---Validity---Trial Court arrived at the conclusion that the report submitted by the Station House Officer (SHO) supported the version of the complainant that there was history of breaking of locks of the complainant's house, which was being illegally occupied by the petitioner, with further observation that petitioner had failed to produce any documentary evidence in respect of ownership of the house in question---Complainant was one of the legal heirs of the woman, in whose name the property was allotted by concerned authorities and complaianant claimed to be in possession of the property in question since the time of allotment---Petitioner had annexed certain mutation entries, whereby, property in question was transferred in his name, while complainant had placed documents on record which revealed that civil litigation was pending between complainant and legal heirs of another person, concerning the property in question, from which it tentatively appeared that complainant was in possession of disputed property, but fact that whether complainant was dispossessed illegally or forcibly was yet to be established during course of trial---Trial Court exercised powers under S. 7 of Illegal Dispossession Act, 2005, without initiation of the trial, without sending notices to the petitioner and without affording him any opportunity of being heard---Petitioner being in possession of the disputed property had a right to be heard, before an order for his dispossession was made---Trial Court, while passing order for restoration of possession in favour of complainant, made reliance on report of S.H.O. of the area which was different and not from the concerned area---S.H.O. was arrayed as respondent in the complaint, and for that reason Trial Court had made an error and ignored the requirement of law---Order of restoration of possession made by Trial Court in favour of complainant being in contravention of relevant provisions of law, same was set aside---Revision petition was accepted, in circumstances.

Muhammad Qahir Shah for Petitioner.

Liaquat Ali for Respondent.

2012 M L D 841

[Balochistan]

Before Naeem Akhtar Afghan, J

MUHAMMAD SHAFI---Petitioner

versus

WIDOW OF LATE TALIB HUSSAIN and 3 others---Respondents

Civil Revision No.304 of 2004, decided on 25th November, 2011.

Specific Relief Act (I of 1877)---

----Ss. 8, 39, 42 & 54---West Pakistan Land Revenue, Act (XVII of 1967), S.39---Suit for possession, cancellation of registered deed, declaration and permanent injunction---Mutation---Presumption---Scope---Plaintiff claimed that he had purchased suit property from its owner through mutation and said property was in possession of husband of the defendant as tenant---Husband of defendant subsequently died and his widow/defendant was residing in the suit property---Plaintiff filed ejectment application against widow of deceased tenant, who denied relationship of landlord and tenant between the parties and claimed to be owner of the property---Said ejectment application having been dismissed, plaintiff had filed suit for possession, declaration, etc. against the defendant, widow of deceased--Defendant, claimed that her late husband had purchased suit property from original owner through registered sale-deed---Validity---Record had revealed that suit property had remained throughout in possession of the predecessor of the defendant and the plaintiff had never remained in possession of the same---Mutation in the record of rights did not create title in favour of the person in whose favour entry had been recorded, nor the mutation entry could be used as a document of title, but mutation entry would raise a rebuttable presumption in favour of the person in whose favour the entry had been made---Said presumption could be rebutted by the person challenging such entry by producing evidence contrary to the mutation---Presumption of truth and correctness attached to mutation existing in the name of the plaintiff with regard to suit property, was rebutted by its contents, wherein it had been mentioned that possession of suit property had been delivered to the plaintiff, whereas possession was not delivered to the plaintiff and it was with predecessor of defendant---Presumption was further rebutted as the plaintiff had throughout failed to prove the status of the predecessor of defendant as tenant---In view of registered sale-deed in favour of predecessor of the defendant, mutation had lost its significance and had no legal value; and same would not confer any right or title in favour of the plaintiff to claim possession---Impugned judgment passed by the Appellate Court had also revealed that Appellate Court, after due appraisal of evidence on record and after discussing the issues framed, found the plaintiff not entitled for the relief claimed and had rightly dismissed appeal on merits---Concurrent findings of the courts below, not being result of mis-reading or misappreciation of evidence, could not be interfered with in revisional jurisdiction of High Court.

Dilber Hussain v. Muhmoodul Hassan and 3 others PLD 1986 Quetta 198 ref.

Naresh Nath Kohli for Petitioner.

Sultan Taran for Respondents.

Date of hearing: 23rd September, 2011.

2012 M L D 1205

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

FAZAL MIR alias ZALLAI and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.1 and Murder Reference No.2 of 2011, decided on 7th May, 2012.

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

---Ss. 302(b) & 148---Qatl-e-amd, rioting armed with deadly weapons---Appreciation of evidence---Sentence, alteration of---Mitigating circum-stances---Single fire-shot---Deceased having caused annoyance to the accused---Allegations against the accused were that he fired at and murdered the deceased (complainant's brother) when the latter was making ablution in a disputed piece of land, and that the accused and his co-accused fired at the complainant and prosecution witness---Contention of the accused was that the prosecution had failed to prove its case beyond reasonable doubt---Validity---Medical report of the deceased proved that his death had been caused by means of a firearm injury---Prosecution witnesses included the brother and a relative of the deceased, but only on account of their relationship with the deceased, they could not be termed as interested witnesses for the reason that they had no direct animosity with the accused---Despite lengthy cross-examination, the defence failed to create any dent in the veracity of the witnesses, except a few immaterial discrepancies---Occurrence had taken place in broad daylight, therefore, question of mistaken identity did not arise---Non-recovery of crime weapon was not fatal to the prosecution case in the facts and circumstances of the case---Accused remained an absconder for two months after the commission of the offence---Place of occurrence was situated at a distance of fifty (50) kilometers from the police station, which fact explained the delay of four hours in lodging the report---Prosecution had successfully proved its case against the accused beyond reasonable doubt---According to prosecution's own admission, one day prior to the incident, the accused claiming ownership of the disputed land and restrained the deceased from working on it---By working on the disputed land, the deceased caused annoyance to the accused, who fired a single shot in spite of having the opportunity to repeat the firing---Conviction of the accused, in view of such mitigating circumstances, was maintained, but his sentence of death was altered to that of imprisonment of life---Order accordingly.

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

----Ss. 302(b) & 148---Qatl-e-amd, rioting armed with deadly weapons---Appreciation of evidence---Testimony of interested witness related to the deceased---Reliance---Scope---Evidence furnished by an interested witness related to the deceased cannot be discarded merely for the reason that the witness has a relationship with the deceased, however, in such a situation efforts must be made to seek corroboration from other evidence on record---Corroboration should not necessarily come from an independent witness, but anything in the circumstances, which tends to satisfy the court that the witness has spoken the truth, can safely be considered as corroborative evidence.

Muhammad Amin v. The State 2000 SCMR 1784 rel.

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

----Ss. 302(b) & 148---Qatl-e-amd, rioting armed with deadly weapons---Appreciation of evidence---Interested witness---Concept--Testimony of interested witness---Scope---Interested witness is one who has a motive for falsely implicating an accused; is partisan and is involved in the matter against the accused---Friendship or relationship with the deceased is not sufficient to discredit a witness particularly when there is no motive to falsely involve the accused.

Muhammad Amin v. The State 2000 SCMR 1784 rel.

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

----Ss. 302(b) & 148---Qatl-e-amd, rioting armed with deadly weapons---Appreciation of evidence---Recovery of weapon and empties--Scope and nature of such evidence---Recovery of weapon of offence or empties is not a mandatory requirement of law, but is a circumstantial piece of evidence, which tends to corroborate other pieces of evidence i.e. ocular account, motive, medical evidence and any other circumstance which may be deemed to be relevant in the presence of direct evidence, credibility of which has withstood the test of cross-examination.

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

----Ss.302(b) & 148---Qatl-e-amd, rioting with deadly weapons---Sentence---Quantum---Principle---Gravity of the sentence is always dependent upon the gravity of the offence---Question of sentencing demands utmost care on part of the court dealing with the life and liberty of people---Accused is entitled to extenuating benefit of doubt with respect to sentence.

Abdul Sattar Durrani, Add: P.G. for the State (in Murder Reference No.2 of 2011).

Muhammad Aslam Chishti for the Complainant (in Murder Reference No.2 of 2011).

H. Shakil Ahmed for Appellant (in Murder Reference No.2 of 2011).

H. Shakil Ahmed for Appellant.

Muhammad Aslam Chishti for the Complainant.

Abdul Sattar Durrani, Add: P.G. for the State.

Date of hearing: 26th March, 2012.

2012 M L D 1358

[Balochistan]

Before Naeem Akhtar Afghan and Jamal Khan Mandokhail, JJ

PATOO and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.204 of 2011, decided on 5th June, 2012.

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

----Art. 46---Dying declaration---Admissibility in evidence---Scope---Dying declaration, though was admissible in evidence, but by itself was not sufficient to sustain conviction---Such declaration must be free from every sort of taint and be independently corroborated for safe reliance to record conviction---In order to find out the truth or falsity of a dying declaration, a case was to be generally considered in all its physical environment and circumstances---Dying declaration was only a corroborative piece of evidence, which would support the ocular testimony; and it was a weak type of evidence.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Complainant while recording his statement at the trial had contradicted the contents of the F.I.R. and he improved his statement before the court---No identification parade of accused was got conducted to identify the assailant who was following the deceased and assaulted him with axe---Prosecution witness could not identify the culprit who ran away from the spot---Said witness had also not identified any of the accused---Said contradictions and infirmities had badly shaken the veracity of both the witnesses---Alleged dying declaration, which otherwise was a very weak type of evidence, could not be held free from any sort of taint, and could not be safely relied upon to record conviction as the same lacked independent corroboration---Statement of prosecution witness with regard to allegations of assault by a person upon the deceased with an axe had further rendered the recovery of knife doubtful---Recovery of axe had not been established from the possession of the accused---Neither there was any disclosure memo of the accused nor his confessional statement---No report of chemical analysis was available to prove that the axe was stained with human blood---Statement of doctor though had established the unnatural death of the deceased, but same was not in conformity with the ocular testimony---Statements of witnesses were also vague with regard to the motive of the occurrence and motive did not stand established through their testimony---Prosecution had failed to give any explanation for shifting the custody of accused hundred miles away for recording their confessional statements; whereas competent authorities to record confessional statements were available at the relevant place---Magistrate while recording confessional statements of accused had not observed the prescribed procedure---Even the memorandum at the foot of the confessional statements, was not in accordance with mandatory requirement of S.164(3), Cr.P.C.---Confessional statement, got recorded, was highly defective and in violation of mandatory provisions of S.164, Cr.P.C. as well as S.364, Cr.P.C.---Prosecution, due to said infirmities, contradictions, illegalities and irregularity had failed to bring home the charge against accused beyond any shadow of doubt---Sufficient doubt existed in the case of prosecution, benefit of which had to be extended to the accused---Accused were acquitted of the charge and were ordered to be released, in circumstances.

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

----Ss.164 & 364---Confessional statement---Evidentiary value---Procedure to be followed in recording the confession by Magistrate---As soon as accused was produced for confession, his handcuffs should be removed; and all the Police Officers should be turned out from the court room---Accused, thereafter should be informed that he was before a Magistrate; and whether he would make any statement or not; he would not be given back to the Police, which had produced him before the court; but would be remanded to judicial lock-up---Accused should then be given sufficient time to ponder over the matter---Accused thereafter should be warned, that he was not bound to make any statement, but, if he did so, it could be used as evidence against him---Greater duty was cast upon the Magistrate recording confession to be satisfied that such confession was voluntarily made; and to that end he must conscientiously devote his inquiry before recorded? the? confession---Unexplained delay in recording confessional statement of accused would not render the same to be used as substantive piece and same would lose its evidentiary value---Longer the Police custody of accused, the lesser was the evidentiary value of the confession---Where delayed retracted confessional statement of accused lacked? corroboration in material aspects, and was not supported by reliable evidence or strong corroborative circumstances, intrinsic worth of the confessional statements, would remain suspicious and for such reasons, same could not form the basis of conviction of accused.

???????????

Farooq Rasheed for Appellants.

???????????

Atique Ahmed Khan, Deputy Prosecutor-General for the State.

???????????

Date of hearing: 5th April, 2012.

2012 M L D 1433

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ

MAHMOOD AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.82 of 2010, decided on 18th June, 2012.

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

----S. 13(e)---Possessing unlicensed arm---Appreciation of evidence---Disclosure memo prepared during the course of the investigation and the pointation made by accused, were not brought on record nor any witness of the same was produced---Trial Court on mere assertion of prosecution witnesses noted down that the making of disclosure was an admitted fact---Matter was a simple reliance on the case as asserted by the prosecution, with failure to discuss the material on record---Marginal witness of the seizure memo was not produced---Whole set of evidence on record failed to establish the recovery of pistol on pointation made by accused---No investigation was carried out in the case---Material collected in other case was relied upon without bringing them on record of the case, which could not be legally relied upon in the circumstances---Case of the prosecution had become doubtful due to all the discrepancies, and benefit of the same had to be extended in favour of accused---Conviction of accused was set aside and accused was acquitted of the charge against him and was released, in circumstances.

Muhammad Aslam Chishti for Appellant.

Abdul Satar Durrani, Addl: P.G. for the State.

Date of hearing: 22nd December, 2011.

2012 M L D 1597

[Balochistan]

Before Jamal Khan Mandokhail and Naeem Akhtar Afghan, JJ

VICE-CHANCELLOR, UNIVERSITY OF BALOCHISTAN, QUETTA--Petitioner

Versus

CHANCELLOR, UNIVERSITY OF BALOCHISTAN, QUETTA and another Respondent

Constitutional Petition No. 356 of 2012, decided on 21st June, 2012.

(a) University of Balochistan Act (III of 1996)---

----S. 12(1)---Constitution of Pakistan, Art. 199---Constitutional petition---Educational Institution---Tenure of office of Vice-Chancellor---Petitioner was appointed Vice-Chancellor, for a period of two years---Petitioner had agreed to the terms and conditions of the appointment---Contention of the petitioner was that under S. 12(1) of the University of Balochistan Act, 1996; tenure of the office of Vice-Chancellor was prescribed as four years, therefore, the period of two years mentioned in the notification of his appointment was illegal and void---Validity---Petitioner, in the present case, had agreed to do the job only for a period of two years and did not challenge the notification during his tenure and acted as an Acting Vice-Chancellor after his tenure---Petitioner had , on completion of his two years tenure, voluntarily relinquished the charge as permanent Vice-Chancellor, and the notification of his appointment and the terms and conditions therein, ceased to exist, which amounted to waiver on the petitioner's part---"Waiver" meant that when a person, by a conduct, had the intention to waive a right, or when a person had a choice between relinquishment and enforcement of a right, and did not claim it, and opted for lapsing of a right, expressly by declaration or by a conduct, the same amounted to a "waiver"---To establish waiver by conduct, it must be shown that a person entitled to a right had the knowledge of breach thereof and that he had acquiesced or failed to act accordingly---Petitioner had waived his alleged right by his conduct---Constitutional petition was also hit by laches as the terms and conditions of his appointment had been questioned after a lapse of two years---Constitutional petition was dismissed.

(b) Waiver---

----Concept and connotation---"Waiver" meant that when a person, by conduct, had the intention to waive a right, or when a person had a choice between relinquishment and enforcement of a right, and did not claim it, and opted for lapsing of a right, expressly by declaration or by a conduct, the same amounted to a waiver.

Black Law Dictionary and Principle of Justice of Law of Evidence rel and quoted.

Gohar Yaqoob Yousafzai for Petitioner.

Amanullah Kanrani for Respondents.

Date of hearing: 7th June, 2012.

2012 M L D 1627

[Balochistan]

Before Muhammad Noor Meskanzai, J

MUHAMMAD AFZAL alias MAZEL and 4 others---Petitioners

Versus

Haji HAQ DAD and 8 others---Respondents

Civil Revision No.302 of 2003, decided on 19th June, 2012.

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

-----S.115---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Revisional jurisdiction---Misreading and non-reading of evidence---Proof---Suit filed by plaintiffs was concurrently decreed in their favour by Trial Court and Lower Appellate Court---Validity---Plaintiffs produced as many as four witnesses besides recording statement of their attorney and all witnesses supported their claim---Defendants failed to point out any illegality in judgments and decrees passed by two courts below nor they could show any irregularity in the proceedings---Trial Court after proper appraisal of material available on record dealt with the issues and gave its findings with reasons---Defendants were under legal obligation to point out as to which portion of evidence had been misread or non-read but defendants failed to do so, which was sine qua non for acceptance of revision petition---High Court declined to interfere in concurrent judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

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

----S.115---Revisional jurisdiction of High Court---Concurrent findings of fact by two courts below---Principle---Such findings cannot be disturbed unless it is proved that same are result of misreading or non-reading of evidence.

Amir Siab and 2 others v. Government of N.-W.F.P. through Home Secretary at Peshawar and 4 others 1994 SCMR 1778 rel.

Munir Ahmed Langove for Petitioners.

Zafar Khan Mandokhail for Respondents.

Date of hearing: 4th May, 2012.

2012 M L D 1751

[Balochistan]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

ABDUL HAQ---Petitioner

Versus

SELECTION COMMITTEE BOLAN MEDICAL COLLEGE through Chairman and 3 others----Respondents

Constitutional Petition No.667 of 2011, decided on 25th July, 2012.

Bolan Medical College, Quetta Prospectus, 2011-2012---

----Rr. 41 & 43---Constitution of Pakistan, Art. 199---Constitutional petition---Educational Institution---Admission in First Year of MBBS Class for Academic Session 2011-2012 against a seat reserved for District Kalat---Petitioner at time of submitting Admission Form was holding Local Certificate from District Kalat, while respondent was holding Local Certificates from two different Districts i.e. Quetta and Kalat---Non-disclosure of factum of holding such dual Certificates by respondent before Selection Committee---Granting of admission in College to respondent against such seat by Selection Committee---Validity---Respondent's name was mentioned in Local Certificate granted to his father from District Quetta---Respondent had subsequently cancelled his Local Certificate from District Quetta, but while applying against such seat, he had relied upon only Local Certificate issued to him from District Kalat despite having duel Local Certificates and concealing such factum from Selection Committee---Provisions of R. 41 of Prospectus for Session, 2011-2012 strictly prohibited admission to a candidate holding two certificates at time of applying for admission in College---Admission obtained by a candidate on basis of false/incorrect documents/information could be cancelled later on under R. 43 of the Prospectus---Object of R. 43 of the Prospectus not being only to penalize those having deceived Selection Committee, but to set an example for those applying for such noble profession on basis of false/incorrect information or document---Provisions of Rr. 41 & 43 of the Prospectus being mandatory in nature and object thereof would be to protect rights of candidates of concerned District and ensure fair play---Principal of College ought to have cancelled admission of respondent after coming to know about factum of his having dual certificates---High Court declared admission of respondent as illegal and void and cancelled same while directed Principal to place petitioner's case before Selection Committee to consider his admission against such reserved seat strictly in accordance with law and Prospectus.

Kamran Murtaza, Rizwan Ejaz and Najam-ud-Din Mengal for Petitioners.

Shai Haq Baloch, Assistant for Respondents Nos. 1, 2 and 3.

Baz Muhammad Kakar for Respondent No.4.

Date of hearing: 21st June, 2012.

2012 M L D 1805

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

SALAHUDDIN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Quashment No. 267 of 2012, decided on 4th September, 2012.

Criminal Procedure Code (V of 1898)---

----S. 249-A---Quashment of proceedings---No evidence against accused persons, except their presence at site-No overt act assigned---Inference of mala fide of prosecution---Case to the extent of co-accused allowed to be withdrawn---Effect---Trial Court declined application of accused persons filed under S. 249-A, Cr.P.C, seeking their acquittal, on grounds that case was at a mature stage and because material witnesses were yet to be examined---Validity---Trial Court failed to disclose the material witnesses, which in its opinion were still to be examined---Case to the extent of co-accused persons was allowed to be withdrawn by the prosecution---Recovery of weapon and role of making ineffective firing had specifically been alleged against co-accused persons but they were allowed to go free with permission granted for withdrawal of the case to their extent--- F.I.R. did not speak of any recovery of weapons from custody of accused persons nor were they alleged any overt act therein---Inference of mala fide on part of prosecution could easily be drawn---Statement of eye-witness of the incident neither described the presence of accused persons at the site nor described any act on their part in commission of the offence alleged---Statement of police official, who appeared as prosecution witness, was restricted to recovery of empties at the site---Record did not clearly show whether statement of complainant had been recorded---No evidence against accused persons except their presence at the site---No specific act had been assigned to them in commission of offence---No possibility of conviction of accused persons even after recording of entire evidence---Petition was allowed, application of accused persons under S. 249-A, Cr.P.C was allowed and they were acquitted of the charge.

Tahir Ali Baloch for Petitioner.

Liaquat Ali for the State.

Date of hearing: 7th August, 2012.

2012 M L D 1856

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

ABDUL HABIB---Petitioner

Versus

FAZAL MUHAMMAD and 2 others---Respondents

Civil Revision No.277 of 2010, decided on 31st July, 2012.

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

----Ss. 2(2)(9) & 33---Judgment or decree, execution of---Scope---Execution would always be of a decree and not of judgment, thus, decree in a suit must always be in terms of judgment made therein.

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

----Ss. 2(2)(9), 33, 47, 51, 115, O. XIV, R. 1, O. XX, R. 6 & O. XXI, R. 11---Specific Relief Act (I of 1877), Ss. 8, 42 & 54---Suit for declaration, possession and permanent injunction --­Judgment and decree passed in plaintiff's favour by Trial Court not finding mention relief of recovery of possession of suit property, except relief of declaration of plaintiff's title thereto and injunction---Execution application for recovery of possession of suit property---Objection petition by defendant that such decree was not executable---Order of Executing Court rejecting objection petition upheld by Appellate Court---Validity---Execution of decree would always be of a decree and not of judgment, thus, decree in a suit must always be in terms of judgment made therein---Trial Court had erred in not framing issue regarding recovery of possession of suit property, whereas defendant had claimed to be in its possession---Trial Court had declared plaintiff to be owner of suit property and restrained defendant from interfering into business and property of plaintiff---Relief of possession, though specifically claimed in plaint, did not find mention in impugned judgment, thus, its granting could not be inferred, rather its disallowing would be presumed --­Executing Court during execution proceedings could neither go behind decree nor grant a relief, which was not granted in judgment---Impugned judgment had attained finality for not having been challenged by either party---Impugned decree was not enforceable to the extent of recovery of possession of suit property---High Court set aside impugned order and dismissed execution application for not being maintainable.

Province of Punjab v. Ghulam Rasool 1990 SCMR 1106; Maj. (Retd.) Mahmood Hussain v. Habib Bank Ltd. 2001 CLC 2016; Fakir Abdullah v. Government of Sindh PLD 2001 SC 131 and Allah Ditta v. Ahmed Ali Shah 2003 SCMR 1202 ref.

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

----S. 152---Relief claimed in suit not finding mention in judgment and decree---Effect---Relief granted in judgment, if omitted from decree, could be included by way of amendment of decree---Relief claimed in suit, if not mentioned in judgment specifically, could not be entered in decree under S. 152, C.P.C. as its decline would be presumed.

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

----S.47---Executing Court, powers of---Scope---Executing Court during execution proceedings could neither go behind decree nor grant a relief not granted in judgment---Principles.

Executing Court during the course of execution of a decree has to adopt the procedure provided in Civil Procedure Code, 1908 thereby adopt any provided procedure to assist the decree holder in execution of a decree existed in his favour. During course of the execution, the court is fully empowered to determine as to how, and to what extent and in what manner a decree shall be executed. But doing so the court has to observe the terms in which has been passed. A relief not granted therein cannot be granted during course of execution.

The court during course of execution cannot go behind the decree.

Behadur Khan for Petitioner.

Mushtaq Anjum for Respondents.

Date of hearing: 30th March, 2012.

2012 M L D 1898

[Balochistan]

Before Muhammad Noor Meskanzai, J

ABDUL SAMAD and another---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN, through Secretary, C and W and another---Respondents

Civil Revision Petition No.418 of 2008, decided on 30th July, 2012.

(a) Possession---

----Permissive and temporary possession/occupation of a property would not bestow its occupant with any right---Illustration.

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

----O.VII, R.14---Document tendered in evidence neither relied upon nor referred to in pleadings by a party---Validity---Such document for being beyond pleadings would be inadmissible in evidence.

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

----O.VII, R.9(1)(i); O.XIII, Rr.1 to 4 & XVI, R.1---Document tendered in evidence by plaintiff against provisions of O.VII, R. 9(1)(i) and O.XIII, Rr.1, 2, C.P.C.---Such document not finding mention in first list of witnesses filed after framing of issues, but was mentioned in subsequent list of witnesses---Validity---Such document would be inadmissible in evidence and could not be entertained in violation of provisions of O.XIII & O. XVI, C.P.C.

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

----Art.79---Document tendering in evidence without examining its marginal witnesses---Effect---Such document would not stand proved.

Najamuddin Mengal for Petitioners.

Amanulalh Tareen (A.A.-G.) for Respondents.

Date of hearing: 29th June, 2012.

2012 M L D 1907

[Balochistan]

Before Qazi Faez Isa, C.J. and Abdul Qadir Mengal, J

SALEH MUHAMMAD and 4 others---Petitioners

Versus

BAZ MUHAMMAD and 2 others---Respondents

Constitutional Petition No.83 of 2009, decided on 16th August, 2012.

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

----S.42---Mutation, entries in---Evidentiary value---Such entries for being meant only for fiscal purposes would not be equivalent to title.

Muhammad Iqbal v. S.A.M. Khan PLD 1970 Lah. 614 ref.

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

----Ss.44, 53, 161, 164 & 172---Registration Act (XVI of 1908), S.60---Specific Relief Act (I of 1877), Ss. 39 & 42---Qanun-e-Shahadat (10 of 1984), Art. 100---Civil Procedure Code (V of 1908), S.9---Constitution of Pakistan, Art. 199---Constitutional jurisdiction---Scope---Mutation attested on basis of registered power of attorney---Owner seeking cancellation of suit mutation and subsequent mutations/sale deeds made on its basis alleging such power of attorney to be forged after thirty years of its execution and eighteen years of death of attorney---Powers of Executive District Officer (Revenue) and Land Commissioner to grant such relief to owner---Scope---Presumption of validity was attached to such power of attorney for being thirty years old---Suit mutation and subsequent mutations/sale-deeds made on its basis could be cancelled or declared as void only by competent civil court, whereas Land Commissioner had no jurisdiction to undo such documents---Assumption of jurisdiction by Land Commissioner and cancellation of suit mutation would be a major error---Constitutional jurisdiction of High Court could be invoked to correct such illegality---Principles.

Rehman Khan v. Asadullah Khan PLD 1983 Quetta 52; Haliman Bibi v. Muhammad Bashir 1989 CLC 1588; Muhammad Razaq v. Shamim Akhtar 2006 CLC 697; Anjum Mehmood v. Rizwan Ahmed 2006 CLC 876; Amir Bibi v. Atta Muhammad Khan 1992 SCMR 553; Abdul Qadir v. Allah Wasaya 1997 CLC 311; Atta Muhammad v. Nasir-ud-Din PLD 1993 Pesh. 127; Abdul Sattar Khan v. Rafiq Khan 2000 SCMR 1574; Muhammad Younus Khan v. Government of N.W.F.P 1993 SCMR 618; General Manager, Pearl Continental v. Farhad Iqbal PLD 2003 SC 952; Muhammad Faraz v. Abdul Rashid Khan 1984 SCMR 724; Muzamil Khan v. Consolidation Officer PLD 2005 Lah. 422; Imran Shafique v. Zulfiqar Ahmed 2007 MLD 192; Talat Jahan Burki v. Member, Board of Revenue 2005 CLC 269; Journalist Publication (Pvt.) Ltd v. Mumtaz Begum 2004 SCMR 1774; Jamil Akhtar v. Las Baba PLD 2003 SC 494; Muhammad Fazal v. Khadim Hussain 1998 MLD 1658; Abdul Ghani v. Shaheen 2007 SCMR 834; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104; Atta Muhammad v. Allah Wasaya 2004 CLC 1665 and Mohd. Iqbal v. S.A.M. Khan PLD 1970 Lah. 614 ref.

Rasta Mal Khan v. Nabi Sarwar Khan 1996 SCMR 78; Hakim Khan v. Nazeer Ahmad Lughmani 1992 SCMR 1832; Administrator-General Punjab v. M. Stanley Charles William PLD 1986 Lah. 333 and Noorwar Jan v. Senior Member Board of Revenue N.-W.F.P. PLD 1991 SC 531 ref.

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

----S.42---Void mutation---Limitation---No limitation period would come in way of such mutation.

(d) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---High Court could not determine disputed questions of fact in Constitutional jurisdiction.

(e) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction could be invoked to correct an illegality---Illustration.

Noorwar Jan v. Senior Member, Board of Revenue N.-W.F.P. PLD 1991 SC 531 ref.

Muhammad Riaz Ahmed for Petitioners.

Abdul Aziz Khan Khilji, Additional Advocate General for official respondents, Chaudhary Arshad, Advocate for respondent No.1 and Sardar Ahmed Haleemi for Respondents Nos. 2, 3 15 and 16.

Date of hearing: 1st, August, 2012.

2012 M L D 246