MLD 2013 Judgments

2013 M L D 1825

[Sindh Election Tribunal]

Before Dr. Zafar Ahmed Khan Sherwani, Election Tribunal, Karachi

SULTAN KHAN JOHARI---Petitioner

Versus

AHSANULLAH SHAH and others---Respondents

Election Petition No.6 of 2013, decided on 13th August, 2013.

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

----Ss.52, 55(3) & 63---Civil Procedure Code (V of 1908), O.VI, R.15---Non-verification of election petition and its Annexures or Schedules, under S.55(3), Representation of the People, Act, 1976---Effect---Provisions of S.55(3) of Representation of the People Act, 1976 being mandatory, non-compliance thereof would entail dismissal of petition.

Mst. Jannat Bibi v. Saras Khan 2011 SCMR 1460 ref.

Lt. Col.(Retd.) J. ABEL v. Emmanuel Zafar and others 1987 MLD 1372; Khawaja Muhammad Awan v. Alim Adil and others 1998 CLC 272; Sardarzada Zafar Abbas v. Syed Hassan Murtaza and others PLD 2005 SC 600; Ch. Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34; Amar Lal v. Ishwar Das and others 2007 SCMR 1776; Malik Umar Aslam v. Sumera Malik and others PLD 2007 SC 362; Imam Ali Samejo v. Ghulam Hyder Samejo and others 2009 CLC 771; Dost Muhammad Rahimoon v.Abdur Razzak Rahimoon and others 2009 CLC 795; Moulvi Abdul Qadir v. Moulvi Abdul Wassay and others 2010 SCMR 1877; Eng. Pesumal Ukrani v. Arbab Zulfiqar Ali and others 2010 CLC 518; Shaikh All-ud-Din v. Election Tribunal, Lahore 2009 YLR 1930; Mst. Jannat Bibi v. Saras Khan and others 2011 SCMR 1460; S.M. Ayub v. Syed Yousuf Shah and others PLD 1967 SC 486 and Iqbal Zafar Jhgra v. Syed Hassan Murtaza PLD 2005 SC 250 rel.

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

----Ss.52, 55(3) & 63---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---Documents annexed with petition being record of Returning Officer, Newspaper cuttings regarding incident having taken place at election camp on day of election day and rejection of results of different person on ground of mass rigging---Non-verification of such documents---Effect---Not a single document annexed with election petition did provide substantive grounds finding mention in the petition---Such documents would not require verification under O.VI, R.15, C.P.C. for being public documents and also for not falling within definition of "Annex" or "Schedule" mentioned in S.55(3) of Representation of the People Act, 1976---Petitioner, held, had not violated provision of S.55(3) of the Act in circumstances.

Lt. Col.(Retd.) J. ABEL v. Emmanuel Zafar and others 1987 MLD 1372; Khawaja Muhammad Awan v. Alim Adil and others 1998 CLC 272; Sardarzada Zafar Abbas v. Syed Hassan Murtaza and others PLD 2005 SC 600; Ch. Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34; Amar Lal v. Ishwar Das and others 2007 SCMR 1776; Malik Umar Aslam v. Sumera Malik and others PLD 2007 SC 362; Imam Ali Samejo v. Ghulam Hyder Samejo and others 2009 CLC 771; Dost Muhammad Rahimoon v.Abdur Razzak Rahimoon and others 2009 CLC 795; Moulvi Abdul Qadir v. Moulvi Abdul Wassay and others 2010 SCMR 1877; Eng. Pesumal Ukrani v. Arbab Zulfiqar Ali and others 2010 CLC 518; Shaikh All-ud-Din v. Election Tribunal, Lahore 2009 YLR 1930 and Mst. Jannat Bibi v. Saras Khan and others 2011 SCMR 1460 distinguished.

S.M. Ayub v. Syed Yousuf Shah and others PLD 1967 SC 486; Sardarzada Zafar Abbas v. Syed Hassan Murtaza and others PLD 2005 SC 600; Iqbal Zafar Jhgra v. Syed Hassan Murtaza PLD 2005 SC 250; Ch. Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34; Amar Lal v. Ishwar Das and others 2007 SCMR 1776; Malik Umar Aslam v. Sumera Malik and others PLD 2007 SC 362 and Moulvi Abdul Qadir v. Moulvi Abdul Wassay and others 2010 SCMR 1877 rel

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

----Ss.52, 54 & 63---Election petition---Non-supplying to respondent copy of petition and its Annexures before its filing before Election Commission---Validity---Election Commission had processed petition on basis of postal receipts produced by petitioner regarding sending of such documents to respondent---Election Tribunal after, receiving such petition from Election Commission had issued notices to respondents along with all documents annexed therewith---Tribunal declined to dismiss election petition in circumstances.

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

----Ss. 52, 54 & 63---Election Commission of Pakistan Notification No.1(7)/Cord dated 17-3-1985---Election petition---Non-filing of list of witnesses and affidavit-in-evidence along with election petition---Effect---Provisions of Notification No.1(7)/85-Cord, dated 17-3-1985 issued by Election Commission were directory and not mandatory in nature, thus, violation of any of its clauses would not result in dismissal of election petition---Petitioner's application seeking extension of time for filing list of witnesses and affidavit-in-evidence was pending adjudication and prior to its decision, he could not be non-suited---Election Tribunal declined to dismiss election petition in circumstances.

Muhammad Aslam Bhutta for Petitioner.

Dr. Muhammad Farogh Naseem, Agha Zafir Ali and A. Iqbal Qadri for Respondents No.37.

2013 M L D 1855

[Sindh Election Tribunal]

Before Dr. Zafar Ahmed Khan Sherwani, Election Tribunal, Karachi

SULTAN KHAN JOHARI---Petitioner

Versus

AHSANULLAH SHAH and 37 others---Respondents

Election Petition No.6 of 2013, decided on 4th September, 2013.

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

----Ss. 52, 68 & 70---Election petition---Maintainability---Election petition by the unreturned candidate, was objected to by returned candidate on the ground that as the petitioner had failed to show any cause of action against returned candidate petition was liable to be dismissed---Validity---In order to determine, whether a petitioner had a cause of action to file petition for any relief against any person, it was necessary to take into consideration the bundle of facts pleaded in the petition to come to a certain conclusion, that he had a cause of action---In the present case, petitioner had made a number of allegations regarding unfair election and mass rigging at the Polling Stations of his constituency which had shown a cause of action---Such allegations were to be considered in totality, and not separately---Name of returned candidate, though had not been mentioned in the petition alleging any illegal practice during polling, but that would not mean that the petitioner had no cause of action to file the petition---Fact that the petitioner had prayed for declaration of the election of the returned candidate as a whole void in terms of S.70 of Representation of the People Act, 1976, it was not compulsory for him to plead each allegation regarding illegal practice against him---Consolidated statement of the results of count furnished by the Presiding Officer of the Polling Stations, in respect of the constituency showing amazing and surprising results in favour of returned candidate---Some of the Polling Stations of the constituency, required probe and enquiry by the Tribunal, before any definite finding was given on the allegations, within the mandate of the law---Petitioner, in circumstances, could not be said to have failed to show any cause of action to file petition---Present petition would be decided on merits and was not liable to be dismissed for want of cause of action.

Aftab Shahban Mirani's case PLD 2008 SC 779; Normee Shafi v. Amjad Shafi PLD 2011 Kar. 416 and Dr. Sheela B Charle's case 1996 SCMR 1455 rel.

Shabbir Ahmed Shah for Petitioner.

A. Iqbal Qadri for Respondent No.37.

2013 M L D 1068

[Federal Shariat Court]

Before Muhammad Jehangir Arshad, J

ARSHAD MAHMOOD ANJUM---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.16-L of 2012, decided on 10th January, 2013.

(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 3 & 4---Manufacturing, possessing and selling liquor---Appreciation of evidence---Conviction and sentence under both Arts.3 & 4 of Prohibition (Enforcement Hadd) Order, 1979---Validity---Accused could not be convicted and sentenced to imprisonment simultaneously under Arts.3 & 4 of the Prohibition (Enforcement of Hadd) Order, 1979---Conviction/sentence under Art.4 of the Order would not be sustainable in law when accused had already been convicted and sentenced under Art.3 thereof---Conviction and sentence of accused under Article 4 of the Order were set aside.

1992 SCMR 108 and 2004 PCr.LJ 1474 rel.

(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Art. 3---Criminal Procedure Code (V of 1898), S.103---Import, export, transport, manufacture, or sale of intoxicant---Appreciation of evidence---Failure to associate two respectable persons in house search as required by S.103, Cr.P.C.---Effect---Prosecution could not explain the reason for non-compliance of mandatory requirement of S.103, Cr.P.C.---All the witnesses were public servants, but no mala fide had been attributed by accused to the prosecution witnesses---Record did not indicate that case property was produced in the court during trial, which was also a requirement of law---Accused neither had produced any evidence in his defence, nor properly explained the reason for his involvement in the case---Grudge attributed towards the Police, related to the situation after his arrest in the case---Police had no previous enmity with accused---Accused, in circumstances, was not involved in the case with false accusation, nor with any mala fide intention---Trial Court, had rightly found accused guilty of the charge against him---Appeal to the extent of conviction of accused, was dismissed, but in view of violation of mandatory provisions of S.103, Cr.P.C., and non-production of case property before the court during trial, sentence awarded to accused by the Trial Court was reduced to 2 years' R.I., and fine of Rs.5000 was also reduced to Rs.3000.

Muhammad Mansha v. The State 1997 SCMR 617 distinguished.

Naveed Inayat Malik for Appellant.

Nemo for the Complainant.

Hamayoon Aslam, D.P.G. for the State.

Date of hearing: 10th January, 2013.

2013 M L D 1675

[Federal Shariat Court]

Before Allama Dr. Fida Muhammad Khan, Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

Sayed BASHIR HUSSAIN---Appellant

Versus

ABDUL WAHEED and 3 other---Respondents

Criminal Appeal No.75/I of 2008, decided on 24th April, 2013.

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.395 & 411---Offence of Zina (Enforcement of Hudood) Ordinance (VI of 1979), S.10(4)---Juvenile Justice System Ordinance (XXII of 2000), S.13(2)---Federal Shariat Court of Pakistan (Procedure) Rules, 1981, Rr.17 & 18---Dacoity, dishonestly receiving stolen property, zina-bil-jabr liable to Tazir---Appeal against acquittal---Limitation---Contention of counsel for accused persons, was that as S.13(2) of Juvenile Justice System Ordinance, 2000 had prescribed the period of 30 days for filing the appeal against order of acquittal passed by Juvenile Court, present, appeal filed beyond the period of 30 days was barred by time; and was liable to be dismissed---Validity---Period of limitation for filing appeal under Hodood Laws was governed by the Federal Shariat Court of Pakistan (Procedure) Rules, 1980, which had provided a limitation for filing such appeal within 60 days from the date of the order of decision appealed from---Said Rules which were framed by Federal Shariat Court in exercise of powers conferred by Art.203-J of the Constitution, would have overriding effect qua limitation prescribed under Juvenile Justice System Ordinance, 2000---Present appeal which was filed within 60 days from passing impugned order, was within time---Contention of counsel for accused persons that appeal was barred by time, was overruled and appeal was held as within time.

Criminal Appeal No.37/I of 2011 and Azmat Hussain v. The State PLD 1982 FSC P.4 rel.

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.395 & 411---Offence of Zina (Enforcement of Hudood) Ordinance (VI of 1979), S.10(4)---Juvenile Justice System Ordinance (XXII of 2000), Ss.5 & 6---Dacoity, dishonestly receiving stolen property, zina-bil-jabr liable to Tazir---Appeal against acquittal---Consolidated judgment in two trials, one of adults under ordinary law, and other of juveniles under Juvenile Justice System Ordinance, 2000---Scope---In the present case two accused persons, who were declared child, were separately charged and their trial was also held separately---Other two accused persons who were adults, were separately tried under ordinary law by the Trial Court---Trial Court despite holding trials separately in both types of accused, acquitted them through consolidated/single judgment---Validity---When juveniles and adult accused persons were separately charged, and their trials were also held separately, judgment in both the trials, should also have been recorded separately; otherwise the object of framing separate charge, and holding of separate trial, would have become meaningless---Trial Court by recording the consolidated judgment, had rendered the entire exercise as illegal---Recording of separate judgment of juvenile accused was the mandatory requirement under S.6(1) of Juvenile Justice System Ordinance, 2000 and S.367, Cr.P.C.---Non-writing of separate judgment, was not a technical defect, but in fact was a basic defect in the proceedings---Court should pass a final judgment through conscious application of mind and after referring to the facts, circumstances and evidence on the record---Non-writing a separate judgment, could neither be considered as a mere irregularity curable under S.537, Cr.P.C., nor an act of a court causing prejudice to the parties, but same would render proceedings of the Trial Court as corum non judice---Judgment of the Trial Court, suffered from jurisdictional defect, was set aside; and matter was sent back by Federal Shariat Court to the Trial Court in terms of Art.203-DD of the Constitution, read with S.423, Cr.P.C., with direction to decide both the matters separately afresh in accordance with law within two months of the receipt of that judgment.

Ghulam Hussain and others v. The State 1996 PCr.LJ 514 rel.

(c) Administration of justice---

----When something was required under law to be done in a particular manner, it must be done in that way, and not otherwise.

Hamyun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 37 rel.

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

----S. 24-A---Duty of the court---Court should pass a speaking judgment after affording opportunity of hearing to the parties, and also through conscious application of mind.

Malik Abdul Haq for Appellant.

M. Shahid Kamal Khan for Respondents.

Dr. Muhammad Anwar Khan Gondal, A.P.-G. for the State.

Date of hearing: 24th April, 2013.

2013 M L D 1711

[Federal Shariat Court]

Present: Dr. Fida Muhammad Khan, Rizwan Ali Dodani, Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

KHAWAR IQBAL through Attorney---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary M/o Law and Justice, Islamabad---Respondent

Shariat Petition No.S/I of 2011, decided on 24th April, 2013.

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

----S. 8---Constitution of Pakistan, Art. 203-D---"Talaq-e-Tafveez"---Husband delegating his power of talaq to his wife---Repugnancy to Injunctions of Islam---Talaq-e-Tafveez served as a check on a man who might be cruel to his wife, who might not maintain her in an appropriate manner, who might neglect his children/wife, or, one who was missing and his whereabouts were completely unknown or was far away for very long periods of time without providing his wife with finances required for her maintenance but still does not agree to give his wife the right to khula (separation) or refused to divorce her at any cost---Under Islamic law, power to give divorce, though belonged to the husband, but he could delegate such power to his wife or to a third. person, either absolutely or conditionally and either for a particular period or permanently---Section 8 of Muslim Family Laws Ordinance, 1961 specifically provided for such kind of talaq, known as Talaq-e-Tafveez---Person to whom such power was so delegated, could then pronounce it accordingly---Except scholars belonging to the Fiqh-e-Jaafaria, all other Muslim jurists of various schools of thought were unanimous on permissibility of Talaq-e-Tafveez, though with slight variations in its procedure---Shariat petition was dismissed accordingly.

Fataw-i-Alamgeri; Fatawa-i-Sirjia; Fatawa-i-Qazi Khan; Qamoos­ul-Fagh; Heela Najiza and Verses 33:28-29 ref.

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

---S. 8---Constitution of Pakistan, Art. 203-D---"Talaq-e-Tafveez---Husband delegating his power of talaq to his wife---Repugnancy to Injunctions of Islam---Fiqh-e-Jaafaria---According to Fiqh-e-Jaafaria, Talaq-e-Tafveez was not allowed---Such type of delegation of power by a husband to his wife, in view of Fiqh-e-Jaafaria, was not permissible---Divorce, according to Fiqh-e-Jaafaria, became effective only when it was uttered by a husband in presence of witnesses by using specific "seeghas "---Shariat petition was dismissed accordingly.

Al-Faqh al Mazahibil Khamsa by Muhammad Jawad Mughnia a Lebanses Scholar ref.

(c) Constitution of Pakistan-

----Art. 203-B(c)---Jurisdiction of Federal Shariat Court---Scope---Federal Shariat Cos'rt, by virtue of Art. 203-B(c) of the Constitution, was vested with the power to examine any law or provision of law on the touchstone of Injunctions of Islam, however it was barred from examining provisions of the Constitution, procedural law and Muslin Personal Law.

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

----S. 8---Constitution of Pakistan, Arts. 203-11(c) & 203-D---Shariat petition---Maintainability--- "Talaq-e-Tafveez "--- "Muslim Personal Law"---Husband delegating his power of talaq to his wife---Repugnancy to Injunctions of Islam---Muslim schools of thought were not unanimous in respect of Talaq-e-Tafveez, as such the matter fell under the category of "Muslim Personal Law", which was outside the purview of the Federal Shariat Court as defined under Art. 203-B(c) of the Constitution---Present Shariat petition was not maintainable in such circumstances and was accordingly dismissed.

PLD 1994 SC 619 rel.

Arshad Zaman Kayani for Petitioner.

Muhammad Nazir Abbasi,Standing Counsel for Federal Government.

Date of hearing: 24th April, 2013.

2013 M L D 1808

[Federal Shariat Court]

Present: Dr. Fida Muhammad Khan, Rizwan Ali Dodani and Sheikh Ahmad Farooq, JJ

Syed MAQSOOD SHAH BUKHARI---Petitioner

Versus

FEDERAL GOVERNMENT through Secretary M/o Law and Justice, Islamabad---Respondent

Shariat Petition No.3/I of 2013, decided on 2nd May, 2013.

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

----S. 7---Punjab Rented Premises Ordinance (XXI of 2007), S.7---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Preamble---Sindh Rented Premises Ordinance (XVII of 1979), S. 10---Cantonments Rent Restriction Act (XI of 1963), Preamble---Constitution of Pakistan, Art.203-D---Charging of rent from tenant---Repugnancy to Injunctions of Islam---Plea of petitioner, was that verse 22:78 of the Holy Qur'an made it clear that Allah Almighty had commanded human beings- male and female- to earn livelihood by doing work; that it was incumbent upon every person to keep working and eat from only what he earned himself by his own hands, therefore Islamic Shariah did not allow anyone to charge rent from his/her tenant, and that no rent was ever charged by the Holy Prophet or Rightly Guided Caliphs---Validity---According to Muslim jurists contract for rent/lease/ijarah was a valid legal contract which was duly authenticated by the Holy Qu'ran, Sunnah of the Holy Prophet and Ijma---All companions of the Holy Prophet unanimously held that ijarah was a lawful contract, and they themselves practised all lawful forms of such a contract---Plea of petitioner that without personal involvement in labour and hard work, no one was entitled to any remuneration was absolutely without force---Islamic Injunctions regarding permissibility of gift, zakat/ushr, inheritance etc. which conferred rights of ownership upon the recipients without any physical labour or contribution on his/her part were a few examples in such connection, which had duly been approved by the Holy Qur'an and Sunnah of the Holy Prophet---Present Shariat petition was devoid of force and misconceived and was accordingly dismissed.

Holy Qur'an, Verses 3:85; 3:139; 22:78; 72:21; 4;119; 43:36,37; 31:33; 40:61; 4:80; 8:13; 8:20; 2:30; 2:38; 2:39; 2:155; 42:20; 16:40; 4:40; 2:214; 6:42; 3:145; 10:37; 15:56; 16:89; 20:2; 43:10; 92:12; 13:14; 2:159 and 42:38 distinguished.

Ashfaq Ahmad v. Government of Pakistan PLD 1992 FSC 286 ref.

(b) Federal Shariat Court (Procedure) Rules, 1981--

----R. 7(2)---Constitution of Pakistan, Art. 203-D----Shariat petition---Form and contents---Challenging more than one law as being repugnant to Injunctions of Islam in a single Shariat petition---Rule 7(2) of Federal Shariat Court (Procedure) Rules, 1981, specifically provided that whenever a petitioner claimed more than one law or provision thereof to be repugnant to Injunctions of Islam, he should file a separate petition in respect of each law.

Petitioner in person.

Muhammad Nazir Abbasi, Counsel for Federation.

Ch. Saleem Murtaza Mughal, Asst. A.-G. for Punjab Government.

Mian Saadullah Jandoli, Asst. A.-G. for Khyber Pakhtunkhwa Government.

Muhammad Azam Khan Khattak, Addl. A.-G. for Balochistan.

Date of hearing: 2nd May, 2013.

2013 M L D 1885

[Federal Shariat Court]

Present: Dr. Fida Muhammad Khan, Rizwan Ali Dodani and Sheikh Ahmad Farooq, JJ

Mrs. AMBREEN TARIQ AWAN---Petitioner

Versus

FEDERAL GOVERNMENT OF PAKISTAN through Secretary M/o Law and Justice Islamabad---Respondent

Shariat Petition No.3/L of 2008, decided on 14th June, 2013.

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

----Ss. 7, 17 & 27---Constitution of Pakistan, Art. 203-D---Power of court to appoint a guardian of person or property or both of a minor and undertake necessary proceedings for his/her welfare---Repugnancy to Injunctions of Islam---According to Injunctions of Islam a court was the final authority to administer justice and give due rights to every individual who needed the same at any time---Court had to decide cases according to the facts and circumstances of each case and determine as to what would be just and beneficial for protection and safeguarding the interests of a minor---Persons in authority (legislature/judges/executive) were duty bound to appoint or terminate guardianship of person and property belonging to minors or disabled persons according to norms of justice, principles of "Ihsan" and besides, also forbid harmful acts, evil deeds, oppressive conduct and fulfil Commandments of Allah as laid down in the Holy Qur'an and Sunnah of the Holy Prophet---Provisions of Guardians and Wards Act, 1890 impugned by the petitioner, which clearly authorized the court to appoint a guardian or a person for the person or property or both for safeguarding interests of a minor, were just for his/her welfare and the court was duty bound to consider all facts and circumstances of each case and pass an appropriate order in accordance with the norms of justice as deemed appropriate for the welfare of a minor---Courts were empowered to appoint or remove guardians, keeping in view the Islamic principles of justice---Shariat petition was dismissed accordingly.

Al-Qur'an Verses 2:133; 31:14; 46:15 and Hadaya pp.327-703 distinguished.

Al-Qur'an Verses 5:42; 4:58: 16:90 and 6:152 ref.

(b) Constitution of Pakistan---

----Art. 203-D(1)---Jurisdiction of Federal Shariat Court---Scope---Repugnancy of a law to Injunctions of Islam---Considerations---Jurisdiction of Federal Shariat Court was restricted to consideration of repugnancy of a law only in light of Injunctions of Islam as contained in the Holy Qur'an and Sunnah of the Holy Prophet---Federal Shariat Court was not at all authorized to decide Shariat petitions in the light of juristic opinions of Fuqaha.

Nemo for Petitioner.

Muhammad Nazir Abbasi, Counsel for Federation.

Saqib Jamal, Manager (Legal) for NADRA.

Hafiz Abdul Qudoos, Asstt. Director for Religious Affairs.

Date of hearing: 30th April, 2013.

2013 M L D 198

[Federal Ombudsman]

Before Musarrat Hilali, Mohtasib

PROTECTION AGAINST HARASSMENT OF WOMEN AT WORKPLACE, ISLAMABAD: In the matter of

Appeal No.9/FOS of 2011, decided on 5th October, 2011.

(a) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

----S. 2(h)---"Harassment", definition of---Scope---Reading of S.2(h) of Protection against Harassment of Women at the Workplace Act, 2010 made it clear that key part of the definition of the word "harassment" was the use of the word unwelcome or uninvited conduct or communication of a sexual nature---Sex-based behaviour should be severe or persuasive enough to alter the conditions of the victim's employment and it should create an abusive working environment or render the workplace atmosphere intimidating, hostile or offensive.

(b) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

----S. 2(h)---Harasssment---Appreciation of evidence---Use of the words "Jahil" and "Badtameez Aurat"---Accused (appellant) allegedly misbehaved with the alleged victim at her workplace in front of other employees and called her "Jahil" and "Badtameez Aurat"---Competent Authority on the recommendation of the inquiry committee permanently transferred the accused to a different unit within the Organization---Contention of accused was that words "Jahil" and "Badtameez Aurat" did not cover the definition of "harassment" as defined under S. 2(h) of Protection against Harassment of Women at the Workplace Act, 2010---Validity---Words "Jahil" and "Badtameez Aurat" did not qualify as "sexual harassment"---Although said words were sufficiently offensive to cause discomfort to a woman but they did not rise to the level of interfering with the alleged victim's work performance as it was an isolated incident, which occurred over a minor dispute---Alleged victim had failed to make out a prima-facie case of sexual harassment---Appeal was allowed and competent Authority was directed to send the accused back to the position from where he was transferred. [pp. 200, 201] A, B & C

Agha Sayyad Ali Raza for Respondents.

2013 M L D 225

[Federal Ombudsman]

Before Ms. Musarrat Hilali, Mohtasib

PROTECTION AGAINST HARASSMENT OF WOMEN AT WORKPLACE ISLAMABAD: In the matter of

Appeal No.1(20)/FOS of 2011, decided on 5th January, 2012.

(a) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

---Ss. 2(l), (n) & (h)---Educational institution/University---Sexual harassment of female student---Applicability of Protection against Harassment of Women at the Workplace Act, 2010---Scope---University being an educational institution was an organization within the meaning of S.2(l) of Protection against Harassment of Women at the Workplace Act, 2010---Sexual harassment as defined in the said Act was not in any way limited in its application to the employees of an organization---Female student, who was part of a University could not be deprived of the remedy provided by Protection against Harassment of Women at the Workplace Act, 2010 if she was sexually harassed.

(b) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

---Ss. 2(h) & (l)---Sexual harassment of a University student---Appreciation of evidence---Accused, who was a lecturer at the University, allegedly asked for sexual favours from the victim/student, promising to pass her in an examination in return---Accused also allegedly made phone calls to the victim and insisted upon her to meet him at his office---Inquiry committee of the University found the accused guilty of sexually harassing the victim and recommended his termination, which recommendation was accepted by the University---Contentions of accused were that Protection against Harassment of Women at the Workplace Act, 2010 was not applicable to educational institutions; that under the said Act only an employee of an institution could file a complaint against her employer for harassing her at the workplace, that victim had made a complaint against him just to pressurize him to grant her more marks, and that he was not given an opportunity to cross-examine the victim---Validity---University being an educational institution was an organization within the meaning of S.2(l) of Protection against Harassment of Women at the Workplace Act, 2010---Victim, who was part of the University could not be deprived of the remedy provided by the said Act if she was sexually harassed---Victim had not made the complaint to pressurize the accused, since she made the complaint on the advice of her fellow students---Accused was given an opportunity to cross-examine the victim and her witnesses but he declined to cross-examine any of them---Present case fell within the definition of "harassment" under S.2(h) of Protection against Harassment of Women at the Work-place Act, 2010---Accused was found guilty of sexually harassing the victim through verbal communication of sexual nature and sexually demeaning attitude---Appeal was dismissed in circumstances.

2013 M L D 201

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

GHULAM HAIDER KHAN and another---Appellants

Versus

ABDUL RASHEED and 6 others---Respondents

Civil Appeal No.40 of 2003, decided on 28th September, 2012.

Civil Procedure Code (V of 1908)---

----Ss. 100 & 103---Second appeal---Power of High Court---Scope---Principle that concurrent findings of fact could not be disturbed in second appeal, though was an approved principle of law, and was also in line with scope of S.100, C.P.C., but when evidence brought on the record was misread or a document was erroneously interpreted, it would become a question of law and the court could interfere in such circumstances, even in second appeal---Section 103, C.P.C., had further made a room for the purpose; as under said section it was obligatory for the High Court to decide the controversy itself when specific evidence was on record.

Muhammad Saeed Segal v. Qazi Khurshid Hassan, Proprietor, India Film Bureau PLD 1964 SC 598; Ansar Ali and others v. Muhammad Ismail Miaji represented by Mahabbat Ali and others 1968 SCMR 302; Allah Bakhsh and another v. Muhammad Ishaque and another PLD 1984 SC 47; Messrs United Cotton Factory, Hyderabad v. Ahmad Khan PLD 1960 (W.P.) Kar. 774; Prof. A, Hameed Kausar v. The State and others PLD 1979 Lah. 727; Messrs Universal Brushes Ltd. v. The Superintendent Central Excise and Land Customs and 2 others PLD 1985 Kar. 132; National Bank of Pakistan v. Alam Industries Ltd. Karachi and 5 others PLD 1992 Kar. 295; Inhabitants of Singola through Muhammad Haneef and another v. Azad Government and 22 others 2001 YLR 3190 ref.

1980 CLC 789 and PLD 1975 SC 311 rel.

Sardar Shamshad Hussain Khan for Appellants.

Raja Asif Kiani for Respondents.

2013 M L D 461

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J. and M. Tabassum Aftab Alvi, J

IQRA EJAZ and 4 others---Petitioners

Versus

MOHI-UD-DIN ISLAMIC UNIVERSITY, NERIYAN SHARIF through Registrar and 2 others---Respondents

Writ Petitions Nos.1135 and 110 of 2012, decided on 2nd November, 2012.

Pakistan Medical and Dental Council Regulations, 1998---

----Regln. III, Cls. 3 & 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition----Educational institution---Examination---Relegation of candidates---Facts of one writ petition were that the petitioners who were granted admission in First year MBBS course in the college, failed in Annual and Supplementary Examination---Petitioner claimed that after obtaining necessary dues, petitioners were promoted to 2nd year MBBS by the college, and that without providing three chances as required by Rules, college authorities were determined to relegate them to Part-I MBBS---Facts of another writ petition were that petitioners who were granted admission in MBBS 1st year appeared in Annual and Supplementary Examination, but failed, however, they were promoted to 3rd year MBBS after obtaining relevant dues---College Authorities, due to failure of the petitioners to pass all the subjects of MBBS Part-I and Part-II (First Professional), decided to revert them---Validity---Petitioners, who were students of 1st year MBBS, could not be relegated on the ground of their failure in certain subjects of Part-I---Statutory bar on the promotion of failed students was confined to from one class to another and not from Part-I to Part-II of the MBBS---Petitioners being students of MBBS Part-II, could not be reverted to MBBS Part-I on the ground of their failure to qualify in certain subjects of Part-I, and would have to be granted three chances for the purpose of passing the failed subjects including Annual Examination---Similarly other petitioners who were promoted to MBBS 3rd year, would also be provided three chances for the purpose; their promotion in 3rd year MBBS being against the provisions of Regln. III(4) of Pakistan Medical and Dental Council Regulations, 1998, they could be relegated to MBBS Part-II, until they availed the facility of third chance for the purpose of clearing the failed subjects---Contention of counsel for the petitioners that an Annual Examination, could not be included in their chances, being baseless, was turned down.

Alaptagin v. Principal, Saidu Sharif Medical College and 3 others PLD 2004 Pesh. 307 and Noor Muhammad Khan and 2 others v. Principal, Ayub Medical College, Abbottabad and 4 others 2003 CLC 753 ref.

Mushtaq Ahmed Janjua for Petitioners.

Sardar Abdul Hamid Khan for Respondents.

2013 M L D 520

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

SAJIDA MAQSOOD---Petitioner

Versus

DEPUTY COMMISSIONER/COLLECTOR DISTRICT MUZAFFARABAD and 3 others---Respondents

Writ Petitions Nos.591 of 2010 and 2137 of 2012, decided on 30th November, 2012.

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

----Ss. 4 & 48(1)---Azad Jammu and Kashmir Land Acquisition Rules, 1994, R.7---Acquisition of land---Denotification or withdrawal from acquisition---Any piece of land, if not required earlier, but later on same was needed, then earlier denotification, would not be an embargo for subsequent acquisition proceedings---Earlier de-award, was also not an embargo on de novo acquisition---Land owner had failed to bring on record that she would become landless in case of acquisition of land in dispute---Acquisition proceedings, however, could not be stopped on the basis of such ground---Land acquisition proceedings were not a direct transaction between a willing vendor and a willing vendee; it was the will, choice and selection of the Government/Authority or company with regard to a land which stood paramount; and land owners had no right to hinder such will, choice and selection except the demand for reasonable compensation---Land in dispute which was awarded in favour of the Authority in the year 1978, could not be cancelled by Prime Minister on the application of land owner by passing orders that the land could be de-awarded.

Muhammad Aslam and 27 others v. Azad Government of State Jammu Kashmir thorugh Chief Secretary Muzaffarabad and 9 others PLD 2012 H.C. (AJ&K) = 2012 CLD 675 and Administrator Municipal Committee, Kotli and another v. Muhammad Abdullah and 3 others 2001 YLR 3367 rel.

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

----S.44---Civil Procedure Code (V of 1908), O. XXIII, R.1---Writ petition---Withdrawal with permission to file fresh writ petition---Scope---Counsel for the petitioner moved an application for withdrawal of writ petition, which application was opposed by State Counsel---Under provision of O.XXIII, Rule 1, C.P.C. a suit could be withdrawn on the ground of any formal defect or other sufficient ground---No formal defect was pointed out in the writ petition already filed on behalf of the petitioner---Before allowing withdrawal application, satisfaction of the court regarding formal defect or other sufficient ground was necessary---Writ petition was filed by the petitioner along with all necessary facts and a plethora of documents---Petitioner could not satisfy the court as to how writ of certiorari, instead of mandamus, was liable to be filed, and a fresh writ petition had no substance for the reason that matter after adjudication on merit had already been finalized and permission to file fresh writ petition would be futile exercise, which would frustrate the judgment and decree already attained finality under law---Withdrawal with permission to file fresh writ petition would deprive acquiring authorities from carrying on a national project, which would defeat the ends of justice and statutory law of the land---Petitioner had moved withdrawal application with permission to file fresh petition for mala fide reasons to retain unlawful possession on the land in question and in order to stop the court from passing any order---No fresh cause of action was urged on behalf of the petitioner and in circumstances of the case, no relief could be extended to the petitioner, even in a fresh writ petition---Withdrawal with permission to file fresh writ, could not be claimed as a matter of right, but for that purpose satisfaction of the court regarding formal defect or other sufficient grounds, was necessary---Application filed by the petitioner for withdrawal with permission to file fresh one, being not maintainable, was rejected and writ petition was dismissed, in circumstances.

Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue Punjab and others PLD 2003 SC 979; Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durrani and others 2001 SCMR 148; Salma Khalil and 3 others v. Rashida Siddiquee and another 2000 CLC 260; Muhammad Ashfaq Khan and 2 others v. AJ&K Government and 4 others 2003 SCR 260 and Messrs Oriental Shipping Co. Ltd., Karachi v. Panaghia Odigitria and 2 others 1991 MLD 148 rel.

Abdul Rasheed Abbasi and Muhammad Yaqoob Khan Mughal for Petitioners.

Ch. Shoukat Aziz, Additional Advocate General and Muzaffar Hussain Mughal, Legal Advisor PWD for Respondents.

2013 M L D 685

[High Court (AJ&K)]

Before Munir Ahmed Chaudhry, J

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 2 others---Appellants

Versus

Kh. ALI MUHAMMAD and another---Respondents

Civil Appeals Nos.110 and 112 of 2008, decided on 30th November, 2012.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18 & 54---Acquisition of land---Determination of compen-sation---Reference to Referee Court---Limitation---Enhancement of amount of compensation---Landowner aggrieved from the assessed amount, filed reference to Referee Court 18 years and 8 months after the of issuance of award, without filing an application for condonation of delay for period of limitation---In view of such inordinate delay in filing reference, landowner should have mentioned in his application of condonation of delay, the exact date on which he came to know that Collector had issued award, but that had not been done---Landowner had remained silent for more than 18 years, and his reference was hopelessly time-barred, and such a long period could not be condoned in any case---Appeal was dismissed accordingly.

2005 SCR 9; 2006 SCMR 602; 2008 SCMR 1280; PLD 2008 SC 400; 2009 CLC 502 and 2009 MLD 1380 ref.

Government of Pakistan and another v. Syed Ghulam Haider Shah and 5 others 2007 SCR 175 rel.

Sardar M.R. Khan, Additional Advocate General for Appellants (in C.P. No.110 of 2008).

Sardar Muhammad Suleman Khan for Appellant (in C.P. No.110 of 2008).

2013 M L D 755

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

WAJID ABBASI---Petitioner

Versus

TAHIRA JAMIL and another---Respondents

Writ Petition No.963 of 2012, decided on 13th October, 2012.

Azad Jammu and Kashmir Family Courts Act, 1993---

----S. 5, Sched.---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Suit for dissolution of marriage---Application for impleading in the line of defendants---Plaintiff (wife) filed a suit for dissolution of marriage against real brother (husband) of the petitioner, who sought to be impleaded in the line of the defendants---Plea of the petitioner was that wife/plaintiff had levelled serious allegations against him in her plaint, without impleading him as a defendant---Application filed by the petitioner for impleading him as defendant in the suit was dismissed---Plaintiff/wife filed suit for dissolution of marriage against real brother (her husband) of the petitioner, inter alia, on the ground of cruelty, maltreatment, non-payment of maintenance to her by her husband; and lurking house-trespass at midnight with intent to commit unnatural act on her by the petitioner---Validity---On the basis of said allegations, no relief could be granted under the law by the Family Court to the petitioner (brother of husband) as he was neither necessary nor proper party in the suit filed by the plaintiff against defendant---Findings given by the court below, therefore, were strictly in accordance with law---Contention that as the impugned order was passed by Additional District Judge, though matter was pending before Judge Family Court, by declaring it as coram non judice, be quashed, was repelled, because Additional District Judge also had exclusive jurisdiction of Family Court and suit was tried by the Judge Family Court---Impugned order could not be deemed as corum non judice, in circumstances.

Piao Gul v. The State PLD 1960 SC 307 and Muhammad Ramzan v. Mst. Khalida Perveen PLD 1971 Lah. 813 rel.

Raja Sajjad Ahmed Khan for Petitioner.

Abdul Rasheed Abbasi for Respondent No.1.

Nemo for Respondent No.2.

2013 M L D 805

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J. and Munir Ahmed Chaudhary, J

HUMA KALEEM and another---Petitioners

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 3 others---Respondents

Writ Petitions Nos.2436 and 2438 of 2012, decided on 28th January, 2013.

Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----S.2---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Educational Institution---Medical College---Admission against seats reserved for disabled persons---Lateral four digits of left foot of first petitioner amputated during earthquake 2005, while left hand little finger of second petitioner amputated as result of crush injury---Cancellation of provisional admission of both petitioners on basis of recommendation of Medical Board for disabled persons---Validity---According to report of the Board, first petitioner could walk normally, thus, she did not fulfil criteria for disability to be considered for such admission while second petitioner was right handed, thus, her left hand injury would not impede her from daily routine work, thus, she did not fulfil criteria for disability to be considered for the admission---Medical Board had relied upon Civil Pension Rules defining classification of degrees of disability, thus, same were relevant and applicable---Medical Board was a proper forum to declare category of disability of petitioners, which was its prerogative to declare the same---Petitioners had no locus standi to file writ petitions---High Court dismissed the petitions in circumstances.

Sadaqat Hussain Raja for Petitioners.

Sardar Shahid Hameed for Respondents.

2013 M L D 1159

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MEHMOOD AHMED and another---Petitioners

Versus

MUHAMMAD BASHIR and 2 others---Respondents

Revision No. 59 of 2012, decided on 22nd May, 2013.

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

----S.12---Suit for specific performance of agreement executed in foreign country---Defendant was not party to such agreement---Validity---Plaintiff could not claim any amount from defendant on basis of such agreement---Courts in Azad Jammu and Kashmir would have no jurisdiction to decide dispute arising out of such agreement for same being executed in a foreign country---Suit was dismissed in circumstances.

2008 SCR 308; 2009 SCR 294; 1999 CLC 954; 2001 CLC 104; 2003 CLC 1744 and 2007 SCMR 933 rel.

2007 SCR 86 rel.

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

----O.XX, R.5---Non-recording of findings issue-wise by court---Violative of provisions of O.XX, R.5, C.P.C.

Sardar Ghulam Mustafa Khan for Petitioners.

Ch. Muhammad Ilyas for Respondents.

2013 M L D 1191

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

Syed SIBTUL HASSAN GILLANI---Petitioner

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 3 others---Respondents

Writ Petition No.151 of 2013, decided on 9th March, 2013.

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

----S. 44---Writ petition---Educational institution---Admission---Special seat created for student from specified areas---Criterion of general quota and special seats---Scope---Where the student who belonged to the specified area, but was found entitled to the admission on merit, special seat for specified area would be available for the best student who could not be nominated on merit against general quota---Candidate entitled for admission on the basis of merit from general quota of seats could not claim a choice against special seat.

Syed Mazhar-ul-Hassan Hamdani and another v. Zubina Nayyar and 10 others 1994 CLC 1428 rel.

Kh. Attaullah Chak for Petitioner.

Nemo for Respondents Nos. 1, 2 and 4.

Sardar Muhammad Hafeez Khan for Respondent No.3.

2013 M L D 1627

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan and Ch. Jahandad Khan, JJ

Mst. NAZIA AZIZ---Appellant

Versus

MUHAMMAD ILLYAS and 6 others---Respondents

Criminal Appeal No.34 of 2005, decided on 4th June, 2013.

Penal Code (XLV of 1860)---

----Ss.427 & 436---Criminal Procedure Code (V of 1898), S.417(2-A)---Mischief causing damage, mischief by fire or explosive substance---Appeal against acquittal---Appreciation of evidence---Trial Court had appreciated the evidence of all the prosecution witnesses, as well of the defence witness in a legal fashion, and keeping in view facts and circumstances of the alleged occurrence---Crime instrument i.e. packet of match was recovered after 4 months, which was planted one---Witnesses had deposed that they had not seen accused themselves, setting the house on fire, whereas, the defence evidence had supported the version of accused persons---Once a person was acquitted of charge by a competent court of law, then he was entitled to double presumption of innocence---Witnesses were interested and related to the complainant party---Some of accused persons were discharged by the Police during the investigation under S.169, Cr.P.C.---Two accused persons had not been served upon and they did not appear before the court and could had not yet passed any order on the statement of Process Server about those two accused---Favouring order could be passed against the absent accused person as in the case of other accused---Prosecution had failed to prove its case---Acquittal order recorded by the Trial Court was upheld and appeal against acquittal, was dismissed, in circumstances.

2011 SCR 324 and 2009 SCR 470 rel.

Mushtaq Ahmed Janjuha for Appellant.

Raja Sadaqat Hussain for Respondents.

A.A.-G. for the State.

2013 M L D 1759

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

Sardar WAHEED HUSSAIN KHAN and another---Petitioners

Versus

DIRECTOR GENERAL SEERA AZAD JAMMU AND KASHMIR and 4 others---Respondents

Writ Petition No.1163 of 2012, decided on 14th June, 2013.

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

----Ss. 44 & 15---Writ petition---Equality before law---Affidavit---Construction work---Price adjustment---Price adjustment was denied to be paid to the petitioners/contractors by the Department---Other contractors had been paid the subject amount---Refusal to pay lawful dues was not justified---Petitioners were being treated with discrimination---Writ petition was supported with affidavit but the respondents who had to make payment neither appeared nor filed written statement or counter affidavit---Writ petition supported by affidavit could be rebutted only by filing counter affidavit---Writ petition was accepted and Authority was directed to pay all the dues according to price adjustment formula.

PLD 1998 SC (AJ&K) 7 rel.

Raja Sajjad Ahmed Khan for Petitioners.

Mazhar Waheed for Respondent No.1.

2013 M L D 1922

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD AZIZ KHAN---Petitioner

Versus

CUSTODIAN EVACUEE PROPERTY, AZAD GOVERNMENT, MUZAFFARABAD and 8 others---Respondents

Writ Petition No.393 of 2004, decided on 1st April, 2013.

Pakistan (Administration of Evacuee Property) Act (XII of 1957)---

----S.43---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Limitation Act (IX of 1908), S.5---Writ petition---Custodian of Evacuee Property---Power of review---Limitation---Time-barred review petition---Scope---Custodian of Evacuee Property accepted time-barred review petition filed after eight years of allotment of property---Thirty days limitation period was prescribed under the Pakistan (Administration of Evacuee Property) Act, 1957---Validity-No explanation for delay was given by the petitioners---Review petition filed after the lapse of eight years without showing explanation of delay---Custodian of Evacuee Property had accepted review petition without lawful authority---Judgment and order of the Custodian were set aside---Writ petition was accepted.

2001 CLC 1149 ref.

Syed Nazir Hussain Shah Kazmi for Petitioner.

Nemo for Respondents.

2013 M L D 45

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

MUHAMMAD SARWAR and 9 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and another---Respondents

Writ Petition No.4664 of 2010, decided on 12th October, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Financial controversies---Laches---Employees of authority having non-statutory rules---Petitioners retired from Security and Exchange Commission and their grievance was that authorities had not calculated their pension in accordance with the rules---Validity---Rules of Security and Exchange Commission of Pakistan were non-statutory and one petitioner retired in year, 2002, whereas remaining two retired in the year, 2007---Departmental representations were submitted by petitioners in January 2010, while petition was filed on 30-10-2010 without any justifiable reason for approaching High Court with such a delay, and therefore, petition suffered from laches---Calculation of pension dispute involved financial controversies, which could not be appreciated under constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Petitioners.

Standing Counsel for Respondent No.1.

Muhammad Bilal, Advocate Supreme Court and Babar Bilal, Advocate Supreme Court for Respondent No.2.

Date of hearing: 26th September, 2012.

2013 M L D 87

[Islamabad]

Before Iqbal Hameedur Rehman, C.J.

MUHAMMAD ILYAS alias QARI JAMIL and another---Petitioners

Versus

FEDERAL REVIEW BOARD through Secretary, Supreme Court Building, Islamabad---Respondent

Writ Petition No.664 of 2012, heard on 23rd May, 2012.

Constitution of Pakistan---

----Arts. 9 & 199---Constitutional petition---Right of liberty---Detention period, extension in---Detention of petitioners was repeatedly extended by Federal Review Board---Validity---Petitioners could not be allowed to remain under detention for unlimited period through repeated extensions in absence of any fresh allegation / incriminating evidence being produced against them by authorities---Extension order of detention was passed in clear violation of fundamental rights of citizens guaranteed under Art. 9 of the Constitution, curtailing liberty of petitioners and High Court declined to allow the same in any circumstances---Extension order of detention of petitioners was passed in violation and against fundamental right of liberty guaranteed under Art. 9 of the Constitution, and the same was declared illegal and was set aside---High Court directed the authorities to set petitioners at liberty---Petition was allowed in circumstances.

Government of West Pakistan v. Haider Bux Jatoi and another PLD 1969 SC 210; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad 1997 SCMR 141; Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632; Muhammad Ikram Chaudhry and others. v. Federation of Pakistan and others PLD 1998 SC 103; Messrs Nusrat Elahi and 41 others v. the Registrar, Lahore High Court Lahore and 68 others 1991 MLD 2546 and Asif Saeed v. Registrar, Lahore High Court and others PLD 1999 Lah. 350 ref.

Sadat Ullah v. Secretary Home Department and others PLD 1986 Quetta 270 rel.

Basharat Ullah Khan for Petitioners.

Tariq Mahmood Janahgiri, Deputy Attorney-General for Respondents.

Col (R) Fayyaz Hussain Ch. Directorate General ISI.

Date of hearing: 23rd May, 2012.

2013 M L D 118

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Dr. Raja MUHAMMAD KAMRAN---Petitioner

Versus

SHAHEER CONSTRUCTIONS through Rao Naveed Aftab (Partner) and 3 others---Respondents

Writ Petition No.428 of 2012, decided on 23rd February, 2012.

(a) Administration of justice---

----Court---Exercise of discretion-Scope---Courts are not obliged to exercise their discretion in favour of those litigants who approach the courts with unclean hands, concealment of facts and dishonest intent.

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

----S. 115---Revision petition filed without appending required documents--Said revision petition was allowed by Revisional Court---Legality---Revisional Court mislead itself by not adhering to mandatory requirement of law and authoritative pronouncements of superior courts---Order of Revisional Court was set aside--Constitutional petition was allowed accordingly.

1991 MLD 1774; 1996 CLC 580; 2004 MLD 1107 and 2004 CLC 1229 ref.

Mst. Banori v. Jilani through Legal Heirs and others PLD 2010 SC 1186 rel.

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

----O. XXVI, Rr. 9 & 10 & O. XXXIX Rr. 1 & 2---Objections on report of local commission---Temporary injunction, grant of---Scope---No where was it provided in law that in all eventualities objections filed on report of local commission must be decided before decision on application for grant of temporary injunction.

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

----O. XXXIX Rr. 1 & 2---Temporary injunction, grant of---Scope---For decision on application for grant of temporary injunction, any applicant was required to establish his prima facie case and other two ingredients of irreparable loss and balance of convenience---Courts were not supposed to seek and establish evidence for any party for decision on application for grant of temporary injunction.

Mian Abdul Razzaq for Petitioner.

Raja Ansar Abbas for Respondent No.1.

Date of hearing: 23rd February, 2012.

2013 M L D 255

[Islamabad]

Before Shaukat Aziz Siddiqui, J

FEDERAL EMPLOYEES COOPERATIVE HOUSING SOCIETY, ISLAMABAD through President---Petitioner

Versus

CAPITAL DEVELOMENT AUTHORITY, Islamabad through Chairman and another---Respondents

Writ Petition No.349 of 2012, decided on 17th March, 2012.

(a) Capital Development Authority Ordinance (XXIII of 1960)---

----Ss. 9, 10 & 11---Constitution of Pakistan, Art. 199---Constitutional petition---Development Authority---Permission for plantation and beautification of State-owned land---Petitioner was a Housing Society, and had obtained permission from Development Authority for plantation and beautification of land owned by the Authority---Said permission was subsequently withdrawn---Contention of the petitioner Housing Society was that a vested right had been created in their favour when said permission was granted, and prayed that withdrawal of the same be declared illegal---Validity---Executive functionaries being custodians of State land were bound to protect the same from invasions, misuse and encroachments, and if such executive functionaries failed to perform their duties, the presumption would be that they were privy to criminal acts---No mechanism existed through which permission for plantation and beautification were accorded and for ascertaining as to how much land should be handed over to societies and under what conditions and prescribed limits---High Court observed that such practices were adopted to open gates of corruption---Acts of the Housing Society constituted criminal offence or criminal breach of trust as State land was entrusted to the Society as a trustee, and the Society's management misappropriated and converted the same to its own use---No vested right accrued to the Society---No fundamental right of the Society had been infringed---Constitutional petition was dismissed, in circumstances.

Jubilee Park's case PLD 2006 SC 394; Ardeshir Cowasjee's case 1999 SCMR 2883; Shehla Zia's case PLD 1994 SC 693; Parner Oilver's case PLD 1999 SC 26; Manzoor Bhatti's case PLD 2002 Lah. 412 and Faiz Buksh and others v. Deputy Commissioner and others 2006 SCMR 219 rel.

(b) Executive functionaries---

----Duty of---State land- Executive functionaries being custodians of State land were bound to protect the same from invasions, misuse and encroachments, and if such executive functionaries failed to perform their duties, the presumption would be that they were privy to criminal acts.

(c) Capital Development Authority Ordinance (XXIII of 1960)---

----Ss. 9, 10 & 11---Housing Society---Permission for plantation and beautification of land owned by the Authority---Enforcement---Directions given to Capital Development Authority stated.

Syed Zulfiqar Abbas Naqvi and Mudassar Hussain Malik for Petitioner.

Malik Muhammad Saeed Khan, Haseeb Muhammad Ch. and Ashiq Ali Ghori, Director (Housing Societies) for Respondents.

Date of hearing: 8th March, 2012.

2013 M L D 338

[Islamabad]

Before Shaukat Aziz Siddiqui, J

Lt. Col. (Retd.) MUHAMMAD AZHAR---Petitioner

Versus

FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN

through Chief Commissioner and others---Respondents

Writ Petitions Nos.2239 and 2255 of 2009, decided on 26th April, 2012.

(a) Cooperative Societies Election Rules, 2004---

----R. 5(2)---Cooperative Societies Act (VII of 1925), S. 71---Notification 1(151)-Law/2006-2179 dated 23-5-2011---Constitution of Pakistan, Art. 199---Constitutional petition---Bar on candidates contesting election for third term---Petitioners impugned amendment through Notification 1(151)-Law/2006-2179 23-5-2011 to Rule 5(2) of the Cooperative Societies Election Rules, 2004 whereby bar on contesting elections for third term was imposed, on the ground that same was done without lawful authority---Contention of the petitioners was that said notification was not issued on the instructions of the Federal Government or the President but upon the suggestion of the National Accountability Bureau (NAB)---Validity---Said amendment was brought into Rule 5(2) of the Cooperative Societies Election Rules, 2004 firstly on suggestion of NAB and thereafter on recommendation of Standing Committee of the Senate---Amendment to any statute and rules framed thereunder was prerogative of the legislature which could be achieved through prescribed mode and the required procedure while exercising care and caution so that proposed amendment may not offend guaranteed Constitutional Rights---Entire procedure of bringing amendment to rules was alien to the law and without jurisdiction and said ban on third term was against democratic values, settled norms and scheme of the Constitution---Any amendment to statute or rules framed thereunder which was inconsistent with theme of the Constitution and penal in nature could not be allowed, more particularly when the same came from the executive while adopting a novel procedure---Amendment through Notification 1(151)-Law/ 2006-2179 dated 23-5-2011 to Rule 5(2) of the Cooperative Societies Election Rules, 2004 was declared as illegal and unconstitutional and was set aside---Constitutional petition was allowed, in circumstances.

(b) Interpretation of statutes---

----Amendment to statute and rules framed thereunder---Procedure elucidated.

Abdul Wahid Qureshi for Petitioner.

Rehan-ud-Din Khan, Standing Counsel.

Raja Inam Amin Minhas and Ch. Waqas Zamin for Respondents.

Malik Deen, Circle Registrar, Co-operative Housing Societies.

2013 M L D 503

[Islamabad]

Before Iqbal Hameedur Rahman, C.J.

ALI ASGHAR---Petitioner

Versus

Syed ZAFAR HUSSAIN SHAH and 2 others---Respondents

Writ Petition No.3072 of 2012, heard on 28th September, 2012.

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

----Ss. 22-A & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Justice of Peace giving directions for registration of two separate F.I.Rs. on the same set of allegations without considering the police report---Legality---Complainant/respondent alleged that he had been dispossessed illegally from the disputed land by the accused/petitioner---Accused made the same allegation against the complainant---Both accused and complainant filed separate applications before Justice of Peace under S. 22-A, Cr.P.C., which applications were accepted and Justice of Peace ordered police for registration of F.I.R. against both the accused and the complainant---Accused contended that as per police report occurrence as alleged by complainant was found to be false; that Justice of Peace did not take into consideration such police report, and that no reason was given by Justice of Peace while accepting application of complainant filed under S.22-A, Cr.P.C.---Validity---Two F.I.Rs. with regard to the same allegation of taking forcible possession of the same land could not be registered---Justice of Peace at most could have ordered for registration of F.I.R. by accepting one of the applications under S. 22-A, Cr.P.C. of either the accused or the complainant, and further if the other application was to be accepted then only a cross-version could be ordered to be recorded---Both the orders for registration of criminal cases had been passed by the Justice of Peace in a mechanical manner without taking into consideration the police report and material available on record---Constitutional petition was allowed, impugned order of Justice of Peace was set aside by High Court with the observation that both parties had levelled almost the same allegations against each other, and since F.I.R. initiated by accused had already been registered, therefore, complainant could at most get recorded his cross-version in the said F.I.R. or in alternate complainant might file a private complaint before the Court of competent jurisdiction.

Muhammad Mushtaq v. Additional Sessions Judge, Lahore and others 2008 YLR 2301 rel.

Ch. Shah Muhammad v. S.H.O. Rahimyar Khan and 2 others 1977 PCr.LJ 2 and Muhammad Bashir v. Station House Officer Okara Cantt. and others PLD 2007 SC 539 ref.

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

----S. 154---Registration of F.I.R.---Scope---Police had no power to first investigate the matter and then register the criminal case.

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

----Ss. 22-A---Matters to be taken into consideration by the Justice of Peace before issuing directions for registration of F.I.R.---Scope---While deciding application under S. 22-A, Cr.P.C., Justice of Peace was required to take into consideration the complaint including facts and circumstances of the case and also the report of the police, rather than deciding the same in a mechanical manner without giving reasons for allowing registration of case.

Ch. Abdul Aziz for Petitioner.

Ch. Hafeezullah Yaqoob for Respondent No.1.

Tariq Mahmood Jahangiri, Deputy Attorney-General for the State.

Iftikhar, S.I.

2013 M L D 553

[Islamabad]

Before Shaukat Aziz Siddiqui, J

ABDUL MAJEED---Petitioner

Versus

S.S.P., ISLAMABAD and 4 others---Respondents

Writ Petition No.2436-Q of 2012, decided on 9th October, 2012.

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

----Ss. 403 & 154---Penal Code (XLV of 1860), Ss. 406/420/468/471---General Clauses Act (X of 1897), S. 26---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of F.I.R.---Registration of two F.I.Rs. surfacing from the same transaction and containing almost similar allegations---Legality---Accused/petitioner allegedly defrauded the complainant in respect of transfer of a property---Accused contended that prior to lodging of present F.I.R. registered under S.406, P.P.C., complainant managed registration of another F.I.R. under Ss. 420, 468 and 471, P.P.C. on the same issue, therefore, proceedings in present F.I.R. were in violation of S. 403, Cr.P.C. and S.26 of General Clauses Act, 1897---Validity---Contents of present F.I.R. and the one registered earlier showed that both of F.I.Rs. surfaced from the same transaction and contained almost similar allegations---No person/authority could be allowed to curtail the liberty of any person on the basis of same accusations-Registration of present F.I.R. was an example of arbitrary exercise of authority and abuse of process of law---Constitutional petition was allowed and present F.I.R. was quashed.

(b) Constitution of Pakistan---

---Art. 199---Constitutional jurisdiction of High Court---Scope-Unlawful acts of police officials---High Court in its constitutional jurisdiction had discretion to declare any act of police officials to be without lawful authority.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Quashing of F.I.R.---High Court could quash an F.I.R. in its constitutional jurisdiction where police/authorities had no jurisdiction to register the F.I.R., or where no offence was constituted from admitted contents of the F.I.R., or where contents of F.I.R. showed that matter was purely of civil nature.

1993 SCMR 71; 2000 SCMR 122 and 2012 SCMR 94 rel.

1996 SCMR 186; 2006 SCMR 276 and 2001 SCMR 1165 ref.

Raja Rizwan Abbassi for Petitioner.

Zaheer Bashir Ansari for Respondent No.4.

Javed Iqbal, Standing Counsel.

Ishtiaq, A.S.-I.

2013 M L D 679

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

TAUSEEF AHMAD---Petitioner

Versus

FAUZIA AKRAM and another---Respondents

Writ Petition No.311 of 2013, decided on 7th February, 2012.

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

----S. 11 & 5---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and dower---Production of evidence---Husband impugned order of Family Court whereby his right to produce documentary evidence was closed on the ground that despite having given the last opportunity, the husband did not produce evidence---Validity---Interest of justice would be served if the husband was given a final opportunity to adduce his version as in the impugned order, the husband was afforded the last opportunity to submit reply to the application for production of documents and the case was, therefore, on that day, not fixed for production of documents---Constitutional petition was allowed, in circumstances.

(b) Administration of justice---

----Spirit of the law was to impart justice, substantial in nature, which could only be done after hearing both sides and following the principles of merit instead of technical knockout---Technicalities of law are always to be avoided in order to do complete justice and to ensure that justice is not only done but also seen to be done---Rules of procedure are enacted for fostering the ends of justice and for preserving rights rather than to stifle the dispensation of justice and unless they are insurmountable, ends of justice always overweigh the manner of practice and procedure---Justice at no cost and at no stage should be allowed to fall prey to procedural technicalities which may be ignored if they tend to create hurdles in the way of justice.

Syeda Tahira Begum and another v. Syed Akram Ali and another 2003 SCMR 29; Muhammad Bashir and another v. Province of Punjab through Collector of District Gujrat and others 2003 SCMR 83; Riaz Hussain and others v. Muhammad Akbar and others 2003 SCMR 181 and Syed Sharif ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others 2012 SCMR 1258 rel.

Karim Nawaz for Petitioner.

Anis-ud-Din for Respondents.

2013 M L D 698

[Islamabad]

Before Iqbal Hameedur Rahman, C J

WAJID HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.662-B of 2012, decided on 23rd January, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso---Penal Code (XLV of 1860), S. 365-B---Kidnapping, abducting or inducing woman to compel for marriage etc.---Bail, refusal of---Statutory delay in conclusion of trial---Scope---Absence of co-accused delaying conclusion of trial---Effect---Delay in conclusion of trial had occurred due to the co-accused who absented themselves from appearing before the Trial Court-One of the co-accused was stated to be the wife of the accused---Third proviso to S.497(1), Cr.P.C could not be invoked by the accused in such circumstances as he had failed to assert that delay in conclusion of trial had been wholly or partly caused by the prosecution---Bail application of accused was dismissed in circumstances.

Khalid Dad, and others v. The State 1982 PCr.LJ 713 rel.

Ch. Muhammad Khan for Petitioner.

Tariq Mahmood Jahangiri, Deputy Attorney-General and Raja Rizwan Abbasi for the Complainant.

Abbas, A.S.-I.

2013 M L D 736

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

ABID MAHMOOD MALIK---Petitioner

Versus

S.H.O., POLICE STATION MARGALLA and others---Respondents

Criminal Miscellaneous No.22-Q of 2012, decided on 29th January, 2013.

Penal Code (XLV of 1860)---

----S. 489-F---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 20 & 7---Cheque issued to Financial Institution for repayment of loan---Dishonouring of cheque---Quashing of F.I.R. under S.489-F, P.P.C.---Petitioner sought quashing of F.I.R. filed against him on the ground that since dispute was between a Financial Institution and customer, therefore, the sole jurisdiction in the matter vested with the Banking Court under Financial Institutions (Recovery of Finances) Ordinance, 2001---Validity---Financial Institutions (Recovery of Finances) Ordinance, 2001 being a special enactment had an overriding effect on ordinary law, therefore, the petitioner could not be proceeded with under provisions of the P.P.C. and only remedy available for the Financial Institution was to invoke provisions of S. 20 of the Ordinance by filing a direct complaint under S. 7(1)(b) of the Ordinance---Prosecution of the petitioner under S. 489-F, P.P.C. was an abuse of the process of the court and was without lawful authority---Financial Institution was debarred from taking advantage of S. 489-F, P.P.C.---F.I.R. against the petitioner was quashed, in circumstances.

Yasir Tanveer Awan for Petitioner.

Shabbir Ahmad Abbasi, Standing Counsel with Imran Ali Khan for the Complainant/Respondent No.3.

Ishtiaq Ahmad, A.S.-I. with record.

2013 M L D 812

[Islamabad]

Before Muhammad Anwar Khan Kasi and Shaukat Aziz Siddiqui, JJ

Messrs GLAUSER INT.---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY and others---Respondents

Criminal Original No.100-W of 2008, decided on 14th February, 2013.

(a) Administration of justice---

---Filing of repetitive petitions on the same subject matter asking for the same relief---Permissibility---Litigant could not be allowed to file such petitions.

Syed Masood Alam Rizvi and others v. Dr. Muhammad Saeed 2009 SCMR 477 rel.

(b) Contempt of Court Act (LXIV of 1976)---

----Ss.3 & 4---Contempt of court---Application seeking withdrawal of petition for contempt of court with permission to file a fresh one---Competency---Matter of contempt being between the court and the alleged contemnor, it was up to the court either to take any appropriate action against the alleged contemnor or drop the matter.

Syed Masood Alam Rizvi and others v. Dr. Muhammad Saeed 2009 SCMR 477 rel.

Muhammad Kamal Hassan for Petitioner.

Umar Hanif Khichi and Mian Muhammad Hanif, AL-CDA for Respondents.

2013 M L D 877

[Islamabad]

Before Noor-ul-Haq-N Qureshi and Azim Khan Afridi, JJ

JAMEELA PIRZADA and 3 others---Appellants

Versus

MUHAMMAD ALI SHEIKH and 2 others---Respondents

R.F.As. Nos. No.20 of 2011 and 70 of 2010, decided on 18th October, 2012.

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

----O.XII, R.6---Judgment on admission---Scope---prerequisites for passing a judgment on admission of any party stated.

Court may make order or pass judgment under Order XII, R.6, C.P.C. as it may think just, when the following pre-requisites were found co-existing:

(i) When admissions of facts were made in pleadings or otherwise and;

(ii) When a party seeking order or judgment on basis of such admissions of facts applied to the Court for such order or judgment, and

(iii) When such application was made without waiting for determination of any other question between the parties. [p. 880] A

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

----O.XII, R.6 & S.96---Judgment on admission---Scope---Suits for specific performance of contracts was decreed ex parte against defendants---Contention of plaintiffs during present appellate proceedings, was that, notwithstanding the other legal aspects of the case, only on basis of allegations made in the plaints and narrations made in the written statements, the grant of a decree was justified in terms of O.XII, R.6, C.P.C. (Judgment on admission of defendants)---Validity---Plaintiffs had submitted no applications as required under O.XII, Rule 6, C.P.C. and the Trial Court proceeded with the suits by framing issues and partially recording evidence and then ex parte decree was passed---Party which failed to make an application in a suit for order or judgment on basis of admission of facts or found it suitable and appropriate to proceed with the suit could not later be permitted to claim order or judgment on such contention---Plea of judgment on admission was limited to proceedings in a suit and that too, without waiting for determination of any other question between the parties and once proceedings were finalized, then provision of O.XII, Rule 6, C.P.C. would lose significance---Appeal of a defendants was allowed, and case was remanded to Trial court.

PLD 1975 Lah. 1399; PLD 1987 SC 1; PLD 1978 Lah. 245 and 1999 SCMR 1362 rel.

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

----O.IX, R.6---Ex parte decree, grant of---Absence of defendant was not intentional---Effect---Defendant, in present case, went missing and failed to contest the suit---High Court observed that since the absence of the defendant was not intentional, as such, his case could not be considered at par with case of a party which would deliberately avoid appearance either in person or through counsel---Party with ulterior object to defeat or delay or frustrate the litigation or was grossly negligent, or failed to appear without sufficient cause; was to be penalized by way of passing an ex parte decree; however, such principle of law would not extend to cover an eventuality of the nature where the defendant went missing.

Ms. Samina Khan and Adnan Muhammad Khan for Appellants.

Muhammad Munir Peracha, Nauman Munir Peracha and Syed Javed Akbar for Respondents.

Ch. Haseeb Muhammad for Respondent No.3.

Date of hearing: 9th October, 2012.

2013 M L D 888

[Islamabad]

Before Muhammad Anwar Khan Kasi, J

TAMRAIZ JAVAID MASIH---Petitioner

Versus

The STATE---Respondent

Criminal Revision No.57 of 2012, decided on 4th February, 2013.

Criminal Procedure Code (V of 1898)---

----S. 540---Power of court to re-summon material witness for re-examination---Scope---Re-summoning and re-examination of doctor/ prosecution witness, who failed to get exhibit Medico-legal report (MLR) of injured during his evidence---Application under S.540, Cr.P.C filed by injured/complainant for recalling doctor/prosecution witness was dismissed by Trial Court on the ground that same had been filed after 3 ½ years and it also lacked merits as lacunae in the prosecution case could not be filled at a later stage---Validity---Complainant had allegedly received injuries and was medically examined, but doctor/prosecution witness in his statement failed/ omitted to get exhibit Medico-legal report (MLR) of the complainant and also failed to give his statement to such effect---Recalling doctor/prosecution witness for re-examination due to such omission on his part could not be considered as an improvement in the case of the prosecution---Accused side would have a right to cross-examine the doctor/prosecution witness---Order of Trial Court was set aside with direction to re-summon and re-examine doctor/prosecution witness qua Medico-legal report (MLR) of complainant by extending opportunity of cross-examination to the accused---Petition was allowed accordingly.

Ansar Mehmood v. Abdul Khalid and another 2011 SCMR 713 rel.

2002 PCr.LJ 78; 1995 PCr.LJ 730; PLJ 2009 FSC 200; 1992 PCr.LJ 729 and 2006 PCr.LJ 110 ref.

Muhammad Zafar Khokhar for Petitioner.

Shabbir Ahmad Abbasi, learned Standing Counsel.

Mukhtar Ahmad Tarar and Syed Tanvir Suhail Shah for Respondent.

2013 M L D 935

[Islamabad]

Before Shaukat Aziz Siddiqui, J

FARID-UD-DIN---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD and others---Respondents

Writ Petitions Nos.561 and 607 of 2013, decided on 18th February, 2013.

Capital Development Authority Ordinance (XXIII of 1960)---

----Ss.37 & 49---Islamabad Land Disposal Regulations, 2005, Reglns. 4 & 5---Constitution of Pakistan, Art. 199---Constitutional petition---Decision of Board of Capital Development Authority declaring all deputationists on its strength eligible to get allotment of residential plot on fulfilling required criteria---Petitioner, as employee of Federal Government having served the Authority on deputation claimed allotment of plot on basis of said decision of Board---Refusal of the Authority to allot plot to petitioner---Validity---Powers conferred on the Authority to dispose of its land would be regulated through Reglns. 4 & 5 of Islamabad Land Disposal Regulations, 2005---Neither the Authority had appointed petitioner nor had he been absorbed in the Authority---Petitioner could avail right of allotment of plot under 10% quota reserved for Federal Government servants, but he being deputationist could not claim allotment as employee of the Authority---Such decision of Board considering deputationists to be having equal status of regular employees of the Authority was a door of corruption and was not backed by the Constitution---High Court dismissed constitutional petition in circumstances.

Sher Afzal Khan for Petitioner.

2013 M L D 1054

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

JEHANZEB and 3 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision No.16 of 2013, decided on 11th March, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 408(b) & 30---Appeal from sentence passed by Judicial Magistrate under S. 30, Cr.P.C.---Forum---Accused persons were convicted by Judicial Magistrate under S. 30, Cr.P.C. and sentenced to seven years imprisonment and fine---Accused persons filed appeal against their conviction before the Additional Sessions Judge, which was dismissed being coram non judice and returned for presenting before the High Court in view of S. 408(b), Cr.P.C.---Legality---Section 408(b), Cr.P.C. stated that a sentence of imprisonment for a term exceeding 4 years, passed by Assistant Sessions Judge, shall be appealable to the High Court---Word "Magistrate/Judicial Magistrate" did not find mention in S. 408(b), Cr.P.C., therefore, said section was not applicable in case of a sentence passed by a Magistrate under S. 30, Cr.P.C.---Impugned order was set aside with the direction that appeal before the Additional Sessions Judge should be considered to be pending---Revision petition was allowed accordingly.

Aman Ullah v. The State 2005 PCr.LJ 1435 rel.

Sardar M. Aftab for Petitioner.

Tariq Mehmood Jehangiri, D.A.-G. with Shamas, S.I. for the State.

Binyamin Abbasi for Respondent No.2.

2013 M L D 1466

[Islamabad]

Before Muhammad Anwar Khan Kasi, C J

JOODAT KAMRAN ALVI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.2079 of 2013, decided on 16th May, 2013.

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

----S.5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Deferred dower---Entitlement---Husband contended that amount of deferred dower could not be claimed till divorce between parties or death of husband---Validity---Deferred dower was payable on demand and wife had Sharai and legal right to demand deferred dower, whenever she wanted---Family Court as well as Lower Appellate Court discussed evidence and material available on record and High Court while exercising powers under Art. 199 of the Constitution could not enter into exercise of re-assessment of evidence---Findings of both the courts below did not suffer from any illegality or material irregularity warranting interference by High Court---Petition was dismissed in circumstances.

PLD 1980 Kar. 477 and 1996 CLC 272 ref.

Adnan Haider Randhawa for Petitioner.

2013 M L D 1524

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

NASEEM alias FAHIM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.233-B of 2013, decided on 15th May, 2013.

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, common object---Bail, refusal of---Name of accused specifically figured in the F.I.R., with a specific role, which was promptly lodged---Counter version was got lodged after a considerable delay, which prima facie cast serious doubt---Was not permissible to dive deep in the merits of the case at bail stage, but only cursory perusal of the prosecution evidence and material collected by the Investigating Agency, had to be taken into consideration which prima facie, would prove the involvement of accused in the commission of offence---Accused had actively participated in the commission of offence---Accused along with co-accused, pre-planned a scheme, and in execution of such plan, participated in the commission of the offence---Principle of vicarious liability, was applied with full force, in circumstances---Accused was involved in a heinous offence, which fell within the prohibitory clause of S.497, Cr.P.C.---Presence of accused at the place of occurrence, had not been specifically denied by the counsel for accused---Prosecution possessed sufficient incriminating evidence against accused and his co-accused---Accused being not entitled to the concession of bail, his bail petition was dismissed, in circumstances.

Raja Muhammad Nadeem Kiani for Petitioner.

Raja Muhammad Shakil Abbasi, Standing Counsel assisted by Raja Rizwan Abbasi for the Complainant.

Muhammad Akbar, S.I. with record.

2013 M L D 1538

[Islamabad]

Before Shaukat Aziz Siddiqui J

ASHFAQ AHMED---Petitioner

Versus

C.D.A. and others---Respondent

Writ Petitions Nos. 2303, 2209, 2108, 763 and 4196 of 2012 and 770, 325 and 345 of 2013, heard on 10th April, 2013.

Islamabad Land Disposal Regulations, 2005---

----Reglns. 2(f), 4 & 5---Capital Development Authority Ordinance (XXIII of 1960), S. 49---Constitution of Pakistan, Art. 199---Constitutional petition---Capital Development Authority, employees of---Residential plots out of 20% quota reserved for allotment to such employees from Government Officers Housing Schemes developed by Authority---Allotment of plots by Authority to deputationists and regular employees having service length less than 10 years---Validity---Government servants serving in Capital Development Authority could not be equated with its regular employees---Allotment of plots to deputationists out of such quota would violate fundamental rights of their colleagues working in parent department as well as rights of regular employees of the Authority---Equation of deputationists with regular employees of Authority would open doors of corruption, nepotism and illegal allotments of plots out of such quota to deputationists---Deputationists could claim allotment of plots out of 80% remaining quota reserved for employees of Federal Government---Provision of Regln. 2(f) of Islamabad Land Disposal Regulations, 2005 to the extent including deputationists as employees of Authority was against the Constitution and violative of fundamental rights of its regular employees---Reduction of length of service to eight years for employees of BS-1 to 16 by Authority on influence of Employees Union was unjust as thereby a senior employee in higher grade was made to wait for two years than this subordinate employee or such allotment---High Court declared provision of Regln. 2(f) of Regulations, 2005 to extent of including deputationist as employee of the Authority and such reduction in length in service as illegal and void, while observing that required length of service would remain ten years for all employees irrespective of their grade.

Niaz Ullah Khan Niazi for Petitioner (in Writ Petition No.2303 of 2012).

Hafiz Arfat Ahmad Ch. for Petitioner (in Writ Petition No.2108 of 2012 and 345 of 2013).

Nabeel Rehman, Advocate for Petitioner (in Writ Petition No.763 of 2012).

Rai M. Nawaz Kharal and Ali Nawaz Kharal for Petitioner (in Writ Petition No.4196 of 2012).

Malik Muhammad Nawaz for Petitioner (in Writ Petition No.2209 of 2012 and Writ Petition No.770 of 2013).

Farman Ullah for Petitioner (in Writ Petition No.325 of 2013).

Atta Ullah Hakim Kundi, S.M. Bukhari and Barrister Momin Ali Khan for Respondent (CDA).

Muhammad Nazir Jawad for Respondent (CDA) (in Writ Petition No.2209 of 2012).

Syed Asad Ali Saeed for Respondents Nos. 5 to 7 (in Writ Petition No.2303 of 2012).

Malik Muhammad Nawaz for Respondents (in Writ Petition No.2108 of 2012).

Rai Muhammad Nawaz Kharral and Rai Ali Nawaz Kharal for Respondents (in Writ Petition No.2209 of 2012).

Ahmed Bashir for Respondents (in Writ Petition No.2209 of 2012).

Hafiz Arfat Ahmed for Respondents (in Writ Petition No.325 of 2013 and (Writ Petition No.2209 of 2012).

Date of hearing: 10th April, 2013.

2013 M L D 9

[Sindh]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

MUHAMMAD ZAHID MAQSOOD---Petitioner

Versus

UNIVERSITY OF KARACHI through Vice Chancellor and 4 others---Respondents

Constitutional Petition No.D-1577 and C.M.A. No.15474 of 2011, decided on 30th August, 2012.

University of Karachi Act (XXV of 1972)---

----S. 48---Civil Procedure Code (V of 1908), S.114---Constitution of Pakistan, Art. 199---Constitutional petition---Review of judgment---Statutory rules---Determination---Petitioner was employee of Karachi University and after dismissal of his petition, sought review of judgment to determine statutory nature of rules of Karachi University---Validity---Statutes of Karachi University were proposed by Syndicate and were required to be approved by Senate and there was no provision for approval of the same by the Government---Regulations were prepared by Academic Council and were approved by Syndicate and there was no requirement of approval by the Government---If rules, regulations or statutes were framed under University of Karachi Act, 1972, those could not have the status of statutory rules---Section 48(2)(b) of University of Karachi Act, 1972, provided that Rules were deemed to be statutes, regulations or rules, they could not be treated or as having been conferred the status of statutory rules---Rules and Ordinances of University of Karachi were not statutory in nature---Review application was dismissed in circumstances.

Muhammad Nawaz v. Civil Aviation Authority and others 2011 SCMR 523 and Chief Manager State Bank of Pakistan, Lahore and another v. Muhammad Shafi, 2010 PLC (C.S.) 1088 ref.

Abdul Salam Memon for Petitioner.

Moin Azhar Siddiqui and Adnan Karim, A.A.-G. for Respondents.

Date of hearing: 15th August, 2012.

2013 M L D 33

[Sindh]

Before Muhammad Ali Mazhar, J

Messrs FRIENDS ASSOCIATE BUILDERS AND DEVELOPERS through Authorized Representative---Plaintiff

Versus

TOWN MUNICIPAL ADMINISTRATION, LYARI TOWN, KARACHI through Town Municipal Officer/Nazim, Layari Town and another---Defendants

Suit No.323 of 2007, decided on 12th May, 2012.

Civil Procedure Code (V of 1908)---

----O. IX, R. 6---Interpretation of O.IX, R.6, C.P.C.---Ex parte decree without recording of evidence---Discretion of court, exercise of---Scope---When a court strikes of defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence and like all discretions vested in the court, such discretion must be exercised judicially---Plaintiff had to stand on its own legs to satisfy the conscience of the court as to the existence of any right sufficiently or otherwise of evidence---Principles.

Rehmat Ali v. Additional District Judge, Multan and others 1999 SCMR 900 and Shamroz Khan and another v. Muhammad Amin and others PLD 1978 SC 89 rel.

Syed Muhammad Nehal Hashmi for Plaintiff.

Nemo for the Defendants.

Dates of hearing: 6th January, 16th March, 2012.

2013 M L D 52

[Sindh]

Before Sadiq Hussain Bhatti, J

Mst. JAMILA---Petitioner

Versus

MUHAMMAD IQBAL and 2 others---Respondents

Constitution Petition No. 154 of 2008, decided on 10th September, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---New plea---Scope---Point not raised before Trial Court cannot be agitated before High Court in constitutional petition.

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

----S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Bona fide personal need of landlord---Concurrent findings of fact by two courts below---Ejectment application filed by landlord was allowed by Rent Controller accepting plea of bona fide need of landlord for his sons and the order was maintained by Lower Appellate Court---Validity---Rent Controller held that it was established that landlord required demised premises for personal use of his sons and answered issue in favour of landlord---Such finding of landlord was upheld by Lower Appellate Court, there were concurrent findings of two courts below against tenant and the same could not be disturbed unless it was shown that findings were against evidence on record---Tenant failed to point out any illegality or infirmity in eviction orders passed by two courts below---High Court declined to interfere in concurrent findings of two courts below---Constitutional petition was dismissed in circumstances.

Muhammad Abdullah v. Sughra Begum 1988 CLC 2078; Muhammad Mustaqeem through L.Rs. v. Abdul Haleem through L.Rs. 1992 CLC 435; Allies Book Corporation v. Sultan Ahmad and others 2006 SCMR 152; Azim Khan through Attorney v. Muhammad Hussain and others 2003 CLC 278; Ali Muzaffar through L.Rs. v. Syed Muhammad Ali Abedi through L.Rs. and others 2006 CLC 379; Muhammad Iqbal v. Muhammad Naeem and others PLD 2006 Kar. 658 and Abdul Rehman and another v. Zia-ul-Haq Makhdoom 2012 SCMR 954 ref.

Muhammad Yaqoob for Petitioner.

Mursaleen Ahmed Khan for Respondent No.1.

Date of hearing: 5th September, 2012.

2013 M L D 81

[Sindh]

Before Nadeem Akhtar, J

Ms. VALLIEYAH IKRAMULLAH and another---Plaintiffs

Versus

ANDREW WILLIAMS and 5 others---Defendants

Suit No.755 of 2010 and C.M.A. No.4430 of 2012, decided on 25th August, 2012.

Educational institutions---

----Academic certificates, issuance of---Demand of School Leaving Certificate and "O" Level Certificate by a student from his School for getting higher education in another institution of international repute---Refusal of School to issue such certificates to its student despite having passed "O" Level Certificate Examination---Validity---Such act of School could affect and jeopardize not only opportunity of student to receive higher education but also his career and entire future---Such valuable and precious rights of young students would require respect and protection and violation thereof in any manner would not be allowed---Relationship of student and School came to an end after he passed such Examination, thus, School had no right or authority to withhold such certificate for being important and permanent record of such student---High Court directed School to issue such certificates to its student in circumstances.

Arif Majeed Malik and others v. Board of Governors, Karachi Grammar School 2004 CLC 1029 rel.

Shahnawaz M. Sahito and Zulfiqar Ali Langah for Plaintiff.

Naveed-ul-Haque for Defendants Nos. 1 to 6.

Date of hearing: 23rd July, 2012.

2013 M L D 99

[Sindh]

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

Messrs RECORDER TELEVISION NETWORK (PVT.) LTD. through Chief Executive Officer---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Information and Broadcasting, Islamabad and another---Respondents

C.P. No.D-2661 of 2010, decided on 11th October, 2011.

(a) Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

---Ss. 30(c) & 30A---Constitution of Pakistan, Art. 199---Constitutional petition---Power to vary conditions, suspend or revoke licence---Failure to comply with conditions of licence---Issuance of notice by Authority under S. 30(c) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Legality---Licensee (petitioner) was provided licence by Authority (respondent) with the condition that licensee will air channels within 12 months, from the date of issuance of licence and if same was not done, licence would be deemed to be cancelled---Licensee was given a further extension of one year, which also lapsed, whereafter impugned notice under S. 30(c) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 was issued by the Authority---Contentions of licensee were that impugned notice was mala fide and issued in violation of law, and that after issuance of impugned notice hearing before Authority was fixed on 20-9-2010 but was antedated without consultation to 17-9-2010, which showed mala fide of the Authority---Validity---Perusal of terms and conditions of licence showed that licensee had agreed that in case it failed to put into operation broadcast station within one year from the date of issuance of licence, same would be deemed to have been withdrawn and cancelled----Subsequently, at the request of licensee, extension of one year was given, which also lapsed---Licensee failed to show as to how the Authority in question did not have the power or jurisdiction to issue impugned notice in terms of S. 30(c) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002, which section empowered the Authority to suspend or revoke a licence---Licensee was unable to show as to what prejudice had been caused to him by antedating the hearing before Authority---Licensee could have approached the Authority in such circumstances for extension in time and fixation of date for hearing, which was suitable to both parties, but instead licensee filed constitutional petition, a day before the hearing and obtained ad interim order for suspension of impugned notice---Present constitutional petition was nothing but an attempt to pre-empt the exercise of jurisdiction by the Authority---Constitutional petition was dismissed with costs, in circumstances.

Riffat Hassan v. Federation of Pakistan 2011 PLC (C.S.) 562 distinguished.

Mir Nabi Bakhsh Khan Khoso v. Branch Manager, National Bank of Pakistan, Jhatpat (Dera Allah Yar) Branch 2000 SCMR 1017 and Pakcom Ltd. v. Federation of Pakistan PLD 2011 SC 44 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Special enact-ment---Mechanism for redressal of grievance provided---Effect---Where special enactments set out mechanism and hierarchy for redressal of grievance, the apparatus for redressal for grievance had to be exhausted before invoking extraordinary constitutional jurisdiction of High Court.

Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881; Marhaba Textile Ltd. v. Industrial Development Bank of Pakistan 2003 CLD 1822 and Messrs Unicom Enterprises v. Banking Court No.5, City Court Building, Karachi 2004 CLD 1452 ref.

Muhammad Umar Lakhani for Petitioner.

Muhammad Qasim, Standing Counsel for Respondent No.1.

Kashif Hanif for Respondent No.2.

Date of hearing: 11th October, 2011.

2013 M L D 105

[Sindh]

Before Sadiq Hussain Bhatti, J

Messrs MUSLIM COMMERCIAL BANK LTD.---Petitioner

Versus

S.M. INAM and 2 others---Respondents

Constitutional Petition No.S-227 and C.M.A. No.1259 of 2004, decided on 9th August, 2012.

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

----Ss.10(2) & 10(3)---Constitution of Pakistan, Art.199---Constitutional petition---Fair rent determined by court---Effective date of payment of such rent---Scope---Question, in the present case, was whether payment of fair rent (determined by court) was effective from date of institution of the case or from date of order of Appellate Court---Landlord (respondent) filed case for fixation of fair rent in the year 1991, which was fixed at Rs.2500 per month---Appeal filed by landlord was allowed and case was remanded to Rent Controller, who fixed the fair rent at Rs.10,000 per month with effect from date of institution of the case---Tenant (petitioner) challenged order of Rent Controller in appeal , but same was dismissed by Appellate Court in February, 2004---Tenant contended that it was willing to pay fair rent at Rs.10,000 per month but from the date of order of Appellate Court---Validity---Powers had been conferred on Rent Controller and Appellate Authority to fix the fair rent and its effective date---Fair rent could be fixed from the date of institution of rent case or from the date of the order or from any other date in between the two events---Landlord, in the present case, had stated that he had no objection if fair rent was maintained at Rs.10,000 and the payment was made effective from date of judgment of Appellate Court---Constitutional petition was partly allowed by consent of parties and impugned order of Appellate Court was modified to the extent that fair rent of Rs.10,000 per month would be payable from the February, 2004 instead of date of institution of rent case.

Mst. Masuda Jawad v. State Life Insurance Corporation and another PLD 2007 Kar. 485 and Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corp. of Pakistan 2001 SCMR 1103 rel.

Rizwan Ahmed Siddiqui for Petitioner.

Muhammad Zahid Khan for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

2013 M L D 129

[Sindh]

Before Syed Zakir Hussain, J

TARIQ SHAFI: In the matter of

Succession Miscellaneous Application No.48 of 2010, heard on 4th October, 2010.

Succession Act (XXXIX of 1925)---

----S. 371---Petition for issuance of Letter of Administration was rejected on the ground of lack of jurisdiction as deceased had died at place "S" and his immovable property was located at place "R"---Contention of the applicant was that the deceased was shown to have been an ordinary resident at the given address at place "K" and the fact that he died in place "S" and that his property was located at place "R" did not adversely affect the petition before court at place "K"---Validity---Contention had force and was in consonance with S. 371 of the Succession Act, 1925---High Court set aside impugned order and remanded case to Trial Court for decision on merits---Application was allowed, in circumstances.

Mehmood Hussain for Applicant.

Date of hearing: 4th October, 2010.

2013 M L D 137

[Sindh]

Before Syed Muhammad Farooq Shah, J

SHEERAZ AHMED and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application Nos.S-184 to 188 of 2012, decided on 1st August, 2012.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 409, 420, 468, 109 & 34---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery, abetment and common intention---Contempt of Court Ordinance (V of 2003), Ss. 3 & 4---Cancellation of interim pre-arrest bail, recalling of---Interim pre-arrest bail granted to accused was recalled due to his absence from court hearing---Contentions of accused were that he and his brother were abducted by Federal Investigation Agency (FIA) officials from outside the court premises on the date of hearing and in his absence High Court recalled the interim order of pre-arrest bail, and that brother of accused had filed an affidavit, corroborating the version of the accused---Validity---FIA officials had admitted the assertion taken by brother of complainant that accused was arrested after closing hours of the court from a place situated near the court---Fact that accused, who was resident of a different city, was found present for his arrest outside the gate of the court, did not attract to a prudent mind---Even if the accused was in front of the court premises, question was as to what prevented and refrained him from approaching and attending the court in early hours of the day---Perusal of affidavit filed by brother of accused showed that accused had not absented himself from court deliberately and intentionally---Order for cancellation of interim pre-arrest bail was recalled and accused was released with the observation that to restore confidence of public in institutions and to eradicate excessive use of power conferred upon public functionaries, proceedings under Ss. 3 & 4 of Contempt of Court Ordinance 2003, against FIA officials should be continued separately from the present case.

Sajjad Ahmed Chandio for Applicant.

Alleged contemnors present.

Pir Riaz Shah, Standing Counsel.

Date of hearing: 26th July, 2012.

2013 M L D 148

[Sindh]

Before Nadeem Akhtar, J

UNITED BANK LTD.---Plaintiff

Versus

SYNTHETIC LEATHER/INDUSTRIES and another---Defendants

Execution Application No.23 of 1999 and C.M.A. No.380 of 2012, decided on 26th September, 2012.

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

----O. XXI, R. 58(1)---Execution of decree---Sale of hypothecated assets---Objection application---Contention of the objector was, inter alia, that before claim of decree-holders is settled through sale of hypothecated assets of the judgment-debtors; claim of objector be settled first---Objector further contended that judgment-debtors were merely licensees on the land owned by the objectors and did not have authority to mortgage said land or assets installed therein in favour of decree-holder and therefore, sale proceeds of hypothecated assets be paid to the objector on account of dues payable to the objectors---Validity---Clauses of agreement between the objectors and judgment-debtors showed that the objector never had any charge, lien or interest on the hypothecated assets installed at the land or in respect of any structures erected thereon---Claim of objector was falsified by its own document, the "Extract of the Register" in respect of judgment-debtor's plant and machinery---After authorizing judgment-debtors to assign, mortgage or create any charge or security on the building, plants, engines and machinery with banks or financial institutions, and after specifically recording and acknowledging such charge of decree-holder as the first charge, the objector had no right to file objection application and claim any amount out of sale proceeds of the assets---Objection application was dismissed, in circumstances.

The Thal Engineering Industries Ltd. v. The Bank of Bahalwalpur Ltd. and another 1979 SCMR 32; Chaudhary Muhammad Saulat Zaman v. Pakistan Employees Cooperative Housing Society and others 2001 SCMR 805 and Nan Fung v. H. Pir Muhammad Shamshdin PLD 1995 Kar. 421 ref.

Messrs Industrial Development Bank of Pakistan v. Messrs Maida Ltd. and others 1994 SCMR 2248 rel.

(b) Limitation---

----Once prescribed period of limitation expired, then fresh period of limitation could not be computed, and even courts could not create a right which a party lost due to its own faults including fault caused due to actions initiated beyond prescribed period of limitation---Time-barred application could neither be entertained nor was maintainable if the same was not supported by an application for condonation of delay.

Abu Bakar I. Chundrigar for the decree Holder.

Faisal Kamal Alam for the Objector.

Muhammad Abu Bakr Khalil for the bidder.

Kadir Bakhsh Umrani, the Official Assignee.

Date of hearing: 31st July, 2012.

2013 M L D 159

[Sindh]

Before Nisar Muhammad Shaikh, J

MUHAMMAD BUX---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S-58 of 2011, decided on 5th January, 2012.

Penal Code (XLV of 1860)---

----S. 392---Robbery---Appreciation of evidence---Case of no evidence---Complainant's mare and cash had been robbed from him---Said mare was recovered from the accused on the basis of which he was implicated in the present case---Trial court convicted the accused under S. 392, P.P.C---Contention of the accused was that it was a case of no evidence against him---Validity---Accused was not implicated by the complainant during his evidence before the Trial Court---Eye-witness of the incident and private witnesses named in the F.I.R., were given up by the prosecution without assigning any reason---No ocular evidence was available to connect accused with the alleged crime in circumstances---Accused acquitted from the second F.I.R. registered against him for alleged recovery of robbed mare---Appeal was allowed, conviction and sentence awarded to the accused was set aside and he was acquitted of the charge.

Syed Shahzad Ali Shah for Appellant.

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

Date of hearing: 5th January, 2012.

2013 M L D 170

[Sindh]

Before Abdul Rasool Memon, J

HUSSAIN BUX---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-269 of 2012, decided on 27th June, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Bail, grant of---Further inquiry---Fatal injury attributed to the co-accused only---Accused only alleged to be present at the place of incident with weapon---Accused having made no firing---No overt act attributed to the accused---Effect---Participation of accused in the commission of offence required further inquiry, in circumstances---Accused was admitted to bail.

Muhammad Sadiq v. State 1996 SCMR 1654 and Muhammad v. State 1998 SCMR 454 rel.

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

----S. 497---Bail, right of---Abscondence of accused---Effect---Right of bail could not be refused merely on account of his abscondence which was a factor relevant only to propriety---Where accused was entitled to bail on merits, his mere abscondence would not come in his way.

Qamar alias Mitho v. State PLD 2012 SC 222 rel.

Shahbaz Ali M. Brohi for Applicant.

Miss Rubina Dhamrah, State Counsel.

2013 M L D 176

[Sindh]

Before Gulzar Ahmed and Nisar Muhammad Shaikh, JJ

KHALIDA AKRAM---Petitioner

Versus

THE STATE---Respondent

Criminal Jail Appeal No.14 of 2008, decided on 25th June, 2010.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Sentence, reduction in---Female accused of old age---First time offender---Continuous custody since day of arrest (17-4-2002)---Whether such mitigating circumstances deserved leniency---Scope---Allegation against the accused (appellant) was that she was apprehended while sitting in a vehicle, from which charas weighing about 85 kilograms was recovered---On the alleged pointation of the accused, further narcotic weighing about 5735 kilograms was recovered from the house of her husband---Trial Court convicted the accused under S. 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced her to life imprisonment and a fine of Rs.300,000 and in default of payment of such fine to suffer further imprisonment of three years---Contentions of the accused were that she had no incriminating role in the commission of the crime and she was a victim of circumstances; that she was a first time offender; that she was 59 years of age and was a cardiac patient suffering from high blood pressure; that alleged recovery of narcotic was made from the house of her husband and no recovery was effected from her exclusive possession, and that it was her bad luck that she married her present husband (co-accused), only 10 months before the crime in question---Validity---Accused was an old lady who had remained in continuous custody since the day of her arrest (17-4-2002) and was also a first time offender---Accused deserved leniency---Conviction of the accused was maintained, her sentence was reduced from life imprisonment to 10 years imprisonment; her fine was reduced from Rs.300,000 to Rs.100,000 and in default of payment of such fine, further imprisonment was reduced from three years to one year -Appeal was dismissed, with said modifications.

2007 SCMR 1591; 2007 YLR 269 and 2005 PCr.LJ 1966 rel.

2010 YLR 97; 2010 MLD 71; 2009 YLR 640; PLD 2009 Pesh. 39; 2009 PCr.LJ 403 and 2008 YLR 2198 ref.

Kashif Hanif for Appellant.

Syed Ashfaq Hussain Rizvi, Special Prosecutor ANF for the State.

Date of hearing: 25th June, 2010.

2013 M L D 183

[Sindh]

Before Syed Zakir Hussain, J

SARFARAZ AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.257 of 2009, decided on 16th September, 2010.

Criminal Procedure Code (V of 1898)---

----Ss. 249-A & 561-A---Penal Code (XLV of 1860), Ss. 420/161/167---Prevention of Corruption Act (II of 1947), S.5 (2)---Cheating and dishonestly inducing delivery of property, public servant taking gratification other than legal remuneration in respect of an official act, public servant framing an incorrect document with intent to cause injury, criminal misconduct---Quashing of proceedings---Revocation of sub-power of attorney---Scope---Alleged corruption in registration of lease deeds by accused/sub-Registrar---Principal executed general power of attorney in favour of attorney---Sub-attorney, who exercised power for and on behalf of the attorney, executed 19 lease deeds and presented them for registration, out of which 17 lease deeds were registered and the reaming two were not registered---Accused/sub-Registrar subsequently registered the remaining two lease deeds, which registration was challenged by the attorney on the grounds that he had revoked the power of sub-attorney---Accused/sub-Registrar, sub-attorney and co-accused were proceeded against but investigation officer formed the opinion that no corruption had taken place---Sub-attorney and co-accused moved application under S. 249-A, Cr.P.C, which was disposed of in their favour and they were acquitted of the charge on grounds that case was not likely to land in their conviction---Accused/sub-Registrar also filed an application under S. 249-A, Cr.P.C on the same grounds but it was dismissed despite the fact that circumstances forming basis of acquittal of sub-attorney and co-accused were the same---Validity---Interim challan showed that no witness was cited as prosecution witness in the matter except for the attorney, who was an interested witness and whose solitary statement could hardly be sufficient for coming to the conclusion that matter involved commission of alleged crime---Power of attorney was irrevocable and conclusive in all respects and a sub-power of attorney executed thereunder naturally carried the same irrevocability as a matter of effect---Principal of general power of attorney had no power to revoke the same, thus naturally attorney would carry no power to revoke the sub-power of attorney after its execution in favour of sub-attorney---Registration of remaining two lease deeds after their presentation by the executants to the accused/sub-Registrar, was legally an unquestionable matter in all respects and propriety of their execution and registration etc. were not open to question, merely on the basis of any subsequent revocation of sub-power of attorney---Accused/sub-Registrar, sub-attorney and co-accused were public servants and their acts brought in question through present criminal proceedings, were part of their official functions and unless such official acts were tainted with malice or corrupt practices carrying grounds constituting offence of like nature or otherwise, the same would carry no criminal accountability and no prosecution and trial would stand warranted and justified thereby in the eyes of law---Request for acquittal filed by the accused/sub-Registrar, on similar and identical grounds to that of the sub-attorney and co-accused, was refused for no lawful reasons---Application was allowed and accused/sub-Registrar was acquitted from the charge.

1999 SCMR 2718 and PLD 2007 Lah. 689 rel.

Shaukat H. Zubedi for Applicant.

Zafar Ahmed Khan, Addl. P.G. for Respondent.

2013 M L D 194

[Sindh]

Before Nadeem Akhtar, J

Mst. SADORI---Applicant

Versus

SENIOR SUPERINTENDENT OF POLICE and 3 others---Respondents

Criminal Miscellaneous Application No.S-465 of 2012, decided on 7th September, 2012.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus---Recovery of detenu---Detenue, a female, had been illegally confined by the accused (respondent), who happened to be her sister's husband and he was also alleged to have committed zina-bil-jabr with her---Detenue gave statement before the court wherein she stated that accused had threatened to kill her father and brothers if she did not join him; that accused had compelled her to file a criminal application against her family members; that accused committed zina-bil-jabr with her and she did not want to go with him and instead wanted to go with her parents, and that her custody should be provided to her parents and brother---Sister of detenue confirmed in her statement before the court that her husband/accused committed zina-bil-jabr with the detenue; that detenue had been detained by the accused, and that accused threatened to kill her---Mother of detenue (applicant) also confirmed in her statement before court that detenue was detained by accused by force; that accused committed zina-bil-jabar with the detenue and issued threats of dire consequences---Said statements of detenue, sister of detenue and their mother showed that detenue had voluntarily decided to go with her parents---Detenue, sister of detenue (including her children) were allowed to go to their parents' house and police was directed to provide full and proper protection to all of them and register F.I.R. against accused and also conduct a raid on the house of accused to recover minor baby of detenue---Application was disposed of accordingly.

Achar Khan Gabole for Applicant.

Rasool Bakhsh I. Siyal for Respondent No.3.

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

2013 M L D 219

[Sindh]

Before Sadiq Hussain Bhatti, J

MATLOOB HUSSAIN---Petitioner

Versus

Mst. ZUBAIDA and another---Respondents

Constitution Petition No.S-1247 of 2011, decided on 8th October, 2012.

(a) Practice and procedure---

----Party could not approbate and reprobate in same breath---Illustration.

(b) Pardahnashin lady---

----Non-pardahnashin lady---Representation in court---Scope---Non-paradahnashin lady can be represented in court of law through her husband.

There is no bar that if a lady is not paradahnashin, she cannot be represented by her husband in a court of law.

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

----S.15---Constitution of Pakistan Art. 199---Ejectment petition---Ground---Bona fide personal need of premises by landlord for his sons---Constitutional petition challenging concurrent findings of two courts below given on such ground in favour of landlord---Maintainability---Courts below had decided such question of fact after proper appreciation of matter---High Court could not disturb such findings in absence of any mis-reading or non-reading of evidence---Constitutional petition was dismissed in circumstances.

Miss Akhtar Qureshi v. Nisar Ahmed 2000 SCMR 1292 rel.

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

----Ss.10 & 15---Ejectment petition---Ground---Default in payment of rent by tenant---Tenant straightway depositing rent in court without first tendering same to landlord directly or through money order---Validity---Tenant was bound to make every effort to pay rent to landlord directly---Tenant could deposit rent in court only after refusal of landlord to accept rent through money order---Ejectment petition was accepted in circumstances.

Muhammad Aslam v. Haji Muhammad Zahoor 2000 CLC 1961 and Public Electric Works v. Mst. Sabira Begum 2000 MLD 901 rel.

Iftikhar Javed Qazi for Petitioner.

Adnan Ahmed for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 25th September, 2012.

2013 M L D 239

[Sindh]

Before Sadiq Hussain Bhatti, J

Messrs RABB COFFEE HOUSE through Partner---Petitioner

Versus

MUHAMMAD BAKHSH & SONS through Managing Partner and 2 others---Respondents

Constitution Petition No.S-528 of 2011, decided on 15th October, 2012.

(a) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---High Court could not resolve factual controversy.

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

----S.8---Fair rent of demised premises, determination of---Factors requiring consideration stated.

Section 8 of the Sind Rented Premises Ordinance, 1979 provides four factors for determination of fair rent of premises. The first is the rent of similar premises situated in the similar circumstances in the same or adjoining locality, the second factor is regarding rise in the cost of construction and repair charges, the third is imposition of new taxes, and the fourth annual value of the premises on which property tax is levied. It is not necessary that such four conditions must be satisfied or fulfilled by the landlord while praying for fixation of fair rent of the demised premises and anyone condition specified in section 8, is sufficient to fix fair rent of the demised premises.

If rent of a property is abysmally low and is brought at par with other rented premises in the area, increasing the same manifold will not render the same illegal or without jurisdiction.

Muhammad Afaq v. State Life Insurance Corporation of Pakistan and 2 others PLD 2008 Kar. 100 rel.

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

----S.8---Fair rent of demised premises, fixation of---Burden of proof---Once landlord had been able to show rate of rent in similar/adjoining areas similar to what was asserted by him or higher, then onus would shift on tenant to bring evidence to negate such assertion of landlord.

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

----S.8---Constitution of Pakistan, Art.199---Constitutional petition---Application for fixation of fair rent of demised premises---Grant of arrears of rent by Rent Controller from year 1991 till filing of such application in year 2008---Validity---Neither the application contained prayer for fixation of rent from year 1991 nor such prayer could be made in an application filed in year 2008 nor was there any issue regarding entitlement of applicant to fixation of fair rent or payment of arrears of rent from year 1991---High Court set aside impugned order with regard to payment of arrears of rent from year 1991 till filing of such application, but upheld impugned order with regard to fixation of fair rent with effect from date of filing of such application.

State Life Insurance Corporation of Pakistan, Karachi v. Messrs Victor Restaurant 2009 YLR 1124 rel.

Kadir Bakhsh Bhutto for Petitioner.

Amir Saleem for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 2nd October, 2012.

2013 M L D 266

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD SALEEM and 2 others---Applicants

Versus

KHUDA BUX and 4 others---Respondents

Civil Revision Application No.104 of 2009, decided on 22nd October, 2012.

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

----Ss. 39, 42 & 54---Suit for cancellation of document, declaration and injunction---Civil and criminal proceedings---Standard of proof---Distinction---Plaintiff claimed that plot in question was part of public way and was created by manipulation, illegally and fraudulently---Suit filed by plaintiff was concurrently decreed by Trial Court as well as Lower Appellate Court---Plea raised by defendant was that criminal case regarding plot in question was registered against him wherein he had been acquitted---Validity---Standard of proof in civil and criminal cases was quite different---For a civil suit, court had to see only probability of truth whereas in criminal proceedings, prosecution had to prove alleged offence "beyond reasonable doubt" and if there was any doubt, accused was entitled to its benefit not as matter of grace or concession but as of right---No gross illegality, irregularity or infirmity was depicted in judgment delivered by Trial Court as Municipal Corporation while ignoring original status of land as part of a street / road, allotted the same to defendant, which could be called in question at any time---High Court in exercise of revisional jurisdiction declined to interfere in judgment passed by Trial Court and appeal was rightly dismissed by Lower Appellate Court---Revision was dismissed in circumstances.

Seema Fareed and others v. The State and another 2008 SCMR 839 and Tariq Pervaiz v. The State 1995 SCMR 1345 ref.

(b) Void order---

----Limitation---Scope---No limitation runs against void order and there may not be any limitation at all to challenge an illegal order.

Muhammad Shafi v. Mushtaque Ahmed through Legal Heirs and others 1996 SCMR 856; Begum Syeda Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914 and Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262 rel.

Abdullah Chandio for Applicants.

Afaq Yousuf for Respondent No.1.

Ms. Anila Danish for Respondent No.3.

Lakshman Lal for the State.

Date of hearing: 24th September, 2012.

2013 M L D 283

[Sindh]

Before Nisar Muhammad Shaikh, J

ASGHAR ALI---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Acquittal Appeal No.S-29 of 2012 in M.As. Nos. 1350 and 1351 of 2012 , decided on 30th May, 2012.

Penal Code (XLV of 1860)---

----Ss.380 & 457---Criminal Procedure Code (V of 1898), S.417(2-A)---Theft in dwelling house, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment---Appeal against acquittal---Appreciation of evidence---Delay in lodging F.I.R. not explained plausibly---Accused persons (respondents) were alleged to have committed theft of buffaloes from the house of the complainant (appellant)---Trial Court acquitted the accused persons---Validity---Alleged incident took place about two months prior to the lodging of F.I.R. and explanation given for such delay was that accused persons were identified but due to hopes and promises of nekmards for return of stolen property, complainant did not lodge an F.I.R.---Such an explanation for delay could not be treated as plausible---Recovery of stolen property had not been effected---None of the nekmards were examined to corroborate version of the complainant---Names of nekmards were not cited in the F.I.R.---Complainant had admitted in his cross-examination that there was a dispute between the parties over a plot---Trial Court had rightly concluded that prosecution had failed to prove its case beyond reasonable doubt---Appeal against acquittal was dismissed, in circumstances.

Ghayoor Abbas M. Shahani for Applicant.

2013 M L D 287

[Sindh]

Before Munib Akhtar and Syed Hassan Azhar Rizvi, JJ

SALMAN MUJAHID---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Defence, Rawalpindi and 5 others---Respondents

Constitutional Petition No.D-1211 of 2012, decided on 20th September, 2012.

(a) Administration of justice---

----Object behind all legal formalities would be to safeguard paramount interest of justice.

(b) Constitution of Pakistan---

----Art.199---Public interest litigation---Jurisdiction of High Court to entertain such litigation---Object stated.

Public interest litigation is usually entertained by court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the vindicating of the rule of law, effective access of justice to the economically weaker class and meaningful realization of the fundamental rights. The directions and commands issued by the courts of law in the public interest litigation are for the betterment of the society at large and not for benefiting any individual. But if the court finds that in the garb of public interest litigation actually an individual's interest is sought to be carried out or protected, it would be the bounden duty of the court not to entertain such petition as otherwise the very purpose of innovation of public interest litigation will be frustrated.

(c) Constitution of Pakistan---

----Art.199---Constitutional petition---Laches or delay---Legal effect---Laches per se would not be a bar to constitutional jurisdiction of High Court---Question of delay in filing constitutional petition would be examined with reference to facts of each case---Where facts of case and dictates of justice demanded, laches of several years could be overlooked or laches of few months might be fatal---Delay would defeat equity---Equity would aid vigilant and not indolent---Superior courts refuse to come to the aid of a party having not been diligent, vigilant and acted in a prudent manner.

PLD 2003 SC 132; PLD 2007 SC 472; Muhammad Alamgir Amjad v. MDA 2004 CLC 964; Senior Electric Inspector v. Laxminarayan AIR 1962 SC 159; Amrelli Steels (Pvt.) Ltd. v. F.O.P. 2004 PTD 2930; DHA v. DCIT 2010 PTD 2552; Province of Punjab v. Market Committee 2011 SCMR 1856; Pakistan v. Province of Punjab PLD 1975 SC 37; Morris Tanveer v. FOP 2009 CLC 1199; APNS v. FOP PLD 2004 SC 600; Sh. Muhammad Rafique Goreja v. Islamic Republic of Pakistan 2006 SCMR 1317; Dr. Ayesha Sabir v. Fida ul Haq 2010 SCMR 1811; 1999 SCMR 2883; PLD 2000 SC 394; 2010 SC 759 and PLD 2002 Lah. 290 ref.

Malik Naeem Iqbal, Malik Altaf Javed and Khalid Ahmed Siddiqui for Petitioner.

Irshad Ali Kehar, Deputy Attorney General along with Ghulam Sabir, Deputy Military Estate Officer.

Khalid Javed Khan for Respondent No.2.

Ashraf Ali Butt for Respondents Nos. 3, 4 and 5.

Khawaja Shamsul Islam for Respondent No.6.

2013 M L D 314

[Sindh]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

SHAH MUHAMMAD and another---Appellants

Versus

Malik SOHAIL KHAN through Lawful Attorney and 7 others---Respondents

High Court Appeal No.106 of 2012, decided on 12th September, 2012.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Appeal for vacation of Interim injunction, dismissal of---Restraining of construction---Plaintiff claimed that lease of land in question was in his favour which was cancelled by authorities and land was allotted to defendants---Judge in Chambers of High Court granted interim injunction, restraining defendants from raising construction over the land in question---Plea raised by defendants was that they had completed about 90% of construction over land in question---Validity---About 70 shops had been built over land in question and those were without plaster, flooring, doors and windows---Most of the shops were without shutters and intervening walls---Plea of defendant that 90% of the construction had been completed was presumptive in such circumstances and even if it had been completed to the extent of 90%, then if a shop was let out, a third party interest would be created therein---Division Bench of High Court declined to interfere in interim injunction passed by Judge in Chambers of High Court---Appeal was dismissed in circumstances.

Muhammad Yaseen Azad for Appellants.

Naleymitho alias Ishaque Kubar for Respondent No.1.

Ahmed Pirzada, Assistant Advocate-General for Respondent No.2.

Date of hearing: 13th August, 2012.

2013 M L D 323

[Sindh]

Before Syed Muhammad Farooq Shah, J

Messrs BAYER CROPS SCIENCE PAKISTAN through Chief Executive Officer---Applicant

Versus

ALTAF HUSSAIN and 3 others---Respondents

Civil Revision Application No.218 of 2012, decided on 22nd November, 2012.

Civil Procedure Code (V of 1908)---

----O. XVI, Rr. 1 & 2---Summoning of witness not mentioned in the lis to produce documents---Scope---High Court observed that for the resolution of moot of contention affirmatively, nature of transaction and the evidence in such regard must be impeachable and if at all required, transaction affecting rights of parties might be resolved from production of mentioned documents through a witness---Trial Court was at liberty to summon document through witnesses if found available and necessary for a just decision in the suit---Revision was allowed, accordingly.

Syed Sharif ul Hassan v. Hafiz Muhammad Amin 2012 SCMR 1258 and Noor Muhammad v. Mst. Azmat-e-Bibi 2012 SCMR 1373 ref.

Dildar Ali Khan for Applicant.

Saeeduddin Siddiqi for Respondents.

2013 M L D 329

[Sindh]

Before Ahmed Ali M. Shaikh, J

The STATE through Additional Collector (Preventive)---Applicant

Versus

Mir KASHIF IMRAN and 6 others---Respondents

Criminal Transfer Application No.3 of 2012, decided on 29th March, 2012.

Criminal Procedure Code (V of 1898)---

----S.526---Control of Narcotic Substances Act (XXV of 1997), Ss.49 & 50---Transfer of proceedings---Harsh and derogatory attitude of Presiding officer---Complainant sought transfer of case on the plea that attitude of Presiding Officer towards complainant and prosecution witnesses while conducting trial was harsh and derogatory---Validity---Provisions of Control of Narcotic Substances Act, 1997, did not fetter jurisdiction or power of High Court to transfer cases from one Special Court to the other except to the extent that such power was to be exercised in accordance with S.526(d)(e), Cr.P.C. to meet the ends of justice---High Court, pursuant to provisions of S.50 of Control of Narcotic Substances Act, 1997, read with S.526(1)(e) and (3), Cr.P.C. transferred the case to other Special Court---Application was allowed in circumstances.

Abdur Razzaq Aaamir v. Federal Government of Islamic Republic of Pakistan PLD 2011 FSC 1 ref.

Riaz-ud-Din v. The State 2001 MLD 1771 and John Bernard Sender v. State PLD 2004 Kar. 136 rel.

Muhammad Siddique Mirza for Applicant.

Khawaja Shamsul Islam for Respondents Nos. 1, 6 and 7.

Abrar Ali Khichi, A.P.-G. along with I.O. Syed Azar Mehdi.

Date of hearing: 8th February, 2012.

2013 M L D 356

[Sindh]

Before Habib-ur-Rehman Shaikh, J

Mst. PHOOL BANO through Attorney---Petitioner

Versus

MUHAMMAD ASHFAQ and 3 others---Respondents

Constitution Petition No.S-192 of 2012, decided on 14th November, 2012.

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

----S. 16---Constitution of Pakistan, Art. 199---Constitutional petition---"Technical defeault"---Scope---Tenant (petitioner) impugned the orders of courts below which concurrently ordered ejectment of tenant on ground of default in payment of rent---Contention of the tenant was that no wilful default was ever committed by her---Validity---Prima facie, it appeared from record that Rent Controller had clearly directed tenant to deposit future rent with the nazir of the Court before the 10th of each English Calendar month, which the tenant deposited on 8-4-2012 and again on 6-8-2012 after almost three months, which showed mala fide of tenant and same could not be termed as "technical default"---Technical error could be curable, but not the illegal error---No illegality was found in orders of the courts below---Constitutional petition was dismissed, in circumstances.

Syed Ahsan Ali v. Jaffar Ali PLD 1964 (W.P.) Kar. 418; Khair Muhammad Nizamani v. Abdul Quddus PLD 1965 (W.P.) Kar. 367 and Tariq Bari and another v. The IVth Additional District and Sessions Judge 2010 YLR 3279(2) ref.

Ashiq Ali v. Mehar Elahi 2001 SCMR 130 rel.

(b) Administration of justice---

----Technical error can be curable, but illegal error cannot.

Shakeel Ahmed for Petitioner.

Muhammad Ikram Siddiqui for Respondents Nos. 1 and 2.

Sharaf Din Mangi for Respondents Nos. 3 and 4.

Date of hearing: 6th November, 2012.

2013 M L D 380

[Sindh]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

ABID HUSSAIN---Petitioner

Versus

PROVINCE OF SINDH, through Chief Secretary and 4 others---Respondents

Constitution Petition No.D-1263 of 2009, decided on 2nd October, 2012.

Constitution of Pakistan---

----Art. 199---Limitation Act (IX of 1908), S. 5---Martial Law Order [CMLA's] No. 77 as amended by Matrial Law Order [CMLA's] (5 of 1977)---Constitutional petition---Laches---Condonation of delay---Petitioner had filed civil suit in respect of a property he claimed to be owner of on basis of an agreement to sell in his favour, which was pending, when a First Information Report (F.I.R.) was lodged against petitioner---Complainant in said F.I.R. alleged that petitioner had taken illegal possession of her property, and subsequently petitioner was charged and convicted under Martial Law Order as amended by Matrial Law Order [CMLA's] No.77---Petitioner, in the present constitutional petition, prayed that conviction be declared illegal---Contention of the petitioner, inter alia, was that allegation against him did not fall into categories of offences to be tried under Martial Law Order [CMLA's] No.77 (as amended)---Validity---Order of punishment against petitioner was passed by the Military Court on 28-12-1985 and present constitutional petition was filed on 23-6-2009, after a lapse of almost 24 years---Petitioner's application for condonation of delay under S. 5 of the Limitation Act, 1908 merely stated that he was 74 years of age and carrying burden of an illegal conviction but nothing material was stated therein as to why petitioner did not approach the court in a period of 24 years---Constitutional petition suffered from laches, and was dismissed in circumstances.

Qaid Johar v. Murtaza Ali and another PLD 2008 Kar. 342; Federation of Pakistan and another v. Ghulam Mustafa Khan PLD 1989 SC 26; Imran Ashraf and 7 others v. The State 2001 SCMR 424; Ziaul Rehman v. The State 2001 SCMR 1405; Muhammad Afzal Khan v. Karachi Development Authority PLD 1984 Kar. 114, Ghulam Nabi v. The State 2003 PCr.LJ 454; Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814; Shahsawar and 2 others v. The State 2000 SCMR 1331; Allah Wadhayo and another v. The State 2001 SCMR 25; State v. Zulfiqar Ali Bhutto and others PLD 1978 Lah. 523; Noora and another v. The State PLD 1973 SC 469; Muhammad Din and others v. The State, PLD 1977 SC 52; PLD 1982 Quetta 41; 1988 CLC 1803; PLD 1958 Lah. 1014; 1999 CLC 813; Gulzar Ahmed Qureshi v. Federation of Pakistan through Secretary, Ministry of Justice, Islamabad and others 1999 MLD 2815; Amir-ud-Din v. Member (Revenue) Board of Revenue, Punjab, Lahore and another 2000 MLD 376; Aqil Ahmed and 12 others v. Mirza Ahmed Baig Ghazi and another 1982 CLC 961; 1999 MLD 281; Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others, 1999 SCMR 2883 distinguished.

Masroor Hussain and 45 others v. Chairman Pakistan International Airlines and another 2010 PLC (C.S.) 630; Halsbury's Laws of England; Abrar Ahmed Khan v. Sindh Labour Appellate Tribunal and 2 others PLD 1997 Kar. 444; Iqbal and others v. Government of Sindh, through Secretary Home Department, Karachi and others PLD 2007 Kar. 335; East Pakistan Railway Workshop Employees League v. Chairman, East Pakistan Railway Board PLD 1968 Dacca 681; Allah Nawaz Shaikh v. Punjab Labour Appellate Tribunal Lahore and another 1996 PLC 297; Muhabbat Ali v. Province of Punjab and others 1995 PLC 667 and L.D.A. through Director General and another v. N.I.R.C through Chairman and 49 others 2003 PLC 320 rel.

Khawaja Shamsul Islam for Petitioner.

Faisal Siddiqui and Ashfaque Ahmed Tiger, A.A.-G. for Respondents.

Date of hearing: 19th September, 2012.

2013 M L D 398

[Sindh]

Before Habib-ur-Rahman Shaikh, J

Mst. SHIRIN BEGUM through Attorney and another---Applicants

Versus

VIITH ADDITIONAL DISTRICT JUDGE, KARACHI SOUTH and 9 others---Respondents

Civil Revision Application No.169 of 2010, decided on 14th November, 2012.

(a) Easements Act (V of 1882)---

----Ss.13 & 15---Right of way, claim for---Properties belonging to both parties being adjacent and facing road---Entrance right to plaintiff's property claimed by him through main gate of defendant's property---Validity---Record showed that defendant's father, who expired in year 1972, had issued licence to plaintiff to use such gate---Plaintiff being licensee could not get renewed such licence from legal heir of grantor---Plaintiff having a road facing his property could fix own separate gate for his ingress and egress---Plaintiff's claim was rejected in circumstances.

Alagiri Chetty and another v. Muthuswami Chetty and others AIR 1940 Madras 102 and Messrs Pakistan Warranted Warehouse Limited v. Messrs Sindh Industrial Trading Estates Ltd. 1991 SCMR 119 rel.

(b) Easements Act (V of 1882)---

----Ss. 4 & 52---"Easement" and "licence"---Distinction stated.

By virtue of S.52 of Easements Act, 1882, a right which is a licence cannot be an easement. Except that a licence and an easement both are rights exercisable on the property of others and there is nothing in common between them. The essential difference between them is that while an "easement" is a right for the beneficial enjoyment of a dominant heritage and a "licence" is a personal right unconnected with any property of the grantee. The "licence" originates in permission while an "easement" arises out of grant or prescription. A licence is revocable at the will of grantor except when it is coupled with grant and also it is mandatory law that the "licence" is not binding on the transferee of the grantor.

Naeem-ur-Rahman for Applicants.

Saadat Yar Khan for Respondent No.5.

Date of hearing: 6th November, 2012.

2013 M L D 406

[Sindh]

Before Habib-ur-Rahman Shaikh, J

Messrs PRESTIGE TAILORS through Legal Heirs of Sole Proprietor---Petitioner

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and 2 others---Respondents

Constitutional Petition No.S-322 of 2010, decided on 6th November, 2012.

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

----S. 15---Ejectment petition---Rent enhanced by court order---Default in payment of rent---Deposit of rent in court by tenant without refusal of landlord to accept the same or sending same to him through money order---Effect---Rent might be sent to landlord by money order or deposited in court only after his refusal or avoidance to accept same---Tenant once having defaulted in payment of rent would be liable to eviction notwithstanding subsequent payment of arrears of rent---Tenant had not produced documentary proof about refusal of landlord to accept rent himself or through money order---Tenant had committed such default---Ejectment petition was accepted in circumstances.

Hakim Abdul Latif v. Abdul Fazal Abdul Hannan 1986 MLD 2975; Feroze Ahmed v. Mst. Zehra Khatoon 1992 CLC 735 and Muhammad Asif Khan v. Sheikh Israr 2006 SCMR 1872 rel.

Moin Azhar Siddiqui for Petitioners.

Mukesh Kumar Khatri for Respondent No.1.

Date of hearing: 1st November, 2012.

2013 M L D 415

[Sindh]

Before Muhammad Tasnim and Aziz-ur-Rehman, JJ

MUHAMMAD YAMEEN---Petitioner

Versus

PERVAIZ RAJPUT and 4 others---Respondents

Constitutional Petition No.D-857 of 2011, decided on 21st November, 2012.

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

----O. II, R. 2, O. VII, R. 11, O. XX, R. 14 & O. XXII, R. 1---Limitation Act (IX of 1908), Art.10---Constitution of Pakistan, Art.199---Constitutional petition---Pre-emption suit (under Islamic Law) filed by plaintiff after dismissal as withdrawn of his earlier suit for declaration, cancellation of sale deed, permanent injunction in respect of sale of jointly owned land---Defendant's application under O. VII, R. 11, C.P.C. for rejection of plaint in pre-emption suit alleged that same was barred by O.XXIII, R.1(3), C.P.C.; that omission of plaintiff to seek relief of pre-emption in earlier suit would, amount to its abandonment; and that pre-emption suit filed beyond one year was time-barred---Order of Trial Court dismissing such application upheld by Revisional Court---Validity---Record showed that earlier suit was based on different and distinct cause of action---Plaintiff's application under O. XXIII, R. 1, C.P.C. and order of court dismissing earlier suit as withdrawn would make it clear that such withdrawal was coupled with permission to file fresh suit, thus, he had not abandoned any part of his claim---Right of pre-emption being a right under Islamic Law, in such circumstances could not be deemed as waived/relinquished and/or barred by O. II, R. 2, C.P.C.---Question of limitation being a be mixed question of facts and law required proof through evidence of parties---Suit land being in joint ownership and possession of parties, thus, no right of any co-owner could be extinguished by limitation or law of estopple as cause of action remains continuing---High Court set aside impugned order while directed Trial Court to decide suit strictly on merits on evidence of parties.

National Bank of Pakistan v. Hashim Khan 1995 CLC 88; Muhammad Yousif Memon v. Karachi Stock Exchange 1995 CLC 183; Hakim Muhammad Buta v. Habib Ahmed PLD 1985 SC 153; Muhammad Saeed Bacha v. Badshah Amir 2011 SCMR 345; Rahim Dad v. Abdul Kareem 1992 MLD 2111; Rafique Ahmed v. Mst. Tafseela 1992 CLC 1401 and Abdul Hakim v. Saddaullah Khan PLD 1970 SC 63 ref.

Shabir Ahmed v. Kiran Khursheed and others 2012 CLC 1236 and Babar Hussain Shah v. Mujeeb Ahmed Khan and another 2012 SCMR 1235 rel.

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

----S.20 & O.VII, Rr. 1(e), 11(a)---Expression "cause of action" in suit---Connotation---"Cause of action" would refer to averments or allegations levelled by one party and denied by other party to suit and requiring evidence.

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

----O.XXIII, R.1---Application for withdrawal of suit with permission to file fresh suit---Dismissal of suit by court as withdrawn---Effect---Permission to file fresh suit need not be express but could be implied from circumstances under which such order had been passed---Court, if not having granted such permission, would have to dismiss such application and direct plaintiff to proceed with the suit---Such application and order would make it clear that dismissal of suit was coupled with permission for filing fresh suit by plaintiff.

(d) Co-sharer---

----Joint ownership and possession of land---Limitation---Estoppel---Legal effect stated.

In a case of joint ownership and joint possession, no right of the co-owner/co-sharer can be extinguished by lapse of time etc. In case of co-sharer/co-owner and/or joint possession holders, no limitation or law of estoppel operates as cause of action remains continuing.

Aijaz Ali Hakro for Petitioner.

Muhammad Umar Daudi for Respondent No.1.

Allah Bachayo Soomro, Addl. A.G. for the State.

Date of hearing: 15th November, 2012.

2013 M L D 429

[Sindh]

Before Nisar Muhammad Shaikh, J

SHAHZADA SHAHBAZ alias KASHIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.373 of 2011, decided on 11th January, 2012.

Penal Code (XLV of 1860)----

----Ss.392/34---Robbery, common intention---Appreciation of evidence---Case based on belated recovery of a single robbed article---Star witnesses (complainant and his wife, who were robbed of many articles) were not examined by the prosecution---Accused (appellant) was arrested in connection with other cases of robbery and many articles were recovered from him, including a mobile phone, which accused allegedly claimed belonged to the complainant---Complainant and his wife had been robbed of many articles and recovery of only mobile phone was shown to have been effected and that too on the pointation of accused after his arrest---Such recovery after six months of the alleged robbery could not be relied upon specially in absence of evidence of complainant, to warrant conviction of accused---Appeal was allowed, conviction and sentence of accused were set aside and he was acquitted of the charge.

Ali Jaffer and Gul Hassan for Appellants.

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

Date of hearing: 11th January, 2012.

2013 M L D 433

[Sindh]

Before Mushir Alam, C.J. and Muhammad Shafi Siddiqui, JJ

MIRPURKHAS SUGAR MILLS LTD. through Wasif Khalid and 22 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Science and Technology, Government of Pakistan and others---Respondents

Constitutional Petitions Nos.D-3364 and 2515 of 2010, decided on 4th December, 2012.

(a) Constitution of Pakistan---

----Art.199---Civil Procedure Code (V of 1908), S.20---Constitutional jurisdiction of High Court---Scope---Constitutional petitions by different Corporations regarding same subject matter filed in Sindh High Court and Lahore High Court---Validity---Petitioners could not avail remedy by filing petitions in two different High Courts having concurrent jurisdiction----Petitioners, who were operating within jurisdiction of Sindh High Court, if having not approached Lahore High Court, could maintain petitions before Sindh High Court---No bar existed under law to adjudicate a controversy agitated by a party by invoking constitutional jurisdiction of High Court in one Province, while by other party in other Province---Principles.

Muslim Commercial Bank Ltd. v. Momin Khan and others 2002 PLC (C.S.) 898 rel.

(b) Jurisdiction---

----Jurisdiction would be governed by law as same could not be conferred or curtailed by consent of parties or negotiation---Principles.

Jurisdiction can neither be conferred nor curtailed even by consent of parties.

Question of jurisdiction cannot be determined via meetings. Jurisdiction is to be governed by law and not through bilateral agreement. Jurisdiction cannot be conferred upon the court by consent of the parties. Similarly the jurisdiction cannot be taken away by the consent or any act of the party which otherwise vest with constitutional authorities. The point of limitation is to be decided under the law and it cannot be altered by negotiation or any act of the party over a table.

(c) Constitution of Pakistan---

----Arts. 143 & 144---Legislative competence of Federal Government through Parliament and Provincial Government through its Provincial Assembly---Scope---Parliament and Provincial Assembly could exercise legislative competence to the extent conferred under the Constitution---Parliament could frame law on the subject not falling in Federal Legislative List, if same was requested only by resolution of Provincial Assembly and by non else and no other means---Principles.

(d) Pakistan Standards and Quality Control Act (VI of 1996)---

----S.24---Protection of act taken under Pakistan Standards and Quality Control Act, 1996---Scope---Such protection would not extent to mala fide acts and/or act in excess of delegated authority---Principles.

It is the same language which is contained invariably in all statutes, whereunder public functionaries perform functions and duties in due observance of and furtherance of any particular statute, and such provision safeguard and protect public functionaries to cover anything done or intended to be done in good faith within the framework of the statutes. However, such immunity is not extended to mala fide acts and or act in excess of authority or beyond the purview of power conferred under the statute. The moment act complained of is beyond the delegated authority, immunity and protection under the law is lost.

(e) Constitution of Pakistan---

----Art.199---Constitutional petition---Laches---Impugned action of authority alleged to be without jurisdiction and mala fide---Question of applicability of laches would not be relevant in such a case.

(f) Laches---

----Laches could not be equated with statutory bar of limitation---Principles.

Laches alone cannot be equated with statutory bar of limitation. Bar of limitation operates as legal bar for grant of remedy, whereas laches operate bar under equity. Therefore, dictate of justice and equity and balance of legitimate rights are to be kept in view in applying the principles of laches.

(g) Agricultural Produce (Grading and Marking) Act (I of 1937)---

----Ss.2 & 6---Pakistan Standards and Quality Control Act (VI of 1996), Ss. 2(c), 8 & 14---Constitution of Pakistan, Arts. 137, 142, 199 & Federal Legislative List, Sched. IV, Part-I, Entry 27---Constitutional petition---Issuance of notifications by Federal Government levying marking fee @ 0.1% of ex-factory price of sale as fee payable for placing PSQCA standard mark on refined and white sugar and prohibiting its manufacture, stock and sale without such mark---Validity---Legislative power of Federal Government under Entry 27 of Sched.IV of Federal Legislative List of the Constitution to "set out standard of quality of goods to be exported out of Pakistan" would not extend to setout standard of quality of goods for domestic consumption within Province---Concurrent list or Federal Legislative List in Sched.-IV of the Constitution never contained any entry regulating standard of agricultural produce for internal use within Province---Provision of Pakistan Standards and Quality Control Act, 1996 would not apply to goods forming part of Agricultural Produce (Grading and Marking) Act, 1937 and meant for home consumption---Provincial Assembly alone had power to frame law to regulate standard of agricultural produce, prescribe licence and standard certification and levy and collect fee in relation thereto---Definition of word "article" given in S.2(c) of Pakistan Standards and Quality Control Act, 1996 would not include any article to which Agricultural Produce (Grading and Marking) Act, 1937 for time being applied---Refined and white sugar were products of sugarcane and produce of agricultural---Provincial Assemblies only had authority to frame policies and law in respect of agricultural produce including refined and white sugar meant for consumption with Province---High Court set aside impugned notifications---Principles.

Pakistan Flour Mills Association and another v. Government of Sindh and others 2003 SCMR 162; Sanofi Aventis Pakistan Limited and others v. the Province of Sindh and others PLD 2009 Kar. 69; Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402; Crescent Jute Products v. Government of the Punjab PLD 2004 Lah. 686; Muhammad Shoaib v. Project Director National ICT Scholarship Program, Ministry of Information Technology, Islamabad and another 2011 CLD 23; Messrs Brady and Co. v. Messrs Sayed Sayed Saigol Industries Ltd. 1981 SCMR 494 and Cherat Cement Company Ltd. v. Federation 2010 CLD 226 ref.

Abdul Sattar Pirzada and Shabbir Shah for Petitioners.

Muhammad Ashraf Khan Mughal, Deputy Attorney-General for Respondents Nos.1 and 2.

Waleed Khanzada for Respondent No.3.

Date of hearing: 31st October, 2012.

2013 M L D 470

[Sindh]

Before Salahuddin Panhwar, J

PRINCIPAL, GOVERNMENT MUMTAZ COLLEGE, KHAIRPUR and another---Petitioners

Versus

BADARUDDIN and others---Respondents

Civil Revision No.3 of 2012, decided on 5th October, 2012.

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

----S. 115---Revision---Scope---Where judgments of both courts below varied with each other, it would be just and essential for the revisional court to examine the same by reappraisal of evidence to determine which court's judgment was correct.

Messrs Muhammad Amin Muhammad Bashir Limited and another v. Pakistan through Secretary and 5 others 2000 CLC 1550; Zafar Mirza v. Mst. Naushina Amir Ai PLD 1993 Kar. 775 and Mrs. Uzma Aziz v. Mst. Maryam and others PLD 2006 Kar. 58 ref.

Ghulam Shabir v. Mst. Bakht Khatoon 2009 SCMR 644 and Mst. Nooran Bibi v. Rajab Ali 2007 CLC 1840 rel.

(b) Administration of justice---

----Courts were the ultimate guardians of the rights of the individuals and it had never been the object and intent of law that a judge should not apply his mind independently and should go blindly on a dotted line---Courts were to decide matters within the evidence brought on record yet the decision should be made as a result of independent application of judicial mind because courts were not supposed to be made a tool to derive what the law did not permit or what legally could be achieved---Such proposition was to eliminate all chances of collusively instituted suits or petitions and was the background for the principle of law of appreciation of evidence which insists that one should not be benefited for the weakness of the opposite party---Even in ex parte proceedings, the courts had to see whether plaintiff was entitled for relief claimed or otherwise.

(c) Pleadings---

----Fact was to be proved by the party which pleaded its existence---Simply because a factual proposition was affirmed or denied in a written statement, did not necessarily mean that it had been legally proved.

Imtiaz Ali Soomro, Assistant Advocate General for Applicants.

Mukesh Kumar G. Karara for Respondents.

Date of hearing: 14th September, 2012.

2013 M L D 483

[Sindh]

Before Naimatullah Phulpoto, J

MANZOOR ALI and 2 others---Applicants

Versus

MUHAMMAD UMAR and 6 others---Respondents

Civil Revision No.S-83 of 2011, decided on 24th December, 2012.

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

----Ss. 42, 39 & 54---Qanun-e-Shahadat (10 of 1984) Art. 79---Proof of execution of document---Suit for declaration of title, cancellation of sale deed and permanent injunction was decreed concurrently---Suit was decreed, inter alia, on the ground that alleged sale deed executed by the mother of the plaintiff in favour of the defendants was not valid, on the ground that said sale deed was dated 5-4-1948 whereas mother of plaintiff had died in the year 1945---Validity---Trial Court had examined the documents minutely including the impugned sale deed, and had concluded that the impugned sale deed had been managed by the defendants after the death of the mother of the plaintiff---Said findings of the courts below were also in accordance with Art. 79 of the Qanun-e-Shahadat, 1984---No error was committed by courts below---Revision was dismissed.

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

----S.115---Revisional jurisdiction---Revisional jurisdiction was essentially meant for correcting errors of law committed by subordinate courts and such jurisdiction was restricted and narrow.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 rel.

Akeel Ahmed Bhutto for Applicants.

Fida Hussain Chandio for Respondent No.1.

Ali Raza Pathan, State Counsel for Official Respondents.

Date of hearing: 18th December, 2012.

2013 M L D 495

[Sindh]

Before Ghulam Sarwar Korai, J

MUHAMAMD ANWAR HUSSAIN---Petitioner

Versus

Mst. HAMEEDA BEGUM and another---Respondents

Constitutional Petition No.S-1105 of 2011, decided on 21st November, 2012.

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

----S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant on ground of bona fide personal need of landlord was allowed concurrently---Tenant (petitioner) denied relationship of landlord and tenant and contended that the alleged landlord had previously filed a similar case against him which was dismissed and that present case was hit by principle of res judicata---Validity---Admitted position was that alleged landlord had previously filed a case against tenant without seeking permission to file a fresh case and the alleged tenancy agreement was between the tenant and another person and it nowhere mentioned the name of the alleged landlord---Premises were subsequently leased to the alleged landlord but she neither asked the tenant to vacate nor sought a fresh tenancy agreement---Alleged landlord could not establish relationship of landlord and tenant between the parties---High Court set aside concurrent findings of courts below---Constitutional petition was allowed, in circumstances.

Muhammad Khalid for Petitioner.

Ch. M. Abu Bakar Khalil for Respondent No.1.

Date of hearing: 24th October, 2012.

2013 M L D 509

[Sindh]

Before Abdul Rasool Memon, J

ABDUL GHAFOOR alias MULTANI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.345 of 2010, decided on 16th October, 2012.

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

----S. 324---Criminal Procedure Code (V of 1898), S. 342---Attempt to commit qatl-e-amd---Appreciation of evidence---Power of court to examine accused---Court failing to examine accused on evidence contributing towards his conviction---Effect---Remand of case to Trial Court---Allegation against the accused was that he fired upon the brother of complainant with the intention of killing him---Accused was subsequently apprehended with a weapon and live bullets---Trial Court convicted accused under S. 324, P.P.C.---Contentions of accused were that recovery of weapon from his possession had been taken as an incriminating piece of evidence in recording conviction against him, yet the Trial Court omitted to specifically question him with regard thereto within the meaning of S. 342, Cr.P.C., thereby rendering the impugned judgment as indefensible---Validity---Trial Court should have questioned the accused with regard to each and every incriminating piece of evidence available on record thereby enabling him to explain his position---Compliance with provisions of S. 342, Cr.P.C. in accordance with its terms, was indispensible---Interest of justice required remand of case to the Trial Court---Impugned judgment of Trial Court was set aside and case was remanded to the Trial Court for its decision afresh with the direction that accused be examined under S.342, Cr.P.C. and his attention be specifically invited to all incriminating pieces of evidence placed on record and he be provided an opportunity to explain his position thereto---Appeal was disposed of accordingly.

2001 SCMR 56 and PLD 2001 SC 568 rel.

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

---S.342----Evidence likely to contribute towards conviction of accused---Interpretation of S.342, Cr.P.C.---Power to examine accused---Scope---Section 342(1), Cr.P.C. had two parts; the first part gave discretion to the court whereas the second part was mandatory---Under the first part of said section court might put such questions to the accused which might be deemed appropriate in arriving at a just conclusion, whereas, under second part examination of accused was a must because purpose was to point out evidence against him and ask for an explanation---Use of word "shall" in second part of S. 342(1), Cr.P.C signified that examination of accused was compulsory and not optional.

Abdul Rzzak for Appellant.

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

Date of hearing: 5th September, 2012.

2013 M L D 549

[Sindh]

Before Abdul Rasool Memon, J

DEEN MUHAMMAD through Legal Heirs---Petitioner

Versus

ABDUR RAB and another---Respondents

Constitutional Petition No.S-846 of 2011, decided on 5th November, 2012.

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

----Ss.15 & 16 (2)---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Striking off defence---Tentative rent order, non-compliance of---Tenant had been depositing rent in another case and Rent Controller directed tenant to withdraw that rent and deposit the same in court---Tenant failed to comply with tentative rent order passed by Rent Controller, which was specific and unambiguous and failed to withdraw rent deposited in another case and deposit the same in the case---Tenant also failed to deposit future rent---Rent Controller struck off defence of tenant---Validity---Tenant violated tentative rent order and such violation could not be termed due to any misunderstanding or as a result of bona fide mistake---Rent Controller had rightly struck off defence of tenant as he deliberately did not comply with tentative rent order---Tenant failed to make out any ground for invoking constitutional jurisdiction of High Court---Petition was dismissed in circumstances.

Ashiq Ali and another v. Mehar Elahi and 13 others 2001 SCMR 130; Hussain Trading Co. v. Messrs Jalal Brothers (Pvt.) Ltd. 1993 CLC 2391 and Muhammad Hanif v. Mohammad Muslim 1997 CLC 1491 ref.

Kaleemul Hassan for Petitioner.

Mirza Sarfraz Ahmed for Respondents.

Date of hearing: 18th October, 2012.

2013 M L D 562

[Sindh]

Before Muhammad Shafi Siddiqui, J

Mst. SADAF---Applicant

Versus

SHAH NAWAZ and 3 others---Respondents

Criminal Miscellaneous Application No.S-426 of 2012, decided on 19th September, 2012.

Criminal Procedure Code (V of 1898)---

----S. 491---Guardians and Wards Act (VIII of 1890), Ss. 12 & 25---Habeas corpus petition for recovery of child---Child aged about 13 years living with his father (respondent)---Mother (applicant) seeking recovery of child from the father without first seeking his custody from the Guardian Court and without pleading any cruelty or maltreatment by the father---Effect---Contentions on behalf of mother were that she could not appear before the Guardian Court to seek custody of her child as the father was issuing threats of dire consequences---Validity---Facts about threats of dire consequences by father had not been mentioned in the petition---Best efficacious remedy available with the mother was an application for interim and permanent custody of the child under the Guardians and Wards Act, 1890, which remedy had not been exhausted by the mother---Question as to whether mother could provide better welfare to the child could be best determined by the Guardian Court, as the scope of petition under S. 491, Cr.P.C was limited---Limits prescribed by S. 491, Cr.P.C were only to "improper and illegal" custody---Neither any kind of maltreatment nor cruelty by father had been pleaded by the mother, therefore, custody of child with the father could neither be termed illegal nor improper---Petition was dismissed in circumstances.

Mst. Rubia Ayaz v. The State PLD 2001 Kar. 197 and Miss Hina Jilani v. Sohail Butt PLD 1995 Lah. 151 distinguished.

Amir Ali Junejo for Applicant.

Shahzado Saleem, A.P.-G. for Respondent.

2013 M L D 584

[Sindh]

Before Muhammad Shafi Siddiqui, J

ABDUL WADOOD and others---Plaintiffs

Versus

MUHAMMAD IQBAL and another---Defendants

Suit No.729 of 2009, decided on 1st October, 2012.

(a) Malicious prosecution---

----Suit for malicious prosecution, recovery of damages and compensation---F.I.R. was registered by defendants against the plaintiffs---Trial Court acquitted the plaintiffs in connection with the F.I.R. under S. 245(1), Cr.P.C on the basis that prosecution had failed to prove the case beyond reasonable doubt---Plaintiffs instituted present suit with the contention that they had been maliciously prosecuted by the defendants by registration of an F.I.R.---Validity---Plaintiffs were acquitted by the Trial Court on account of the fact that prosecution had failed to prove the case beyond reasonable doubt---Judgment of Trial Court was silent with regard to the "malice" of the defendants and also with regard to the "falsehood" of the F.I.R.---Plaintiffs had failed to establish that there was "no reasonable and probable cause" for their prosecution---Plaintiffs had also not proved claimed special or general damages----Simple affidavit in evidence had been filed by plaintiffs without support of any documentary evidence claiming professional fee, travelling charges, business loss, mental torture/discomfort, damages on account of loss of reputation and defamation in public---Suit for malicious prosecution was dismissed accordingly.

Abdul Rasheed v. State Bank of Pakistan PLD 1970 Kar. 344 ref.

(b) Malicious prosecution---

---Suit for malicious prosecution---Pre requisites highlighted.

Points necessary to succeed in a suit for malicious prosecution are as under:---

(a) The prosecution of the plaintiff by the defendant.

(b) Prosecution must be without reasonable and probable cause.

(c) The defendants must have acted maliciously that is with improbable motive.'

(d) Prosecution must have ended in favour of the plaintiff proceeded against.

(e) It must have caused damage to the party proceeded again.

(f) That the prosecution had interfered with the plaintiffs and has also affected his reputation and liberty and finally the plaintiffs had suffered damages.

Abdul Rauf v. Abdul Razaq PLD 1994 SC 476 and Muhammad Akram v. Farman Bi PLD 1990 SC 28 ref.

(c) Malicious prosecution---

---Suit for damages---Scope---Paramount consideration in a suit for malicious prosecution was the intent of the defendant as to whether there was any malice involved in such prosecution and that whether there was reasonable and probable cause for initiating such prosecution and only then the question of ascertaining damages, be they special or general, would become ripe in a suit for malicious prosecution.

Muhammad Ikram Siddiqui for Plaintiffs.

Nemo for Defendants.

Date of hearing: 15th August, 2012.

2013 M L D 601

[Sindh]

Before Mushir Alam, C.J. and Muhammad Shafi Siddiqui, J

LANDIRENZO PAKISTAN (PVT.) LTD. through Chief Executive Officer, Karachi and 3 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Commerce, Islamabad and 6 others---Respondents

Constitutional Petition No.D-3000 of 2012, decided on 12th December, 2012.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition-Policy decisions of Government---Interference in such decisions by High Court in constitutional jurisdiction---Scope.

In matter of policy decisions, the Government is the best Judge and it is not for the High Court to sit on the policy matters, unless those appear to be violative of constitutional guarantees, arbitrary, mala fide or on account of colourable exercise of power.

(b) Imports and Exports (Control) Act (XXXIX of 1950)---

----Ss.2 & 3(1)---Import Policy Order, 2009, Paras 5(a)(viii)(xxi) & 6---Rules of Business, 1973, Rr.2(xviii), 24 & 55---General Clauses Act (X of 1897), S.21---Customs Act (IV of 1969), S.16---S.R.O. No.84(I)/2012 dated 1-2-2012---Constitution of Pakistan, Art.199---Constitutional petition---Imposition of ban on import of CNG kits, equipments and cylinders through amending S.R.O. 84(I)/2012, dated 1-2-2012---Validity-Neither granting of licences to petitioners to import such goods would create any vested right nor impugned S.R.O. had curtailed any of their vested rights, nor such licences would guarantee them to continue to import such goods uninter-ruptedly---Government had power to impose conditions and give exception either generally or specially and also to alter, modify or make addition thereto---Notification prohibiting import and export of goods issued under S.3(1) of Imports and Exports (Control) Act, 1950 would be deemed to be a notification under S.16 and all provisions of Customs Act, 1969---Impugned S.R.O. was not ultra vires---High Court dismissed constitutional petition in circumstances.

Gatron (Industries) Limited v. Government of Pakistan 1999 SCMR 1072; Theresa Henry v. Calixtus Henry 2012 SCMR 1074; Alleged Corruption in Rental Power Plants and others: In the matter of 2012 SCMR 773; Collector of Customs v. Flying Kraft Paper Mills 1999 SCMR 709; Human Rights cases: In the matter of PLD 2010 SC 759; Babar Hussain Shah v. Mujeeb Ahmed Khan 2012 SCMR 1235; Ibrahim Fibres Ltd. v. Collector of Customs 2009 PTD 1902; Government of Pakistan v. Village Development Organization 2005 SCMR 492; Mohsin Raza v. Chairman FBR 2009 PTD 1507; Chief Secretary, Punjab, Lahore v. Naseer Ahmad Khan 2010 SCMR 431; All Pakistan Newspaper Society v. Federation of Pakistan PLD 2012 Sindh 129; Muhammad Afsar v. Malik Muhammad Farooq 2012 SCMR 274; Muhammad Zargham Eshaq Khan v. University of Engineering PLD 1988 Lah. 191; The Automobile Transport Rajasthan v. The State of Rajasthan AIR 1962 Rajisthan 24; Abdul Majeed Zafar v. Governor of Punjab 2007 SCMR 330; Nazir Ahmad Panhwar v. Government of Sindh 2005 SCMR 1814; Mir Dost Muhammad v. Government of Balochistan PLD 1980 Quetta 1; Pollution of Environmental caused by smoke emitting vehicles, traffic muddle 1996 SCMR 543; Muzaffar Khan v. Evacuee Trust Property 2002 CLC 1819; Imdad Hussain v. Province of Sindh PLD 2007 Kar. 116; Everlast Enterprises Ltd. v. Government of Pakistan PLD 1971 Lah. 999; Zamir Ahmed Khan v. Government of Pakistan 1978 SCMR 327 and Noor Hussain v. The State PLD 1966 SC 88 ref.

Ramdhandas and another v. State of Punjab AIR 1961 SC 1559 rel.

(c) Constitution of Pakistan---

----Art.18---Issuance of licence by Government to carry on business/ trade/profession---Validity---Such licence would not confer a vested right on licencee---Principles.

Issuance of licence under the law is only privilege and does not confer a vested right and is often required as condition precedent to the right to carry on some business. The State may by law directed that certain trades or professions will not be carried on except under a licence and it may by licence determine the place where and the time when certain business is to be conducted.

Ramdhandas and another v. State of Punjab AIR 1961 SC 1559 rel.

(d) Constitution of Pakistan---

----Arts. 18 & 25---Legislation to regulate trade/business/profession of specialized class of persons---Estoppel against legislation---Scope.

The legislature in its wisdom is competent to legislate general law and special law for any specialized class of persons. There is estoppel against the legislature provided it passed such test on the touchstone of the fundamental rights guaranteed under the Constitution.

There is no estoppel against the legislature and it is within the powers, jurisdiction of the Government and legislative authorities to frame the policy and to regulate affairs in accordance with law. The right of freedom of trade, business or profession guaranteed by Article 18 of the Constitution is not absolute as it can be subject to reasonable restrictions and regulations, as may be prescribed by law. Such right to trade, business and profession guaranteed under the Constitution is not unguarded. Such restrictions can only be held unconstitutional if the authority competent to regulate its affairs acts arbitrarily, discriminately or acts contrary to the policy. This principle of regulation of trade has been given judicious approval.

Shahzad Riaz v. Federation of Pakistan 2006 YLR 229; Pakistan Newspaper Society v. Federation of Pakistan PLD 2012 Sindh 129; Pakcom Ltd. v. Federation of Pakistan PLD 2011 SC 44 and Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 rel.

(e) Legislation---

----Powers to legislate and promulgate law not being a trial, thus, interested parties could not be heard.

Aziz A. Shaikh for Petitioners.

Jawed Farooqui, D.A.-G. for Respondent No.1.

Asim Iqbal and Farmanullah for Respondent No.3.

Date of hearing: 22nd November, 2012.

2013 M L D 627

[Sindh]

Before Naimatullah Phulpoto, J

HAJI ABRO---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.S-24 of 2011, decided on 20th November, 2012.

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

---S. 514---Bail bond, forfeiture of---Reduction in surety amount---Forfeiture of entire bond without proof of mala fide or personal gain of surety---Propriety---Factors to be considered by court while forfeiting bail bond---Scope---Accused was granted bail by Trial Court on furnishing surety amount of Rs. 300,000---Applicant stood surety for accused, who after getting bail absconded on account of murderous enmity with the complainant party---Trial Court forfeited the entire bond of surety and imposed full fine amount of Rs. 300,000, with a direction to deposit the same within one month---Surety contended that he stood surety for accused on humanitarian grounds; that he made all possible efforts to produce the accused; that he was a poor person with a large family, and that he did not have sufficient sources of income---Validity---Imposing of whole fine amount upon the surety without any proof of mala fide or personal gain was not justified in the present case---Court should take a dynamic and progressive orientated approach while imposing fine upon the surety---Nature of offence, efforts made by surety to produce the accused and financial position of surety might be taken into consideration while passing orders---Record did not show whether any inquiry had been conducted to assess the surety's laxity/carelessness or otherwise in his efforts to produce the accused---Fine of Rs.300,000 imposed by Trial Court was reduced to Rs.200,000, with a direction to deposit the same before the Trial Court within one month---Revision application was disposed of accordingly.

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

----S.514---Bail bond, forfeiture of---Factors to be considered by court---Scope---Approach of the court should be dynamic and progressive orientated while imposing fine upon the surety---Nature of offence, efforts made by surety to produce the accused and financial position of surety might be taken into consideration while passing orders (for forfeiture of bail bond)---Balance should be kept between undue severity and undue leniency at the time of passing the order----Undue severity by courts might lead to unwillingness on part of neighbours and friends of accused to come forward and give bail for him.

Naushad Ali R. Tagar for Applicant.

Naimatullah Bhurgri for the State.

2013 M L D 640

[Sindh]

Before Muhammad Ali Mazhar, J

KANDAWALLA TRUST through Trustees and another---Petitioners

Versus

The STATE---Respondent

J.M. No.24 of 2012, decided on 7th December, 2012.

(a) Trust Act (II of 1882)---

----Preamble---Trusts Act, 1882, applicability of---Scope---Act, would apply to private trusts and trustees and not to public trusts.

(b) Interpretation of statutes---

----Preamble of statute is key to open the minds of its framers---Principles.

Preamble is the key to open the minds of the framers of the statute. Though it is not an enacting part, it may have to express the scope, object and purpose of enactment. The policy and purpose of a given measure may be deduced from the title and Preamble thereof.

(c) Words and phrases---

----"Proprio Vigore"---Meanings.

Black's Law Dictionary 6th Edition ref.

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

----S.92---Suit regarding public charitable trust---Relief sought in such suit, if not falling within ambit of Clauses (a) to (g) of S.92, C.P.C., might be considered by court under clause (h) thereof---Principles.

Under section 92, C.P.C., different eventualities and conditions are mentioned which include removal of trustee, appointment of new trustee, vesting property in a trustee, directing accounts and inquiries, declaration as to what proportion of the trust property shall be allocated to any particular object of the trust, authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged, settling a scheme or granting such further or other reliefs as the nature of the case. If the relief claimed does not fall within the scope and ambit of Clauses (a) to (g) of section 92, C.P.C., it may be considered in clause (h), which relates to the powers of the court to grant such further or other reliefs as the nature of the case may require. So for all intent and purpose the scope of clause (h) is left with a broad scope and spectrum to deal with the cases for the relief which are otherwise not provided or possible in clauses (a) to (g) of section 92, C.P.C.

The scope and nature of relief that can be granted by the court in Clause (h) of section 92, C.P.C., is wide enough, which can handle the situation and to mould the relief according to facts and circumstances of each case.

State of Uttar Pradesh v. Bansi Dhar and others AIR 1974 SC 1084; Kanagavelu Nadar and others v. Sooravali Subbier and others 2005 IC Madras High Court 407; Phulchand v. Hukumchand AIR 1960 Bom. 438; Shivrandas v. B.V. Nerurkar 39 Bom LR 633; AIR 937 Bom. 374; Rambabu v. Committee of Rameshwar, 1 Bom LR 667; Mathiri Menon v. Gopalan Nair, 39 Mad 597 and AIR 1916 Mad 692 ref.

(e) Religion---

----Zoroastrianism---History traced.

Zoroastrianism is an ancient pre-Islamic religion of Iran. The descendants of Zoroastrian Iranian (Persian) immigrants are known as Parsis or Parsees. The religion is called Parsiism founded by the Iranian prophet and reformer Zoroaster in the 6th century BC, the religion contains both monotheistic and dualistic features.

http://www.britannica.com/EBchecked/topic/658081/Zoroastrian-ism rel.

(f) Trust---

----Charitable trust---Cypres doctrine of---Applicability---Such doctrine would apply in a case where original object of such trust could not be achieved, but an object as nearly as possible similar thereto could be achieved---Doctrine of cypres would not apply to save trust, when neither original object nor object similar thereto might be achieved---Principles.

Ajaib Singh's case AIR 1954 Punjab 150; Halsbury's Law of India (Butterworth, New Delhi); Hussain A. Haroon and others v. Mrs. Laila Sarfraz and others 2003 CLC 771; Hameed A. Haroon v. Yousuf A. Haroon and 10 others 2009 MLD 1259; Halsbury's Laws of England (4th Edition, Vol. 5 Page 430, Paragraph 696) and Dr. Man Singh's case 1974 Delhi 228 rel.

Mushtaque A. Menon for Petitioners.

Dates of hearing: 5th July and 2nd November, 2012.

2013 M L D 655

[Sindh]

Before Salahuddin Panhwar, J

SAMAD HABIB---Petitioner

Versus

Mst. NOOR JAHAN and 12 others---Respondents

Constitution Petition No.S-2692 of 2012, decided on 30th November, 2012.

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

----Preamble---Sindh Rented Premises Ordinance, 1979 being special law would prevail upon general law.

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

----S. 21---Constitution of Pakistan, Art. 199---Constitutional petition---First appeal---Admission of appeal by Appellate Court for regular hearing---Non-affixation of requisite court fee stamps on memo. of appeal---Appellant's readiness to pay such court fee while arguing appeal---Dismissal of appeal by Appellate Court after refusing to allow appellant to pay court fee---Validity---Sindh Rented Premises Ordinance, 1979 did not provide that in case of non-affixation of court fee stamps, appellant would lose right to file appeal---Appellant must have been given an opportunity to pay up court fee before taking away his substantive right to file appeal---Technical dismissal of appeal would deprive appellant of his right to re-file appeal due to bar of limitation---Appellate Court had not asked appellant to affix court fee stamps while presenting appeal within time, rather had admitted appeal without such objection---High Court set aside impugned order and directed appellant to pay court fee stamps within specified time before Appellate Court.

Rashid Ahmad and another v. Khurshid Ahmad Khawar and another 1985 CLC 274; Muhammad Shaft v Rehmat Ali 1985 CLC 432; Muhammad Fiaz and another v Ch.Yaqoob Hussain and another PLD 2010 Lah. 197; Messrs Muqtada Khan Iqtida Khan v. Allah Rakhi Begum 1981 CLC 568; Syed Muhammad v Mazhar Ali Khan PLD 1981 Kar. 76; Khadim Hussain Agha v. Muhammad Ashraf 1980 CLC 621 and unreported order of this court dated 8-2-1987 passed in FRA No.65 of 1985 ref.

(c) Appeal (civil)---

----Party should be put on notice of penal action likely to be taken against him, more particularly when such action would take away a substantive right of appellant to file appeal.

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

---Ss.15 & 21---'Rent application' and 'appeal', technical dismissal of---Distinction stated.

Technical dismissal/rejection of rent application will not bar the right of party to re-submit the same, but situation in matter of appeal is different, because technical dismissal of appeal will, in all senses, take away the right of appeal of the appellant, and in such eventuality re-submission of appeal will deprive the valuable legal right of party to limitation.

(e) Interpretation of statutes---

----Benefit is always to be drawn in favour of those who are likely to suffer.

(f) Administration of justice---

----Dismissal of lis by court on technical ground---Not proper---Principles.

Lis should not be knocked out on technical grounds, but the endeavours of the courts should to decide the matters involving valuable right of the parties on merits, and the parties to the litigation should not be non-suited on mere technical grounds.

(g) Words and phrases---

----"Prefer"---Meaning---Word "prefer" would mean to put forward or present for consideration.

Sarfraz A. Akhund for Petitioner.

Abdul Naeem for Respondents.

Date of hearing: 16th November, 2012.

2013 M L D 681

[Sindh]

Before Farooq Ali Channa and Salahuddin Panhwar, JJ

EVERGREEN COLLEGE OF EDUCATION, HINGORJA through Administrator---Petitioner

Versus

SHAH ABDUL LATIF UNIVERSITY, KHAIRPUR through Registrar and 2 others---Respondents

Constitution Petition No.D-2805 of 2011, decided on 24th December, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Affiliation of college, extension in---Principles of natural justice---Applicability---Petitioner was a college and its grievance was that competent authority had declined to extend its affiliation with Shah Abdul Latif University Khairpur, without providing any opportunity of hearing---Validity---Since no opportunity was provided to petitioner, therefore, it was condemned unheard, and the same was violation of principles of natural justice---Order passed by competent authority was of no legal effect in all fairness of justice, equity and goods conscious---Prerogative being with the competent authority to decide issue of extension of affiliation or otherwise, High Court directed the competent authority to strictly follow procedure so provided for deciding issue of extension of affiliation of petitioner after providing an opportunity of hearing to it---Petition was allowed accordingly.

Nisar Ahmed Bhambhro for Petitioner.

Abdul Qayoom Shaikh for Respondents Nos.1 to 3.

Agha Ather Hussain, A.A.-G. for Respondent No.4.

2013 M L D 731

[Sindh]

Before Aftab Ahmed Gorar, J

Mst. SHAHANA ASHRAF---Petitioner

Versus

V-ADDITIONAL DISTRICT JUDGE, KARACHI SOUTH through Secretary Ministry of Law and another---Respondents

Constitutional Petition No.S-1245 of 2010, decided on 18th December, 2012.

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

----S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment petition---Default in payment of rent by tenant---Dismissal of ejectment petition by Rent Controller upheld by Appellate Court on ground of non-commission of such default by tenant---Non-challenging of such findings of courts below by landlord in constitutional petition---Effect---Such findings had attained finality---Constitutional petition was dismissed.

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

----S. 15---Ejectment petition---Bona fide personal need of landlord---Landlord's plea was that he along with his family wanted to shift from Canada in order to bring up his children in Pakistan in accordance with eastern culture of Islamic pattern---Proof---Appearance of attorney in witness box instead of landlord---Validity---Landlord, if unable to give evidence for genuine reasons, could appoint a person for such purpose---Landlord through power of attorney had authorized attorney to give evidence on his behalf---Tenant, during cross-examination could not shake statement of landlord's attorney on oath and established same to be inconsistent with averments made in ejectment petition---Ejectment petition was accepted in circumstances.

2010 CLC 1006; 1980 SCMR 593; 1998 SCMR 2525; 2001 SCMR 1676; 2003 YLR 1101 and 2001 SCMR 241 ref.

1997 SCMR 1062 rel.

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

----S.15---Ejectment proceedings---Power of attorney---Appearance of attorney in witness box instead of landlord---Scope---Landlord, if unable to give evidence for genuine reasons, could appoint a person for such purpose.

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

----S.21---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Ejectment proceedings---Constitutional jurisdiction was very much limited and confined only to ascertain whether Appellate Court had flouted statutory provisions or failed to follow relevant law.

Hafiz Shafatullah v. Mst. Shamim Jehan and another PLD 2004 Kar. 502 and 2010 SCMR 1025 rel.

Abdul Hakim Rajput for Petitioner.

Zia G. Shaikh for Respondent No.2.

Date of hearing: 29th November,2012.

2013 M L D 741

[Sindh]

Before Aftab Ahmed Gorar, J

Syed MUHAMMAD MAHMOOD ALAM---Applicant

Versus

MUHAMMAD AFSAR KHAN and another---Respondents

Criminal Miscellaneous No.87 of 2011, decided on 5th November, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 491 & 561-A---Habeas corpus---Application for recovery of minor-boy from the custody of his father, dismissal of---Right of custody of maternal grandfather (nana) and grandmother (nani) of minor---Scope---Mother of minor had passed away and he stayed in the custody of his maternal grandfather (nana)---Father of minor filed habeas corpus petition, which was allowed and custody of minor was handed over to him---Maternal grandfather of minor contended that minor had been living with his maternal grandmother (nani) who had a preferential right of custody, and that minor's father had no arrangements to look after him---Validity---Father of minor was his natural guardian and he would be in a better position to maintain and look after the child and provide him proper education and livelihood--- Although maternal grandmother had the preferential right for the custody of the minor but, in the present case, she had not come forward and instead maternal grandfather of minor was claiming the right of custody, who could not be given preference over the natural guardian viz. father---Merely mentioning that after the demise of minors' mother, he was being looked after his maternal grandmother was not enough unless she came forward and claimed such right---Application filed by maternal grandfather of minor was dismissed accordingly.

2011 MLD 1814 and 2011 YLR 348 ref.

Saeed-uz-Zaman for Applicant.

Muhammad Yousuf Naz for Respondent No.1.

Muntazir Mehdi, A.P.-G. for Respondent No.2.

Date of hearing: 5th November, 2012.

2013 M L D 753

[Sindh]

Before Abdul Rasool Memon, J

NIAZ FARAZ---Application

Versus

The STATE---Respondent

S.M.A. No.21 of 1996, decided on 21st November, 2012.

Succession Act (XXXIX of 1925)---

---S. 372---Succession certificate---Change of name of minor of legal heir in the certificate---After issuance of Succession Certificate share of applicant, who was a minor at that time, was deposited by the Nazir in her name in a profit bearing scheme---Applicant sought correction of her name on the grounds that at time of issuance of Succession Certificate she was known by her childhood name, which was subsequently changed by her mother---Validity---Applicant produced her Family Registration Certificate, educational certificates and record of National Database and Registration Authority (NADRA) to establish that her name had been changed---Mother of applicant had sworn an affidavit that she changed the childhood name of applicant to her current name---Applicant was also present in court along with her original Computerized National Identity Card (CNIC)---No one had come forward to object to the identity of the applicant who was shown with her childhood name at the time of grant of Succession Certificate---Amount deposited in the profit bearing scheme was not substantial---Application was allowed and Nazir was directed to pay the deposited amount to the applicant on execution of personal bonds equivalent to the amount in question.

M. Sohail Zafar Bhatti for Applicant.

2013 M L D 769

[Sindh]

Before Abdul Rasool Memon, J

HUSSAIN BAKSH AWAN---Appellant

Versus

ANJUM FAROOQ---Respondent

I.A. No.26 of 2010, decided on 14th December, 2012.

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

----O.XXXVII, Rr 1 & 2 & S. 20---Suit for recovery of money under provisions of Order XXXVII C.P.C. was decreed---Territorial jurisdiction of civil court---Contention of defendant was that the cheque was allegedly issued by defendant to the plaintiff within the limits of district "S", and the same was dishonoured by the bank within limits of district "S" while the suit was filed within the limits of district "W"; and therefore, civil court at district "W" did not have jurisdiction to try the case---Validity---Section 20, C.P.C. provided that suits not covered by Ss. 15 to 19 C.P.C., could be instituted in a court within the local limits of whose jurisdiction the defendant actually and voluntarily was resident or carried on business or personal works for gain, and such defendant could be sued with the leave of the court; or where the cause of action wholly or in part arose---Defendant, in the present case, admittedly, had shown his residential address at district "W" and in view of such factual and legal position, defendant could be sued within the limits of district "W"---Trial Court had rightly assumed jurisdiction---Appeal was dismissed.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 ref.

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

----O. XXXVII Rr. 1 & 2---Suit for recovery of money under provisions of Order XXXVII, C.P.C.---Dishonouring of cheque---Burden of proof---If of a cheque, was claimed to have been issued without consideration or in the name of some other person, the burden to prove so, lay upon the party so claiming.

(c) Administration of justice---

----Criminal and civil proceedings simultaneously---Scope---Criminal proceedings are not barred in presence of civil proceedings---Civil and criminal proceedings could proceed simultaneously.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 rel.

Afaq Yousuf for Appellant.

Muhammad Sharif for Respondents.

Date of hearings: 1st November, 2012.

2013 M L D 782

[Sindh]

Before Muhammad Ali Mazhar, J

NORTHERN POLYTHENE LTD. (NPL) through Director (Finance)---Plaintiff

Versus

NATIONAL BANK OF PAKISTAN and others---Defendants

Suit No.1630 of 1998, decided on 27th February, 2013.

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

----O.IX, R.9---Suit dismissed for non-prosecution---Plaintiff's plea was that after withdrawal of Vakalatnama by his earlier counsel, no notice was issued to him; and that court was required to issue him notice for each and every date---Validity---Court had given specific date and reasonable time to plaintiff either to engage another counsel or pusue his earlier counsel to proceed with the case---Duty of plaintiff was to puruse his case vigilantly and engage another counsel and not to act recklessly---Court in such circumstances was not bound to send notice to plaintiff for each and every date---Such application was dismissed in circumstances.

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

----O.IX, R.9---Dismissal of suit for non-prosecution---Restoration---Words "sufficient cause" as used in O.IX, R.9, C.P.C.---Connotation.

There is no strait-jacket (precise) formula for determining what "sufficient cause" is. The expression "sufficient cause" so as to grant relief under Order IX Rule 9, C.P.C. has been left to the wisdom, good sense and discretion of the court. The word "sufficient cause" for restoration of suit is not susceptible of any exact definition and no hard and fast rule can be laid down. As to what is "sufficient cause" depends on the facts and circumstances of each case. Parameter of each case would primarily be its own facts, it would have to be taken into consideration for determining as to whether "sufficient cause" was shown or not. The court is to be satisfied as to the sufficiency of good cause and it has to be subjective satisfaction. Where suit is dismissed for default it is the duty of that party or counsel to show sufficient cause as to why case was not prosecuted on the relevant date. Mere engagement of counsel does not absolve the party of his responsibility as it was as much his duty as that of counsel engaged by him to see whether the case was properly and diligently prosecuted or not and if counsel was lacking in his sense of responsibility it is the party who engaged him should suffer and not the other side.

Sufficient cause has been given a meaning to embrace all relevant circumstances. The question would be whether the plaintiff honestly intended to be in court and did his best to get there in time, but for intervention of some inevitable cause he failed to appear, which is sufficient cause inviting order for restoration.

Muhammad Ismail v. Faiz Bakhsh and others 1987 SCMR 732; Muhammad Qasim and others v. Moujuddin and others 1995 SCMR 218; Muhammad Aslam v. Agricultural Development Bank of Pakistan 2003 CLD 898; Al-Waqar Corporation v. Rice Export Corporation and another 2011 MLD 266; Province of Sindh and another v. Anwar SBLR 2012 (Sindh) 1021; Messrs United Bank Ltd. and others v. Messrs Plastic Pack (Pvt.) Ltd., and others 2012 CLC 229; Jangoo v. Fasahatullah Khan and others 2012 CLC 556; Pehalwan Goth Welfare Council v. District Co-ordination Officer (DCO), Karachi and others PLD 2012 Sindh 110; Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628; Abdul Karim and 2 others v. Rehm Ali 1991 MLD 63; Mst. Ghulam Sakina and others v. Karim Baikhsh and others PLD 1970 Lah. 412; Sabzal and others v. Bingo and others PLD 1989 Kar. 1; Mian Muhammad Asif v. Fahad and another 2009 SCMR 1030 and Abdul Rashid v. Director General, Post Offices, Islamabad and others 2009 SCMR 1435 ref.

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

----O.IX, R.9---Limitation Act (IX of 1908), S.5 & Art. 163---Suit dismissed for non-prosecution---Restoration---Limitation---Delay, condonation of---Scope---Plaintiff would be obliged to show sufficient cause for his previous non-appearance and explain delay of each and every day---Principles.

For the purposes of restoration of suit and condonation of delay, the plaintiff has to demonstrate the sufficient cause whereby he was prevented not to diligently pursue the suit, while for the purposes of condonation of delay under section 5 of the Limitation Act, 1908 delay of each and every day has to be explained. If condonation is allowed even then it does not mean that restoration of suit will also be achieved, but this remedy is subject to the proof of sufficient cause.

Sufficient cause has been given a meaning to embrace all relevant circumstances. The question would be whether the plaintiff honestly intended to be in court and did his best to get there in time, but for intervention of some inevitable cause he failed to appear, which is sufficient cause inviting order for restoration.

Muhammad Ismail v. Faiz Bakhsh and others 1987 SCMR 732; Muhammad Qasim and others v. Moujuddin and others 1995 SCMR 218; Muhammad Aslam v. Agricultural Development Bank of Pakistan 2003 CLD 898; Al-Waqar Corporation v. Rice Export Corporation and another 2011 MLD 266; Province of Sindh and another v. Anwar SBLR 2012 (Sindh) 1021; Messrs United Bank Ltd. and others v. Messrs Plastic Pack (Pvt.) Ltd., and others 2012 CLC 229; Jangoo v. Fasahatullah Khan and others 2012 CLC 556; Pehalwan Goth Welfare Council v. District Co-ordination Officer (DCO), Karachi and others PLD 2012 Sindh 110; Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628; Abdul Karim and 2 others v. Rehm Ali 1991 MLD 63; Mst. Ghulam Sakina and others v. Karim Baikhsh and others PLD 1970 Lah. 412; Sabzal and others v. Bingo and others PLD 1989 Kar. 1; Mian Muhammad Asif v. Fahad and another 2009 SCMR 1030 and Abdul Rashid v. Director General, Post Offices, Islamabad and others 2009 SCMR 1435 ref.

(d) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss.7(2), 22 & 27---Civil Procedure Code (V of 1908), O.IX, R.9 & O. XVII, R.17---Application for restoration of suit dismissed for non-prosecution---Jurisdiction of Banking Court---Scope---Banking Court, in absence of procedure provided in respect of any matter in Financial Institutions (Recovery of Finances) Ordinance, 2001, would have to follow procedure laid down in C.P.C.---Order of dismissal of suit for non-prosecution neither decided rights of parties on merits nor was a judgment, decision or decree liable to be challenged in appeal---Such order could not be considered a decision under O.XVII, R.3, C.P.C.---Provision of S. 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001 did not bar Banking Court from restoring suit, which had been dismissed for non-prosecution without touching merits of case---Banking Court before restoring suit would be bound to see whether sufficient cause for previous non-appearance had been shown or not and whether such application was barred by limitation, if so, then whether delay of each and every had been explained or not---Principles.

Messrs Makran Fisheries (Pvt.) Ltd. v. Platinum Co. 2006 CLD 52 and Shaikh Kamran Maqbool v. Bolan Bank Ltd. through Manager and another 2006 CLC 163 ref.

Muhammad Anwar Tariq for Plaintiff.

Yousuf Naseem for Defendant No.1.

Khawaja Shams-ul-Islam for Defendant No.4.

Dates of hearing: 22nd November and 7th December, 2012.

2013 M L D 800

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD IQBAL---Petitioner

Versus

Mst. ZAHIDA and 2 others---Respondents

Constitutional Petition No.S-1753 of 2012, decided on 15th February, 2013.

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

----Ss. 17(1) & 5, Sched.---Claim of dowry articles---Proof---Provisions of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908---Applicability---Provisions of Qanun-e-Shahadat, 1984 and Civil Procedure Code would not apply to prove the claim of dowry articles---Section 17 of West Pakistan Family Courts Act, 1964 made it abundantly clear that provisions of Qanun-e-Shahadat, 1984 were excluded.

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

----S. 5, Sched.---Claim of dowry articles---Proof---Keeping record of purchase receipts and list of dowry articles and obtaining signature from the bridegroom side---Propriety---Not possible for any bride/wife in Pakistan to keep the record of purchase receipts, prepare the list of dowry articles, and obtain signatures from bridegroom/husband side.

Muhammad Habib v. Mst. Safia Bibi and others 2008 SCMR 1584 and Mirza Arshad Baig v. ADJ 2005 SCMR 1740 rel.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Claim of dowry articles---Proof---Courts below, in original and appellate jurisdiction were competent to draw inference, while delivering the judgment and it was not open to interference in constitutional jurisdiction, unless and until miscarriage of justice was established by the party---High Court would not normally interfere in judgment and decree passed by court of competent jurisdiction for the reasons that it was within their exclusive jurisdiction, to believe and disbelieve the evidence.

Sohail Ahmed Khoso for the Petitioner.

Raham Ali Jatoi for respondent No.1.

Salahuddin Abro, State Counsel.

Date of hearing: 15th February, 2013.

2013 M L D 815

[Sindh]

Before Nadeem Akhtar, J

ZULFIQAR SHAKOOR---Plaintiff

Versus

Messrs QUETTA TOWN CO-OPERATIVE HOUSING SOCIETY LTD. through Honorary Secretary/Chairman---Defendant

Suit No.1171 of 2011, decided on 4th January, 2013.

Arbitration Act (X of 1940)---

----S. 30---Grounds for setting aside award---Hearing of objections to an award---Court not to act as a court of appeal---Scope---Error or infirmity in the award which rendered the same invalid must appear on the face of the award and the Arbitrator was the final judge on the law and facts and it was not open to a party to challenge the decision of the Arbitrator, if it was otherwise valid and if the arbitrator had given his decision in terms of the submission, nothing adverse could be attributed to him---Court under, S. 30 of the Arbitration Act, 1940, was not to act as a court of appeal and sit in judgment over the award---While examining the validity of an award, the court does not act as a court of appeal, and a court hearing objections to an award cannot undertake reappraisal of evidence recorded by the arbitrator, and the findings of a sole arbitrator, which are otherwise legally sound and proper in all respects, were not liable to be disturbed.

Messrs Joint Venture KG/RIST and 2 others v. Federation of Pakistan and another PLD 1996 SC 108; Pakistan Steel Mills Corporation, Karachi v. Messrs Mustafa Sons (Pvt.) Ltd., Karachi PLD 2003 SC 301; Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1984 SCMR 597; Mian Corporation v. Messrs Lever Brothers of Pakistan Ltd., PLD 2006 SC 169 and Federation of Pakistan v. Messrs Joint Venture Kocks K.G./RIST, PLD 2011 SC 506 rel.

Badar Alam Khan for Plaintiff.

Abdul Jabbar Qureshi for Defendant.

Date of hearing: 31st October, 2012.

2013 M L D 831

[Sindh]

Before Naimatullah Phulpoto, J

MEHAR alias DHANI BUX---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-451 of 2012, decided on 10th December, 2012.

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

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(ii)/452/114/34/504---Shajjah-i-mudihah, house-trespass after preparation for hurt, assault or wrongful restraint, abettor present when offence is committed, common intention, intentional insult with intent to provoke breach of peace---Interim pre-arrest bail, confirmation of---Co-accused already granted bail---Rule of consistency---Enmity between parties admitted---Probability of false implication---Mala fide of complainant---Effect---Accused was alleged to have caused hatchet blows on the head of the complainant---Co-accused persons, who were assigned a role similar to that of the accused, were already granted pre-arrest bail---Although accused allegedly caused a hatchet blow but medical evidence revealed that injury received by complainant was caused by a hard and blunt substance---Enmity between parties had been admitted in the F.I.R., as such false implication of accused could not be ruled out---Alleged offence did not fall within the prohibitory clause of S. 497, Cr.P.C.---Mala fide of complainant were apparent on the record---Interim pre-arrest bail already granted to accused was confirmed in circumstances.

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

----Ss. 497/498---Bail---Scope---Offence not falling within prohibitory clause of S. 497, Cr.P.C.---Effect---For such offences grant of bail was a rule and refusal thereof an exception.

Safdar Ali G. Bhutto for Applicant.

Qazi Muhammad Bux for the State.

2013 M L D 845

[Sindh]

Before Naimatullah Phulpoto, J

Mst. MURAD KHATOON---Petitioner

Versus

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

Constitution Petition No.S-938 of 2012, decided on 17th December, 2012.

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

----S.154---F.I.R., registration of---Principle---Incharge of police station is duty bound and it is his statutory obligation that on receipt of information whether orally or in writing, has to record the same in book prescribed for that purpose and no option or discretion is left with him in such regard.

(b) Discretion---

----Principle---Discretionary power must be exercised in good faith having regard to all relevant considerations and it should be exercised justly, fairly and reasonably.

(c) Constitution of Pakistan---

----Art.199---Constitutional petition---"Aggrieved person"---Availability of alternate remedy---Effect---F.I.R., registration of---Second version---Scope---Grandson of petitioner was murdered and he sought direction to police to register F.I.R. according to his version---Validity---Although alternate remedy was provided to an aggrieved party under law by way of direct complaint, yet mere fact that an alternate remedy could not deter High Court from giving directions to police to record F.I.R. in appropriate case---Petitioner's grandson was murdered and incident was witnessed by petitioner and her witnesses, specifically nominating three persons---Motive for commission of offence was also mentioned in the petition, as such petitioner was an "aggrieved person" and case for registration of another F.I.R. was made out---Petitioner approached Station House Officer for registration of F.I.R. but he failed to perform his duty---Entirely different version was narrated by police in F.I.R. lodged on behalf of the State---Petitioner could not be deprived from recording her statement by Station House Officer on such ground alone---High Court directed Station House Officer concerned to register fresh F.I.R. on the basis of statement of petitioner---Petition was allowed in circumstances.

Mst. Anwar Begum v. Station House Officer Police Station Kalri West Karachi PLD 2005 SC 297; Muhammad Bashir v. S.H.O. Police Station Okara Cantt PLD 2007 SC 539; Jamshed Khan and another v. Government of Sindh 1999 PCr.LJ 512 and Human Rights case No. 3212 2006 SCMR 1547 ref.

Sarfraz Khan Jatoi for Petitioner.

Muhammad Yaqoob Dahani, along with PSI Raza Muhammad Sohu for S.S.P. Kamber-Shahdadkot and A.S.-I. Ghulam Rasool of Police Station Warrah for the State.

2013 M L D 863

[Sindh]

Before Habib-ur-Rehman Shaikh, J

YAHYA and 2 others---Applicant

Versus

The STATE---Respondent

Criminal Bail Applications Nos.S-908 of 2011 and S-120 of 2012, decided on 10th September, 2012.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 337-A(i), 337-F(ii), 403, 147, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, causing Shajjah-i-Khafifa, causing Badiah, dishonest misappropriation of property, rioting, common object---Bail, grant of---Counsel for accused persons had not denied about the participation of accused from the scene of offence; but the role assigned to them was general in nature in the F.I.R. and not specific---No accused had caused injury to the deceased---Two persons had lost their lives in the incident and four persons were injured---Incident took place in broad daylight, accused in circumstances were responsible for their role to cause injuries to the prosecution witnesses, but not for causing injuries to the both deceased---Second F.I.R. registered by accused side, in which the time of incident was not the same, having been cancelled, it could not be said that there were counter cases, but cross version and the said F.I.R. was lodged after first F.I.R. and the time of incident was shown prior to the alleged first F.I.R.---Tentative assessment could only be made at bail stage, and the deeper appreciation was not permissible---Merely on the punishment of the offence, the bail of accused persons, could not be withheld---Accused had caused the injuries to the prosecution witnesses---Said injuries were punishable with imprisonment of less than 7 years, most of them two years; none of injury was specifically attributed to a particular accused---Accused having made out their case for grant of bail, accused were admitted to bail, in circumstances.

2010 MLD 1795; 2003 PCr.LJ 1688; 2003 MLD 115 and 1715; 2010 PCr.LJ 600, 1534; 1994 SCMR 2051; 1999 SCMR 1320, 1360; PLD 1998 SC (AJ&K) 43; PLD 1996 SC 241; PLD 1995 SC 34; 2000 SCMR 1854; 1995 SCMR 310; 2005 SCMR 17 and 2006 SCMR 966 ref.

Muhammad v. The State 1998 SCMR 454; Faraz Akram v. The State 1999 SCMR 1360; Attaullah and others v. The State 1999 SCMR 1320; Meeran Bux v. The State PLD 1989 SC 347 and Shabbir v. The State 2003 MLD 1715 rel.

(b) Criminal trial---

----Vicarious liability---Collective activity could also be an offence, but every person was responsible for his own act, liable for punishment as he did---Vicarious liability of accused would be determined at the trial.

Shamasuddin Khushk and Nisar Ahmed Durrani for Applicants.

Imam Bux Baloch for the Complainant.

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

2013 M L D 872

[Sindh]

Before Naimatullah Phulpoto, J

SIKANDER ALI---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.S-41 of 2012, decided on 26th November, 2012.

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

----S. 514---Bail bond, forfeiture of---Reduction in surety amount---Forfeiture of entire bond of surety by court without proof of mala fide or personal gain of surety---Propriety---Accused was granted bail on furnishing surety in the sum of Rs.50,000---Applicant stood surety for accused, who absconded after getting bail---Trial Court forfeited entire bond of surety and imposed full fine on surety of Rs.50,000---Surety contended that he stood surety only on humanitarian grounds and gained no monetary benefit in such regard; that he made all possible efforts to produce the accused, and that he was a poor person with a large family and did not have sufficient sources of income---Validity---Imposing entire fine upon the surety without any proof of mala fide or personal gain was not justified---Record did not show as to what inquiry , if any, had been made before the Trial Court in assessing the surety's laxity/carelessness or otherwise in his efforts to produce the accused---Revision application was allowed, amount of surety forfeited was reduced from Rs.50,000 each to Rs.37,000 and applicant was directed to deposit the same before the Trial Court within one month.

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

----S. 514---Forfeiture of bail bond---Imposition of fine---Principles---Approach of court should be dynamic and progressive orientated while imposing entire fine upon the surety---Nature of offence, efforts made by surety to produce the accused and financial position of surety might be taken into consideration while passing orders---Balance should be kept between undue severity and undue leniency---Undue severity might lead to unwillingness on the part of neighbours and friends to come forward and give surety for persons.

Akbar Ali Dahar for Applicant.

Naimatullah Bhurgri for the State.

2013 M L D 885

[Sindh]

Before Salahuddin Panhwar, J

ALLAH BAKHSH---Applicant

Versus

STATION HOUSE OFFICER and another---Respondents

Criminal Miscellaneous Application No.613 of 2012, decided on 21st December, 2012.

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

----Ss. 22-A(6)(i) & 154---Reliance on police report by Justice of Peace---Scope---Justice of Peace declined application of complainant/applicant filed under Ss. 22-A & 22-B, Cr.P.C. on the basis that report of Station House Officer (S.H.O.) stated that no such incident had taken place---Legality---Such course adopted by Justice of Peace was against the norms of settled principles---Justice of Peace could legally examine the contents of an application under S. 22-A(6)(i), Cr.P.C. but should not decline a legitimate right merely on the words of Station House Officer (S.H.O.) or Officer-in-charge of a police station to the effect that no offence had taken place---Application was allowed, impugned order of Justice of Peace was set aside and Station House Officer (S.H.O.) was directed to record statement of complainant, and if such statement reflected ingredients of a cognizable offence, then to register an F.I.R. against accused persons.

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

----S. 154---Lodgment of F.I.R.---No discretion of police---Scope---Provisions of S. 154, Cr.P.C. left no discretion with the Officer-in-charge of a police station to avoid lodgment of F.I.R., if there was a narration of facts of commission of a cognizable offence---Recording of statement was a legal right of every informant.

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

----Ss. 156 & 154---Investigation after lodgment of F.I.R.---Scope---Course of investigation started only after lodgment of F.I.R.---Officer-in-charge of a police station had no right to undertake any pre-inquiry or pre-investigation (before lodgment of F.I.R.).

Mushtaque Ahmed W. Abbasi for Applicant.

Sardar Ali Shah, A.P.-G. along with Inspector Nisar Ahmed Bullo S.H.O. Police Station, Mirpur Mathelo for the State.

2013 M L D 907

[Sindh]

Before Syed Muhammad Farooq Shah, J

ALI ANWAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-62 of 2005, decided on 14th December, 2012.

Prevention of Corruption Act (II of 1947)---

----S. 5(2)---Penal Code (XLV of 1860), S. 161--- Criminal Procedure Code (V of 1898), S. 103---Public servant taking gratification other than legal remuneration in respect of an official act, criminal misconduct---Appreciation of evidence---Trap proceedings---Non-marking of money---Non-association of private witnesses during recovery proceedings---Effect---Accused, who was a peon in a Government office, allegedly demanded bribe from local people for issuance of National Identity Cards (NICs)---Federal Investigation Agency (FIA) officials arranged trap proceedings and caught accused red-handed while accepting bribe and also recovered tainted money from him---Trial Court convicted and sentenced accused under S. 161, P.P.C. read with S. 5(2) of Prevention of Corruption Act, 1947----Validity---Material witness, who was allegedly deputed to issue National Identity Card (NIC) forms had not been examined and was given up due to unknown reasons---Private mashir was not put in the witness box and admittedly no other private witness acted as marginal witness of mashirnama of recovery---Provisions of S. 103, Cr.P.C. were violated by investigation officer, who admitted that private persons were available at the place of raid---Tainted money allegedly recovered from accused was neither marked nor sealed---Accused was not competent to receive and issue National Identity Cards (NICs), therefore, it appeared that he had been involved in the present case to save the real culprits---Raiding party, during trap proceedings should have heard the conversation which took place between the accused and the person who allegedly gave him bribe and should have also seen the passing over of tainted money---Contradictions existed with regard to recovery and sealing of tainted money and also with regard to marking signs on the same---Prosecution version was without corroboration, which adversely affected the credibility of testimony of prosecution witnesses---Evidence on record fell short of proving the charge against accused---Appeal was allowed, conviction and sentence recorded by Trial Court were set aside and accused was acquitted of the charge.

Mir Muhammad v. The State 1983 PCr.LJ 957; Khurshid Ahmad Zaid's case PLD 1983 Lah. 514; Raheel Sajid v. The State 1986 PCr.LJ 1006 and Amir Ahmad v. The State 1984 PCr.LJ 2388 ref.

Mrs. Razia Ali Zaman for Appellant.

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

Date of hearing: 5th December, 2012.

2013 M L D 930

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD HANIF ABBASI---Applicant

Versus

Messrs SEA BREEZE (PVT.) LTD.---Respondent

Civil IInd Appeal No.17 of 2008, decided on 21st February, 2013.

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

----S. 55---Specific Relief Act (I of 1877), Ss. 8, 39, 42 & 54---Suit for declaration, cancellation of agreement, possession and permanent injunction---Delivery of possession of restaurant to defendant under hire purchase agreement on advance payment of 50% amount while agreeing to pay 50% balance amount in 60 equal monthly instalments to plaintiff---Non-payment of agreed instalments by defendant---Plaintiff's plea was that such agreement stood cancelled and amount paid by defendant stood forfeited on account of his such default---Suit decreed by Trial Court upheld by First Appellate Court---Defendant's plea was that no notice had been sent to him before cancellation of agreement by plaintiff---Validity---Agreed instalments were payable on or before 5th of each month---Defendant had failed to produce in evidence any proof to show payment of agreed instalments---Plaintiff in case of delay in payment of agreed instalments had reserved right to cancel allotment of restaurant and forfeit paid amount without any notice to defendant---Time fixed for payment of each instalment was essence of contract---Plaintiff had not cancelled agreement on his own, but had approached court for such purpose by adopting due course of law---Defendant had contested suit, thus, he was on notice prior to cancellation of agreement by court---High Court dismissed appeal in circumstances.

M.S. Kailasanda Serma v. The President, District Board, Tanjore AIR 1928 Madras 211 and Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1965 (WP) Kar. 202 ref.

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

----S. 100---Second appeal challenging concurrent findings of fact of courts below---Scope---High Court could neither re­appraise evidence nor set aside such findings except on grounds finding mention in S.100, C.P.C.---Principles.

The scope of second appeal is restricted and limited to grounds prescribed by law i.e. (a) the decision being contrary to law or to some usage having the force of law, (b) the decision having failed to determine some material issue of law or usage having the force of law; and (c) a substantial error or defect in the procedure provided by Civil Procedure Code, 1908 or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon merits, and second appellate court is not expected to enter into reappraisal of evidence or to struck down concurrent findings of facts unless case falls within any of the exceptions of section 100, C.P.C.

Nasarullah Awan for Appellant.

Khaleeq Ahmed for Respondent.

Date of hearing: 14th February, 2013.

2013 M L D 944

[Sindh]

Before Aftab Ahmed Gorar, J

SHAHZAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1127 of 2012, decided on 31st October, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 103---Penal Code (XLV of 1860), Ss. 382/34---Qanun-e-Shahadat (10 of 1984), Art. 38---Theft after preparation made for causing death, common intention---Bail, grant of---Further inquiry---Accused and co-accused persons allegedly stopped a trailer, robbed its drivers and conductor and took away the trailer with them---Delay of five days in lodging of F.I.R. had not been explained by the complainant, giving the fact that distance between place of incident and police station was only 5 to 6 kilometers---After his arrest accused was not produced before the Magistrate for identification parade---Extra-judicial confession of accused was not admissible as evidence under Art. 38 of Qanun-e-Shahadat, 1984---No recovery had been effected from exclusive possession of accused, nor was he the owner of the Adda (bus stand) from where the recovery was effected---During recovery of robbed property, no private person was cited as mashir, which was a violation of S. 103, Cr.P.C.---Case of accused did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was admitted to bail accordingly.

1997 SCMR 412 and 1997 SCMR 971 rel.

2002 SCMR 1304 ref.

1995 SCMR 614 distinguished.

Shamim Iqbal Soomro for Applicant.

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

2013 M L D 952

[Sindh]

Before Abdul Rasool Memon, J

Mrs. DEEBA HASAN: Administration letter in the matter of

S.M.A. No.21 of 2012, decided on 12th February, 2013.

Succession Act (XXXIX of 1925)---

----Ss.278, 286 & 295---Letter of Administration, grant of---Property left by deceased claimed by objector (one of legal heirs) to have been gifted to him orally---Denial of objector's claim by petitioners (other legal heirs of deceased)---Effect---Such controversy could not be decided in a summary manner, rather holding of full-fledged inquiry would be required for its proper adjudication---Such administration proceedings in contentious cases would take form of regular suit according to provisions of C.P.C.---High Court converted such petition into civil suit while making petitioners as plaintiffs and objector as defendant therein.

Khursheed Ahmed Qureshi for Petitioner.

M. Qaiser Qureshi for Object/Respondent.

Date of hearing: 6th February, 2013.

2013 M L D 959

[Sindh]

Before Irfan Saadat Khan and Aftab Ahmed Gorar, JJ

GUL SHAH JEHAN---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.D-37 of 2012, decided on 22nd January, 2013.

Criminal Procedure Code (V of 1898)---

----Ss.516-A & 517---Release of vehicle involved in crime on superdari basis---Huge quantity of narcotic substance was recovered from the secret cavity of the bus in question---Driver of the bus who had pleaded his guilt before the Trial Court, was convicted and sentenced---Record revealed that registration papers of the bus, at the time of recovery of narcotic substance therefrom, were in the name of its original owner---Agreement produced by the Special Prosecutor had shown that bus in question was purchased by applicant who prayed for its release on superdari basis, had sold out the same to accused/driver on the basis of instalments---Applicant, neither claimed the ownership of the vehicle in question during investigation or trial, nor made any application before the Investigating Officer, or the Trial Court for release of the bus on superdari basis---Applicant was rightly held not entitled for release of bus, in circumstances---Impugned order passed by the Trial Court, did not suffer from any illegally and same required no interference by High Court.

Allah Ditta v. The State 2010 SCMR 1181 distinguished.

Shabeer Hussain Memon for Applicant.

Amjad Ali Sahto, Special Prosecutor ANF for the State.

2013 M L D 965

[Sindh]

Before Sajjad Ali Shah and Riazat Ali Sahar, JJ

Messrs ALI MEDICAL STORE and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.129 of 2012, decided on 28th November, 2012.

Drugs Act (XXXI of 1976)---

----Ss. 23, 27 & 34---Prohibitions---Import, manufacture and sale of drugs---Offences by companies etc---Appreciation of evidence---Accused were convicted by Trial Court under Ss. 23 and 34 of the Drugs Act, 1976---Complainant (Provincial Inspector of Drugs) had contended that during an inspection at the premises of the accused's Medical Store, drugs which were government property and not for sale were recovered from the possession of the accused, and the accused failed to produce/show invoices or bills for the same---Contention of the accused was that findings of Trial Court were erroneous---Validity----Complainant/Inspector had stated that he recovered the drugs which were government property and 'physician samples' (not for sale) from the place of the incident and such inspection was not denied by the accused and it appeared that accused being, proprietor and licence-holders of the medical store in question, were in knowledge about the drugs---Accused did not challenge the proceedings initiated by the Inspector before any forum prior to a filing of a direct complaint---Evidence of the prosecution was corroborated by ocular evidence along with circumstantial evidence which included the report of the Provincial Quality Control Board---Accused failed to provide bills and warranties for the drugs in question which showed that the accused had contravened S. 23(1) of the Drugs Act, 1976---Accused were fully aware of the sale and purchase of the drugs in question and they in association with each others, had committed the offence which fell within the purview of S. 34 of the Drugs Act, 1976---Case of the prosecution was established beyond reasonable doubt, therefore, sentence and conviction of the accused under S. 27(4) of the Drugs Act, 1976 was to be maintained---Appeals were dismissed, in circumstances.

Raza Muhammad Raza for Appellants.

Shahadat Awan, Prosecutor General Sindh for the State.

Date of hearing: 25th October, 2012.

2013 M L D 971

[Sindh]

Before Salahuddin Panhwar, J

TASHIF MEMON---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-611 of 2012, decided on 22nd October, 2012.

(a) 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---Further inquiry---Non-repetition of fire---Injury on non-vital part of body---Ocular version contradicting medical report---Effect---Allegation against accused was that he fired at the victim due to a monetary dispute---Record showed that monetary dispute did exist between accused and complainant---Victim, complainant and prosecution witnesses stated that injury was caused on victim's thigh, but medical report revealed that same was caused on victim's buttocks---Such discrepancy created reasonable doubt and made prosecution case open to further probe---Alleged injury was on non-vital part of victim's body---Prosecution did not say that accused repeated fire shot upon the victim, even though he was at the mercy of accused---Accused was no more required for further investigation---Case was one of further inquiry and benefit of doubt could be extended to accused even at bail stage---Accused was admitted to bail accordingly.

Muhammad Ayub v. Ubedullah and others PLD 2004 SC 479 rel.

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

----S. 497---Bail---Benefit of doubt---Scope---Benefit of doubt could be extended in favour of accused even at bail stage.

Aghis us Salman for Applicant.

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

2013 M L D 997

[Sindh]

Before Aftab Ahmed Gorar, J

ZAMBEER---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1247 of 2012, decided on 6th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 392/34---Robbery, common intention---Bail, grant of---Statutory delay in conclusion of trial---Accused was in jail for a period of more than 14 months---Delay in conclusion of trial was occasioned by the prosecution---Charge against accused had been framed---Prosecution witnesses never appeared before the Trial Court and non-bailable warrants of their arrest were repeatedly issued to secure their appearance---Delay in conclusion of trial was not occasioned by an act or omission of accused or any person acting on his behalf---Accused was neither a previously convicted offender for an offence punishable with death or imprisonment, nor was he a desperate or dangerous criminal or accused of an act of terrorism punishable with death or imprisonment for life---Accused was admitted to bail on ground of statutory delay in conclusion of his trial.

Shaikh Muhammad Suleman for Applicant.

Ms. Rahat Ehsan, A.P.-G. for the State.

Date of hearing: 6th December, 2012.

2013 M L D 1009

[Sindh]

Before Farooq Ali Channa, J

LIAQUAT ALI SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1096 of 2012, decided on 15th October, 2012.

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

----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 337-H(2), 147, 148, 149 & 114---Qatl-e-amd, attempt to commit qatl-e-amd, hurt by rash or negligent act, rioting, rioting armed with deadly weapons, unlawful assembly, abettor present when offence committed---Protective bail, grant of---Filing pre-arrest bail before High Court without approaching Sessions Court (Trial Court) first---Scope---Accused contended that there was old enmity between the parties and if he approached the Sessions Court first for grant of pre-arrest bail, there was an apprehension of quarrel and his arrest at the instance of the complainant party, who were influential persons of the locality---Validity---No legal justification existed in the contention of the accused regarding apprehension of a quarrel, if he approached Sessions Court first, because the case had been challaned and accused had to face trial at the same Sessions Court---Although a person could approach the High Court directly for bail before arrest by invoking its concurrent jurisdiction, but for that compelling reasons had to be brought on record, which the accused, in the present case, failed to do---Without touching merits of the case and in view of the apprehension of accused regarding his arrest before reaching the Sessions Court, protective bail was granted to him to appear and surrender before the Sessions Court for the relief of bail before arrest---Bail application was disposed of accordingly.

Riaz Ahmed Goharshahi v. The State PLD 2000 Kar. 6; Abdul Rasheed v. The State PLD 2003 Kar. 682 and Rais Wazir Ahmad v. The State 2004 SCMR 1167 ref.

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

----Ss. 498---Filing pre-arrest bail before High Court without approaching Sessions Court (Trial Court) first---Scope---Normally a person against whom a case had been registered, might in the first instance approach the original court i.e. Sessions Judge for bail before arrest because propriety so demanded, but it was not an absolute rule and depended upon the compelling circumstances of each case---Person could directly approach the High Court by invoking its concurrent jurisdiction.

Riaz Ahmed Goharshahi v. The State PLD 2000 Kar. 6; Abdul Rasheed v. The State PLD 2003 Kar. 682 and Rais Wazir Ahmad v. The State 2004 SCMR 1167 rel.

Shah Jahan Khan Jalbani for Applicant.

2013 M L D 1016

[Sindh]

Before Mushir Alam and Sadiq Hussain Bhatti, J.

PROVINCE OF SINDH through Secretary, Finance Department---Petitioner

Versus

AIJAZ and 6 others---Respondents

Constitutional Petition No.D-1926 of 2011, decided on 22nd February, 2013.

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

----S.1---Civil Procedure Code (V of 1908), S. 12(2) & O. XXI, R. 46---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Execution of decree passed under Fatal Accidents Act, 1855---Order of Executing Court attaching accounts of Finance Department maintained with State Bank---Validity---Petitioner's plea was that such decree could not be executed against Finance Department, which was not party to suit---Validity---Appeal filed against such decree had been dismissed for non-prosecution long ago---Petitioner, if aggrieved by any order passed in suit or execution proceedings, could avail statutory remedy either by filing appeal or application under S. 12(2), C.P.C., but could not challenge same by filing constitutional petition---Executing Court had dismissed petitioner's application containing similar pleas raised in constitutional petition---Such decree had been passed against Driver of bus owned by Karachi Transport Corporation---Additional Secretary, Finance Department, through which Government assumed responsibility of such Corporation after its dissolution, had entered into an agreement with decree-holders during execution proceedings---Finance Department for being signatory to such agreement could not avoid such decree, which was being executed against Government for being responsible to satisfy same---High Court dismissed constitutional petition for not being maintainable.

Sh. Shajar Hussain v. Haji Abdul Majeed and others 2006 SCMR 913; Happy Family Associates through Chief Executive v. Pakistan International Trading Company PLD 2006 SC 226; Mir Zaman v. Mst. Sheda and 58 others 2000 SCMR 1699; Commissioner of Income Tax and another v. Hamdard Dawakhana (Waqf) PLD 1992 SC 847; Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315 and Mumtaz Ahmed and another v. Assistant Commissioner and another PLD 1990 SC 1195 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction could not be invoked to circumvent limitation or as a substitute for appellate or revisional jurisdiction.

Khalid Mehmood v. Collector of Customs, Customs House, Lahore 1999 SCMR 1881 rel.

Muhammad Sarwar Khan, Additional Advocate General Sindh and Saifullah, Assistant Advocate General Sindh for Petitioner.

Farrukh Usman and Aamir Maqsood for the Respondents Nos. 1 to 6.

2013 M L D 1032

[Sindh]

Before Aftab Ahmed Gorar, J

MUNSIF KHAN ADVOCATE---Appellant

Versus

Mst. KHURSHEED BEGUM and 2 others---Respondents

Civil Appeal No.13 of 2010, decided on 31st December, 2012.

(a) Defamation Ordinance (LVI of 2002)---

----S. 3---Defamation---Scope---Merely seeking remedy or making applications to authorities for enforcement or protection of one's right or redressal of one's grievance would not fall within ambit of "defamation" and not be termed as such.

Dr. Mukhtar Ahmed v. Mst. Shamim Hashmi 2007 CLC 941 rel.

(b) Defamation Ordinance (LVI of 2002)---

----Ss. 3, 12 & 15---Civil Procedure Code (V of 1908), Ss. 11, 35-A & O.VII, R. 11---Appeal---Suit for recovery of damages/compensation---Plaintiff's plea was that defendant being his son-in-law after having turned out his daughter from house had started to defame him, his daughter and family by moving against them deliberate false publications before different authorities---Defendant's application under O. VII, R. 11, C.P.C. for rejection of plaint on account of not disclosing cause of action and suit was barred by principle of res judicata---Defendant's plea was that plaintiff for being habitual litigant had filed several such suits previously, which had ended in favour of defendant---Rejection of plaint by Trial Court---Validity---According to defendant as plaintiff was using illegal means and tactics to harass him, thus, he made applications to certain authorities for protection of his right---Defendant had not published or circulated any false statement in newspaper to injure reputation of plaintiff or lower him in estimation of others---Merely making applications to authorities for redressal of one's grievance could not be termed as "defamation"---Plaintiff had earlier filed against defendant about eight suits for damages on account of defamation almost on similar facts and grounds and 19 other cases---Plaint in such previous suits had been rejected---Plaintiff from his such conduct appeared to be habitual litigant, who had been dragging defendant in different proceedings for recovery of damages/compensation just to tease him---Without taking strict action against plaintiff, there would not be end to such litigation---Trial Court had not imposed compensatory costs upon plaintiff under S. 35-A, C.P.C., which Appellate Court was not competent to do.---High Court dismissed appeal in limine.

1981 CLC 118; PLD 1979 Kar. 315; PLD 1976 Lah. 1548; 2012 SCMR 366; 2002 SCMR 338; 2007 CLC 941; PLD 1995 SC 472; 2007 CLC 1174 and PLD 1990 SC 28 ref.

Dr. Mukhtar Ahmed v. Mst. Shamim Hashmi 2007 CLC 941 rel.

(c) Administration of justice---

----Court would have to do justice between the parties and was not be supposed to discharge its functions in an arithmetical or technical manner.

(d) Administration of justice---

----Justice should not only be done, but should manifestly and undoubtedly be seen to be done.

Appellant in person.

Munir Ahmed for Respondents Nos. 1 and 2.

Date of hearing: 18th December, 2012.

2013 M L D 1072

[Sindh]

Before Sajjad Ali Shah and Irfan Saadat Khan, JJ

The STATE---Appellant

Versus

WAQAR and others---Respondents

Special Criminal Anti-Terrorism Jail Appeal No.32 of 2010, decided on 6th December, 2012.

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

---Ss. 6(2)(k) & 7(h)---Extortion of money (bhatta)---Appreciation of evidence---Accused was alleged to have demanded bhatta from the complainant---Accused was arrested when he came to the house of complainant to collect the bhatta amount---Trial Court convicted and sentenced accused under Ss. 6(2)(k) & 7(h) of Anti-Terrorism Act, 1997---Validity---Complainant was not acquainted with the accused, therefore, it could not be said that accused had come to the house of complainant for a social visit---Record showed that there was no enmity between the complainant and accused---Complainant clearly deposed that accused was constantly calling him and arranged a date and time to collect the bhatta amount from house of complainant---Accused went to the house of complainant on the specific date and time to collect the bhatta amount, as there was no other purpose or reason available with the accused to visit the house of complainant---Due to intervention of people of the locality accused did not succeed in getting the bhatta amount and was apprehended from the spot---Appeal of accused was dismissed in circumstances.

Waton Party and another v. Federation of Pakistan and others PLD 2011 SC 997 ref.

Muhammad Ashraf Kazi for Appellant.

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

Dates of hearing: 21st November and 6th December, 2012.

2013 M L D 1085

[Sindh]

Before Naimatullah Phulpoto, J

MUHAMMAD ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-380 of 2012, decided on 26th November, 2012.

(a) 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 armed with deadly weapons, unlawful assembly---Bail, refusal of---Specific allegation of firing---Recovery of empties---Medical report corroborating ocular account---Defence plea of alibi not raised before Trial Court---Effect---Accused and co-accused persons allegedly fired at and killed the deceased due to a matrimonial dispute---Accused contended that he had been declared as innocent by the police during investigation, and that he was present at another place at the time of the alleged occurrence---Validity---Complainant in the F.I.R. and eye-witnesses in their S. 161, Cr.P.C. statements clearly stated that accused along with co-accused persons fired at the deceased---Post-mortem report of deceased mentioned that he died due to firearm injuries---Four empties were collected from place of occurrence---Plea of alibi was not raised by the accused when he filed bail application before the Trial Court, meaning thereby that he had no such defence at that time---Accused had relied upon the evidence of a large number of witnesses for his plea of alibi, therefore, evaluation of such plea could not be undertaken at present bail stage, as it would require deeper appreciation of evidence, which could only be done at trial----Prima facie sufficient grounds existed to believe that accused was involved in the commission of the alleged offence, which was punishable with death or imprisonment for life---Bail application of accused was dismissed in circumstances.

Khushal v. The State 1971 SCMR 357; Tariq Bashir v. The State PLD 1995 SC 34; Rana Tahir v. The State 1996 PCr.LJ 1755 and Rehman alias Rehmanullah v. The State 1998 PCr.LJ 143 distinguished.

Abdul Latif v. The State 2006 MLD 639 ref.

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

----Ss. 497 & 173---Bail---Police report/opinion---Scope---Declaration of accused as innocent by the police during investigation was not a valid ground for grant of bail---Opinion of police was not binding upon the courts.

Khalid Iqbal Memon for Applicant.

Abdul Rasheed Soomro, State Counsel.

Nasrullah Solangi for the Complainant.

2013 M L D 1097

[Sindh]

Before Aqeel Ahmed Abbasi and Sadiq Hussain Bhatti, JJ

SHAFQAT HUSSAIN---Petitioner

Versus

NATIONAL TESTING SERVICES PAKISTAN through Chief Co-Ordinator/Regional Head and 3 others---Respondent

Constitutional Petition No.D-3181 of 2012, decided on 10th December, 2012.

Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Examination---Re-evaluation of answer sheets---Petitioner took examination conducted by National Testing Service (NTS) and his grievance was that answer to three questions with examiner were wrong, therefore, he sought correction of his result---Plea raised by authorities was that re-evaluation of answer sheets could not be done under constitutional jurisdiction---Validity---Authorities on representation of petitioner rectified answers of two questions, therefore, possibility of error in answer of third question could not be ruled out---Right of aggrieved person, who was otherwise eligible to participate in competitive recruitment process, could not be denied on technical grounds---Petitioner could not properly appreciate construction of passage available in question paper and opted for an incorrect reply---High Court, in exercise of constitutional jurisdiction, declined to under-take detailed appraisal or scrutiny of answer sheet of petitioner or answer key of examiner---Result of petitioner as declared by NTS was not interfered with---Petition was dismissed in circumstances.

Chairman Board of Intermediate and Secondary Education v. Ali Mir 1984 SCMR 433 rel.

Jan Muhammad Naich for Petitioner.

Afaq A. Saeed and Saifullah, A.A.-G. for Respondents.

Date of hearing: 4th December, 2012.

2013 M L D 1117

[Sindh]

Before Syed Muhammad Farooq Shah, J

NOOR MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-302 of 2006, decided on 13th December, 2012.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), Ss.103 & 164---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Mashir in the case had been declared hostile, while co-Mashir had been given up---Mashirnama of arrest and recovery did not show that 'empty' used in the commission of offence had been recovered or not---Nothing was on record showing recovery of the empty cartridge from the place of occurrence; and none was wedded or matched with the weapon---Only examined marginal witness Mashir was related to the complainant, who was declared hostile by the prosecution; and no other inhabitant of the locality witnessed the alleged recovery of the weapon and arrest of accused; and there was no explanation in that respect---Record did not reveal as to whether any efforts were made to persuade any person from the locality or for that matter the public to act as witness of recovery, though the prosecution witnesses had stated that about 20/25 persons gathered at the spot---Flagrant violation of the provision of S.103, Cr.P.C. had rendered the alleged recovery of weapon extremely doubtful, in circumstances---Material infirmities and errors were found in the confessional statement recorded by the Magistrate---Statement of Magistrate had shown that he had not followed the mandatory requirements for recording the confessional statement under S.164(3), Cr.P.C.---Contradictory depositions of the prosecution witnesses did not warrant conviction of accused---Medical documents were not brought on the record by the Medical Officer who examined and conducted the post mortem of accused---Ocular evidence was not trustworthy and circumstantial evidence was not inspiring confidence---Medical evidence was shaky---Benefit of doubt was to be resolved in favour of accused---Motive set up by the prosecution, was not such which necessarily be viewed alone in favour of prosecution---Prosecution could not use the motive part of its story to corroborate its ocular account---Background of enmity existed between the parties---Accused had served almost more than half of the awarded sentence though no sufficient corroboratory evidence was brought by the prosecution on record to award him conviction---Conviction could not be recorded merely on probability and prosecution had to prove its case beyond any shadow of doubt, which the prosecution had failed---Conviction and sentence awarded to accused were as set aside and he was directed to issue release writ.

1989 SCMR 446 ref.

Abdul Haleem v. The State 1984 PCr.LJ 611 rel.

(b) Criminal trial---

----Enmity between the parties---Enmity is a double edged weapon, it prompts one to cause harm to his adversary, and can be a factor to rope others falsely.

(c) Criminal trial---

----Evidence---Trial Court while attending the plea of accused facing trial by reading the evidence, could judge credibility and demeanour of the witnesses in view of the principle that every person was presumed to be innocent, unless proved guilty---Different view could be drawn on reappraisal of the evidence on record, with regard to manifest wrong, perversity or uncalled conclusion from facts provided on record when material evidence had been misread blatantly to an extent that miscarriage of justice had occasioned.

(d) Criminal trial---

----Benefit of doubt---For extending benefit of doubt, it was not necessary that there should be many circumstances creating doubt; and if there was single circumstance which created reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit not as a matter of grace and concession, but as a matter of right.

Shahzad Talpur for Appellant.

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

Date of hearing: 10th December, 2012.

2013 M L D 1132

[Sindh]

Before Syed Hassan Azhar Rizvi and Muhammad Shafi Siddiqui, JJ

ENGR. INAM AHMAD OSMANI---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.M.A No.16234 of 2012 in C.P. No.D-2626 of 2012 decided on 28th November, 2012.

(a) Affidavit---

----Categorical statement made in counter-affidavit, if not rebutted by opposite party by filing affidavit-in-rejoinder, would be accepted as true---Illustration.

Abdul Rauf and 10 others v. Government of Sindh and others 2003 CLC 1602 and Jehan Khan v. Province of Sindh and others PLD 2003 Kar. 691 ref.

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

----S.114 & O.XLVII, R.1---Review jurisdiction, exercise of---Scope stated.

The scope of review is very limited. It cannot be used as a substitute for a regular appeal, which is competent on a question of fact and law. The mere fact that a Court has taken an erroneous view on the question of fact or on the question of law would not attract the review jurisdiction, which grounds are eminently amenable in an appeal. No doubt, the grant of review petition is a discretionary matter and the court is not bound to grant the same in every case, but at the same time it is a well-settled principle of law that every judicial discretion is to be exercised reasonably on sound basis and not arbitrarily or capriciously and capable of correction by a court of appeal.

Gohar Aman Khan v. Malik Aman and 3 others 1989 CLC 2032; Muhammad Ashraf and others v. Union Bank of Middle East Ltd. and another 1991 MLD 2037; Suleman Ali Haider and Government of Balochistan and others 2004 SCMR 354; EDO School and Literacy and others v. Qamar Dost Khan and others 2006 SCMR 1630; Cosmetic Service Ltd. v. Holger Hahn and others 2009 PLC (C.S.) Kar. 446; Yousuf Ali v. Muhammad Aslam PLD 1958 SC 104; Central Development Authority v. Raja Muhammad Zaman Khan PLD 2007 SC 121; Nisar Ahmed and others v. Naseeruddin and others 2004 SCMR 619; Muhammad Hussain Naqvi v. Azad Government and others PLD 2007 SC AJ&K 92; Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad PLD 2005 SC 311; Shabbir Ahmed and another v. Akhtar Alam and others PLD 1994 SC 598; Zulfikar Ali Bhutto v. The State PLD 1979 SC 741; Sheikh Iflikharuddin and another v. District Judge, Bahawalpur and 8 others 2002 SCMR 1523 and Muhammad Sharif and 4 others v. Sultan Hamayun and others 2003 SCMR 1221 ref.

Ghulam Hyder Shaikh for Petitioner.

Syed Murreed Ali Shah for Respondents Nos. 2 to 4.

Masood A. Noorani for Respondent No.5.

Date of hearing: 3rd November, 2012.

2013 M L D 1145

[Sindh]

Before Naimatullah Phulpoto, J

AIJAZ alias ABDUL SAMI 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-488 of 2012, decided on 27th November, 2012.

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

----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss.337-A(i), 337-F(i), 147, 148, 114, 504 & 506---Shajjah-i-khafifah, ghayr-jaifah-damiyah, rioting, rioting armed with deadly weapons, abettor present when offence committed, intentional insult with intent to provoke breach of peace, criminal intimidation---Interim pre-arrest bail, confirmation of---Accused persons related inter se---Enmity between parties admitted---Probability of false implication---Effect---Accused persons were alleged to have caused lathi blows to the complainant party during the occurrence---Accused persons were brothers inter-se---Offence alleged did not fall within the prohibitory clause of S. 497, Cr.P.C.---Enmity between the parties was admitted in the F.I.R.---Large number of persons were involved in the case---Mala fide was apparent on the record---Prima facie, false implication of accused persons could not be ruled out---Accused persons were students and in case they were remanded to jail, not only their studies would suffer but they would also have to face humiliation and unjustified harassment---Abscondence of accused persons for a short period was not sufficient to disentitle them from concession of bail, when otherwise they were entitled for bail---Interim pre-arrest bail already granted to accused persons was confirmed in circumstances.

Adrees Ahmad and others Zafar Ali and another 2010 SCMR 64 ref.

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

----Ss. 497 & 498---Bail---Offence not falling within prohibitory clause of S. 497, Cr.P.C.---Scope---For such offences grant of bail was a rule and refusal thereof an exception.

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

----Ss. 497 & 498---Bail---Abscondence of accused---Effect---Mere abscondence of accused for a short period was not sufficient to disentitle them from concession of bail, when otherwise they were entitled for bail.

Muhammad Azim Korai for Applicants.

Miss Shazia Surahio, State Counsel.

2013 M L D 1170

[Sindh]

Before Abdul Rasool Memon, J

ABDUL RAHEEM KHAN through Attorney---Appellant

Versus

NAZAKAT HUSSAIN---Respondent

IInd Appeal No.14 of 2011, decided on 22nd February, 2013.

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

----O. IX, Rr.11 & 12---Ex parte decree---Before passing an ex parte decree, it was duty of the court to see whether party had prima facie proved the case by cogent and convincing evidence and to consider the interest of absent party by applying mind properly to the facts of the case.

Ch. Muhammad Saleem v. Muhammad Akram and others PLD 1971 SC 516; Saadat Hayat Khan v. Zaheeruddin and another 2011 CLC 1325 and Shaukat Hayat v. Mst. Imtiazunissa and others 2009 YLR 400 ref.

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

----Arts. 79 & 17---Proof of execution of document---Agreement of sale was not required to be registered but its execution must be proved under Qanun-e-Shahadat, 1984---Mode of execution of the documents such as agreement of sale had been provided in Arts.17 & 79 of the Qanun-e-Shahadat, 1984.

Suleman Ali v. Maqbool Hussain through Legal Heirs and 2 others 2000 YLR 1983 rel.

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

----Art. 17---Competence and number of witnesses---Besides presenting the number of attesting witnesses in a written document such as agreement of sale pertaining to the financial and future obligations, such document should not be used as evidence until two attesting witnesses had been called for the purpose of proving its execution.

Saadat Hayat Khan v. Zaheeruddin and another 2011 CLC 1325 ref.

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

----Art. 129(g)---Non-examination of witnesses---Presumption would be that if they were examined they would have not supported the version of the party.

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

----Art. 113---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to be filed within three years.

Abdul Baqi for Appellant.

None present for the Respondent.

Date of hearing: 16th January, 2013.

2013 M L D 1185

[Sindh]

Before Farooq Ali Channa, J

IRFAN and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.702 of 2012, decided on 16th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 395, 506, 114, 504, 337-A(i) & 337-F(i)---Dacoity, criminal intimidation, abettor present when offence is committed, intentional insult with intent to provoke breach of peace, shajjah-i-khafifah, ghayr-jaifah-damiyah---Bail, grant of---Further inquiry---Enmity between parties admitted---Belated recovery of robbed articles---Medical evidence qua injuries not available---Effect---Accused persons quarrelled with the complainant party due to a dispute over land and during the occurrence accused persons allegedly caused injuries to complainant party and also snatched their cash and mobile phones---Enmity between parties over property was admitted---Civil suit regarding said property was also pending---Snatched cash and mobile phones were allegedly recovered on the pointation of accused persons, five days after their arrest, from the house of their uncle---Such recovery on pointation of accused persons, five days after their arrest was sufficient to make the case one of further inquiry---Medical certificate of injured persons had been suspended by the Medical Board since injured persons avoided appearing before the Board---Accused persons were allowed bail in circumstances.

Muhammad Yaseen and another v. The State 1995 PCr.LJ 711; Nazir Ahmed and another v. The State 2012 YLR 1085; Shehzore and another v. The State 2006 YLR 3167 and 2012 YLR 237 ref.

Zulfiqar Ali Sangi for Applicants.

Ghulam Murtaza Korai for the Complainant.

Mohan Lal, D.D.P.P. for the State.

2013 M L D 1200

[Sindh]

Before Abdul Rasool Memon, J

TRUSTEES OF THE PORT KARACHI (KPT)---Appellant

Versus

Mst. NAHEED and 3 others---Respondents

IInd Appeal No.69 of 2009, decided on 5th November, 2012.

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

----O.XXXIV, R. 1---Plaintiff instituted a suit under O. XXXIV, R. 1, C.P.C. for foreclosure / sale of mortgaged property---Suit was dismissed concurrently on the ground that under the terms of the mortgage deed, the plaintiff/mortgagee had the right to sell the property without intervention of the court---Contention of the plaintiff was that the courts below failed to appreciate that suit was based on mortgaged property and advance secured by the mortgagee by deposit of title deeds and was therefore, governed by provisions of O. XXXIV, R.1, C.P.C. and without adoption of the procedure contained therein, no recovery could be made by the plaintiff---Validity---In the present case, O.XXXIX, R.1, C.P.C. would come into operation and recovery of loan or foreclosure would be made under provisions of O. XXXIV, R.1, C.P.C.---Courts below had not appreciated that the suit was governed by O.XXXIX, R. 1, C.P.C., and therefore, orders of courts below were set aside, and case was remanded to Trial Court---Appeal was allowed, accordingly.

Messrs Al-Badar Timer and another v. United Bank of Pakistan Ltd. and others 1996 CLC 73 ref.

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

----O. XXXII, R. 3---Suit by or against minors---Appointment of guardian ad litem---Passing of a decree in absence of appointment of guardian ad litem of minor defendants was liable to be set aside, since court had no jurisdiction to proceed against minor defendants and pass decree against them without formal appointment of guardian ad litem as required under O. XXXII, R. 3, C.P.C.

Yar Muhammad v. Mst. Amanat and others 1988 CLC 1355 rel.

Muhammad Sarfraz Sulehri for Appellant.

Nemo for the Respondents.

Date of hearing: 4th October, 2012.

2013 M L D 1218

[Sindh]

Before Syed Muhammad Farooq Shah, J

KOOMBHO and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-831 of 2012, decided on 15th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 147, 148, 149, 114, 504---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, rioting armed with deadly weapons, unlawful assembly, abettor present when offence committed, intentional insult with intent to provoke breach of peace---Bail, grant of---Further inquiry---Belated F.I.R.---Accused, co-accused and their companions allegedly launched an attack on the complainant party---F.I.R. was lodged with a delay---According to F.I.R., role assigned to accused was that he was only present at place of occurrence---Co-accused was alleged to be holding a stick in his hand with which he allegedly caused blows to the injured persons---Injuries assigned to co-accused fell within the definition of bailable offence thus he had no intention to commit murder of deceased---Incident appeared to be a result of sudden flare up between the parties, during which both sides caused injuries to each other---Case was one of further inquiry---Accused and co-accused were admitted to bail accordingly.

Ehsanullah v. The State 2012 SCMR 1137; Muhammad Asif v. The State 2012 YLR 550; Muhammad Murad v. The State and another 2012 YLR 1309; Attaullah and 3 others v. The State and another 1999 SCMR 1320; Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125 and Fida Hussain and another v. The State 2011 YLR 1697 rel.

Syed Madad Ali Shah for Applicants.

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

2013 M L D 1225

[Sindh]

Before Syed Muhammad Farooq Shah, J

RAJA alias DAD MUHAMMAD alias DADO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-105 of 2010, decided on 17th December, 2012.

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

---S. 460---Qanun-e-Shahadat (10 of 1984), Art. 22---Lurking house-trespass or house-breaking by night punishable for qatl or hurt caused---Appreciation of evidence---Prosecution case based wholly on identification of accused---Identification parade, conducted belatedly---Non-recovery of robbed articles---Effect---Accused allegedly committed robbery at the house of complainant and during the occurrence killed complainant's son/deceased---Only evidence available with the prosecution was that accused was identified by the eye-witnesses during the identification parade---No other evidence was available on record to connect accused with the commission of the alleged offence---Identification parade was conducted after seven days of the arrest of accused, which made the same doubtful---No incriminating articles including crime weapons and robbed property had been recovered from accused---Accused had already undergone more than twelve years in prison---Appeal was allowed, and accused was acquitted of the charge.

Shafqat Mehmood and others v. The State 2011 SCMR 537; Waqar Ahmad v. The State 2012 PCr.LJ 170; Sabir Ali alias Fauji v. The State 2011 SCMR 563 and Muhammad Hussain's case 1993 SCMR 1614 rel.

Muhammad Shoukat and others v. The State 2012 YLR 1841; Khadim Hussain v. The State 1985 SCMR 721; Mushtaq Ali Kalhoro v. The State 1996 PCr.LJ 1315 and Lal Pasand v. The State PLD 1981 SC 142 ref.

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

---Art. 22---Identification parade---Prosecution case dependent entirely on identification of accused---Identification parade---Scope---For such a case identification parade had to be examined cautiously.

Shafqat Mehmood and others v. The State 2011 SCMR 537; Waqar Ahmad v. The State 2012 PCr.LJ 170 and Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.

Ms. Shabana Kousar Jatoi for Appellant.

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

Date of hearing: 11th December, 2012.

2013 M L D 1233

[Sindh]

Before Aftab Ahmed Gorar, J

Mrs. GHULAM FATIMA---Petitioner

Versus

Shaikh MUHAMMAD YOUSAF and another---Respondents

Constitutional Petition No.S-1160 of 2010, decided on 22nd December, 2012.

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

----S.15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Bona fide personal need of landlord and default in monthly rent by tenant---Proof---Tenement, selection of---Ejectment application filed by landlord was dismissed by Rent Controller but Lower Appellate Court allowed the same and passed eviction order---Validity---Landlord had the prerogative to choose any tenement for his personal use---Fact that which of the tenements was more suitable for his use, was to be decided by landlord---Tenant or for that matter even Rent Controller could not dictate landlord to select another premises except the one for which ejectment was being sought---Rent Controller failed to consider that it was for the landlord to decide as to in what manner he would use the premises and merely on the basis of surmises and conjectures a landlord could not be deprived of his right to get premises for his personal bona fide use---At least rent for three months were sent belatedly thereby rendering tenant as defaulter in payment of rent---Even finding on the point of default in payment of rent given by Rent Controller was not just and proper and rightly reversed by Lower Appellate Court---High Court declined to interfere in eviction order passed by Lower Appellate Court---Constitutional petition was dismissed in circumstances.

1997 SCMR 1062 rel.

Abdullah Narejo for Petitioner.

Shabbir Ahmed Shaikh for Respondent No.1.

Date of hearing: 20th December, 2012.

2013 M L D 1245

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD ALIM---Applicant

Versus

MUHAMMAD YOUNIS and another---Respondents

Criminal Revision No.70 of 2012, decided on 30th October, 2012.

Illegal Dispossession Act (XI of 2005)---

----Preamble & S.3- Illegal Dispossession Act, 2005 not retrospective in effect---Alleged act of illegal dispossession took place in the year 1984, but complainant became aware of it in the year 2011---Trial Court dismissed complaint filed under Ss. 3 and 4 of Illegal Dispossession Act, 2005 observing that accused was in possession of land in question since 1984, whereas Illegal Dispossession Act, 2005 was promulgated in the year 2005 and had no retrospective effect---Legality---Complainant had admitted that accused was in possession of land since the year 1984---Offence of occupying property unlawfully as envisaged under S. 3(1) of Illegal Dispossession Act, 2005 was punishable if the said offence had taken place after the promulgation of the Act---Offence alleged in the present case had taken place much prior to the promulgation of Illegal Dispossession Act, 2005, as such Trial Court had rightly come to the conclusion that complaint was not maintainable as the said Act had no retrospective effect---Revision application was dismissed in circumstances.

Tarique G. Hanif Mangi for Applicant.

S. Sardar Ali Shah, A.P.-G. for Respondents.

2013 M L D 1249

[Sindh]

Before Naimatullah Phulpoto, J

AHMEDO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-411 of 2012, decided on 30th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.395, 342 & 506---Dacoity wrongful confinement, criminal intimidation---Bail, grant of---Further inquiry---Delay in lodging F.I.R.---Enmity between parties---Effect---Accused and co-accused persons allegedly committed dacoity at the house of complainant---Inordinate delay in lodging of F.I.R. was not plausibly explained---Complainant party had lodged another F.I.R. against accused, which showed that there was enmity between the parties---Both parties were co-villagers---Prosecution alleged that seven accused persons, having sophisticated weapons entered into the house of complainant and took away valuables, but strangely not a single scratch was caused to the complainant party, nor any resistance was offered---Case was one of further inquiry---Accused was admitted to bail accordingly.

Shahzore and another v. The State 2006 YLR 3167 ref.

Sadiq Ali Bhangwar for Applicant.

Miss Shazia Surahio, State Counsel.

2013 M L D 1261

[Sindh]

Before Aftab Ahmed Gorar, J

SIKANDAR---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1196 of 2012, decided on 15th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 353, 186 & 34---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, refusal of---Accused and co-accused persons allegedly fired upon a police party, when the rickshaw they were travelling in was stopped by the police---Accused was arrested on the spot by police party and from his exclusive possession a pistol and live bullets were recovered---No enmity was shown by accused to establish that he had been falsely implicated in the case by foisting of pistol and bullets on him---One of the police officials who received firearm injuries during the alleged occurrence was still in hospital---Although no independent witnesses were arranged, but in cases similar to present one people avoided becoming witnesses, therefore, police witnesses were as good as independent witnesses---One of the co-accused who was granted bail, his role was different to that of accused, since said co-accused was allegedly only driving the rickshaw---Offence alleged fell within the prohibitory clause of S.497(1), Cr.P.C.---Bail application of accused was dismissed in circumstances.

1998 SCMR 314; 2005 YLR 112 and 2005 MLD 164 distinguished.

Aamir Jamil for Applicant.

Sharafuddin Mangi, State Counsel.

2013 M L D 1269

[Sindh]

Before Abdul Rasool Memon, J

Syed MOHSIN SHAH---Petitioner

Versus

Mst. MOMMAL AFTAB and another---Respondents

Constitutional Petition No.S-870 of 2012, decided on 16th October, 2012.

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

----Ss. 14(3) & 17-A---Constitution of Pakistan, Art. 199---Constitutional petition---Family Court allowed interim maintenance to minors payable on or before 14th of every calendar month by the father (petitioner)---Father of minors impugned order of Family Court with the contention that constitutional jurisdiction could be invoked against such an interim order in view of the fact that there was no other adequate or efficacious remedy available to him---Validity---Family Court had passed interim order for maintenance strictly within the terms of S. 17-A of West Pakistan Family Courts Act, 1964---Perusal of S.14(3) of West Pakistan Family Courts Act, 1964 showed that legislature had specifically prohibited filing of appeal against an interim order, which made it evident that legislature did not intend to make an interim order challengeable---Exercise of constitutional jurisdiction to go against such an arrangement would not be proper because it would frustrate the object of the legislature---Constitutional petition was dismissed accordingly.

Makhdoom Ali v. Mst. Raziasultana and others 2007 MLD 41 distinguished.

Muhammad Hassan v. Judge, Family Court 2008 YLR 1826; Muhammad Khalid Javeed v. Mst. Shahida Parveen 2007 YLR 1366; Muhammad Masood v. Judge Family Court 2011 YLR 1276 and Abrar Hussain v. Mehwish Rana and 3 others PLD 2012 Lah. 420 ref.

Abrar Hussain v. Mehwish Rana and 3 others PLD 2012 Lah. 420 and 1996 SCMR 1165 rel.

Khawaja Naveed Ahmed for Petitioner.

Arjumand Khan for Respondents.

Date of hearing: 2nd October, 2012.

2013 M L D 1282

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD RASHID---Applicant

Versus

The STATE---Respondent

Bail Application No. 1133 of 2012, decided on 13th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 392/34---Robbery, common intention---Bail, refusal of---On spot arrest with case property---Effect---Accused was alleged to have robbed cash and a mobile phone from complainant on gun point---Accused was arrested on the spot by police with case property---Mashirnama was prepared on the spot---Although independent witnesses were not prepared, but during odd hours of night arranging such witnesses was difficult, therefore police witnesses were as good as independent witnesses---No previous enmity was proved between accused and complainant---Bail application was dismissed in circumstances.

Asif Raza v. The State 2006 PCr.LJ 1628 and Sarfraz v. The State 2010 YLR 223 distinguished.

Waqar Abbasi for Applicant.

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

2013 M L D 1290

[Sindh]

Before Sadiq Hussain Bhatti, J

STATE/ANF through Deputy Director---Appellant

Versus

Dr. ABDUL HAKIM ABRASH and another---Respondents

Special Criminal Appeal No.31 of 2009, decided on 8th November, 2012.

Prevention of Smuggling Act (XII of 1977)---

----S. 31---Property suspected to be acquired by smuggling---Restriction imposed on such property after issuance of notice under S.31 of Prevention of Smuggling Act, 1977---Non-issuance of notice to person having title over such property---Effect---Release/unfreezing of property---Respondent/purchaser had purchased subject property in the year 1993 from a company, whose managing director was a drug baron---Subject property was registered vide registered sub-deed of lease in the year 1993, whereas notices under S. 31 of Prevention of Smuggling Act, 1977 imposing restriction over the property was issued by the court in the year 1996---Said notice was issued by the court upon the drug baron and his associates, but no notice was issued to the respondent/purchaser---Serving of said notice upon respondent/ purchaser was not only mandatory but also practical since he was the registered title owner---Since no notice was served upon the respondent/purchaser, he appeared before the Court and after due discussion, court released the subject property---Perusal of the record did not show any links or business between the respondent/purchaser and the accused and his associates---Prosecution had sufficient time to collect tangible evidence to connect the respondent/purchaser and company in question with the drug baron---Prosecution had also not collected any evidence to prove that respondent/purchaser was involved in drug smuggling business or that he had purchased subject property through ill-gotten money or any other illegal source, therefore it could not be assumed that he did not have sufficient sources to purchase the subject property--Appeal was dismissed in circumstances.

PLD 2006 Kar. 25 ref.

Hussain Bux Baloch, Special Prosecutor for ANF Appellant.

Muhammad Hanif Kashmiri and Haider Waheed for Respondent No.1.

2013 M L D 1299

[Sindh]

Before Aqeel Ahmed Abbasi and Farooq Ali Channa, JJ

MUHAMMAD TAHIR NAWAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 394 of 2011, decided on 5th October, 2012.

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

---Ss. 9(b) & 9(c)---Possession of narcotic---Appreciation of evidence---Conversion of sentence from Ss.9(c) to 9(b) of Control of Narcotic Substances Act, 1997---Separate sample from each recovered packet not sent---Effect---Only that quantity of recovered narcotic to be considered against the accused from which sample taken and tested---Twenty packets of heroin, weighing 3.9 kilograms were recovered from the accused---Trial Court convicted the accused under S. 9(c) of Control of Narcotic Substances Act, 1997---Contention of accused was that only three samples of 10 grams each, from three packets were sent for Chemical Examination; that if the total weight of 20 packets (3.9 kilograms) recovered from him was divided into equal weights of 20 packets, the weight of each packet was about 200 grams, and since samples were sent from only three packets, therefore, total weight of recovered heroin should be considered as 600 grams; that in such circumstances offence fell under S. 9(b) of Control of Narcotic Substances Act, 1997 and not under S. 9(c) of the Act---Validity---Admittedly only three samples (10 grams each) from three packets, each packet weighing 200 grams, were taken and sent for chemical examination---Such fact was also verified from the Chemical Examination report---Contention of accused regarding conversion of his sentence from Ss.9(c) to 9(b) of Control of Narcotic Substances Act, 1997 , in circumstances of the case, appeared to be correct---Accused had already undergone a substantial sentence of imprisonment of about four years and he had shown repentance and promised not to repeat similar offence in future---Accused was also willing to pay the fine of Rs.100,000 imposed upon him by the Trial Court---Conviction recorded by Trial Court under S.9(c) of Control of Narcotic Substances Act, 1997 was converted into S.9(b) of the Act---Accused was sentenced for a period already undergone by him with a fine of Rs.100,000---Appeal was disposed of accordingly.

Ameer Zeb v. The State PLD 2012 SC 380 foll.

S.M. Iqbal and Muhammad Nasim for Appellant.

Dilawar Hussain, Standing Counsel for Respondent.

Date of hearing: 5th October, 2012.

2013 M L D 1305

[Sindh]

Before Farooq Ali Channa, J

SHAKEEL---Appellant

Versus

H. Syed MASROOR AHMED through Attorney and others---Respondents

IInd Appeal No.136 of 2010, decided on 16th April, 2013.

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

----Arts. 102 & 103---Oral evidence and documentary evidence led by a party being self-contradictory---Effect---Oral evidence, if led to contradict contents of a document, would be inadmissible---Giving preference to oral evidence over documentary evidence would amount to miscarriage of justice and violation of Arts. 102 & 103 of Qanun-e-Shahadat, 1984---Principles.

Ali Muhammad v. Ghulam Haider 2001 CLC 1440 rel.

M. Ishaq Ali for Appellant.

Abdul Sami for Respondent No.1.

Date of hearing: 16th April, 2013.

2013 M L D 1315

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

GHULAM RASOOL alias BHORO---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No.44 of 2010, decided on 30th April, 2013.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-H(2) & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-e-amd, attempt to commit qatl-e-amd, causing hurt by rash or negligent act, act of terrorism, common intention---Appreciation of evidence---Complainant had clearly stated that accused present in the court was not the same---Prosecution witness had stated that S.H.O. had fired from his Kalashnikov at the deceased, who died at the spot---Accused did not make any fire at the time of incident---Another prosecution witness had also not implicated accused in the commission of the offence---Remaining evidence was formal in nature and nothing incriminating was recovered from the possession of accused---Eye-witnesses of the incident had not implicated accused in the commission of the offence---Trial Court had failed to appreciate the evidence in accordance with the principle of law---Burden to prove its case beyond reasonable doubt rested on the prosecution, but it had failed to discharge the same---Prosecution having failed to establish its case against accused, conviction and sentence awarded to them by the Trial Court, was set aside and they were acquitted and released, in circumstances.

Sripathi and others v. The State of Karnataka AIR 2010 SC 249 rel.

Syed Mehmood Alam Rizvi for Appellant.

Khadim Hussain Khooharo, D.P.G. for Respondent.

Date of hearing: 26th February, 2013.

2013 M L D 1331

[Sindh]

Before Syed Muhammad Farooq Shah and Salahuddin Panhwar, JJ

Mst. TASLEEM and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.D-146 and D-147 of 2011, decided on 7th March, 2013.

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

----Ss. 302, 365-A, 440, 343 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Qatl-e-amd, kidnapping for ransom, mischief, wrongful confinement, common intention, act of terrorism---Appreciation of evidence---Except the confessional statement of female accused, no evidence was available against accused persons---Said confessional statement was retracted by accused in her statement under S.342, Cr.P.C.---Confessional statement was recorded after 6 days of arrest of said accused and concerned Magistrate had completely negated the mandatory requirements of law in recording confessional statement---Confessor had specifically pleaded that she was subjected to maltreatment by S.H.O. concerned and that her confession was at the instance of her cousin; it could not be said, in circumstances, that confessional statement was voluntary---No direct evidence was available against accused persons, which could be legally taken as sufficient to hold conviction of accused---Since the prosecution had failed to prove the case beyond the shadow of doubt against accused persons and impugned judgment was against the spirit of settled principles of criminal administration of justice, same was not sustainable under the law---Impugned judgment was set aside and accused were acquitted from the charge against them.

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

----S. 164---Confession, voluntary nature of---Scope---Confession should be volunteer one, else it could not be termed to be a confession---Every precaution had to be taken by the Magistrate to satisfy himself that confession was voluntary and only then to proceed further---Any lapse on the part of Magistrate in recording confession, could not always be treated as fatal to the evidentiary value of confession, but it was evident that said lapse had not in any way adversely affected the voluntariness or truthfulness of the confession---Once it was found that confessor was subjected to maltreatment before production for confession, or where confessor stated that he/she was making confession due to compulsion of somebody else, the confession could not be taken as voluntary or truthful---Though conviction could be sustained even on a retracted confessional statement, but same should be proved to be voluntary and truthful, and should also be corroborated as a rule of procedure---Court is required to seek corroboration of the confession on material particulars.

Majeed v. State 2010 SCMR 555 rel.

(c) Words and phrases---

----"Voluntary"---Definition.

Black's Law Dictionary rel.

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

----Ss. 302, 365-A, 343, 440 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Constitution of Pakistan, Arts.10 & 10-A---Qatl-e-amd, kidnapping for ransom, wrongful confinement, mischief, common intention---Trial in absentia---Effect---Both accused were tried and convicted in absentia---No person arrested, would be denied the right to consult and defend by a legal practitioner of his choice, and could be deprived from the right of fair trial---Accused, in the present case, were absconding at the relevant point of time; they, in circumstances, were denied the right to defend themselves and deprived the right to consult or defend by a legal practitioner---Trial in absentia was a violative of Arts.10(1) & 10-A of the Constitution---Accused had not been afforded an opportunity of being heard, and they were condemned unheard which was contrary to the principles of natural justice as well---Case was remanded to the extent of said absconded accused, in circumstances.

Zial Ullah Khan and others v. Government of Punjab and others PLD 1989 Lah. 554; Government of the Punjab through Secretary Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602; Qari Abdul Hayee and another v. The State 2005 YLR 1865; Muhammad Arif v. The State 2008 SCMR 829; Mir Ikhlaque Ahmad and another v. The State 2008 SCMR 951 and Arbab Khan v. The State 2010 SCMR 735 rel.

Qurban Ali Malano for Appellants (in Criminal Appeal No.D-146 of 2011).

Ali Ahmed Khan for Appellants (in Criminal Appeal No.D-147 of 2011).

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

Date of hearing: 7th March, 2013.

2013 M L D 1349

[Sindh]

Before Nadeem Akhtar, J

Messrs ARK GARMENTS INDUSTRY (PVT.) LTD. through Managing Director and 2 others---Applicants

Versus

NATIONAL BANK OF PAKISTAN---Respondent

Jail Miscellaneous No.10 of 2010 in Suit No.B-52 of 2006 and C.M.As. Nos. 7759 and 1070 of 2010, decided on 24th December, 2012.

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

----S.12(2)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.9---Suit for recovery of finance---Ex parte decree in favour of Bank, passing of---Defendant's application under S. 12(2), C.P.C. for setting aside decree on ground of fraud---Object of S.12(2), C.P.C.---Plea of plaintiff-Bank was that Banking Court had become functus officio after passing impugned decree, thus, could not set aside same for having attained finality---Validity---Use of words "judgment" and "decree" in S. 12(2), C.P.C. made clear that such application would be maintainable after passing thereof and not before that---Banking Court was competent to entertain and decide such application---High Court repelled the plea of plaintiff---Principles.

Objections that High Court has become functus officio after passing the decree and that the impugned decree cannot be set aside as it has attained finality, are not tenable. The very object of section 12(2), C.P.C. is to provide a specific remedy to a party, who is aggrieved by an order, judgment or decree, obtained against him by misrepresentation or by exercising fraud or from a court/forum that had no jurisdiction to pass the same. Misrepresentation or fraud can happen between the parties inter se or upon the court itself. The inclusion of the words "judgment" and "decree" in section 12(2), C.P.C. clearly shows that an application under this section for setting aside the judgment and decree will be maintainable only after passing of the judgment and decree and not before that. The court shall not be deemed to have become functus officio while hearing and deciding the application under section 12(2), C.P.C. and shall have the competent jurisdiction to entertain and decide the same. Section 12(2), C.P.C. would not have been inserted lately if it was the intention of the legislature to take away all the powers from the courts after passing of the judgment and decree.

The finality of a judgment is subject to the provisions of section 12(2), C.P.C.

Mobina Begum v. The Joint Secretary, Ministry of Religious Affairs, Government of Pakistan 1994 MLD 1441 rel.

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

----S. 12(2)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9---Suit for recovery of finance---Ex parte decree in favour of Bank, passing of---Defendant's application under S. 12(2), C.P.C. for setting aside such decree on ground of fraud---Defendant's plea was that Bank obtained such decree by concealing settlement agreement executed between parties, which had been acted upon---Validity---Bank had not denied execution of such agreement, which was still intact and subsisting---Bank while acting upon such agreement had withdrawn public notice issued for sale of mortgaged property---Bank being party to such agreement and beneficiary thereof had knowledge about its execution and subsistence at time of filing such suit---Bank had filed suit without disclosing such agreement and had not brought to notice of court before passing of impugned decree, but had kept on pressing suit as if such agreement did not exist---Such acts of Bank amounted to concealment of material facts/ documents, misrepresentation and fraud committed by Bank with defendant and upon court---High Court set aside impugned decree and accepted such application while directed defendant to file leave application within specified time.

Javaid Tanveer Mughal v. Agricultural Development Bank of Pakistan and 3 others, 2004 CLD 748, National Bank of Pakistan v. Messrs Polycol Textile Industries and others Suit No.B-229 of 2000; 2001 CLC 1187; 2005 CLD 192; 2010 CLD 1762; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 and Muhammad Tahir v. Emirates Bank International PJSC and another 2010 CLC 1545 ref.

Government of Sindh v. Khalil Ahmed 1994 SCMR 782; Muhammad Akram Shaikh v. Messrs Pak Libya Holding Company (Pvt.) Ltd. and 14 others, PLD 2010 Kar. 400; Khadim Hussain and others v. Abid Hussain and others PLD 2009 SC 419; Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCMR 1908 and Allah Wasaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184 rel.

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

----S. 12(2)---Application under S. 12(2), C.P.C.---Fulfilment of all or any of requirements of S. 12(2), C.P.C.---Effect---Impugned order/ judgment/decree in such case could not sustain.

Mirza Sarfraz Ahmed and Muhammad Junaid Farooqi for Applicants.

Muhammad Zubair Quraishy for Respondent.

Date of hearing: 12th December, 2012.

2013 M L D 1363

[Sindh]

Before Faisal Arab and Nisar Muhammad Shaikh, JJ

MAHBOOB AHMED SOOMRO---Petitioner

Versus

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

Constitutional Petition No.D-2656 of 2012, decided on 21st February, 2013.

(a) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), Ss. 9 & 11---Constitutional petition---Maintainability---Principle of res judicata, applicability of---Earlier constitutional petition of petitioner was dismissed on the point of maintainability---Petitioner preferred appeal before Supreme Court---Appeal was dismissed as not pressed---Effect---Petitioner himself withdrew his appeal from the Supreme Court which left the judgment of High Court in the earlier round remained in the field---Principle of res judicata was attracted in circumstances---Constitutional petition was dismissed.

PLD 1987 SC 145 and 1971 SCMR 447 rel.

(b) Administration of justice---

----Any order even if challengeable and could be reversed before the higher forum if allowed to remain in the field then legal consequences do follow from such order.

Petitioner present in person.

Mehmood Abdul Ghani for Respondents Nos. 2 and 3.

2013 M L D 1369

[Sindh]

Before Nadeem Akhtar, J

DISTRICT COORDINATION OFFICER, SUKKUR and 8 others---Applicants

Versus

KHAN MUHAMMAD through General Attorney and 3 others---Respondents

Civil Revision Application No.S-185 of 2010, decided on 7th January, 2013.

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

----S.115(1) & O.XLI, R.1---Limitation Act (IX of 1908), S.5---Revision petition before High Court against judgment and decree of appellate court---Delay of more than 30 days---Application for condonation of delay---Impugned judgment and decree was passed on 13-5-2010---Certified copy of judgment was applied on 5-7-2010 and delivered on 7-7-2010---Certified copy of decree applied on 23-8-2010 and was made available and delivered on 24-8-2010---Revision petition filed on 14-9-2010---Petitioners' plea that they being government officials were busy in flood rescue work---Validity---Appeal would lie against decree and not judgment---Revision petition against judgment and decree of Appellate Court must be accompanied with copy of its decree---Petitioner had applied for certified copy of appellate decree on 23-8-2010, when period of 90 days prescribed for filing revision petition thereagainst had already expired on 13-8-2010---Party seeking condonation had to explain delay of each and every day---Government or public functionaries would not be entitled to preferential treatment, rather would be treated on equal footing with an ordinary litigant---Petitioners had not disclosed in affidavit, as to which of them was busy in rescue work, in which affected areas and when rescue work started and ended---Petitioners had failed to explain such delay by giving any reasonable and lawful ground---High Court dismissed revision petition in circumstances.

Noor Muhammad and another v. Mst. Azmat-e-Bibi 2012 SCMR 1373 ref.

Sheikh Muhammad Sadiq v. Elahi Bukhsh and 2 others 2006 SCMR 12; Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; Lahore Development Authority v. Messrs Sea Hawk International (Pvt.) Ltd., Lahore 2003 CLC 269 and Pakistan Handicrafts, Sindh Small Industries Corporation, Government of Sindh v. Pakistan Industrial Development Corporation (Pvt.) Ltd., and 2 others 2010 CLC 323 rel.

Muhammad Bashir and another v. Province of Punjab 2003 SCMR 83 and Government of Balochistan v. Muhammad Ali and 11 others 2007 SCMR 1574 distinguished.

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

----S. 115 & O. XLI, R. 1---Revision against judgment and decree of appellate court---Filing of copy of impugned decree along with revision petition---Mandatory---Principles.

An appeal is filed against the decree and not against the judgment. The same principle is applicable when the judgment and decree of an appellate court is challenged through a revision application.

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

----S. 5---Delay, condonation of---Scope---Party seeking condonation would have to explain delay of each and every day---Valuable rights would accrue, in favour of opposite party with passage of time, which should not be disturbed and destroyed.

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

----S. 115(1)---Limitation Act (IX of 1908), S. 5---Revision petition before High Court---Delay, condonation of----Scope---Benefit of S. 5 of Limitation Act, 1908 could not be availed in proceedings under S. 115, C.P.C.---High Court in exercise of inherent power could condone delay, if merits of case so demanded and strong cause was shown therefor---Paramount consideration behind exercise of discretion in remanding case to Trial Court after condoning delay should be public interest rather than any other consideration---Principles.

The benefit of section 5 of the Limitation Act, 1908 cannot be availed in revisional proceedings filed under section 115, C.P.C. High Court has inherent power to exercise its discretion for condoning the delay, provided the merits of the case so demands. Delay can be condoned only when sufficient and strong cause is shown to the court. For exercising such discretion, the court is required to look into the facts and circumstances of each case, which may vary in each case.

The jurisdiction of High Court under section 115, C.P.C. is limited and narrow; and the paramount consideration behind the exercise of discretion in remanding the case to the Trial court after condoning the delay should be the public interest rather than any other consideration.

Province of Punjab v. Muhammad Farooq and others PLD 2010 SC 582; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; Lahore Development Authority v. Messrs Sea Hawk International (Pvt.) Ltd., Lahore 2003 CLC 269 and Pakistan handicrafts, Sindh Small Industries Corporation, Government of Sindh v. Pakistan Industrial Development Corporation (Pvt.) Ltd. and 2 others 2010 CLC 323 rel.

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

----S. 5---Delay, condonation of---Government or public functionaries, application by---Validity---Government or public functionaries would not be entitled to preferential treatment, rather would be treated on equal footing with an ordinary litigant.

Sheikh Muhammad Sadiq v. Elahi Bukhsh and 2 others 2006 SCMR 12; Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; Lahore Development Authority v. Messrs Sea Hawk International (Pvt.) Ltd., Lahore 2003 CLC 269 and Pakistan handicrafts, Sindh Small Industries Corporation, Government of Sindh v. Pakistan industrial Development Corporation (Pvt.) Ltd. and 2 others 2010 CLC 323 rel.

Government of Balochistan v. Muhammad Ali and 11 others 2007 SCMR 1574 distinguished.

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

----O. VIII, R. 10---Failure to file written statement despite direction of court---Effect---Court in such case could strike off defence of defendant.

Wak Orient Power and Light Ltd. v. Westinghouse Electric Corporation and others 2002 SCMR 1954; Col. (Retd.) Ayub Ali Rana v. Dr. Carlite S. Pune and another PLD 2002 SC 630; Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 and Province of Punjab and another v. Sheikh Abdul Ghafoor and Co. PLD 1997 Lah. 722 ref.

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

----S. 96---Limitation Act (IX of 1908), S. 5 & Art. 152---First appeal filed beyond 30 days---Non-filing of application by appellant for condoning delay---Effect---No time barred proceedings could be entertained without deciding question of condonation of delay---Neither delay could be condoned nor could such question be decided in absence of such application---Appeal was dismissed for being time barred.

Abdul Ghaffar Memon for Applicants.

Ghulam Shabbir Dayo for Respondent No.1.

Date of hearing: 9th October, 2012.

2013 M L D 1392

[Sindh]

Before Sajjad Ali Shah, J

MUHAMMAD HASSAN---Plaintiff

Versus

SHAMSUDDIN and 4 others---Defendants

Suit No.Nil of 2012, decided on 8th October, 2012.

Contract Act (IX of 1872)---

----Ss. 202 & 206---Specific Relief Act (I of 1877), Ss. 42 & 56----Suit for declaration seeking declaration to the effect that the instrument of revocation of power of attorney in favour of the plaintiff be declared ineffective and invalid----Maintainability----Agency----Principal and agent---Revocation of power of attorney---Contention of the plaintiff was that Power of Attorney in his favour was against consideration therefore it could not have been revoked----Validity----Admitted position was that no consideration whatsoever against execution of power of attorney was passed and even if the case of the plaintiff was admitted, even then he only acted as an agent----No doubt that in cases where the agent had an interest in the property, which was the subject matter of the agency, then such agency could not be revoked to the detriment of the agent's interest unless it was provided in the contract itself, however that was not in the present case as the plaintiff had no interest in the subject matter of the agency---Plaintiff as an agent had no interest whatsoever in the subject matter of agency, and therefore, no cause of action in the present suit---Power-of-attorney without consideration could be revoked any time but such revocation would not be valid for transactions already entered into by the agent prior to such revocation, and the cause of action to get such transaction specifically enforced would only be available to the third party in whose favour such power was exercised or interest was conferred---Plaintiff had no cause of action and therefore, plaint was rejected, in circumstances.

Muhammad Shafi Rajput for Plaintiff.

Syed Irshad-ud-Rehman, for Defendant No.1.

2013 M L D 1401

[Sindh]

Before Farooq Ali Channa, J

YAHYA---Applicant

Versus

AFTAB NATHANI and another---Respondents

Revision Application No.88 of 2006, decided on 2nd April, 2013.

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

----O. XXXVII, Rr.2, 3 & 4 & S.12(2)---Suit for recovery of amount based on dishonoured cheque---Procedure---Suit was decreed in favour of plaintiff without deciding mandatory question of jurisdiction---Trial Court relied upon the un-rebutted, un-challenged affidavit in evidence filed by the plaintiff---Application under S.12(2), C.P.C. was dismissed---Effect-Trial Court had not examined the cheques properly to ascertain the maintainability of summary suit and jurisdiction of the Trial Court, before the judgment was passed, which was obligatory for Trial Court to decide even though such question was not raised by the party to the suit---Case was remanded to Trial Court for deciding application under S.12(2), C.P.C. afresh after framing the issues regarding the maintainability of application under S.12(2), C.P.C., jurisdiction of Trial Court entertaining the summary suit on the basis of dishonoured cheque allegedly not issued/signed by the applicant, fraud and misrepresentation etc.

Izhar Alam Farooqui Advocate v. Shaikh Abdul Sattar Lasi and others 2008 SCMR 240 rel.

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

----O. XXXVII, Rr.2, 3 & 4 & S.12(2)---Suit for recovery of amount on the basis of dishonoured cheque---Suit decreed in favour of plaintiff---Application under S.12(2), C.P.C. by defendant was dismissed without framing issues---Effect---Court was not obliged to frame issues and record evidence in each case, however, framing of issues depended on the circumstances of each case and nature of alleged fraud in the decree so obtained---Applicant had raised substantial questions regarding the jurisdiction of Trial Court, maintainability of summary suit on the basis of dishonoured cheques, fraud and misrepresentation by concealing the material facts, which required a detailed inquiry after framing issues---Case was remanded to Trial Court for deciding appli-cation under S.12(2), C.P.C. afresh after framing issues.

2006 SCMR 531 distinguished.

Abdul Wajid Wyne for Applicant.

Abdul Latif A. Shakoor for Respondents.

Date of hearing: 2nd April, 2013.

2013 M L D 1420

[Sindh]

Before Muhammad Tasnim, J

SALIM DAD---Applicant

Versus

POLICE INSPECTOR, KANSON DEAN and 2 others---Respondents

Criminal Miscellaneous Application No.327 of 2011, decided on 7th March, 2013.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss.302, 365 & 34---Qatl-e-amd, kidnapping or abducting with intent secretly and wrongfully to confine person, common intention---Application for cancellation of bail, dismissal of---Non-attribution of any overt act---No specific role assigned during the occurrence---Effect---Accused persons (police officials) were alleged to have murdered the deceased in a fake police encounter---Interim pre-arrest bail granted to accused persons was confirmed by the Trial Court---Validity---Perusal of F.I.R. showed that during the police encounter specific roles had been assigned to co-accused persons, but no role whatsoever had been assigned to both the accused---Although names of accused persons appeared in the F.I.R. but no overt act had been attributed to them---Trial Court had passed impugned order after going through the material available on record in accordance with law---Application for cancellation of bail was dismissed in circumstances.

Muhammad Akbar Khan and Abid Akram for Applicant.

Amir Mansoob Qureshi for Respondent No.1.

Habib Ahmed for Respondent No.2.

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

Dates of hearing: 16th January and 26th February, 2013.

2013 M L D 1431

[Sindh]

Before Irfan Saadat Khan and Aftab Ahmed Gorar, JJ

SAIFUL HUSSAIN alias FAISAL HUSSAIN and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.D-150 of 2011, decided on 30th January, 2013.

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

----Ss.9(c) & 26---Criminal Procedure Code (V of 1898), S.561-A---Vexatious entry, search, seizure or arrest---Proof---Notice to officials---Benefit of doubt---Trial Court issued notices to officials for lodging vexatious F.I.R. alleging recovery of 16 kilograms of Charas, cellular phones and motorcycle---Validity---In every case, prosecution was duty bound to prove its case beyond any shadow of reasonable doubt and if single circumstance could create doubt in prudent mind, its benefit was to be extended to accused persons and they would be acquitted on the basis of principle of benefit of doubt---For invoking provision of S.26 of Control of Narcotic Substances Act, 1997, it was to be seen whether arrest and seizure were vexatious or necessary or not, which aspect was not proved with cogent material---Accused persons were apprehended along with huge quantity of Charas viz. 16 kilograms besides motorcycle, mobile phones etc. which could not be arranged and foisted upon them---Provision of S.26 of Control of Narcotic Substances Act, 1997, could not be invoked as there was no material to substantiate arrest and seizure from accused persons by officials and it was not vexatious or unnecessary---High Court directed to vacate notices issued to officials under S.26 of Control of Narcotic Substances Act, 1997---Application was allowed in circumstances.

Zaheeruddin S. Leghari for Applicants.

Muhammad Iqbal Kalhoro, Additional Prosecutor General Sindh for the State.

2013 M L D 1444

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD ASLAM---Applicant

Versus

IMAMUDDIN AHMED and 7 others---Respondents

Criminal Revision Application No.S-44 of 2012, decided on 28th September, 2012.

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

----S.3-Co-sharers in unpartitioned land---One of the co-sharers sold his share through registered sale deed to accused and possession was also handed over to him---Complaint under S.3 of Illegal Dispossession Act, 2005 was filed against accused on the basis that he forcibly tried to occupy more area than he had purchased from one of the co-sharers---Complaint was dismissed by Trial Court---Validity---Subject property was undivided because of which every shareholder of joint holding was deemed to be in joint possession---Once one of the co-sharers sold out his share to the accused through registered sale deed, the accused could legally be presumed to be standing in the same position as the said co-sharer was---Admittedly delivery of possession to the accused was made by a co-sharer, therefore, it was not legally justified to allege that accused dispossessed the other co-sharers-Accused had filed a suit for specific performance of contract regarding the subject property, prior to the complaint under Illegal Dispossession Act, 2005---No criminal case was lodged against accused for committing any criminal assault---Trial Court, under Illegal Dispossession Act, 2005 was not competent to determine the legal character and make partition of landed property---Section 3 of Illegal Dispossession Act, 2005 was not applicable to the present case---Trial Court was justified in dismissing the complaint---Revision application was dismissed in circumstances.

Mumtaz Hussain v. Dr. Nisar Khan and others 2010 SCMR 1254 rel.

Muhammad Riaz Ahmed Khan v. Imran Abdullah and 5 others 2009 PCr.LJ 491; Shahabuddin v. The State 2010 PCr.LJ 422; Shahabuddin v. The State 2010 PLD SC 725; PLD 2007 SC 423; PLD 2009 Kar. 65; 2009 PCr.LJ 491; Mst. Zaib-un-Nisa v. Rehmat and 2 others 2011 PCr.LJ 666; PLD 2007 SC 2423; Abdul Sattar v. Land Acquisition Collector Highways Department and others 2010 SCMR 1523; Zahoor Ahmed and 5 others v The State and 3 others PLD 2007 Lah. 231; PLD 2010 SC 661; Mst.Inayatan Khatoon and others v. Muhammad Ramzan and others 2012 SCMR 229 and Habibullah and others v. Abdul Manan and others 2012 SCMR 1533 ref.

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

---Preamble & S.3-Partition of land in dispute---Jurisdiction of court under Illegal Dispossession Act, 2005---Scope---Under Illegal Dispossession Act, 2005 Trial Court was not competent to determine the legal character and make partition of landed property, as same was not vested in its jurisdiction---Only civil court and revenue fora were competent to resolve such controversies.

Iftikhar Ali Arain for Applicant.

Soomardass R. Parwani for Respondents Nos.1 to 6.

Aga Ather Hussain, Asstt. A.G. for Respondents Nos. 7 and 8.

Date of hearing: 28th September, 2012.

2013 M L D 1459

[Sindh]

Before Syed Hasan Azhar Rizvi, J

ALIYA KHAN through Attorney and another---Plaintiffs

Versus

LIAQUAT NATIONAL HOSPITAL through Medical Director, Secretary and 9 others---Defendants

Civil Suit No.951 of 2007, decided on 22nd April, 2013.

Civil Procedure Code (V of 1908)---

----O. XII, R. 6---Judgment on admission---Scope---Suit for damages---Medical negligence---Plaintiff sought judgment on basis of alleged admission of defendants in their written statements---Contention of the plaintiffs was that the defendants had admitted to negligence in their written statement, and therefore, they were entitled to a decree on basis of such admission under provisions of O. XII, R.6, C.P.C.---Validity---Admission to constitute basis of a judgment or decree must be unequivocal, and in the present case, only if handwritten report / case summary or any document, the contents whereof were binding on the defendants, had contained a clear admission of liability judgment in favour of the plaintiffs could have been pronounced---Defendants had not denied the existence or contents of the case summary and had prefered an explanation regarding the same, and whether such explanation was plausible or otherwise could only be determined after recording of evidence, and the fact remained that by accepting a particular state of affairs to exist at a certain point in time, the defendants had not admitted to any liability for negligence and in any event the quantum of damages sustained still required proof---Application seeking judgment on admission, was dismissed in circumstances.

H. Gharibullah v. Mst. Mumtaz Begum and others 1990 CLC 1609; Sultana Bibi and another v. Karachi Electric Supply Corporation and another 1999 CLC 273; Kaneez Begum v. Karachi Electric Supply Corporation 2001 CLC 875 and Nazar Ali Siddiqui v. Pakistan through The Secretary Government of Pakistan and 2 others 1986 CLC 1370 ref.

Abdul Abid Plaintiff No.2 in person.

Furqan Ali, for Defendants Nos. 1 to 4 and 8 to 10.

2013 M L D 1469

[Sindh]

Before Aqeel Ahmed Abbasi and Habib-ur-Rehman Shaikh, JJ

MUHAMMAD SHOAIB and others---Appellants

Versus

The STATE---Respondent

Cr. Spl. A.T. Appeals Nos.D-9 and D-14 of 2013, decided on 30th April, 2013.

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

----Ss. 6(2)(b)(k), 7(c)(h), 19(12) & 25---Constitution of Pakistan, Arts.9 & 10---Act of terrorism---Conviction in absentia---Options for accused---Accused had two options in law in case of conviction recorded in absentia; firstly, to approach the Trial Court within the stipulated period with a request to set aside his conviction recorded in absentia, in terms of S.19(12) of the Anti-Terrorism Act, 1997 by showing that he did not abscond deliberately from the court during the trial and secondly to surrender before High Court by filing an appeal under S.25 of the Anti-Terrorism Act, 1997 with a prayer to set aside the conviction awarded in absentia; and to acquit him on merit or to remand the matter to the Trial Court for fresh trial by setting aside impugned judgment.

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

----Ss. 6(2)(b)(k) & 7(c)(h)---Conviction in absentia---Accused persons against whom conviction had been awarded in absentia; and accused who had been shown absconder, and whose case had been kept on dormant, were not present before the Trial Court---No opportunity whatsoever to defend their case on merits was provided to them---Impugned judgment also did not suggest that accused had deliberately avoided the process of the court, or remained wilfully absent from the court---Conviction awarded to accused persons in absentia, were set aside, and case was remanded to the Trial Court to decide the same after providing them proper opportunity of being heard---Accused persons would surrender before the Trial Court and would attend the court on each and every date---During the trial accused persons would remain on bail; if they would misuse the concession of bail, Trial Court would be at liberty to pass appropriate order in accordance with law.

Syed Muhammad Wasim Shah and Abdul Sattar Sarki for Appellants.

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

Date of hearing: 30th April, 2013.

2013 M L D 1475

[Sindh]

Before Syed Muhammad Farooq Shah, J

ALI MUHAMMAD---Applicant

Versus

The STATE and 4 others---Respondents

Criminal Miscellaneous Application No.645 of 2012, decided on 29th January, 2013.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV 1860), Ss.302, 147, 148, 149, 504 & 311---Qatl-e-amd, rioting, unlawful assembly, intentional insult to provoke breach of the peace, Tazir after waiving or compounding of right of Qisas in qatl-e-amd---Application for cancellation of bail---Considerations for grant of bail, were quite distinct from the considerations for the cancellation of bail---Each and every criminal case was to be decided on its own peculiar circumstances and facts---Once bail had been granted by a competent court of law, while placing reliance on the settled law by the superior courts, only strong and exceptional grounds were required for cancelling the same---Order granting bail by the Trial court, if found illegal, erroneous, suffered from the gross irregularities or incorrect and resulted miscarriage of justice, the cancellation of bail could be sought---Trial Court was justified in extending benefit of grant of bail to accused persons---Names of accused persons though appeared in the F.I.R. for firing with their weapons in result of which the young brother of the complainant had succumbed to injuries, but no incriminating weapon allegedly used in the commission of offence had been recovered from the possession of accused persons---False implication of accused person, in such circumstances, could not be ruled out---Sufficient justification and reasons had been shown by the Trial Court for grant of bail to accused persons---No reasonable ground exited to connect the accused persons with the offence attracting the prohibitory clause of S.497, Cr.P.C.---No motive against accused persons had been shown by the complainant---Co-accused in his confessional statement had stated that accused persons did not participate in the commission of offence---Application for cancellation of bail, was dismissed, in circumstances.

Amir v. The State 2007 MLD 1749; Mst. Wagma v. Suleman and 2 others 2011 MLD 18; Mst. Ameeran Mai v. Muhammad Saddiq and another, 2005 YLR 1676; Waqas Ahmed and another v. The State 2005 SCMR 1496; Shoukat Illahi v. Javed Iqbal and others 2010 SCMR 966; Mudasir Altaf and another v. The State 2010 SCMR 1861; Mst. Noor Habib v. Saleem Raza and others 2009 SCMR 786 and Abdul Razzaq v. The State and Saeed Butt NLR 1982 Cr.LJ 134 distinguished.

Maqsood Javed v. The State 2001 PCr.LJ 2065; Ahmed alias Ahman and 2 others v. The State 1994 PCr.LJ 898 and Hatim and others v. The State 1994 PCr.LJ 900 ref.

Muhammad Iqbal Mahar for Applicant.

Farman Ali Kanasiro for Respondents Nos. 2 to 5.

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

Date of hearing: 29th January, 2013.

2013 M L D 1488

[Sindh]

Before Riazat Ali Sahar, J

HAJI QAZI---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.S-153 of 2012, decided on 7th January, 2013.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Superdari of vehicle---Order for detention of a vehicle used in the commission of an offence for an indefinite period---Legality---Restoration of vehicle to its purchaser to get it transferred in his name---Vehicle in question was detained by police in connection with an offence---Plea of applicant was that he was bona fide purchaser of the vehicle by virtue of a sale deed coupled with possession of original registration book and transfer certificate, and that vehicle could not be transferred in his name till its physical examination before the motor vehicle authority, therefore vehicle should be restored to him to get it transferred in his name---Validity---Vehicle in question was present in the premises of the police station---Neither the vehicle was involved in any other crime nor any other claimant appeared for its restoration---Trial Court passed an order for detention of the vehicle for an indefinite period, which was an abuse of the process of law---According to the F.I.R. vehicle was involved during the commission of the offence, but the vehicle itself did not commit any offence, therefore, it could not be detained for an indefinite period---Even though the case was under dormant file due to abscondment of accused persons, but the law did not permit to detain any vehicle for an indefinite period---Order for detention of vehicle was set aside and Trial Court was directed to release/hand over the vehicle to the applicant on superdari basis so that he could get it transferred in his name---Revision application was disposed of accordingly.

Ali Raza Asif v. Superintendent of Police, Hafizabad and 3 others 1998 PCr.LJ 1089 rel.

Syed Madad Ali Shah for Applicant.

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

2013 M L D 1499

[Sindh]

Before Nadeem Akhtar, J

Messrs CRESCENT STEEL AND ALLIED PRODUCTS LIMITED---Plaintiff

Versus

Messrs SUI NORTHERN GAS PIPELINE LIMITED and another---Defendants

Suit No.1107 of 2011, decided on 10th December, 2012.

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

----S. 20---Application for filing of arbitration agreement in court---Duty of court---Court in such case would have to examine existence or non-existence of arbitration agreement and dispute(s) between the parties---Denial of assertions made by either side would prove existence of dispute---Arbitrator appointed by parties would be only an independent and impartial forum in case of such agreement---Principles.

Messrs Friends Trading Co. v. Messrs Muhammad Usman-Moula Bux PLD 1954 Sindh 56; Ghulam Ishaq Khan Institute of Engineering, Science and Technology and another v. Messrs Hassan Construction Co. (Pvt.) Ltd. Engineer and Consultants 1998 CLC 485; Muhammad Umar v. Yar Muhammad through his Legal Heirs and others 2009 CLC 348 and Muhammad Azam Muhammad Fazil and Co., Karachi v. Messrs N. A. Industries, Karachi PLD 1977 Kar. 21 rel.

(b) Administration of justice---

----No party could be judge of his own cause.

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

----S. 2(a)---"Contract" and "arbitration agreement"---Distinction.

Where the parties enter into a contract, which incorporates an arbitration clause, it constitutes an arbitration agreement. However, the arbitration clause and the contract which incorporates it are two distinct contracts. The arbitration clause provides an agreement by the parties to resolve present and future disputes by arbitration, whereas the contract which incorporates the arbitration clause by reference is the underlying contract. Dispute between the parties arises from the underlying contract and not from the arbitration agreement.

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

----S. 20---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Arbitration agreement with intervention of court---Dispute between parties regarding non-performance of contract---Application for restraining first defendant from encashing performance guarantee and also second defendant from making payment thereunder to first defendant till decision of such dispute by arbitrator---Applicant's plea was that quantum of liquidated damages, if any, required decision on basis of evidence; and that question yet requiring decision was as to whether or not first defendant was entitled to such damages---Validity---Plaintiff as tentative measure had submitted such guarantee equivalent to quantum of such damages claimed by first defendant---Determination of quantum of such damages and fulfilment of conditions for encashment of such guarantee being a dispute between parties would be decided by arbitrators to be appointed in terms of arbitration agreement---First defendant had yet to prove losses suffered by him in order to become entitled to such damages, thus, he could not be allowed to encash such guarantee before conclusion of arbitration proceedings---High Court accepted such application of plaintiff in circumstances.

Messrs Jamia Industries Limited v. Messrs Pakistan Refinery Limited PLD 1976 Kar. 644; Messrs Petrosin Products (Pvt.) Limited and others v. Government of Pakistan through Secretary, Privatization Commission of Pakistan, Ministry of Finance, Government of Pakistan, Islamabad and 3 others 2000 MLD 785; Messrs Zeenat Brother (Pvt.) Ltd. v. Aiwan-e-Iqbal Authority through Chairman, Aiwane Iqbal Complex, Lahore and 3 others PLD 1996 Kar. 183; Standard Construction Company (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Communication, Islamabad and 5 others 2010 CLD 360 and Standard Construction Company (Pvt.) Ltd. v. Pakistan through Secretary, M/o Communications and others 2010 CLD 196 rel.

Chaudhry Atif for Plaintiff.

Siddique Shahzad for Defendant No.1.

Gazain Magsi for Defendant No.2.

Date of hearing: 29th November, 2012.

2013 M L D 1512

[Sindh]

Before Irfan Saadat Khan and Aftab Ahmed Gorar, JJ

SHER KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-297 of 2012, decided on 14th February, 2013.

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

----S.9(c)---Possessing and trafficking narcotic---Appreciation of evidence---Both prosecution witnesses had supported the prosecution case---Contradiction pointed out by the counsel for accused, which were regarding number of seal, number of patties of charas, date and outward number of the letter under which the samples were sent to Chemical Examiner, were not so material to vitiate the prosecution case, and were not fatal to make any dent in the prosecution case, which otherwise had been supported by the complainant, Mashir of arrest and recovery as well as the Investigating Officer---Report of the Chemical Examiner was also positive---Conviction of accused, was maintained, but sentence was modified from 10 years and fine of Rs.50,000 to 4 years and six months and fine of Rs.20,000.

Ghaus Bux v. The State PLD 2004 Kar. 201 distinguished.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 rel.

Nandan A. Kella for Appellant.

Muhammad Iqbal Kalhoro, Additional Prosecutor General Sindh for the State.

Date of hearing: 7th February, 2013.

2013 M L D 1554

[Sindh]

Before Farooq Ali Channa, J

JAN SHER KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 525 of 2010, decided on 1st February, 2013.

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

----Art.133---Cross-examination was a valuable right guaranteed by legislature to an accused to challenge veracity of a witness, and accused was entitled to cross-examine the prosecution witness to adduce the facts in support of his defence from said witness---Principle to observe veracity and credibility of witness was that the witness who entered in the witness box, would state whatever had to say on oath; and then subject to cross-examination constitute a complete statement made by witness---If opportunity of cross-examination was declined to accused, such evidence as a general rule of evidence was not legally admissible against accused---Principles.

Ms. Syeda Zubaida Shah for Appellant.

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

Date of hearing: 1st February, 2013.

2013 M L D 1564

[Sindh]

Before Irfan Saadat Khan, J

AMROZE KHAN---Appellant

Versus

MOTASER KHAN and 4 others---Respondents

Criminal Acquittal Appeal No.55 of 2013, decided on 27th May, 2013.

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

---Ss. 3 & 4---Prevention of illegal possession of property---Appeal against acquittal---Appreciation of evidence---Allegations against the accused persons were that they illegally occupied the property of the complainant---Accused contended that they, being owners of the disputed house, were living in the same---Complainant in his deposition before the Trial Court did not deny the suggestion that the accused were in possession of disputed property since 2007---Complainant had not stated that he was in possession of the disputed property and only stated that when visited the disputed property along with tenant he found that the locks were broken, however, it had not been mentioned as to when he visited the property or when the said locks were found broken---Witness produced by the complainant admitted in his cross examination that two other properties were sold out by the seller, her husband, however, it was stated that share of the accused (two brothers) was given to them---No allegation was on record that the accused or any one of them was involved in land-grabbing or belonged to qabza group/land mafia---Dispute was in respect of the properties and it had not been established by evidence that at any point of time possession of the disputed property was handed over to the complainant---Complainant could not claim dispossession at the hands of the accused when he was never in physical possession of the disputed property---Residence of the accused in the disputed property could not be proved as illegal dispossession of the complainant---Certain justifiable claims existed like dispute between legal heirs, between co-shares, rightful claim, between landlord and tenant, inheritance, contractual agreement etc., but to attract the provisions of Illegal Dispossession Act, and its operation, was restricted in its scope and applicability into those cases where dispossession from immovable property had come about---Illegal Dispossession Act, 2005, was specifically promulgated for curbing the illegal activities of the land mafia/qabza group/land grabbers and was only applicable to those cases where it was shown that the accused belonged to any of such category and had illegally dispossessed someone to grab his property---Provisions of Illegal Dispossession Act, 2005, were not attracted in the present case and said Act would come to the rescue of not only the owner of immovable property but also to the occupier of immovable property---Dispute between the complainant, seller on the one side and accused on the other side was of civil nature and the same had to be decided by civil court having jurisdiction---Appeal was found to be devoid of any merit and was dismissed and complainant was directed to restore the possession of the disputed property to the accused.

Inayat Khatoon v. Muhammad Ramzan 2012 SCMR 229 rel.

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

---Preamble---Scope and applicability of illegal Dispossession Act, 2005---Purpose and intent of promulgation of the Illegal Dispossession Act, 2005, was to curb the activities of the property grabbers and the Act applied only to dispossession from immovable properties by property grabbers/land mafia and did not apply to the cases of dispossession by ordinary persons who could not be termed as property grabbers/land mafia/qabza group and such included cases of disputes over possession of immovable properties between co-owner or co-sharers, between landlord and tenants, between persons claiming possession on the basis of inheritance, between persons claiming to be owners of the land on the basis of title documents in their favour or cases with a background of an on-going private dispute over the relevant property.

2007 PCr.LJ 201 rel.

Salahuddin Khan Gandapur and Sabir Shah for Appellant.

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

Respondents Nos. 1, 3, 4 and 5 in person

Nemo for Respondent No.2.

Dates of hearing: 4th and 21st May, 2013.

2013 M L D 1588

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

SHAHRUKH JATOI---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.43 of 2013, decided on 15th May, 2013.

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

----S. 6---Terrorism---Scope---Whether particular act was act of terrorism or not, the motivation, object, design and purpose behind the said act was to be seen and it was also to be seen as to whether the said act had created sense of fear and insecurity in the public or in section of the public or community or in any sect and where action resulted in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in particular area it amounted to "terror" and such action fell within the ambit of S.6 of the Anti-Terrorism Act, 1997, and shall be triable by Special Court constituted for such purpose.

N.-W.F.P. Peshawar v. Muhammad Shafiq PLD 2003 SC 224 rel.

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

----Ss. 23, 6, 7 & 8---Penal Code (XLV of 1860), Ss. 302, 354, 109, 216 & 34---Act of terrorism, qatl-e-amd, assault to woman with intent to outrage her modesty, abetment, harbouring offender and common intention---Transfer of case from Anti-Terrorism Court to the court of ordinary jurisdiction---Application for transfer of case of the accused was dismissed by the Special Court---Validity---Offence was committed on the road and by such act of the accused, young boy was shot dead by automatic weapon over petty matter---Act of accused was designed to create sense of fear and insecurity and helplessness in the minds of general public disturbing the tempo of the life and tranquility of the society and provisions of S.6 of the Anti-Terrorism Act, 1997, were attracted and impact of such act terrorized society at large by creating panic and fear in their minds---Presence of personal enmity would not exclude the jurisdiction of Anti-Terrorism Court and neither motive nor intent for commission of offence was relevant for the purpose of conferring jurisdiction on the Anti-Terrorism Court---Act of accused created sense of helplessness and insecurity amongst the people of area where offence was committed and did destabilize the public at large---Present case would fall within the jurisdiction of Anti-Terrorism Court---Order of the Trial Court did not suffer from any material irregularity or illegality and the same was maintained.

Mirza Shaukat Baig v. Shahid Jamil and others PLD 2005 SC 530; Nooruddin v. Nazeer Ahmed and 4 others 2011 PCr.LJ 1370 and Nazeer Ahmed and others v. Nooruddin and another 2012 SCMR 517 rel.

Muhammad Ashraf Kazi and Wazir Hussain Khoso for Applicant.

Faisal Siddiqui for the Complainant.

Saleem Akhtar Burriro, Additional Prosecutor General Sindh for the State.

2013 M L D 1602

[Sindh]

Before Sadiq Hussain Bhatti, J

Hafiz MEHBOOB and 6 others---Applicants

Versus

PROVINCE OF SINDH through Secretary, Revenue Board of Revenue and 4 others---Respondents

Civil Revision No.202 of 2011, decided on 21st May, 2013.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Rejection of plaint---Notice for demarcation of the boundaries of the suit land---Defendant moved application for rejection of the plaint on the ground that suit was barred by S. 42 of the Specific Relief Act, 1877---Contention of the defendant was that plaintiffs had encroached upon his land---Validity---Defendant-respondent had not disputed the ownership of the plaintiffs-petitioners in respect of the survey numbers mentioned in the memo of appeal or the plaint---Dispute related to some land which belonged to the defendant-respondent other than the survey numbers shown in the memo of appeal which allegedly had been encroached upon by the plaintiffs-petitioners---In order to determine whether such claim of the defendant-respondent was correct or not notice was issued to the plaintiffs-petitioners for redemarcation of the boundaries of the land belonging to the plaintiffs-petitioners and the lands belonging to the defendant-respondent---Demarcation would clear the matter and if there was any cause of action available to the plaintiffs-petitioners after the demarcation then they could approach the concerned court and at such stage it would not be expedient to throttle the proceedings undertaken in pursuance of the notice issued to the plaintiffs-petitioners---Impugned notice did not show any threat or denial of the legal right or title to the plaintiffs-petitioners and Trial Court had rightly and properly found that suit of the plaintiffs-petitioners was barred under S.42 of the Specific Relief Act, 1877---Plaintiffs-petitioners were unable to point out any illegality or irregularity being committed by the Trial Court---Application of the plaintiff-petitioners under O.VII, R.11, C.P.C., was rightly dismissed.

Pirbulal U. Goklani for Applicants.

Ch. Bashir Ahmed, A.A.-G. for the State.

Muhammad Arshad S. Pathan for Respondent No.5.

Date of hearing: 14th May, 2013.

2013 M L D 1609

[Sindh]

Before Abdul Rasool Memon, J

MIR MUHAMMAD alias MIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-90 of 2011, decided on 4th June, 2013.

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

---Ss. 394, 337-A(i), 337-A(ii) & 34---Criminal Procedure Code (V of 1898), S. 154---Pakistan Arms Ordinance (XX of 1965), S. 13-D---Voluntarily causing hurt in committing robbery, shajjah-e-khafifah, shajjah-e-mudihah and common intention---Appreciation of evidence---F.I.R. was delayed about 5 hours which had not been explained---Accused had been acquitted from another case under S. 13-D, Arms Ordinance, 1965---Recovery of pistol had not been believed---Prosecution witnesses had been declared hostile---Prosecution had to prove the case against the accused beyond any shadow of doubt---In the present case only the name of the accused was mentioned in the F.I.R. which was not sufficient for establishing his guilt, until and unless same was proved through cogent and convincing evidence---Complainant had not supported the prosecution case and did not identify the accused---Complainant though injured had not been examined by the prosecution---No corroboratory evidence had been brought---Investigating Officer and Medical officer were formal witnesses---Prosecution had failed to prove the charge against the accused beyond any reasonable doubt---No material was available for establishing the charge against the accused---Judgment of the Trial Court was not sustainable which was set aside and appeal was accepted.

Shah Muhammad v. The State 1976 PCr.LJ 719 rel.

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

----S. 154---First information report---Scope---Object of S. 154, Cr.P.C. was to give information of cognizable offence to Station House Officer to set the machinery of law into motion---Fate of accused nominated in F.I.R. could not be decided until and unless some evidence had been produced in the court---F.I.R. could not be treated as substantive piece of evidence which could be used for corroboration or contradiction.

Muhammad Hafeez v. Special Judge ATC Mirpurkhas 2001 PCr.LJ 199 rel.

Riaz Ahmed Shaikh for Appellant.

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

Date of hearing: 4th June, 2013.

2013 M L D 1615

[Sindh]

Before Aftab Ahmed Gorar, J

SHUJAAT HASHMI alias SHUJA---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1210 of 2012, decided on 22nd November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd, common intention---Bail, grant of---Belated implication for the offence---Unwitnessed incident---Effect---Accused was alleged to have murdered the deceased---Name of accused did not appear in the F.I.R. nor any specific role was assigned to him---No description of accused was given in the F.I.R.---Accused was implicated in the case for the first time on basis of subsequent statements of complainant and prosecution witnesses---Such subsequent statements introduced at belated stage were not worthy of credence because complainant had clearly mentioned in the F.I.R. that incident was unwitnessed---No crime weapon was recovered from accused---Description of accused provided to complainant did not match with the actual description of accused---Identification parade was held 15 days after the arrest of accused---Accused was admitted to bail in circumstances.

Shafique Ahmed and 4 others v. The State 2002 PCr.LJ 518; Allah Ditta v. The State 2012 SCMR 184; Muhammad Arif v. The State 2007 YLR 2070; Abdul Malik v. The State 2010 YLR 732; Gul Nawaz v. The State 1998 PCr.LJ 112; Muhammad Siddique v. The State 1996 PCr.LJ 1603; Muhammad Hamid Qureshi, and others v. The State 2003 Cr.LJ 417; Allah Dita, v. The State 2008 PCr.LJ 1581 and Naeem Shamshed v. The State 2011 YLR 833 ref.

Shamraiz Khan Tanoli for Applicant.

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

2013 M L D 1625

[Sindh]

Before Farooq Ali Channa, J

Syed AHMED ALI---Applicant

Versus

STATION HOUSE OFFICER and 2 others ---Respondents

Criminal Revision Application No.161 of 2010, decided on 15th April, 2013.

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

----S. 491---Guardians and Wards Act (VII of 1890), S. 25---Habeas corpus petition for recovery of minor---Illegal detention of minor---Scope---Parent having free access to meet the minor regularly---Effect---Father of minor filed application under S. 491, Cr.P.C., claiming that a foreign court had passed an order in his favour, therefore minor had been illegally removed from his custody by the mother---Trial Court dismissed said application of father on the basis that order of foreign court was temporary and not conclusive and was passed in absence of the mother---Father also filed an application under S. 25 of Guardians and Wards Act, 1890 before Family Court for custody of minor, but same was dismissed, and appeal thereagainst was also dismissed by the Appellate Court---Father had exhausted his remedy under Guardians and Wards Act, 1890 and order of Family Court had attained finality---Father was holding meetings with the minor in pursuance of order of Family Court on every alternate Saturday, which manifested that minor was not in illegal detention of her mother, nor her life was in danger---Minor was being produced before the Family Court and father had free access to meet her---Transferring custody of minor, in such circumstances, in exercise of power under S. 491, Cr.P.C was not warranted---Revision application was dismissed accordingly.

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

----S. 491---Guardians and Wards Act (VII of 1890), S. 25---Habeas corpus petition---Interim order for custody of minor in exercise of S. 491, Cr.P.C.---Scope---High Court under S. 491, Cr.P.C., in appropriate cases, could pass interim order (for custody of minor) pending resolution of dispute by the Guardian Court.

Shafiq Ahmed for Applicant.

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

Date of hearing: 15th April, 2013.

2013 M L D 1645

[Sindh]

Before Aftab Ahmad Gorar, J

GHULAM HUSSAIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.977 of 2012, decided on 22nd November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302/34---Qatl-e-amd, common intention---Bail, grant of---Weapon not used during occurrence---Previous enmity---Probability of false implication---Non-association of independent witness during arrest---Effect---Accused was allegedly holding a hatchet in his hand during the occurrence in which deceased was killed by firing made by a co-accused---Although name of accused transpired in the F.I.R. but he did not use his hatchet at the time of incident---No independent witness was associated as mashir during arrest of accused---Accused was in jail for a period of more than one year---Enmity between parties was admitted, therefore, false implication of accused could not be ruled out---No sufficient grounds existed for holding that accused had committed an offence punishable with death or imprisonment for life---Accused was admitted to bail in circumstances.

Mumtaz Hussain and 5 others v. The State 1996 SCMR 1126 rel.

Nazir Ahmed for Applicant.

Khadim Hussain, A.P.-G. for the State.

Sub-Inspector, Ghulam Hussain Soomro, Police Station, Chohar Jamali along with Complainant.

2013 M L D 1656

[Sindh]

Before Aftab Ahmed Gorar, J

ASIF ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.14 of 2011, decided on 18th May, 2013.

Penal Code (XLV of 1860)---

----S. 376---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Rape---Appreciation of evidence---Evidence of the victim lady who had implicated the accused in the commission of offence was important---Victim was subjected to lengthy cross-examination but the defence could not put any dent in her evidence---Accused failed to produce material in order to prove his plea of enmity and existence of litigation---Defence could not succeed in establishing that the evidence of victim lady was not confidence inspiring or was not reliable---Statement of the victim lady could be made the basis for conviction in circumstances---Complainant could not be examined for the reason that the accused had allegedly committed his murder---Prosecution had succeeded in proving its case beyond reasonable doubt---Appeal was dismissed.

PLD 1991 SC 412; 2005 SCMR 1936; PLD 1989 SC 742; 1999 PCr.LJ 699; PLD 1966 Kar. 101 and 1996 (2) SCC 384 rel.

1995 SCMR 1403; 1993 PCr.LJ 2503; PLD 1986 FSC 144; PLD 1994 FSC 34 and 1994 SCMR 755 distinguished.

Fazal-ur-Rahman Awan for Appellant.

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

Date of hearing: 13th May, 2013.

2013 M L D 1670

[Sindh]

Before Mushir Alam, C.J. and Muhammad Shafi Siddiqui, JJ

MEGA CURRENCY EXCHANGE COMPANY (PVT.) LTD. through Director---Petitioner

Versus

MANAGER COMMERCIAL SENIOR, C.A.A. and 5 others---Respondents

C.P. No.D-2524 of 2012, decided on 13th December, 2012.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Laches---Rejection of petitioner's tender and acceptance of respondent's tender by authority---Constitutional petition challenging such decision of authority filed after five months of issuance of license to the respondent---Petitioner had not explained such delay of five months---High Court dismissed petition on ground of laches in circumstances.

(b) Tender---

----Procurement of services through biding---Duty of public functionaries/producing agencies, stated.

Public functionaries/procuring agencies are obliged to procure services by means of open competitive, transparent and unambiguous binding. They are performing duty as a sacred trust, which require them to protect public interest and interest of Authority and not to extend undue favour.

S. Haider Imam Rizvi for Petitioner.

S. Toqeer Hassan for Respondents Nos. 1 to 4.

Munir-ur-Rehman, D.A.-G. for Respondent No.5.

Ayaz Ali Chandio and Shafique Ahmed for Respondents No.6.

Date of hearing: 30th November, 2012.

2013 M L D 1695

[Sindh]

Before Mushir Alam, C.J. and Nadeem Akhtar, J

ASSISTANT ADMINISTRATOR---Petitioner

Versus

SECRETARY, MINISTRY OF RELIGIOUS AFFAIRS AND MINORITY, ISLAMABAD and 4 others---Respondents

Constitutional Petitions Nos.D-822, 823 and 824 of 2010, decided on 8th May, 2013.

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

----S.10---Validation of certain transfers---Pre-conditions---For validation of transfer of trust properties under S. 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, it was necessary that (i) property was immovable property either in an urban or in a rural area; (ii) property was Evacuee Trust Property; (iii) Property situated in rural area was utilized bona fide under any Act prior to June, 1964 for allotment against satisfaction of verified claims; and (iv) property situated in urban area was utilized bona fide under any Act for transfer against satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968---If all conditions were satisfied, then under S. 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, the property would be deemed to have been validly transferred to sale to Chief Settlement Commissioner and would form part of Trust Pool.

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

----S.10---Constitution of Pakistan, Art.199---Constitutional petition---Validation of certain transfers---Permanent Transfer Deed, cancellation of---Effect---Chairman Evacuee Trust Properties Board declared properties in question as Evacuee Trust Properties and Permanent Transfer Deeds issued by Settlement Department against verified claims were cancelled---Petitioners were aggrieved with the order only to the extent of cancellation of Permanent Transfer Deeds---Validity---Orders for refusal of validation of transfers and cancellation of Permanent Transfer Deeds were passed by Chairman on the grounds that properties were transferred through open auction and not on satisfaction of personal verified claims---Such finding by the Chairman was contrary to record before him, as validation process of all properties had been completed and Permanent Transfer Deeds were issued in respect thereof prior to target date of June, 1968 by Settlement Department against verified claims of displaced persons, after receiving price of properties from their respective personal Compensation Books---Provincial Government had discussed all aspects and its observations and findings were based on sound reasoning and a correct interpretation of S. 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, and the orders did not require any interference by High Court---Petition was dismissed in circumstances.

Deputy Administrator, Evacuee Trust Property, Lahore v. A.R. Chaudhry and 4 others 1981 CLC 1006; Deputy Administrator, Evacuee Trust Property Board, Lahore v. A. R. Chaudhry and others, 1983 SCMR 1240; NLR 1984 Civil Law Judgments 109 (Supreme Court), Ch. Naseer Ahmad and 4 others v. Government of Pakistan, through Joint Secretary, Ministry of Religious Affairs and Minorities and 7 others 1993 SCMR 1570 and Chairman Evacuee Trust Property Board, C.P. No. D-331 of 2002 ref.

Iftikhar Jawed Qazi for Petitioner.

Muhammad Ashraf Khan Mughal, D.A.-G. for Respondent.

Abdul Rehman for the State.

Date of hearing: 2nd February, 2013.

2013 M L D 1705

[Sindh]

Before Sadiq Hussain Bhatti, J

Raja FAQIRULLAH---Applicant

Versus

ABDUL SHAKOOR and another---Respondents

Criminal Revision Application No.S-10 of 2005, decided on 7th May, 2013.

Penal Code (XLV of 1860)---

----S. 193---Criminal Procedure Code (V of 1898), Ss.195(1)(b)(c) & 476---Giving false evidence---Application filed by decree-holder for execution of decree was admitted subject to legal objections and verification of the judgment and applicant/judgment-debtor filed objections---Decree-holder filed application under Ss.195(1)(b)(c) and 476, Cr.P.C. praying therein that judgment-debtor be summarily tried and punished according to law---Court below accepted said application of decree-holder, convicted judgment-debtor for offence punishable under S.193, P.P.C.; and cognizance of said offence was taken against him under Ss.195(1)(b)(c) & 476, Cr.P.C. vide impugned order---Validity---Judgment-debtor, merely had filed the objections by way of counter affidavit in which he had brought the real facts before the court and had not concealed the true facts and had not given a false statement before the court---Impugned order passed by the court below was very hasty order, and court was oblivious of the fact that such order would prejudice the case of judgment-debtor and would influence the Magistrate---Court below had passed the impugned order without waiting for the verification of the judgment and record, or calling the judgment-debtor, who had submitted objections by way of affidavit and would have been subjected to cross-examination to illicit truth---Impugned order was set aside, in circumstances.

Muhammad Asif v. Mehboob Ali Khan Sherwani 1999 Cr.LJ 436 rel.

Syed Madad Ali Shah for Applicant.

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

Date of hearing: 2nd March, 2013.

2013 M L D 1763

[Sindh]

Before Maqbool Baqar, Abdul Rasool Memon and Syed Muhammad Farooq Shah, JJ

Peer TARIQ AHMAD---Petitioner

Versus

ELECTION TRIBUNAL and 4 others---Respondents

Constitutional Petitions Nos.D-1644 and D-1721 of 2013, decided on 9th May, 2013.

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

----Ss. 11, 12, 14, 19 & 99---Pakistan Citizenship Act (II of 1951), S.14---Constitution of Pakistan, Arts. 62(f), 63(1)(c)(p), 113 & 199---Constitutional petition---National Assembly, seat of---Nomination papers of respondent holding dual citizenship rejected by Returning Officer, but accepted by Election Tribunal---Validity---Respondent for such seat had earlier contested bye-election by filing false affidavit, thus, had committed perjury by mis-stating on oath that he did not suffer from any disqualification---Returning Officer had accepted nomination papers of respondent in such earlier bye-election, but Election Tribunal had rejected same---High Court set aside impugned order of Election Tribunal in circumstances.

PLD 2007 SC 52; Malik Iqbal Ahmed Langrial v. Jamshed Alam and others PLD 2013 SC 179; Lt.-Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735; Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others 2012 SCMR 1101; Rao Tariq Mehmood v. Election Tribunal, Punjab, Lahore and another PLD 2003 Lah. 169 and Obaidullah v. Senator Mir Muhammad Ali Rind and 2 others PLD 2012 Bal. 1 ref.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1089 and Muhammad Jameel v. Amir Yar and 6 others PLD 2010 Lah. 583 rel.

Faisal Kamal for Petitioner.

Haq Nawaz Talpur for Respondent No.5 (in C.P. No.1644 of 2013) and for Respondent No.1 (in C.P. No.1721 of 2013).

Ashfaq Ahmed Taggar, DAG in both Petitioner.

2013 M L D 1778

[Sindh]

Before Sadiq Hussain Bhatti, J

YAKOOB---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-449 of 2010, decided on 24th May, 2013.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Qatl-e-amd and common intention---Appreciation of evidence---Death of deceased was proved through the evidence of Medico-Legal Officer who performed the post-mortem of deceased and issued report mentioning therein that the death of deceased had occurred as a result of firearm injuries and one of the injuries was sufficient to cause death in ordinary course of nature---Prosecution witnesses, accused and deceased were closely related having blood relationship, living in one and the same house and they were natural witnesses and evidence of single truthful witness was sufficient to warrant conviction---No person with common prudence shall entangle the real uncle in a serious case leaving the actual culprit---Present was not that case of mistaken identity, incident being a broad daylight occurrence---Prosecution witnesses had supported the prosecution case which was corroborated by medical evidence, Ballistic Expert's report, Chemical Examination report, evidence of mashir of arrest and recovery of weapon of offence which was sufficient evidence against the accused---Jail appeal having no merits was dismissed.

Muhammad Riaz's case 2004 SCMR 897 rel.

Ajab Khan Khatak for Appellant.

Imtiaz Ali Abbasi for the Complainant.

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

Date of hearing: 7th May, 2013.

2013 M L D 1799

[Sindh]

Before Sadiq Hussain Bhatti, J

MANSINGH and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-150 of 2007, decided on 31st May, 2013.

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

----Ss. 302 & 34---Qatl-e-amd, common intention---Appreciation of evidence---Death of deceased was proved through the evidence of Mashir who produced the inquest report in respect of deceased; he identified the dead body, which had burn injuries over different parts of the body---Medical Officer had shown suspicion that such type of burn wounds were usually accidental or suicidal, and were very rare homicide---Suspicion shown by Medical Officer, could not be ruled out---Witness had deposed that it was incorrect to suggest that injuries were sustained by deceased after his death---Evidence on record however revealed that it was quite clear that deceased died unnatural death---Both the witnesses had deposed that accused chased the deceased, but complainant party remained quiet and unmoved and did not follow accused to prevent any further untoward incident---Said piece of evidence did not fall within the ambit of the last seen---Evidence led by prosecution on extra judicial confession was quite miserable---Evidence of witnesses was full of inconsistencies and inspired no confidence and same could not be used as tangible evidence---Medical evidence created suspicion that it could be a case of accident or suicidal---Motive was also not proved---It was always the primary duty of the prosecution to establish its own case independently, instead of depending upon the weakness of defence---Conviction of accused person, could not be sustained on the basis of the evidence led in the case---Impugned judgment passed by the Trial Court was set aside and accused would be released, in circumstances.

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

----S. 164---Extra-judicial confession---Evidentiary value---Extra judicial confession was generally a weak piece of evidence, which had to be received with caution---Such confession could only be worthy of credit, if it would come from an unimpeachable source, or it was corroborated by any piece of credible evidence.

Syed Tarique Ahmed Shah for Appellants.

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

Date of hearing: 21st May, 2013.

2013 M L D 1845

[Sindh]

Before Salahuddin Panhwar, J

Dr. GHULAM HUSSAIN and 3 others---Applicants

Versus

AHMED NAWAZ and 8 others---Respondents

Civil Revision Application No.103 of 2011, decided on 13th March, 2013.

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

----S. 115---Revision---Scope---Revisional jurisdiction was limited but question of law or departure from mandatory requirement of procedure could very well be examined in exercise of revisional jurisdiction as the same fell within the meaning and definition of irregularities and more particularly when such irregularities were claimed to have caused prejudiced.

(b) Words and Phrases---

----"Points for determination"---Meaning.

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

----O.XLI, R.31---Judgment---Points for determination, framing of---Court failed to frame the points for determination which caused prejudice to the party---Case was remanded to frame the relevant points in compliance of O.XLI, R. 31 of C.P.C.

Mukesh Kumar G. Karara for Applicants.

Syed Jaffar Ali Shah for Respondents.

Agha Ather Hussain, Asstt, A.G..

Date of hearing: 25th February, 2013.

2013 M L D 1866

[Sindh]

Before Aqeel Ahmed Abbasi, J

IRTIZA NISAR---Applicant

Versus

Dr. IRFAN TARIQ MIRZA and 2 others---Respondents

Civil Revision Application No.163 of 2011, decided on 15th April, 2013.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 2---Grounds of appeal---Finding of appellate court---Appellate court was required to base its finding on the grounds urged before it and on the basis of pleadings, grounds raised and the issues formulated by the Trial Court---Contesting party had a right to raise additional grounds and to seek decision on additional issues subject to leave of the appellate court, provided the appellate court shall put the other party on notice of such new ground or plea urged by the appellant---No findings had been recorded by the appellate court in its impugned judgment on the legal issues which were formulated by the Trial Court---Impugned judgment and decree was not sustainable in law, which was set aside by the High Court and matter was remanded to the Additional District Judge to decide the appeal afresh.

Khadim Hussain and 8 others v. Manga Khan PLD 1981 SC (AJ&K) 40; Ghulam Nabi v. Mst. Hussain Bibi and 3 others PLD 1981 SC (AJ&K) 42 and Zaheer-ur-Din and others v. Mst. Khurshida Begum 1996 CLC 580 rel.

Malik Khuda Bakhsh and another v. Syed Hamad Ali Shah 1981 SCMR 196 and Syed Kamal Shah v. Inayat Muhammad and others 2002 CLC 1704 distinguished.

Zafar Alam Khan for Applicant.

Adnan Ahmed for Respondent No.1.

Shoaib Ali for Respondent No.2.

Date of hearing: 12th March, 2013.

2013 M L D 1876

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD ALTAF---Applicant

Versus

The STATE---Respondent

Bail Application No.120 of 2013, decided on 12th March, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 15 & 16---Possession of narcotics, operating premises or machinery for manufacture of narcotic drugs, etc., aiding, abetment or association in narcotic offences---Bail, refusal of---Recovery of contraband and chemicals used for making the same corroborated by people of the locality---Effect---Accused was arrested from a flat on basis of information of an informant and 1100 grams of heroin was recovered from his possession---Chemical drums and cans used in manufacturing heroin were also allegedly recovered from the flat---All the persons of the locality in their statements before the investigating officer supported the recovery of chemical and other articles---Person who had rented out the flat to the accused also corroborated version of the prosecution---Entire quantity of contraband recovered from the accused was sent to chemical examiner, who opined the same to be heroin powder---Recovery of heroin powder and chemicals used for manufacturing the same was supported by habitants of the building, which was sufficient evidence to connect the accused in the case---Bail application of accused dismissed in circumstances.

Abdul Wahab Baloch for Applicant.

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

2013 M L D 1904

[Sindh]

Before Ahmed Ali M. Shaikh and Nadeem Akhtar, JJ

ZULFIQAR ALI and 5 others---Petitioners

Versus

MUHAMMAD SULTAN and 5 others---Respondents

Constitution Petition No.D-1642 of 2011, decided on 22nd December, 2012.

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

----S.2---Civil Procedure Code (V of 1908), O.VII, R.11---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan, Art. 199---Constitutional petition---Rejection of plaint---Evacuee property, allotment of---Entitlement---Non-submission of claim---Effect---Petitioners filed suit for declaration claiming to be entitled for allotment of suit property---Lower Appellate Court rejected the plaint under O.VII, R.11, C.P.C.---Validity---Suit property was evacuee property, therefore, only authorities which were competent to allot and transfer the same to petitioners' father or to petitioners were Chief Settlement Commissioner or any other officer authorized by him or Federal Government---Petitioners' father or after his death the petitioners, never submitted their claim or they applied to Settlement Department/Government for allotment and transfer of suit property---Petitioners, therefore, had no locus standi to question or challenge allotment of the property by competent authority i.e. Settlement Department in favour of respondent's father---No infirmity, illegality or jurisdictional error in the order passed by Lower Appellate Court having been found, same did not require any interference by High Court---Petition was dismissed in circumstances.

Abdul Hameed and others v. Settlement Authority and others 2004 SCMR 790; Ahmad Jamal v. Nazir Ahmad Khan and others 1975 SCMR 24; Habib Ullah and others v. Chief Settlement Commissioner/Member, Board of Revenue, Lahore and others 1998 SCMR 351; Hafiz Muhammad Qasim v. Mst. Soorat Bibi and others 2000 YLR 2606 and Mst. Fazal Begum v. Bahadur Khan and another PLD 1983 Lah. 365 ref.

Sarfraz A. Akhund for Petitioners.

Date of hearing: 19th September, 2012.

2013 M L D 1924

[Sindh]

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

KHAN HAIDER---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.104 of 2009, decided on 30th March, 2013.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Evidence of complainant, Sub-Inspector of Anti Narcotic Force, inspired confidence and was trustworthy, he had given minor details of recovery in evidence---No mala fide on the part of the complainant had been alleged, his evidence was corroborated by positive chemical report---Mashir of recovery had also fully supported the complainant on all material particulars---Not a single major contradiction in the evidence of the Police Officials had been brought on the record to discard their testimony---Departure entry had been produced in the Trial Court to show that Police party had actually left for the purpose of raid to the house of accused---Failure to obtain search warrant, could be a lapse on the part of the Investigating Officer, but same would not be fatal to the prosecution case; and whole prosecution evidence would not be discarded on that ground alone---No mala fide, or enmity having been suggested against the prosecution witnesses; there was no reason to disbelieve their version---Defence theory was improbable and an afterthought---Prosecution, in circumstances, had proved its case against accused beyond any shadow of doubt---No case for reduction of sentence was made out---Trial Court had already taken lenient view---Judgment of the Trial Court which was based upon sound reasons, was maintained and appeal being without merits, was dismissed.

Khan Muhammad v. The State PLD 2004 Kar. 681; Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 and Ameer Zeb v. The State PLD 2012 SC 380 ref.

Ilamuddin Khattak for Appellant.

Shafiq Ahmed, Special Prosecutor Anti-Narcotic Force for the State.

Date of hearing: 27th March, 2013.

2013 M L D 1

[Lahore]

Before Nasir Saeed Sheikh and Shahid Waheed, JJ

Mst. GHULAM SAHIRA and others---Petitioners

Versus

MEMBER FEDERAL LAND COMMISSION, ISLAMABAD---Respondent

Writ Petition No.614 of 1977, decided on 2nd October, 2012.

(a) Public official---

----Rights of citizens, interference in---Principles---Public officers are under a legal obligation that if rights of citizens are to be interfered with, it be done on the basis of some legally admissible evidence duly collected---Rights of citizens cannot be allowed to be jeopardized on the basis of assumptions, surmises and conjectures.

(b) Land Reforms Regulations, 1972 (M.L.R. 115)---

----Para. 29---Constitution of Pakistan, Arts, 24 & 199---Consti-tutional petition---Protection to property---Suo motu power of revision, exercise of---Resumption of land---Federal Land Commission in exercise of suo motu powers of revision under Para-29 of Land Reforms Regulations, 1972 (M.L.R. 115), declared alienation of land in question by petitioner in favour of her children to be void---Validity--Produce Index Units (PIU) of petitioner were below the ceiling of 12000 PIUs, which fact had been highlighted from the record and the same left no scope for Land Commission to exercise any power of resumption in respect of land in question---At the time of passing of order by Federal Land Commission, the Constitution of Pakistan (1973) had been enforced whereby in Art. 24, it was ensured that no person would be deprived of his property save in accordance with law, which provided for compensation thereof---Order passed by Federal Land Commission was violative of such concept of the Constitution---Genuine transaction of sale by petitioner in favour of her minor children was effected and incorporated in revenue record, bona fides of which transaction was accepted by authorities---Order passed by Federal Land Commission which was not based upon legally admissible evidence duly collected by authorities was therefore, illegality passed and was declared to be without lawful authority and of no legal effect---Petition was allowed in circumstances.

Federal Land Commission v. Sardar Muhammad Aurangzeb Khan and 5 others 1997 SCMR 911; Federal Land Commission and others v. S. Ghulam Nabi Shah and others 1989 SCMR 210; Lal Chand and 2 others v. Officer on Special Duty, Federal Land Commission and 3 others 1984 CLC 2396; Jalaluddin Zafar and 2 others v. The State 1987 CLC 32; Ibrahim v. Mst. Wazir Begum PLD 1967 Lah. 1087; Sardar Abdul Ghafoor Khan and 3 others v. The Federal Land Commission, Islamabad PLD 1979 Lah. 375; Muhammad Shafie Ullah v. The Govt. of Pakistan and others PLD 2002 Pesh. 50; Barkat Ali and others v. Sakhi Muhammad and others 2005 YLR 2689; Mst. Zubeda Begum v. Chief Land Commissioner, Punjab, Lahore and others 1988 SCMR 1798; Federal Land Commission, Cabinet Secretariat, Islamabad v. Sardar Noor Ahmed Khan and 7 others 1999 SCMR 2697; Sardar Shafiq Hyder Khan Leghari v. Member (Abdul Qayyum), Federal Land Commission PLD 1981 Lah. 356; Mst. Sanam Iqbal v. Chairman Federal Land Commission and others 1982 CLC 395; Ghulam Nabi and others v. Federal Land Commission 1986 CLC 1054 and Muhammad Shafi Khan and another v. Mukhtiar Ahmad and others 1993 SCMR 650 ref.

Mian Muhammad Ashfaq Hussain and Khalid Khan for Petitioners.

Farrukh Ahmed Khan and Malik Amir (Inspector Legal) for Respondent.

Date of hearing: 26th September, 2012.

2013 M L D 31

[Lahore]

Before Ch. Shahid Saeed, J

MUHAMMAD RAFIQUE---Petitioner

Versus

MUHAMMAD SHAFIQUE and others---Respondents

Civil Revision No.1939 of 2011, decided on 24th June, 2011.

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

----S 13---Suit for possession through pre-emption---Talb-e-Muwathibat and Talb-i-Ishhad---Concurrent dismissal of suit---Validity---Plaintiff in his examination-in-chief had not mentioned that he at once exercised his right of pre-emption after coming to know about the transaction---Plaintiff had not disclosed that he announced his right of pre-emption in presence of the informer and had produced only a single witness for Talb-e-Muwathibat, who was the informer---Talb-e-Muwathibat must be announced in presence of the informer and two witnesses---Talb-e-Ishhad was not performed in accordance with law and notices for the same were written by a clerk who was not produced as a witness---Plaintiff had not successfully proved the talbs in accordance with law.

Muhammad Naveed Shabbir Goraya for Petitioner.

2013 M L D 49

[Lahore]

Before Rauf Ahmad Shaikh, J

ALLAH RAKHA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.3933-B and 2986-B of 2011, decided on 12th October, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 458, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, house trespass by night after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapons---Bail, refusal of---Accused's contention that he was merely a passerby could not be accepted as he was apprehended at the spot with a rifle, in an injured condition---Co-accused was duly identified by prosecution witnesses and the complainant in identification parade---Injured prosecution witnesses fully supported the prosecution version and medical evidence lent full corroboration to the ocular account---Accused was involved in 25 cases of heinous offences, whereas co-accused was involved in 8 cases of the same nature---Both were desperate and hardened criminals within the meaning of last proviso of S. 497(1) of Cr.P.C---Trial of accused and co-accused could not be concluded mainly due to non-availability of their counsel and their non-production from the jail---Accused and co-accused were refused bail in circumstances.

Allahdino and another v. The State 1999 PCr.LJ 1704; Ilyas and 2 others v. The State 1999 PCr.LJ 1879; Muhammad Siddique v. State 1999 PCr.LJ 966; Asif v. The State 2006 PCr.LJ 1548; Masood Ahmad and 3 others v. The State 2006 PCr.LJ 1603 and Imtiaz Ahmed v. The State PLD 2009 Lah. 14 ref.

Mahar Haq Nawz Humanyoon for Petitioner (in Criminal Miscellaneous No.3933-B of 2011).

Malik Muhammad Ahsan Karol for Petitioner (in Criminal Miscellaneous No.2986-B of 2011).

M. Amjad Rafiq, D.P.G. for the State and Shamas, S.-I. with record.

Mian Sajjad Hussain for the Complainant.

2013 M L D 61

[Lahore]

Before Shahid Waheed, J

ZULFIQAR ALI and 2 others---Petitioners

Versus

MUHAMMAD BASHIR---Respondent

Civil Revision No.512 of 2011, heard on 14th September, 2012.

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

----S. 24---Suit for pre-emption---Determination of probable value of suit property (zare soem) by Trial Court for deposit of one-third sale price---Scope---Contention of the defendant was that in presence of sale price mentioned in the mutation, Trial Court could not determine probable value of suit property---Validity---As per second proviso to S.24 of the Punjab Pre-emption Act, 1991, probable value of suit property could be determined by Trial Court when no sale price was mentioned in the sale deed or mutation; or when the price mentioned in the sale deed or mutation appeared to be inflated---In each of such eventualities, Trial Court was mandatorily required to determine the probable value of suit property---Every case where there was an allegation that sale price mentioned in mutation of sale deed was inflated, the court was under an obligation to examine the plaint and documents appended therewith; and upon being satisfied that sale price appeared to be inflated, Trial Court was bound by law to determine by approximation the probable value of suit property and then direct the plaintiff to deposit one-third sale price---For determination of said probable value, Trial Court was not required under S.24 of the Punjab Pre-emption Act, 1991 to hold a detailed inquiry and to hear the defendants after notice, as same would cause delay in the determination process and order of deposit of Zar-e-Soem beyond the statutory period of 30 days.

Abdul Wahid and others v. Sardar Ali and others 2000 PLD 2000 Lah. 190 and Perveen Akhtar and another v. Muhammad Sattar PLD 2006 Lah. 410 distinguished.

Muhammad Din and others v. Jamal Din and others 2007 SCMR 1091; Gulzar Ahmad v. Sardar Aslam and others 2001 CLC 1693 and Perveen Akhtar and others v. Muhammad Sattar PLD 2006 Lah. 410 rel.

Qamar Zaman Qureshi for Petitioners.

Ch. Irshadullah Chattha for Respondent.

Date of hearing: 14th September, 2012.

2013 M L D 70

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD ARIF---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.14379-B of 2012, decided on 2nd October, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/147/149---Qatl-e-amd, rioting, unlawful assembly---Bail, grant of---Further inquiry---Accused and co-accused persons allegedly beat the deceased with fist blows, batons and bricks, which resulted in his death---Delay of about 33 hours in lodging of F.I.R. had not been explained by the complainant---Perusal of police file showed that findings of police were based on affidavits/statements of persons who had no relation either with the accused or with the complainant party---Said persons were not only present at the spot at the time of occurrence but also took certain measures to transport the injured to the hospital---Findings of police in the present case could be relied upon---Complainant alleged that deceased was mercilessly beaten by eight persons but presence of (only) four injuries on the person of the deceased spoke otherwise---Locale of injuries on the person of the deceased, prima facie, showed that said injuries were not the result of beating allegedly inflicted by the accused and co-accused persons, which cast serious doubt about the veracity of the prosecution case---Nothing had been recovered from the possession of the accused---Report under S. 173, Cr.P.C. had already been submitted before the Trial Court---Vicarious liability of accused for the offence could be considered by the Trial Court after recording of evidence---Prosecution witnesses who had recorded their statements under S. 161, Cr.P.C. had not undergone test of cross-examination and they were not present at the time of transportation of deceased to the hospital---Veracity of statements of said witnesses could be considered by the Trial Court after recording of evidence---Case against accused required further probe and he was granted bail accordingly.

Asmatullah v. The State and others PLD 2011 SC 178; Rehmat Ullah Butt v. The State 2009 PCr.LJ 104; Muhammad Akram and another v. The State and another 2009 YLR 941; Imtiaz Ahmad v. The State PLD 2009 Lah. 14; Shah Nawaz v. The State 2009 YLR 2300 and Tabassum Ali v. The State 2009 YLR 822 ref.

Malik Waheed alias Abdul Waheed's case 2011 SCMR 1945 rel.

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

----S. 497---Bail---Principles---Offence entailing capital punishment---Delay in lodging of F.I.R.---Effect---Delay in lodging F.I.R. of a criminal case, especially in cases entailing capital punishment, was considered fatal for the prosecution case.

Bashir Ahmad v. The State and another 2012 YLR 545 rel.

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

----Ss. 497 & 173---Bail---Principles---Police opinion, reliance on---Scope---Opinion of police in ordinary course was not considered as valid piece of evidence, however, the same could be given some weightage while deciding a bail application and the only condition precedent for such reliance was that opinion of Investigating Officer was based on sound material.

Mudassar Altaf and another v. The State 2010 SCMR 1861 rel.

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

----S.497---Bail---Principles---Benefit of doubt---Scope---Benefit of doubt could be given to accused even at bail stage.

Ali Sheharyar v. The State 2008 SCMR 1448 and Ali Gul v. The State 2003 SCMR 201 rel.

Naveed Ahmad Khawaja for Petitioner.

Sardar Muhammad Ishaq, D.P.G. with Saif Ullah, S.-I. along with record.

Mian Shehzad Siraj for the Complainant.

2013 M L D 77

[Lahore]

Before Shujaat Ali Khan, J

GHULAM FARID and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No.461 of 2012/BWP, decided on 9th October, 2012.

Civil Procedure Code (V of 1908)---

----O.VII, R.11, O.XXXIX, Rr. 1, 2 & S.104---Rejection of plaint---Powers of Appellate Court---Scope---Suit for declaration and permanent injunction---Application of plaintiff for temporary injunction was allowed by Trial Court---Appeal against said order was allowed and additionally Appellate Court also rejected the plaint under O.VII, R.11, C.P.C.---Contention of plaintiff was that while dealing with appeal against order allowing temporary injunction, Appellate Court was not competent in rejecting the plaint---Validity---While there was no cavil with the proposition that plaint could be rejected by Appellate as well as Revisional Court, it was not however proper for Appellate Court to have rejected the plaint under O.VII, R.11, C.P.C. while dealing with an appeal filed against acceptance of application for interim injunction---Order of Appellate Court was set aside and matter was remanded back to Trial Court---Revision was allowed accordingly.

Mst. Amina v. Muhammad Easa and 11 others 2008 YLR 1405; Iftikharul Haq v. District Canal Officer and others 2005 CLC 1740; Muhammad Iqbal v. Lahore Development Authority and others 2005 YLR 2167; Ihsan Ali v. Sher Muhammad 2004 MLD 1809; Zafar Ahmad Ansari v. Auqaf Department 1996 CLC 892; 1989 MLD 332; Faquir Muhammad and 48 others v. Province of Punjab and 4 others PLD 1993 Lah. 439 and Muhammad Yaqoob and 29 others v. Province of Punjab and 4 others 1993 MLD 918 rel.

Jam Mahjoob Ahmad Larr for Petitioners.

Muhammad Tahir Saeed Ramay, A.A.-G.

2013 M L D 92

[Lahore]

Before Shahid Waheed, J

Ch. ZULFIQAR ALI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, DISTRICT OKARA and 9 others---Respondents

Writ Petition No.22986 of 2012, decided on 17th September, 2012.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.I, R.10---Transfer of Property Act (IV of 1882), S.52---Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration---Impleading of party---Lis pendens, doctrine of---Applicability---Husband of the plaintiff transferred some land out of the suit land vide exchange-deed to respondent and from that land the other respondent who was one of the legal heirs of the deceased vendee, sold some property to the petitioner vide agreement to sell---Petitioner purchased the property during pendency of the suit, without seeking leave of the court as required by S.52 of Transfer of Property Act, 1882---Petitioner being a transferee pendente lite without leave of the court could not as of right seek impleading as party in the suit which was pending since 1992---Trial Court had assigned cogent reasons for rejecting joinder, stating that suit was long pending since 1992 and was fixed for final arguments, and prima facie the action of alienation did not appear to be bona fide---No absolute rule that transferee pendente lite, without leave of the court should in all cases be allowed to join and contest the pending suit---Authority or order of the court having not been obtained for alienation of the property in favour of the petitioner, alienation, was hit by doctrine of lis pendens---Petitioner, in circumstances, could not be considered to be either necessary or proper party to the suit---Trial Court had rightly exercised the discretion in rejecting the application of the petitioner for impleading him as party in the suit.

Savinder Singh v. Dalip Singh (1996) 5 SCC 539 and Narbada Devi Gupta v. Birendra Kumar Jaiswal AIR 2004 SC 173 rel.

Shahid Masood Khan for Petitioner.

2013 M L D 104

[Lahore]

Before Sh. Ahmad Farooq, J

JAVAID IQBAL---Petitioner

Versus

PUNJAB TEXTBOOK BOARD and 4 others---Respondents

Writ Petition No.23295 and Civil Miscellaneous No.2 of 2011, decided on 5th January, 2012.

Constitution of Pakistan---

----Art.199---Civil Procedure Code (V of 1908), S.151---Constitutional petition---Interim relief---Principle---Public interest---Petitioner sought restraining of authorities from issuing printing order to respondent in respect of a book for academic year 2012-2013---Validity---In absence of any lawful ground, authorities could not be restrained from issuing printing order in favour of respondent---Issuance of any stay order regarding printing of the book by respondent would amount to granting main relief to the petitioner---As the academic year, 2012-2013 would start from 1st of March, 2012, restraining the respondent from printing approved book in question would be against public interest---High Court declined to grant any restraining order in favour of petitioner against printing of book in question---Application was dismissed in circumstances.

Dr. Muhammad Akram Saleemi for Petitioner.

Agha Abul Hassan Arif for Respondents.

Qazi Misbah-ul-Hassan for Respondent No.5.

2013 M L D 108

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD MOOSA and others---Petitioners

Versus

BASHIR AHMAD and others---Respondents

Civil Revision No.432 of 2004, decided on 9th January, 2012.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration of title---Plaintiff was the real sister of the defendant and had challenged the mutation of tamleek of the suit land in favour of the defendant---Defendant assailed the findings of the Appellate Court in favour of the plaintiff---Validity---When any transaction on behalf of a sister in favour of a brother in shape of relinquishment of a right of inheritance or transfer of property received in inheritance by a sister was challenged before a court by the alleged donor, and when the plaintiff made statement on oath before the court about the invalidity of such a transaction, then the onus to prove such a transaction as a valid one, shifted on the side which was the beneficiary of the said transaction---Defendant, being beneficiary of impugned transaction was bound under law to prove not only the mutation, but independent of the impugned mutation, was bound to prove the alleged gift in his favour by proving the ingredients of gift which were offer, acceptance and delivery of possession---Defendant not only failed to establish the transaction of gift independent of the mutation but also failed to establish the offer, acceptance and delivery of possession of the suit land---High Court declined to Interfere with the findings of appellate court---Revision was dismissed.

Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688 ref.

Sardar Muhammad Hussain Khan for Petitioners.

Muhammad Atif Saleem Qureshi for Respondents.

Date of hearing: 9th January, 2012.

2013 M L D 115

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD JAMIL alias JEELA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.5697-B of 2012, decided on 12th June, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/ 324/ 353/ 148/ 149/186---Qatl-e-amd, attempt to commit qatl-e-amd, 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---Bail, grant of---Further inquiry---Police had allegedly taken the deceased to his 'dera' for effecting the recovery of certain crime articles, where the accused and co-accused allegedly attacked the police party so as to rescue the deceased from their custody---Contentions of the accused were that no one had seen him firing at the police at the spot of the occurrence, and that a false narration had been devised by the police in the name of the deceased so as to camouflage their criminal act of his murder---Validity---Alleged occurrence took place at midnight, when everything was plunged in darkness, and it had not been alleged anywhere in the F.I.R. that the complainant or other members of the police party had witnessed the accused firing at the place of the occurrence---F.I.R. alleged that once the accused and co-accused started firing at the police party, the deceased shouted and asked the accused and co-accused to stop firing as he had been hit by bullets---None of the police officials could catch a glimpse of the accused or co-accused but deceased surprisingly noticed that he had been hit by their firing---Escape of the accused and co-accused in the presence of such a heavy contingent of police caused eyebrow raising---According to the necropsy report, the accused received nine firearm injuries, but the police officials did not receive even a single scratch during the occurrence, despite having flanked the deceased closely---No crime articles / weapon were recovered from the accused during his judicial lockup---Question as to whether the incident was a real police encounter or a fabricated story by the police to conceal some factuality was a crucial circumstance, which could be answered by the Trial Court---Sufficient reasons existed to believe that the case of the accused constituted need for further inquiry into his guilt as envisaged by S. 497(2), Cr.P.C---Bail application of the accused was accepted and he was admitted to bail.

Ch. Masood Ahmad Zafar for Petitioner.

Miss Muqadass Tahira, Additional Prosecutor General Punjab for the State with Iqbal Hussain S.-I. and Iftikhar S.-I.

2013 M L D 125

[Lahore]

Before Sardar Muhammad Shamim Khan, J

MUHAMMAD SHARIF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 5039-B of 2010, decided on 20th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/201/34---Qatl-e-amd---Bail, grant of---Three versions regarding the occurrence and in none of them the accused had been assigned the role of firing at the deceased---Magistrate in judicial inquiry was not legally competent to fix the responsibility of the murder of the deceased---Finding as to the guilt or innocence of any person by the Magistrate in inquiry would amount to prejudging the case and holding him to be guilty even before his trial for the offence in question---Police during investigation had found another person guilty of the offence of murder of the deceased---Later on during investigation by DSP offence under S.201, P.P.C. had been deleted and accused had been declared innocent---Sister of deceased had filed a private complaint regarding the occurrence, in which trial would be conducted, whereas challan case would be kept in abeyance---Accused in the said private complaint was on bail---No justification existed for refusing bail to accused in the present case, which was to be kept in abeyance---Co-accused with similar role had already been granted bail by High Court---Accused was admitted to bail in circumstances.

Taj Din and 2 others v. Sardar Vakil Khan and 2 others 1973 PCr.LJ 629 and Ahmed Ali v. The State 2007 PCr.LJ 372 ref.

Qazi Sadar-ud-Din Alvi for Petitioner.

Hassan Mahmood Khan Tareen, D.P.G. for the State.

Nemo for the Complainant.

Fayyaz, Sub-Inspector with record.

2013 M L D 130

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

ABDUL JABBAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.13575-B of 2010, decided on 3rd January, 2010.

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

----S. 498---Penal Code (XLV of 1860), Ss. 354/ 453/ 337-L(2)/ 148/ 149---Pre-arrest bail, grant of---Assault or criminal force to woman with intent to outrage her modesty, lurking house trespass or house-breaking, other hurt, rioting armed with deadly weapons---Pre-arrest bail, confirmation of---Previous hostility between parties---Mala fide of complainant F.I.R. had been lodged against accused in the past, by uncle of the complainant---No specific role had been assigned to the accused in the present case and only general allegations were levelled against him---Contention of accused that he had been falsely roped in the case for satisfying ulterior motives, could not be ruled out---Ingredient of mala fide was sine qua non for evaluating a case of pre-arrest bail and mala fide could be adjudged from facts of present case---Pre-arrest bail granted to accused was confirmed in view of the circumstances and previous hostility between the parties.

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

----S. 498---Penal Code (XLV of 1860), Ss. 354/ 453/ 337-L(2)/ 148/ 149---Pre-arrest bail, grant of---Assault or criminal force to woman with intent to outrage her modesty, lurking house trespass or house-breaking, other hurt, rioting armed with deadly weapons---Pre-arrest bail, confirmation of---Mala fide---Scope---Ingredient of mala fide was sine qua non for evaluating a case of pre-arrest bail.

Shahid Rafique Mayo and Ch. Muhammad Saleem Naseem Sandhu for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General Punjab for the State.

Chaudhry Din Muhamam Mayo for the Complainant.

Bashir Ahmed, S.-I. with the police record.

2013 M L D 135

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD MAJEED and others---Petitioners

Versus

MUHAMMAD RAMZAN---Respondent

Civil Revision No. 58-D of 2002/BWP, decided on 18th January, 2012.

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

----S. 13---Pre-emption suit---Pre-requisites---Talb-i-Muwathibat and Talb-i-Ishhad---Suit for pre-emption was decreed concurrently---Contention of the defendant was that plaintiff had not mentioned the time of knowledge and place of knowledge in the making of Talb-i-Muwathibat and the same was not mentioned in the notice of Talb-i-Ishhad---Validity---For filing a suit to pre-empt a sale, the pre-requisite was that the plaintiff must plead in his plaint and mention in his notice; the date, time and place of knowledge of impugned sale and then the jumping demand in presence of witnesses in accordance with S.13 of the Punjab Pre-emption Act, 1991---Findings of the courts below were set aside and suit was dismissed---Revision was allowed, in circumstances.

Haq Nawaz v. Muhammad Kabir 2009 SCMR 630 rel.

Aamir Aqeel Ansari and Abdul Khaliq Sadozai for Petitioners.

Ch. Javid Hussain for Respondent.

Date of hearing: 18th January, 2012.

2013 M L D 140

[Lahore]

Before Muhammad Qasim Khan and Mehmood Maqbool Bajwa, JJ

SAJID IQBAL---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.2699 of 2011, decided on 26th August, 2011.

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

----S. 497---Drugs Act (XXXI of 1976), Ss. 23 & 27---Import, manufacture and sale of drugs---Spurious, mis-branded and unregistered drugs---Bail, grant of---Accused had been charged for violation of S. 23 of Drugs Act, 1976 which carried minimum sentence of 5 years' imprisonment---Accused's case did not fall within prohibitory clause of S. 497, Cr.P.C, as minimum sentence of offence had to be considered in order to determine whether offence fell within prohibitory clause---Accused had been in judicial lockup for ten months and his challan had not been submitted---Accused having no previous history and record, was admitted to bail.

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

---S. 497---Bail---Prohibition on grant of bail---Principles---Minimum sentence of the offence has to be taken into consideration in order to determine whether offence falls within prohibitory clause of S. 497, Cr.P.C.

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

----S. 497---Post-arrest bail---Principles---In the absence of any exceptional circumstances, withholding of post-arrest bail is not the intention of law.

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

Ch. Mahmood Ali for Petitioner.

Malik Muhammad Jaffar, D.P.G. for the State.

Liaqat Ali, Sub-Inspector.

2013 M L D 145

[Lahore]

Before Sh. Ahmad Farooq, J

MUHAMMAD FAROOQ---Petitioner

Versus

THE STATE another---Respondents

Criminal Miscellaneous No.10152-B of 2011, decided on 19th October, 2011.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.376, 511 & 458---Rape, lurking house trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint---Bail, grant of---Further inquiry---Accused along with co-accused had allegedly trespassed into the house of the complainant and attempted to commit zina with complainant's wife and on her resistance, the accused inflicted blow with butt of pistol on her right eye---Unexplained delay of five days in registration of the case---Accused, according to contents of F.I.R., was allegedly armed with pistol and he caused butt blow on the right eye of complainant's wife but she while getting her statement recorded under S. 161 Cr.P.C, had not only stated that accused inflicted fist blow on her right eye but also levelled allegation of an attempted zina against co-accused, who had been released on bail as a result of compromise---Said contradictions in the allegations levelled in the F.I.R. and the statement of the victim had created serious dent in the prosecution story---Injury attributed to accused had been declared "Shajah Khafifah", which was bailable---Accused was behind bars and challan had been submitted in the court and there was no chance of its early conclusion---Report submitted by Trial Court showed that delay in conclusion of trial was due to non-appearance of the prosecution witnesses---Sufficient grounds existed to inquire further into the guilt of the accused---Accused was allowed bail in circumstances.

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

----S. 497---Bail---Benefit of doubt is to be given to an accused even at bail stage.

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

----S. 497---Post arrest bail---Principle---Post arrest cannot be refused to an accused as a measure of advance punishment.

Malik Muhammad Imtiaz Mahal for Petitioner.

Muhammad Naeem Sheikh D.P.G. and Afzal A.S.-I. for the State.

Ijaz Maqbool Elahi Malik for the Complainant.

2013 M L D 161

[Lahore]

Before Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ

ABDUL HAMEED---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.90 and Murder Reference No.290 of 2007, decided on 15th June, 2011.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Corroborated statements of eye-witnesses who had stood firm during cross-examination could not be discarded due to their affinity with the deceased---Ocular testimony was straightforward, credible and confidence inspiring and the same had no material contradiction---Medical evidence had corroborated the ocular version---Presence of eye-witnesses at the scene of occurrence was natural---Defence had failed to substantiate its version through any evidence---Occurrence had taken place in daylight---F.I.R. had been promptly lodged---Specific role of firing had been attributed to accused by eye-witnesses---Guilt of accused stood proved---Alleged motive was not proved and the place of occurrence had been withheld by the prosecution---Accused, a young boy of 19/20 years of age, had committed the offence under the command of his father and elder brother---Conviction of accused was upheld, but his death sentence was commuted to imprisonment for life in circumstances.

Tariq and 2 others v. The State 1995 SCMR 168 and Abdul Majeed alias Jaidu and others v. The State 1996 SCMR 333 rel.

Amin Ali and another v. The State 2011 SCMR 323; Riaz Hussain v. The State 2001 SCMR 177 and Khadim Hussain v. The State PLD 2010 SC 669 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Related wit-nesses, credibility of---Statements of eye-witnesses cannot be discarded on account of their relationship with the deceased, if they stand firm in cross-examination and are corroborated by sufficient material evidence.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Corroboration---Principle---Corroboration is necessary in the given circumstances only for safe dispensation of justice, but the scope of this principle cannot be extended to the ancillary facts testified by the witnesses.

Riaz Hussain v. The State 2001 SCMR 177 ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence---Mitigating circumstance---Commission of murder under the influence or on the exhortation of elders can be considered as a mitigating circumstance for awarding lesser punishment of imprisonment for life to accused.

Tariq and 2 others v. The State 1995 SCMR 168 and Abdul Majeed alias Jaidu and others v. The State 1996 SCMR 333 ref.

Malik Muhammad Saleem for Appellant.

Abdul Majeed Rana, A.P.G. for the State.

Mian Arshad Ali for the Complainant.

Date of hearing: 15th June, 2011.

2013 M L D 181

[Lahore]

Before Shahid Hameed Dar, J

MUSHTAQ AHMAD and 3 others---Petitioners

Versus

NAZAR MUHAMMAD and another---Respondents

Criminal Miscellaneous No.5590-B of 2012, decided on 4th May, 2012.

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

---Ss. 498 & 497(2)---Penal Code (XLV of 1860), S. 364---Kidnapping or abducting in order to murder---Ad interim pre-arrest bail, confirmation of---Further inquiry---Son of the complainant went missing and an F.I.R., was lodged against the accused persons---Investigation officer found that none of the accused persons was involved in the occurrence and placed them in column No.2 of the challan---Complainant filed private complaint against the accused persons, whereafter the Trial Court summoned them to stand trial---Accused persons moved application for bail before arrest, but same was dismissed by the Trial Court---Validity---Complainant had reported the matter to the police after a lapse of four years without offering any plausible explanation---Police conducted an extensive investigation and reached the conclusion that the accused persons had no concern with the disappearance of the son of the complainant and placed all of them in Column No.2 of the challan---Even at the time of filing private complaint, the complainant did not adduce any evidence as to why he kept tight-lipped for such a long period of time---Case against the accused persons was one of further inquiry falling within the purview of S.497(2), Cr.P.C---Bail application of accused persons was accepted and ad interim pre-arrest bail granted to them was confirmed, in circumstances.

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

----S. 498---Bail before arrest---Grounds---Scope---Bail before arrest was an extraordinary relief, the scope whereof was narrow and which could only be extended to a person who was either innocent or who had not committed a non-bailable offence.

Muhammad Hanif Khan for Petitioners.

Rana Kashif Saleem Arfaa, Law Officer with Farrukh A.S.-I. for the State.

Muhammad Razzaq Mahar for the Complainant.

2013 M L D 209

[Lahore]

Before Shujaat Ali Khan, J

AKHTAR SALEEM---Appellant

Versus

ADDITIONAL DISTRICT JUDGE---Respondent

S.A.O. No.7 of 2010/BWP, decided on 18th October, 2012.

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

----S.13-A---Change of ownership---Notice, non-issuance of---Effect---If formal notice, as envisaged under S.13-A of West Pakistan Urban Rent Restriction Ordinance, 1959, is not issued, ejectment petition can be considered as notice for eviction.

Shah Mir and 6 others v. Ghulam Hussain 2012 YLR 148 rel.

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

----S.13---Ejectment of tenant---Establishment of relationship of landlord and tenant---Title of landlord challened---Principle and procedure---When relationship of landlord and tenant is established, tenant cannot challenge veracity of title of landlord, rather first of all he should hand over vacant possession to landlord and then seek remedy before appropriate forum.

Anwar Khan v. Abdul Manaf 2004 SCMR 126 rel.

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

----S.13---Ejectment of tenant---Default in payment of monthly rent---Change of ownership---Tenant had been depositing rent in the name of previous owner, despite the fact that he came to know about new owner---Rent Controller and Lower Appellate Court concurrently passed eviction order against the tenant---Validity---Despite refusal of previous owner to accept monthly rent on account of change of ownership, tenant deposited monthly rent in the name of previous owner---Deposit of rent by tenant in the name of previous owner did not absolve him from the liability to pay rent to landlord as deposit of rent in the name of previous owner could not be considered as due payment---High Court declined to differ with concurrent conclusions arrived at by two courts below and maintained eviction order---Appeal was dismissed in circumstances.

Karam Rasool v. Town Committee, Zafarwal and others 2006 SCMR 1061; Umar Hayat and another v. Madhu Lal Hussain and others 2006 SCMR 1064; Umar Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572; Mst. Parveen Bibi v. Shahan Masih and 2 others 2007 CLC 1106; Suleman Mashkoor v. Abdul Ghafoor and others 2002 CLC 143; Muhammad Amin v. Gulzar Muhammad 1994 MLD 2162 and Qasim Rasool Qadri and another v. Rent Controller and others 1988 CLC 1856 distinguished.

Malik Abdul Aziz Awan and another v. Rana Maqbool Ahmad Khan and others 2012 SCMR 91 and Bazurg Jamil and another v. Haji Abdul Bari others PLD 2003 SC 477 rel.

Sikandar Hayat v. Hasina Sheikh PLD 2010 SC 19; Arshad Ali v. Mst. Zubaidah Bibi and 2 others 2008 SCMR 1457; Amin and others v. Hafiz Ghulam Muhammad and others PLD 2006 SC 549; Messrs Habib Bank Limited v. Sultan Ahmad and another 2001 SCMR 679; Malik Safdar Hussain v. Lutuf Ahmad Khan and others 1997 SCMR 567; Abdul Malik v. Mrs. Qaisar Jehan 1995 SCMR 204; Major (R) Muhammad Yousaf v. Mehraj-ud-Din and others 1986 SCMR 751; Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24; Hakam Din v. Muhammad Irshad PLD 1979 SC 887; Mst. Bushra Bibi and 2 others v. Muhammad Sharif and 23 others 2002 CLC 587; Muhammad Usman and another v. Kausar Begum 2000 CLC 1656; Auqaf Department Punjab, Lahore through Chief Administrator and another v. Saeed Ahmad and another 1996 MLD 1074; Iftikhar Ahmad Shaikh v. Ch. Muhammad Din and 2 others PLD 1990 Lah. 461; Gulzar Begum and others v. Masud Akhtar Khan and others 1988 MLD 938; Muhammad Iqbal v. Hajira Begum and others 1988 MLD 1502; Nawab Din v. Basharat Ali 1986 MLD 692; Suleman Khan and 2 others v. Nazar Khan and another 1983 CLC 1502; Mubarak v. Phullan and 7 others 1980 CLC 485; Syed Sharif Hussain Shah v. Mst. Samina Tauseef through Attorney and 2 others 2010 CLC 637; Mst. Aisha and another v. Mrs. Samar Afroze 2008 YLR 24; Muhammad Saleem v. Messrs Symphony (Pvt.) Ltd. through Salim Motiwala and 2 others 2007 YLR 420; Khan Ghulam Hassan Khan v. Dr. Rashid Ahmad PLD 1967 Kar. 35; Sardar Iftikhar Ahmad Khan v. Sabir Ahmad (Yousaf and Sons) and others PLD 2007 Quetta 104; Bahauddin Bootwala v. Muhammad Afzal 2000 YLR 2716 and Muhammad Iqbal v. Muhammad Afzal and others 2011 CLC 546 ref.

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

----S. 13---Ejectment of tenant---Default in payment of rent---Principle---When default is established on the part of tenant, he has no right to retain possession of rented premises.

Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another PLD 2009 SC 453 rel.

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

----O.XX, R.5---Issue not pressed---Effect---When a party confines its submissions regarding a particular issue and leaves findings of lower court on rest of the issues, such person is not obliged to open the matter as a whole while approaching the higher forum.

Ghulam Haider and others v. Muhammad Hussain and others 2005 SCMR 975 and Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others 2003 MLD 131 rel.

Raja Muhammad Sohail Iftikahr for Appellant.

Muhammad Farooq Warind and Ahmad Mansoor Chishti for Respondents Nos. 3 and 4.

2013 M L D 236

[Lahore]

Before Sardar Muhammad Shamim Khan, J

MUHAMMAD FAROOQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.760-B of 2010, decided on 7th April, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 148, 149 & 109---Qatl-e-amd---Bail, grant of---Further inquiry---Post mortem report showed that injury attributed to accused was everted and abraded margins---Such was not an entry wound so the allegation against accused that he caused injury on the right leg of the deceased was falsified by the post mortem report---Contention of counsel for the complainant that doctor had wrongly opined regarding the injury could not be given any weight, as doctor himself had declared it an exit wound---Injury was on the non-vital part of the body and was simple in nature---Accused had been declared innocent in two successive investigations and according to the opinion of the Police, accused was not present at the spot at the time of occurrence---Although the ipse dixit of Police was not binding upon the court, but that ipse dixit was relevant for the purpose of decision of bail---Pistol had also not been recovered from the possession of accused; he was behind the bars since 18-7-2009 and not a single witness had been recorded---Case against accused being of further inquiry, he was admitted to bail, in circumstances.

Ch. Pervazi Aftab for Petitioner.

Khan Wajid Nawaz Khan for Respondent.

Muhammad Suleman, DDPP.

Muhammad Iqbal, Head Constable with record.

2013 M L D 247

[Lahore]

Before Shujaat Ali Khan, J

Mst. SADIA BIBI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.4931 of 2012, decided on 4th December, 2012.

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

----S. 5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), S.6(5)---Suit for recovery of dower---Deferred dower---Second marriage by husband---Effect---Husband who contracts second marriage without seeking permission from his first wife was bound to immediately pay the entire amount of dower to his first wife irrespective of the fact whether the same was prompt or deferred---Perusal of Nikkahanama of husband with second wife, in the present case, showed that he admitted factum of his earlier marriage to the plaintiff wife and took the stance that he had divorced her---Even if said stance was true, even then husband was bound to pay the amount of dower to the wife if the same was deferred.

Mst. Shaheen Begum v. Zakaullah Khan Ghouri and others 2009 MLD 1124 ref.

Munazza Noor and 2 others v. Additional District Judge and others 2009 CLC 374; Dr. Saira Sultana v. Maqsood Sulari, Additional District and Sessions Judge, Rawalpindi and 2 others 2000 CLC 1384 and Mst. Anita Rani v. Additional District Judge 2000 YLR 537 rel.

Zahid Rehman Tayyab for Petitioner.

Nemo for respondent No.3.

2013 M L D 264

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMMAD ILYAS---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, CHUNIAN, DISTRICT KASUR and 7 others---Respondents

Writ Petition No.15345 of 2011, decided on 23rd January, 2012.

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

----Ss. 22-A, 22-B & 200---Constitution of Pakistan, Art 199---Constitutional jurisdiction---Scope---Registration of F.I.R., application for---Availability of alternate remedy of private complaint---Effect---Complainant (petitioner) had made an application before Ex-Officio Justice of Peace for registration of case against accused persons, but same was dismissed by Justice of Peace after obtaining report from the police---Contention of complainant was that cognizable offence was made out and Ex-Officio Justice of Peace had dismissed the application arbitrarily---Validity---Complainant could not controvert what had been stated in the police report---Impugned order of Ex-Officio Justice of Peace had not shut the doors for the complainant to initiate criminal proceedings by lodging a private complaint, which would provide an equally adequate remedy to the complainant and he could lead the entire evidence himself before the Trial Court---Under Art. 199 of the Constitution it was not obligatory for the High Court to issue writ in every case especially when an adequate remedy in the form of a private complaint was available to the complainant---Order of Ex-Officio Justice of Peace was in accordance with the law and complainant failed to point out any legal and factual infirmity in the same---Constitutional petition was dismissed , in circumstances.

Habibullah v. Political Assistant Dera Ghazi Khan and others 2005 SCMR 951 and Rai Ashraf and others v. Muhammad Saleem Bhatti PLD 2010 SC 691 rel.

(b) Constitution of Pakistan---

----Art 199---Constitutional jurisdiction---Scope---Availability of alternate remedy---Effect---Under Art. 199 of the Constitution it was not obligatory for the High Court to issue writ in every case especially when an adequate remedy in the form of a private complaint was available to the petitioner---Constitutional petition was dismissed, in circumstances.

Habibullah v. Political Assistant Dera Ghazi Khan and others 2005 SCMR 951 and Rai Ashraf and others v. Muhammad Saleem Bhatti PLD 2010 SC 691 rel.

Ch. Nawaz Ali Mayo for Petitioner.

Sardar Dilshad Ahmad for Respondents Nos. 5 to 7.

Khawar Ikram Bhatti, A.A.-G. along with Khurshid S.-I.

2013 M L D 280

[Lahore]

Before Sardar Tariq Masood and Shahid Hameed Dar, JJ

MUHAMMAD ASLAM BAJWA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.6084/CB of 2012, decided on 9th May, 2012.

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

----S. 497(5)---Penal Code (XLV of 1860), S.365-A---Kidnapping or abduction for extorting property---Application for cancellation of bail---Complainant (appellant) had reported the abduction of his nephew (abductee) by three unknown persons, but subsequently implicated the accused (respondent) in his supplementary statement, on the ground that the accused himself confessed to have committed the offence before the complainant---Validity---Name/implication of the accused in the case was undiscovered by the investigating officer, therefore, there was hardly any occasion for accused to admit his guilt before the complainant---Alleged extra-judicial confession of the accused was a weak type of evidence, which could easily be manoeuvred by the prosecution in the absence of direct connecting evidence---Impugned bail granting order of the court below was well-reasoned and elaborate and did not contain any argument or observation which could be considered as odd or incompatible with the record---Complainant had been unable to point out any illegality or absurdity in the impugned order---Application for cancellation of bail was dismissed, in circumstances.

Mian Dad v. The State and another 1992 SCMR 1286 and Muhammad Tayyab v. The State 1997 PCr.LJ 597 rel.

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

----S. 497(5)---Cancellation of bail---Grounds---Bail granting order may be prone to interference under S. 497(5), Cr.P.C, if the same was arbitrary, absurd or fanciful.

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

----Ss. 497(5) & 417---Cancellation of bail and setting aside of an acquittal order---Discretion of court---Principles---Discretion left in the court under S. 497(5), Cr.P.C was pari materia with the principles, which applied to the setting aside of orders of acquittal.

Mian Dad v. The State and another 1992 SCMR 1286 and Muhammad Tayyab v. The State 1997 PCr.LJ 597 rel.

Syed Ali Zulqarnain for Petitioner.

2013 M L D 285

[Lahore]

Before Rauf Ahmad Sheikh, J

IBRAHIM and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.293-B of 2011, decided on 12th July, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-A(ii)/337-A(i)/ 148/149---Causing Shajjah-i-Khafifah and Shajjah-i-Mudihah---Bail, grant of---Further inquiry---Two cross versions were put forth by the rival parties---Persons from both sides were injured---As to who had launched the aggression would be determined only after recording of evidence and on appraisal of the same---Fight broke out at the spur of moment; and both sets of accused took part in that, so the question of vicarious liability would be determined at later stage---Medical certificates had revealed that both accused persons, were also injured and their injuries were not disclosed in the complaint---Persons of accused were no more required for further investigation---Case needed further probe and inquiry within the meaning of S.497(2), Cr.P.C.---Accused were admitted to bail, in circumstances.

Kaleem Ullah Buzdar for Petitioners.

M. Amjid Rafique, D.P.G. for the State.

Sardar Zafar Ahmad Lound for the Complainant.

Wahid Bakhsh, S.I.

2013 M L D 319

[Lahore]

Before Syed Iftikhar Hussain Shah, J

WAJIH-UD-DIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.6131 of 2012, decided on 14th November, 2012.

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

----Ss. 15 & 22---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment petition---Allegation of default in payment of rent and subletting---Order of ex parte proceedings against respondents---Non-filing of leave application by respondents---Dismissal of respondents application for setting aside order of ex parte proceedings---Order of ejectment passed by Rent Tribunal against original tenant and alleged sub-tenant challenged in appeal only by sub-tenant and not original tenant---Dismissal of appeal by Appellate Court---Constitutional petition by subtenant only challenging legality of ejectment order---Validity---According to rent deed, original tenant had agreed not to sublet demised shop---Sub-tenant had not mentioned in appeal and constitutional petition that as to how he came into possession of demised shop---Sub-tenant during arguments before High Court claimed to be partner of original tenant, but failed to produce any law making landlord to be bound by such partnership, if any, between the original tenant and sub-tenant---Ignorance of subtenant in making leave application would be no excuse in eye of law---Original tenant and sub-tenant had not filed leave application, thus, Rent Tribunal had no option but to accept ejectment petition---Original tenant had not challenged ejectment order before Appellate Court and High Court, thus, sub-tenant had no locus standi to challenge its legality---High Court dismissed constitutional petition in limine.

Hasnat Ahmad Khan v. Institution Officer 2010 SCMR 354; Bashir Ahmad v. Abdul Wahid PLD 1995 Lah. 98; Amanullah Soomro v. PIA through Managing Director/Chairman and another 2011 SCMR 1341; Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307; Ahmed Rice Mills and others v. Nawab Rahat Ali Khan PLD 1995 Lah. 422 and Zila Council Lahore through its Chairman v. Reham Dil Khan 2002 YLR 2277 ref.

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

----S. 22(2)---Leave application, non-making of---Tenants plea being his ignorance about making such application---Held, such ignorance would be no excuse in eye of law.

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

----S. 24---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Ejectment order not challenged by original tenant either in appeal or before High Court in constitutional petition, but challenged only by alleged sub-tenant---Sub-tenant had got no locus standi to challenge legality of order of his eviction---High Court dismissed constitutional petition in limine.

Muhammad Saad Shibli for Petitioner.

Muhammad Aslam Khan Dhukkar for Respondent No.2.

Date of hearing: 14th November, 2012.

2013 M L D 325

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD NAWAZ---Petitioner

Versus

MUHAMMAD AKRAM---Respondent

Civil Revision No.442 of 2011, decided on 26th November, 2012.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 1 & 2; O. IX, R. 13, S. 12(2)---Suit for recovery of money on the basis of cheque was decreed ex parte against defendant after he failed to deposit surety as required by order of Trial Court---Defendant's application under S. 12(2), C.P.C. for setting aside said decree was dismissed concurrently---Validity---Defendant failed to submit surety despite many opportunities given to him to submit said surety---Entire scenario showed utter lack of interest on part of defendant to pursue the matter and the Trial Court had committed no illegality while dismissing his application for leave to appear and defend the suit---If a party failed to abide by any order of the court, such party had no right for relief which was granted to the party on fulfillment of a condition---Defendant himself remained aloof from the proceedings and could not claim that he was not provided an opportunity of hearing---Defendant's application for setting aside ex parte decree was also time-barred---No illegality in orders of courts below was found---Revision was dismissed.

Javed Iqbal v. Abdul Aziz and another PLD 2006 SC 66 ref.

Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832 and Haji Ali Khan and Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Ltd. Abbottabad PLD 1995 SC 362 rel.

Munawar Iqbal Theham for Petitioner.

Nazeer Ahmad Larr for Respondent.

2013 M L D 335

[Lahore]

Before Rauf Ahmad Shaikh, J

ASAD-UR-REHMAN and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.10086-B of 2011, decided on 26th August, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.365/367-A/377---Abduction, sodomy---Bail, grant of---Further inquiry---F.I.R. was lodged after 18 days of the occurrence without any plausible explanation---Victim had remained in his family for eighteen days before lodging the F.I.R., therefore it could not be said that he, being frightened could not disclose the names of the accused and commission of sodomy with him by them---Commission of sodomy was not disclosed in the F.I.R. and the same was alleged by complainant in his supplementary statement recorded after 21 days of the occurrence and three days after registration of the case---Victim was never medically examined---Allegations levelled by the prosecution against the accused clearly needed further inquiry---Accused were admitted to bail in circumstances.

Muhammad Sultan Kasuri for Petitioner.

Ch. Muhammad Mustafa, D.P.G. for the State, along with Ikram-ul-Haq, A.S.-I., with record.

Awais Toseef Rana for the Complainant.

2013 M L D 347

[Lahore]

Before Rauf Ahmad Shaikh, J

SAFDAR HUSSAIN---Petitioner

Versus

SUB-DIVISIONAL CANAL OFFICER and 2 others---Respondents

Writ Petition No.14549 of 2011, heard on 6th November, 2012.

Canal and Drainage Act (VIII of 1873)---

----S. 68A---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Power of Canal Officer to restore interrupted supply---Section 68-A of the Canal and Drainage Act, 1873 was added with the sole object to provide interim relief to the farms in case of unauthorized interruption or disturbance in the watercourses---Order under said provision was final and could not be interfered with through exercise of constitutional jurisdiction under Art. 199 of the Constitution unless it was proved that the same was patently illegal or concerned landowners had not been afforded an opportunity of hearing or that requisite inquiry was not conducted by the Canal Officer before passing the order.

PLD 1992 Lah. 370 and 1994 CLC 1178 rel.

Ch. Khalid Mahmood Araian for Petitioner.

Rao Muhammad Saleem Khan for Respondent No.3.

Zafar Ullah Khan Khakwani, A.A.-G. and Syed Maqsood Hussain SDCO with record.

Date of hearing: 6th November, 2012.

2013 M L D 371

[Lahore]

Before Ijaz Ahmad, J

Ch. MUHAMMAD ASLAM---Petitioner

Versus

CIVIL JUDGE/RENT TRIBUNAL, RAJANPUR and 3 others---Respondents

Writ Petition No.3418 of 2011, decided on 3rd October, 2012.

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

----Ss. 2(b), 28 & 24---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.15---Constitution of Pakistan, Art. 199---Constitutional petition---"Final order"---Connotation---Scope---Appeal against order of Rent Tribunal directing tenant to deposit arrears of rent with court under S.24 of the Punjab Rented Premises Act, 2009---Maintainability---Landlord (petitioner) impugned order whereby landlord's appeal against order of Rent Tribunal directing tenant to pay arrears of rent in court, was dismissed on the ground that same was against an interim order and was not maintainable---Validity---Prima facie, interim order to pay rent may not be the final order as S. 24 of the Punjab Rented Premises Act, 2009 provided that tenant shall keep on paying the rent till final order which may be one culminating in eviction or in dismissal of ejectment petition---Section 24 of the Act had to be read along with S. 2(b) of the Punjab Rented Premises Act, 2009; and both sections should be read in juxtaposition and contradistinction to provisions of S.15 of West Pakistan Urban Rent Restriction Ordinance, 1959; provisions of which segregate an appealable order from all other orders by qualifying the former as the one finally disposing of an application under the West Pakistan Urban Rent Restriction Ordinance, 1959---"Final order" under S.2(b) of Punjab Rented Premises Act, 2009 included an order for arrears or rent---Impugned order of Rent Tribunal directing tenant to pay arrears of rent was "final order" under S. 2(b) of the Punjab Rented Premises Act, 2009 and was therefore, appealable under S. 28 of the Punjab Rented Premises Act, 2009---Impugned orders were set aside---Constitutional petition was allowed, accordingly.

Muhammad Iqbal Haider and another v. Vth Rent Controller/Senior Civil Judge, Karachi Central and others 2009 YLR 136; Mst. Parveen Bibi v. Shahan Masih and 2 others 2007 CLC 1106 and Muhammad Wakil Khan v. Additional District Judge, Lahore and 3 others 2007 CLC 1151 ref.

Aftab Alam Yasir for Petitioner.

Mian Ahmad Mehmood for Respondents.

2013 M L D 392

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD ALAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1409-B of 2012, decided on 9th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 337-A(iii)/337-F(v)/34---Shajjah-i-hashimah, ghayr-jaifah hashimah, common intention---Bail, grant of---Cross-version F.I.Rs.---Matter was reported to the police with a delay of eight (8) days, which had not been explained by the prosecution---Persons from both sides received injuries and cross-version F.I.R. had also been recorded in that regard---Question as to whether the accused or the complainant party was the aggressor, could not be determined at bail stage and same was to be resolved by the Trial Court after recording the evidence---Sufficient grounds existed to enlarge the accused on post-arrest bail---Bail petition of accused was allowed and he was admitted to bail.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 and Muhammad Shahzad Siddique v. The State and another PLD 2009 SCMR 58 fol.

Kashif Ali Chaudhry for Petitioner.

Ms. Muqaddas Tahira, Additional Prosecutor General.

Malik Shahid Iqbal Awan for the Complainant.

Ghulam Muhammad, S.I. with record.

2013 M L D 425

[Lahore]

Before Rauf Ahmad Shaikh and Shahid Hameed Dar, JJ

Raja MAZHAR HUSSAIN---Petitioner

Versus

FORCE COMMANDER, RD ANF, RAWALPINDI---Respondent

Writ Petition No.5081 of 2010, decided on 13th January, 2011.

Criminal Procedure Code (V of 1898)---

----S.516-A---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Constitution of Pakistan, Act. 199---Constitution petition---Possessing narcotic drug---Superdari of vehicle---Vehicle in question exclusively belonged to accused petitioner without any counter claimant---Said vehicle was neither shown to be the case property nor the same was shown by the prosecution to have any nexus with the story mentioned in the F.I.R.---Trial Court had allowed the Superdari of the vehicle to the father of the accused petitioner, who had been convicted and sentenced in the case---Father of accused being a British National had left the country---To leave the vehicle continuously with the ANF Officials might cause irreparable loss to the accused---All the legal formalities for release of the vehicle stood completed---Special Prosecutor ANF had no objection for delivery of the vehicle to the agent of the accused---Accused was directed to move an application before Trial Court seeking compliance of the earlier order of Superdari of the vehicle, who would summon the accused petitioner from the prison, record his statement and on his consent deliver the vehicle on superdari to his counsel---Constitutional petition was allowed accordingly.

Raja Ghaneem Aabir Khan for Petitioner.

Waqas A. Rehman, Special Prosecutor ANF for Respondent.

2013 M L D 431

[Lahore]

Before Ch. Shahid Saeed, J

ASGHAR ALI and another---Petitioners

Versus

MUHAMMAD SADIQ through L.Rs. and others---Respondents

Writ Petition No.15166 of 2005, decided on 15th February, 2012.

Civil Procedure Code (V of 1908)---

----O.XV, R.1---Constitution of Pakistan, Art.199---Constitutional petition---Admission of claim of plaintiff by defendants and filing conceding written statement---Application for decreeing suit in the light of conceding written statement---Limitation---Eight defendants appeared before the Trial Court and admitting claim of the plaintiff filed their conceding written statement---Application of other fifteen defendants filed for impleading them as defendant in the suit was allowed and they were impleaded---Application by the plaintiffs under O.XV, R.1, C.P.C. for decreeing the suit against eight defendants as they had filed their conceding statements, was dismissed by the Trial Court and revisional court---Validity---Plaintiffs filed application under O.XV, R.1, C.P.C. after a lapse of six years and had not challenged the order, by way of which fifteen defendants who had not filed conceding written statements, were impleaded as party in the suit---No doubt after the admission of eight defendants, Trial Court might pass a decree in the suit straightaway on application under O.XV, R.1, C.P.C., but said application was filed at a belated stage and provision of O.XV, R.1, C.P.C. was not mandatory in nature---Discretion vested with the court to pass a decree, therefore, satisfaction of the court was necessary---No illegality or material irregularity was found in the impugned orders passed by the courts below---Both courts below having rightly exercised their jurisdiction while deciding the matter in issue, constitutional petition was dismissed.

2007 SCMR 1684 rel.

Sh. Naveed Shahryar for Petitioners.

Abdul Wahid Chaudhry and Mazhar Hayat for Respondents.

2013 M L D 455

[Lahore]

Before Nasir Saeed Sheikh, J

MARYAM BALIGHI---Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and 2 others---Respondents

Writ Petition No.18245 of 2012, decided on 27th August, 2012.

Calendar of University of Punjab, 1998---

----Ch. I, Cl.4---Constitution of Pakistan, Art. 199---Constitutional petition---First Professional M.B.B.S. Part-II Examination---Failure of petitioner (an Iranian citizen) to qualify such examination in four prescribed chances---University declared petitioner ineligible for further medical education in Pakistan---Petitioner's prayer for allowing her fifth chance for such examination---Validity---Professional examinations in the field of Science and Humanities were source of improving ability of candidates---Medical students, in order to succeed in examinations, would have to acquire sufficient skills and ability in chances provided by University---Student having failed to acquire proficiency in availed or non-availed chances would not be entitled to indulgence of court in order to compel University to allow him more chances---Petitioners could not claim a vested right for indulgence of courts in Pakistan for granting her such prayer as University had sufficiently tested her merit for four times, thus, such person could not become a good doctor to deal with life and health of people---Impugned order did not suffer from any illegality---High Court dismissed constitutional petition in circumstances.

Akhtar Ali Javed v. Principal, Quaid-I-Azam Medical College, Bahawalpur 1994 SCMR 532; Rana Saeed Ahmad v. The Controller of Examination, Bahauddin Zakriya University, Multan 1996 SCMR 792; Omer Nassar Muhammad v. Principal, Nishtar Medical College and others 2006 SCMR 695; Muhammad Ali Bugti v. N.E.D. University of Engineering and Technology 2007 SCMR 226 and C.P. No.2457 of 2010 ref.

Munaza Habib and others v. The Vice Chancellor and others 1996 SCMR 1790; V.C. University of Punjab, Lahore v. Mst. Maria Hidayat Khan and others 2007 SCMR 1231; Constitutional Petition No.96-L of 2009 and Writ Petition No.14532 of 2010 rel.

Rana Liaqat Ali Khan for Petitioner.

Muhammad Shahzad Shaukat for Respondent No.2.

Malik Abdul Aziz Awan, A.A.-G.

2013 M L D 476

[Lahore]

Before Shujaat Ali Khan, J

ABRAR HUSSAIN and others---Petitioners

Versus

SAEEDA FATIMA and others---Respondents

Civil Revision No.634 of 2002/BWP, heard on 2nd October, 2012.

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

----O.IX, R.13 & S.115---Limitation Act (IX of 1908), Arts.164 & 181---Ex parte decree, setting aside of---Limitation---Suit filed by plaintiffs was decreed ex parte but on application of predecessor-in-interest of defendants, filed two years after the decree, Lower Appellate Court set aside the decree---Validity---Provisions of Art. 181 of Limitation Act, 1908, were applicable only to ex parte judgments and decrees, where defendant never joined proceedings, whereas in cases where defendant did not appear after joining proceedings, the provisions of Art. 164 of Limitation Act, 1908, were applicable---Predecessor-in-interest of defendants duly joined proceedings by hiring legal services of a counsel but later on she failed to produce her evidence---Period of limitation as prescribed under Art. 164 of Limitation Act, 1908, was applicable---After passing of ex parte judgment and decree in favour of plaintiffs, valuable rights had accrued in their favour and they could not be deprived of the same until and unless each day's delay was explained by defendants---Application for setting aside ex parte decree, filed by defendants was time barred and no plausible reason was advanced for setting aside ex parte judgment and decree passed in favour of plaintiffs---High Court set aside order passed by Lower Appellate Court and dismissed application filed by defendants---Revision was allowed in circumstances.

Cantonment Board Kharian Cantt. v. Muhammad Shafi PLD 1991 SC 400; Muhammad Hussain and others v. Settlement and Rehabilitation Commissioner and others 1975 SCMR 304 and Mrs. Akhtar Mansoor and others v. Punjab Government and others 1983 CLC 2765 ref.

Muhammad Iqbal through L.Rs. and others v. Khan Muhammad through L.Rs. and others PLD 1999 SC 35; Abdul Majid v. Muhammad Afzal Khokhar 1993 SCMR 1686; Messrs Rehman Weaving Factory v. Industrial Development Bank of Pakistan PLD 1981 SC 21; Ghulam Amir v. Irshad Ahmad and others 2002 CLC 263; Rehman Khan v. Abdul Kabir, Advocate 2002 MLD 1703 and Fazal Bibi and others v. Abdul Haq and others 1991 CLC 291 distinguished.

Secretary Education Department, Government of N.-W.F.P. Peshawar and others v. Asfandiar Khan 2008 SCMR 287; Javaid Siddiq v. Muhammad Javaid Umar Khan and others 2008 SCMR 1417 and Rehmat Din v. Mirza Nasir Abbas 2007 SCMR 1560 rel.

(b) Administration of justice---

----All parties before law are equal irrespective of their gender.

Muhammad Afzal Pansota for Petitioners.

Ch. Naseer Ahmad for Respondents Nos.1.1 to 1.3 and 2.

Muhammad Tahir Saeed Ramay, A.A.-G. for respondent No.3.

Date of hearing: 2nd October, 2012.

2013 M L D 487

[Lahore]

Before Syed Iftikhar Hussain Shah, J

SHAGUFTA BIBI---Petitioner

Versus

JUDGE FAMILY COURT, MAILSI and others---Respondents

Writ Petition No. 15542 of 2012, decided on 10th December, 2012.

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

----S.10(4), proviso---Constitution of Pakistan, Art.199---Constitutional petition---Return of dower in lieu of Khula---Scope---Word "shall", connotation---Suit for dissolution of marriage on basis of khula was decreed and wife was directed to return dower mentioned in Nikahnamma---Contention of wife (petitioner) was that return of dower in lieu of khula was neither compulsory nor mandatory---Validity---Under proviso to S.10(4) of the West Pakistan Family Courts Act, 1964, the Family Court in a suit for dissolution of marriage on the basis of khula, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and shall also restore to the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage---Word "shall" had been used twice in the said proviso, which indicated that the provision of returning dower was mandatory---No discretion existed with the court to refuse the return of dower---Decree on basis of khula granted under provisions of S.10(4) of the West Pakistan Family Courts Act, 1964 was always a conditional one---Impugned order was in accordance with law---Constitutional petition was dismissed, in circumstances.

Muhammad Zafar v. Judge, Family Court and another 2005 CLC 1844 distinguished.

Muhammad Maalik Khan Langah for Petitioner.

2013 M L D 498

[Lahore]

Before Ijaz Ahmad, J

SEHER ADVERTISING through Chief Executive and another---Petitioners

Versus

DISTRICT COORDINATION OFFICER, SAHIWAL and 4 others---Respondents

Writ Petition No.11777 of 2012, decided on 30th November, 2012.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S. 54---Constitution of Pakistan, Arts. 18 & 199---Constitutional petition---Function of Town Municipal Administration (TMA)---Regulation of Billboards / Advertisements---Contention of the petitioners was that respondent TMA had earlier issued No Objection Certificates (NOCs) to the petitioners for installation of billboards and subsequently, the TMA constituted a committee which cancelled said NOCs granted to the petitioners---Petitioners further contended that valuable proprietary rights had accrued in their favour after issuance of NOCs which would not be taken away and that they had been condemned unheard---Validity---TMA under S. 54 of the Punjab Local Government Ordinance, 2001 had the authority and control over land use and enforcement of municipal laws and for regulation of affixing of sign boards, advertisements and for conservation and beautification of local areas---Any person or authority vested with such powers had an implied authority to regulate any trade or profession by a licensing system which was distinct from a complete prohibition, under Art. 18 of the Constitution---Petitioners, as could be seen from photographs of the billboards, had clearly violated the terms of licence/NOC granted to them---TMA had, therefore, rightly cancelled the NOCs granted to the petitioners as the same were merely licences and did not create any proprietary rights in favour of the petitioners---Petitioner having violated terms of the licence granted to them, did not deserve the extraordinary relief claimed by them---Constitutional petition was dismissed, in circumstances.

Fazal Mehmood and another v. Tehsil Municipal Administration through Tehsil Nazim, Okara and 2 others 2003 CLC 391 and Mehran Advertiser and others v. Government of Punjab and others PLD 2011 Lah. 61 ref.

Arshad Mehmood v. The Government of the Punjab PLD 2005 SC 193 and PLD 2011 Lah. 61 rel.

(b) Punjab Local Government Ordinance (XIII of 2001)---

----S. 54---Functions and duties of Town Municipal Administration (TMA) in relation to development, management and maintenance of areas under its authority stated.

(c) Constitution of Pakistan---

----Art. 18---Any trade, business or profession may be regulated by a licensing system that is distinct from a complete prohibition.

Malik Zahid Hussain Awan and Syed Jaffer Tayyar Bukhari for Petitioners.

Muhammad Abdul Rauf Sindhu for TMA and Sohail Iqbal Bhatti, Additional Advocate General Punjab for Respondents.

Date of hearing: 22nd November, 2012.

2013 M L D 541

[Lahore]

Before Rauf Ahmad Sheikh, J

FAISAL IKRAM---Petitioner

Versus

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

Writ Petition No.4166 of 2010, decided on 17th January, 2012.

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

----S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Interpretation of documents---Lease agreement---Ejectment of petitioner (tenant) was ordered by Trial Court on the ground that the period of lease under the lease agreement between the parties had expired and unilateral renewal of lease was not permissible under the said lease agreement---Petitioner (tenant) contended that under said lease agreement, the lease was renewable on the option of the petitioner (tenant) which option had been exercised by him---Contention of the respondent(landlord) was that under said lease agreement, the first renewal could be effected only with the mutual consent of the parties but the second term was renewable at the option of the petitioner(tenant)---Controversy between the parties revolved around the lease agreement which was an admitted document between the parties---Use of the word "terms" in the relevant clause of said lease agreement made it clear that both the first and second renewals were at the option of the petitioner (tenant) and it could be safely inferred from the said lease agreement that the first term was renewable for a further term of five years and after that the tenancy shall be renewed for a further term on the option of the petitioner(tenant)---Such option was given to the petitioner(tenant) for both renewals of the tenancy on the same terms and conditions, and that had been categorically clarified by the use of the word "terms" instead "term" in the relevant clause of the said lease agreement---Had the intention of the parties been that the option would confine to the second renewal only, then the word "terms" would not have been used in the relevant clause of the said lease agreement---Use of the words "at the option of the lessee" in the relevant clause, revealed that same was the qualifying clause for both renewals---Clauses of the said lease agreement read and interpreted together on the basis of texts would lead to an inference that the tenancy was renewable for two terms of five years at the option of the petitioner (tenant)---Courts below had failed to construe the terms of the said agreement in true perspective and with reference to the context---Tenancy still existed and the period for the same had not yet expired, therefore, the ejectment petition was premature---Requirement of personal need was not one of the grounds for eviction provided under S.15 of the Punjab Rented Premises Act, 2009---Orders of courts below were not sustainable under the law and were set aside---Ejectment petition filed by the respondent (landlord) stood dismissed---Constitutional petition was allowed, accordingly.

2001 SCMR 338 ref.

Ghulam Farid Chaudhary for Petitioner.

Muhammad Abdul Hai Alvi for Respondent No.3.

2013 M L D 565

[Lahore]

Before Amin-ud-Din Khan, J

ABDUL MAJEED and 2 others---Petitioners

Versus

ABDUL GHANI and others---Respondents

Civil Revisions Nos.2132 and 2133 of 2001, decided on 14th June, 2012.

(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1969)---

----S.26---Specific Relief Act (I of 1877), Ss.8 & 42--- Suit for possession and declaration---Consolidation of land---Jurisdiction of civil courts---Plaintiff claimed to be owner of land situated in specific Khasra number and sought possession of the same on the basis of consolidation by revenue authorities under West Pakistan Consolidation of Holdings Ordinance, 1969---Defendant in counter case resisted the suit of plaintiff and claimed to be owner of land situated in Khasra number in question---Trial Court decreed suit filed by plaintiff and dismissed that of defendant but Lower Appellate Court reversed findings and suit filed by defendant was decreed in his favour whereas that of plaintiff was dismissed---Validity---Land of all land owners of the "Muaza" (village) was consolidated in consolidation proceedings and then it was distributed according to entitlement of every person or group of persons---If Khasra number in question was given by consolidation authorities in entitlement to plaintiff, and if there was any claim of defendants with regard to that Khasra number, then defendants had a right of appeal in consolidation hierarchy---When right of defendants in Khasra number in question was accepted then plaintiff would have been compensated by alternate land---Defendants had opted not to file any appeal etc. against confirmation of consolidation proceedings, therefore, plaintiff and others were recorded owners of Khasra number in question in "Jamabandi" as well as in mutation of distribution of consolidated land---Judgment and decree passed by Lower Appellate Court was against available record and law as under S. 26 of West Pakistan Consolidation of Holdings Ordinance, 1969, jurisdiction of civil court was barred---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 in circumstances.

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

----S.42---Declaratory decree---Scope---Such decree declares a pre-existing right and it does not create a new right in favour of plaintiff.

Ashfaq Qayyum Cheema for Petitioners.

Noor Muhammad Khan Chandia for Respondents.

Date of hearing: 14th June, 2012.

2013 M L D 579

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD HANIF and others---Petitioners

Versus

MUHAMMAD IFTIKHAR AHMAD through this L.Rs.---Respondent

Civil Revision No.663-D of 2000, decided on 18th January, 2012.

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

----S.13---Pre-emption suit---Talb-e-Muwathibat and Talb-e-Ishhad, performance of---Time and place of knowledge of suit sale not mentioned in plaint and notice of Talb-e-Ishhad---Validity---Plaintiff was bound to plead and prove date, time and place of knowledge of suit sale and then making of Talb-e-Ishhad without loss of time in same sitting/majlis in presence of witnesses---Plaintiff for making Talb-e-Ishhad was obliged to reiterate Talb-e-Muwathibat before making Talb-e-Ishhad---Plaint and the notice did not find mention all such primary necessities---Suit was dismissed in circumstances.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others PLD 2007 SC 302; Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559; Ashfaq Zai and others v. M. Abdul Quddus Bihari and others 1992 SCMR 1109 and Mst. Surraya Begum and others v. Mst. Suban Begum and others 1992 SCMR 652 ref.

Aejaz Ahmad Ansari for Petitioners.

Jamshed Akhtar Kokhar for Petitioner (in C.M. No.777 of 2002).

Ahmad Mansoor Chishti for Petitioner (in C.M. No.2258 of 2009).

Raja Muhammad Sohail Iftikhar for Petitioner (in C.M. No.2718 of 2009).

Sh. Karim-ud-Din for Respondent.

Date of hearing: 18th January, 2012.

2013 M L D 588

[Lahore]

Before Abdus Sattar Asghar, J

IZHAR ULLAH BABIR and others---Petitioners

Versus

PROVINCE OF THE PUNJAB and others---Respondents

Writ Petition No.12403 of 2010, decided on 8th December, 2012.

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

----Ss. 4, 10, 19-A [as inserted by Colonization of Government Lands (Punjab) (Amendment) Act (III of 1951)] & Sched. 1---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration---State land falling within Lower Jhelum Colony Area, District Shahpur---Allotment under Horse Breeding Scheme 1904-1906---Succession of tenancy rights---Scope---Inheritance mutation of original allottee attested on 23-5-1938 after his death in favour of his elder son (defendant) while excluding his younger son (plaintiff)---Defendant's application under O. VII, R. 11, C.P.C. for rejection of plaint in suit filed by his younger brother claiming on half share in inheritance of tenancy rights of original allottee---Validity---Terms and conditions of tenancy granted to original allottee pertained to lands maintained under Punjab Tenancy Act, 1887 being a special law, thus, West Pakistan Muslim Personal Law (Shariat Application) Act, 1962 being a general law would not apply thereto---Original allottee had died before insertion of S. 19-A in year 1951 in Colonization of Government Lands (Punjab) Act, 1912---According to terms and conditions regarding tenancies under Horse-Breeding Scheme 1904-1906, Tehsil Sargodha, rule of primogeniture was applicable in year 1938 at time of death of original allottee---Special condition of succession under rule of primogeniture stood abrogated w.e.f. 14-10-1940 by order of then Punjab Government---Impugned inheritance mutation dated 23-5-1938 had been attested in accordance with law under rule of primogeniture---Plaint was rejected in circumstances.

Mst. Ghulam Bano alias Gulab Bano and others v. Mst. Noor Jehan and others 2005 SCMR 658 ref.

(b) Administration of justice---

----Mere misquoting of any provision of law would not render an order illegal.

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

----S.10---Constitution of Pakistan, Art. 199---Constitutional petition---Grant of tenancy rights of State land---Validity---Such tenancy, if granted by competent authority in accordance with law and rules, would not call for interference by High Court in constitutional jurisdiction.

Noor Muhammad v. Member, Board of Revenue and others 2006 SCMR 769 and Sub. Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435 rel.

Shahid Mahmood Khilji for Petitioners.

Imtiaz Ahmed Kaifi, Addl. A.G. and Abdul Jalil Patwari for Respondent No.1.

Ch. Muhammad Anwar Bhindar for Respondents Nos. 2 to 8.

Date of hearing: 8th November, 2012.

2013 M L D 598

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMAMD TARIQ---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.1552-B of 2012, decided on 12th September, 2012.

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

----Ss. 497 & 164---Bail---Scope---Implication of accused on basis of his extra-judicial confession made before prosecution witnesses---Such confession was a very weak type of evidence and its value was to be seen at the time of trial.

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

----S. 497(2)---Bail---Scope---Case of further inquiry---Plea that since trial of accused was likely to conclude within a couple of months, therefore, he should not be allowed bail---Validity---Such plea would not deter the court from granting bail, when a case of further inquiry was made out.

Mazhar Hussain v. The State and another 2012 SCMR 887 rel.

Allah Ditta and others v. The State 1990 SCMR 307 ref.

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

----S. 497(2)---Bail---Scope---Case of further inquiry---Commencement of trial---Plea that since trial of accused had commenced, therefore, he should not be allowed bail---Validity---Commencement of trial would pose no hurdle in the way of bail, when the accused succeeded in making out a case of further inquiry.

Munir v. The State and 2002 MLD 712 rel.

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

----S. 497(2)---Bail---Scope---Case of further inquiry---Where case was one of further inquiry, bail was to be granted as a matter of right and not by way of any concession or grace.

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

----Ss. 497(1) & 497(2)---Bail---Scope---Case falling within the prohibitory clause of S.497(1), Cr.P.C---Mere fact that accused was involved in a case falling within the prohibitory clause of S.497(1), Cr.P.C would not be sufficient to reject bail, if the case was one of further inquiry.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34---Qatl-e-amd, common intention---Bail, grant of---Further inquiry---Accused and co-accused allegedly made a joint extra-judicial confession before prosecution witnesses to the effect that they administered an intoxicant to the deceased and then committed his murder and concealed his dead body---Extra-judicial confession before the prosecution witnesses was a very weak type of evidence---Medical report showed that cause of death was unknown---Veracity of evidence was to be ascertained by the Trial Court after evaluating evidence---Case of accused was one of further inquiry, as such he was entitled to concession of bail---Accused was allowed bail in circumstances.

Muhammad Wasim Ali v. The State and others 2012 SCMR 387 rel.

Nadeem Iqbal Chaudhary for Petitioner.

Ch. Riaz Ahmad and Muhammad Naeem Bhatti for the Complainant.

Khalid Pervaiz Uppal, D.P.G. along with Basharat Ali, S.I. for the State.

2013 M L D 625

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD SHAHZAD---Petitioner

Versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No. 6858 of 2012/BWP, decided on 10th December, 2012.

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

---Ss.14(1)(b), 14(2) & 5, Sched.---Constitution of Pakistan, Art. 199---Decree for jactitation of marriage passed by Family Court---Constitutional petition filed directly against such decree---Maintainability---Constitutional petition would not be maintainable as alternate remedy of filing appeal in terms of S. 14(1)(b) of West Pakistan Family Courts Act, 1964, would be available with the petitioner.

Mst. Musarrat Sultana v. Bashir Ahmad and another PLD 1986 Lah. 189 rel.

Ch. Muhammad Shafique Piya for Petitioner.

2013 M L D 629

[Lahore]

Before Syed Iftikhar Hussain Shah and Rauf Ahmad Sheikh, JJ

Syed FARHAT GHAUS GILANI---Appellant

Versus

JUSTICE OF PEACE, RAJANPUR and 6 others---Respondents

I.C.A No.43 of 2012, decided on 19th September, 2012.

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

---Ss. 22-A & 22-B---Civil Procedure Code (V of 1908), O. XXXIX, R.2(3)---Law Reforms Ordinance (XII of 1972), S.3---Intra court appeal---Dispute over possession of land---Disobedience of injunction order---Complainant filing application before Justice of Peace for registration of F.I.R. without availing remedy of private complaint or an application under Order XXXIX, Rule 2(3), C.P.C---Propriety---Complainant (appellant) had filed a suit for specific performance of contract and interim injunction was granted in his favour by the civil court---Complainant filed application before Justice of Peace contending that accused persons (respondents) tried to take possession of disputed land by force in violation of the interim injunction and caused injuries to his tenants and extended threats---Justice of Peace dismissed application of complainant---Complainant filed constitutional petition and single Judge refused interference in the order of Justice of Peace on the ground that complainant had an efficacious remedy available to him in form of private complaint and could avail the same---Validity---Dispute was of civil nature regarding possession of land and if any injunction order was violated, complainant had efficacious remedy in form of an application under O. XXXIX, Rule 2(3), C.P.C---Complainant had alleged that accused persons had beaten his tenants but no medical certificate was appended with the constitutional petition---Station House Officer (S.H.O.) had reported that no cognizable offence was committed, therefore, Justice of Peace was justified in dismissing application of complainant---Single Judge had rightly held that there was factual controversy over possession of land, which could not be resolved in exercise of constitutional jurisdiction and that complainant had efficacious remedy in form of private complaint and complainant could avail the same---Complainant had made an attempt to culminate a dispute of civil nature into criminal proceedings---Intra court appeal was dismissed accordingly.

Muhammad Bashir v. S.H.O. PLD 2007 SC 539 and Rafqiue Bibi v. Muhammad Sharif and others 2006 SCMR 512 distinguished.

Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 ref.

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

----Ss. 22-A & 22-B---Application before Justice of Peace seeking directions for registration of F.I.R.---Suspicion regarding correctness of contents of said application---Effect---Justice of Peace, in such circumstances, could lawfully decline to issue directions for registration of the case.

Muhammad Faisal Bashir Chaudhary for Appellant.

2013 M L D 651

[Lahore]

Before Ali Baqar Najafi, J

Dr. Malik HAFEEZ UR REHMAN and 18 others---Petitioners

Versus

PAKISTAN MEDICAL ASSOCIATION, JHELUM through President and 5 others---Respondents

Writ Petition No.3255 of 2012, decided on 20th December, 2012.

Constitution of Pakistan---

----Arts.17 & 199---Constitutional petition---Maintainability---Freedom of association---Scope---Medical Association---Grievance of petitioners was that their names had been illegally excluded from voters' list, as they had deposited subscription fee well within time and delay in encashing the same could not be attributed to them---Validity---Right of freedom of association had been guaranteed under Art. 17 of the Constitution, to every citizen who was well within his right to form an association or union subject to any reasonable restrictions---Right to vote in such association was the right of basic nature of foremost importance---Such right could not be derogated on some technical grounds, debarring petitioner and others to cast their votes on the ground of late subscription---High Court had ample jurisdiction to safeguard fundamental rights of individuals as against societies/ associations---High Court directed respondents to incorporate 53 members in voters' list as shown in subscription list and termination letter was set aside as having been passed illegally---Petition was allowed accordingly.

Khawaja Waseem Humayun v. Registrar Co-operative, Punjab, Lahore and 3 others 2010 YLR 2562 rel.

Mrs.Kausar Iqbal Bhatti, Advocate High Court Bahawalpur v. Shafqat Atta and 25 others 2010 CLC 224; United Bank Limited Pensioners Welfare Association of Pakistan through President v. United Bank Limited through President and 5 others 2011 CLC 831; Mst.Umm-e-Roman v. Regulatory Authority Oil and Gas, Islamabad through Chairman and another 2009 MLD 759; Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCMR 928; Federation Government Employees' Housing Foundation through Director General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad PLD 2002 SC 1079 and 2011 SBLR Sindh 1249 distinguished.

Malik Abdul Ghafoor for Petitioners.

Mujeeb-ur-Rehman Kiani for Respondents Nos. 2 to 5.

2013 M L D 661

[Lahore]

Before Ch. Muhammad Younis, J

Mst. NAJMA PARVEEN---Appellant

Versus

GHULAM JANNAT and others---Respondents

Regular First Appeal No.87 of 2007, heard on 25th September, 2012.

Mental Health Ordinance (VIII of 2001)---

----Ss.32, 30 & 46---Petition for appointment of guardian and manager of mentally disordered person filed by the person's mother before Court of Protection---Contention of the wife of the said person was that findings of the Court of Protection were erroneous as her husband was not mentally disordered---Validity---Court examined the person and medical evidence was produced to prove that he was mentally disordered---Medical Board had unanimously compiled report and the same was exhibited in evidence---Doctor who appeared in the witness box and was subjected to cross-examination was not an interested witness and report of the Medical Board was enough to prove the illness of the person---Court of Protection had to keep into consideration the welfare of the mentally disordered person and the mother was the best person to take care of her son as she had no adverse interest against him---No illegality existed in the impugned order and the mother was rightly appointed the manager of the property of the mentally disordered person---Appeal was dismissed, in circumstances.

Mian Saeed Ahmed for Appellant.

Khalid Ibn-e-Aziz for Respondents.

Date of hearing: 25th September, 2012.

2013 M L D 674

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

SHANSHAH SHAMIL PARACHA---Petitioner

Versus

EX-OFFICIO JUSTICE OF PEACE and others---Respondents

Writ Petition No.19374 of 2012, decided on 19th December, 2012.

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

----Ss.22-A, 22-B, 154, 195 & 476---Constitution of Pakistan, Art.199---Constitutional petition---Application filed before Justice of Peace without first approaching the concerned Station House Officer (S.H.O.)---Legality---Jurisdiction of Justice of Peace to issue directions for registration of case concerning allegedly fake document given in court---Scope---Accused/petitioner, who was an advocate, was alleged to have cheated the court by issuing a fake certificate to the effect that his client had been granted bail with effect from a particular date---Complainant/respondent filed application before Justice of Peace under Ss. 22-A & 22-B, Cr.P.C, which application was allowed and concerned Station House Officer was directed to record version of complainant and register an F.I.R.---Accused contended that due to negligence of the court reader he issued the certificate in question with bona fide belief that his client was granted bail from a particular date, and that complainant did not file any application before concerned Station House Officer (S.H.O.) prior to approaching the Justice of Peace---Validity---Certificate issued by accused was under a bona fide belief that bail was granted by the court and such certificate was not issued to cheat the court---Accused was member of the legal fraternity and did not have any history of cheating the court---Record did not show that complainant had first moved concerned Station House Officer (S.H.O.) before approaching the Justice of Peace---Justice of Peace did not refer the complainant to the court concerned, where alleged offence was committed, for taking necessary action under Ss.195 & 476, Cr.P.C.---Issuing directions for registration of case on the basis of a certificate issued by a counsel in court was not within the domain of the Justice of Peace---Order passed by Justice of Peace was illegal and of no legal consequence---Constitutional petition was allowed and impugned order of Justice of Peace was set aside with the observation that provisions of S. 154, Cr.P.C. were blatantly misused by the public, therefore, it was advisable that opposite party was also heard (by Justice of Peace) before any direction were issued to the concerned Station House Officer (SHO) for recording the version under S. 154, Cr.P.C.

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

----Ss. 22-A, 22-B & 154---Availing of remedy under Ss. 22-A & 22-B, Cr.P.C.---Procedure---Aggrieved person was supposed to lay information of commission of cognizable offence before incharge of police station (first) and if he refused or failed to receive such information, then doors of Justice of Peace were to be knocked---Prior to laying information before Station House Officer (S.H.O.) remedy under Ss. 22-A & 22-B, Cr.P.C. could not be availed.

Muhammad Azar Siddique for Petitioner.

Wali Muhammad Khan, A.A.-G., Abdul Ghafoor, A.S.-I. and Abdul Rauf, A.S.-I. for other Respondents.

Mian Faiz Ali for Respondent No.3.

2013 M L D 701

[Lahore]

Before Abdus Sattar Asghar and Malik Shahzad Ahmad Khan, JJ

NEELAM KHAN and others---Petitioners

Versus

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

Writ Petitions Nos.11495, 11721 and 11818 of 2012, heard on 13th September, 2012.

Constitution of Pakistan---

----Art. 199---General Clauses Act (X of 1897), S. 21---Constitutional petition---Educational Institution---Medical College---Locus poenitentiae, principle of---Applicability---Petitioners had been admitted to the Medical College for the qualification of BDS and had completed one academic year; when the Medical College sent only a list of fifty students out of ninety for registration for annual examinations on the ground that they had been allotted a maximum of fifty seats by University of Health Sciences and Pakistan Medical and Dental College---Contention of the petitioners was that, inter alia, they had completed an entire academic year, paid the fees and were not aware of this dispute between the College and authorities---Validity---Record showed that Medical College had deposited registration fee for ninety students to the Pakistan Medical and Dental Council and University of Health Sciences vide cheques which were encashed by the recipients---Acceptance of said registration fee pertaining to ninety students was not denied by the authorities as against their Regulations which certainly fell within the ambit of principle of locus poenitentiae---If the University of Health Sciences and Pakistan Medical and Dental Council and the Medical College had indulged in correspondence with regard to the difference in calculation of seats, the same was neither brought to the knowledge of petitioners (students) nor their parents throughout the academic year and therefore, it was not a case of bona fide mistake ; and it was hard to believe that authorities acted bona fide with due care---Annual allocation of seats for the course were neither furnished in the prospectus or advertised in newspapers by all three authorities; therefore petitioners could not be held responsible for their wilful negligence---According to S. 21 of General Clauses Act, 1897; power to amend, vary or rescind any notification, order, rule or by-law could only be exercised before any decisive step had been taken---Authorities could not decline registration of students just a couple of weeks before annual examination---Since petitioners had completed academic year without being apprised of any technical dispute with regards to allocation of seats between the three authorities refusal to grant relief to petitioners would cause them irreparable loss and hardship---Petitioners deserved one time dispensation in relaxation of regulations since allowing them relief did not affect rights of any third party---High Court directed the authorities to register all ninety students of BDS course to sit in the examination and further directed not to interrupt the study plans of petitioners in future---Constitutional petitions were allowed, in circumstances.

Pakistan through the Secretary Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Pakistan Medical and Dental Council v. Ziauddin Medical University and others PLD 2007 SC 323 and Tahmasub Faraz Tayyab and 13 others v. Vice-Chancellor, University of Health Science, Lahore and 3 others PLD 2005 Lah. 261 rel.

Muhammad Suleman Bhatti and Muhammad Ramzan Khalid Joya for Petitioners.

Javed Iqbal Ansari, Standing Counsel.

Mehr Nazar Abbas Chawan, A.A.-G.

M.A. Harris for Respondent No.1.

Abdus Salam Alvi for Respondent No.3.

Abdus Sattar Guraya for Respondents Nos. 5 and 8.

Date of hearing: 13th September, 2012.

2013 M L D 713

[Lahore]

Before Shujaat Ali Khan, J

KARAM HUSSAIN KHAN and others---Petitioners

Versus

SAIRAN BIBI and others---Respondents

Civil Revision No.519-D of 2000/BWP, decided on 18th December, 2012.

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

----O.XLI, R.23 & S.115---Revision---Remand of case---Principle---Suit was filed in year, 1992 and revision petition was pending for the last more than a decade---Petitioners sought remand of case to Lower Appellate Court for decision afresh---Validity---High Court declined to remand the matter to Lower Appellate Court on the ground that it did not dilate upon entire evidence of parties, especially when the same could be decided on the basis of material available on record.

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

----S.42---Limitation Act (IX of 1908), Art.120---Suit for declaration---Limitation---Judgment at variance---Plaintiffs assailed mutation in question on the plea that it was Benami transaction and their predecessor-in-interest was the real owner---Trial Court decreed the suit in favour of plaintiffs but Lower Appellate Court dismissed the same being barred by limitation---Validity---Mutation, subject matter of the suit, was attested in year, 1967 and predecessor-in-interest of plaintiffs could file suit challenging title of predecessor-in-interest of defendants within six years, whereas suit was instituted by plaintiffs on 18-9-1992, meaning thereby that the suit was filed after 35 years of attestation of mutation in question---Though in headnote of plaint, plaintiffs tried that they were only seeking correction of revenue record but in pith and substance they had challenged mutation in question on the ground of being a Benami transaction---Suit filed by plaintiffs was rightly held by Lower Appellate Court, as time barred, as the suit was filed beyond stipulated period of six years---High Court declined to differ with conclusion arrived at by Lower Appellate Court---Revision was dismissed in circumstances.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Murad v. Syed Muhammad and 2 others 2012 YLR 2115; Town Committee, Jalalpur Pirwala through Chairman v. Malik Mehr Baskhsh and another 2007 YLR 82 and Abdul Karim v. Alam Sher and another 2003 YLR 487 distinguished.

Mst. Sharifan Bibi and others v. Abdul Majeed Rauf and others PLD 2012 Lah. 141; Maj. General Dr. Asif Ali Khan v. Niaz Ali Khan and 2 others 2010 YLR 3214; Kaleem Hyder Zaidi v. Mehmooda Begum and 4 others 2006 YLR 599 and Ghulam Murtaza v. Mst. Asia Bibi and others PLD 2010 SC 569 ref.

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

----S. 13---Punjab Pre-emption Act (I of 1913), S.21---Pre-emptor, right of---Transfer of suit land---Principle---Not necessary that pre-emptor should succeed in suit for possession through pre-emption, rather he can get transfer land in question, after paying sale consideration to vendee without intervention of court.

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

----Arts.117 & 120---Fact---Onus to prove---Principle---Party that alleges a particular fact is bound to prove the same.

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

----O.XLI, R.31---Judgment of Appellate Court---Evidence, not discussed---Effect---Not necessary to discuss evidence of parties in verbatim rather Appellate Court is required to give its findings on issues, in view of material available on record.

Sardar Muhammad Hussain Khan for Petitioners.

Mian Ahmad Nadeem Arshad for Respondents.

Date of hearing: 18th December, 2012.

2013 M L D 739

[Lahore]

Before Rauf Ahmad Sheikh, J

Mst. RUKHSANA---Petitioner

Versus

Mian IMTIAZ ALEEM 8 others---Respondents

T.A. No.68-C of 2012, decided on 25th September, 2012.

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

----S. 24---Application for transfer of civil suit---Political influence, family status or feared apprehensions no grounds for seeking transfer of suit---Defendants (respondents) were alleged to have grabbed property belonging to the plaintiff (petitioner) and her sons---Plaintiff filed two suits but subsequently sought transfer of said suits to another court of competent jurisdiction in the district with the contentions that one of the defendants, who was a political figure with influence, was extending threats to the plaintiff, which made it impossible for her to pursue the suits; that she was an illiterate "pardah" observing lady and it was difficult for her to travel to the civil court where case was presently being contested, and that, her convenience had to be kept in mind---Validity---No doubt plaintiff was a female but there were five females from the defendant side also---Political figures could not exercise any influence on Judicial Officers because they were under an obligation to decide the case on merits and strictly in accordance with the law---Status of families of the parties had no bearing on the outcome of suits---Plaintiff could move an application before police to seek protection through court in case she had any genuine apprehension---Case could not be transferred on basis of self-concocted or feared apprehensions---Petition for transfer of suit was dismissed accordingly.

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

----S. 24---Power of court to transfer civil suit---Scope---Power under S.24, C.P.C should be exercised with due care and diligence because frequent transfer of cases was one of the main causes for delay in administration of justice---Suit could not be transferred from one district to another only on the basis of self-concocted or feared apprehensions.

Mehr Ishfaq Ahmad Utra for Petitioner.

Muhammad Ashraf Qureshi for Respondents.

2013 M L D 764

[Lahore]

Before Mehmood Maqbool Bajwa, J

DEFENCE HOUSING AUTHORITY, LAHORE through Secretary---Petitioner

Versus

Miss BISMAH ALI and 4 others---Respondents

Civil Revision No.1701 of 2010, decided on 7th February, 2012.

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

----O.XVII, R.3---Scope and applicability of O.XVII, R.3, C.P.C.---Non-production of evidence after adjournments---Effect---Suit of plaintiff was dismissed by Trial Court after closing of evidence under O.XVII, Rule 3, C.P.C.---Appellate court set aside such order of Trial Court and remanded the case---Validity---Provisions of O. XVII, Rule 3, C.P.C. were penal in nature and in order to attract such penal provisions, time must be granted by the Trial Court to a party for doing certain acts; which were, to produce evidence, to cause attendance of their witnesses or to perform any other act necessary to the further progress of the suit---Said provisions required that time must be granted by the Trial Court at the request of the defaulting party---If time had not been granted at the instance of the party against whom order was required to be made, then the penal provisions of O.XVII, Rule 3, C.P.C. would not be applied against such party---Plaintiffs were provided last opportunity by Trial Court and said order was silent as to whether the evidence of plaintiff was in attendance or not on the said date---Order in question was not suggestive of any request ever made at the instance of the plaintiff for an adjournment or an opportunity to produce evidence and showed adjournment by granting last opportunity as per pervious order---Date on which the evidence of plaintiff was closed was not given at the instance of the plaintiff, as such, undeniably, the provisions of O.XVII, Rule 3, C.P.C. were not attracted to the case---Mere fact that last opportunity was granted to the plaintiff for production of evidence would not be sufficient to apply the penal provisions as time was not granted at the instance of the plaintiffs.

Munawar Hussain v. Additional District Judge, Jhelum and 3 others 1998 SCMR 1067; Mrs. Khalida Begum v. Lahore Development Authority, through Director General LDA Plaza and another 2002 YLR 1687; Muhammad Asghar, v. Muhammad Ashraf and 6 others 2006 YLR 1166; Mian Muhammad Rashid and another v. Mushtaq Ahmad and 14 others 2006 YLR 3278 and Maqbool Ahmed v. Faryad Ali PLD 2011 Lah. 217 distinguished.

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

----O.XVII, R.3---Last opportunity to produce evidence---Scope---Provisions of O.XVII, Rule 3, C.P.C. were penal in nature and in order to attract said penal provision, time must be granted by the court to a party for doing certain acts, which were, to produce evidence, to cause attendance of their witnesses or to perform any other act necessary to the further progress of the suit---Mere fact that last opportunity was granted to the defaulting party for production of evidence would not be sufficient to apply the penal provisions of O.XVII, Rule 3, C.P.C. if time was not granted by the Trial Court for production of evidence at the instance of the defaulting party.

Tariq Masood for Petitioner.

Ijaz Lashari for Respondents.

2013 M L D 775

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

AZAM KHAN NIAZI---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary, Local Government and 2 others---Respondents

Writ Petition No.6005 of 2012, decided on 12th March, 2012.

Punjab Land Use (Classification, Reclassification and Redevelopment) Rules, 2009---

----Rr. 60 & 67---Provincial Motor Vehicles Rules, 1969, R. 253-A---Constitution of Pakistan, Art. 199---Constitutional petition---Petitioner was granted permission to construct bus stand by Transport Authority and subsequently Tehsil Municipal Administration issued a demand notice to petitioner for commercial conversion fee, and upon non-payment of the same, sealed the premises---Contention of the petitioner was that the approval for construction of bus stand was granted on annual and not permanent basis and therefore, one time commercialization fee was not justified and the same may be levied on a yearly basis---Validity---Said contention had no force as no such rule was available for payment on conversion basis---Once a piece of land had been converted for commercial purposes on payment of conversion fee, the status of the same was not affected irrespective of the fact that the commercial or industrial activity was conducted there or not---Petitioner having started construction of the bus stand without payment of conversion fee, the authorities were fully justified to seal the premises under the law---Constitutional petition, was dismissed, in circumstances.

Aftab Ahmad Bajwa for Petitioner.

2013 M L D 778

[Lahore]

Before Abdus Sattar Asghar, J

Dr. MUKHTIAR HUSSAIN---Petitioner

Versus

MUHAMMAD ASLAM and others---Respondents

Writ Petition No.204 of 2012/BWP, decided on 12th March, 2012.

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

----S. 265-K---Illegal Dispossession Act (XI of 2005), Ss. 5 & 3---Constitution of Pakistan, Art. 199---Constitutional petition---Application filed under S. 265-K, Cr.P.C., disposal of-Procedure---Accused filing application under S. 265-K, Cr.P.C. seeking acquittal from a complaint for illegal possession of property---Trial Court entering into investigation by calling record from Tehsildar for purposes of disposing of said application---Legality---Law did not permit the Trial Court to enter into investigation to collect evidence for the decision of the application under S. 265-K, Cr.P.C. after taking cognizance of the case, rather such application should be decided on the basis of material already produced by the complainant and available on record---Decision upon an application under S. 265-K, Cr.P.C. on the basis of material collected by Trial Court itself after taking cognizance of the matter would amount to depriving the complainant from proving his case through oral and documentary evidence---Trial Court had exceeded its lawful authority by entering into investigation---Constitutional petition was allowed and order of Trial Court was set aside.

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

----S. 3 & Preamble---Purpose and scope of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005 was a special legislation to protect the lawful owners and occupiers of immovable property from their illegal or forcible dispossession therefrom by property grabbers.

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

----S. 265-K---Power of Court to acquit accused at any stage---Scope---Authority vested in court under S. 265-K, Cr.P.C was an exception to the procedure in the trial and was to be construed strictly.

Hashim v. Gul Muhammad and 2 others 2009 PCr.LJ 36 rel.

Habib Ahmed Paras for Petitioner.

Hafiz Shahid Nadim Kahloon for Respondents.

2013 M L D 798

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD RAMZAN alias KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4817/B of 2012, decided on 22nd November, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/148/149---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Case of two versions---Delay in lodging F.I.R.---Non-disclosure of injuries sustained by opposite side---Accused allegedly raised a lalkara and held the accused in his hand, whereafter co-accused persons gave hatchet and stick blows to the deceased---F.I.R. was lodged with a delay of about six hours---Accused was admittedly empty handed---Cross-version case was already under investigation---Accused persons nominated in the F.I.R. were also injured during the occurrence and they were medically examined on the same day-Injuries sustained by accused persons were not mentioned by the complainant---Case was of two versions and it would be determined only after recording evidence and appraisal thereof as to who had in fact launched the aggression---Accused was no more required for further investigation---Although charge had been framed but statement of even a single witness had not been recorded so far---Case was one of further inquiry---High Court allowed bail to the accused with the observation that allegation of raising 'lalkara' and holding someone in the arms was usually levelled in our society by throwing a wider net, therefore, such accusation should always be scrutinized with care and caution.

Ali Sheharyar v. The State 2008 SCMR 1448 ref.

Shoukar Ilahi v. Javed Iqbal and others 2010 SCMR 966; Muhammad Ibrahim alias Bawa v. The State 2007 MLD 1056 and Gul Bahar and another v. The State 2002 PCr.LJ 1277 distinguished.

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

----Ss. 497 & 221---Bail---Framing of charge---Effect---Where case for grant of bail was made out on merits, then same could not be withheld merely due to framing of charge.

Abid Hussain Bhutta for Petitioner.

Muhammad Amjad Rafiq, Deputy Prosecutor General with Shah Nawaz, S.-I. for the State.

Ch. Khalid Mehmood Arain for the Complainant.

2013 M L D 823

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

Mst. JAMEELA BIBI---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Criminal Miscellaneous No.2221-H of 2012, decided on 15th November, 2012.

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

----S. 491---Habeas corpus petition for recovery of minor from father---Jurisdiction of High Court under S. 491, Cr.P.C.---Scope---Jurisdiction of High Court under S. 491, Cr.P.C. for recovery of minor was to be exercised sparingly and might be undertaken only in exceptional and extra-ordinary cases---No exceptional and extraordinary circumstances warranting institution of present petition were found---Mother (petitioner) neither gave date of her divorce nor mentioned the exact and correct date of removal of minor from her lawful custody---Present petition apparently had been filed just to extort money from the father of the minor in the form of allowance of minor---Petition for recovery of minor was dismissed in circumstances.

Mst. Nadia Perveen v. Mst. Almas Noreen and others PLD 2012 SC 758 rel.

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

----S. 491---Guardians and Wards Act (VII of 1890), S.12---Habeas corpus petition for recovery of minor from father---Jurisdiction of High Court under S.491, Cr.P.C.---Scope---Jurisdiction of High Court under S.491, Cr.P.C. for recovery of minor was to be exercised sparingly and such exercise might be undertaken only in exceptional and extra-ordinary cases of real urgency, keeping in view that even a Guardian Judge had the requisite power of recovery of minors and regulating their interim custody.

Mst. Nadia Perveen v. Mst. Almas Noreen and others PLD 2012 SC 758 rel.

Ms. Safia Naurain Chaudhry for Petitioner.

Muhammad Ishaq, Deputy Prosecutor General and Muhammad Sarwar, A.S.-I. with record.

2013 M L D 833

[Lahore]

Before Abdul Sami Khan, J

EHSAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.18528-B of 2012, decided on 4th January, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498---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---Ad interim pre-arrest bail, confirmation of---Non-attribution of any injury---Non-usage of weapon during occurrence---No criminal antecedents---Sexagenarian accused---Effect---Accused was alleged to have raised a lalkara which prompted the co-accused to kill the deceased and cause injuries to the injured victim---Accused was not attributed any injury to the deceased or to the injured victim and he only allegedly raised a lalkara---Accused was father of the main accused and the complainant had involved as many as seven persons in the present case, therefore, possibility could not be ruled out that complainant had spread the net wide to entangle maximum number of persons from the accused's side---Although accused was alleged to be armed with a weapon but admittedly he did not use the same for causing any injury to anybody despite having ample oppor-tunity---Accused was a previous non-convict and was never involved in cases similar to the present one---Accused was sixty years of age---Investigation of the case was complete---Ad interim pre-arrest bail already allowed to accused was confirmed in circumstances.

Rao Javed Khurshid for Petitioner.

Nisar Ahmad Virk, Deputy Prosecutor-General and Muhammad Aslam, S.-I. for the State.

Tasawar Naved Gondal for the Complainant.

2013 M L D 843

[Lahore]

Before Mazhar Iqbal Sidhu, J

RASHID ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.16638-B of 2012, decided on 20th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/148/149/109---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, abetment---Bail, grant of---Further inquiry---General/collective allegation---Non-attribution of any specific injury---Enmity between parties admitted---Probability of false implication---Effect---Accused and co-accused persons allegedly launched an attack on the complainant party, which resulted in death of complainant's son---Although F.I.R. was promptly lodged but no specific or particular injury on the person of the deceased had been attributed to accused---Only general and collective allegation of causing fire shot injuries had been levelled against accused---Successive investigations revealed that accused did not cause any injury to the deceased and he was only present at the spot without any weapon---Enmity between parties was admitted---Involvement of accused on account of malice and afterthought of the complainant party could not be ruled put---Case was one of further inquiry---Accused was admitted to bail accordingly.

Ehsan Ullah v. The State 2012 SCMR 1137 rel.

Ch. Ameen Rehmat for Petitioner.

Ch. Imtiaz Ahmad Loona for the Complainant.

Ch. M. Akhlaq, D.P.-G. with Imtiaz S.I. for the State.

2013 M L D 849

[Lahore]

Before Sagheer Ahmad Qadri and Syed Muhammad Kazim Raza Shamsi, JJ

NATIONAL ACCOUNTABILITY BUREAU through Prosecution General Accountability, Islamabad---Appellant

Versus

KHALID AHMAD KHAN KHARRAL---Respondent

Criminal Appeal No.1004 of 2001, heard on 29th November, 2012.

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

----S.9(a)(iv)---Illegal pecuniary advantage, acquiring of---Mens rea, proof of---Principles---Mandatory for prosecution to prove intention on the part of accused that he, by corrupt, dishonest or illegal means obtained for himself or for his spouse or dependent or for any other person any property, valuable things or pecuniary advantage---All such acts or omissions, if constituting offence are essentially required proving of mens rea on the part of accused by prosecution.

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

----S.14(a)---Presumption against accused accepting illegal gratification---Shifting of onus, principle of---Applicability---Certain presumptions are provided under S.14(a) of National Accountability Ordinance, 1999, against accused for certain acts and omissions constituting offences but initial burden to make out a reasonable case against accused charged under any of the offences under National Accountability Ordinance, 1999, always lies on prosecution and thereafter it shifts towards accused.

Mansur-ul-Haque v. Government of Pakistan PLD 2008 SC 166 and Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division Islamabad and others PLD 2001 SC 607 rel.

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

----Ss.9(a)(iv) & 32---Corruption and corrupt practices---Illegal pecuniary advantage, acquiring of---Appeal against acquittal---Appreciation of evidence---Mens rea---Proof---Another view of evidence---Scope---Accused was charged under S. 9(a)(iv) of National Accountability Ordinance, 1999, for awarding contract for construction of a monument and Trial Court after recording of evidence acquitted the accused---Validity---None of prosecution witnesses stated even a single word against conduct, behavior as well as criminal intent of accused, if he ever had tried to oblige contractor in any manner while granting contract---No evidence was available on record in respect of any monetary benefit extended by accused in favour of contractor himself or he himself got any such illegal gains as a result of grant of contract---Charge under S. 9(a)(iv) of National Accountability Ordinance, 1999, was rightly held not proved by Trial Court---Presumption of innocence was always in favour of accused at trial stage and when court of competent jurisdiction had passed order of acquittal, such presumption became double and to set aside the same unimpeachable evidence was required---Trial Court after applying its judicious mind acquitted accused and once judgment of acquittal had been passed by competent court of jurisdiction after proper and correct appraisal of evidence, same could not be interfered with merely on the ground that on re-analysis of evidence another view could be taken---High Court declined to interfere in judgment of acquittal passed by Trial Court---Appeal was dismissed in circumstances.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Haroon-ur-Rasheed Cheema, Addl. D.P.G. for Appellant.

Sardar Khurram Latif Khan Khosa for Respondent.

Date of hearing: 29th November, 2012.

2013 M L D 869

[Lahore]

Before Shahid Hameed Dar, J

Syed AZHAR ABBAS and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.15737-B of 2012, decided on 26th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/148/149---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Medical evidence corroborating allegations in the F.I.R.---Long abscondence---Effect---Accused persons allegedly fired at and killed the deceased persons---Legal heir of one of the deceased allegedly submitted affidavit in favour of accused persons before the investigating officer, who on basis of such affidavit opined that accused persons were innocent---Post mortem report of deceased persons revealed that they received dozens of firearm injuries at the hands of accused---Accused persons absconded after the occurrence and remained proclaimed offenders for six years, for which they offered no explanation---Factum of unexplained abscondence would extinguish some of the normal rights of accused persons guaranteed under substantive as well as procedural law---F.I.R. had been lodged against accused persons for submitting a forged affidavit on behalf of a legal heir of one of the deceased---Even if said affidavit was considered to be genuine, benefit of the same could not be extended to accused persons as legal heir, who had allegedly submitted the same, had not witnessed the incident at the spot----Opinion of Investigation Officer was nothing but an expression full of arbitrariness, capriciousness and perversity---Offence allegedly committed by accused persons entailed capital punishment and fell within the prohibitory clause of S. 497(1), Cr.P.C.---Bail application of accused persons was dismissed in circumstances.

Muhammad Inayatullah Cheema for Petitioners.

Ms. Muqaddas Tahira, Addl: Prosecutor General Punjab along with Nawaz S.I. with record.

Khawaja Mehmood Ahmad for the Complainant.

2013 M L D 874

[Lahore]

Before Shahid Hameed Dar, J

Mst. RUBINA QURESHI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1681/B of 2012, decided on 31st October, 2012.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Ad interim pre-arrest bail, confirmation of---Cheque issued as a guarantee instrument---Dispute of civil nature---Allegation against the accused-lady was that she issued a cheque to the complainant in the backdrop of an agreement to sell, which was dishonoured on presentation due to insufficient funds---Agreement was executed between the parties, wherein it had been mentioned that accused issued the cheque in question as a guarantee instrument to the complainant---Fact that cheque was a guarantee instrument had been impliedly admitted by the complainant in another agreement executed between the parties---Before complainant reported present matter to the police, accused had already filed civil suits qua matter in issue against the complainant, which were pending adjudication---Controversy between the parties was of civil nature and could only be resolved by the civil court, where suits filed by accused were already pending---Question as to whether cheque in question was a guarantee instrument or not and what repercussions would it have on the merits of the trial of the accused, was a significant factor which could only be gone into by the Trial Court after recording evidence at trial---Accused was a lady, therefore, she was covered under S. 497(1), Cr.P.C. and her involvement in the present case due to calculated or ulterior motive of complainant could not be ruled out---Ad interim pre-arrest bail of accused was confirmed in circumstances.

Arif Majeed for Petitioner.

Muhammad Usman, Deputy Prosecutor General Punjab.

Abdul Wahid Babar for the Complainant.

Aftab S.I. with record.

2013 M L D 891

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

GHULAM ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.14569-B of 2012, decided on 1st November, 2012.

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

----S. 498---Penal Code (XLV of 1860), Ss. 405/406---Criminal breach of trust---Ad-interim pre-arrest bail, confirmation of---Entrustment in pursuance of a business transaction---Civil liability---Delay in lodging F.I.R.---Effect---Allegation against accused was that he by way of committing criminal breach of trust usurped/embezzled an amount of Rs. 750,000, belonging to the complainant---F.I.R. was lodged with a delay of four months and eight days without any plausible explanation---Record revealed that entrustment of amount was in pursuance of a business transaction, whereas, law clearly recognized a distinction between payment/investment of money and entrustment of money/property---Prima facie, facts of the case did not satisfy the ingredients contained in S. 405, P.P.C as such provisions of S. 406, P.P.C were not attracted to the present case---Investigating Officer had stated that allegation qua Rs.500,000 was found false and dispute between the parties was only to the extent of Rs.200,000 and that too over a business transaction---Prima facie, present matter pertained to civil liability, for which the proper forum was the civil court---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

Shahid Imran v. The State and others 2011 SCMR 1614; State of Gujarat v. Jaswant-Lal-Nathalal AIR 1968 SC 700 and Punjab National Bank and others v. Surrendra Prasad Sinha 1994 PSC 768 rel.

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

----S. 498---Pre-arrest bail---Prerequisite---Mala fide was a sine qua non for grant of pre-arrest bail.

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

----S. 498---Pre-arrest bail, grounds for---Malice---Scope---Court could evaluate the element of malice from the facts and circumstances of the case.

Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97 and Syed Muhammad Firdaus and others v. The State 2005 SCMR 784 rel.

Rao Tariq Mehmood for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General.

Ch. Farooq Mahmood Kamboh for the Complainant.

Muhammad Irfan, S.I. with police record.

2013 M L D 897

[Lahore]

Before Abdul Sami Khan, J

ABID HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.82-B of 2013, decided on 21st January, 2013.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 376, 337-A & 338-C -Rape, shajjah, isqat-i-janin---Bail, grant of---Further inquiry---Delay of fifteen days in registration of F.I.R. not explained by the complainant---No allegation of rape against accused in the F.I.R.---Alleged victim submitted affidavits in favour of co-accused persons against whom serious allegations were made in the F.I.R.---Such fact alone was sufficient to bring the case of accused under the ambit of further inquiry---Accused was not required for further investigation---Accused was granted bail in circumstances.

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

----S. 497-Bail---Benefit of doubt---Scope---Benefit of doubt could be extended to accused even at bail stage.

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

---S. 497-Bail---Heinousness of offence as a ground to refuse bail---Validity---Mere heinousness of offence was no ground to refuse bail.

Javaid Iqbal Raja for Petitioner.

Ch. Muhammad Akram Tahir, Deputy District Public Prosecutor for the State along with Zulfiqar S.I.

2013 M L D 904

[Lahore]

Before Abdul Sami Khan, J

BABAR MASIH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.18179-B of 2012, decided on 16th January, 2013.

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

----S.497(2)---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, grant of---Further inquiry---Rule of consistency---Affidavits of exoneration in favour of accused---Effect---Allegation against six accused persons for firing indiscriminately at the deceased---No specific role assigned to any of the accused persons---Nothing was recovered from accused during investigation---Wife and injured witness submitted affidavits in favour of accused---Accused was found innocent by the police---Co-accused persons had already been allowed bail---Vicarious liability of accused for the offence was to be considered by the Trial Court after recording of evidence---Accused was a previous non-convict-Investigation of the case qua accused was complete---Case was one of further inquiry into guilt of accused-Accused was admitted to bail accordingly.

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

----Ss. 497 & 173---Reliance on police report/opinion at bail stage---Scope---Opinion/report of police finding accused as innocent based on affidavits submitted by wife of deceased and injured witness---Such opinion of police could be considered at bail stage.

Aurangzeb Chaudhary-I for Petitioner.

Nisar Ahmad Virk, Deputy Prosecutor-General for the State and Sherbaz, S.I. with record.

Ch. Ishtiaq Anwar for the Complainant.

2013 M L D 939

[Lahore]

Before Ijaz Ahmad, J

MUHAMMAD IKRAM---Petitioner

Versus

Mst. NABEELA NASIM CHEEMA and 2 others---Respondents

Writ Petition No.8684 of 2010, decided on 6th April, 2012.

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

----Ss. 17, 5 & Sch.---Dowry and Bridal Gifts (Restriction) Rules, 1976, R. 3---Qanun-e-Shahadat (10 of 1984), Preamble---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dower was decreed against husband concurrently----Contentions of the husband (petitioner) were that the list of dowry articles was fabricated and was not prepared at the time of marriage and that under Rule 3(1) of the Dowry and Bridal Gifts (Restriction) Rules, 1976 value of gold ornaments ordered to be returned had to be assessed at the rate prevailing when said articles were purchased---Validity---Husband's reliance on Dowry and Bridal Gifts (Restriction) Rules, 1976 was of no avail as husband could not be allowed to pay the price of articles of dowry at the rate existing at the time of marriage---Rule 3(1) of the Dowry and Bridal Gifts (Restriction) Rules, 1976 was meant to ascertain value of dowry articles to bring the same within or without the limits of criminal liability when an offence was alleged to have been committed---Price to be paid in alternative of return of the articles was the one on the day of passing of final decree which was to be ascertained by the executing court---Provisions of Qanun-e-Shahadat, 1984 were not applicable to proceedings before the Family Court under S.17 of the West Pakistan Family Courts Act, 1964 and exclusion of such provisions only released the Family Court of the technicalities of law of evidence in order to ensure speedy adjudication and precedence of substantive justice to the technicalities of law; and did not absolve the Family Court of its responsibility to weigh, gauge and ascertain the veracity and standard of evidence---Wife having proved her case, constitutional petition was dismissed.

Muhammad Javed Iqbal v. Mst. Tahira Naheed and others 2002 CLC 1396; Mst. Allah Rakhi v. Tanvir Iqbal and others 2004 SCMR 1739; M. Jaffar v. Additional District Judge and others 2005 MLD 1069 and Muhammad Habib v. Mst. Safia Bibi and others 2008 SCMR 1584 rel.

Samia Bano for Petitioner.

Sohail Arif Sindhu for Respondent No.1.

2013 M L D 947

[Lahore]

Before Amin-ud-Din Khan, J

Hafiz RIAZ AHMAD and others---Petitioners

Versus

KHURSHED AHMAD and others---Respondents

Civil Revision No.138 of 2000, decided on 29th November, 2011.

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

----O. XIV, R. 1---Non-framing of proper issue by Trial Court, plea of---Validity---Purpose of framing issues would be to facilitate parties with regard to matter in issue---Parties would be supposed to lead evidence both oral and documentary in support of pleadings---Pleadings of parties would ever be in their mind during trial, thus, a party could not claim after a considerable delay that by not framing proper issue, he was misled and could not produce evidence in accordance with his pleadings.

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

----O. XIV, R. 1 & O. XLI, R. 23---Non-framing of issue on question of easement raised in written statement by defendant---Remand of case sought by defendant on such ground at revision stage before High Court---Validity---Record did not show that at the time of framing of issues by Trial Court, defendant had raised objection with regard to non-framing of such issue---Defendant had raised such question in his pleadings, which were in his mind at the time of leading evidence, thus, he could not claim to have been either misled or prejudiced by non-framing of such issue---Remand of case after 20 years would be absolutely not permissible under law---High Court dismissed revision petition in circumstances.

Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCMR 4 and Mehr Din v. Dr. Bashir Ahmad Khan and 2 others 1985 SCMR 1 rel.

(c) Easements Act (V of 1882)---

----S. 15---Constitution of Pakistan, Arts. 23 & 24---Right of easement by prescription or necessity---Essential proof---Mere to be user for innumerable years would not confer prescriptive right of easement, rather same must be openly enjoyed by any person claiming title thereto as an easement and as of right without interruption for 20 years---Person claiming prescriptive right of easement would be bound to prove same without any discrepancy in accordance with law---Plaintiff claiming passage over land of defendant as right of easement as necessity would have to prove that if such right was not given to him, then his property would be ruined---Where another road was available leading to plaintiff's property, then right of easement as necessity would not be available to him---Principles.

Sardar Muhammad Hussain Khan for Petitioners.

Ch. Naseer Ahmad for Respondent No.1.

Ahmad Mansoor Chishti for Respondent No.4.

Date of hearing: 29th November, 2011.

2013 M L D 955

[Lahore]

Before Amin-ud-Din Khan, J

FAQEER BAKHSH---Petitioner

Versus

KHAN MUHAMMAD---Respondent

Civil Revision No.668 of 2000, decided on 19th January, 2012.

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

----S.115---Revision before High Court---Non-appending requisite record with petition---Validity---Petitioner would be bound to annex with revision petition, pleadings, evidence (oral and documentary) and judgments/decrees of courts below---Revision could be dismissed for non-filing therewith requisite record, but High Court in exceptional cases could decline to do so---Principles.

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

----Arts. 59, 60 & 133---Comparison of defendant's questioned thumb impression with his admitted thumb impression through Handwriting Expert by order of court---Both such thumb impressions not be similar in opinion of such Expert, who filed his report in court, which recorded his statement and he was cross-examined by plaintiff---Plaintiff's application for allowing him to produce another Expert in rebuttal of such expert evidence produced by defendant---Validity---Report of Finger Print Expert for being an opinion would not be binding upon the court---Plaintiff in application had not shown the name of another expert---Plaintiff had failed to gain anything in cross-examination from such expert, thus, there was no necessity to allow him to produce another Expert to give report and evidence to rebut evidence of Expert produced in court---Such application was dismissed in circumstanced.

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

----S.12---Transfer of Property Act (IV of 1882), S.54---Stamp Act (II of 1899), S.35---Contract Act (IX of 1872), S.2---Suit for specific performance of agreement for sale of land---Valid contract---Scope---Such agreement written on a simple paper of some diary and not containing thumb impression or signature of plaintiff-vendee---Evidentiary value---Offer and acceptance reduced into writing, if not signed or thumb marked by one of the parties, could not be termed as a valid "contract" enforceable under law---Suit agreement, if presented in evidence without stamp duty, would be liable to be impounded and would have a little evidentiary value---Suit agreement for suffering from a fatal defect would not constitute a valid contract.

Sardar Muhammad Hussain Khan for Petitioner.

Abdul Mughni Farani for Respondent.

Date of hearing: 19th January, 2012.

2013 M L D 962

[Lahore]

Before Amin-ud-Din Khan, J

SHAHBAZ KHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FEROZEWALA and 6 others---Respondents

Writ Petition No.10810 of 2012, heard on 16th July, 2012.

Civil Procedure Code (V of 1908)---

----O.XXIII, R.1(3) & S.115---Specific Relief Act (I of 1877), Ss. 42 & 54---Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration---Petitioner had assailed order passed by the revisional court, whereby the revision petition filed by the defendants was accepted and plaint was rejected---Earlier, plaintiff had filed suit for permanent injunction with regard to the suit property against the defendants, who were also the legal heirs, of the predecessor of the plaintiff, and it was prayed that the defendants be restrained from alienating the specific portion of the property as they claimed joint ownership in the that property---Said suit was withdrawn without permission of the court to file a fresh suit---Plaintiff then filed constitutional petition wherein the order passed by the Member, Board of Revenue, whereby mutation of gift sanctioned in favour of the plaintiff with regard to suit property was set aside---Said order was in field even prior to the filing of the first suit---Constitutional petition was dismissed on the ground that the suit filed by the plaintiff was pending before the civil court---Petition for leave to appeal before the Supreme Court against dismissal of constitutional petition was withdrawn---Plaintiff, after dismissal of earlier suit, faced hurdle of O.XXIII, R.1(3), C.P.C. in the way---Order passed in constitutional petition having attained finality after the withdrawal of petition for leave to appeal, revisional court had rightly exercised jurisdiction vested in it under S.115, C.P.C.---No case for interference by High Court while exercising jurisdiction under Art.199 of the Constitution was made out---In absence of any infirmity or illegality or jurisdictional defect in impugned order passed by the revisional court, constitutional petition against impugned order was dismissed, in circumstances.

Shahid Maqbool Sheikh for Petitioner.

Mehdi Khan Chauhan for Respondents.

Date of hearing: 16th July, 2012.

2013 M L D 995

[Lahore]

Before Ch. Shahid Saeed, J

PROVINCE OF PUNJAB through District Deputy Collector, Khushab and another---Petitioners

Versus

MUHAMMAD NAWAZ and 28 others---Respondents

Civil Revisions Nos.2531 of 2001 and 2411 of 2002, decided on 7th March, 2012.

Civil Procedure Code (V of 1908)---

----O.XLI R. 31---Specific Relief Act (I of 1877), S.42----Suit for declaration of title---Contents etc. of the judgment---Suit having been dismissed by Trial Court, was decreed by the Appellate Court---Validity---Certain documents produced by the defendants before the Trial Court had not been taken into consideration by the Appellate Court---Location of the suit land, which was an important aspect of the case, had not been properly decided by the said court---Provisions of O.XLI, R. 31, C.P.C. had, therefore, not been complied with by the Appellate Court---High Court set aside the judgment and decree of Appellate Court and remanded the case to the Appellate Court.

Muhammad Azeem Malik for Petitioners.

Hafiz Khalil Ahmed for Respondents.

Tariq Masood for Respondents Nos. 28 and 29.

2013 M L D 1000

[Lahore]

Before Rauf Ahmed Sheikh and Abdul Sami Khan, JJ

MUHAMMAD SHAFIQUE ANJUM and another---Appellant

Versus

Mst. ASMAT BATOOL and 4 others---Respondents

I.C.A. No.88 of 2012 in W.P. No.4526 of 2010, heard on 15th November, 2012.

Baha-Ud-Din Zakariya University Act (III of 1975)---

----Ss.11A & 22---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Maintainability---Educational institution---Appointment of Lecturers---Locus poenitentiae, principle---Applicability---Petitioners impugned the order of Single Judge in a constitutional petition, whereby contention of respondent that selection made for the posts was illegal and against criteria specified in the advertisement, was accepted and appointments of appellants were cancelled as a result---Contention of the appellants was, inter alia, that they were condemned un-heard and could not have been deprived of employment---Validity---Section 11A of the Baha-Ud-Din Zakariya University Act, 1975 provided remedy of revision against order of authorities given under S.22 of the Act---Since original law provided right of revision, therefore, in view of S. 3(2) of the Law Reforms Ordinance, 1972, present intra-court appeal was not maintainable---Contention that provisions of the Law Reforms Ordinance,1972 should not be strictly followed and waived off, could not be accepted---Even otherwise since whole process of appointment was tainted with malice, therefore, an illegal order could not create any substantive rights and could be recalled, and the principle of locus poenitentiae would not be attracted in such an eventuality---Intra-court appeal, being without merit and not maintainable, was dismissed, in circumstances.

Muhammad Ameer Azam and 3 others v. Islamia University, Bahawalpur and 5 others 2011 PLC (C.S.) 1227; Islamia University of Bahawalpur v. Dr. Abdul Qadus Sial and others 2011 PLC (C.S.) 1323; Vice-Chancellor, University of Health Sciences v. Breeha Zainab and others 2011 MLD 1962; Basai v. Qaim Ali and 8 others PLD 2003 SC 325 and Dr. Amjid Mustafa and another v. Muhammad Faiz and 9 others 2005 YLR 419 ref.

Muhammad Intizar-ul-Hassan v. University of Agriculture, Faisalabad and 2 others 1997 PLC (C.S.) 835 rel.

Muhammad Ramzan Khalid Joiya for Appellant.

Syed Muhammad Hussain Shah Qadri for Respondent No.1.

Malik Muhammad Tariq Rajwana for Respondents Nos. 2 to 5.

Date of hearing: 15th November, 2012.

2013 M L D 1012

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD NAWAZ---Petitioner

Versus

AMIR SULTAN---Respondent

Civil Revision No. 2376 of 2012, heard on 22nd November, 2012.

Civil Procedure Code (V of 1908)---

----O.V, Rr. 20, 21, O. XXXVII, Rr. 2, 3 & Appendix-B, Form No.4---Suit for recovery of money on basis of pro note---Issuance of summons for 14-12-2011 by Trial Court to defendant on his foreign address through substituted service in absence of receipt of report from his foreign address about previous summons issued to him--- Appearance of defendant's counsel in court on 3-1-2012 and filing of leave application on 7-1-2012---Order of Trial Court dismissing leave application for being time barred---Validity---Nothing on record to show as to by which means or mode defendant had been sent summons on his foreign address---Nothing on record to show sending of summons to defendant at his address of District "L" given in plaint through court at place "L"---Record did not show that defendant either had avoided service of summons or could not be served through ordinary means---Trial Court before issuing summons through substituted service had not fulfilled requirements of O.V, R.2, C.P.C.---Summons were not issued to defendant in accordance with Form No.4 of Appendix-B, C.P.C.---Publication of summons in newspaper published at place "L" in Pakistan would not fulfil requirement of service of defendant residing in foreign country--- Leave application was attested on 2-12-2011 by High Commission of Pakistan in the foreign country, whereas his counsel filed memo of appearance in court on 3-1-2012 and filed leave application on 7-1-2012---Trial Court had to grant leave to defend suit on basis of affidavits, whereas defendant's leave application had been authenticated, verified and attested by High Commissioner of Pakistan--- Pro note was alleged to have been executed by defendant on 6-5-2009, whereas according to his passport, he had left Pakistan on 5-5-2009---High Court set aside impugned order and directed Trial Court to decide leave application on merits after considering copies of defendant's passport and give him opportunity to file affidavit in support of his pleas.

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

Rana Muhammad Asif for Petitioner.

Imran Muhammad Sarwar for Respondent.

Date of hearing: 22nd November, 2012.

2013 M L D 1029

[Lahore]

Before Shahid Hameed Dar, J

MUSHTAQ AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.16153-B of 2012, decided on 30th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324/148/149---Attempt to commit qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Accused allegedly fired at the complainant party as a result of which a fire-shot hit the injured victim on his calf---Prior to present F.I.R. another case was lodged against the accused, wherein complainant was a witness---Another F.I.R. was registered against accused for firing at the house of the complainant---Apparently accused and his companions were after the complainant, who was a witness against them in another case, and intended to hunt him down at any cost so as to stop him from deposing against them---Although accused did not repeat fire-shot and did not aim at vital part of victim's body, but he could not be given any premium for poor-marksmanship---Trial had commenced and prosecution witnesses were appearing before Trial Court regularly---Substantial progress in the trial was hampered by the defence side---Bail application of accused was dismissed in circumstances.

Ch. Shahid Ehsan Warriach for Petitioner.

Muhammad Nawaz Shahid, DDPP for the State.

Shahid Nawaz Warriach for the Complainant.

Fayyaz A.S.-I. with record.

2013 M L D 1045

[Lahore]

Before Muhammad Khalid Mahmood Khan, J

TEHSIL MUNICIPAL ADMINISTRATION, SHAHPUR through Tehsil Nazim---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Colonies Department and 56 others---Respondents

Writ Petition No.5542 of 2008, decided on 14th October, 2011.

(a) Words and phrases---

----"Can"---Applicability---Word "can" is interchangeable with the word "may".

(b) Words and phrases---

----"Asset"---Meaning.

Oxford English Dictionary rel.

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

----Ch. III---Right of trustee---Principles---Trustee has no right in trust property but he is a custodian of trust property and act on instructions and authority of Board of Trustees---If trustee transgresses his power or authority, his authority is liable to be terminated and such trustee is personally liable to make good the loss to trust due to his act in excess of his authority.

(d) Constitution of Pakistan---

----Art. 1 99---Constitutional petition---Maintainability---Encroachment Regulation Policy---Factual controversy---Petitioner local government constructed shops over Nazool Land and respondents were tenants in the shops who were paying rent to petitioner---Provincial Government decided to sell the land to respondents through private treaty under Encroachment Regulation Policy---Validity---Government was not duty bound to sell land under shops to petitioner as it was prerogative of owner to sell its property to a person of his choice for getting maximum price of his land---Provincial Government after holding inquiry came to conclusion that respondents had constructed shops by spending their own funds and as such they were entitled for transfer of proprietary rights of land under shops on payment of market price along with 10% surcharge---Petitioner could not force Provincial Government to sell its property to petitioner being their manager---Disputed question of fact could not be resolved in constitutional petition and High Court in its said jurisdiction was unable to hold factual inquiry whether petitioner constructed shops or the respondents---Such claim of petitioner required deeper inquiry which could be carried out by recording evidence and as such petition was not maintainable---Petition was dismissed in circumstances.

Shri Tikamdas Hiranand and 3 others v. Divisional Evacuee Trust Committee Karachi Zone, Karachi and 4 others 1973 SCMR 315 and Haji Muhammad Islami Khan and others v. Punjab Province and others 2001 MLD 1916 ref.

Muhammad Anwar and 523 others v. Municipal Committee, Sahiwal and others 2006 SCMR 1419 distinguished.

Dr. Muhammad Mohy-ud-Din Qazi, Mouz Tariq and S.M. Masud for Petitioners.

Zafar Abbas Bhatti and M. Zahoor for Respondents.

Date of hearing: 5th October, 2011.

2013 M L D 1065

[Lahore]

Before Abdus Sattar Asghar

GHULAM MUSTAFA and another---Petitioners

Versus

DISTRICT JUDGE, JHANG and 3 others---Respondents

Writ Petition No.6121 of 2013, decided on 14th March, 2013.

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

----O.VI, R.17---Amendment of pleadings---Scope---Provisions of O. VI, R. 17, C.P.C. were to be construed liberally, however, defendants could not be allowed to abuse the law of procedure by resiling from the admission made by their deceased father in the written statement or to put up a new and inconsistent defence---Admission made by a party in the pleadings could not be revoked without permission of the court---Since on the basis of admission in the written statement a valuable right had accrued in favour of opposite party, therefore, proposed amendment based on ulterior motive could not be allowed.

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 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Concurrent findings of courts below were based on cogent reasons---No jurisdictional error legal or factual infirmity in the order of revisional court having been found---Constitutional petition against the revisional order was not maintainable.

Muhammad Khan and 6 others v. Ghulam Fatima and 12 others 1991 SCMR 970 rel.

Mehr Ahmad Bakhsh Bharwana for Petitioner.

2013 M L D 1092

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

NADIR KHAN---Petitioner

Versus

SUI NORTHERN GAS PIPE LINES LTD., FAISALABAD through General Manager---Respondent

Civil Revision No.2254 of 2010, decided on 6th March, 2012.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Allegation of tampering with the gas meter to reduce/avoid the gas bill---Son (petitioner) filed a suit for declaration and permanent injunction claiming that he got a commercial gas connection in the name of his father (consumer) and was depositing the bill and never committed any default, and the Gas company (respondent) intended to disconnect the gas connection on basis of alleged tampering with the meter---Trial Court dismissed said suit of son and on appeal, Appellate Court directed him to deposit the disputed amount---Contentions of son were that amount in dispute had been assessed without hearing him and he was entitled to notice as a matter of right before the fact of tampering with the meter was ascertained, and that part of the disputed amount had been deposited under the orders of the Trial Court---Validity---Son had admitted that it was not him but his father, who was the consumer of the Gas company; that he had no authority from his father to utilize the gas connection, and that at the time of filing the suit, son was not the attorney on behalf of his father (consumer)---Amount in dispute was allegedly due against the father (consumer) and question as to whether the suit was rightly filed by the son without the permission of the father, was yet to be decided by the Appellate Court, which had rightly directed the son to deposit the disputed amount in court---High Court directed that if the appeal filed by son was successful, deposited amount would be refunded to him---Order passed by Appellate Court was in accordance with the law, accordingly, revision petition was dismissed.

Muhammad Shafique Malik for Petitioner.

Umer Sharif for Respondents.

Shahid Iqbal Executive Engineer.

Naeem Akhtar Supervisor.

2013 M L D 1095

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMMAD IQBAL---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 5018-B of 2012, decided on 14th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 395 & 412---Dacoity, dishonestly receiving property stolen in the commission of dacoity---Bail, grant of---Further inquiry---Implication on basis of belated supplementary statement of complainant---Identification parade not conducted---Effect---Accused allegedly robbed a container which contained articles belonging to the complainant---Accused was not nominated in the F.I.R. and was implicated in the case through supplementary statement of complainant, which was made after about three weeks of the occurrence, wherein no specific source of information was mentioned---Complainant himself was not robbed rather he was informed by his drivers about the alleged occurrence---No description of the accused was given in the F.I.R. and he was not put to test of identification parade---Complainant allegedly identified the accused at the police station, but since complainant himself had not seen the accused at the time of occurrence, question was as to how he identified the accused at the police station---Statements of complainant's drivers were not available on record to establish that they had identified the accused as the person who robbed the container---Case was one of further inquiry---Accused was admitted to bail in circumstances.

Malik Muhammad Siddique Dogar for Petitioner.

Rahat Masood Tipu for the Complainant.

Malik Riaz Ahmad Saghla, D.P.G. along with Allah Ditta, A.S.-I. for the State.

2013 M L D 1102

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD ZAMAN---Petitioner

Versus

TOUQEER AHMAD and others---Respondents

Civil Revision No.1798 of 2011, decided on 24th May, 2012.

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

----S.42---Civil Procedure Code (V of 1908) S. 12(2)---Suit for declaration of title was decreed by Trial Court---Plaintiff assailed order of Appellate Court whereby the application of the respondents under S.12(2), C.P.C. was allowed, and case was remanded with the direction to the Trial Court to implead the respondents as defendants in the suit---Plaintiff contended that the respondents had purchased suit property during pendency of the suit and therefore, principle of lis pendens would be applicable---Validity----Respondents, under law, would step into the shoes of their transferors, who were party to the suit and were entitled to at least defend the suit to the extent of the rights of their transferors---Order of Appellate Court could not be interfered with---Revision was dismissed.

Mubarak Ali v. Fazal Muhammad and another PLD 1995 SC 564; Sardar Muhammad Ayub v. Pakistan through Secretary Ministry of Resttlement and Rehabilitation, Rawalpindi and others 1969 SCMR 96(2); Sh. Muhammad Anwar v. Ch. Sultan Muhammad Khan and another 1974 SCMR 371 and Mst. Zainab and others v. Fazal Dad and others PLD 1966 (W.P.) Lah. 1050 ref.

(b) Administration of justice---

----When an order was challenged on the basis of lack of jurisdiction, such technicality could not come in the way of fostering justice.

Ch. Aamer Rehman for Petitioner.

Sh. Naveed Shaharyar and Qadeer Ahmed Warraich for Respondents Nos.1 and 2.

Date of hearing: 24th May, 2012.

2013 M L D 1115

[Lahore]

Before Abdul Sami Khan, J

MAZHAR and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.17610-B of 2012, decided on 20th December, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 376---Rape committed by two or more persons in furtherance of common intention---Bail, grant of---Further inquiry---Doubtful occurrence---Delay in lodging F.I.R.---No marks of violence on body of victim---DNA report negative---Effect---Accused persons allegedly committed rape of alleged victim---F.I.R. was registered with a delay of two days---One of the co-accused had been discharged from the case on the statement of complainant made during investigation, wherein it was categorically stated that said co-accused had been involved due to a misunderstanding---Story narrated in the F.I.R. became doubtful in such circumstances---Medical evidence of alleged victim showed that there were no marks of violence on her body---DNA report was negative---Investigation of the case was complete---Accused persons were previous non-convicts and were never involved in any criminal case---Case was one of further inquiry into guilt of accused persons, therefore they were admitted to bail.

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

----S. 497---Bail---Heinousness of offence---Scope---Heinousness of an offence was no ground to refuse bail to an accused, if otherwise he became entitled to concession of bail.

Muhammad Shahid Iqbal Qureshi for Petitioners.

Mirza Abid Majeed, Deputy Prosecutor-General for the State and Nasrullah, A.S.-I. with record.

Khalid Mehmood Batalwai for the Complainant.

2013 M L D 1127

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMMAD NASEER AHMAD and others---Petitioners

Versus

MUHAMMAD IBRAHIM SHABBIR---Respondent

Civil Revision No.751-D of 2001, heard on 29th May, 2012.

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

----Arts. 79, 117 & 120---Document executed by Pardanashin lady---Burden of proof---Beneficiaries of said document are bound to establish by highly satisfactory and strong evidence that not only the document was executed by such parda observing lady but also that such illiterate/parda observing lady had fully understood the contents of the document.

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

----Arts. 79, 117 & 120---Gift deed---Required standard of evidence to establish a valid gift deed---Non-registration of gift deed---Effect---Donee admitted that donor remained alive for five months after the execution of the alleged gift deed in his favour but she did not get the gift deed registered---Entries made after the death of donor---Donor did not appear before the scribe of gift deed and had not put her thumb impression/signature in his presence---Alleged attesting witnesses of deed also admitted that donor did not appear before the scribe and he took the stamp paper to donor for getting her signatures---Execution of gift deed was not proved in circumstances.

Ch. Naseer Ahmad for Petitioners.

Sardar Mehmood Iqbal Khakwani for Respondents Nos.3 to 5 and 7 to 11.

Abdul Qayum Awan for Respondent No.4.

Date of hearing: 29th May, 2012.

2013 M L D 1143

[Lahore]

Before Ijaz Ahmad, J

ASIF ALI and another---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice Chancellor and 4 others---Respondents

Writ Petition No.558 of 2013, decided on 31st January, 2013.

Constitution of Pakistan---

-----Art.199---Constitutional petition---Educational jurisdiction---Admission, refusal of---Petitioners (students) were involved in criminal cases for causing hindrance in advancing the academic activities in the University---High Court refused to interfere in the administrative matters of the University, for not granting admission to the petitioners.

Muhammad Amir Khan Bhutta for Petitioners.

Malik Muhammad Tariq Rajwana, for Advocate/Legal Advisor.

2013 M L D 1154

[Lahore]

Before Kh. Imtiaz Ahmad and Ali Baqar Najafi, JJ

Syed TAHIR HUSSAIN SHAH---Appellant

Versus

Syed SAEED ANWAR and others---Respondents

Regular First Appeal No. 81 of 2002, heard on 17th December, 2012.

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

----S.42---Civil Procedure Code (V of 1908), O.VII, R. 2---Contract Act (IX of 1872), Ss. 182, 186 & 213---Partnership---Rendition of accounts by partner---Requirements---Suit for declaration and rendition of accounts and mesne profits in respect of joint-property wherein a commercial cinema was being run, was decreed---Validity---Status of the partners/parties as co-owners was admitted, therefore, the plaintiff's entitlement to half of the shares was not challenged by defendant---Defendant had claimed that the cinema business was running in loss, however, some shares from profit had been paid to the defendants, which meant that claim of plaintiff in profit was correct---Settlement of accounts could be made with mutual consent of partners/sharers at any time or at time of conclusion of partnership---Status of a co-sharer who was running affairs of a business was of either of an agent or principle---In a suit for rendition of accounts, plaintiff was required to establish, firstly, the partnership, secondly, the share of each member in the partnership, thirdly, the profit or loss, fourthly, the type of business, fifthly the duration of the partnership and sixthly the accounts---Trial Court had acted according to said criteria---Status of Agent of a co-sharer running a joint business was that of an agent having authority expressly or impliedly who was bound to render proper accounts to his principal on demand, under Ss.182, 186 & 213 of the Contract Act, 1872---No interference was required in decree of the Trial Court---Appeal was dismissed, in circumstances.

Pakistan International Airlines Corporation v. Karachi Municipal Corporation through Chairman/Administrator, Karachi and another PLD 1994 Kar. 343 ref.

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

----Ss. 182, 186 & 213---Partnership---Co-sharers---Rendition of accounts, suit for---In a suit for rendition of accounts, plaintiff was required to establish, firstly, the partnership, secondly, the share of each member in the partnership, thirdly, the profit or loss, fourthly, the type of business, fifthly the duration of the partnership and sixthly the accounts.

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

----Ss. 182, 186 & 213---Partnership---Co-sharers---Status of a co-sharer running a joint business was that of an agent having authority expressly or impliedly who was bound to render proper accounts to his principal on demand, under Ss. 182, 186 & 213 of the Contract Act, 1872.

Altaf Elahi Sheikh for Appellant.

Sheikh Zamir Hussain for Respondents.

Date of hearing: 17th December, 2012.

2013 M L D 1162

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Haji ASHRAF ALI and others---Petitioners

Versus

Haji MUSHTAQ ALI and others---Respondents

Civil Revision No.594 of 2010, decided on 7th November, 2012.

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

----Ss. 14 & 17---Civil Procedure Code (V of 1908), O.VII, R.11---Application for making award rule of court---Rejection of such application under O.VII, R.11, C.P.C.---Scope---Provisions of C.P.C. would stand excluded to the extent where a procedure had been provided in Arbitration Act, 1940---Provision of O.VII, R.11, C.P.C. would apply to plaint in a suit---Plaint though not defined in C.P.C. would be regarded as a written memorial tendered to a court in which plaintiff set forth cause of action and sought order/judgment/decree as a consequential relief---Application under Ss. 14 & 17 of Arbitration Act, 1940 would not be deemed to be a plaint or suit---Application under O.VII, R.11, C.P.C., thus, would not be maintainable in proceedings under Ss. 14 & 17 of Arbitration Act, 1940.

Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197 and Messrs Combined Enterprise v. WAPDA PLD 1988 SC 39 rel.

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

----Ss. 14, 17, 30, 32 & 33---Civil Procedure Code (V of 1908), O.VII, R.11---Stamp Act (II of 1899), S.33 & Art.12---Registration Act (XVI of 1908), S.17---Application for making award rule of court---Applicability of S.33 & Art. 12 of Stamp Act, 1940 and Registration Act, 1908---Scope---Application under O.VII, R.11, C.P.C. for rejection of application under Ss.14 & 17 of Arbitration Act, 1940 on ground that award was not drawn on stamp paper and that award for being unregistered could not be made rule of court---Maintainability---Provisions of C.P.C. would stand excluded to extent where a procedure had been provided in Arbitration Act, 1940---Provision of O.VII, R.11, C.P.C. would apply to plaint in a suit---Application under Ss.14 & 17 of Arbitration Act, 1940 would not be deemed to be a "plaint or suit"---Court could set aside award on basis of specific provisions provided in Arbitration Act, 1940---Deficiency of stamp duty, if any, could be ordered to be made up by Trial Court at any stage---Mere fact of non-drawing of award on stamp paper would not justify rejection of application for making award rule of court---Registration of award would be necessary only after same was made rule of court, but not before such stage---No party could be prejudiced by mere existence of an award---Award would not become operative and enforceable unless same had been filed in court and court adjudicated about its validity---Application under O.VII, R.11, C.P.C. was dismissed in circumstances.

Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197; Messrs Combined Enterprise v. WAPDA PLD 1988 SC 39; Mst. Farida Malik and others v. Dr. Khalida Malik and others 1998 SCMR 816; Inayat Ullah Khan v. Obaid Ullah Khan and others 1999 SCMR 2702; Haji Muhammad v. Syed Manzoor Hussain Shah PLD 2003 Lah. 208 and Sher Muhammad v. Sh. Muhammad Aslam and others 1989 MLD 4508 rel.

(c) Stamp Act (II of 1899)---

----S. 33 & Art. 12---Arbitration award---Deficiency of stamp duty, if any, could be ordered to be made up by Trial Court at any stage---Mere fact of non-drawing of award on stamp paper would not justify rejection of application for making award rule of court.

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

----S. 17---Arbitration award---Registration of award would be necessary only after same was made rule of the court, but not before that stage.

Sardar Mushtaq Ahmad Khan for Petitioners.

Syed Tajammul Hussain Bukhari for Respondents Nos.2 and 4.

2013 M L D 1176

[Lahore]

Before Abdul Sami Khan, J

WARIS ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5042-B of 2012, decided on 29th November, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), S.365---Kidnapping or abducting with intent secretly and wrongfully to confine person---Bail, grant of---Further inquiry---Implication for offence on basis of second supplementary statement---Offence not falling within prohibitory clause of S. 497, Cr.P.C.---Effect---Accused was not named in the F.I.R. but was implicated in the present case through second supplementary statement of complainant and alleged abductee---Complainant and alleged abductee did not involve the accused for the alleged offence in their first supplementary statements---Anti-Terrorism Court had already deleted S. 365-A, P.P.C. from the challan---Offence alleged did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was a previous non-convict---Investigation of the case qua accused was complete and he was no more required by the police for further investigation---Case against accused called for further inquiry---Accused was admitted to bail accordingly.

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

----S. 161---Supplementary statement, evidentiary value of---Scope---Such a statement had no value in the eyes of law.

1995 SCMR 1350 and 2011 SCMR 161 rel.

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

----S. 497---Bail---Heinousness of offence---Effect---Mere heinousness of the offence was no ground to refuse bail, if otherwise a case for bail was made out.

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

----Ss. 497 & 173---Bail---Submission of challan---Effect---Submission of challan was no ground to refuse bail.

2011 SCMR 161 rel.

Ch. Muhammad Akram for Petitioner.

Ch. Muhammad Akbar, Deputy Prosecutor-General for the State and Ismail, S.I. with record.

2013 M L D 1183

[Lahore]

Before Sagheer Ahmad Qadri and Ali Baqar Najafi, JJ

Sheikh ANSAR AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1499-B of 2012, decided on 1st November, 2012.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14, 15 & 16---Aiding, abetment or association in narcotic offences---Bail, grant of---Further inquiry---Accused, who was a Drug Controller at the Health Department, was alleged to have played an instrumental role in issuance of Ephedrine quota to different companies in huge quantities beyond the prescribed limits---Investigation carried out to date and record of the case showed that accused allegedly misused his authority for issuance of quota to different companies---Violation of Ss.6, 7 & 8 of Control of Narcotic Substances, 1997 could only be seen after recording of evidence at trial stage---Presently accused could only be saddled with penalty provided under S. 16 of Control of Narcotic Substances, 1997, which was a bailable offence---Case of accused required further inquiry---Accused was admitted to bail accordingly.

Syed Ijaz Qutab for Petitioner.

Shahid Abbasi, Special Public Prosecutor for ANF.

Abid Zulfiqar, Deputy Director, ANF.

Shakeel Ahmad, Sub-Inspector with record.

2013 M L D 1197

[Lahore]

Before Abdul Sami Khan, J

SUMAIRA ASHRAF---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.17306-B of 2012, decided on 21st December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Further inquiry---Female accused having children---Implication for offence on basis of supplementary statement---Non-recovery of incriminating material---Effect---Accused allegedly called the deceased at her house, whereafter she caught hold of him and facilitated the co-accused in committing his murder---Accused was not named in the F.I.R. and her name had been introduced in the case through a supplementary statement, which was recorded with a delay of one day and that too without giving any source---Alleged witnesses who were introduced through the said supplementary statement could not furnish any explanation as to why they kept silent for a day and did not inform the complainant---Allegation levelled against accused in the supplementary statement was only of catching hold of the deceased and admittedly she had caused no injury---Nothing was recovered from custody of accused---Body of deceased was not recovered on pointation of accused---Accused was a mother of four children, and by virtue of her gender she was entitled for concessionary treatment as her case fell within the first proviso to S. 497(1), Cr.P.C.---Accused was a previous non-convict and was never involved in any criminal case---Investigation qua the accused was complete and challan had been submitted---Case was one of further inquiry into guilt of accused---Accused was admitted to bail accordingly.

2011 SCMR 161; 2011 SCMR 355 and 2012 SCMR 1273 ref.

Ch. Muhammad Waseem for Petitioner.

Mirza Abid Majeed, Deputy Prosecutor-General for the State and Umer Hayat Ranjha, S.-I. with record.

Shahanshah Shamil Paracha for the Complainant.

2013 M L D 1214

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUHAMMAD SALEEM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2882-B of 2012, decided on 24h September, 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---Implication on basis of alleged extra-judicial confession of accused---Accused and co-accused persons while armed with firearms were alleged to have attacked the deceased which resulted in his death---Accused was not nominated in the F.I.R. and was only implicated for the offence on basis of supplementary statement of complainant made after about four months of the occurrence---Allegedly accused had made extra-judicial confession before prosecution witnesses---Complainant specifically alleged in the F.I.R. that he saw one of the co-accused firing at the deceased and that he witnessed the incident in torch light, however, subsequently complainant exonerated said co-accused by submitting an affidavit and implicated the accused with specific role of firing---Complainant had taken U-turn from his version in the F.I.R. and implicated accused on basis of his alleged extra-judicial confession, which made the case one of further inquiry---Authenticity of extra-judicial confession of accused had to be seen by the Trial Court after evaluating evidence---High Court admitted accused to bail with the observation that supplementary statement was an innovation not recognized by law and it had been devised by the police to cut short the process of investigation.

Muhammad Irfan and others v. The State and others 2012 PCr.LJ 625; Noor Muhammad v. The State 2008 SCMR 1556 and Irfan Khan v. The State 2009 MLD 120 ref.

Muhammad Imran Butt v. The State 2012 MLD 665 Rab Nawaz and another v. The State and another 2005 PCr.LJ 13 and Umed Ali v. The State 2005 YLR 3217 distinguished.

Noor Muhammad v. The State 2008 SCMR 1556 rel.

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

----S. 497---Bail---Commencement of trial---Effect---Commencement of trial does not debar the release of an accused on bail if he is otherwise entitled to the said relief.

Abid Ali @ Ali v. The State 2011 SCMR 161 rel.

Haji Muhammad Akbar Sajid Chudhary and Syed Irfan Haider Shamsi for Petitioner.

Muhammad Akram Khan for the Complainant.

Muhammad Amjad Rafique, D.P.G. along with Iqbal, A.S.-I. for the State.

2013 M L D 1231

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

ABDUL JALIL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.12146 of 2011, decided on 9th October, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan, Art. 199---Constitutional petition---Allotment of land by its owner challenged---Justice of Peace giving directions for registration of case despite owner of land not objecting to the allotment---Legality---Complainant (respondent) alleged that disputed land had been gifted by its owner to a madrassa (religious school) but the accused (petitioner) subsequently took the owner of land to the Patwari and managed to get the mutation attested in his (accused's) name in respect of the land---Complainant filed application under Ss. 22-A and 22-B, Cr.P.C before Justice of Peace whereby Station House Officer (S.H.O.) was directed to record the version of the complainant---Validity---Owner of land transferred the same to the accused vide impugned mutation---Said mutation was attested in a public meeting by Tehsildar and both the parties were identified by Nazim of the Union Council and others---When there was a document of title in favour of a person, attested in a public meeting then it could not be said that the mutation was obtained fraudulently or by coercion---Owner of land had not come forward with the allegation that impugned mutation was got attested from him fraudulently and he also did not challenge the same before revenue authority---Justice of Peace, in such circumstances, was duty bound to hear both parties before issuing any direction to police for registration of case---Justice of Peace acted upon the application of complainant without looking into real facts---Constitutional petition was allowed, impugned order of Justice of Peace was set aside and application of complainant under Ss.22-A and 22-B, Cr.P.C. was dismissed.

Abdul Sattar Chaudhry for Petitioner.

Wali Muhammad Khan, Assistant Advocate-General Punjab.

Rai Muhammad Usman for Respondent No.3.

2013 M L D 1238

[Lahore]

Before Ijaz Ahmad, J

NASEER AHMAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.3071-B of 2012, decided on 6th September, 2012.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Allegation against accused was that he had presented a cheque in order to return a loan, which got dishonoured on presentation---Accused contended that cheque in question was not issued for consideration but was only a guarantee for a transaction---Complainant contended that three other similar F.I.Rs. had been registered against the accused in the past, therefore, he was a habitual offender---Validity---Mere registration of criminal case of similar nature did not deprive an accused of the concession of bail---Question as to whether the cheque in question was issued dishonestly was a fact which might only be determined after recording of evidence---Offence alleged did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was admitted to bail accordingly.

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

----S. 497---Bail---Principle---Registration of similar cases (F.I.Rs.) against accused in the past---Effect---Mere registration of criminal case of similar nature against him did not deprive an accused of the concession of bail.

Abid Hussain Bhutta for Petitioner.

Rashid Mehmood Chaudhry for the Complainant.

Rana Abdul Majeed, Additional Prosecutor and Ishtiaq, A.S.-I. for the State.

2013 M L D 1246

[Lahore]

Before Amin-ud-Din Khan, J

BAKHT ALI and others---Petitioners

Versus

MUHAMMAD SHABBIR---Respondent

Civil Revision No.59 of 1999, heard on 19th December, 2011.

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

----S.42---Declaration of title---Inheritance---When a propositus dies, all his legal heirs automatically become co-sharer in the property left by him.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Suit for declaration---Inheritance---Custom, applicability of---Onus to prove---Plaintiffs were widow and daughter of deceased owner and assailed mutation of inheritance attested in year, 1927, on the plea of co-sharers---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of plaintiffs---Validity---Distribution of property of prospositus in accordance with Shariat was a rule and a custom, whereby female legal heirs were deprived, was an exception---When defendants were claiming exception, they were bound under the law to prove that exception for which they failed to prove---In order to prove exception to deprive any legal heir from receipt of lawful share, very strong evidence was required but defendants did not produce any evidence in such regard---Lower Appellate Court rightly reached to the conclusion by setting aside findings recorded by Trial Court---High Court declined to interfere in judgment passed by Lower Appellate Court---Revision was dismissed in circumstances.

Sardar Muhammad Hussain Khan for Petitioners.

Nemo for Respondents.

Jam Abdul Majeed Mustafai for Applicant (in C.M. No.3913 of 2010).

Date of hearing: 19th December, 2011.

2013 M L D 1257

[Lahore]

Before Altaf Ibrahim Qureshi, J

UMER DRAZ and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos.3027-B and 3596-B of 2012, decided on 11th September, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 148, 149, 109, 34, 337-A(i), 337-A(ii), 337-F(i) & 337-F(v)---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, abetment, common intention, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah damiyah, ghayr-jaifah-hashimah---Bail, grant of---Further inquiry---Case of two versions---Allegation against accused persons and co-accused was that while armed with weapons they formed an unlawful assembly and committed the murder of two people and caused injuries to eight persons including the complainant---Admittedly accused persons did not cause any injury to the deceased persons---Injuries to prosecution witnesses that were attributed to accused persons more or less fell under S. 337-F(v), P.P.C., thus they were not dangerous to life---Nothing was recovered from accused persons and during investigation they were declared innocent by the police and by the Crime Branch---Although ipse dixit of police was not binding on the court, but in peculiar facts and circumstances of the present case, it created doubt in the prosecution story---Case was of two versions and question as to which party was the aggressor and which party was aggressed upon would be determined by Trial Court after recording evidence---Common intention and vicarious liability of accused persons would be determined by the Trial Court---Case was one of further probe---Regarding progress of trial, not a single witness had been recorded to date---Accused persons were admitted to bail in circumstances.

Liaqat Ali v. The State PLD 1994 SC 172 distinguished.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 and Muhammad Shahzad Siddique v. The State and another PLD 2009 SC 58 rel.

Sardar Mehboob for Petitioners.

Malik Amir Manzoor Awan for Petitioners (in Criminal Miscellaneous No.3596-B of 2012).

Riaz Ahmad Sagla, Deputy Prosecutor General along with Muhammad Ismaeel, S.I. with record.

Muhammad Nawaz Khan for the Complainant.

2013 M L D 1263

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD ZAHID and others---Appellants

Versus

MUHAMMAD RAMZAN---Respondent

R.S.A. No.11 of 2007/BWP, decided on 14th July, 2011.

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

----S. 5----Civil Procedure Code (V of 1908), Ss. 100 & 144---Pre-emption suit---Taking over possession of suit land forcibly by plaintiff after passing of decree in his favour and during pendency of appeal filed thereagainst by defendant---Prayer of defendant for restoration of possession before High Court despite pendency of contempt proceedings against plaintiff in Appellate Court---Validity---High Court while accepting second appeal filed by defendant declined to grant such prayer due to availability of remedy under S. 144, C.P.C. before the Trial Court.

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

----Ss. 23 & 26---Civil Procedure Code (V of 1908), S. 100 & O. XX, R.14(1)---Second appeal against pre-emption decree---Decretal amount invested in profit bearing scheme by order of Trial Court---Taking over possession of suit land forcibly by plaintiff after passing of decree---Decree set aside by High Court---Effect---Plaintiff had enjoyed posses-sion of suit land, thus, he would not be entitled to withdraw amount of such profit from Trial Court, rather same would be given to defendant---Plaintiff would not be entitled to withdraw decretal amount till return of possession of suit land to defendant.

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

----S.6---Pre-emption suit---Plaintiff claimed to have superior right of pre-emption for being shafi khalit due to existence of a Khal between suit land and land owned by him---Proof---Plaintiff was bound to prove without any shadow of doubt his right of pre-emption qua suit land---Warabandi and plan of outlet produced by plaintiff would show that both such lands were being irrigated from one/same outlet---Such watercourse and its water belonged to the Government---Mere having a right of irrigation from a Khal could not confer upon pre-emptor right of shafi khalit---Plaintiff could not claim right of shafi khalit on basis of government watercourse---Plaintiff had failed to prove his right of pre-emption---Suit was dismissed in circumstances.

Muhammad Nawaz and others v. Gul Sher through Legal Representatives PLD 2004 SC 493 rel.

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

----S. 13---Civil Procedure Code (V of 1908), S. 100---Decree in pre-emption suit---Second appeal---Interpretation or re-evaluation of evidence available on record regarding talbs---Scope---Such evaluation was not required by law while exercising jurisdiction under S. 100, C.P.C.

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

----S. 13---Pre-emption suit---Talb-e-Ishhad, performance of---Plaintiff's plea that he had sent notice of such Talb through registered envelope with acknowledgement due, but same was received back un-served---Proof---Acknowledgement due/ receipt with such envelope was not available on record---Postman in his evidence had not stated that defendant had refused to receive registered envelope---Noting of Postman on such envelope did not show that he had tried to deliver same to addressee/defendant---Plaintiff had failed to fulfil requirements of S. 13 of Punjab Pre-emption Act, 1991---Suit was dismissed in circumstances.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; 2011 SCMR 672 and 2007 SCMR 1150 rel.

Ch. Naseer Ahmad for Appellants.

Abdul Ghafoor Awan for Respondent.

Date of hearing: 14th July, 2011.

2013 M L D 1277

[Lahore]

Before Shehzada Mazhar, J

MUHAMMAD ANWAAR---Petitioner

Versus

ADMINISTRATOR CITY DISTRICT GOVERNMENT and another---Respondents

Writ Petition No.10183 of 2013, heard on 6th May, 2013.

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

----S.144---Power to issue order---Scope---Such power is a stopgap arrangement and call for existence of an emergency situation.

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

----S.144---Constitution of Pakistan, Art.199---Constitutional petition---Issuance of order in emergency---Authorities issued order under S.144 Cr.P.C. and imposed ban on digging / excavation of soil---Validity---In case Zila Nazim/Administrator wanted to issue order under S.144 Cr.P.C. for more than seven days, that could be done by Provincial Government by issuance of notification in official gazette---Such order could be issued only in case of danger to human life, health, safety or a likelihood of a riot or an affray---Neither any copy of official gazette was placed on record nor documents / material to show danger as mentioned in S. 144(6), Cr.P.C. existed and only copy of order issued by Provincial Government was placed which though referred that copies of the order were forwarded for information and necessary action for publication in press, however, no such notification was issued or if issued not placed before High Court for consideration---Order under S.144, Cr.P.C. could not be issued for more than seven days without issuance of notification in official gazette---High Court set aside the order passed by authorities under S. 144, Cr.P.C. imposing ban on digging/excavation of soil---Petition was allowed in circumstances.

Ch. Shahid Tabassam and Sultan Haider Ali Malik for Petitioner.

Mian Iftikhar Ahmad for Respondents.

Date of hearing: 6th May, 2013.

2013 M L D 1284

[Lahore]

Before Muhammad Qasim Khan and Ibad-ur-Rehman Lodhi, JJ

MINISTRY OF DEFENCE and 3 others---Appellants

Versus

MUHAMMAD ATHAR---Respondent

I.C.A. No.208 of 2012 in Writ Petition No.7537 of 2009, decided on 26th March, 2013.

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

----S.3---Constitution of Pakistan, Art. 199---Limitation Act (IX of 1908), Ss. 12(2), 14 & Art. 151---Intra-court appeal---Limitation---Delay of 58 days, condonation of---Order of High Court dated 6-5-2011 accepting constitutional petition challenged before Supreme Court on 9-7-2011 by filing petition for leave to appeal, which was allowed to be converted into Intra-court appeal vide order dated 24-9-2012 and remanded to High Court for its decision subject to all just and valid objections---Validity---Limitation of 20 days prescribed under Art.151 of Limitation Act, 1908 for filing appeal would start running from date of decree or order passed by High Court in its original jurisdiction---Time spent in obtaining certified copies of relevant record would not be excludable from period prescribed for filing Intra-court appeal---Supreme Court in its order had observed that order passed in constitutional petition by High Court was amenable to intra-court appeal---Date of filing of petition for leave to appeal on 9-7-2011 would be taken as date of filing of intra-court appeal, which was 58th day from date when constitutional petition was decided on 6-5-2011---Appellant had failed to show any reason justifying such delay in filing intra-court appeal---High Court dismissed intra-court appeal for being time-barred.

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 ref.

Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others PLD 2001 SC 355 and Federation of Pakistan and 2 others v. Khurshid Ahmed and another 1999 SCMR 664 rel.

(b) Limitation---

----Time barred proceedings---Effect---Defaulting party would be bound to explain delay of each day caused in preferring a valid proceedings in accordance with law. [p. 1287] H

Khawaja Noor Mustafa, Deputy Attorney-General and Rana Javed Akhtar, Standing Counsel for Appellants.

Chaudhary Shakir Ali for Respondent.

2013 M L D 1295

[Lahore]

Before Abdus Sattar Asghar, J

SALEEMA BIBI through Legal Heirs and others---Petitioners

Versus

GOVERNMENT OF PUNJAB of and others---Respondents

Civil Revision No.524 of 2003, decided on 21st March, 2013.

(a) Islamic Law---

----Sect---Shia or Sunni sect of a person, determination of---Test stated.

Mere fact of "janaza" prayer having been offered in "Sunni" manner is no criterion for determination of sectarian belief. Similarly question whether deceased was "Shia" cannot be determined merely from sect to which his relatives belong. The controversy regarding sect of a person cannot be determined by opinion of the parties, rather it can be inferred from the facts creating presumption on one way or the other. [p. 1298] A

Pathana v. Mst. Wasai and another PLD 1965 SC 134 and Mst. Sardar Bibi v. Muhammad Bakhsh and others PLD 1954 Lah. 480 rel.

(b) Islamic Law---

----Sect---Shia or Sunni sect of deceased---Proof---Deceased was alleged to have contributed "chanda" to "Imam-Bargah", but without bringing on record any proof thereof---Nothing on record to show that deceased had ever offered his regular prayers in a Masjid belonging to Shia Sect---Record showed that deceased used to offer his regular prayers in mosque belonging to Sunni Sect---Janaza prayer of deceased was offered by Sunni Moulvi, but not by any Moulvi relating to Shia Sect---Deceased, held, was, not Shia by sect.

(c) Administration of justice---

----Controversy in civil cases---Proof---Such controversy would be determined on basis of preponderance of evidence after leading of oral and documentary evidence by parties.

Ms. Sadia Malik for Petitioners.

Ali Raza and Noor ul Hassan for Respondents Nos. 3 to 6.

Date of haring: 21st March, 2013.

2013 M L D 1303

[Lahore]

Before Shahid Hameed Dar, J

SHABBIR HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.14461/B of 2012, decided on 7th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 462-C & 462-F---Tampering with auxiliary or distribution pipelines of gas---Bail, grant of---Further inquiry---Incompetently investigated case---Effect---Network of illegal gas connections---Allegation against accused was that he along with the co-accused persons intercepted main distribution gas pipeline and committed theft of gas not only for his own consumption but also delivered its connections to more than two hundred consumers/houses---Certain circumstances had either been distorted or withheld by the complainant while reporting the crime to the police---Whereabouts of the co-accused persons had not been located by the police---Co-accused persons were not residents of the area where the accused resided---Although a mass network of illegal gas connections was allegedly unearthed by the complainant but he took no pains to mention the names of illegal consumers of the connections, which showed non-seriousness and dishonesty on his part---Gas meter installed outside the house of the accused had not been taken into possession by the investigating officer---Investigating officer did not collect any material from the Gas company to verify the claim of the accused regarding issuance of a demand notice to him and deposit of gas connection fee by him---Record was also silent as to how much loss had been sustained by the Gas company because of the alleged crime---Present case was a classic case of incompetent, dishonest and unscrupulous investigation confuted by the investigating officer---Report under S. 173, Cr.P.C had already been deposited in court and accused was no more required for further investigation---Case called for further probe into guilt of accused, who was admitted to bail accordingly.

M. Irshad Chaudhry for Petitioner.

Mirza Abid Majeed, Deputy Prosecutor General Punjab and Mansha, DSP for Respondent.

2013 M L D 1312

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD AZHAR---Petitioner

Versus

MEMBER JUDICIAL-VII, BOARD OF REVENUE and 5 others---Respondents

Writ Petition No.1700 of 2010, decided on 21st January, 2013.

West Pakistan Land Revenue Rules, 1968---

----R. 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of Lambardar / headman---Points to be considered---Petitioner had been appointed Lambardar by District Officer (Revenue), however on appeal of the respondent before the Revenue hierarchy, said appointment was cancelled and the respondent was appointed as Lambardar / headman---Contention of the petitioner was that he was a better choice as compared to the respondent---Validity----In addition to hereditary claim of a candidate, the extent of property in the estate, services rendered to the Government by him or his family, his personal influence, character, ability and freedom from indebtedness, the strength and importance of the community from which selection of a headman was to be made, and the ability to undergo training in Civil Defence, were main considerations for appointment of Lambardar---Educational qualification and holding of sufficient land to meet requirements of Zar-e-Bharat were also relevant considerations for a person to be appointment as headman in order to cope with the demands of the said office---Nobody had a vested right to be appointment as a Lambardar, and if the revenue authorities selected a person best suited for the purpose with a view to facilitate performance of administrative functions entrusted to a headman, the appointment could not be disturbed under the constitutional jurisdiction of High Court---High Court observed that the authorities in revenue hierarchy had decided the matter after taking into consideration the relevant facts and law, and in absence of any jurisdictional error or illegality on part of such authorities, the impugned orders could not be interfered with---Constitutional petition was dismissed, in circumstances.

Abdul Jabbar Khan for Petitioner.

Muhammad Zafarullah Khan Khakwani, Assistant Advocate-General for Respondents Nos. 1 and 3.

Tariq-ur-Rehman Hashmi for Respondent No.4.

Nemo for Respondents Nos. 5 and 6.

2013 M L D 1323

[Lahore]

Before Amin-ud-Din Khan, J

Mst. NOOR BEGUM and 6 others---Petitioners

Versus

MUHAMMAD AKRAM and 17 others---Respondents

Civil Revision No.1176 of 1994, heard on 31st October, 2012.

(a) Pleadings---

----Plaintiff has to prove the case pleaded by him.

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

----S.20---Succession---Inheritance---Scope---For proving application of S.20 of Colonization of Government Lands (Punjab) Act, 1912, plaintiff is bound to prove that his propositus was original tenant.

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

----S.42---Colonization of Government Lands (Punjab) Act (V of 1912), Ss.10 & 20---Suit for declaration---Succession---Proprietary rights and inheritance---Plaintiff nowhere stated that all proceedings of conferment of proprietary rights and further mutations were not in his knowledge when defendants were recorded as owners in suit property on the basis of inheritance---Effect---Filing of suit by plaintiff 58 years after mutations challenging the same in suit were time barred---After attestation of mutation in question, various mutations were not challenged whereby plaintiff impliedly admitted validity of mutation in question---When claim of plaintiff stated in plaint, was that his mother transferred suit property in his name under family settlement after she got daughters married, as such the same negated his claim to inherit exclusively whole of the property left by his father---High Court in exercise of revisional jurisdiction set aside judgments and decrees passed by both the courts below being against evidence and contrary to law, resultantly suit filed by plaintiff was dismissed---Revision was allowed in circumstances.

Mst. Fateh Bibi and others v. Mst. Fatima Bibi and others 2010 SCMR 760 rel.

Muhammad Saddiq and 6 others v. Zafar Iqbal and 9 others 2005 CLC 33; Mst. Fazal Begum and another v. Municipal Corporation, Lahore and 5 others 1983 CLC 1643; Muhammad Yousaf, and others v. Mst. Zainab Bibi 2006 YLR 493; Rehman v. Yara through L.Rs. and others 2004 SCMR 1502; Mst. Jameela Begum v. Additional District Judge and 3 others 2005 MLD 376 and Ghulam Ahmed v. Muzafara Begum and 8 others 2011 YLR 2991 ref.

Mohsin Khan and 3 others v. Ahmad Ali and 2 others PLD 2004 Lahore 1 and Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905 distinguished.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Gift mutation---Onus to prove---Shifting of onus, principle of---Applicability---Beneficiary must prove transaction but when suit to challenge any transaction through any mode is filed, onus shifts upon the other side only, when plaintiff appears before court and makes statement on oath in witness box as his own witness and denies the transaction in question.

(e) Islamic Law---

----Gift---Wife as donee---Principle---When corpus of land is gifted to a lady who is dependent upon donor, physical possession of donor after gift, is presumed on behalf of donee.

(f) West Pakistan Muslim Personal Law (Shariat) Application Act (IX of 1948)---

----S.3---Limited ownership of female---Termination---Scope---Termination of such ownership of female, under S.3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1948, was to be open at the time of death of last male owner and successors of propositus were entitled to inherit.

Sahibzada Mehboob Ali Khan for Petitioners.

Ch. M. Anwar-ul-Haq for Respondents Nos. 1-A and 1-B.

Ch. Pervaiz Akhtar Gujjar for Respondents Nos. 15, 17 and 18.

Ex parte for Respondents Nos.2, 3-A to E, 4-A, B, 5 to 7, 8-A, B, 9, 10, 11, 13-A, B and 16-A to D.

Date of hearing: 31st October, 2012.

2013 M L D 1342

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

AWAL AMEER---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.7557 of 2013, decided on 23rd April, 2013.

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

----S. 5, Sched.---Constitution of Pakistan, Arts.9 & 199---Constitutional petition---Suit for recovery of maintenance allowance---Grant of annual increase in the maintenance allowance of minors---Jurisdiction of Family Court---Contention of petitioner-husband was that he had 3 wives and 9 children and it was difficult for him to pay the maintenance allowance along with annual increase to the minor and there was no provision of law in West Pakistan Family Courts Act, 1964 which permitted the Family Court to grant annual increase in the maintenance allowance payable to the minors---Validity---Family Court established under the West Pakistan Family Courts Act, 1964 had the jurisdiction to grant the maintenance allowance to the minor children---Grant of annual increase was not mentioned in the relevant provision of law, but it was equally correct that in the entire provision of law there was no restriction against the powers of Family Court to grant the annual increase in the maintenance allowance---Under the Constitution the right to life was the fundamental right of every citizen of Pakistan---Family Court while deciding the question of payment of maintenance allowance to minor had to keep in mind the fundamental right of the minor "right of life"---Father was duty bound to provide the maintenance to the male and female children for a specific period i.e. till the age of majority and the marriage of the female child---Minor could approach the court for enhancement of maintenance allowance as per his/her reasonable growing need but in such case every year the minor had to approach the court for the ascertainment of his/her expenses and till that time the court decided the issue, that would be too late---While granting the annual increase the court was bound to consider the financial status of the father and the reasonable requirement of the minor---Annual increase should be just and reasonable backed by cogent reasons---Appellate Court had reduced the annual increase which was reasonable in the circumstances---Constitutional petition was dismissed.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Muhammad Khali-ur-Rehman v. Mst. Shabana Rahman and others PLD 1995 SC 633; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others PLD 1997 SC 582 and Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 rel.

Tauqeer Ahmed Qureshi v. Additional District Judge and others PLD 2009 SC 760 distinguished.

(b) Interpretation of statutes---

----Where literal construction or plain reading of provision of law created absurdity or uncertainty or hardship, the court should interpret the law liberally to arrive at a just, reasonable and sensible conclusion---Every law was enacted in furtherance of justice by passing or ignoring the technicalities---Function of the court was only to expound the law and not to legislate the law, but in all matters the legislature could not be asked to sit and to resolve the difficulty cropped up in the true implementation of law in its true letter and spirit---Court enjoyed the powers to interpret the law in creative manner.

Malik Taj Muhammad Awan for Petitioner.

Muhammad Ishfaq Bhullar for Respondents Nos. 3 to 7.

Ch. Muhammad Iqbal, Additional Advocate General, Punjab on Court's call.

2013 M L D 1359

[Lahore]

Before Syed Iftikhar Hussain Shah, J

BASHIRAN BIBI---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION, KOT SABZAL and 3 others---Respondents

Writ Petition No.1459 of 2013, decided on 12th March, 2013.

Criminal Procedure Code (V of 1898)---

----Ss.498, 61, 167, 46 & 157---Penal Code (XLV of 1860), S.392---Police Rules (1934), R.26-25---Police Order (22 of 2002), Preamble---Constitution of Pakistan, Arts. 199 & 10---Constitutional petition-Detenu-accused, recovery of---Detenu accused who was involved in a criminal case registered under S. 392, P.P.C. was admitted in hospital in injured condition and his arrest was kept pending by the police---Validity---If an accused was apprehended and kept under surveillance then it could not be said that his arrest was not made and was deferred---Accused-detenu was neither produced before the Magistrate within 24 hours of his arrest nor the Investigation Officer had made a request to the Magistrate for examining him at hospital and recording his statement and had kept his arrest pending without any legal justification---Detention of accused-detenu was declared illegal and District Police Officer was directed to proceed against the delinquent police personnel under Police Rules, 1934, Police Order, 2002 and Pakistan Penal Code, 1860---Detenu was the nominated accused and in order to enable him to approach the concerned court, he was granted ad interim protective pre arrest bail---Petition was disposed of.

Miss Kausar Iqbal Bhatti for Petitioner.

Saeed Ahmad Chaudhary, A.A.-G.

Muhammad Aslam Lodhi, Bailiff.

Muhammad Muslim Zia, S.I./S.H.O., Manzoor Hussain, S.I., Muhammad Arif Nadeem, A.S.-I. and Muhammad Zahid No.61/C.

Raheem Bakhsh the alleged dentune in ambulance parked outside the court premises.

2013 M L D 1383

[Lahore]

Before Shahid Waheed, J

Sh. MUKHTAR AHMAD and others---Petitioners

Versus

MUHAMMAD SALEEM BHATTI and others---Respondents

Civil Revision No.2687 of 2011, heard on 18th March, 2013.

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

---O. V, Rr. 9 to 17 & 20---Ordinary modes of service of summons detailed.

The ordinary way in which the service of the summons could be effected on the defendant has reference to the provisions contained in Rules 9 to 17 of Order V C.P.C. Under these provisions the service could be effected on the defendant personally, by registered post, through his authorized agent, or on a male member of his family in accordance with these provisions. It is specifically laid down in Rule 17 that where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no person on whom service can be made, the serving office shall affix a copy of the summons on the outer door or some other conspicuous part of the house and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

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

----O. V, Rr. 9 to 17 & 20---Ordinary modes of service of summons not made properly---Substituted service, in circumstances, was bad in law.

Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmad Khan 2001 SCMR 99 and Syed Muhammad Anwar v. Sheikh Abdul Haq 1985 SCMR 1228 rel.

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

----O. V, Rr. 9 to 17 & 20---Substituted service---Scope---Setting aside of ex parte decree---Date of knowledge of the order---Order of substituted service was nullity in the eye of law in the absence of issuance of summons at correct addresses---Where summons had not been served upon the defendants, the terminus a quo for filing application for setting aside ex parte proceedings was the date of acquisition of knowledge of the order.

Muhammad Aslam v. Addl. District Judge, Rawalpindi and others 1979 SCMR 85 and Muhammad Younis and 4 others v. Additional District Judge, Jhelum and 2 others 2006 MLD 963 rel.

Muhammad Nasir Zahid for Petitioners.

Muhammad Khalid Sajjad Khan for Respondent No.1.

Mian Jamil Ahmad for Respondent No.2.

Date of hearing: 18th March, 2013.

2013 M L D 1388

[Lahore]

Before Ch. Muhammad Younis, J

Mrs. NASREEN TARIQ---Petitioner

Versus

ABDUL BASIT and 2 others---Respondents

Civil Revision No.198 of 2008, heard on 6th June, 2012.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877) Ss. 42 & 54---Suit for declaration, permanent and mandatory injunction seeking to cancel lease of a private school in a residential area---Temporary injunction was granted by Appellate Court to the plaintiff and the school was restrained from advertising for admissions and running the school---Validity---School was established in a residential area and the building was leased out to the defendant for residential purposes---Establishment of a school was a source of private nuisance for the neighbours---High Court observed that such schools were being run on a commercial basis without having regard to the difficulties being faced by the inhabitants of the vicinity---Order of the Appellate Court warranted no interference---Revision was dismissed.

PLD 1969 SC 617; AIR 1968 Punjab and Haryana 399; AIR 1973 Rajasthan 212; AIR 1937 Sind 8; AIR 1978 Gujarat 13; AIR 1941 Nagpur 364; 2003 CLC 627; 2003 CLC 632; 1999 CLC 66; 1992 CLC 2540, PLD 1993 Kar. 631 and PLD 1993 Kar. 642 ref.

PLD 1993 Kar. 631; 1992 CLC 2540 and 1996 Law Notes (sic.) and Lahore Grammar School (Pvt.) Ltd. and another v. Mst. Hameeda Begum and another PLD 1999 Lah. 442 rel.

Sh. Zamir Hussain for Petitioner.

Ms. Sarkar Abbas for Respondents.

Date of hearing: 6th June, 2012.

2013 M L D 1395

[Lahore]

Before Ijaz Ahmad and Ali Baqar Najafi, JJ

MUHAMMAD ASIF---Appellant

Versus

MUHAMMAD IDREES---Respondent

R.F.A. No.132 of 2010, heard on 14th May, 2013.

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

----Art.76(i)---Penal Code (XLV of 1860), S.489-F---Criminal Procedure Code (V of 1898), Ss.22-A & 22-B---Civil Procedure Code (V of 1908), O.XXXVII, Rr.2 & 3---Suit for recovery of amount on basis of dishonoured cheque---Registration of criminal case against defendant on plaintiff's application made to Ex-Officio Justice of Peace---Certified copy of such cheque tendered in evidence by plaintiff---Validity---Under Art. 76(1) of Qanun-e-Shahadat, 1984, secondary evidence might be given of existence or contents of a document, when its original was formed as part of judicial record and was not available and only a certified copy thereof was available---Certified copy of such cheque was admissible as secondary evidence---Absence of original cheque was not fatal to plaintiff's claim in circumstances.

(b) Oaths Act (X of 1873)---

----Ss. 9, 10 & 12---Defendant's offer made to plaintiff to take special oath in support of his claim in suit---Refusal of plaintiff to accept such offer---Effect---Plaintiff by refusing to accept such offer had rested his claim before court on basis of evidence---Court would decide case on its own merits.

Kh. M. Asghar Farooq for Appellant.

Qazi Ibrar Hussain for Respondent.

Date of hearing: 14th May, 2013.

2013 M L D 1404

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

UMAR DRAZ and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.309 and Murder Reference No.61 of 2008, heard on 17th January, 2013.

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

----S. 302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Evidence, qua the motive of occurrence, as stated by the complainant, was based on hearsay evidence---Both prosecution witnesses were not residents of the locality where occurrence had taken place, but were residents of places which were about 2-1/2-3 Kilometers away from the place of occurrence---Eye-witnesses had stated that they identified accused persons at the time of occurrence from the distance of ten Karams (about fifty-five feet) in the light of torch---Said torch was not produced before Police Officer at the time of his spot inspection but was produced before Investigating Officer, four days after occurrence, without any plausible explanation for such delay---Identification of accused persons in the darkness of night with the help of torch light from a distance of about fifty-five feet, was not free from doubt---Conduct of the complainant and other prosecution witnesses, at the time of occurrence was also unnatural---Accused were not carrying any lethal weapons at the time of occurrence---Complainant party saw accused persons strangulating deceased, but instead of rescuing the deceased, or trying to overpower accused persons, they raised noise whereupon, accused fled away from the spot---Was not possible that one of accused persons, who was an old man of the age of sixty-seven years, would succeed to flee away from the spot in presence of prosecution witnesses who were twenty-eight years and forty-nine years of age respectively---Nothing incriminating was recovered from possession of accused persons during their physical remand---Occurrence was un-witnessed, which took place in the darkness of night---Accused were implicated in the case by the complainant party on the basis of suspicion, because the dead-body of the deceased was statedly found near their house---Prosecution having failed to prove its case against accused persons beyond the shadow of doubt, conviction and sentence awarded to accused, were set aside, they were acquitted of the charges by extending them the benefit of doubt and were released, in circumstances.

(b) Criminal trial---

----Benefit of doubt---If there was a single circumstance which would create doubt regarding the prosecution case, that was sufficient to give benefit of such doubt to accused.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Ch. Tanveer Ahmad Hanjra and Ch. Muhammad Nawaz Bosal for Appellants.

Arshad Mehmood, Deputy Prosecutor General for the State.

Rehan Faheem Mahl for the Complainant.

Date of hearing: 17th January, 2013.

2013 M L D 1415

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

THE STATE through Prosecutor General, Punjab, Lahore---Petitioner

Versus

MUHAMMAD ASLAM and another---Respondents

Criminal Miscellaneous No.11596-BC of 2012, decided on 27th November, 2012.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324, 336, 337-F(v), 337-F(vi), 341, 355, 148 & 149---Attempt to commit qatl-e-amd, Itlaf-i-Salahiyat-i-Udw, causing Hashimah, Munaqqilah, wrongful restraint, assault, rioting, common object---Cancellation of bail, petition for---Accused had only been ascribed the role of raising 'Lalkara' while being present at the place of occurrence empty handed---Accused being empty handed, question of any recovery did not arise---Prosecution remained unable to refer any material collected by the Investigating Agency with regard to hatching of conspiracy/abetment---No specific date, time and place of hatching conspiracy had been mentioned---Accused, as alleged, had not advanced threats of dire consequences to the prosecution witnesses---Mere recording of rapts in Roznamcha was not sufficient to substitute the same with judicial order---Previous involvement of accused in alleged 43 cases, was of no use for the prosecution, as accused was a Political figure who remained Member of Provincial Assembly; in that background, mere registration of cases against accused was no ground to withhold grant of bail to accused/cancel the bail---Alleged misuse of concession of bail by accused, had not been substantiated from any cogent material---Impugned order granting bail to accused, being well versed, well reasoned and quite in accordance with law, would call for no interference by High Court---Petition for cancellation of bail, was dismissed, in circumstances.

Moundar and others v. The State PLD 1990 SC 934; Muhammad Rafique v. The State 1997 SCMR 412 and Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231 rel.

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

----S. 497(5)---Cancellation of bail---Considerations for grant of bail and cancellation thereof, were entirely different; there should be extra-ordinary circumstances for recalling the order once passed in favour of accused---Primary and foremost consideration to cancel/ recall bail granting order was misuse of the concession of bail, which was to be proved by adducing cogent/convincing material.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Mian Dad v. The State and another 1992 SCMR 1286; State of Gujrat v. Jaswantlal Nathalal AIR 1968 SC 700; Falak Sher v. The State 1979 SCMR 103; Punjab National Bank and others v. Surendra Prasad Sinha 1994 PSC (Crl.) 768; Ghulam Ali v. Javid and another 1989 PCr.LJ 507; Shaukat Ali Sagar v. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others 2006 PCr.LJ 1900 and Shahid Arshad v. Muhammad Naqi Butt and 2 others 1976 SCMR 360 rel.

Abdul Samad, Additional Prosecutor General for Petitioner.

Azam Nazeer Tarar for Respondent No.1.

Sher Ahmad, Inspector with record.

2013 M L D 1422

[Lahore]

Before Ijaz Ahmad, J

Mst. SIDDIQAN and 3 others---Petitioners

Versus

MEMBER, BOARD OF REVENUE and 3 others---Respondents

Writ Petition No.2-R of 1995, decided on 29th January, 2013.

Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949)---

----S. 2(2)(i) & (3)---Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 2(2)(3)---Colonization of Government Lands (Punjab) Act (V of 1912), Ss. 10 & 15---Constitution of Pakistan Art. 199---Constitutional petition---State land purchased in open auction by non-Muslim in year 1946---Resumption of such land by Government after its auction purchasers migrated to India and its allotment to respondent under Well Sinking Scheme---Subsequent treatment of such land as evacuee land by Settlement Authorities and its allotment to petitioner in satisfaction of his claim for land left by him in India---Order of Board of Revenue holding that such land had been resumed on account of non-payment of full auction price, thus, same had not acquired the status of evacuee property---Validity---Auction purchaser had paid Rs.35,596/50 out of Rs.47,462---Nothing on record to show that such land had ever been resumed on account of non-payment of its last instalment---Entries made in Khasra Girdawri for crops of Kharif 1952 to Rabi 1952 would not render such land as resumed---Acquisition of complete proprietary rights in State land by an evacuee would not be necessary for terming same as evacuee property---Provision of S. 15 of Colonization of Government (Punjab) Lands Act, 1912 could not be interpreted in a manner to take away all rights of auction-purchaser over such land---Government vide Letter dated 4-7-1992 had declared all such lands evacuee property whether full payment had been made or not---Evacuee had a right in such land, which would make same evacuee property---Character of property would make same evacuee or not---Such land always remained evacuee property--No formal document or declaration was required to term such land as evacuee property---Such overt act of Settlement Authorities was the only evidence that such land had been recorded as evacuee property---High Court set aside order of Board of Revenue, declared such land to be an evacuee property never having lost its such character, set aside its allotment in favour of respondent and restored its allotment order in favour of petitioner.

Settlement Commissioner (L) and another v. Mauj Din and others 1989 SCMR 1351; Muhammad Alam Khan and 3 others v. Mahmud Ahmad and 2 others 1974 SCMR 92; Muhammad Yaqub and others v. Tufail Muhammad and others 1991 CLC Note 262; Mst. Nazeeran v. Wali Muhammad Nagar, Deputy Custodian, Lahore and others PLD 1969 Lah. 701; Abdul Khaliq Abdul Razzaq v. Kishanchand and others PLD 1964 SC 74; Muhammad Rafique v. Nazir Ahmed and others 2007 SCMR 287 and Secretary to the Government of the Punjab, Forest Department, Punjab Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 ref.

Muhammad Alam Khan and 3 others v. Mahmud Ahmad and 2 others 1974 SCMR 92 rel.

Hakeem-ud-Din Qureshi for Petitioners.

Ch. Muhammad Hussain Jahanian and Muhammad Riaz Jahanian for Respondent No.3-A.

Wakeel Ch. for Respondents Nos. 8 to 16.

Sohail Iqbal Bhatti, Addl: Advocate General for the State.

2013 M L D 1441

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

Messrs HONDA BREEZE through Managing Partner---Petitioner

Versus

CITY DISTRICT GOVERNMENT, MULTAN and 3 others---Respondents

Writ Petitions Nos.3210, 4657, 4687 of 2006, 2148 of 2007 and 6251 of 2011, decided on 18th December, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Commercialization of property by municipal authority---Commercialization fee---Petitioners contended that certain properties had attained the nature of commercial properties and they became aggrieved when the Municipal Authority put checks on the nature of such properties and on the illegal sanction of commercial site plans and over activates being carried out at such properties---High Court observed that it was not clear as to which commercialization policy was in vogue in the relevant area and whether such policy could be imposed retrospectively---High Court directed the District Coordination Officer to undertake consolidated efforts by associating representatives from Housing and Environment Planning Department, Development Authority, petitioners, City District Government, Chamber of Commerce and all other stake holders and recommend a uniform policy and get sanction for the same from the Provincial Government and then to apply such policy in letter and spirit---High Court further directed that the commercialization fee or site plan sanctioning fee, deposited by some petitioners would be retained by the authorities in favour of the purpose for which the same were deposited, but the said amount would be subject to final outcome of the new policy and until the final policy, no property in the city would be sealed.

Malik Muhammad Tariq Rajwana for Petitioner.

Syed Muhammad Ali Gillani for Petitioner (in Writ Petitions Nos.3210, 4657 of 2006 and 2148 of 2007).

Talib Hussain for Petitioner (in Writ Petition No. 6251 of 2011).

Haji Muhammad Aslam for Respondent No.1.

Abdul Salam Alvi for TMA.

2013 M L D 1463

[Lahore]

Before Shahid Hameed Dar, J

JAVED IQBAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1595-B of 2013, decided on 28th February, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 365-B, 376, 420, 468, 471 & 109-Kidnapping, abducting or inducing woman to compel for marriage etc. , rape, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment---Bail, refusal of---Factum of marriage (Nikkah) not proved---Nikahnama found as forged---Probability of abscondment of accused---Effect---Accused and co-accused persons allegedly kidnapped the abductee and thereafter committed rape with her---Plea of accused that abductee being sui juris solemnized nikah with him---Validity---Alleged marriage between accused and abductee stood undone through a judgment and decree passed in a suit for jactitation of marriage filed by the abductee---Nikahnama could not be verified during course of investigation because of which offences under Ss. 420, 468 & 471, P.P.C. were also added---Abductee categorically alleged in her statements under Ss. 161 & 164, Cr.P.C. that the accused and co-accused ravished her repeatedly---Conduct of accused was not praiseworthy at all as after dismissal of his pre-arrest bail applications from High Court and the Supreme Court, he did not surrender before the police and continuously kept absconding till he was arrested as a fugitive from the law---Abscondment of accused spanned over years, thus probability could not be ruled out that he might abscond again, if released on bail---Offence alleged fell within the prohibitory clause of S. 497(1), Cr.P.C.---Bail application of accused was dismissed accordingly.

Fawad Malik for Petitioner.

Mrs. Muqadass Tahira, Additional Prosecutor General Punjab for the State with Zafar Iqbal S.I.

Rai Munir Zafar Sangra for the Complainant.

2013 M L D 1490

[Lahore]

Before Abdus Sattar Asghar, J

RAB NAWAZ---Petitioner

Versus

MUHAMMAD KABEER and another---Respondents

Civil Revision No.1366 of 2011, heard on 28th January, 2013.

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

----O. XXXVII---Summary suit---Parties to a lis could enter into an agreement that suit be decided in accordance with the statement to be made by third person as to matter in dispute between them.

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

----O. XXIII, R.3---Arbitration Act (X of 1940), Preamble---Compromise of suit---Statement between the parties to the suit for decision of the same on the statement of a third person did not fall within the ambit of O.XXIII, R.3, C.P.C. nor provisions of the Arbitration Act, 1940 were applicable---Such statement between the parties being a mere agreement, could be retracted by any party due to lack of confidence upon the Referee---Court had no jurisdiction to record the statement of the Referee when there was lack of confidence by any party to the suit.

Muhammad Akbar and another v. Muhammad Aslam and another PLD 1970 SC 241 ref.

Ch. Muhammad Anees Khatana for Petitioner.

Ghulam Mujaddid Rabbani and Zafar Ahmad Gondal for Respondents.

Date of hearing: 28th January, 2013.

2013 M L D 1497

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

SABIR ALI and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2705-B of 2013, decided on 22nd March, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 458, 395, 397 & 412---Qanun-e-Shahadat (10 of 1984), Art. 22---Lurking house-trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint, dacoity, robbery or dacoity, with attempt to cause death or grievous hurt, dishonestly receiving property stolen in the commission of dacoity---Bail, grant of---F.I.R. against unknown persons---Non-conducting of test identification parade---Non-recovery of incriminating articles---Effect---Accused persons allegedly trespassed into the house of complainant and after tying down the inmates of the house took away cash, mobile phone and other articles---Complainant alleged that he traced the accused persons through International Mobile Station Equipment Identity (IMEI) number of the stolen mobiles regarding which he also collected data---Initially F.I.R. was lodged against unknown persons, thus it had become essential for the police to trace out the assailants and conduct their identification parade---Contention of complainant that he tracked down the accused himself [through (IMEI) number of the stolen mobiles] was against the spirit of law, as it was the duty of the police to track down the suspect, therefore, no legal value could be attached to such effort of the complainant---Even otherwise tracking record (collected by the complainant) had not been made part of the police file nor had the police collected the same from the concerned authority---Although one piece of artificial jewelry was recovered at the instance of the accused, but such recovery did not provide incriminating evidence against the accused persons---Nothing on record showed that accused persons had criminal antecedents, thus they appeared to be first time offenders---Accused persons were admitted to bail in circumstances.

A.D. Nasim for Petitioners.

Muhammad Ishaq, Deputy Prosecutor General for the State along with Muhammad Din A.S.-I.

Ch. Azam Nazeer Tarar and Ch. Muhammad Arshad Ramay for the Complainant.

2013 M L D 1516

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD SHARIF through legal heirs and 4 others---Petitioners

Versus

NASRA alias NASIRA and 3 others---Respondents

Civil Revision No. 523-D of 2010, decided on 4th January, 2013.

Specific Relief Act (I of 1877)---

----S.42---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.25---Suit for declaration---Evacuee land---Concurrent findings of fact by two courts below---Jurisdiction of civil court barred---Scope---Plaintiff claimed to be owner in possession of suit land and assailed mutation of Tamleek made in favour of defendant---Suit filed by plaintiff was concurrently decreed in his favour by Trial Court and Lower Appellate Court---Plea raised by defendant was that suit filed by plaintiff before civil court was barred under S. 25 of Displaced Persons (Rehabilitation and Compensation) Act, 1958---Validity---Mutation of inheritance was attested by Settlement authorities, whereunder both sons of deceased land owner were given their due shares---Such entries were duly carried to Jamabandi (Record of Rights) for years, 1956-57, but thereafter the same were unauthorizedly changed without any order of competent authority---Ouster of jurisdiction under S. 25 of Displaced Persons (Rehabilitation and Compensation) Act, 1958, was not absolute---Plaintiff did not challenge any order of Settlement Authority rather his grievance was that after attestation of mutation under the orders of competent authorities, entries in revenue record were illegally changed and such fact was established on record beyond any doubt---Concurrent findings of courts of competent jurisdiction on the question of fact could not be interfered with in exercise of revisional jurisdiction under S.115, C.P.C.---Judgments and decrees passed by two courts below did not suffer from any illegality or infirmity---Revision was dismissed in circumstances.

2002 SCMR 829; PLD 2011 SC 916 and PLD 1990 SC 1 distinguished.

Ch. Abdul Ghani for Petitioners.

Anwar Mubeen Ansar for Respondents Nos. 2 to 4.

Date of hearing: 14th December, 2012.

2013 M L D 1522

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

JAFFAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.61-Q of 2011, decided on 19th June, 2013.

Criminal Procedure Code (V of 1898)---

---Ss. 265-K & 202---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Private complaint, withdrawal of---Scope---Complainant lodged an F.I.R. against the accused and co-accused persons for the murder of her son---Complainant also lodged a private complaint against accused and co-accused persons for the same charge---All the co-accused of the private complaint were acquitted by Trial Court, while accused was declared as proclaimed offender---Subsequently on arrest of accused, he was tried by the Trial Court, where the complainant and eye-witnesses of the occurrence made statements on oath to the effect that accused was implicated for the offence due to misunderstanding and doubts---Accused, in such background filed an application before the Trial Court under S. 265-K, Cr.P.C. seeking his acquittal, however the same was dismissed by the court on the ground that after following the procedure under S. 202, Cr.P.C., private complaint was converted into a State case, which could not be withdrawn by the complainant---Legality---Complainant and prosecution witnesses had certified that accused had been involved in the case due to some misunderstanding and that his involvement in the offence was doubtful---After such evidence, which was main stay of the prosecution, Trial Court was left with no option but to acquit the accused from the charge as there was no possibility of his conviction in the case---When ocular account was not supporting its own case, then on corroborative pieces of evidence a person could not be convicted for any offence---Trial Court had committed grave illegality in refusing application of accused---Application of accused under S. 265-K, Cr.P.C. was accepted, in circumstances, and he was acquitted from the charge of murder.

Nazar Abbas Syed for Petitioner.

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

Ms. Shamaila Arshad for Respondents.

2013 M L D 1530

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

DHL PAKISTAN PVT. LTD.---Appellant

Versus

MUHAMMAD IMTIAZ SIDDIQUI---Respondent

F.A.O. No.291 of 2013, decided on 6th June, 2013.

Punjab Consumers Protection Act (II of 2005)---

----Ss.27, 31 & 30---Complaint against defendant Courier Company was accepted by the Consumer Court and ex parte decree was issued against the defendant with direction to pay damages to the complainant---Claimant thereafter filed application for execution of decree, which was impugned by defendant---Validity---Execution petition remained pending for more than two years and a number of notices and bailable warrants were issued for procuring the attendance of the courier company---Claimant went from pillar to post to get order of Consumer Court implemented and conduct of the appellant throughout remained contumacious and deplorable---Consumer Courts were Specials Tribunals that had been constituted under the Punjab Consumer Protection Act, 2005 which was special dispensation, provisions of the Civil Procedure Code, 1908 were inapplicable thereto and instead of decree sheets, memo of costs was drafted by the Consumer Court---No illegality existed in the impugned order---Appeal was dismissed.

Moeen Qureshi for Appellant.

2013 M L D 1535

[Lahore]

Before Atir Mahmood, J

SALEEM AKHTAR and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No.775 of 2012/BWP, decided on 20th May, 2013.

Specific Relief Act (I of 1877)---

----Ss. 8, 39, 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Suit for declaration, possession and permanent injunction---Transfer of suit property in favour of favour of defendant through registered sale deed and mutation---Plaintiff challenged validity of suit mutation---Plaintiff's application for temporary injunction was accepted by Trial Court, but dismissed by Appellate Court---Validity---Plaintiff had not challenged or sought cancellation of sale deed on basis of which suit mutation was attested---Plaintiff had merely sought cancellation of suit mutation---Possession of suit property was with defendant---Plaintiff had failed to establish prima facie case, irreparable loss and balance of inconvenience in his favour---High Court dismissed revision petition.

Ch. Shehzad Ashraf Mohandra for Petitioners.

Saeed Ahmad Chaudhry, A.A.-G. for Respondents Nos. 1 to 7.

Aftab Ahmad Goraya for Respondents Nos. 8 to 15.

2013 M L D 1547

[Lahore]

Before Muhammad Ameer Bhatti, J

GHULAM RASOOL and others---Petitioners

Versus

AHMED KHAN through legal heirs and others---Respondents

Civil Revision No. 182 of 2003, decided on 11th November, 2011.

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

----S. 115---Concurrent findings of facts of courts below---Interference with such findings by High Court in revisional jurisdiction---Scope---Such findings would not be interfered with in ordinary manner without showing same to be erroneous, perverse, arbitrary and fanciful or having caused serious injustice.

Hazara and others v. Muhammad Yar and others 2011 SCMR 758 ref.

Mushtari Khan v. Jehangir Khan 2006 SCMR 1238; Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307; Mubarik Ali through L.Rs. v. Amroo Khan through L.Rs. 2007 SCMR 1714; Muhammad Rafique v. Muhammad Iqbal and others 2007 SCMR 863; N.-W.F.P. through Chief Secretary, Government of N.W.F.P Peshawar and 2 others v. Dost Muhammad and another 1998 SCMR 850; Kamal Din v. The State PLD 1983 SC 85 and Muhammad Sharif and others v. Meraj Din and others PLD 2005 Lah. 102 rel.

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

----S.41---Purchase of land---Revenue record showing suit land to be mutated in name of vendor on basis of decrees of civil court---Validity---Vendee after verifying such entry from revenue record had rightly drawn inference that vendor was an ostensible owner of suit land---Vendee had obtained possession of suit land from vendor and was still in possession thereof without any interference---Vendee had purchased suit land in good faith for value, thus, his rights were protected under S.41 of Transfer of Property Act, 1882.

Itbar Shah and others v. Ahmad Shah and others 2001 CLC 1021; Muhammad Afzal v. Matloob Hussain and others PLD 2006 SC 84; Mst. Asia Latif v. Tariq Muhammad Khan 2007 YLR 1636; Muhammad Amin and 2 others v. Santo alias Gaman and another 2005 YLR 2379 and Sher Muhammad v. Qutbu and others 2002 SCMR 1447 rel.

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

----S. 41---Section 41 of Transfer of Property Act, 1882, applicability of---Essential ingredients stated.

Ingredients of Section 41 of Transfer of Property Act, 1882 are that (a) the transferor is the ostensible owner; (b) he is so by the consent, express or implied, of the real owner; (c) the transfer is for consideration; and (d) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

Itbar Shah and others v. Ahmad Shah and others 2001 CLC 1021; Muhammad Afzal v. Matloob Hussain and others PLD 2006 SC 84; Mst. Asia Latif v. Tariq Muhammad Khan 2007 YLR 1636; Muhammad Amin and 2 others v. Santo alias Gaman and another 2005 YLR 2379 and Sher Muhammad v. Qutbu and others 2002 SCMR 1447 rel.

Ghulam Farid Sanotra for Petitioner.

Allah Wasaya Malik for Respondents.

Date of hearing: 2nd November, 2011.

2013 M L D 1561

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD ZAHID---Petitioner

Versus

The STATE and another---Respondent

Criminal Miscellaneous No.18543-B of 2012, decided on 10th January, 2013.

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

----S. 498---Penal Code (XLV of 1860), Ss. 420/468/471/154---Punjab Local Government Ordinance (XIII of 2001), S. 141---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, owner or occupier of land on which an unlawful assembly is held---Ad interim pre-arrest bail, confirmation of---Allegation against accused was that he was extracting money from innocent people by issuing bogus parking slips, posing himself to be a contractor under the Local Government---No allegation existed against accused to the effect that he was receiving the parking fee himself from vehicle owners---Investigating officer had taken into possession alleged parking fee slips from co-accused persons---Name of accused or his company did not figure on the alleged parking slips----During investigation, a number of people appeared before investigating officer and tendered their affidavits in defence of accused to the effect that he had nothing to do with the alleged offence---Accused was roped in the case on statement of co-accused persons, which statements were not admissible in evidence---Accused had already joined investigation and he was a previous non-convict---Sections 420 & 471, P.P.C. were bailable---Sections 468 & 154, P.P.C. and S. 141 of Punjab Local Government Ordinance, 2001 did not fall within the prohibitory clause of S. 497, Cr.P.C.---Ad interim pre-arrest bail already allowed to accused was confirmed in circumstances.

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

----Ss. 498 & 164---Bail---Statement of accused implicating his co-accused---Scope---Such statement of accused was not admissible in evidence against his co-accused.

Syed Farhad Ali Shah for Petitioner.

Nisar Ahmad Virk, Deputy Prosecutor-General for the State and Muhammad Husain, A.S.-I. with record.

2013 M L D 1573

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

SALEEM MASIH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.703 and Murder Reference No.316 of 2009, heard on 27th May, 2013.

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

----Ss. 302(b), 324 & 337-F(iii)---Qatl-e-amd, attempt to commit qatl-e-amd, causing Mutalahimah---Appreciation of evidence---Benefit of doubt---General role of aerial firing was attributed to accused and there was no allegation either in the F.I.R. or before the Trial Court that accused had caused any injury to either of the deceased persons---Accused was on much better footing than that of six co-accused, who were acquitted by the Trial Court---Evidence regarding recovery of .30 bore pistol was not put to accused---Piece of evidence, not put to accused, while recording his statement under S.342, Cr.P.C. could not be used against him for his conviction---Report of Forensic Science Laboratory, was wrongly relied by the Trial Court toward conviction to accused as it was neither exhibited during the trial, nor put to accused while recording his statement under S.342, Cr.P.C.---Motive was alleged against accused as well as his co-accused, and since, it had not been believed against co-accused, same could not be believed against accused to maintain his conviction---Accused was found guilty on the opinion of Police---Opinion of the Police qua innocence or guilt of an accused was inadmissible in evidence---Accused could not be convicted merely on the ground that he was declared guilty by the Police during the course of investigation---Prosecution case to the extent of accused was doubtful in nature---Conviction and sentence awarded to accused for murder of the deceased; and for launching a murderous assault upon the injured passed by the Trial Court, were set aside while extending him benefit of doubt, he was acquitted of the charges framed against him and he was released, in circumstances.

Iftikhar Hussain and another v. State 2004 SCMR 1185; Akhtar Ali and others v. The State 2008 SCMR 6 and Muhammad Ahmad (Mahmood Ahmed) and another v. The State 2010 SCMR 660 rel.

(b) Criminal trial---

----Evidence---Testimony of a witness would be accepted against one set of accused though same had been rejected qua another set of accused facing the same trial, provided it would get some independent corroboration on material particulars of the case; and in the absence of any independent corroboration qua the role attributed to accused, he would also be liable to acquittal.

Tahir Bashir for Appellant.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Muhammad Imran Chohan for Muhammad Mushtaq.

Date of hearing: 27th May, 2013.

2013 M L D 1599

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD SAJJAD and others---Petitioners

Versus

RAB NAWAZ and 2 others---Respondents

Criminal Revision No.479 of 2011, decided on 26th September, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 200---Case of two versions---Challan case and private complaint---Concurrent proceedings---Stay of proceedings in challan case---Scope---Accused persons (petitioners) were alleged to have committed the murder of the deceased---Complainant lodged F.I.R. against accused persons but during investigation police found all of them to be innocent and submitted challan against two co-accused persons declaring them to be the actual culprits---Subsequently complainant party, dissatisfied with police investigation, lodged private complaint against accused persons and also filed affidavits in favour of co-accused persons in the challan case, declaring them as innocent---Trial Court stopped proceedings in challan case and proceedings in private complaint were taken up and consequently accused persons were summoned---Accused persons filed application before Trial Court to stop proceedings in the private complaint and to initiate proceedings in the challan case, but same was dismissed---Validity---Case was of two versions---Police while discarding complainant's version as set forth in the F.I.R., introduced new culprits comprising of two co-accused persons with a new set of witnesses---Complaint case was to be taken up first in such circumstances---No legal infirmity was found in the order passed by the Trial Court---Revision petition was dismissed accordingly.

Nur Elahi case PLD 1966 SC 708; Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others 1981 SCMR 361 and Zulfiqar Ali Bhuto's case PLD 1970 SC 53 foll.

Muhammad Asghar v. The State and 2 others 2006 PCr.LJ 486 distinguished.

Malik Muhammad Saleem for Petitioners.

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

Ch. Faqir Muhammad for Respondents.

2013 M L D 1607

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD EJAZ---Petitioner

Versus

STATION HOUSE OFFICER and 5 others---Respondents

Writ Petition No.8864-Q of 2012, decided on 29th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 154---Penal Code (XLV of 1860) S. 365-B---Constitution of Pakistan, Art. 199---Constitutional petition---Kidnapping/abduction---Quashing of F.I.R.---Contention of accused (petitioner) was that complainant was his lawful wife and that earlier F.I.R. on the same subject had been cancelled by the High Court----Validity---Complainant in earlier F.I.R. appeared in court and recorded statement to the effect that she was lawful wedded wife of accused and that F.I.R. was false and also recorded statement under S. 161, Cr.P.C. on basis of which said F.I.R. was cancelled---Subsequently differences arose between complainant and accused after which complainant got recorded present false and frivolous F.I.R.---Impugned F.I.R. related to the same occurrence, same story and same accused and could not be registered---Allowing impugned F.I.R. to remain in field in such circumstances, would amount to abuse of process of law---High Court ordered quashing of impugned F.I.R.---Constitutional petition was allowed, in circumstances.

Malik Muhammad Jamshed Awan for Petitioner.

Aziz-ur-Rehman Khan, Assistant Advocate General with Rasheed S.I.

2013 M L D 1613

[Lahore]

Before Miss Aalia Neelum, J

MUHAMMAD ILYAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5453-B of 2013, decided on 14th May, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 87 & 88---Penal Code (XLV of 1860), S 489-F---Dishonestly issuing a cheque---Bail, grant of---Cheque issued for repayment of a loan---Although complainant had given an amount to the accused but no reason for repayment of loan had been explained in the F.I.R., therefore involvement of accused could only be determined by the Trial Court after recording of evidence---Offence alleged was punishable with three years' imprisonment, therefore, it did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was no more required for investigation and challan against him had been submitted before the Trial Court---Although accused was declared a proclaimed offender but proceedings of proclamation under Ss.87 & 88, Cr.P.C. were not made in accordance with law as without waiting for expiry of a period of 30 days, accused was declared proclaimed offender---Accused was granted bail in circumstances.

Rana Saqib Mumtaz Ahmed Khan for Petitioner.

Nawaz Shahid, Deputy District Prosecutor General with Ashraf, S.I. with record.

Mian Muhammad Aslam for the Complainant.

2013 M L D 1618

[Lahore]

Before Amin-ud-Din Khan, J

SALEEM KHAN and others---Petitioners

Versus

PROVINCE OF PUNJAB through District Collector and others---Respondents

Civil Revision No.2148 of 2001, heard on 27th May, 2013.

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

----S. 42---Limitation Act (IX of 1908), S. 120---Colonization of Government Lands (Punjab) Act (V of 1912), S. 36---Suit for declaration---Limitation---Propriety rights---Jurisdiction of civil court---Plaintiffs filed suit for declaration of their title and they challenged allotment and conferment of proprietary rights---Suit was dismissed concurrently---Validity---Consecutive entries of bifurcation of both the killa numbers had been referred in Khasra girdawari---Bifurcated Khasra numbers had been allotted and proprietary rights had been given---Total land mentioned in the sale deed was to be considered as transferred in favour of vendee by the vendor---Presumption was attached to the figure of total property mentioned in the document---Detail of property was mentioned just for identification---Sale deed was clear that specified land had been transferred by the authorities and amount had been paid---Patwari had implemented the sale deed---No illegality had been committed by the revenue officials while implementing the sale deed---Plaintiffs-petitioners failed to establish their right of ownership---Declaration of title already in existence could be granted but no new right could be created through declaratory decree---For challenging transfer, the plaintiffs-petitioners were required to show that the same was without jurisdiction---If the authority had exercised jurisdiction vested in it by law, then the bar was applicable and if the authority had exercised jurisdiction not vested in it by statute, then the bar contained in the statute was not applicable---Plaintiffs-petitioners failed to show that the jurisdiction exercised by official defendants was not vested in them, hence, bar of jurisdiction was applicable and suit was not competent---Permission to file fresh suit could not enhance the limitation for filing suit---Under Art. 120 of the Limitation Act, 1908, for filing declaratory suit, the limitation was six years---Present suit was filed after six years from filing of earlier suit and the same was time barred---Plaintiffs-petitioners were bound to annex with revision petition, the certified copies of pleadings, complete evidence, orders and judgments/decrees---Due to non-filing of said documents the revision was not competent---Revision was dismissed.

Muhammad Munir v. Muhammad Saleem and others 2004 SCMR 1530 and Muhammad Ishaq v. Muhammad Shafiq and 9 others 2007 SCMR 1773 distinguished.

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

----S.115---Revision, filing of---Prerequisites---Petitioner was bound to annex with revision petition, the certified copies of pleadings, complete evidence, orders and judgments/decrees---Non-filing of said documents would render the revision incompetent.

Sh. Naveed Sheharyar for Petitioners.

Nemo for Respondents Nos.1 to 4.

Hafiz Muhammad Arshad Rana for Respondent No.5.

Date of hearing: 27th May, 2013.

2013 M L D 1631

[Lahore]

Before Mamoon Rashid Sheikh, J

Mst. ALIYA FAZIL and another---Petitioners

Versus

Mirza FARHAN RUBBANI and another---Respondents

Writ Petition No.2626 of 2012, decided on 28th June, 2013.

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

----Ss.12 & 25---Constitution of Pakistan, Art. 199---Constitutional petition---Contest for custody of minor daughter between father and mother---Welfare of minor, paramount consideration---Dismissal of father's petition by Guardian Judge for having a second wife with children while allowing him to meet minor at specified time---Dismissal of mother's appeal by District Judge after modifying schedule of minor's meetings with father---Mother's plea was that minor's meeting with father in presence of step mother and step brother sisters would not be conducive---Validity---Welfare of minor would be of paramount consideration in guardianship matters---Father could not be denied minimum right of access to his minor children nor, would he be considered alien enemy qua them---Child would need love, affection, care and attention of mother as well as love, affection, company and guiding hand of father---Depriving father of his right to meet his children would lead to emotional deprivation on both sides---Nothing on record to show that step mother had either mistreated minor or was likely to do so---Children of step mother were younger than minor daughter; and that nothing on record to show that their presence had, adversely affected minor---Acrimony existed between husband and first wife, but any amount of acrimony between ex-spouses should not be allowed to stand in way of welfare of minor---Father and minor should have access to each other and spend time in each other's company also during minor's vacation---High Court dismissed mother's constitutional petition in circumstances.

Mst. Imtiaz Begum v. Sheikh Azmat Ullah PLD 1959 (W.P) Lah. 750; Mst. Rasheedan Bibi v. Additional District Judge and 2 others 2012 CLC 784; Muhammad Zaman and 2 others v. Ameer Hamza 2009 CLC 230; Razia Bibi v. Additional District Judge, Sargodha and 2 others 2009 YLR 222; Muhammad Ali v. Rehmat Bibi and 2 others 2006 YLR 4; Saad Amanullah Khan v. IVth-Senior Civil Judge, (South), Karachi and 3 others PLD 2008 Kar. 499 and Mrs. Seema Chaudhry and another v. Ahsan Ashraf Sheikh and others PLD 2003 Supreme Court 877 ref.

Mst. Maryam Masood v. Mughisuddin Mirza and 2 others 2009 CLC 1443 and Altaf Akhtar Alvi v. Mst. Sadaf Ara and others 2008 SCMR 527 rel.

Haroon Irshad Janjua for Petitioners.

Karim-ud-Din Malik for Respondent No.1.

2013 M L D 1640

[Lahore]

Before Mamoon Rashid Sheikh, J

Mst. ZARMEEN---Petitioner

Versus

Dr. OMER MOHAYUDDIN SHEIKH and others---Respondents

Criminal Miscellaneous No.253-H of 2013, decided on 8th March, 2013.

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

----S.12---Criminal Procedure Code (V of 1898), S.491---Interim custody of minor---Jurisdiction of Guardian Judge for custody of minor and that of High Court under S.491, Cr.P.C. for recovery of minor---Scope---Both such jurisdictions for being entirely different would not destroy/exclude the other---High Court as an interim measure in the interest and welfare of minor, while pending its final decision by Guardian Judge, could entrust custody of minor to a person holding lawfully his/her custody before its deprivation of the same.

Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891; Ahmed Sami and 2 others v. Saadia Ahmed and another 1996 SCMR 268 and Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480 rel.

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

----Ss.491 & 561-A---Petition for recovery of custody of two minors aged two years and five years---Second petition before High Court after dismissal of first petition by District Judge---Interim Custody, grant of---Scope---Plea of wife (petitioner) was that husband (respondent) had turned her out from his abode and kept custody of minors forcibly, whereas plea of respondent was that she had voluntarily abandoned minors---Such disputed facts could not be decided without evidence, which High Court would not record in exercise of jurisdiction under S.491, Cr.P.C. for being summary procedure---High Court in exercise of inherent jurisdiction could pass an appropriate order while keeping in view welfare of minors of such tender age and attending circumstances---High Court accepted petition and directed husband to hand over interim custody of minors to wife while directing Guardian Judge to decide case expeditiously while restrained parties to remove minors from jurisdiction of Guardian Judge without his express order and allowed husband to visit minors at specified time.

Zubaida Shahzadi v. Muhammad Aslam and another 2007 MLD 512; Nitasha Rashid v. Rashid Zar and 4 others PLD 2010 Kar. 119; Mst. Khalida Parveen v. Muhammad Sultan Mahmood and another PLD 2004 SC 1; Mst. Azra Bhatti v. S.H.O., Police Station Hydri and 3 others PLD 2009 Kar. 325; Mst. Haleema Bibi v. Bashir Ahmad and 2 others 2000 PCr.LJ 1685 and Mst. Farzana v. Syed Muhammad Afzal and another 1991 PCr.LJ 758 ref.

Ms. Asma Jahangir and Mst. Alia Malik for Petitioner.

Suqrat Basit for Respondents Nos. 1 to 3.

2013 M L D 1648

[Lahore]

Before Malik Shahzad Ahmed Khan, J

Syed TAFSIR HUSSAIN---Appellant

Versus

MUHAMMAD RASHID JANJUA---Respondent

F.A.O. No.157 of 2010, heard on 21st November, 2011.

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

----S.17---Specific Relief Act (I of 1877), S.12---Transfer of Property Act (IV of 1882), S.53-A---Ejectment of tenant---Stay of proceedings---Specific performance of agreement to sell---Pendency of suit---Part performance---Tenant resisted ejectment proceedings on the plea that he had filed suit for specific performance of agreement to sell and possession of premises was with him as part performance of the agreement---Validity---Tenant could not be protected from ejectment merely by asserting agreement to sell in his favour or by filing suit for specific performance of agreement to sell, unless sale-deed was executed in his favour and agreement to sell had been enforced---Filing of civil suit could not vitiate title of landlord unless the same was finally decided---Only those cases could be left to be decided by civil court, where intricate and complicated questions regarding title of immovable property were involved---Neither there was any dispute regarding ownership of landlord nor there was any intricate or complicated question involved about title of leased premises---Tenant had himself admitted that landlord was owner of the premises and he agreed to sell the same to him, there was no need to leave the matter to be decided by civil court---Tenant could not protect his possession over leased house by invoking provisions of S.53-A of Transfer of Property Act, 1882---Tenant failed to point out any illegality or material irregularity or legal or factual infirmity in eviction order passed by Rent Controller---Appeal was dismissed in circumstances.

Ashfaque Ahmad and 8 others v. Nadeem Ahmad and 3 others PLD 2006 Lah. 643 and Naseer Ahmed Awan v. Sub-Registrar, Lahore and another 2007 MLD 1606 distinguished.

Muhammad Iqbal Haider and another v. Vth Rent Controller/ Senior Civil Judge, Karachi Central and others 2009 SCMR 1396; Sabir Ali Sheikh v. Haji Nawaj Din 2002 MLD 384; Malik Ameer Bakhsh v. Additional District Judge, Multan and 3 others PLD 2006 Lah. 793; Amjad Mehmood Khokhar v. Farasat Hussain and 2 others 2009 CLC 114; Muhammad Saeed v. Haji Mehmood-ul-Hassan through Special Attorney and 2 others 2010 MLD 45; Abbas Ali Khan v. Mst. Farhat Iqbal and 2 others 2009 SCMR 1077; Wajid Ali Khan v. Sheikh Murtaza Ali and 2 others 2003 SCMR 1416; Mst. Bor Bibi and others v. Abdul Qadir and others 1996 SCMR 877; Muhammad Azam and another v. Muhammad Akram 2008 SCMR 1034; Muhammad Akram v. Haji Ijaz Ahmed and others 2006 SCMR 946; Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 and Rabnawaz v. Haji Muhammad Iqbal and 2 others 2003 SCMR 1476 ref.

Noor M. Niazi for Appellant.

Muhammad Bashir Kiani for Respondent.

Date of hearing: 21st November, 2011.

2013 M L D 1662

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD AKRAM and another---Petitioners

Versus

GHULAM SARWAR---Respondent

Civil Revision No.604 of 2009, heard on 23rd May, 2013.

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

----S.13---Tabls, performance of---Pleading of specific date and place of Talb-e-Muwathibat was missing in the plaint---Difference of one hour existed with regard to time of gaining knowledge of sale and pronouncement of jumping demand---Place of knowledge of sale had been pleaded as house of someone "M" which was not a specific place---Plaintiff was bound to mention the specific place where he was sitting at the time of gaining knowledge of sale---Witness of defendants deposed that possession of land was delivered by the plaintiff himself to the defendants at the time of sale and said point was not cross-examined---Uncrossed portion of statement of witness of defendants would be presumed to have been admitted by the plaintiff---Plaintiff was in knowledge of sale since the time of attestation of sale mutation and story of knowledge of sale pleaded by him was incorrect---Plaintiff, in circumstances, had failed to plead and prove Talb-e-Muwathibat---Plaintiff was bound to prove notice of Talb-e-Ishhad by producing the postman but postman had not been produced to prove the same---One of the defendants admitted that notice of Talb-e-Ishhad was received by him but same could be used only against him but not against the other defendants---Performance of notice of Talb-e-Ishhad was defective---Findings recorded by the courts below on the point of Talbs were found to be against the settled principles of law---Plaintiff had failed to prove Tabls---Revision was accepted and suit was dismissed.

Muhammad Shaiq Hussain v. Samir Manzoor Khokhar 2003 CLC 1652; Mian Pir Muhammad and another v. Faqir Muhammad and others PLD 2007 SC 302; Pervaiz Hussain and another v. Arabian Sea Enterprises Ltd. 2007 SCMR 1105 and Bashir Ahmad v. Ghulam Rasool 2011 SCMR 762 rel.

(b) Punjab Preemption Act (IX of 1991)---

----S.13---Talb-e-Ishhad, performance of---Procedure---One of only the several defendants had admitted that he had received the notice of Talb-e-Ishhad which could be used only against him but not against the other defendants---Performance of Talb-e-Ishhad was defective, in circumstances.

Muhammad Aslam Khan Buttar for Petitioners.

Hafeez-ur-Rehman Mirza for Respondent.

Date of hearing: 23rd May, 2013.

2013 M L D 1686

[Lahore]

Before Atir Mahmood, J

Mst. BALQEES AKHTAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.2585 of 2005/BWP, decided on 10th June, 2013.

Civil Procedure Code (V of 1908)---

----O.XIII, R.2, O.XVI, 2 & O. XVIII, R.2---Constitution of Pakistan, Art.199---Constitutional petition---Production of additional documentary evidence by summoning of witnesses, application for---Plaintiff made such application after closing his side of evidence in affirmative and fixation of case for evidence of defendant---Such application dismissed by Trial Court was accepted by Revisional Court on payment of cost of Rs.500---Validity---Plaintiff had sought to produce in evidence copies of Record of Rights, Aks-Shajra and Warabani Mogha etc., on ground that the same were public documents---Such application did not disclosed any good caused for its acceptance or justification for its making at such a belated stage---High Court set aside order of Revisional Court and restored that passed by Trial Court in circumstances.

Jhanda through Legal heir v. Muhammad Younas PLD 1994 Lah. 100; Province of the Punjab through Secretary, Irrigation and Power Department, P.W.D. Secretariat Old Anarkali, Lahore and 3 others v. Ch. Mehraj Din and Co. 2003 CLC 504 and 1999 MLD 2295 rel.

PLD 2013 SC 255 rel.

S.M. Hussain for Petitioner.

Rias Abdul Qadir Warind for Respondents.

Date of hearing: 10th June, 2013.

2013 M L D 1743

[Lahore]

Before Miss Aalia Neelum, J

MUHAMMAD ARIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1366 of 2007, heard on 15th May, 2013.

(a) Criminal trial---

----Evidence of eye-witness---Principle---Statement of eye-witness can only be believed if the same gets support and corroboration from other circumstances.

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

----S.302 (b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Duration given by doctor between death and post-mortem was 6 to 24 hours, which meant that occurrence could have taken place at any time and not at the time which complainant had claimed---Doctor also mentioned in post-mortem report that duration between injury and death was half an hour, whereas eye-witnesses stated that deceased succumbed to injuries at the spot and the same showed that occurrence neither took place at the time shown in F.I.R. nor in the manner set up by prosecution---Prosecution witnesses were not only inimical towards accused persons but were also closely related to deceased and complainant had reasons to falsely implicate accused---Corroboration and independent source was required which was not forthcoming from any independent source as occurrence took place in main bazar and no one from locality joined investigation---Neither any crime empty was taken into possession from the spot nor any weapon of offence was recovered from accused---Prosecution was not able to prove its case against accused beyond shadow of doubt as there were many dents in prosecution story---High Court set aside conviction and sentence awarded by Trial Court and accused was acquitted of the charge---Appeal was allowed in circumstances.

Amin Ali and another v. The State 2011 SCMR 323; Mir Muhammad v. The State 1995 SCMR 610 and Muhammad Akram v. The State 2009 SCMR 230 ref.

Rana Iftikhar Ahmad for Appellant.

Muhammad Nawaz Shahid, Deputy District Prosecutor General for the State.

Date of hearing: 15th May, 2013.

2013 M L D 1790

[Lahore]

Before Ali Baqar Najafi, J

IMRAN alias MANOO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1164 of 2010, decided on 8th May, 2013.

Penal Code (XLV of 1860)---

----Ss.365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage and rape---Appreciation of evidence---Sentence, reduction in---Medical evidence---Hymen of alleged victim was old torn---Unexplained delay in registration of F.I.R.---Trial Court convicted accused and sentenced him to imprisonment for life---Plea raised by accused was that victim was habitual of sexual intercourse and her hymen was old torn---Validity---Statement of victim girl regarding her abduction reported with delay of eight days was not confidence inspiring on the basis of which it could not be said that prosecution proved the case beyond reasonable doubt---Evidence to attract provision of S. 365-B, P.P.C. was not available in which High Court acquitted the accused---In view of statement of lady doctor, coupled with positive test of DNA, Trial Court rightly convicted accused under S. 376 (i), P.P.C. High Court, however, took lenient view and reduced sentence to imprisonment for ten years.

2012 YLR 918 and PLD 2010 SC 47 ref.

Tahir Mehmood Gondal for Appellant.

Muhammad Naeem Sheikh, D.P.G. for the State.

Date of hearing: 11th March, 2013.

2013 M L D 1818

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

LIAQAT ALI through L.Rs.---Petitioner

Versus

KHALID MEHMOOD and others---Respondents

Writ Petition No.8228 of 2013, decided on 31st May, 2013.

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

----S. 42---Suit for declaration of ownership of property---Essential proof---Mere on basis of utility bills and receipts regarding payment of taxes one could not be termed as owner of property---Court could not decree such suit without seeking ownership proof qua disputed property from plaintiff.

Muhammad Zaman v. Muhammad Jamil and 4 others 1992 CLC 873 and Muhammad Ismail v. Maqbool Ahmad and 8 others 2001 CLC 252 rel.

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

----S. 42---Civil Procedure Code (V of 1908), S. 12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Application for setting aside of decree declaring plaintiff as owner of suit property---Such application dismissed by Trial Court was accepted by revisional court---Plaintiffs plea was that defendant could not prove ownership right/title qua suit property---Validity---Trial Court was obliged to decide as to whether impugned decree had been passed at the back of defendant or had infringed his right to contest plaintiff's claim---Defendant before acceptance of such application was not bound to establish his right qua suit property in absolute terms---High Court dismissed revision petition in circumstances.

Mst. Shahana Ali v. Syed Muhammad Haris Jaffari PLD 2010 Kar. 366 rel.

Muhammad Farooq Qureshi Chishti for Petitioner.

2013 M L D 1835

[Lahore]

Before Shahid Waheed, J

Dr. ZAHRA HASSAN---Petitioner

Versus

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

Writ Petition No.9956 of 2007, heard on 13th March, 2013.

(a) Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Death during service of Senior Demonstrator, Pharmacology Department of a Medical College---Refusal of Health Department to grant financial benefits to widow of deceased civil servant in pursuance of Finance Department's Letter No. FD.SR.1/3-10/2004, dated 10-11-2004---Department's plea was that petitioner's husband had died before issuance of said notification, thus, she was not entitled to get benefit thereof---Validity---Government had issued such notification in order to provide umbrellas cover to all families of civil servants, who expired during service---Such notification for being beneficial would be applicable with retrospective effect---Record showed that Government had extended benefit of said notification to widow of another Doctor, who had also died before its issuance---According to Art.25 of the Constitution, all citizens for being equal would be entitled to equal protection of law---Duty of public servants or department would be to help and not to thwart grant to people of their rights---Approval of Chief Minister for grant of benefits under such notification was not necessary---Case of petitioner and that of widow of such another Doctor was at par, thus, refusal of department to grant same benefits to petitioner was violative of Art. 25 of the Constitution---High Court set aside impugned order and directed department to pay financial benefits to petitioner in pursuance of such notification within specified time.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; Anoud Power Generation Limited and others v. Federation of Pakistan and others PLD 2001 SC 340 and Government of Pakistan v. Messrs Village Development Organization 2005 SCMR 492 rel.

(b) Notification---

----Applicability of---Scope---All notifications would apply prospectively and not retrospectively except beneficial notification conferring certain rights could be interpreted to apply retrospectively.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; Anoud Power Generation Limited and others v. Federation of Pakistan and others PLD 2001 SC 340 and Government of Pakistan v. Messrs Village Development Organization 2005 SCMR 492 rel.

Muhammad Aurangzeb for Petitioner.

Shahid Mubeen, Addl. A.G. and Ijaz Farrukh, Senior Law Officer, Health Department for Respondents.

Date of hearing: 13th March, 2013.

2013 M L D 1862

[Lahore]

Before Atir Mahmood, J

MUHAMMAD IMTIAZ and others---Petitioners

Versus

CHIEF EXECUTIVE, MEPCO and others---Respondents

Writ Petition No.2625 of 2013/BWP, heard on 16th May, 2013.

(a) Electricity Act (IX of 1910)---

----S. 24---Constitution of Pakistan, Art. 199---Constitutional petition---Removal of petitioner's electricity meter on ground to have been installed illegally at premises located in unapproved Housing Scheme---Issuance of notice to petitioner after such removal of electricity meter---Validity---Authority could not prove existence of the housing scheme to be unapproved, where petitioner's meter was installed---Authority had issued notice to petitioner after removing his electricity meter, thus, had condemned him unheard---Authority, in case of any illegality on part of petitioner, was obliged to issue him notice before taking any penal action against him---Disconnection/removal of electricity meter without issuing prior notice would be illegal and against principles of natural justice---Petitioner had been deprived of basic amenity of life without issuing him prior notice, thus, penal action taken against him would not be deemed to be valid and lawful---High Court directed the Authority to restore electricity connection of petitioner, and observed that Authority might proceed against the petitioner after issuing him prior notice about illegality, if any, committed by him.

Haji Muhammad Latif v. Chief Executive GEPCO, Gujranwala and 3 others PLJ 2012 Lah. 751 (DB) rel.

PLD 2011 SC 163 distinguished.

(b) Natural justice, principles of---

----No body could be penalized without providing him prior opportunity to defend himself---Principles.

According to principles of natural justice i.e., audi alteram partem, which says that anybody against whome some allegation is levelled and likely to be penalized on his account will be intimated before initiating any such proceedings so as to enable him to defend himself in accordance with law.

Muhammad Imran Lodhi for Petitioners.

Ozair Qayyum for Respondents.

Date of hearing: 16th May, 2013.

2013 M L D 1891

[Lahore]

Before Abdus Sattar Asghar, J

SHAMA ENTERPRISES---Appellant

Versus

CITY DISTRICT GOVERNMENT and others---Respondents

Regular Second Appeal No.179 of 2005, heard on 19th June, 2013.

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

----S. 25(3)---Limitation Act (IX of 1908), Arts. 56 & 115---Promise to pay---Breach---Suit for recovery of balance amount of work done by plaintiff---Defendant's plea that suit filed on 27-1-1997 for work done on 3-7-1990 was barred by limitation---Proof---Defendant in its report dated 6-2-1996 submitted in High Court in reply to constitutional petition filed by plaintiff had admitted that final payment of Rs.6,43,156 as per bill submitted by defendant was due---Nothing on record to rebut such report duly signed by defendant, which would constitute a promise in terms of S. 25(3) of Contract Act, 1872 to pay balance amount to plaintiff---Defendant's refusal to pay balance amount to plaintiff was a breach of such promise---Plaintiff had filed suit on 27-1-1997 after disposal of his constitutional petition by High Court on 29-9-1996---Plaintiff's claim would fall within ambit of Art.115 of Limitation Act, 1908 and not Art. 56 thereof---Suit was decreed in circumstances.

Behlol v. Quetta Municipal Corporation and another 1997 SCMR 536 rel.

Central Government through Secretary Ministry of Defence, Government of Pakistan, Islamabad and 3 others v. Messrs S.K. Company, Mianwali City through partner and another 2002 YLR 3712 distinguished.

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

----S. 25(3)---Promise to pay time barred debt---Essential ingredients stated.

In order to invoke Section 25(3) of the Contract Act, 1872, ordinarily three ingredients are required to be established: (a) there must be a promise; (b) signed by a person to be charged therewith or by an agent generally or specially authorized in that behalf; and (c) there is a debt which is barred by time.

Rana Farman Ali Sabir for Appellant.

Iftikhar Ahmed Mian, Imran Ahmed Bhatti and Jamshed Buzdar town officer for Respondents.

Date of hearing: 19th June, 2013.

2013 M L D 1910

[Lahore]

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

AZIZ-UR-REHMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1355 and Murder Reference No.311 of 2008, heard on 16th May, 2013.

(a) Criminal trial---

----Two versions---Principles---Case of two versions, i.e. one put forth by the prosecution in the form of ocular account furnished by the complainant and prosecution witness; the other had been brought on the record through the statement of accused, recorded under S.342, Cr.P.C.---Prosecution was required to prove its case against accused beyond any shadow of doubt; and the defence version was to be taken into consideration after evaluating the prosecution evidence to find out, whether the same inspired confidence or not.

Ashiq Hussain v. The State PLD 1994 SC 879 and Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Both eye-witnesses, were chance witnesses because they were not residents of the locality where occurrence had taken place, but were residents of a different area---Evidence of said witnesses was in conflict with the medical evidence---Conflict in ocular account and medical evidence, had created serious doubt about the presence of said witnesses on the spot at the relevant time---Recovery of pistol .30 bore on the pointation of accused was inconsequential because there was no report of Forensic Science Laboratory regarding said pistol---In absence of matching report of any empty with pistol, alleged recovery of pistol from possession of accused was of no avail to the prosecution---Motive as set forth by the prosecution had not been proved in the case---Prosecution evidence was not worthy of reliance---If story of prosecution and version of accused was put in juxtaposition, then version of accused, appeared to be more probable---Prosecution could not prove its case against accused beyond the shadow of doubt---Accused was acquitted of the charge extending him the benefit of doubt and was released, in circumstances.

Amin Ali and another v. The State 2011 SCMR 323; Muhammad Ishaq v. The State 2007 SCMR 108 and Ali Sher and others v. The State 2008 SCMR 707 rel.

(c) Criminal trial---

----Appreciation of evidence---If the prosecution evidence was disbelieved by the court, then the statement of accused was to be accepted or rejected as a whole---To accept the inculpatory part of the statements of accused, and to reject the exculpatory part of the same statements was not legally possible.

Muhammad Asghar v. The State PLD 2008 SC 513; Sultan Khan v. Sher Khan and others PLD 1991 SC 520 and Ghulam Qadir v. Esab Khan 1991 SCMR 61 rel.

Azam Nazir Tarrar, Malik Matee Ullah and Zafar Hussain Chaudhary for Appellant.

Mirza Abid Majeed, Deputy Prosecutor-General for the State.

Zafar Iqbal Malik for the Complainant.

Date of hearing: 16th May, 2013.

2013 M L D 28

[Peshawar]

Before Mian Fasih-ul-Mulk and Shah Jehan Akhundzada, JJ

Mst. NASEEM AKHTAR---Petitioner

Versus

M.E.O. and others---Respondents

Writ Petition No.484 of 2000, decided on 3rd October, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Past and closed transaction---Lease, conversion of---Sub-division of plot---Petitioner was lessee of plot and in the year, 1982, she applied for sub-division of the same and conversion of Cantt Code lease into Regular lease---No Objection Certificate was issued by authorities subject to surrender of 25% area in favour of government---Validity---Petitioner submitted her willingness certificate signed by her in which she stated that she was willing to surrender 25% area of total land and also assured authorities that she would take no objection in future for any kind of litigation in such regard---Physical possession of surrendered area was handed over to government in presence of its representative and the same land was re-classified and allotted there to subsidiary survey number---All such formalities were completed up to the year, 2000---Land in question was still in possession of authorities, thus it was a case of past and closed transaction which could not be reopened in new policy as it was a settled matter---Constitutional petition was dismissed in circumstances.

Abdul Ghafoor Qureshi for Petitioner.

Iqbal Muhammad, D.A.-G. and Syed Hamad Ali Shah for Respondents.

Date of hearing: 19th September, 2012.

2013 M L D 41

[Peshawar]

Before Qaiser Rashid Khan, J

Mst. SHAMSHAD BEGUM---Petitioner

Versus

Mst. TAHMEEL BEGUM and 7 others---Respondents

Writ Petition No.698 of 2011, decided on 24th April, 2012.

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

----O. XVII R. 3 & S. 12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Petitioner had filed an application under S.12(2), C.P.C.---Petitioner sought summoning of a witness through process of court, however her evidence was closed under provisions of O.XVII R. 17, C.P.C.---Validity---When the petitioner herself mentioned her name in the list of witnesses, then it was the duty of Trial Court to have asked petitioner to record her own evidence and in case of her failure/neglect/refusal to do the same, the impugned order could have been passed---Mere request of petitioner regarding absence of other evidence of the petitioner should not have been made the sole ground for striking off her defence under O. XVII R. 17 C.P.C. when otherwise she had examinal four witnesses in support of her plea---High Court directed Trial Court to give opportunity to the petitioner to record her statement---Constitutional petition was allowed, in circumstances.

(b) Administration of justice---

----Cases should be decided on merits and for safe administration of justice, courts were under legal obligation not to knock out parties strictly on procedural and technical grounds alone---Courts of law do not offer a helping hand to any party to his/her case to success, but then there were certain down-trodden, dispossessed, handicapped and weaker sections of society to whose rescue the process of law must come forth---Given the parameters of law, nobody should simultaneously be permitted to take liberty with the process itself.

Qazi Muhammad Shahryar for Petitioner.

Nasir Mahmood Khan Tahirkheli for Respondents.

Date of hearing: 24th April, 2011.

2013 M L D 48

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

YOUNAS KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 591 of 2011, decided on 18th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b) & S.9(c)---Possession and trafficking of narcotics---Bail, grant of---Further inquiry---Borderline case---Charas weighing 1 kilogram was allegedly recovered from the accused---Present case was a borderline case between Ss. 9(b) and (c) of Control of Narcotic Substances Act, 1997---Punishment to be awarded for the offence was always in commensuration with the quantum of recovery of contraband/crime, and the quantum of punishment had to be determined by the Trial Court---Questions as to whether in such like cases, accused would be liable to the maximum punishment provided for the offence; and whether the punishment in case of proof of the guilt after trial in circumstances would fall under the prohibitory clause, were questions requiring further probe---Record was also silent as to whether accused was habitual or previous convict etc.---All such facts made the case against accused one of further inquiry---Accused was directed to be released on bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Malik Muhammad Rehan Awan for the State.

Date of hearing: 18th April, 2011.

2013 M L D 57

[Peshawar]

Before Assadullah Khan Chamkani and Rooh-ul-Amin Khan, JJ

ZARGHUN SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.13 of 2010, decided on 23rd August, 2012.

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

----Ss. 9(c) & 29---Possessing and trafficking narcotics---Appreciation of evidence---Accused being driver of the vehicle was Incharge of the same, and all the articles lying therein were under his control and possession---In the present case, 116 packets of charas garda, 58 packets of charas pukhta and 18 packets of opium were recovered---Plea of accused that he was innocent about the transportation of the narcotics by concealing the same in the especially designed cavities, was not tenable---Accused had not denied the recovery from the vehicle being driven by him---Prosecution witnesses having no background of any enmity/ill will with accused, question that accused was substituted for the real culprit, did not hold the field---Prosecution witnesses could not thrust upon accused huge quantity of narcotics being recovered, which could not be planted against him---Once the prosecution had prima facie established its case, then under S.29 of Control of Narcotic Substances Act, 1997, burden shifted upon accused to prove contrary to the plea of the prosecution, but accused had failed to discharge that burden---Sufficient evidence was available on record to suggest that due course had been adopted in connection with destruction of case property---Investigating Officer had not been specifically and seriously cross-examined by the defence counsel in that respect---Prosecution witnesses had been cross-examined in detail, but nothing had come from their mouth to benefit accused---Evidence of recovery in respect of quantity of narcotic substances, recovered and sent for chemical analysis, was consistently estab-lished by the prosecution witnesses, which was also supported by Forensic Science Laboratory's report---Normal sentence in such like cases was death, however, in no circumstances, it should be less than life imprisonment---High Court could not consider the request for lesser punishment, in circumstances---Order accordingly.

Farhan Marwat for Appellant.

Syed Rehman Khan for the State.

Date of hearing: 23rd August, 2012.

2013 M L D 75

[Peshawar]

Before Zia-ur-Rahman Khan, J

MUHAMMAD ISRAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous/Bail Application No.1779 of 2010, decided on 22nd December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Prevention of Corruption Act (II of 1947), S.5(2)---Dishonestly issuing a cheque---Corruption---Bail, grant of---Further inquiry---Charge against accused was that he took illegal gratification from the complainant for installation of an electricity transformer---Accused allegedly failed to install the transformer and resultantly issued a cheque to the complainant, which cheque bounced on presentation for want of money---Questions as to under what circumstances and in whose presence, amount in question was paid, and whether the explanation offered by accused in such regard was trustworthy or otherwise, were questions which required further probe through recording of evidence---Whether accused issued the cheque with dishonest intention in order to hood-wink the complainant side or the same got bounced in view of some other circumstances, like insufficiency of amount were facts which were yet to be proved---Accused had shown his willingness to refund the alleged amount which according to him was borrowed from the complainant as loan owing to his sister's marriage---Offence under S.5(2) of Prevention of Corruption Act, 1947, did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused had made out an arguable case for the purpose of his release on bail within the ambit of S.497, Cr.P.C.---Reasonable ground existed to believe that case of accused was of further inquiry therefore he was admitted to bail.

Arshad Hussain Yousafzai for Petitioner.

Muzzamil Khan, Dy. Attorney General for the State.

Date of hearing: 22nd December, 2010.

2013 M L D 95

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

ABDUL MUTALIB and others---Petitioners/Plaintiffs

Versus

ABDUR RAUF and others---Respondents/Defendants

Civil Revision No.691 of 2008, decided on10th September, 2012.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahdat (10 of 1984), Arts. 72, 79, 117 & 120---Suit for declaration---Concurrent findings of fact by two courts below---Transactions, proof of---Onus---Plaintiffs claimed mutations and registered sale deeds executed by vendor in favour of defendants as illegal and forged---Trial Court and Lower Appellate Court concurrently dismissed suit and appeal filed by plaintiffs---Validity---Defendants fully discharged their burden by producing marginal witnesses of mutations and registered sale deeds in question---Defence witnesses who were marginal witnesses of different suit mutations and registered deeds appeared on behalf of defendants and categorically admitted their signatures and thumb impressions on suit mutations and registered deeds---Burden of proof was always on plaintiffs to prove their claim---Plaintiffs failed to substantiate their claim through cogent, conclusive and trustworthy oral and documentary evidence---Suit mutations and registered deeds contain endorsement of revenue official/officer to the effect that the same were signed and thumb impressed by vendor and were attested in his presence---Findings of two courts below given on all issues in their judgments and decrees were based on proper appreciation of evidence on record and were well founded---Plaintiffs failed to point out any illegality, material irregularity, misreading or non-reading of evidence or any jurisdictional error or defect in concurrent findings of two courts below to warrant interference by High Court in exercise of its revisional jurisdiction---Both the courts below had rightly dismissed suit of plaintiffs---Revision was dismissed in circumstances.

Abdul Sattar Khan for Petitioners/Plaintiffs.

Noor Rahim Khan for Respondents/Defendants.

Date of hearing: 10th September, 2012.

2013 M L D 111

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

BAHADAR KHAN---Petitioner

Versus

KHANEY---Respondent

Civil Revisions Nos.785 and 1084 of 2004, decided on 30th October, 2012.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration of title---Revenue record---Longstanding entries---Presumption---Suit for declaration of title was decreed by Trial Court but was dismissed by Appellate Court---Validity---Perusal of record revealed that the plaintiffs had based their claims on oral evidence which was neither convincing nor cogent to substantiate their claim---According to the revenue record, suit land was in name of the defendants right from the first settlement record---Such longstanding entries in the revenue record could not be disturbed since presumption of truth was attached to them---No defect was found in the judgment of Appellate Court---Revision petition was dismissed, in circumstances.

Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398; Sampat and another v. Sufaid Khan and others 1999 CLC 422; Nawab Khan and others v. Said Karim Khan and others 1997 SCMR 1840; Haji Allah Bakhsh v. Abdullah Khan and others 2001 SCMR 363; Habibullah Jan and others v. M. Hassan Khan and others 1991 MLD 25; Mian Iqbal Mahmood Banday v. Muhammad Sadiq PLD 1995 SC 351; Rana Shaukat Mahmood and another v. Rana Muhammad Tajammal Hussain and others 2007 CLC 39 and Abdul Manan and another v. Mir Nawaz Khan and 4 others 1989 CLC 227 ref.

Amir Akbar Khan for Petitioner.

Abdul Halim Khan for Respondent.

Date of hearing: 30th October, 2012.

2013 M L D 133

[Peshawar]

Before Assadullah Khan Chamkani, J

KHALID KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Petition No.967-P of 2012, decided on 9th August, 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---Conscious knowledge of narcotic---Scope---Accused, who was driver of the vehicle in question, was stopped at police checkpoint and upon search, 20 kilograms of charas was recovered from specially designed secret cavities in the vehicle---Accused was the only person present in the vehicle and was also driving the same---Accused being driver of the vehicle was required to know each and everything about the vehicle as he was solely in-charge of it---Available material indicated that accused had conscious knowledge about presence of narcotics in the vehicle---Alleged offence was punishable with either death or anything not less than life imprisonment, therefore, it was covered by the restrictive (prohibitory) clause of S.497, Cr.P.C---Challan was complete and was likely to be submitted in Trial Court shortly---Bail petition of accused was dismissed, in circumstances.

Noor Alam Khan for Petitioner.

Fazlur Rahman Khan for the State.

Date of hearing: 9th August, 2012.

2013 M L D 157

[Peshawar]

Before Assadullah Khan Chamkani, J

GUL ZAREEN---Appellant

Versus

HAMZADA and others---Respondents

Criminal Appeal No. 40 of 2011, decided on 4th September, 2012.

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

---Ss. 430/147/149---Criminal Procedure Code (V of 1898), S. 417---Mischief by injury to works of irrigation or by wrongfully diverting water, rioting, unlawful assembly---Appeal against acquittal--- Appreciation of evidence---Benefit of doubt---Allegation against accused persons was that they had stopped spring water by way of cement and mud, which people of complainant's village had been using for drinking purposes---Trial Court acquitted accused persons of the charge---Validity---Unexplained delay of seven days in lodging report, therefore, it could be safely held that time was consumed in deliberations and consultation---Complainant had explained that delay in lodging report was caused because the matter was being patched up locally but he failed to produce a single witness in this respect who acted as a mediator---Complainant himself was not the eye-witness of the occurrence---Witnesses produced by the complainant had not been mentioned in the first report lodged by him and the witnesses mentioned in the first report had been abandoned by the prosecution---Spring in question was being used by people of the village but no person from said village had come forward in support of version of complainant---Trial Court had rightly extended benefit of doubt to accused person on valid and cogent reasons and their acquittal order did not call for any interference---Appeal against acquittal was dismissed, in circumstances.

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

----S. 417---Appeal against acquittal---Appreciation of evidence---Criterion---Scope---Double presumption of innocence---Scope-Criterion of appraisal of evidence in an appeal against acquittal was quite different than an appeal against conviction, because in case of appeal against acquittal, double presumption of innocence laid in favour of the accused---Even where another view was possible, the view favourable to accused was to be preferred.

Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928 rel.

Syed Bad Shah for Appellant.

2013 M L D 172

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

AKHTAR HUSSAIN KAYANI---Petitioner

Versus

ZAFAR IQBAL KAYANI---Respondent

Civil Revision No.543 of 2011, decided on 10th October, 2012.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S. 115---Suit for declaration---Revisional jurisdiction---Examination of evidence---Legality---Concurrent findings of fact by two courts below---Dispute was with regard to title of vehicle---Both the courts below had concurrently dismissed suit and appeal filed by plaintiffs---Validity---Process of examination of evidence for upsetting concurrent findings of fact in exercise of powers under S. 115, C.P.C. was neither permissible nor warranted by law---High Court while examining concurrent findings of fact recorded by courts below, in exercise of its revisional jurisdiction under S. 115 C.P.C., had to attend reasons given by courts below in support of such findings and misreading, non-reading or perverse appreciation of evidence was to be discovered in reasoning of courts below to justify interference in exercise of its revisional jurisdiction---Trial Court as well as Lower Appellate Court passed well reasoned judgments and decrees after proper appraisal of evidence on file and thus the same did not at all seem to have been tainted with any illegality or irregularity or jurisdictional error to warrant interference by High Court while exercising revisional jurisdiction---High Court declined to interfere in concurrent findings of fact by two courts below---Revision petition was dismissed in circumstances.

Zeshan Ali Kiani for Petitioners.

2013 M L D 230

[Peshawar]

Before Mrs. Irshad Qaiser, J

FAZAL RAHIM and others---Petitioners

Versus

FAQIR KHAN---Respondent

Civil Revision No.1056 of 2009, decided on 8th October,2012.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Pre-emption suit---Talb-e-Muwathibat, Talb-e-Ishhad and Talb-e-Khusumat, performance of---Failure of plaintiff to prove performance of such Talbs---Effect---Right of pre-emption would extinguish on such failure.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Pre-emption suit---Talb-e-Muwathibat, performance of---Statements of plaintiff's witnesses regarding performance of Talb-e-Muwathibat recorded after lapse of four years---Non-material inconsistencies in statements of such witnesses---Effect---Law would not favour to throw away pre-emptor just on technicalities---Non-material inconsistencies or minor contradictions/omission in such statements could not mar the case of plaintiff---High Court deprecated and disapproved practice of Trial Court to declare witnesses as false or untruthful on account of minor omissions or contradictions in their statements.

PLD 2002 Lah. 280; 2005 YLR 197; 2006 SCMR 1410 and PLD 2003 Pesh. 179 rel.

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

----Ss.96 & 115---Revision---Divergent findings of two courts below---Effect---High Court would give due attention to prefer findings of lower Appellate Court, unless same suffered from grave irregularity or were perverse or reason given by lower Appellate Court was not sustainable.

2007 SCMR 576 rel.

Miss Gulnaz for Petitioners.

Nasir Khan Khalil for Respondent.

Date of hearing: 8th October, 2012.

2013 M L D 250

[Peshawar]

Before Khalid Mehmood, J

Ret. Brig. IJAZ AKBAR and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Quashment Petitions Nos. 17 and 19 of 2012, decided on 11th July, 2012.

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

----Ss.321 & 322/34---Criminal Procedure Code (V of 1898), S.561-A---Qatl-bis-sabab---Quashing of F.I.R.---Death of deceased was allegedly a suicide---Letters, allegedly written by deceased before his death, had been made the basis for enroping accused persons in the case---Deceased had mentioned in letters that he was committing suicide on the ground that he did not want to live in the hostel---Mother of the deceased had stated that deceased was not happy with the hostel life and was reluctant to leave the home and to go to the hostel---Nothing was available in the investigation and the record collected by the prosecution, that accused had committed any illegal act which could be the cause of the death of deceased---Prior to the lodging of the F.I.R., the complainant or any family member of the deceased had not complained against any teacher or the school administration regarding any illegal act or harassment to the deceased---Even on the day of occurrence, accused were not charged by the complainant and the incident was declared as accidental one---Parents of the deceased seemed to have not even assessed the temperament, psychological aptitude and the extreme hatred developed by the deceased against the hostel life, which caused the extreme reaction of the deceased in the shape of an occurrence, which was an individual act, and not the result of any illegal act of accused persons---No case was made out against the accused persons and S.321, P.P.C. was not attracted---No illegal act could be said to have been committed by accused persons, on the basis of facts admitted and patent on record; in such circumstances, allowing the prosecution or Investigating Agency to continue with the investigation, would amount to abuse of the process of law---Case registered against accused persons vide impugned F.I.R. under S.322/34, P.P.C., was quashed, in circumstances.

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

----S. 561-A---Inherent powers of High Court---Scope---High Court could exercise its inherent powers under S.561-A, Cr.P.C. to prevent the abuse of process of law and to advance the interest of justice, as well as to protect the rights of the citizens guaranteed by law and the Constitution.

Akbar Khan Swati and Waji-ur-Rehman Khan for Petitioners.

M. Nawaz Khan Swati, Tahir Faraz Khan, Gul Khan Changezi and Faridoon Khan for Respondents.

Date of hearing: 11th July, 2012.

2013 M L D 276

[Peshawar]

Before Qaiser Rashid Khan, J

ATTAULLAH and 3 others---Petitioners

Versus

GHULAM SARWAR and 12 others---Respondents

Civil Revision No.575 and Civil Miscellaneous No.388 of 2011, decided on 23rd November, 2011.

North-West Frontier Province Muslim Personal Law (Shariat) Application Act (VI of 1935)---

----S.3---Succession to property left by deceased Muslim---Custom or Shariat, applicability of---Scope---Custom would not apply to such succession---Principles.

2008 SCMR 230 ref.

Muzaffar Khan v. Mst. Roshan Jan and others PLD 1984 SC 394; Mst. Namdara and 3 others v. Mst. Sahibzada and 2 others 1998 SCMR 996; Mst. Suban v. Allah Ditta and others 2007 SCMR 635 and Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217 rel.

Zia-ur-Rehman Qazi for Petitioners.

2013 M L D 310

[Peshawar]

Before Waqar Ahmad Seth, J

Mian AZIZ-UL-HAQ---Applicant

Versus

ADIL INTERNATIONAL PVT. LTD. and others---Respondents

Civil Miscellaneous No.8 of 2011 in Execution Petition No.1/10 of 1993, decided on 10th December, 2012.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Application against order obtained through fraud, misrepresentation or want of jurisdiction---Application filed under S.12(2), C.P.C. alleged that respondent was favoured by officials and mutations in execution petition filed by respondent were attested vide table rate for the year 2004, which were much less than the rates of the prevailing period---Applicant who was a contractor had alleged that due to concealment and misrepresentation by the respondents he had suffered monetarily and the Public Exchequer had also suffered due to the connivance of respondents---Court while passing impugned order trusted the words of officials, which benefited respondent and Public Exchequer---Record had reflected that fraud and misrepresentation both had been committed by the respondent in connivance and collaboration with officials---Respondent/Officials/Tehsildar and Halqa Patwari had totally misinterpreted and misguided the court by falsely informing that they could not find the evaluation report despite making hectic efforts---Evaluation report, once issued was dispatched to almost 10/11 different offices---Statement of officials that they could not locate the same was false and mala fide---Case of misrepresentation having been made out by the applicant against the respondent, court set aside impugned order in circumstances.

1993 CLC 2073; 2001 SCMR 1822 and PLD 1971 SC 677 ref.

2009 CLD 1389; 2010 CLC 1545; 2012 CLD 571 and 2011 SCMR 1854 rel.

Sahibzada Assadullah for Applicant.

Naveed Ali Khan for Respondent No.1.

Ghulam Mohyuddin Malik for Respondents Nos. 2, 4 and 5.

Riaz Ali for Respondent No.7.

2013 M L D 334

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

MALANG SHAH---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.1245-P of 2012, decided on 10th October, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51(1)---Possession of narcotic---Bail, grant of---Fifty kilograms of contraband charas was allegedly recovered from the vehicle, which was being driven by the accused---Quantity of narcotic allegedly recovered was huge---Prosecution case was fully supported by the police officials, who had no ill-will or grudge with the accused---Report of Forensic Science Laboratory was in positive---Reasonable grounds appeared for believing that accused was connected with the offence charged---Case of accused not only fell within the restrictive clause of S. 497, Cr.P.C but also attracted the embargo of S. 51(1) of Control of Narcotic Substances Act, 1997---Bail application of accused was dismissed in circumstances.

Farhana Marwat for Petitioner.

Fazal-ur-Rehman Khan A.A.-G. for the State.

Date of hearing: 10th October, 2012.

2013 M L D 342

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

ASAL JANA---Petitioner

Versus

The STATE and 15 others---Respondents

Writ Petition No.104-B of 2012, decided on 25th September, 2012.

Criminal Procedure Code (V of 1898)---

---Ss. 22-A (6) & 200---Constitution of Pakistan, Art. 199---Constitutional petition---Availability of alternate remedy in form of private complaint---Effect---Police raid conducted in better interest of the public---Justice of Peace refusing to issue directions for registration of F.I.R. against raiding police party---Police party on basis of secret information conducted raid at the house of complainant-lady for arresting some proclaimed offenders, who had established a picket in the area and had created havoc for local residents---Complainant filed application before Justice of Peace seeking direction for registration of F.I.R. against raiding police officials and their seniors alleging that during the raid, police party trespassed into her house, set the house ablaze and also removed valuable articles---Justice of Peace dismissed application of complainant---Validity---Entrance of police party for searching house of complainant in presence of lady constable could not be termed as trespass and would not constitute a cognizable offence---Record revealed that local police in performance of their official duties had searched the house of the complainant in the better interest of the public---Directions for registration of case against entire police force i.e. from level of District Police Officer (DPO) to police constable including lady police would be mockery of justice and would amount to misuse of legal provisions---Power was vested in Justice of Peace under S.22-A(6), Cr.P.C for dispensation of justice and such power was never to be exercised in aid of injustice---Alternate remedy was available to complainant under Cr.P.C to lodge a complaint for redressal of her grievance, which remedy had not been availed by the complainant---Constitutional jurisdiction of High Court could not be invoked if alternate remedy was available to an aggrieved petitioner---Justice of Peace had committed no illegality or irregularity while refusing the issuance of directions to Station House Officer (SHO) concerned for registration of case against police officials---Constitutional petition was dismissed accordingly.

PLD 2007 SC 539 distinguished.

Tufail Muhammad and others v. Raja Muhammad Ziaullah Khan and another PLD 1965 SC 269; Rai Ashraf and others v. Muhammad Saleem Bhatti PLD 2010 SC 691; Mushtaq Ahmad's case PLD 1973 SC 418; 1994 SCMR 2213; Abdur Rehman's case PLD 1987 SC 21 and Allah Bux's case 1987 SCMR 810 ref.

Imran Ali Shah for Petitioner.

2013 M L D 350

[Peshawar]

Before Mrs. Irshad Qaiser, J

SAID-UL-HAQ---Petitioner

Versus

JANAS KHAN---Respondent

Civil Revision No.1209 of 2011, decided on 5th October, 2012.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Discrepancies/contradictions in statements of plaintiff's witnesses regarding performance of Talb-i-Muwathibat and signing of notice of Talb-i-Ishhad---Effect---Such discrepencies in proceedings of pre-emption, which by its nature was piratical, would be significant and could not be ignored and overlooked so conveniently---Suit was dismissed in circumstances.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Scope---Performance of Talb-i-Muwathibat would ensure pre-emptor's general and bona fide wish to purchase land to be pre-empted---Right of pre-emption would extinguish on failure of plaintiff to prove performance of such Talbs.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-i-Muwathibat, performance of---Plaint not finding mention of making of Talb-i-Muwathibat by plaintiff---Plaintiff's plea in plaint that he got knowledge of suit sale from his informer in court and made jumping demand in his presence---Plaintiff in cross-examination deposed that he made such demand while sitting at his own seat where he worked---Informer deposed to the effect that he informed plaintiff about suit sale while he was sitting with another Advocate---Plaintiff failed to prove the require-ment of Talb-i-Muwathibat---Suit was dismissed in circumstances.

(d) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-i-Ishhad, notice of---Object---Object of such notice and its service on vendee was to apprise him about pre-emptor's desire and intention to pre-empt suit sale---Principles.

The second demand i.e. Talb-e-Ishhad is the only talb which postulate putting the vendee on notice about the pre-emptor's desire to purchase and the law mandates that it has to be sent through registered acknowledgment due. The requirement of sending a notice in writing is followed by a rider i.e. registered cover acknowledgment due. This signifies that the intention of law is not merely formal notice on the part of pre-emptor conveying intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-emp.

(e) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-i-Ishhad, notice of---Refusal of vendee to have received such notice---Failure of plaintiff to examine postman to prove service of such notice on vendee---Effect---Suit was dismissed in circumstances.

2011 CLC 899 rel.

Gul Sadbar Khan for Petitioner.

Attaullah Khan Tangi for Respondent.

Date of hearing: 5th October, 2012.

2013 M L D 360

[Peshawar]

Before Yahya Afridi, J

WALI KHAN---Petitioner

Versus

WAHEED GHANI KHAN---Respondent

Civil Revision No.94 of 2007, decided on 19th November, 2012.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss.24 & 25---Initial payment of 1/3rd of Pre-emption money and deposit of balance amount at the conclusion of trial---Provisions of Ss.24 & 25 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Nature--- Provision of S.24 being mandatory, while that of S.25 was directory in nature---Principles.

So far as the initial payment of 1/3rd of pre-emption money is concerned, the legislature has provided a penalty for its failure, which results in dismissal of the suit as provided in subsection (2) of section 24 of the Act. Thus the provisions of section 24 would be regarded as 'mandatory'. On the other hand, section 25 relating to the time period fixed for payment of balance amount of the pre-emption money at the conclusion of the trial, does not provide any penalty for its failure. Hence, the same is to be considered as 'directory' and not 'mandatory'.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 25---Civil Procedure Code (V of 1908), S. 148 & O. XX, R. 14---Decree in pre-emption suit directing plaintiff to deposit balance decretal amount within 30 days---Decree upheld by Appellate Court giving 30 days time to plaintiff to deposit such amount, failing which suit would be deemed as dismissed---Plaintiff's application seeking extension of time to deposit such amount---Order of Appellate Court allowing 15 days time for depositing such amount---Defendant's plea was that after having decided appeal, Appellate Court had become functus officio and could not extend such period for second time---Validity---Appellate Court could extend period fixed by Trial Court for depositing such amount, but not after once having decided appeal and become "functus officio", except when its jurisdiction was invoked in review or to correct any clerical or arithmetical error in its decision---When there was no period fixed in relevant statute itself, only then benefit of provision of S. 148, C.P.C. could be availed, but not otherwise---Plaintiff had failed to deposit such amount within 30 days allowed by Appellate Court---High Court set aside judgments/decrees of courts below and dismissed suit in circumstances.

Muzaffar v. Ali Khan and 3 others 1989 CLC 2342; Muhammad Irshad v. Ch. Fazal Haq and 5 others 1991 SCMR 2149; Saadullah Khan and 2 others v. Sheikh Ghulam Qasim through Legal heirs and others PLD 2011 Pesh. 47; Riaz Hussain v. Nazar Muhammad and others 2005 SCMR 1664; Shujat Ali v. Muhammad Riasat and others PLD 2006 SC 140; Ali Ahmad v. Mushtaq Ahmad and others 1993 CLC 1219; Muhammad Nawaz and others v. Muhammad Sadiq and another 1995 SCMR 105; Rehmat Ali v. Nabi Ahmad and 2 others 2000 YLR 789; Mst. Mumlikat Begum v. Malik Nasrullah 2004 SCMR 1290; Gul Muhammad and others v. Mataa Muhammad 2004 SCMR 1600; Karam Ellahi's case 2010 CLC 1519 and Nawab Khan's case PLD 2009 Pesh. 61 ref.

Muhammad Irshad's case 1991 SCMR 2149; Bhai Khan's case 1986 SCMR 849; Muhammad Nawaz's case 1995 SCMR 105; Nazir Ahmad's case 1999 SCMR 342; Johri Singh's case AIR 1989 SC 2073; Mst. Mumlikat Begum's case 2004 SCMR 1290; Gul Muhammad's case 2004 SCMR 1600; Riaz Hussain's case 2005 SCMR 1664; Muhammad Yusuf's case 2007 SCMR 1485 and Hafiz Muhammad Ramzan's case PLD 2012 SC 764 rel.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 24 & 25---Civil Procedure Code (V of 1908), S. 148---Pre-emption money, deposit of---Extension of time for such deposit---Powers of Trial Court and Appellate Court---Scope.

The provisions of section 24 of the Act are "mandatory' and the time fixed for payment of the initial 1/3rd of the sale price ought not to be extended.

The provisions of section 25 of the Act are "directory" and the courts may in appropriate cases extend the time period for payment of the pre-emption money decided.

The criteria for determining whether to allow the time period to the pre-emptor under section 25 of the Act would depend upon whether the delay was caused due to "bona fide" conduct of the pre-emptor or the "act of the court".

After a court has decided a case, it cannot, unless it has assumed review jurisdiction or to correct any clerical or arithmetical mistake, extend the period of payment of pre-emption amount under section 25 of the Act.

A court having decided a matter cannot assume the jurisdiction and extend the time period under section 148 of the C.P.C. in pre-emption cases as provided under sections 24 and 25 of the Act as the said statute has a stipulated time period mentioned therein.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Decision of courts below, if made by applying and interpreting applicable law wrongly, would warrant correction by High Court in revisional jurisdiction.

Shumail Begum v. Gulzar Begum 1994 SCMR 818 and Muhammad Idrees v. Muhammad Parvez 2010 SCMR 5 rel.

Riaz Ahmad for Petitioner.

Muhammad Naeem Anwar for Respondent.

Date of hearing: 19th November, 2012.

2013 M L D 375

[Peshawar]

Before Khalid Mehmood, J

SAQIB and others---Petitioners

Versus

MUHAMMAD AFZAL---Respondent

Civil Revision No.295 of 2005, decided on 23rd October, 2012.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Qanun-e-Shahadat (10 of 1984), Arts. 132 & 133---Civil Procedure Code (V of 1908), O. III, Rr. 2 & 3---Pre-emption suit---Talb-e-Muwathibat, performance of---Proof---Appearance of co-pre-emptor as his own witness and on behalf of other pre-emptors as their attorney in support of the Talb---Validity---Party could appoint an attorney to defend or support cause against him---Pre-emptor not being able to appear in court to defend his right could appoint an attorney by virtue of S. 14 of Khyber Pakhtunkhwa Pre-emption Act, 1987---All pre-emptors were living in one and same house, thus, performance of such Talb by them at same place, time and date after hearing about suit sale had not been disputed---Other pre-emptors having appointed co-pre-emptor as their attorney were obliged to explain their inabilities to appear in person before court, which had been explained by another witness, whose statement remained unchallenged---Informer and other witnesses had supported statement of attorney/co-pre-emptor regarding performance of the Talb---Suit was decreed in circumstances.

Qadir Bux and others v. Nawaz Ali and others 2003 YLR 974; Mst. Hassan Bano v. Wali ur Rehman and 2 others 2007 SCMR 1344 and Dilshad Begum v. Mst. Nisar Akhtar 2012 SCMR 1106 distinguished.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Civil Procedure Code (V of 1908), O. III, Rr. 2 & 3---Pre-emption suit---Talb-e-Muwathibat and Talb-e-Ishhad, performance of---Appointment of attorney by pre-emptor to support his case before court---Criteria for such appointment stated.

For the appointment of attorney to safeguard the interest of pre-emptor and to defend or support the cause of pre-emptor, the criteria requiring consideration should be that: firstly if the pre-emptor is abroad and residing at far flung area can appoint attorney and the attorney so appointed should have expressly been empowered for the performance of talbs on behalf of the pre-emptor; secondly if the attorney so appointed was present in the Majlis where Talb-e-Muwathibat was performed and who had also the knowledge of performance of notice of Talb-e-Ishhad: thirdly in support of the statement of attorney other evidence should also be produced for corroboration of the testimony of said attorney; and fourthly the cogent reason i.e. minority, serious illness, parada-nashini and inability of pre-emptor to appear before the court should be brought into the notice of the court so that plea of inability of pre-emptor could satisfy the court and thereafter evidence of attorney could be considered.

M. Ayub for Petitioners.

Malik Muhammad Asif for Respondent.

Date of hearing: 23rd October, 2012.

2013 M L D 395

[Peshawar]

Before Assadullah Khan Chamkani, J

MUHAMMAD ABDULLAH and 2 others---Petitioners

Versus

The STATE through Abdul Qudus---Respondent

Criminal Miscellaneous Bail Application No.485 of 2012, decided on 3rd October, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss.354/354-A/34/337-F(i)---Assault or use of criminal force to woman with intent to outrage her modesty, assault or use of criminal force to woman and stripping her off her clothes, common intention, ghayr-jaifah-damiyah---Bail, grant of---Ingredients of S.354-A, P.P.C---Scope---Allegation against accused persons was that they beat complainant's daughter and outraged her modesty as a result of which she sustained injuries---Initially, case was registered against accused persons under S.354, P.P.C. and they were released on bail but subsequently they were arrested when police added Ss. 354-A, 337-F(i) and 34, P.P.C in the F.I.R.---Validity---Provisions of S. 354-A, P.P.C were attracted only where a woman was stripped off her clothes and then in that condition she was exposed to public view---According to F.I.R. of the present case, accused persons started abusing and insulting complainant's daughter, caught hold of her by dragging her on the ground, tore off her clothes and caused her injuries---Such allegation was not sufficient to constitute offence under S. 354-A, P.P.C---Accused persons were initially rightly charged under S. 354, P.P.C and S. 354-A, P.P.C was later added in the F.I.R. for the reason that it carried punishment of death/life imprisonment---Bail application of accused persons was allowed and they were released on bail.

Qadir Shah and others v. The State 2009 SCMR 913 and Mst. Abida Jabeen v. Imtiaz Ahmad and others 1997 PCr.LJ 600 rel.

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

----S.354-A---Scope of ingredients of S.354-A, P.P.C.---Provisions of S.354-A, P.P.C. were attracted only where a woman as stripped off her clothes and in that condition she was exposed to public view.

Qadir Shah and others v. The State 2009 SCMR 913 and Mst. Abida Jabeen v. Imtiaz Ahmad and others 1997 PCr.LJ 600 rel.

Gawhar Ali Khan for Petitioner.

M. Azeem Baig and Ikarmaullah Khan A.A.-G. for the State.

Date of hearing: 3rd October, 2012.

2013 M L D 402

[Peshawar]

Before Mian Fasih-ul-Mulk, J

FAZAL ILLAHI BACHA---Petitioner

Versus

JAWAD ALI---Respondent

Civil Revisions Nos.1799, 1800 and 1901 of 2010, decided on 24th September, 2012.

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

----S. 2 (2) & (14)---"Decree and order"---Distinction---Two important ingredients of a decree are that there should be final expression of adjudication conclusively determining rights of a party with regard to all or any of the matters in controversy and secondly, that the expression of adjudication is made in a suit and not in miscellaneous proceedings not amounting to suit---If proceedings does not amount to a suit, the final order passed therein is order and not decree.

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

----O.IX. R.13, Ss.115 & 151---Ex parte decree, setting aside of---Restoration application for setting aside ex parte decree---Suit was decreed ex parte against defendant and application for setting aside ex parte decree was dismissed for non-prosecution---Application for restoration of application setting aside ex parte decree was dismissed being barred by limitation---Validity---Both the courts below did not express any opinion on merits---Trial Court should had passed order in accordance with law affording proper opportunity of hearing and producing evidence to defendant for his failure to appear before Trial Court on the date when application for restoration of ex parte decree was fixed for hearing---Such opportunity would have helped Trial Court to determine remaining two questions i.e. conduct of defendant and non-advancing convincing reasons for his failure, if any---High Court set aside orders passed by both the courts below and remanded the case to Trial Court for fresh decision on application of defendant---Revision was allowed in circumstances.

Syed Arshad Ali for Petitioner.

Khalid Rehman for Respondents.

Date of hearing: 24th September, 2012.

2013 M L D 410

[Pehsawar]

Before Qaiser Rashid Khan, J

MUHAMMAD MAROOF KHAN---Petitioner

Versus

SIRAJ-UL-ARIFEEN and others---Respondents

Civil Revision Petition No.258 of 2005, decided on 16th April, 2012.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Pre-emption suit---Talb-e-Muwathibat and Talb-e-Ishhad, performance of---Proof---Plaintiff's plea that he came to know about suit sale at time of attestation of its mutation by Tehsildar at a hospital, where he was present as Lamberdar and performed Talb-e-Muwathibat in presence of Tehsildar in "Jalsa-e-Aam"---Validity---Plaintiff in plaint and evidence had not mentioned time of making jumping demand---Plaintiff in evidence had stated place of jumping demand to be "jalsa-e-Aam" without referring to hospital, thus, he had departed from his plea raised in plaint---Plaintiff had not mentioned in plaint name of witness of jumping demand, but had disclosed his name during evidence---Plaintiff during evidence had admitted that at time of attestation of suit mutation, his father who was Lumberdar at that time, used to identify mutations before Tehsildar---Such admission had made presence of plaintiff at relevant time in Patwarkhana highly doubtful---Witness of jumping demand in his statement had not mentioned its date, time and place of making by plaintiff---Scribe of notice of Talb-e-Ishhad had denied knowledge of its sender or witnesses---Such notice as stated by postman was received by brother of plaintiff and not by plaintiff himself---Witness of such notice had denied knowledge of its scribe and other witness---Right of pre-emption would cease to exist, if plaintiff failed to prove performance of Talbs strictly in accordance with law---Plaintiff had failed to prove such Talbs---Suit was dismissed in circumstances.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Pre-emption suit---Talb-e-Muwathibat, performance of---Failure of plaintiff to prove such Talb---Effect---Right of pre-emption would extinguish---Principles.

The foundation stone of a pre-emption suit is Talb-e-Muwathibat and if same is not proved by the plaintiff, then the right of pre-emption ceases to exist. Right of pre-emption was a feeble right and the requirement of law is that its existence and enforcement must be strictly observed.

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

----S.115---Concurrent findings of courts below---Interference in such findings by High Court in its revisional jurisdiction---Scope---High Court could not set aside such findings without showing from evidence on record that same were fanciful, erroneous, based on non-reading or mis-reading of material evidence or had resulted into grave miscarriage of justice.

2000 SCMR 346; PLD 1994 SC 291 and PLD 2002 SC 293 ref.

Rafeque Yousif for Petitioner.

Ahmad Farooq for Respondents.

Date of hearing: 16th April, 2012.

2013 M L D 454

[Peshawar]

Before Assadullah Khan Chamkani, J

LIAQAT ALI---Applicant

Versus

GHULAM MUHAMMAD and 4 others---Respondents

C.M. No.785 of 2012, decided on 2nd January, 2012.

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

----S. 24---Application for transfer of civil suit---Scope---Non-specific allegations---Applicant contended that he had no confidence in the Judge concerned since he had dismissed an earlier suit of the applicant, which was similar to the present suit; that such dismissal order was set aside in appeal by the Appellate Court, and that the Judge was giving very short dates in the case, therefore, applicant apprehended that Judge would not decide the matter in accordance with the law---Validity---Comments submitted by Judge concerned revealed that he was keen on early disposal of each and every pending case in accordance with the Judicial Policy---No specific allegation had been made by the applicant regarding his no confidence over the Judge---Grounds mentioned by the applicant in his application for transfer of case were not sufficient---Transfer application was dismissed in circumstances with a direction to the Judge concerned to decide the case strictly in accordance with the law and merits, without being influenced from any quarter.

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

----S. 24---Transfer of civil suit---Grounds---Scope---Mere wishes of a party could not be held to be a valid ground for transfer of case.

Basir Ullah for Applicant.

2013 M L D 537

[Peshawar]

Before Qaiser Rashid Khan and Shah Jehan Khan Akhundzada, JJ

Mst. ISHRAT BIBI---Petitioner

Versus

MUHAMMAD ARSHAD and another---Respondents

Writ Petition No.454 of 2010, decided on 17th October, 2012.

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

----S.5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Divorce on the basis of khula---Recovery of maintenance---Family Court dissolved marriage on the basis of Khula and refused to pay maintenance allowance to wife---Wife contended that when factum of cruelty was proved, marriage should not have been dissolved on the basis of Khula and she was entitled to recovery of maintenance also---Validity---Attitude of wife had made her desert her husband's house and preferred to stay with her parents, and the same could not be termed as ouster of wife on the part of husband from his house but rather a desertion on the part of wife to leave her husband's house out of her own sweet and free will---Wife was disobedient, therefore, she did not have right to claim maintenance from her husband and the same was rightly disallowed to her by Family Court---Element of cruelty and torture at the hands of husband was disproved, therefore, marriage was rightly dissolved on the basis of Khula---High Court, in exercise of constitutional jurisdiction under Art. 199 of the Constitution, declined to make factual determination or interfere in judgment passed by competent court vested with statutory powers unless there was a jurisdictional error or other legal infirmity such as arbitrariness etc. in the order assailed before High Court---Petition was dismissed in circumstances.

Muhammad Anwar Awan for Petitioner.

Syed Aamer Hussain Ziadi for Respondents.

Date of hearing: 17th October, 2012.

2013 M L D 545

[Peshawar]

Before Nisar Hussain Khan, J

Haji GUL NAIB---Petitioner

Versus

SHAH QIAZ and 2 others---Respondents

Criminal Miscellaneous (QP) No.41-B of 2012, decided on 11th July, 2012.

Penal Code (XLV of 1860)---

----Ss. 302/324/460/171/109/148 & 149---Pakistan Arms Ordinance (XX of 1965), S.13---Criminal Procedure Code (V of 1898), Ss. 169, 537 & 561-A---Qatl-e-amd, attempt to commit qatl-e-amd, lurking house-trespass or house-breaking by night, wearing garb or carrying token used by public servant with fraudulent intention, abetment, rioting, common object and possessing unlicensed arms---Petition for quashing of order and cancellation of bail and respondent/accused was not charged in the F.I.R. and he was well known to the complainant prior to the occurrence---Accused was charged in the supplementary statement of the complainant recorded under S. 161, Cr.P.C. after 14 days of the occurrence---Nothing incriminating was recovered from accused during custody, or discovered on his pointation, nor any other incriminating evidence was collected against him---Facts of the case had suggested that except the belated supplementary statement of the complainant, which was not supported by any evidence, much less tangible, nor the evidence could prima facie connect the accused with the commission of crime or abetment---When no evidence or reasonable ground was available to justify the forwarding of accused to Magistrate, the Investigating Officer or Incharge of the Police Station, could release such accused on execution of his personal bond, with or without sureties; and such officer would direct accused to appear before the court or the Magistrate, when so required---Circle Officer, in circumstances, was justified to release accused on his personal bond, when after interrogation, during Police custody and investigation of the case, he could not collect a tangible evidence to connect accused with the commission of crime---Circle Officer, however was not justified to omit name of accused from the respective column of the challan, without a specific order of the Magistrate for his discharge---Investigating Officer/S.H.O. was legally obliged to put his name in final report/challan, whether in column No.2 or 3, whatever, the case could be in his opinion---Failure to do the same was an illegality; and it could not be countenanced or cured, even by S.537, Cr.P.C.---Order of Circle Officer regarding release of accused on personal bond, was maintained, but defective challan submitted by S.H.O. was quashed---Circle Officer and S.H.O. concerned were directed to re-submit challan by placing the accused as an accused in respect of column No.2 or 3.

Farooq Khan Sokari for Petitioner.

Ahmed Farooq Khattak, A.A.-G. for Respondents.

Date of hearing: 11th July, 2012.

2013 M L D 557

[Peshawar]

Before Nisar Hussain Khan, J

NOOR ALI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.7-B of 2011, decided on 12th December, 2012.

Penal Code (XLV of 1860)---

----Ss. 324 & 337-F(ii)---Attempt to commit qatl-e-amd, causing badi'ah to any person---Appreciation of evidence---Accused was singularly charged for effective firing---Incident was a broad-daylight occurrence and accused and complainant both being cousins inter se, question of mistaken identity did not arise---Version of complainant was corroborated by medical evidence---Blood stained trouser of the complainant taken into possession and his blood secured from the crime venue, were sent to the Forensic Science Laboratory, report whereof revealed that it was a human blood and of the same group---All those pieces of circumstantial evidence corroborated the ocular account furnished by injured complainant---Contention of defence counsel that as prosecution witness had not supported the prosecution case, accused was entitled for acquittal, was not tenable---Prosecution witness had admitted that site plan was prepared on his pointation by Investigating Officer---Single witness was sufficient to prove a criminal case, if his testimony rang true, was worthy of credence and corroborated by other circumstantial evidence---In the present case, complainant himself was the eye-witness having stamps of injuries on his person, who could not be expected to substitute accused, who was also his cousin, for the real culprit---Statement of injured witness corroborated by medical evidence was sufficient for recording conviction against accused---Complainant had given a straightforward account of the events; he had been subjected to the test of searching cross-examination, but nothing beneficial for defence, could be extracted---Prosecution had successfully brought the guilt of accused---F.I.R. though was registered under S.324, P.P.C. and charge was also framed thereunder, but after recording evidence, the Trial Court convicted under S.337-F(ii), P.P.C.---Seat of injuries, being on non-vital parts of the body of victim, and non-repetition of fire shot by accused, when the victim was at his mercy, intention to kill, was missing in the case---Trial Court, therefore, was justified to record conviction under S.337-F(ii), P.P.C.---Prosecution had failed to bring on record about the previous history and antecedents of accused, that he was also liable to punishment of Ta'azir as well---Conviction of accused under S.337-F(ii), P.P.C. was maintained, while sentence of imprisonment was set aside, and the amount of "Daman" was increased.

Masood Iqbal Khattak and Javed Akhtar for Appellant.

Faridullah Khan, D.A.-G. and Abid Anwar Khattak for Respondents.

Date of hearing: 12th December, 2012.

2013 M L D 622

[Peshawar]

Before Mian Fasih-ul-Mulk and Shah Jehan Khan Akhundzada, JJ

Haji ABDUR REHMAN---Petitioner

Versus

GHULAM SYED and another---Respondents

Writ Petition No.3065 of 2011, decided on 19th December, 2012.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Prevention of illegal possession of property---Status of accused as property grabber not proved---Complainant gaining back possession of disputed property---Effect---Complainant (petitioner) filed complaint against accused persons (respondents) alleging that they took forcible possession of his property and destroyed all the standing crops on the property---Trial Court dismissed said complaint on the grounds that complainant admitted that he was now back in possession of the disputed property, and that accused persons were abroad and not in any position to re-occupy the disputed property---Validity---One of the accused was real brother of complainant, while the other was his nephew, therefore, accused persons did not belong to a class of property grabbers or Qabza group---Complainant had admitted that he was now back in possession of disputed property and accused persons were aboard and in no position to reoccupy the same---Question of illegal dispossession of disputed property at the hands of accused persons did not arise in such circumstances, therefore, Illegal Dispossession Act, 2005 was not attracted to the present case---Trial Court had rightly dismissed the complaint---Constitutional petition was dismissed in circumstances.

Zahoor Ahmad and others v. The State and others PLD 2007 Lah. 231; Mobashir Ahmad v. The State PLD 2010 SC 665 and Habib Ullah v. Abdul Manan 2012 SCMR 1533 rel.

Atlas Khan for Petitioner.

Iqbal Khalil for Respondent.

Date of hearing: 19th December, 2012.

2013 M L D 632

[Peshawar]

Before Mazhar Alam Khan and Assadullah Khan Chamkani, JJ

IMRAN and 3 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.42 of 2010, decided on 20th December, 2012.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Motive not proved---Presence of eye-witnesses at scene of occurrence doubtful---Co-accused confessing to the crime---Effect---Accused persons allegedly committed qatl-e-amd of deceased by inflicting knives blows---No specific role was assigned to each of the accused, who belonged to one and the same family---Site plan revealed that at the time of quarrel accused persons and eye-witnesses were standing very close to the deceased, and despite the fact that accused persons were inflicting knives blows, neither the complainant nor the eye-witnesses received a single scratch or injury---According to the prosecution case many people were present at the scene of occurrence and tried to separate both parties, however prosecution failed to produce a single witness from such people---Accused were four in number while complainant party consisted of five persons, therefore complainant party should have been in a better position to overpower the accused party---Presence of eye-witnesses at the spot was doubtful in such circumstances, therefore, they were not reliable witnesses---No witness was produced to prove the fact that a dispute took place between both parties prior to the occurrence---Co-accused had made a judicial confession before the Magistrate, wherein he admitted that he committed the offence alleged and did not disclose the name of accused persons of having any hand in the commission of the offence---Conviction recorded by Trial Court was set aside and accused persons were acquitted of the charge---Appeal was disposed of accordingly.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-e-amd---Appreciation of evidence---Retracted judicial confession---Reliance on such confession for conviction of accused---Scope---­ Accused and co-accused persons allegedly committed qatl-e-amd of deceased by inflicting knives blows---Accused made a judicial confession before the Magistrate to the effect that he had committed qatl-e-amd of deceased, however subsequently he retracted from such confession---Trial Court convicted and sentenced accused under S.302(b), P.P.C---Validity---Retracted confession of an accused, if confidence inspiring, alone was sufficient for conviction---Confessional statement of accused was corroborated by the medical evidence, blood-stained clothes and its report along with recovered knife---Perusal of confessional statement of accused revealed that he had disclosed the entire occurrence before the Magistrate without any duress and coercion and he did not disclose the names of co-accused persons of having any hand in the commission of the offence---Appeal to the extent of accused was dismissed in circumstances and conviction and sentence awarded to him by Trial Court was maintained.

Tariq Hussain Shah v. The State 2003 SCMR 938 rel.

(c) Criminal trial---

----Statement of witness, reliance on---Scope---Want of interest or absence of enmity did not stamp the statement of a particular witness with presumption of truth, as the same depended on the intrinsic value of such a statement---Real test was whether statement of witness was in consonance with the probabilities and fit in with the other evidence, and whether it inspired confidence in the mind.

Muhammad Iqbal v. The State 1984 SCMR 930; Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639 and Haroon alias Harooni v. The State and another 1995 SCMR 1627 rel.

(d) Criminal trial---

---Statement of witness, disbelieving of---Scope---Single infirmity in statement of witness---Effect---For disbelieving a witness, it was not necessary that there should be numerous infirmities (in the statement)---Single infirmity which impeached the credibility of the witness might make entire statement doubtful.

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

----S. 164---Retracted judicial confession---Reliance on such confession for conviction of accused---Scope---­Judicial confession made by accused would not lose its value for the mere reason that it was retracted---Retracted confession of an accused, if confidence inspiring, alone was sufficient for conviction.

Tariq Hussain Shah v. The State 2003 SCMR 938 rel.

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

----S. 164---Retracted judicial confession---Evidentiary value---Scope---For judging evidentiary value of a retracted confession it was to be seen whether the same appeared to be voluntary, without any inducement, promise, duress or coercion, and whether the same appeared to be true and voluntary---Where retracted judicial confession appeared to be voluntary and true, it was supposed to be the best evidence against the maker (i.e. accused) and could be made sole basis for conviction, without looking for corroboration.

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

----S. 164---Judicial confession---Reliance on such confession for conviction of accused---Scope---Judicial confession alone, if it was found true, convincing and voluntary without any duress or coercion, could be made basis for conviction.

Suleman v. The State 2006 SCMR 366 rel.

Farman Ali Khan for Appellants.

Abdul Qayum for Respondents.

Muhammad Javed Khan (D.A.-G.) for the State.

Date of hearing: 20th December, 2012.

2013 M L D 665

[Peshawar]

Before Qaiser Rashid Khan and Rooh-ul-Amin Khan, JJ

ATTAULLAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeals Nos.72, 77 and Criminal Revision No.22 of 2010, decided on 15th November, 2012.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Brother of deceased as prosecution witness had alleged that relations between the spouses/deceased wife and her husband were strained---No evidence was available to suggest that relations between the spouses were so strained which culminated into homicide of deceased wife---Motive for commission of the offence was brought through affidavit, which had been filed with local Police with a considerable, unexplained delay, which indicated that alleged motive was an afterthought, and was manipulated by the prosecution---Recovery of blood stained clothes, would only affirm the place of occurrence, which was not denied by accused---No eye-witness of occurrence and nothing was corroborated by the recovery from the spot---Weapon of offence recovered from the spot, and specimen of fingerprints of accused, were never sent to Fingerprint Expert for analysis and comparison---Recovery of offensive weapon, could not be used as piece of evidence against accused, as it was not secured at the instance of accused, but was recovered by the Police from the spot near the corpse---Prosecution had failed to establish the presence of accused in his dwelling room, at the time of occurrence---Deceased was done to death in her room, but in absence of any direct or substantial evidence the conviction of accused could not be maintained, merely on account that her husband was bound to explain the murder of his wife inside the room---Prosecution witness had contradicted each other on material points, particularly on the time; spot and recovery from the spot---Occurrence was not witnessed by any person---Case was full of serious doubts, and accused was entitled to outright acquittal on the basis of benefit of doubt---Prosecution having not been able to prove its case against accused beyond any shadow of reasonable doubt, impugned judgment of conviction and sentence was set aside, accused was acquitted of the charge, and was set at liberty---Appeal against conviction and sentence, was allowed.

Abdul Majeed v. The State 2011 SCMR 941 rel.

(b) Criminal trial---

----Motive---Crime, no doubt, could be committed without any motive, but once the prosecution alleged a particular motive, then it became the duty of the prosecution to prove the same---If the prosecution alleged motive, but failed to prove the same, then ocular evidence was required to be scrutinized with great care and caution.

Noor Muhammad v. The State and another 2010 SCMR 97 rel.

(c) Criminal trial---

----Medical evidence---Medical evidence was always treated of confirmatory nature; and it did not identify the actual culprit involved in commission of the offence.

(d) Criminal trial---

----Benefit of doubt---Necessary for the prosecution to prove its case against accused, beyond any shadow of reasonable doubt; and if any doubt was found therein then accused would be entitled to the same---If there was element of doubt as to the guilt of accused, it must be extended to him---Benefit of doubt was initially a rule of prudence, which could not be ignored while dispensing justice in accordance with law---Said principle was based on the famous maxim that "it was better that ten guilty persons be acquitted rather than if one innocent person was convicted"---For acquittal of an accused in an offence, how so heinous it was, only a single doubt in the prosecution case was sufficient---Said principle occupies a pivotal place in Islamic law.

Saying of Holy Prophet, PBUH that mistake of Qazi in releasing a criminal is better than his mistake in punishing an innocent; Ayub Maseeh v. The State PLD 2002 SC 1048 and Khalid Mehmood and another v. The State 2011 SCMR 664 rel.

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

----Ss. 410 & 417(2-A)---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd---Appeal against acquittal---Principle for appraisal of evidence in an appeal against acquittal were altogether different from the appeal against conviction---Once an accused was acquitted by a competent court of law after facing the agonies of protracted trial, then he would earn the presumption of double innocence, which could not be set at naught by Appellate Court slightly, unless it was established on the basis of available evidence that impugned judgment of acquittal was perverse, fanciful, or resulted into grave miscarriage of justice---No such infirmity was pointed out by counsel for the complainant in the impugned judgment through the appeal against acquittal---Appeal against acquittal was dismissed in circumstances.

Ghulam Hur Khan Baloch for Appellant.

Khan Wali Khan Mahsud, Addl: A.G. for the State.

Sultan Shehryar Khan Marwat for the Complainant.

Date of hearing: 15th November, 2012.

2013 M L D 689

[Peshawar]

Before Qaiser Rashid Khan, J

Syed FAQIR SHAH---Appellant

Versus

Haji INAYATULLAH KHAN and another---Respondents

R.F.A. No.20 of 2005, decided on 14th September, 2012.

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

----Ss. 8, 9, 13, 30 & 42---Arbitrator, powers of---Scope---Arbitrator could neither ignore principles of natural justice nor act at back of parties---Principles.

The proceedings before the arbitrators can be described as referring the matter in dispute by the parties to a judge of their own choice, but it does not mean that the arbitrators may act according to their wishes ignoring the basic principles of natural justice of affording of being heard to some one or to act arbitrarily at the back of the parties, for the reason that the arbitration proceedings are to resolve the matter in dispute by an alternate forum within a system of justice and are not the substitution of a system of justice. If the arbitrators are allowed to act in any manner what they like, then it would be a punishment for the parties for referring their dispute to the arbitrators.

No doubt that the arbitrators are not bound by any rules of procedure or even law of evidence, but even then such forum cannot proceed in disregard to the rules of natural justice or the law on the subject.

The act of not giving any notice to the party or for that matter not providing him an opportunity of being heard in support of his case and proceedings conducted at his back amounts to misconduct resulting in gross miscarriage of justice.

Had the service of written notice not been necessary then the legislature in section 42 of the Arbitration Act, 1940 would not have given the mode of service of notice to be served otherwise than through court.

AIR 1932 Bom. 68 and AIR 1931 Lah. 65 rel.

(b) Administration of justice---

----Justice should not only be done, but must be seen to have been done.

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

----Ss. 14 & 17---Making award rule of court---Reappriasal of evidence by civil court---Scope---Civil court only having supervisory jurisdiction could not act like court of appeal to re-appraise evidence.

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

----Ss. 14, 15, 17 & 30---Making award rule of court---Duty of court---Scope---Upholding award should be preferred rather than vitiating same---Exceptions stated.

The court is supposed to lean towards upholding the award, rather than vitiating it, but at the same time, the court has got powers under the Arbitration Act, 1940 to order modification or correction of an award, if the case falls under section 14 of the Act and the same can be set aside, if it is covered by the provisions of section 30 of the Act.

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

----Ss. 30 & 42---Award, setting aside of---"Misconduct" on part of arbitrator---Connotation and instances stated.

The word "misconduct" has not been defined in the Arbitration Act, 1940 and it appears that the legislature has deliberately left this term undefined.

Misconduct can be described as an act on the part of arbitrators, which has prejudicially affected the basic rights of the party or is violation of any law or principles of natural justice and which if not interfered with, may result in grave miscarriage of justice. The following inter alia constitute misconduct on the part of the arbitrator:

(1) Neglect of duties and responsibilities by the arbitrators;

(2) If the award is made without having heard all the evidence;

(3) If a party has not been allowed reasonable opportunity of proving his case;

(4) If the evidence of witnesses is recorded behind the back of a party;

(5) If irregularities in proceedings are proved which amount to no proper hearing of the matter in dispute;

(6) If the arbitrator decides a disputed question without going into evidence as they would in such a case be said to have decided it blindly;

(7) If there is indication of gross negligence, dereliction of duty or recklessness on the face of the record. [p. 696] H

No doubt that the arbitrators are not bound by any rules of procedure or even law of evidence, but even then such forum cannot proceed in disregard to the rules of natural justice or the law on the subject.

The act of not giving any notice to the party or for that matter not providing him an opportunity of being heard in support of his case and proceedings conducted at his back amounts to misconduct resulting in gross miscarriage of justice.

Had the service of written notice not been necessary then the legislature in section 42 of the Act would not have given the mode of service of notice to be served otherwise than through court.

PLD 1985 SC 69; 1987 SCMR 704; 1987 SCMR 527; PLD 1990 SC 800; 1992 SCMR 65; 1995 SCMR 73; PLD 1996 SC 831; AIR 1932 Bom. 68; AIR 1931 Lah. 65; PLD 1965 Dacca 258; PLD 1966 AJ&K 10; PLD 1971 AJ&K 127; 1990 CLC 1241; PLD 1987 574; 2001 MLD 890; PLD 1970 Kar. 357; 1990 MLD 261; 1989 MLD 241; 2003 YLR 1523; PLD 2003 Lah. 522; PLD 1987 Quetta 33; 1988 CLC 267; 2002 SCMR 1903; 1990 MLD 1764; 2003 YLR 2596; 1982 CLC 767; PLD 1993 Kar. 626; 2001 MLD 99; 2004 CLC 1977; PLD 1960 (W.P) Lah. 786; 2004 YLR 274 and 2003 CLC 1780 ref.

AIR 1932 Bom. 68 and AIR 1931 Lah. 65 rel.

(f) Words and phrases---

----"Misconduct"---Meanings.

Webster's New World College Dictionary (third edition) and The Australian Concise Oxford Dictionary (third edition) ref.

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

----Ss. 14, 17 & 30---Limitation Act (IX of 1908), Art. 158---Filing of award in court by arbitrator for making same rule of court---Application for setting aside award filed after 77 days of its filing in court---Applicant's plea that he had not been served with any notice of date, time and place of arbitration proceedings---Validity---Point of limitation would not come in way of justice, when arbitrator had mis-conducted himself and too when a party alleged non-service of any notice---Record supported such plea of applicant---Application for making award rule of court was dismissed in circumstances.

Date of hearing: 14th September, 2011.

2013 M L D 723

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

AMIR ZAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.18-B of 2010,decided on 6th December, 2012.

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

----Ss. 302(b)/324/337-F(ii)(iii)/337-D---Qatl-e-amd, attempt to commit qatl-e-amd, causing badi'ah and matalahimah to any person and jaifah---Appreciation of evidence---Delay in lodging report, which otherwise was justifiably explained could not be considered to have been used for consultation and fabrication---Accused were known hardened and desperate criminals---Complainant party belonged to the same village and clan of accused party---F.I.R. version was corroborated by recovery of blood-stained earth from the places of two deceased and crime empties from places of accused---Forensic Science Labortaory's report showed that empties were fired from different weapons---Postmortem reports of the two deceased and medico-legal reports of the injured, were also in line with the prosecution version---Both the injured, had corroborated each other on all material points, they were subjected to lengthy and searching cross-examination by the defence, but nothing could be extracted from them which could create any dent in the prosecution case---Though both the injured were the sons of the deceased, but they had no previous enmity or malice with accused, in absence of which they could not be branded as interested witnesses; and one could not expect from them to involve innocent persons instead of the real assailants---Accused could not be acquitted, when strong, cogent, coherent and confidence inspiring ocular account had been furnished against them by two injured eye-witnesses, whose presence had undoubtedly been established---Three accused were charged for effective firing; one of whom had been acquitted, while other one was absconding, whose place of presence at the time of occurrence was shown near the place of accused---Sentence awarded to accused by the Trial Court, being just and proper which met the ends of justice was maintained, in circumstances.

(b) Criminal trial---

----Interested witness---Statement of interested witness should be taken with great care and caution, who had previous enmity with accused; and were interested in his conviction.

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

----Art. 47---Relevancy of certain evidence in subsequent proceedings---Evidence given by a witness in a judicial proceedings, or before any person authorized by law to take it, was relevant for the purpose of proving, in a subsequent judicial proceedings; or in a later stage of the same judicial proceedings, the truth of the facts which it stated, when the witness was dead; or could not be found; or was incapable of giving evidence---Article 47 of Qanun-e-Shahadat, 1984 provided that evidence of Doctor recorded earlier in same judicial proceedings could be treated as evidence---Said Article had been inserted in the statute to meet such like situation.

(d) Criminal trial---

----Medical evidence---Medical evidence was always treated as a confirmatory or corroborative piece of evidence.

(e) Criminal trial---

----Corroboration of evidence---When the ocular account was straightforward, truthful, confidence inspiring and was furnished by injured witnesses, it hardly needed corroboration from any circumstantial evidence.

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

----Ss.302(b)/324/337-F(ii)(iii)/337-D---Criminal Procedure Code (V of 1898), S. 417(2-A)---Appeal against acquittal---Qatl-e-amd, attempt to commit qatl-e-amd, causing badi'ah and matalahimah to any person and jaifa---Appreciation of evidence---Benefit of doubt---Co-accused who had been acquitted, his presence had been shown on the spot at the time of occurrence at the point in the site plan, which was at a distance of 25 paces from one point, while the distance from another point had not been shown in the site plan---Position of co-accused on the spot as shown in the site plan, would create doubt in the mind of the court as to whether he had participated in the occurrence or not---Trial Court had rightly appreciated the evidence qua co-accused; and had rightly acquitted him by extending him the benefit of doubt---No reason being available to reverse said findings of the Trial Court qua acquitted co-accused same were maintained.

Sultan Shehryar Khan Marwat for Appellant.

Salimullah Khan Ranazai for Respondents.

Ahmed Farooq Khattak, Additional Advocate-General.

Date of hearing: 6th December, 2012.

2013 M L D 743

[Peshawar]

Before Waqar Ahmad Seth, J

Mrs. ALAM ARA---Appellant

Versus

Dr. SHAISTA TARIQ---Respondent

R.F.A. No.32 of 2007, decided on 1st January, 2013.

(a) Suit for damages---

----Medical malpractice/negligence---Suit for damages and compen-sation alleging medical malpractice on part of defendant (doctor)---Plaintiff contended that due to negligence of the defendant, who prescribed medicines for high-blood pressure to plaintiff, the plaintiff miscarried on her pregnancy and almost died in a C-section operation---Suit was dismissed by Trial Court---Validity---Plaintiff had failed to provide proof of any defect in the ultrasound machines and quality and maintenance certificates for the same were clear---Plaintiff had admitted that she was suffering form high blood pressure and that medicine prescribed by defendant made her feel better---Plaintiff had approached the defendant for treatment of only blood pressure and medicines were prescribed, therefore, only for high-blood pressure---Record nowhere suggested that defendant/doctor had posed herself as a gynecologist in front of the plaintiff---Plaintiff was not under the sole management of the defendant as she consulted a gynecologist and remained under treatment in a hospital---Record also showed that it was a third C-section of the plaintiff due to her high blood pressure and it was not a result of the defendant's negligence---Plaintiff thus failed to prove any negligence on part of defendant, and the suit was rightly dismissed---High Court dismissed appeal of plaintiff, in circumstances.

(b) Tort---

----Negligence and carelessness---Cause of action---Duty to take care---For the purpose of negligence and carelessness and the duty to take care, the essentials were that negligence in the sense of mere carelessness, would not give rise to any cause of action---Carelessness, however, would assume legal quality of negligence where there was duty to take care and where failure in that duty had caused damages---Duty to take care was, thus, an essential ingredient of the "tort of negligence" and unless such duty was established, no case of actionable negligence could arise.

2010 MLD 134 rel.

(c) Suit for damages---

----Maxim: Res Ipsa Loquitur---Damages, proof of---In a suit for damages, the maxim Res Ipsa Loquitur was to be proved which meant that things (should) speak for themselves---Said doctrine applied firstly, when things that inflicted damage were under sole management and control of the defendant, and secondly, that occurrence was such that it would not have happened without negligence, and thirdly, that there must be no evidence as to why or how the occurrence took place.

Abdul Shakoor Khan for Appellant.

Abdul latif Khan for Respondent.

Date of hearing: 1st January, 2013.

2013 M L D 760

[Peshawar]

Before Mian Fasih-ul-Mulk and Rooh ul Amin Khan, JJ

Mst. SHAMIM AKHTER---Petitioner

Versus

ABDUR RAFIQ and 2 others---Respondents

Writ Petitions Nos.1070 and 2788 of 2011, decided on 16th October, 2012.

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

----Ss. 10 proviso & 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Khula---Return of dower in lieu of dissolution of marriage on basis of khula---Suit for dissolution of marriage on basis of khula was decreed by Trial Court and Appellate court modified said decree by ordering wife to return dower in lieu of khula---Validity---Wife had conceded that at the time of ouster from the house, she had taken gold with her which was given to her by the husband at the time of marriage---If the husband was not at fault but the wife for some other reasons wished to end the marriage, then it was permissible for the husband to demand and receive some financial payment, however, it would be superior for him not to take more than the actual stipulated dowry---Under proviso to S.10 of the West Pakistan Family Courts Act, 1964 after decree for dissolution of marriage on basis of khula was passed, at the same time dower was to be restored to the husband---Appellate Court had taken the correct view---Constitutional petition was dismissed, in circumstances.

PLD 1986 Quetta 185; Mst. Saffiya Bibi v. Fazal Din and others 2000 YLR 2678; Mst. Zarina Bibi v. Additional District Judge, Jhang and others 1993 MLD 1507;, "Mst. Shakila Bibi v. Muhammad Farooq and another 1994 CLC 230; Mst. Razia Begum v. District Judge, Jhang, 1995 CLC 657 and Mst. Manzooran Bibi v. Khan Muhammad and others 1998 CLC 1929 ref.

M. Yasir Khattak for Petitioner.

Malik Haroon Iqbal for Respondents.

Date of hearing: 16th October, 2012.

2013 M L D 810

[Peshawar]

Before Rooh-ul-Amin Khan, J

RAZA KHAN---Petitioner

Versus

The STATE through Additional Advocate General, Peshawar and another---Respondents

Criminal Miscellaneous Bail Petition No.595-M of 2012, decided on 26th December, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/34---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qatl-e-amd, common intention, going armed without a license---Bail, refusal of---Lengthy and unexplained abscondence of accused---Effect---Accused and co-accused were alleged to have murdered complainant's son---Initially accused was granted bail before arrest on the basis of a compromise---On initiation of trial, accused went into hiding and was declared a proclaimed offender, while co-accused was acquitted of the charge after completion of his trial---Accused was ultimately arrested after an abscondence of 15 years---Fugitive from law and courts lost some of his normal rights granted by procedural as well as substantive law---Accused was guilty of deliberate, long and unexplained abscondence and only surrendered himself after acquittal of co-accused---Such conduct of accused was sufficient to disentitle him from concession of bail, irrespective of acquittal earned by the co-accused---Accused was directly charged for the murder of the deceased---Recovery of blood stained earth and empties supported the version of prosecution---Bail application of accused was dismissed in circum-stances.

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

----S. 497---Bail---Unexplained abscondence of accused---Effect---Such abscondence would disentitle accused from concession of bail, notwithstanding the merits of the case.

Awal Khan v. Zawar Khan and others PLD 1985 SC 402 rel.

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

----S. 512---Record of evidence in absence of accused---Conviction/ acquittal of accused on basis of such evidence---Scope---Evidence recorded in absence of an accused, could not be used for his conviction---Similarly, such evidence also could not be used for the benefit of accused.

Bashir Ahmad for Petitioner.

Khawaja Salahuddin for the State.

Date of hearing: 26th December, 2012.

2013 M L D 825

[Peshawar]

Before Assadullah Khan Chamkani and Shah Jehan Khan Akhundzada, JJ

FAZAL MAULA and another---Appellants

Versus

AKHTAR JAMEEL and another---Respondents

Criminal Appeal No.112 of 2010, decided on 20th September, 2012.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 404---Criminal Procedure Code (V of 1898), S.164---Qatl-e-amd, dishonest misappropriation of property possessed by deceased at the time of his death---Appreciation of evidence---Retracted confession---Evidentiary value---Complainant, being not an eye-witness of the occurrence, his evidence was of no use to prosecution---Complainant had charged none in the F.I.R., but had charged both the accused persons in his statement recorded under S.164, Cr.P.C. after about 12/13 days of the occurrence; and for that belated statement he had neither furnished any plausible explanation nor had disclosed source of his satisfaction---Such belated statement without plausible explanation for the same, in the absence of disclosure of source of satisfaction had lost its evidentiary value and same could not be relied upon---Magistrate who had recorded alleged confessional statement of accused had totally/completely failed to observe and fulfil requisite formalities for recording confessional statement of accused---Said confessional statement being exculpatory and retracted, could not at all be called as voluntary judicial confession in the eye of law; and same having no legal effect, Trial Court was not justified to place reliance on the same---Recovery of the crime weapon at the pointation of accused having not at all been established, positive Forensic Science Laboratory's report in that regard seemed totally fabricated and manoeuvred on which no reliance could be placed, in circumstances---Recovery of rifle, cartridges and mobile, was of no use to the prosecution because the prosecution had failed to prove through reliable evidence that those articles were the belongings of the deceased---Prosecution had failed to establish its case against both the accused persons beyond any reasonable shadow of doubt---Conviction and sentence recorded by the Trial Court against accused persons, were set aside, they were acquitted from the charges levelled against them and they were set at liberty, in circumstances.

Khawaja Muhammad Khan Gara for Appellant.

S.M. Atique Shah for the Complainant.

Ikramullah Khan, A.A.-G. for the State.

Date of hearing: 20th September, 2012.

2013 M L D 836

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

NASEEB-UR-REHMAN---Appellant

Versus

MUQARAB KHAN and another---Respondents

Criminal Appeal No.5-B of 2010, decided on 26th February, 2013.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.46---Criminal Procedure Code (V of 1898), S.164---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for murder of his wife on the statement of mother of the deceased recorded under S.164, Cr.P.C., alleging that accused caused death of the deceased by administering poison---No direct evidence was available in shape of ocular account of incident, nor there was any circumstantial evidence which could connect accused with commission of crime---Statement of mother of the deceased with regard to dying declaration of the deceased, could not be believed, because same was not recorded according to procedure provided in Police Rules, 1934 and that mother of the deceased kept quiet for two months and thereafter came forward with the allegation that her daughter was done to death by accused by administering poison to her---Mother of deceased, had strained relations with accused and was interested in his conviction, her statement, therefore, could not be believed---Delayed statement of witness was always doubtful, and could not be believed for recording conviction in the capital charge---Accused had been convicted on the basis of circumstantial evidence which was weak and scattered---Case was based on no legal evidence or evidence of no legal consequence---Trial Court had recorded conviction against accused on mere assumption and conjectures, without considering that it was none else, but the accused, who reported the matter at the very earliest, and he remained in touch with the investigation and did not try to flee away, but surrendered before the Police---Such conduct of accused, raised the presumption that he was innocent---Evidence on record showed that either the deceased, in the peculiar backdrop of the events, had committed suicide or she might have been administered poison by some one else---Case of prosecution was doubtful and benefit of doubt was extended to accused---Impugned judgment of the Trial Court was set aside, accused was acquitted of the charge and was set at liberty, in circumstances.

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

----Art. 39---Confession before Police---Admissibility---Confession made by accused before the Police, was not admissible in evidence, nor it could be proved in terms of Art.39 of Qanun-e-Shahadat, 1984.

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

----Art. 46---Police Rules, 1934, Chapter 25, Para.21---Dying declaration, recording of---Procedure---Dying declaration whenever possible, be recorded by a Magistrate, and the person making the declaration, would be examined by the Medical Officer, to ascertain that he was sufficiently in a position to make a lucid statement---In case of non-availability of any gazetted Police Officer, it would be recorded in presence of two or more reliable witnesses, unconcerned with the Police Department, and the parties concerned---If no such witnesses could be obtained due to risk of injured being expired, his statement would be recorded in presence of two or more Police Officers---Dying declaration made to a Police Officer, be signed under S.162, Cr.P.C. by the person making it---Such procedure had been provided in the Police Rules, 1934 for safe administration of criminal justice to screen out any possibility of tutoring or manipulation on the part of any interested person.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Circumstantial evidence---All pieces of the circumstantial evidence must be so inter-connected as a chain that one end of it be at the dead body of the deceased, and the other around the neck of accused---If any chain of the circumstantial evidence was broken, the whole prosecution case, would fall to the ground.

(e) Criminal trial---

----Appreciation of evidence---Two interpretations of evidence---Effect---When two interpretations of evidence were possible, then one favouring accused, was to be followed.

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

----S.302(b)---Qatl-e-amd---Sentence---Benefit of doubt---For recording conviction in a capital charge, the evidence must be of unimpeachable character, having no shadow of doubt---Whenever, there was any reasonable doubt in the prosecution case, benefit of the same was to be extended to accused, not as a matter of grace or concession, but as a matter of right.

??????????? Sahibzada Asadullah for Appellant.

??????????? Sakhi Janan for Respondent.

??????????? Ahmad Farooq, Additional A.G. for the State.

??????????? Date of hearing: 26th February, 2013.

2013 M L D 882

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

MERAJ UD DIN---Appellant

Versus

ALI AHMAD SIDDIQUI and others---Respondents

F.A.O. No.53 of 2012, decided on 10th December, 2012.

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

----S.17---Ejectment of tenant---Bona fide personal need of landlord---Proof---Ejectment of tenant was sought on the plea of personal need of landlord but Rent Controller dismissed the application---Validity---Assertion on oath by landlord that he required property in good faith for his personal use, was sufficient to accept his bona fides if such assertions were consistent with and in conformity to averments of application---Averments of application were in line and harmony with statement of landlord made on oath duly supported by statement of his witness, therefore, it stood proved that landlord required suit shop in good faith for his personal requirement---High Court set aside judgment passed by Rent Controller and ejectment order was passed in favour of landlord---Appeal was allowed in circumstances.

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

----S.17 (9)---Ejectment of tenant---Bona fide personal need of landlord---Protection to tenant---Scope---Provision of S. 17(9) of Cantonments Rent Restriction Act, 1963, affords sufficient protection to tenant in case landlord does not occupy premises after getting it vacated through eviction order under S. 17(2) of Cantonments Rent Restriction Act, 1963.

1996 SCMR 97 and 382 rel.

Muhammad Habib Qureshi for Appellant.

Mian Iftikhar Khan for Respondents.

Date of hearing: 10th December, 2012.

2013 M L D 894

[Peshawar]

Before Khalid Mehmood and Rooh-ul-Amin Khan, JJ

Mst. ZARINTAJA and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 609 of 2012, decided on 14th February, 2013.

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

----S. 9(c)---Possessing and trafficking of narcotic---Appreciation of evidence---Accused could not substantiate their plea that they had been enroped as they had refused to take the complainant for attending a marriage ceremony---Said allegation did not appeal to reason that on mere refusing such demand of the complainant, accused were involved in the case for arranging such a huge quantity; and also enroping the female folk in the case---Accused persons had never been involved in such offences before---Request of counsel for accused for taking lenient view against accused persons being genuine, was acceded to, keeping in view the contradictions regarding the recovery of contraband and sending only one sample out of four slabs separated from each packet, which warranted reduction of sentence---One lady accused was 60 years old---Punishment already served by accused persons, in circumstances, was sufficient to meet the ends of justice; and same was reduced accordingly.

Alam Sher Khan Afridi for Appellants.

Amirullah Khan Chamkani for Respondent.

Date of hearing: 14th February, 2013.

2013 M L D 899

[Peshawar]

Before Qaiser Rashid Khan, J

The STATE through Advocate-General Khyber Pakhtunkhwa, Peshawar---Appellant

Versus

ATTAUR REHMAN and 3 others---Respondents

Criminal Appeal No.253-M of 2012, decided on 14th February, 2013.

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

----Ss.365-A, 342 & 343/34---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 25(4)---Criminal Procedure Code (V of 1898), S.417---Kidnapping or abducting for extorting property, wrongful confinement and common intention---Appeal against acquittal---Appreciation of evidence---After recording of evidence, Trial Court acquitted all accused persons---Validity---In F.I.R. no one was cited to have witnessed the occurrence but then paternal cousin of complainant was introduced as prosecution witness for the first time to record his statement before investigating officer to the effect that he had witnessed the occurrence of abduction of complainant at the hands of accused---House of the prosecution witness was adjacent to that of the complainant, who in his examination-in-chief referred to abduction of a girl by accused and in the same breath he stated that later on he came to know that the girl was his cousin but such statement was recorded on 27th day of occurrence---Case of complainant was full of glaring contradictions and material discrepancies, therefore, Trial Court had no choice but to acquit accused and its judgment was unexceptionable which called for no interference---High Court declined to interfere in judgment of acquittal passed by Trial Court.

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

----S.417---Appeal against acquittal---Presumption against accused---Different parameters are applied for interference in appeal against acquittal and appeal against conviction---Presumption of innocence of accused is double in case of acquittal---Appellate Court does not interfere unless conclusion reached by court below is not supported by evidence on record or is fanciful and perverse.

2004 SCMR 249; 2009 SCMR 288 and 2009 SCMR 946 rel.

Ikramullah Khan, A.A.-G. for Appellant.

2013 M L D 993

[Peshawar]

Before Mian Fasih-ul-Mulk and Assadullah Khan Chamkani, JJ

AMEER HUSSAIN---Petitioner

Versus

Mst. NAILA and 2 others---Respondents

Writ Petition No.2637 of 2011, decided on 21st February, 2013.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dowry articles and maintenance allowance---Non-mentioning of boundaries of land allegedly given as dower, or its Khasra Number---Effect---Wife produced marginal witnesses to prove her claim of land in question through cogent evidence---Failure to mention boundaries of said land or its Khasra Number would not deprive her from legal rights---Once it was proved that dower was fixed, then no valid exception could be taken---Constitutional petition was dismissed.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Maintenance allowance---Concurrent findings of courts below---Appellate Court had found that the Trial Court rightly fixed maintenance allowance keeping in view the financial position of the husband---No legal infirmity or jurisdictional defect was pointed out---High Court declined interference---Constitutional petition was dismissed.

Siraj Muhammad for Appellant.

Malik Mohd Rehan Awan for Respondents.

Date of hearing: 21st February, 2013.

2013 M L D 1004

[Peshawar]

Before Khalid Mehmood and Mrs. Irshad Qaiser, JJ

MUHAMMAD SADIQ, LECTURER---Petitioner

Versus

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

Writ Petition No.1124 of 2006, decided on 21st February, 2013.

(a) Pakistan Engineering Council Act (V of 1976)---

----S.8---Constitution of Pakistan, Art.199---Constitutional petition---Engineering Council, functions of---Professional degree---Determination of status---Petitioner was holding B.Tech (Hons) degree and his grievance was that University had cancelled his admission---Validity---Engineering Council described that B.Tech (Hons) was not similar to B.E./B.Sc. Engineering but it could be considered as parallel to degree of B.E./B.Sc. Engineering---Both the degrees were of distinct disciplines of knowledge in field of engineering and technology but for the purpose of service, seniority and promotion, they were considered equally---Entire record produced by Higher Education Commission and Pakistan Engineering Council was silent regarding declaring B.Tech (Hons) not equivalent to B.E./B.Sc. Engineering for the purpose of admission and further education---Both the degrees related to science in the area of engineering under the law---Only competent authority to declare status of degree was Pakistan Engineering Council but authorities failed to produce any record through which it could be ascertained that B.Tech (Hons) was not equivalent to B.E./B.Sc. Engineering---Petition was allowed accordingly.

(b) Words and phrases---

----"Equivalent"---Defined.

Black's Law Dictionary rel.

(c) Words and phrases---

----"Parallel"---Defined.

Chambers 20th Century Dictionary rel.

Syed Arshad Ali for Petitioner.

Muhammad Ali and Fawad Salik for Respondents.

Lal Jan Khattak, A.A.-G. for the State.

Date of hearing: 21st February, 2013.

2013 M L D 1026

[Peshawar]

Before Waqar Ahmad Seth, J

RASHID KHAN---Appellant

Versus

BASHIR---Respondent

R.F.A. No.37 of 2008, decided on 25th February, 2013.

(a) Defamation Ordinance (LVI of 2002)---

----Ss. 3, 4 & 12---Slander---Libel---Defamatory acts---Statement or assertion made before court---Appellant had unnecessarily impleaded the respondent in the suit---Lowering of status of respondent by levelling false allegations about his character---Respondent filed suit for defamation which was decreed against appellant---Validity---Action of arraying of respondent in the plaint and disclosure about his character did not amount to defamation actionable as slander---Special or general damages allegedly caused were not proved---Statement or assertion which was made before the court could not give rise to any action for libel or slander in circumstances.

Anwar ul Haq Anjum v. Mian Anjum Yousaf 2006 YLR 1623 rel.

(b) Defamation Ordinance (LVI of 2002)---

----Ss. 3, 4 & 12---Defamation---Suit for damages---Scope---For the purpose of damages party would be bound to prove factum and quantum of damages sustained by it by producing cogent evidence---Suit for damages cannot be decreed without proof and every averment in the plaint has to be separately and individually, proved by evidence, on each point---General, vague and scanty evidence cannot be relied upon---Damages suffered and the quantity of the amount claimed item-wise has to be proved by cogent evidence---Mere assertion in the plaint and replication in evidence is of no avail to the party---Where all such necessary requirements were missing, case was that of non-reading and misreading---Judgment and decree granting damages was set aside.

M. Shoaib Khan for Appellant.

Fida Bahadur Khan for Respondent.

Date of hearing: 25th February, 2013.

2013 M L D 1037

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

MUHAMMAD MUSTHAQ---Petitioner

Versus

RAMZAN and 4 others---Respondents

Criminal Miscellaneous Quashment Petition No.130 of 2012, decided on 4th February, 2013.

Criminal Procedure Code (V of 1898)---

---Ss. 561-A & 154---Penal Code (XLV of 1860), S. 365-B---Kidnapping, abducting or inducing woman to compel for marriage etc.---Quashing of F.I.R. by High Court in exercise of its inherent power---Scope---Plea of accused that contents of F.I.R. were false and frivolous---Validity---Commission of a cognizable offence had been alleged by the complainant in the F.I.R., which could not be adjudicated upon without proper investigation and enquiry on part of the local police and recording of pro and contra evidence in the court of competent jurisdiction---Petition for quashing of F.I.R. was dismissed accordingly.

Bashir Ahmad v. Zafer-ul-Islam PLD 2004 SC 298 and Sher Afgan Khan Niazi v. Ali Habib and others 2011 SCMR 1813 rel.

Muhammad Ilyas Khan Marwat for Petitioner.

Sanaullah Khan Shamim, D.A.-G. for the State.

Saifur Rehman Khan for Respondents Nos. 1 and 2.

Date of hearing: 4th February, 2013.

2013 M L D 1057

[Peshawar]

Before Yahya Afridi, J

Mst. HUSSAN JAN and others---Petitioners

Versus

MUHAMMAD YAQOOB and others---Respondents

Civil Revision No.205-A of 2003, decided on 4th March, 2013.

Khyber Pakhtunkhwa Tenancy Act (XXV of 1950)---

----S.85---Punjab Tenancy Act (XVI of 1887), S.77(3)(d)---Civil Procedure Code (V of 1908), S.9---Specific Relief Act (I of 1877), S.42---Suit for declaration---Plaintiff claimed to be owner of suit land while alleging disputed entries in defendant's name in Revenue Record as "occupancy tenant" to be wrong---Relationship of landlord and tenant between parties denied by defendant while terming plaintiff to be mortgagee of suit land---Jurisdiction of civil court or Revenue Court to decide such matter---Scope---Defendant for having denied relationship of landlord and tenant between parties could not claim bar to jurisdiction of civil court under S. 77(3)(d) of Punjab Tenancy Act, 1887---Civil court would have jurisdiction to decide such matter, but not Revenue Court.

Gul Rehman's case 2010 CLC 318; Allah Ditta's case PLD 1975 Lah. 429; Asghar Shah's case 1991 MLD 1252; Khushi Muhammad's case PLD 1978 Lah. 1276 and Rabia Bibi's case NLR 1980 Revenue Lah. 30 rel.

Tahir Hussain Lughmani for Petitioner.

Syed Sajjad Hussain Shah for Respondents.

Date of hearing: 4th March, 2013.

2013 M L D 1078

[Peshawar]

Before Mian Fasih ul Mulk and Assadullah Khan Chamkani, JJ

SAIF-UL-ABBAS---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.852 of 2010, decided on 19th February, 2013.

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

----Ss.9(c) & 29---Criminal Procedure Code (V of 1898), S.342---Recovery of narcotics---Appreciation of evidence---Defence plea---False implication---Onus to prove---Accused was driving car out of which Charas weighing 185 kilograms was recovered---Trial Court convicted the accused and sentenced him to imprisonment for life---Accused raised the plea that he was falsely implicated---Validity---Nothing was available on record to show that quantity of substance recovered was exaggerated or that all packets recovered from vehicle were not proved to have been of substance other than narcotics---Discrepancies or contradictions, if any, in statements of prosecution witnesses, highlighted by accused were not of a nature as could negate recovery resulting into dislodging entire prosecution version---Absence of any motive on the part of prosecution witnesses would further negate possibility of false implication---Onus to prove defence plea, under S.29 of Control of Narcotic Substances Act, 1997, was on the accused to have led evidence in support of his innocence regarding lack of knowledge that he was ignorant about presence of any narcotics in vehicle in question and to such effect his statement recorded under S.342, Cr.P.C. could be quoted wherein he refused to produce any defence evidence in support of his innocence---Accused being driver of motor car in question was presumed to be in control of the vehicle about which he had complete knowledge even presence of anything in it---Question of ignorance regarding presence of any contraband in the vehicle did not arise---Charge against accused was proved beyond any shadow of doubt and Trial Court had rightly convicted and sentenced him---Findings of Trial Court were free from any infirmity and were not open to any interference---Appeal was dismissed in circumstances.

PLD 2006 SC 61 and PLD 2010 SC 1052 rel.

Qazi Intikhab Ahmad and Babar Khan Yousafzai for Appellant.

Miss Zarmina Gul for the State.

Date of hearing: 19th February, 2013.

2013 M L D 1089

[Peshawar]

Before Qaiser Rashid Khan and Rooh-ul-Amin Khan, JJ

ANJUM SAEED KHAN KUNDI---Petitioner

Versus

Mst. HAYAT BIBI and others---Respondents

Writ Petition No.224-D of 2012, decided on 9th January, 2013.

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

----S. 13---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment application---Relationship of landlord and tenant---Respondent/landlord had proved the ownership of suit house---Petitioner denied the relationship of landlord and tenant, thus the burden of proof heavily shifted on him to prove his title---Petitioner though in his written reply had challenged ownership of the house in question, but could not prove the same through oral or documentary evidence---Constitutional petition was dismissed being bereft of any meritable consideration.

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

----S. 13---Ejectment application---Non-appearance of landlord or his attorney before Trial Court---No absolute rule existed that in every case, the landlord must appear in person in support of his claim; and exceptions could always be there when on account of some unavoidable circumstances it was not possible for the landlord to appear and support his plea.

Sardar Nabeel Wali v. The Additional District Judge Sahiwal and others PLD 2000 SC 829 rel.

Muhammad Daud Khan and Muhammad Yousaf Khan for Petitioner.

Ehsan Ullah Khan and Tehsin Alamdar Shah for Respondents.

Date of hearing: 9th January, 2013.

2013 M L D 1106

[Peshawar]

Before Nisar Hussain Khan, J

Pir WALI KHAN and others---Petitioners

Versus

NIAZ BADSHAH and others---Respondents

Civil Revision No.17-B of 2004, decided on 24th January, 2013.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 129---Entries of jamabandi and settlement---Presumption of truth---Scope---Such entries would carry strong presumption unless rebutted by strong and cogent evidence.

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

----Art. 133---Particular fact deposed by witness in examination-in-chief, if not challenged during his cross-examination, would amount to admission on part of his opposite party---Illustration.

Mst. Nur Jehan Begum through Legal Heirs v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 rel.

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

----Art. 114---'Estoppel' and 'waiver'---Legal effect stated.

Waiver and estoppel in legal parlance, are inter­related and complementary inter se. Waiver is an intentional and conscious relinquishment of a known right. It may be, by a positive act of relinquishment or it may be, inferred from the conduct of the party. When a party acquiesces and waives of his known right by his overt act, which is vividly discernable from the record, he cannot turn around after more than fifty years and re-agitate that right.

Lal Khan through L.Rs. v. Muhammad Yousaf through L.Rs. PLD 2011 SC 657 rel.

(d) Pleadings---

----Evidence on a plea/point not raised in pleadings could not be allowed to be led and if so led, then same could not be looked into or considered by court for decreeing suit---Suit decreed on basis of plea not raised by plaintiff in pleadings would not be sustainable.

Binyameen and 3 others v. Chaudhary Hakim and another 1996 SCMR 336 rel.

(e) Pleadings---

----Plea not raised in pleadings and in issue---Effect---Evidence in rebuttal on such plea would not be required to be led.

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

----S. 42---Limitation Act (IX of 1908), Arts. 44 & 120---Suit for declaration---Defendant's name entered in revenue record on basis of mutation attested on 20-1-1943 was alleged by plaintiff to be wrong---Suit filed by plaintiff in year 1995 i.e. after more than 50 years---Plaintiff's plea that he was minor on 20-1-1943---Validity---Evidence on record showed that plaintiff was of 4 years, 3 months and 19 days on 20-1-1943---Plaintiff had attained age of majority of 21 years on 1-10-1959---Plaintiff could file suit within three years under Art.44 of Limitation Act, 1908 after attaining majority or within six years under Art.120 thereof---Record showed that defendants were enjoying possession of suit land openly and had raised huge construction thereon---Factum of possession of defendant was in notice of plaintiff since 1943, thus, principle of accrual of cause of notice on each adverse entry would not apply to plaintiff's case---Suit was dismissed for being time-barred.

Mst. Fazeelat Jan and others v. Sikandar through his Legal Heirs and others PLD 2003 SC 475; Sardar v. Mst. Nehmat Bi and 8 others 1992 SCMR 82; Federation of Pakistan v. Mst. Farishta PLD 1981 SC 120 and Mst. Fazeelat Jan and other's case PLD 2003 SC 475 ref.

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

----S. 115---Revision---Concurrent findings of facts of courts below---Interference in such findings by High Court in revisional jurisdiction---Scope---High Court would normally not interfere in such findings except in case of gross misreading and non-reading of evidence and patent violation of law.

Mushtari Khan v. Jehangir Khan 2005 SCMR 1238 and Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001 rel.

Kamal-ud-Din Khattak for Petitioners.

Asghar Ali Khan for Respondents.

Date of hearing: 24th January, 2013.

2013 M L D 1179

[Peshawar]

Before Malik Manzoor Hussain and Nisar Hussain Khan, JJ

FAWAD ULLAH---Petitioner

Versus

KHYBER MEDICAL UNIVERSITY, PESHAWAR through Vice-Chancellor and 4 others---Respondents

Writ Petition No.3508 of 2011, decided on 3rd April, 2013.

Constitution of Pakistan---

----Art.199---Constitutional petition---Medical College, admission in---Seat reserved for Federally Administered Tribal Areas---Petitioner through stood first in the merit list, but was refused admission on ground to have appeared in First Year F.Sc. Exam in Government Degree College, Peshawar---Petitioner's plea was that extreme militancy and Military operation in North Waziristan Agency during relevant period resulted into mass migration of people to Peshawar and other areas, thus, he had to continue his studies at Peshawar under extreme compulsion, but he later on improved his marks in F.Sc., from FATA area, thus, he could not be said to have got entire education from outside FATA area---Validity---Militants had challenged writ of Government in entire area of South and North Waziristan, resultantly most of education institutions located there had been either destroyed by them or closed down due to fear of attack---Such state of affairs still subsisted in such Agencies, where education institutions had suffered a lot---Such ground realities had compelled petitioner and others to migrate to settled area to continue their education---Petitioner passed First Year F.Sc., from Peshawar, but for improving his marks, he had to re-appear in said examination from Tribal Area and become successful---Petitioner had been granted provisional admission in MBBS programe and he was presently studying in 3rd year---Petitioner's case was a "Hardship Case"---High Court accepted constitutional petition in circumstances.

Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education) Civil Secretariat, Islamabad and others 2001 SCMR 1161 and Maimoona Kalsoom and others v. Khyber College of Dentistry and others Writ Petition No.288 of 1998 decided on 3-6-2003 rel.

Mian Muhibullah Kakakhel for Petitioner.

Taskeen-ud-Din Khattak and Muzamil Khan, D.A.-G. for Respondents.

Date of hearing: 3rd April, 2013.

2013 M L D 1188

[Peshawar]

Before Mian Fasih-ul-Mulk and Rooh-ul-Amin, JJ

MUHAMMAD ALI JAN---Petitioner

Versus

SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT and 5 others---Respondents

Writ Petition No.1735 of 2010, decided on 17th October, 2012.

(a) Khyber Pakhtunkhwa Urban Planning Ordinance (IV of 1978)---

----S. 53----Constitution of Pakistan, Arts. 199 & 25---Constitutional petition---Acquisition of land---De-notification of unutilized area acquired under S. 53 of the Khyber Pakhtunkhwa Urban Planning Ordinance, 1978---Scope---Petitioner's land was acquired along with other pieces of land, for construction of ring road---Petitioner's land was outside the alignment of Ring Road, and petitioner approached authorities for de-notification of unutilized area on repayment of compensation received by the petitioner---Petitioner's request was denied by the Secretary Local Government on the ground that acquisition process had already been completed---Validity---Petitioner had produced certain orders of the authorities whereby land of other co-owners which were similarly acquired, and were later de-notified in the same circumstances when the acquisition process was completed and compensation had been paid to them---Discriminatory treatment given by the authorities to the petitioner was patent on record and the case of the petitioner was one where his land was far away from the constructed road and was inadvertently acquired---High Court directed Secretary Local Government to de-notify the land on basis of recommendations of Director-General Development and Municipal Department---Constitutional petition was allowed, accordingly.

(b) Discretion---

----Public functionaries---Duties of---Exercise of discretion---Person on whom is vested a discretion, must exercise such discretion upon reasonable grounds and such discretion did not empower such a person to do what he liked merely because he was minded to do so---Such a person should not do as he likes, but must do what he ought to do and, also must use reason to ascertain and follow the proper and just course.

Ziaur Rehman for Petitioner.

Amir Javed for Respondents.

Date of hearing: 17th October, 2012.

2013 M L D 1209

[Peshawar]

Before Rooh-ul-Amin Khan, J

HAMID KHAN and 5 others---Appellants

Versus

GOVERNMENT OF NORTH-WEST FRONTIER PROVINCE through Collector, D.I. Khan and 5 others---Respondents

R.F.A. No.49-D of 2012, decided on 30th November, 2012.

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

----S. 23---Land owner claimed that the acquired land was commercial in nature---Revenue record placed on file, during the trial, clearly reflected that the property in question was "Barani in nature"---Acquired land was situated far away from the District Headquarter in a backward area---No probability existed that the same would be converted into the commercial property in near future.

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

----S. 23---Market value, determination of---Discrimination---Once a judicial determination, be it of a point of fact or of a point of law, has been made and if such a determination covers the ones litigating before the courts but some others also, then the dictates of justice would command that the benefits accruing from such a determination should not be restricted only to litigating parties but should be extended even to those who had not indulged in litigation.

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

----S. 23---Determination of market-value/compensation---Discrimina-tion---Change in market value of property---Referee Judge, in another case had enhanced the market value of land-owner in the same Mouza---Court had determined the market value of property acquired to a lesser amount which was against all the norms of justice and equity---Trial Judge, in the present case, was legally required to have adopted one and the same yardstick, while determining the market value of the acquired land---Referee Court had failed to ensure justice and had treated the landowner discriminately.

Saddaqat Ali Khan through L.Rs. and others v. Collector Land Acquisition and others PLD 2010 SC 878 and Government of N.-W.F.P. and others v. Mst. Jamshed Bibi and another PLD 1997 Pesh. 19 rel.

Zia-ur-Rahman Qazi for Appellants.

Muhammad Anwar Awan for Respondents.

Date of hearing: 30th November, 2012.

2013 M L D 1222

[Peshawar]

Before Mian Fasih-ul-Mulk and Khalid Mehmood, JJ

Mst. HUSSAN ZADGAI---Petitioner

Versus

FIRDUS KHAN and others---Respondents

Writ Petition No.386 of 2011, decided on 26th February, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Implementation of order---Re-agitation of matter---Scope---Estoppel, principle of---Applicability---When order had been implemented and principle of estoppel was attracted, constitutional jurisdiction of High Court could not be invoked.

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

----O. XXI---Mechanism for execution of decree---Matter in dispute could not be stayed after dismissal of objection petition of a party and there remained no hurdle in the way of the party to get the fruit of the decree---Law should find its own way in the shape of execution as enshrined in O.XXI, C.P.C.

Muhammad Isa Khan for Petitioner.

Abdul Mabood and Zulfiquar Ali Chamkani for Respondents.

Date of hearing: 26th February, 2013.

2013 M L D 1240

[Peshawar]

Before Qaiser Rashid Khan, J

MEHMOOD KHAN ALIZAI---Petitioner

Versus

CENTRAL GOVERNMENT OF PAKISTAN through Secretary Defence, Islamabad and 5 others---Respondents

Civil Revision No.51-D with C.M. No.75-D of 2013, decided on 5th April, 2013.

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

---S. 8---Suit for possession of immovable property---Contention of plaintiff was that he was owner in possession of the suit bungalow and he made improvements and renovations in the same by spending huge amount from his own pocket whereas the defendant-respondent sent notice for possession of suit bungalow along with superstructure---Suit was partially decreed to the extent of Rs.1,52,895 being the value of the superstructure of the bungalow and the possession was denied concurrently---Validity---Plaintiff-petitioner did not produce any documentary evidence for claiming the bungalow as the ownership of his father and in his cross-examination he admitted that the land underneath the bungalow was acquired by his father on lease for a term of 99 years being old grant---Admission on behalf of the plaintiff-petitioner put to naught his ownership claim of the bungalow as his father had only leasehold rights over the property and the case of the plaintiff-petitioner could be no better or different than that---Owner of the suit property was none other but the Central Government---After the death of the father of the plaintiff-petitioner, when his legacy in the form of the bungalow devolved on his legal heirs including the plaintiff-petitioner, they too, enjoyed the status of leaseholders or for that matter licencees on behalf of Central Government---Defendant exhibited an extract of the GLR according to which, the bungalow belonged to the Central Government or the Ministry of Defence and earlier late father of plaintiff-petitioner and subsequently his legal heirs including the plaintiff-petitioner had the possession of the bungalow as lessees---Copy of the admission deed of late father of the plaintiff-petitioner was produced whereby he admitted the land to be the ownership of the federal government/defence department---Value of the superstructure was assessed through Military Engineering Services as Rs.1,52,895 and despite being subjected to cross-examination, the said witness stood his ground viz. the ownership of the suit land as well as the value of the superstructure---Courts below attended all the aspects with its detail and impugned judgments were based on proper appreciation of evidence.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Courts below had recorded concurrent findings of facts which were based on sound application of evidence on the file and the same could not be set at naught unless it was proved that the findings were either perverse or erroneous.

Abdur Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rasheed Ahmad v. Muhammad Siddique PLD 2002 SC 293 rel.

Shaukat Hayat Khan Khakwani for Petitioner.

2013 M L D 1252

[Peshawar]

Before Lal Jan Khattak, J

GOHAR RASHEED and 2 others---Petitioners

Versus

ABDUL GHANNI---Respondent

Civil Revision No.611 of 2011, decided on 8th April, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Suit for possession through pre-emption---Talbs, performance of---Plaintiff filed pre-emption suit which was decreed concurrently---Validity---Contradiction existed between the statements of pre-emptor and his informer regarding the place where he met him and pre-emptor performed Talb-e-Muwathibat---Plaintiff-respondent, therefore, had failed to perform Talb-e-Muwathibat in accordance with S.13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987---Pre-emptor had neither referred to his first demand at the time of sending notices for Talb-e-Ishhad to the defendants nor his witnesses to the said notices deposed before the court that the pre-emptor did refer to his Talb-e-Muwathibat at the time when said notices were scribed in their presence---Pre-emptor thus had not confirmed his Talb-e-Ishhad in accordance with law---Pre-emptor had not exercised his talbs in accordance with S.13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 and his right of pre-emption stood extinguished---Suit of respondent-plaintiff was dismissed.

PLD 2002 SC 488 and 2005 SCMR 1231 rel.

Ahmad Ali Khan Marwat for Petitioners.

Zafar Iqbal Awan for Petitioners.

Date of hearing: 8th April, 2013.

2013 M L D 1273

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

GUL DAD KHAN and another---Petitioners

Versus

ISMAIL KHAN and 3 others---Respondents

Writ Petition No.216-M of 2012, decided on 10th April, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13, 31 & 32---Constitution of Pakistan, Art.199---Constitutional petition---Suit for possession through pre-emption---Limitation---Sale effected through a registered sale deed---Period of one hundred and twenty days shall be computed from the date of registration of the sale deed---Provisions with regard to issuance of public notice by the Registrar provided under S.32 of the Act had no nexus with the period of limitation prescribed by S.31 thereof for filing of a pre-emption suit in respect of sale transaction effected through a registered sale deed---Suit being time-barred was liable to be rejected under O.VII, R.11(d), C.P.C.---Constitutional petition was allowed.

Bakhat Sherewan for Petitioners.

Muhammad Ali Khan for Respondents.

Date of hearing: 10th April, 2013.

2013 M L D 1288

[Peshawar]

Before Waqar Ahmad Seth, J

MUZAFFAR and others---Petitioners

Versus

COLLECTOR and others---Respondents

Civil Revision No.62 of 2006, decided on 25th February, 2013.

Land Acquisition Act (I of 1894)---

----S. 18---Reference to court---Property of the applicants was acquired and their objection petition before the Referee Court seeking enhancement in compensation and reclassification was dismissed for non-prosecution---Restoration application for the same was also dismissed for non-prosecution---Contention of the applicants was that the Referee Court acted in a hasty manner---Held, although the conduct of the applicants was not up to the mark, however, law leaned in favour of adjudication on merits and Referee Court had dismissed the objection petition of the applicants in haste---High Court observed that it would be just and appropriate to accord ample opportunity to the applicants to substantiate their case---Matter was remanded to the Referee Court and objection petition of the applicants was restored---Revision was allowed, in circumstances.

Malik Shahid Jamil for Petitioners.

Muhammad Fahim Khan for Respondents.

Date of hearing: 25th February, 2013.

2013 M L D 1309

[Peshawar]

Before Mazhar Alam Khan Miankhel and Musarrat Hilal, JJ

MUHAMMAD KAZIM KHAN KHATTAK and another---Petitioners

Versus

MEWA KHAN and 3 others---Respondents

Writ Petition No.999 of 2010, decided on 4th April, 2013.

Civil Procedure Code (V of 1908)---

---O. XIV, R, 1, O. XVIII, R. 2 & S.12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Framing of issues---Recording of evidence---Averments made in the application under S.12(2), C.P.C. showed that none of the same could be decided without recording of evidence---Matter being factual in nature and, in the eye of law, could not be decided summarily---Application containing allegations of fraud could never be decided without recording of evidence---Constitutional petition was allowed and Trial Court was directed to frame issues and provide ample opportunity to both the parties to adduce their evidence and then decide the case in accordance with law.

Hamid Hussain Khan for Petitioners.

Altaf Ahmad for Respondents.

2013 M L D 1339

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

MEER AFZAL and others---Petitioners

Versus

Mst. KHAPAIRAY and others---Respondents

Civil Revision No.471 of 2011, decided on 25th March, 2013.

Civil Procedure Code (V of 1908)---

----S.115---Revisional jurisdiction of High Court---Scope---Process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers under S.115, C.P.C. was neither permissible nor warranted by law---Interference with a finding of fact of the courts below by the High Court in exercise of its revisional jurisdiction could only be justified if such finding was the result of perverse appreciation of evidence on record---Wrong or erroneous conclusion on a question of fact by the courts below was not open to interference by the High Court in exercise of its revisional jurisdiction---Findings of the courts below were neither based on misreading or non-reading of evidence nor the same suffered from any jurisdictional defect warranting interference by the High Court in its revisional jurisdiction---Civil revision was bereft of substance, same was dismissed.

Muhammad Ayub Khattak for Petitioners.

Haji Muhammad Umar Khan Chamkani for Respondents.

Date of hearing: 25th March, 2013.

2013 M L D 1365

[Peshawar]

Before Qaiser Rashid Khan and Rooh-ul-Amin Khan, JJ

IRFAN AHMAD and others---Petitioners

Versus

GOMAL UNIVERSITY, D.I. KHAN through Vice-Chancellor and 9 others---Respondents

Writ Petition No.123 of 2012, decided on 10th January, 2013.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Educational institution---Package of exemption of fee and other charges in respect of internally displaced students belonging to Swat and other affected areas---Chief Minister issued a directive to advise all the public sector universities/institutions of the province to exempt all such students of Swat from tuition fee and other charges for one year on the basis of proven domicile---Said incentive by the Chief Minister was approved by the Syndicate of the Gomal University---Gomal University, subsequently withdrew the concession of remission of one year dues through impugned letter---Said letter was held to be without lawful authority, and set aside---Constitutional petition was allowed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational Institution---Petitioners were admitted in different departments of the university in the year 2009---Decision of the syndicate of the university that internally displaced students shall be exempted from fee and other charges and the university shall financially assist them for academic year 2009-2010---Scope---Students admitted in the last quarter of 2009-2010 were entitled to avail the said facility.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Directive of Higher Education Commission was followed by the university for allowing the concession of remission of one year's dues to internally displaced students but for no valid reasons, same was withdrawn---Record was silent as to why the authorities of the university had withdrawn the concession of remission of one year dues when it still held the field in the other educational institutions of the Province---Impugned letter of withdrawal of concession was declared illegal and constitutional petition was allowed.

Muhammad Mohsin Ali for Petitioners.

Muhammad Bilal A.R., Academics, Aurangzeb Khan, Addl: Registrar and Hamid Khan Kundi, Dy. Registrar for Respondents.

Date of hearing: 10th January, 2013.

2013 M L D 1412

[Peshawar]

Before Waqar Ahmad Seth, J

Mst. MUMTAZ BIBI and 12 others---Petitioners

Versus

PROVINCIAL GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Health Department and 11 others---Respondents

Writ Petitions Nos. 277-A, 367-A, 406-A and 413-A of 2012, decided on 14th March, 2013.

Constitution of Pakistan---

----Art.199---Constitutional petition---Civil Service---Misconduct---Regular inquiry---No notice or show-cause notice was given and petitioners were not accorded opportunity of hearing before passing the impugned action---Petitioners were condemned unheard which was against norms of justice and law-Person employed on contract basis or probationer, was entitled to clear his position and there should be regular inquiry in terms of relevant Efficiency and Discipline Rules before condemning for misconduct---Constitutional petition was disposed of with the direction to conduct proper inquiry.

Secretary, Government of Punjab through Secretary Health Department, Lahore v. Riaz-ul-Haq 1997 PLC (C.S.) 873 rel.

Sajid Ali Awan for Petitioners.

M. Nawaz Khan Swati for Respondents.

Date of hearing: 14th March, 2013.

2013 M L D 1427

[Peshawar]

Before Mrs. Irshad Qaiser, J

NOOR MUHAMMAD KHAN and others---Petitioners

Versus

Haji MUFRAH-UD-DIN and others---Respondents

Civil Revision No.911 of 2012, decided on 15th October, 2012.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O. VI, R. 17---Talbs, performance of---To fulfil the requirements of Talbs, the date, time and place and name of informer had to be mentioned in the plaint which was not mentioned in the present case---Statements of two witnesses of Talbs were recorded but that of the informer had not been recorded to prove that he had informed the pre-emptor on specific date, time and place---Plaintiffs-petitioners case was found deficient regarding the date of performance of Talb-e-Ishhad in their plaint which was to be made as soon as possible after Talb-e-Muwathibat but not later than 14 days---Appellate Court had rightly dismissed the appeal of the plaintiffs-petitioners assigning sound and cogent reasons---No infirmity, legal or factual had been pointed out in the impugned judgment and decree for interference of the High Court by exercising revisional jurisdiction---Revision was dismissed.

2007 SCMR 1832; PLD 2007 SC 302; PLD 2001 SC 13; 2007 SCMR 515; PLD 2003 SC 315; PLD 2005 SC 977; 2008 SCMR 934; 2009 YLR 90 and 2009 YLR 1965 rel.

(b) Khyber Pakhtunkhaw Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O. VI, R. 17---Suit for possession through pre-emption---Performance of Talbs---Appeal---Application for amendment of plaint---Maintainability---Plaintiffs filed suit for pre-emption which was dismissed by the Trial Court and appeal was filed wherein application was filed for amendment of plaint to mention time, date and place of performance of Talb-e-Muwathibat as well as date of notice of Talb-e-Ishhad but the same was dismissed by the Appellate Court---Application for amendment of plaint was not maintainable---Performance of Talbs according to law being mandatory requirement, failure to perform Talbs was deemed to be failure of the suit---Lacuna should not be filled through the amended plaint.

Nasir Khan Khalil for Petitioners.

Nemo for Respondents.

Date of hearing: 15th October, 2012.

2013 M L D 1449

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

Mir LIAQ KHAN---Appellant

Versus

SARFARAZ JEHAN---Respondent

R.F.A. No.12-B of 2011, decided on 1st November, 2012.

(a) Administration of justice---

----More than one remedies---General and special law---Applicability---Aggrieved person has to elect one of the two remedies i.e. under civil law or general law; after choosing anyone of the two remedies, the other remedy would become completely barred.

(b) Document---

----Inadmissible in evidence---Effect---Such document cannot be seen or looked into by court, even if it is exhibited without any objection.

Khan Muhammad Yousaf Khan Khattak v. S/M Ayub and 2 others PLD 1973 SC 160 rel.

(c) Defamation---

----Suit for damages---Allegation of publication of disparaging statement of defendant---Press reports---Loss of reputation---Proof---Suit was filed by plaintiff on the basis of press statement published in newspapers---Plaintiff alleged that news was flashed in newspapers in pursuance of press conference held by defendant---Reporters and editors of newspapers, who had published alleged disparaging statement of defendant were not arrayed as defendant, despite the fact that they were necessary parties in the suit---Plaintiff failed to establish any loss of reputation and entitlement of actual damages---Effect---No costs or damages could be awarded by way of penalty or punishment---Plaintiff failed to substantiate his claim by not proving actual malice on the part of defendant---High Court in exercise of appellate jurisdiction set aside judgment and decree passed by Trial Court and suit filed by plaintiff was dismissed---Appeal was allowed in circumstances.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Karachi Electric Supply Corporation Limited v. Lawari and 4 others PLD 2000 SC 94 and Khan Muhammad Yousaf Khan Khattak v. S/M Ayub and 2 others PLD 1973 SC 160 ref.

Sheikh Muhammad Rashid v. Majid Nizami and another PLD 2002 SC 514 rel.

(d) Pleadings---

----Evidence beyond pleadings---Effect---Parties are not allowed to produce evidence beyond pleadings and if any evidence is produced, would not be looked into, while deciding the suit.

Muhammad Iqbal v. Ali Sher 2008 SCMR 1682 rel.

Salimullah Khan Ranazai for Appellant.

Muhammad Nisar Khan Sokari for Respondent.

Date of hearing: 1st November, 2012.

2013 M L D 1473

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

MUHAMMAD ZAHOOR through L.Rs.---Petitioner

Versus

MUHAMMAD ABID QAYYUM and another---Respondents

Civil Revision No.159 of 2009, decided on 8th February, 2013.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Plaintiff appeared in the witness box and reiterated his stance as contained in the plaint, however his two witnesses had not supported the narration of the plaintiff in toto---Findings of courts below were based on proper appreciation of evidence and were well-founded---Courts below had neither exercised jurisdiction not vested in it by law nor failed to exercise jurisdiction so vested under the law, nor committed any illegality, irregularity, mis-reading or non-reading of evidence---Revision petition being bereft of any meritable consideration was dismissed.

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

----S. 115---Revisional jurisdiction---Scope---Concurrent findings of courts below being based on facts could not be set at naught by the revisional court unless same were proved through the evidence available on record that the same were neither perverse, fanciful, erroneous or based on mis-reading and non-reading of evidence.

2002 SCMR 1114 and 2007 SCMR 368 rel.

Saleemaullah Khan Ranazai for Petitioner.

Rustam Khan Kundi for Respondents.

Date of hearing: 8th February, 2013.

2013 M L D 1480

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

MUHAMMAD AFZAL---Petitioner

Versus

GOVERNMENT OF N.-W.F.P. through Collector Revenue DCO, D.I. Khan and 4 others---Respondents

Civil Revision No.259 of 2009, decided on 4th February, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Land Acquisition Act (I of 1894), Preamble & S.6---Suit for declaration---Jurisdiction of civil court---Property in question was not acquired by the authorities under the provisions of the Land Acquisition Act, 1894, therefore, same was not a "public property" and civil court had the jurisdiction to entertain and adjudicate upon the controversy relating thereto.

Saleemullah Khan Ranazai for Appellant.

Sanaullah Khan Shamim, D.A.-G. for the State.

Date of hearing: 4th February, 2013.

2013 M L D 1493

[Peshawar]

Before Qaiser Rashid Khan, J

AJAB KHAN---Petitioner

Versus

MUHAMMAD RAMZAN and another---Respondents

Criminal Miscellaneous Bail Cancellation Petition No.281 of 2012, decided on 28th February, 2013.

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

----Ss. 497(5) & 497(2)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Application for cancellation of bail, dismissal of---Issuance of cheque denied---Cordial relations between the parties---Pendency of a recovery suit---Effect---Accused was alleged to have issued a cheque in favour of the complainant, which got dishonoured on presentation due to lack of funds---Accused denied issuing the cheque in question---Trial Court granted pre-arrest bail to accused---Validity---Record showed that complainant had given a loan to the accused due to cordial and friendly relations between the parties---Accused accordingly issued a cheque to the complainant for the amount with the understanding that in case of his failure to pay the loan amount, the cheque could be encashed by the complainant---Complainant had also instituted a recovery suit for a separate amount on basis of a pronote allegedly executed by the accused in his favour---Denial on part of accused regarding issuance of cheque, friendly relations between the parties and pendency of recovery suit with respect to another amount, made the matter one of further inquiry---Application for cancellation of bail was dismissed accordingly.

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

----S. 497(5)-Cancellation of bail---Grounds to be kept in view by the court.

Following grounds are to be kept in view by the court while cancelling bail granted to accused:--

(i) If the bail granting order is patently illegal and factually incorrect and has caused gross miscarriage of justice;

(ii) Some fresh facts or material has been collected by the prosecution which might lead towards the guilt of accused;

(iii) The accused has in any manner misused the concession of bail by indulging in another criminal act prejudicial to the interests of the complainant;

(iv) Accused has in any manner interfered with or attempted to tamper with the investigation and the prosecution evidence;

(v) Accused has hurled threats to the complainant or for that matter his witnesses;

(vi) Accused has abstained from joining the investigation or there is an apprehension of his abscondence from the scene; and

(vii) Whether the accused is a previous non-convict.

Nauman Gul for Petitioner.

Ahmad Ali Khan for Respondents.

Date of hearing: 28th February, 2013.

2013 M L D 1509

[Peshawar]

Before Yahya Afridi and Waqar Ahmad Seth, JJ

FAWAD AHMED and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.87 of 2011, decided on 3rd April, 2013.

Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 3 & 4---Control of Narcotic Substances (Government Analysis) Rules, 2001, R.4(2)---Manufacturing, owning or possessing intoxicant---Appreciation of evidence---Benefit of doubt---Narcotics contraband was allegedly recovered from the diggi of the vehicle, and nothing was on record as to who out of four accused persons, was owner of the same, and who placed the same in the diggi---None from public was associated to either witness the alleged recovery of narcotics contraband, or the recovery memo---Unexplained delay of 15 days in sending the samples of contraband for analysis, which had created serious doubts regarding the report of Forensic Science Laboratory---Local Police appeared to have falsely involved accused in the present case and without bringing substantive evidence on record qua ownership of the contraband, conviction of accused persons was not warranted---Prosecution having not been able to prove its case against accused persons beyond any shadow of doubt, they deserved acquittal from the charge by extending them benefit of doubt---Accepting appeal, conviction and sentence of accused persons recorded by the Trial Court were set aside and they were acquitted of the charge---Accused who were on bail, would stand discharged of the liability of bail bonds, in circumstances.

Masoodur Rehman Tanoli for Petitioner.

M. Nawaz Khan Swati, A.A.-G. for the State.

Date of hearing: 3rd April, 2013.

2013 M L D 1532

[Peshawar]

Before Mazhar Alam Khan Miankhel and Nisar Hussain Khan, JJ

FASIHUDDIN---Appellant

Versus

UMAR CHEEMA---Respondent

R.F.A. No.160 of 2011, decided on 20th June, 2013.

(a) Defamation Ordinance (LVI of 2002)---

----Ss.3 & 4---Civil Procedure Code (V of 1908), S.19---Defamation---Suit for damages---Territorial jurisdiction---Scope---Plaintiff filed suit for defamation and recovery of damages which was dismissed for want of jurisdiction---Validity---When a matter was beyond the jurisdiction whether territorial or pecuniary, then the court could not pass order for its acceptance or dismissal but was to return the same---Dismissal of the suit for want of jurisdiction was against the law---Appeal was accepted and case was sent back for decision afresh.

(b) Defamation Ordinance (LVI of 2002)---

----S. 3---Defamation---Territorial jurisdiction---Scope---Defamation was not only the matter of residence of the defendant but it was the publication of defamatory matter which was actionable wrong---Wrongful act, publication and its circulation or other such acts would provide a cause and wherever the acts had taken place, the courts of the area under the Ordinance would have the jurisdiction and the aggrieved person would have the cause of action there to file a suit.

Barkatullah Khan for Appellant.

Tariq Khan Kakar for Respondent.

Date of hearing: 20th June, 2013.

2013 M L D 1557

[Peshawar]

Before Rooh-ul-Amin Khan, J

NASIR KHAN and others---Appellants

Versus

LAL MUHAMMAD KHAN and others---Respondents

C.M. No.687-P of 2012 with Civil Revision No.759 of 2012, decided on 15th April, 2013.

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

----Arts. 70 & 71---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Oral sale---Burden to prove the transaction of sale was on the shoulders of the plaintiffs-petitioners---Patwari halqa had produced the record of right which depicted that suit property was the joint ownership of the parties---Inheritance mutations were attested but at the time of attestation of inheritance mutations by the Revenue Officer, no question of sale was raised by the plaintiffs-petitioners---Plaintiffs-petitioners were in possession of the suit property but they were cultivating the same being co-owners---Halqa Patwari had admitted that no sale consideration or any deed was entered in the revenue record in favour of the plaintiffs-petitioners---Plaintiffs-petitioners failed to prove oral sale---No misreading and non-reading of material evidence having been noticed, revision petition was dismissed.

(b) Co-owner---

----Possession of each co-owner would be constructive possession of the other joint owners.

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

----S.3---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Dismissal of suit instituted after period of limitation---Plaintiffs-petitioners had brought the suit after 40 years which was beyond the prescribed period of limitation.

Abdul Sattar Khan for Appellants.

Ghulam Mohyuddin Malik for Respondents.

Date of hearing: 15th April, 2013.

2013 M L D 1585

[Peshawar]

Before Waqar Ahmad Seth, J

Mst. SHAMIM---Petitioner

Versus

SARFARAZ---Respondent

Civil Revision No.220 of 2010, decided on 1st April, 2013.

(a) Malicious prosecution---

----Damages, recovery of---Elements---Basic elements to consider while deciding whether a suit for recovery of damages on basis of malicious prosecution should be accepted or rejected, stated.

Following are the basic elements to be considered for determination as to whether damages for malicious prosecution be granted or not:--

(a) The prosecution of the plaintiff by the defendant.

(b) There must be want of reasonable and probable cause for such prosecution.

(c) Defendant must have acted maliciously, that is, with an improbable motive which was not to further the ends of justice.

(d) Prosecution must have ended in favour of the person proceeded against, and

(e) Such prosecution must have caused damage to the party proceeded against.

(b) Malicious prosecution---

----Suit for damages on basis of malicious prosecution---Award of damages to the plaintiff---Essential criteria to be considered were that plaintiff was prosecuted by the defendant, and such prosecution ended in the plaintiff's failure; that the defendant acted without reasonable and probable cause; that the defendant was actuated by malice, and that the proceedings had interfered with the plaintiff's liberty and had also affected his/her reputation.

Junaid Anwar Khan for Petitioner.

Sardar M. Ashfaq for Respondent.

Date of hearing: 1st April, 2013.

2013 M L D 1637

[Peshawar]

Before Mrs. Irshad Qaiser, J

ALI AKBAR---Petitioner

Versus

PAKISTAN INTERNATIONAL AIR LINES---Respondent

Civil Revision No.83 of 2012, decided on 8th March, 2013.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Rejection of plaint---Scope---Plaintiff filed suit for issuance of direction to the defendant to adjust him on the post by issuing appointment letter, Trial Court summoned defendants to file written statements and reply but on the date fixed for written statement, suit was dismissed as not maintainable---Order of the Trial Court was maintained by appellate court---Plaintiff's contention was that trial Court by dismissing the suit as not maintainable had acted in undue haste as without calling for written statement, framing issues and recording of evidence, court could not dispose of the matter summarily---Validity---Plaintiff in support of his claim had relied on certain documents hinting his success in certain tiers necessary for appointment against the post applied for and thus without rebuttal on the other side, his claim could not be thrown to dust bin as the substantial justice demanded that his claim should have been considered in the light of evidence brought by the defendants refuting his claim set up in the plaint but same was not done, resort to O. VII, R. 11, C.P.C. would amount to miscarriage of justice---Revision petition was accepted and case was remanded to Trial Court for decision afresh.

Banaras Khan v. Galiyat Development Authority through District General GDA Officer 2010 YLR 1548 and Lal Zamin alias Lalono Zargar and others v. Asfandyar Khan and 2 others PLD 2012 Pesh. 75 rel.

Ijaz Anwar for Petitioner.

Abdul Zakir Tareen for Respondent.

Date of hearing: 8th March, 2013.

2013 M L D 1666

[Peshawar]

Before Mian Fasih-ul-Mulk, J

MEHMOOD KHAN and others---Petitioners

Versus

GULZAD KHAN and others---Respondents

Civil Revision No.866 of 2008, decided on 25th March, 2013.

Specific Relief Act (I of 1877)---

----S.8---West Pakistan Land Revenue Act (XVII of 1967), S.42---Suit for possession and permanent injunction---Contention of plaintiffs was that they were owners in possession of suit property---Suit was dismissed by the Trial Court but the same was decreed by the Appellate Court---Validity---Suit property was recorded as ownership of defendants in the revenue record---Suit of plaintiff was merely for possession without any declaration of title---No evidence was on record to prove the possession of plaintiffs---When it was evident that defendants were owners of suit property, then it was for the plaintiffs to have proved their own case---Unless there existed title in favour of plaintiffs, they were not entitled to any relief---Title of suit property was not disputed and plaintiffs had admitted that entries in the revenue record were not in their names---Presumption of truth was attached to the entries made in the revenue record---Plaintiffs were required to rebut the said entries and prove that the same had been erroneously made---Plaintiffs were not entitled to any relief on the basis of their alleged possession when title was in the name of defendants---Trial Court had rightly dismissed the suit of plaintiffs, which judgment had been set aside by the appellate court on flimsy grounds-Revision was accepted and impugned judgment of the District Judge was se aside and that of the Civil Judge was restored.

Sultan Mahmood Shah v. Muhammad Din and 2 others 2005 SCMR 1872; Raboo and others v. Abdul Rehman and others 2010 MLD 166; Hajim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832 and Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236 rel.

Altaf Ahmad for Petitioners.

Syed Wilayat Ali Shah Bukhari for Respondent.

Date of hearing: 25th March, 2013.

2013 M L D 1691

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

JAVID and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.632-P of 2012, decided 3rd June, 2013.

Pakistan Arms Ordinance (XX of 1965)---

----Ss.13 & 14---Possession of unlicensed arms---Appreciation of evidence---Allegation against the accused persons was that they were smuggling arms---Prior information qua the smuggling of arms and ammunition through vehicle was available and accused were arrested during nakabandi---One of the accused was driver while the other was cleaner and third was their companion---Accused persons could not be absolved from the responsibility of the arms and ammunition and same could neither be concealed without their consent/knowledge nor recovery could be planted---Accused could not bring on record anything to establish that said arms and ammunition were planted against them--Prosecution witnesses had given vivid account of the occurrence and no discrepancy in their statements could create doubt in the prosecution version---Nothing was on record to suggest that the incriminating articles were either planted or the accused were falsely charged---Accused had failed to bring on record any mala-fide or ulterior motive---Police official were as good witnesses as the private witnesses were and their statements could not be brushed aside---Amourer had given his specific opinion with regard to arms being serviceable which remained un-rebuttal---Number of each weapon was given in the initial report and nothing was in rebuttal---Trial Court had taken a lenient view while awarding sentence of three years imprisonment with a fine of Rs.10,000 to the accused persons---Appeals were dismissed.

Shah Nawaz Khan for Appellant.

F.M. Sabir for the State.

Date of hearing: 3rd June, 2013.

2013 M L D 1703

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

SHER REHMAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.379 of 2013, decided on 8th April, 2013.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail, grant of---Quantity of narcotic recovered and corresponding expected quantum of punishment---Scope---Narcotic weighing three kilograms was found under the driving seat of a vehicle---Accused was driving the vehicle in question---Punishment for contraband weighing less than ten kilograms was upto fourteen years, therefore, keeping in view the recovered contraband, accused was not likely to be awarded punishment for more than two years---Accused was no more required by the investigation agency and was also neither a previous convict nor involved in offences similar to the present one---Accused was granted bail in circumstances.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9---Possession of narcotic---Bail---Scope---Quantity of narcotic and corresponding expected quantum of punishment---For purpose of bail in cases of possession of narcotic the quantity of contraband and expected quantum of punishment to be awarded at trial had to be taken into account while allowing bail to the accused.

Sohail Akhtar for Petitioner.

Miss Roohi Bano for the State.

Date of hearing: 8th April, 2013.

2013 M L D 1709

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

CHIEF EXECUTIVE, PESCO and 4 others---Petitioners

Versus

QUTAB KHAN---Respondent

Civil Revision No.7-D with C.M. No.17-D of 2013, decided on 14th February, 2013.

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

----S. 115---Revision---Plaintiff-respondent had successfully proved his case through cogent and tangible evidence and defendants-petitioners had failed to rebut same through any conclusive evidence---Courts below had correctly appreciated the evidence available on record and judgments and decrees were well founded---Revision petition being bereft of merit was dismissed in limine.

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

----S. 115---Revisional jurisdiction---Scope---Concurrent findings of courts below could not be set at naught by the revisional court unless it was established through the evidence available on record that the same were either perverse, fanciful, erroneous or based on mis-reading and non-reading of evidence.

2002 SCMR 1114 and 2007 SCMR 368 rel.

Muhammad Jamil Marwat for Petitioners.

2013 M L D 1724

[Peshawar]

Present: Agha Rafiq Ahmed Khan, C.J., Rizwan Ali Dodani and Shahzado Shaikh, JJ

Mst. SAKINA BIBI---Petitioner

Versus

GOVERNMENT OF PUNJAB---Respondent

Shariat Petition No.19/I of 1998, decided on 18th June, 2013.

West Pakistan Muslim Personal Law Shariat Application Act (V of 1962)---

----Ss. 2-A & 2---Constitution of Pakistan, Art. 203-D---Agricultural land acquired by male heir under custom before commencement of Punjab Muslim Personal Law (Shariat) Application Act, 1948, deemed to have been acquired by such male heir under Muslim Personal Law (Shariat)---Repugnancy to Injunctions of Islam---Past and closed transactions---Scope---Section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 prevented the retrospective application of provisions of S.2 of the same Act in case of past and closed transactions in order to avoid confusion and chaos---Section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was clearly meant to avoid chaos where the property rights had already been transferred and acquired under the law---Holy Quran also had made provisions for the ease and smooth operation of corrections and improvements brought about in laws, prospectively and not retrospectively, by exempting 'closed and past transactions', without carrying any force of being 'a precedent---Islamization of the legal framework was a gradual process, in the larger interest of the public, that took place by reforming the prevailing laws and customs having the force of law---Provisions of S.2-A of West Pakistan Muslin Personal Law (Shariat) Application Act, 1962 did not validate the custom that was contrary to the Injunctions of Islam and at the same time it provided a strategic way to avoid chaos in closed transactions--Shariat petition was dismissed accordingly.

Zainab Bibi's case 1995 SCMR 868; Al-Quran Verses 2:275; 4:22; The Meaning of the Quran Abul-A'la Maudodi; Vol-II, P.309; 4:23; 5:95 and 8:38 ref.

Nemo for Petitioner.

Nemo for Federal Government.

Ch. Saleem Murtaza Mughal, Asstt. A.-G. for Province of Punjab.

Mian Saadullah Jandoli, Dy. A.-G. for Province of Khyber Pakhtunkhwa.

Naseerullah Bangulazi, Addl. A.-G. Balochistan for Province of Balochistan.

Nemo for Province of Sindh.

Dr. Hafiz Muhammad Tufail and Syeda Viquar-un-Nisa Hashmi, Jurist Consults.

Date of hearing: 28th May, 2013.

2013 M L D 1741

[Peshawar]

Before Rooh-ul-Amin Khan, J

ZAIRI GUL---Petitioner

Versus

UMAR ZAD KHAN and others---Respondents.

Civil Revision No.33-B of 2013, decided on 7th February, 2013.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Khyber Pakhtunkhwa Pre-emption Act (X of 1987) Ss.13 & 5---Suit for pre-emption---Production of additional evidence at appellate stage---Scope---Plaintiff impugned order of Appellate Court whereby his application to produce additional evidence regarding notice of Talb-e-Ishhad, before Appellate Court, was dismissed---Validity---Sufficient opportunity was given to the plaintiff for production of evidence and he was legally required to bring before the Trial Court all evidence which was required of him to prove his claim and at such belated stage, to allow plaintiff to produce additional evidence and that too, officials of the Post-Office regarding notice of Talb-e-Ishhad, which had been categorically denied by the vendees, would amount to filling up a lacuna---Additional evidence could not be allowed in order to allow a party to patch up weaker parts of its case or fill up omissions or enable it to raise a new point---Party to an appeal could move the court for production of additional evidence only if it was required by the Appellate Court itself on basis of its own appreciation of the evidence already on record---No illegality existed in the impugned order---Revision was dismissed, in circumstances.

Muhammad Bashir and others' case 2007 SCMR 1105; Bashir Ahmed's case 2011 SCMR 762; Muhammad Yousaf v. Mst. Maqsooda Anjum 2004 SCMR 1049 and Zarait Ullah Khan v. Fazal Ahmad and 29 others PLD 2004 SC (AJ&K) 35 rel.

Sifat Ali Khan Khattak for Petitioner.

2013 M L D 1750

[Peshawar]

Before Qaiser Rashid and Lal Jan Khan Khattak, JJ

Khalifa ABDUL QAYUM---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.6 of 2013, decided on 10th April, 2013.

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

----Ss.12 (2) & 78(3) (d)---Penal Code (XLV of 1860), Ss.199, 200 & 471---Corrupt practice and false declaration---Appreciation of evidence---Scrutiny, non-conducting of---Sentence, quantum of---Determining factors---Accused was ex-Member of Provincial Assembly and allegation against him was that he made false declaration regarding his educational qualification before Returning Officer at the time of filing of his nomination papers---Election Commission filed complaint against accused for committing corrupt practice---Trial Court convicted accused and sentenced him to 3 years' imprisonment with fine---Plea raised by accused was that in his nomination papers he did not declare on oath that degree awarded to him was by a Madrisa having affiliation or registration with Wafaq Tanzeem-ul-Madaris or Rabit-ul-Madaris---Validity---If Returning Officer had taken a little pain to demand from accused his basic Sanad of Shahdat Alia, situation with which accused was faced, could have easily been thwarted---After filing of nomination papers, date was fixed for scrutiny of papers and on that date candidates attended office of Returning Officer who scrutinized their nomination papers and if there was anything short or any loophole in nomination papers then such nomination papers were usually rejected---Returning Officer did not perform his part of duty by asking accused about his basic Sanad of Shahdat Alia, therefore, case for taking lenient view regarding quantum of sentence was made out---Division Bench of High Court maintained conviction awarded to accused but reduced his sentence from 3 years to one year simple imprisonment and fine was maintained---Appeal was dismissed accordingly.

PLD 2010 SC 1089 and PLD 2005 SC 858 rel.

Saleemullah Khan Ranazai and Zahid Mohibullah for Petitioner.

Khan Wali Khan Mehsud, A.A.G. for the State.

Kamran Hayat Miankhel, Federal Standing Counsel for Respondent No.2.

Date of hearing: 10th April, 2013.

2013 M L D 1769

[Peshawar]

Before Abdul Latif Khan, J

JEHANGIR KHAN---Petitioner

Versus

AMEER BIBI and others---Respondents

Civil Revision No.322 of 2009, decided on 3rd June, 2013.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.13---Talbs, performance of---Plaintiff filed pre-emption suit with the contention that transaction was sale but the same had been given the colour of gift---Suit was dismissed concurrently---Validity---Plaintiff omitted in his statement the place and time of performance of Talb-e-Muwathibat and informer had not corroborated him---Plaintiff was bound to prove the performance of Talb-e-Muwathibat through evidence but he had failed to corroborate the stance taken in the plaint---Plaintiff had confined to the term 'Asar-vela' with regard to information which did not come within the ambit of "exact time" when Talb-e-Muwathibat was performed---Requirements of S. 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 therefore, had not been complied with---Plaint did not disclose the date on which notice of Talb-e-Ishhad was sent and such deficiency was sufficient to non-suit the plaintiff---Plaintiff had not challenged the gift mutation in the plaint with assertion that and same was not pre-emptable---Plaintiff was bound to get the transaction declared from civil court as sale and could be pre-empted as sale after such declaration and not gift but no such effort had been made---Format of suit being defective, the plaintiff could be non-suited on such score alone---Revision was dismissed.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss.2 & 5---Sale---Right of pre-emption---Scope---Sale was transfer of ownership in exchange for valuable consideration and same did not include "gift"---Gift was not pre-emptable.

Malik Muhammad Bashir for Petitioner.

Saleem Nawaz Awan for Respondents.

Date of hearing: 3rd June, 2013.

2013 M L D 1776

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

DAWOOD KHAN---Petitioner

Versus

ASLAM and another---Respondents

Quashment Petition No.181-P of 2012, decided on 9th April, 2013.

Criminal Procedure Code (V of 1898)---

----Ss.133 & 561-A---Noise nuisance complaint---Mill running adjacent to a house allegedly causing noise nuisance---Petitioner filed a complaint to the concerned Chief Justice of the High Court to the effect that a steel boxes manufacturing mill was running adjacent to his house, which was causing noise nuisance and had made his life miserable, and that said business was running illegally and without obtaining a "No Objection Certificate"---Complaint was forwarded to Judicial Magistrate., who after recording statement of complainant and perusing the record and police report dismissed the complaint---Revision filed by complainant against order of Judicial Magistrate was also dismissed by the Revisional Court---Validity---Record showed that building where business in question was being run was owned by brother of the complainant---Civil litigation was pending between complainant and his said brother---Approved map/site plan for the construction of the building in question had been obtained after fulfilling all the legal formalities---Report of concerned Town Officer (Regulation) showed that building in question fell in a commercial area---Inquiry report of police revealed that building was fully covered and there was no apprehension of nuisance to public and locality, and that complaint was baseless---Except the complainant no one from public at large had come forward to depose that business in question was injurious to their health and was causing nuisance---Both courts below had rightly dismissed the complaint in such circumstances---Quashment petition was dismissed accordingly.

Akbar Khan for Petitioner.

Noor Khan and Muhammad Tariq Khan for Respondents.

Date of hearing: 9th April, 2013.

2013 M L D 1786

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

Mst. SONIYA SHARIF---Petitioner

Versus

BASHIR KUNDI through Legal Heirs and others---Respondents

Writ Petition No.1582/P of 2012, decided on 16th April, 2013.

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

----Ss. 13-A & 13---Constitution of Pakistan, Art. 199 ---Constitutional petition---Ejectment of tenant---Denial of relationship of landlord and tenant by tenant---Ejectment petition was dismissed concurrently inter alia on the ground that no notice of change of ownership was served on the tenant after the original landlord died---Validity---Perusal of evidence revealed that the tenant had admitted the relationship of landlord and tenant but had later on, after attestation of mutations concerning the premises, had not only denied said relationship but also set up a new story of ownership, firstly in favour of his wife and then another person---Rent Controller non-suited the landlord solely on failure of landlord to comply with S.13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 regarding notice of change of ownership---Notice under S.13-A of the Ordinance, if not served, would not amount to absence of relationship of landlord and tenant and institution of ejectment petition, was also to be treated as a notice of change of ownership---Person, even if he was not owner of a property could be deemed to be a landlord, and similarly he may be the owner but not a landlord---Courts ought to have looked into relationship of landlord and tenant and should not go into the disputed question of title as it was the job of the civil court and not that of the Rent Controller---High Court set aside impugned orders and directed the tenant to vacate the premises---Constitutional petition was allowed, accordingly.

1986 SCMR 751 and 2010 CLC 1941 rel.

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

----S. 13---Rent Controller, jurisdiction of---Scope---Relationship of landlord and tenant---Person even if he was not owner of a property could be deemed to be a landlord, and similarly he may be owner but not a landlord---Courts ought to look into relationship of landlord and tenant and should not go into the disputed questions of title as the same was the job of the civil court and not that of the Rent Controller.

Alizzur Rahman for Petitioner.

Ajmal Khanzada for Respondents

Date of hearing: 16th April, 2013.

2013 M L D 1793

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khan Khattak, JJ

SHER KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.175 of 2010, decided on 29th May, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b)---Qatl-e-amd---Appreciation of evidence---Medical evidence---Recovery of weapon---Proof---Prompt F.I.R.---Medical evidence fully supported version of prosecution and post-mortem report spoke about three entries and three exit wounds, total six in number on the body of deceased which amounted to corroboration of version of complainant---Doctor who conducted post-mortem, during his evidence, gave details of wounds comprising of three firearm entries and three exit wounds---Recovery of blood stained pebbles along with four empties of rifle, in a scattered position made from place of accused were proved by two prosecution witnesses, whose statements remained un-shattered, as no material question was put to them during cross-examination---Report of Forensic Science Laboratory with regard to parcels was positive and the recovery was established against accused---Independent eye-witnesses having no relation with complainant had fully supported version of F.I.R. and presence of accused on spot was established---F.I.R. was lodged promptly after about one hour of occurrence despite distance of 16/17 kilometers in between the spot and hospital, so possibility of consultations and deliberations was ruled out---No chance of misidentification of accused existed as the occurrence was of broad daylight and parties belonged to same vicinity---Trial Court had properly evaluated evidence produced by prosecution and succeeded to prove its case against accused beyond any shadow of doubt, and had rightly held the accused guilty of qatl-e-amd of deceased---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

Burhan Latif Khasori for Appellant.

Khan Wali Khan Mashud, Addl: A.G. for the State.

Farasatullah Khan for the Complainant.

Date of hearing: 29th May, 2013.

2013 M L D 1814

[Peshawar]

Before Mrs. Irshad Qaiser, J

ALLIED BANK LTD. through Manager---Petitioner

Versus

SARDAR KHAN and others---Respondents

Civil Revisions Nos.498 and 493 of 2010, decided on 3rd April, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1, 2 & S.34---Contract Act (IX of 1872), S.238---Bank liable for fraud committed by its employees---Suit for recovery of money filed by the plaintiffs after money was fraudulently withdrawn vide forged cheques from their account by employees of the defendant-Bank---Suit was decreed for the principal amount and additionally Bank was held liable to pay compound interest to the plaintiffs---Contention of the defendant bank was, inter alia, that when the cheque was issued in the prescribed manner, the bank was not liable for loss to the account-holder and that granting a decree with compound interest was not correct---Validity---Fraud was committed by employees of the Bank, and the offence committed was within the powers delegated to the manager and cashier by the Bank for encashment and withdrawal---Defendant Bank was legal person and acted as principal while its employees were performing their duties as agents for running the business of the Bank as its agents and under S.238 of the Contract Act, 1872 Bank was liable to fraud committed by its agents---While granting relief to a successful plaintiff, it was open for the Trial Court to grant such general relief in the interest of justice as the nature of case may demand and therefore compound interest could be ordered which was in accordance with S.34, C.P.C.---No illegality existed in order of courts below---Revision was dismissed.

PLD 1998 Lah. 20 and 1991 CLC 175 rel.

Qazi Muhammad Anwar for Petitioner.

Khalid Mehmood Khan for Respondents.

Date of hearing: 3rd April, 2013.

2013 M L D 1822

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

ABDUL HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.254-P of 2012, decided on 16th April, 2013.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Grant of probation to accused for good conduct---Contraband had been recovered from the direct possession of the accused and report of the Forensic Science Laboratory was positive---Seizing Officer and author of the murasila reiterated his version set forth by him in his murasila report---Marginal witness of recovery memo had supported the version of Seizing Officer and testified that said memo bore his signature and had established his presence on the spot---Seizing Officer and marginal witness of recovery memo were consistent on each and every material particular of the occurrence---Opportunity of cross-examination had been provided but nothing could be extracted which could be beneficial for the defence---No malice, ill-will or enmity was attributed to the prosecution witnesses---Mere fact that the prosecution witnesses were police officials would not be sufficient to discard their confidence inspiring and trustworthy testimony---Police witnesses were also as good witness like others and their testimony could be relied upon unless and until any ill-will or enmity on their part towards the accused was proved---Nothing was on record to prove previous involvement or conviction of the accused in such like cases who was of advance age of 49/50 years---Accused being first offender was released on bail on existing bail bonds and was placed on probation for good conduct for the period of his sentence i.e. 3 years as a rigorous imprisonment.

(b) Criminal trial---

----Witness---Evidentiary value of police official---Police witness was as good a witness as other and his testimony could be relied upon unless and until any ill-will or enmity on his part towards the accused was proved.

Daniyal Khan for Appellant.

Obaid Razaaq, Additional Advocate-General for Respondent.

Date of hearing: 16th April, 2013.

2013 M L D 1842

[Peshawar]

Before Abdul Latif Khan, J

BATAKIM KALASH and others---Petitioners

Versus

ZUHRA BIBI---Respondent

Civil Revision No.68 of 2012, decided on 25th April, 2013.

(a) Inheritance---

----Custom---Kalash sect of Kalash valley---Rights of daughter to get share in legacy of her deceased father belonging to Kalash sect---Scope---Female according to custom of Kalash would not be entitled to get share out of inheritance of ancestors.

(b) Islamic law---

----Inheritance---Conversion of religion---Effect---Muslim or Kafir could not inherit from each other---Illustration.

Shamsul Islam for Petitioner.

Taufiqullah for Respondent.

Date of hearing: 25th April, 2013.

2013 M L D 1849

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khan Khattak, JJ

AAMIR IQBAL and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.14-D and Murder Reference No.2-D of 2012, decided on 13th June, 2013.

Penal Code (XLV of 1860)---

----Ss.302 (b), 337-A(iii) & 337-F(v)---Qatl-e-amd, Shajjah-i-Hashimah and Ghayr-Jaifah Hashimah---Appreciation of evidence---Testimony of prosecution witnesses was trust worthy and confidence inspiring---Recovery of blood stained earth and empties of rifle from places of accused as per site plan freshly discharged was also cogent and corroborating piece of evidence in line with prosecution story---Existence of motive also strengthened prosecution version and all such facts established guilt of accused persons connecting them with commission of offence---Trial Court rightly evaluated evidence on record while awarding conviction and sentence to accused persons---High Court declined to interfere in conviction awarded to accused by Trial Court as strong case was made out against them---Appeal was dismissed in circumstances.

Muhammad Ismail Alizai and Saleemullah Khan Ranazai for Appellants.

Khan Wali Khan Mahsud Addl: A.G. for the State.

Muhammad Waheed Anjum for the Complainant.

Date of hearing: 13th June, 2013.

2013 M L D 1860

[Peshawar]

Before Qaiser Rashid Khan, J

Mst. NAZO---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.27 of 2013, decided on 1st March, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, refusal of---Pregnant female accused with sucking baby---Accused-lady while travelling in a car was stopped at a police checkpoint and upon her search five kilograms of charas was found tied with the string of her trouser---Plea of accused was that she was mother of a suckling baby and was also four months' pregnant---Validity---Accused was stopped at a police checkpoint and searched by a lady constable---Report of samples sent to Forensic Science Laboratory was in positive---Nothing was available on record to show that witnesses had any mala fide or ulterior motives to falsely implicate the accused---Had the accused been concerned about her suckling baby, she would not have resorted to indulge in such activity which had afflicted the whole society and especially the younger generation---Prima facie accused was connected with the commission of the offence---High Court observed that off late narcotic mafia had devised new modes and means of smuggling narcotics by employing ladies and youngster in the hope that even if they got caught red-handed, they might be extended concession of bail by the courts on grounds of womanhood or juvenility and that such conduct amounted to taking liberty with the law of the land---Bail petition was dismissed accordingly.

Mian Jamal Shah for Applicant.

Sangeen Khan for the State.

Date of hearing: 1st March, 2013.

2013 M L D 1872

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

The STATE through Advocate-General---Appellant

Versus

KHAISTA RAHMAN---Respondent

Criminal Appeal No.224 of 2012, decided on 29th May, 2013.

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

----S. 7---Penal Code (XLV of 1860), Ss. 353, 324, 377, 342 & 506---Pakistan Arms Ordinance (XX of 1965), S. 13---Criminal Procedure Code (V of 1898), Ss.345, 417(2-A), 493 & Second Sched.---Act of terrorism, assault or use of criminal force to deter a public servant from discharge of his duty, attempt to commit qatl-e-amd, unnatural offences, wrongfully confining any person, criminal intimidation and possession of unlicensed arms---Appeal against acquittal---Compromise---Scope---Anti-Terrorism Act, 1997, was a special law---Private complainant or legal heirs had no right to compound the scheduled offences---Said offences were against the State but not only against individuals---Second Schedule of the Code of Criminal Procedure, 1998, provided that offences punishable under Ss.353 & 377, P.P.C. were not compoundable---Complainant was not competent to compound the offence under S.13 of Arms Ordinance, 1965---Compromise did not constitute valid ground for acquittal of the accused---Trial Court was not vested with the powers to act upon the statements of the complainant and minor victim---Trial Court illegally acquitted the accused on the basis of compromise in non-compoundable offences---Judgment/order of Trial Court was illegal and without lawful authority and caused miscarriage of justice---Impugned judgment and order of acquittal was set aside and case was remanded for decision afresh.

Tahir Hussain and others v. Khaliq Dar and others 2003 MLD 1401 and Usman Ali and another v. The State 2007 PCr.LJ 1097 rel.

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

----Preamble---Object---Anti-Terrorism Act, 1997, was a special law purpose of which was to control terrorism---Schedule offences were made non-compoundable.

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

----S.493---Public prosecutor being incharge of the case, private counsel engaged could only assist the prosecutor---Abandoning prosecution witnesses by counsel for complainant without authority of public prosecutor was against the spirit of S. 493, Cr.P.C.

Muhammad Javaid D.A.-G. for the State.

Sajjad Anwar for Respondent.

Date of hearing: 29th May, 2013.

2013 M L D 1879

[Peshawar]

Before Qaiser Rashid Khan and Lal Jan Khan Khattak, JJ

MUHAMMAD FARHAN RAHIM---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.160 with Murder Reference No.18 and Criminal Revision No.52 of 2011, decided on 25th April, 2013.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-e-amd---Appreciation of evidence---Dying declaration, reliance on---Scope---Dying declaration suffering from infirmities and not independently corroborated---Effect---Allegation against accused was that on the night of the occurrence he was sitting with the deceased at his 'baithak', when due to some matter they turned acrimonious towards each other and accused inflicted multiple dagger blows upon the deceased---Deceased was taken to hospital where he reported the matter to the police, and implicated the accused for the offence---Deceased subsequently succumbed to his injuries and died in the hospital after about two days---Trial Court convicted accused under S.302(b), P.P.C. and sentenced him to death---Validity---Report made by deceased to the police in the hospital was F.I.R. cum dying declaration---Apart from said report and its scribe (police official) who appeared as a prosecution witness, there was no other eye version of the account of occurrence---Statement of all prosecution witnesses were only of peripheral value---Report made by deceased to the effect that on some matter he and accused turned acrimonious and accused attacked him with a dagger was not reliable and appealable to the mind of a prudent man as both of them were friends, and even otherwise they were present in a 'baithak' at very odd hours, and question was as to how all of a sudden the scene could change and accused, a boy of 18/19 years of age, could take out a dagger and thrust it several times into the body of his deceased-friend---Occurrence could not have happened in isolation or all of a sudden, and there must have been some prelude to it---Question was whether accused took out the dagger from his trouser (shalwar) or from somewhere else as commonly in 'baithaks' daggers were not kept unless contrary was proved---No evidence was available to explain as to why accused was sitting in the 'baithak' at odd hours---Deceased was a young man of 46/47 years of age , while accused was a man of 18/19 years of age, therefore it did not appeal to a prudent mind that deceased offered no resistance and remained a statue at the time when accused stabbed him multiple times---Deceased remained in hospital for about two days, during which there was ample time to record his dying declaration through a Magistrate, which exercise was not done---Brother of deceased (prosecution witness) stated in court that he saw the deceased lying in an injured condition in a street, while the deceased stated in the F.I.R. cum dying declaration that he was stabbed in the baithak---F.I.R. cum dying declaration was neither reliable nor accurate and particularly in absence of cross-examination of the deceased-declarant, it was highly unsafe to award sentence to the accused---Appeal was allowed in circumstances and conviction of accused was set aside.

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

----Art.46---Dying declaration, reliance on---Scope---Dying declaration not to be relied upon without independent corroboration---No doubt a dying declaration could be admitted in evidence as a basis for convicting accused but it was equally dangerous to rely on a dying declaration in the absence of strong corroboration---While assessing the probative value of a dying declaration if the court came to the conclusion that the declaration was suffering from infirmities then without corroboration it could not be made basis for conviction---Cases where there was only a dying declaration, courts were always very loath to go for conviction in absence of any independent corroboration---Strongest corroboration for dying declaration was required as in such cases defence was always deprived of its right of cross-examination of the declarant regarding its reliability and trustworthiness of his dying declaration.

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

----Art. 46---Dying declaration, reliance on---Corroboration of dying declaration---Scope---Dying declaration recorded by Magistrate and countersigned by doctor was the strongest piece of (its) corroboration.

Saleemullah Khan Ranazai for Petitioner.

Sanaullah Khan Shamim, D.A.G. for the State

Saifur-ur-Rehman Khan for the Complainant.

Date of hearing: 25th April, 2013.

2013 M L D 490

[Balochistan]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

THE STATE through Public Prosecutor-General---Appellant

Versus

Mula KALIMULLAH---Respondent

Criminal Acquittal Appeal No.294 of 2010, decided on 14th November, 2012.

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

----S.302---Criminal Procedure Code (V of 1898), S.417---Qatl-e-amd---Appeal against acquittal, dismissal of---Appreciation of evidence---Unseen occurrence---Interested and inimical prosecution witnesses---Contradicting statements of prosecution witnesses---Medical evidence negating ocular account---Effect---Allegation against accused was that he beat his deceased-wife brutally, which resulted in internal injuries and her pregnancy was also aborted---Trial Court acquitted the accused---Validity---Alleged occurrence was unseen and there was no eye-witness of the occurrence---Prosecution witnesses were closely related with the complainant and the deceased---Said witnesses were interested and inimical witnesses inter se towards the accused and tried to improve their version by making dishonest improvements---Prosecution witnesses contradicted each other on material points---Allegation against accused of causing internal injuries to his deceased-wife was not proved as she was not examined in support of the prosecution case---Cause of death of deceased negated the ocular account---Medical evidence showed that deceased had history of abdomen pain, vomiting with blood and diarrhea, and cause of her death was determined as failure of kidney as well as multiple infection in the blood---Evidence of Lady Medical Officer revealed that no external abrasion, bruises or wound was found on the body of deceased except scratching of hair on the center of her scalp, and that she was severally anemic---Hair of deceased that had been allegedly scratched off from her scalp were not sent to Forensic Science Laboratory, so they were of no consequence---Prosecution failed to prove its case against the accused---Appeal against acquittal of accused was dismissed in circumstances.

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

----S. 417---Appeal against acquittal---Presumption of innocence---Scope---After acquittal, accused earned double presumption of innocence, which could only be interfered with if the (acquittal) order on the face of it appeared to be perverse, arbitrary or illegal.

Attiq Ahmed Khan, Additional Prosecutor General for the State.

Date of hearing: 15th October, 2012.

2013 M L D 569

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

IRFAN BASHIR---Petitioner

Versus

SINGER PAKISTAN LTD. and 3 others---Respondents

Civil Revision No.225 of 2010, decided on 21st December, 2012.

Civil Procedure Code (V of 1908)---

----Ss.2(11), 47(3) & 50---Execution of decree against legal representatives of deceased judgment debtor---Duty of court---Scope---Term "representative" as used in S.47(3), C.P.C. would include legal representative as defined in S.2(11) thereof as well as any person being representative-in-interest of a party to suit---Court would firstly determine that who would be legal representative of deceased judgment debtor and then would proceed against such representative---Decree could be executed to the extent of property of deceased judgment debtor having come into hands of a legal representative---Principles.

Rauf Hashmi for Petitioner.

Miss Iram Mahmood and Amanullah Tareen, Additional Advocate General for Respondents Nos. 2 and 3.

Date of hearing: 8th May, 2012.

2013 M L D 708

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

Syed AIN ULAH and 4 others---Petitioners

Versus

DILBAR and 2 others---Respondents

Civil Revision No.398 of 2009, decided on 19th November, 2012.

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

----S.172, 141,117 & 54---Civil Procedure Code (V of 1908) O.I, R.9---Specific Relief Act (I of 1877) Ss. 42, 39 & 54---Suit for declaration, cancellation of mutation and permanent injunction was dismissed on ground of non-joinder of necessary parties and lack of jurisdiction under S.172 of the West Pakistan Land Revenue Act, 1967---Validity---While there was a bar on jurisdiction of a civil court in matters provided under S. 172 of the West Pakistan Land Revenue Act, 1967 but it was with certain exceptions under Ss. 53, 141 and 117 of the Act; and said provisions were ignored by courts below who only confined themselves to S. 172---No decision was given in the matter by Revenue Authorities, rather there was a direction to the parties to approach the civil court for determination of their rights in respect of possession of the disputed land---Dispute existed between the parties in respect of area of land in possession of the plaintiffs and defendants, entitlement of the parties in the land in question was to be determined by a court of general jurisdiction---Dismissal of suit on basis of non-joinder of a necessary party was an erroneous decision as under O. I, Rule 9, C.P.C., no suit shall be defeated by the reason of misjoinder and non-joinder of parties and the Trial Court was empowered to implead a person to the proceedings who it deemed to be necessary for determination of the matter in issue---High Court set aside order of courts below and remanded the matter to Trial Court with the direction to proceed with the matter in accordance with law---Revision was allowed, accordingly.

Abdul Qadir v. Sher Muhammad 2010 MLD 1596 and Hassan Shah v. Settlement Officer 2007 CLC 1609 ref.

Muhammad Yousaf v. Karam Elahi 2006 YLR 1196; Syed Mahboob Ali Shah v. Federation of Pakistan 2011 CLC 907; Farzand Ali v. Fateh Muhammad 2005 CLC 1223; Muhammad Idress v. Muhammad Pervaiz 2010 SCMR 5; Bore Muhammad v. Mst Aziza Begum PLD 2003 Kar. 466 and Tahir Hanif v. Member Board of Revenue 1982 CLC 1732 distinguished.

Munir Agha for Petitioners.

Abdul Khair Achakzai and Amanullah Tareen, Additional Advocate General for Respondents.

Dates of hearing: 8th May and 19th November, 2012.

2013 M L D 974

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD NAEEM---Appellant

Versus

ORANGZAIB KHAN---Respondent

Civil Miscellaneous Appeal No.23 of 2010, decided on 9th April, 2013.

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

----S.42-Powers of court in executing transferred decree---Transferee court could not go beyond the decree, nor could reverse or review the judgment or the decree---Transferee court could not go into the question of jurisdiction of the court which passed the decree or the legality or propriety of the order of transferor court---Only question which could be entertained, would be its own jurisdiction in execution of a decree transferred to it.

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

----S.47---Scope of S.47, C.P.C.---Questions to be determined by the court executing decree---Object---Object behind S.47, C.P.C. was not only to afford speedy relief to the parties in the matters arising out of execution of a decree, but also to curtail the multiplicity of litigation, and the hardship to be faced by the parties.

Muhammad Usman Yousafzai for Appellant.

Ayaz Sawati for Respondent.

Date of hearing: 11th December, 2012.

2013 M L D 1039

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

Haji WAHID BAKHSH---Appellant

Versus

AHMED and 2 others---Respondents

Regular First Appeal No.6 of 2008, decided on 19th March, 2013.

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

----Arts. 72, 78, & 79-Civil Procedure Code (V of 1908), O.VII, R.2---Proof of document---Author of the document despite being alive was not produced nor any plausible reason for his non-production was offered---Document in question was liable to be registered and for want of registration such document did not operate to create, extinguish any right---Document in original was neither tendered in evidence nor produced on record and only a photo copy was available which neither could have been tendered in evidence nor could be taken into consideration---Evidence and the contents of the plaint were irreconcilable in nature and ran contrary to each other---No misreading or non-reading of evidence having been noticed, appeal was dismissed with costs.

Arther Victor for Appellant.

Zahoor Ahmed Baloch for Respondents.

Date of hearing: 12th November, 2012.

2013 M L D 1083

[Balochistan]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

MUHAMMAD RABANI and 5 others---Appellants

Versus

Agha ARSHAD through Imran Ali and another---Respondents

C.M. Appeal No.15 of 2012, decided on 24th January, 2013.

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

----Ss. 34, 41(b) & Second Schedule---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Arbitration agreement---Power to stay legal proceedings---Scope---Powers of the court under the Second Schedule of the Arbitration Act, 1940, could be exercised by issuing an interim order for the preservation and safety of the subject matter---Mere filing of an application under S.34 of the Arbitration Act, 1940, or even stay of the proceedings and referring the matter to the Arbitrator should not preclude the Trial Court from dealing with the injunction application.

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

----S.34---Expression "Any other step into proceeding"---Connotation---Expression was not relatable to any step, action or inaction taken by the defendant during the proceedings of interim applications but was applicable only to the proceedings of the main case.

Syed Ayaz Zahoor for Appellants.

Naseebullah Tareen for Respondent No.1.

Ayaz Sawati for Respondent No.2.

Date of hearing: 26th December, 2012.

2013 M L D 1482

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

Dr. ABDUL RAZIQ and 2 others---Appellants

Versus

Mst. HAMEEDA BEGUM and 5 others---Respondents

Regular First Appeal No.129 of 2009, decided on 28th May, 2013.

Suit for damages---

----Death of defendant---Effect---Indivisible claim---During pendency of proceedings before Trial Court, one of the defendants died and subsequent thereto, suit was dismissed by Trial Court---Validity---Suit for damages was incompetent and not maintainable against defendant who had died during pendency of proceedings and prior to decree passed against him---Relief sought against defendant was indivisible and joint, therefore, suit in such circumstances was bound to abate collectively---High Court did not find any illegality in judgment and decree passed by Trial Court and suit of plaintiff was rightly dismissed---Appeal was dismissed in circumstances.

Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46; Mst. Nasri Begum v. Virgil L. Moore, Consular for Administration, Embassy of the United States of America and 6 others 1989 CLC 511; Mercantile Co-operative Bank Ltd. v. Messrs Habib and Co. and others PLD 1967 Kar. 755; Maniramlala Baliramlala v. Mt. Chattibai AIR 1937 Nagpur 216; Mahant Salig Ram v. Charan Dass and another AIR 1939 Lah. 492; Govt. of Punjab through Secretary Ministry of Agriculture v. Mst. Kamina 1990 CLC 404; M. Veerappa v. Evelyn Sequeria 1989 MLD 3225 and Retanlal Bhannalal Mahajan v. Baboolal Hajarilal Jain AIR 1960 Madhya Pradesh 200 ref.

Ch. Mumtaz Yousaf for Appellants.

Date of hearing: 9th May, 2013.

2013 M L D 1527

[Balochistan]

Before Ghulam Mustafa Mengal and Naeem Akhtar Afghan, JJ

SHAMSULLAH---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.36 of 2012, decided on 20th June, 2013.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Delay in sending samples---Benefit of doubt---Accused was arrested red-handed for possessing Chars and was convicted by Trial Court under S.9(c) of Control of Narcotic Substances, Act, 1997, and sentenced to two years of imprisonment along with fine---Validity---Alleged contraband was recovered on 22-12-2011 and sample was received by hand in Forensic Science Laboratory on 9-1-2012---Delay in sending alleged sample to Laboratory was a defect in prosecution case and it was shrouded in mystery as to in whose possession alleged sample remained from 22-12-2011 to 9-1-2012---Case of prosecution was doubtful and benefit of any doubt in the links of prosecution case would go to accused---High Court maintained conviction of accused under S.9(c) of Control of Narcotic Substances Act, 1997 but reduced the sentence and amount of fine---Appeal was allowed accordingly.

Qazi Abdul Malik for Appellant.

Yahya Khan, Deputy Prosecutor General for the State.

Date of hearing: 17th June, 2013.

2013 M L D 1774

[Balochistan]

Before Ghulam Mustafa Mengal and Naeem Akhtar Afghan, JJ

MUSA KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.29 of 2013, decided on 21st June, 2013.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Possession of narcotics---Escorting co-accused---Case of further inquiry---Charas weighing 200 kilograms was not recovered from the possession/car of accused but it was allegedly recovered from the car driven by co-accused---Allegation against accused was that he was escorting and helping co-accused in trafficking narcotics---Validity---Was yet to be determined at trial whether accused was escorting co-accused or not---Case of accused fell within the ambit of further inquiry---Accused had been behind the bars since the date of his arrest and his further detention in jail would not serve the purpose---Bail was allowed in circumstances.

Muhammad Akbar Sani for Applicant.

Abdul Sattar Durrani, D.P.-G. for the State .

2013 M L D 16

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

RABIA AKHTER and another---Appellants

Versus

MUHAMMAD AYUB and 2 others---Respondents

Civil Appeal No.83 of 2010, decided on 27th June, 2012.

(On appeal from the judgment and decree of the Shariat Court dated 22-2-2010 in Shariat Appeal No.40 of 2007).

(a) Interpretation of statutes---

----Operation of Rule containing no penal provision, would be directory in nature and not mandatory.

Saeed-ud-Din v. IIIrd Senior Civil Judge (East) Karachi and another PLD 1992 Kar. 302 rel.

(b) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched. & S. 7---Civil Procedure Code (V of 1908), O. VI, R.14---Suit for jactitation of marriage---Non-signing and verification of plaint---Effect---Non-signing of plaint and verification by the plaintiff himself, would not affect the filing of the suit.

(c) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched. & S.7---Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, Rr.3, 4 & 5---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Suit for jactitation of marriage filed by husband---Maintainability---Term "Jactitation of marriage"---Connotation---Both, the Trial Court and Shariat Court, had concurrently decreed suit for jactitation of marriage by the plaintiff husband---Counsel for the defendants had contended that suit for jactitation of marriage could only be filed by a woman and husband could not file such suit---Validity---Family Court under R.5 of Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, had exclusive jurisdiction to entertain, hear and adjudicate upon the matters enumerated in the Schedule; and jactitation of marriage fell at serial No.7 in the Schedule---Family Court had exclusive jurisdiction for deciding the question of jactitation of marriage---Term "jactitation of marriage" was of wide implication and would seem to cover an assertion by either of the spouses or a third party, denying the marriage between the alleged husband and wife, and would include an action either by one of the spouses against the other, or by the spouses against third party---Suit could be filed by a person other than the spouses involved in the jactitation of marriage---Suit be filed by the spouses against third party with a view to prevent them from denying their marriage---Person could claim that a woman was not his wife or a wife could claim that she was not wife of defendant and he/she would refrain from claiming as such, in a suit by a plaintiff that a woman was his lawfully wedded wife and another person, the plaintiff could request for issuance of a prohibitory decree---Suit for declaration that the defendant was not the husband or wife of plaintiff and the defendant alleged to be wife or husband by the plaintiff was suit for jactitation of marriage---Suit for jactitation was the only case on which matrimonial suit could as of right, be proceeded without prima facie proof of a marriage de facto---Family Court had exclusive jurisdiction to try a suit for jactitation of marriage---Appeal was dismissed, in circumstances.

Kabool Khan v. Shamoon and others 2001 YLR 51; Muhammad Sarwar and 3 others v. Jahangir Ahmad and 5 others 2002 CLC 1865 and Hafiz Tasadaq Hussain v. Lal Khatoon and others PLD 2011 SC 296 distinguished.

Mst. Amina Begum v. Ghulam Nabi and 2 others PLD 1974 Lah. 78 and Mir Asmat Ali v. Mahmudul Nisa ILR 20 All 96 rel.

(d) Words and phrases---

----"Jactitation of marriage",---Connotation.

Goldstone v. Goldstone (1922) 127 L.T.R. 32; Schuck v. Schuck (1950) 66 ITR 1179; Igra v. Igra AIR 1951 Pat. 404; Nur Shafi v. Nur Shafi (1953) AELR 783; Waryam Singh v. Phewon 50 PR 1901; Jaskaur v. Mehtab 26 PR 1903; Salim Ullah Baig v. Matin Begum PLD 1959 Lah. 429; Sughran v. Rehmat Ali PLD 1965 Lah. 580; Tajoo v. Mst. Sattran PLD 1974 Lah. 105 and Mst. Zohran Bibi v. Manzoor Ahmad and 2 others PLD 1975 Lah. 318 rel.

Ch. Muhammad Siddique for Appellants.

Raja Saadat Ali Kayani for Respondents.

Date of hearing: 28th March, 2012.

2013 M L D 65

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ

SAIN and 14 others---Appellants

Versus

ALAM DIN and 12 others---Respondents

Civil Appeal No.198 of 2010, decided on 6th August, 2012.

(On appeal from the judgment and decree of the High Court dated 7-4-2010 in Civil Appeal No.97 of 2007).

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

----S. 42---Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XIII, Rr.1 & 3---Appeal to Supreme Court---Petition for leave to appeal---Limitation---Delay, condonation of---Period of limitation for filing petition for leave to appeal under O.XIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978 was 60 days from the date of impugned judgment of High Court---Judgment and decree, in the present case, was passed by the High Court on 7-4-2010---Plea of petitioners/appellants was that they came to know about the decision of the High Court on 30-6-2010---Petition for leave to appeal was ready on 3-7-2010 and it was signed on 4-7-2010, but was filed after a delay of one day for which no sufficient cause had been brought on the record---Delay of each and every day had to be explained---If the plea of counsel for the appellants is taken into consideration that they came to know about the decision of High Court dated 7-4-2010 on 30-6-2010, even then petition for leave to appeal was filed after a delay of one day for which no sufficient cause had been brought on record---Argument of the counsel that appellants were illiterate persons, therefore, they did not know the question of limitation, had no force as the ignorance of law was no excuse---Appeal was dismissed being barred by time, in circumstances.

Development Authority and 4 others v. Iqbal Hussain Nizami 2002 CLC 1653; Qurban Ali and another v. The State PLD 1984 SC (AJ&K) 104 and Muhammad Ibrahim v. Raj Muhammad and another PLD 1984 SC (AJ&K) 51 rel.

Muhammad Shafi for Appellants.

Farooq Hussain Kashmiri for Respondents.

Date of hearing: 14th May, 2012.

2013 M L D 142

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J and Ch. Muhammad Ibrahim Zia, J

MIRAN BAKHSH through L.Rs. and 6 others---Appellants

Versus

ALI MUHAMMAD---Respondent

Civil Appeal No.97 of 2008, decided on 3rd November, 2011.

(On appeal from the judgment of the High Court dated 27-6-2008 in Civil Appeal No.350 of 2006).

Civil Procedure Code (V of 1908)---

----O.XX, R.5 & O.XLI, R.31---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Judgment by first appellate court---Scope---Trial Court dismissed the suit and appeal before Appellate Court below also failed---High Court accepted appeal against judgment and decrees of courts below on the ground that judgment of Appellate Court below was not in conformity with provisions of O.XX, C.P.C. and remanded the case to the Trial Court for fresh decision---Validity---Order XX, R.5, C.P.C. dealt with the recording of judgment by the Trial Court, while the first Appellate Court had to record judgment in the light of O. XLI, R. 31, C.P.C.---Order XLI, R.31, C.P.C. postulated that the first Appellate Court would record findings on all the issues separately, but that was not an inflexible rule---If a case could be decided on a single issue, which was the bone of contention between the parties, then there was no need to record finding on each and every issue---Appellate Court below recorded findings on three issues collectively as in the opinion of the Appellate Court all the three issues were co-related and burden of the same was upon the plaintiff---Appellate Court below was right in recording findings on those three issues collectively---High Court, had passed a telegraphic judgment without recording the facts of the case and the issues; had not gone through the judgment of Appellate Court and did not look into the law as O.XX, R.5, C.P.C. was not applicable to the case of first Appellate Court---Impugned judgment, in circumstances, was not a "judgment" in the eye of law---High Court was to decide the case on merits---Impugned judgment was set aside and case was remanded by the Supreme Court to the High Court for decision on merits, in circumstances.

Abdul Qayyum v. Muhammad Arif and others Civil P.L.A. No.66 of 2011 and Said Muhammad Khan v. Muhammad Yousaf and 2 others 2007 SCR 235 rel.

Ch. Muhammad Suleman for Appellants.

Ch. Lal Hussain for Respondent.

Date of hearing: 25th October, 2011.

2013 M L D 190

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

WAJID HUSSAIN---Appellant

Versus

SENIOR CIVIL JUDGE and another---Respondents

Civil Appeal No.72 of 2012, decided on 3rd July, 2012.

(On appeal from the judgment of the High Court dated 6-1-2012 in Writ Petition No.145 of 2011).

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched., and Ss.11 & 17---Suit for dissolution of marriage---Recording of evidence of plaintiff---Counsel for defendant failing to appear---Effect---Witnesses of the plaintiff were present in the court on date fixed for recording evidence of said witnesses---Defendant appeared and sought time for producing his counsel in the court and time was fixed in that respect---Court kept on waiting the counsel for the defendant, even after expiry of fixed time but he did not appear---Witnesses of the plaintiff remained present in the court, but due to absence of counsel for defendant the evidence could not be recorded, and the court had no option except to pass an order for payment of expenses to the witnesses of the plaintiff by the defendant---Legality---Defendant challenged said order by way of a writ petition in the High Court, which petition was dismissed by the High Court---Contention of defendant was that judgment of High Court was not maintainable as provisions of C.P.C. being not applicable in the proceedings before the Family Court, court could not pass any order for payment of expenses to the witnesses---Under provisions of S.17 of Azad Jammu and Kashmir Family Courts Act, 1993, provisions of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 did not apply to the proceedings in Family Court unless expressly provided by or under the said Act and Family Court had its own procedure for the trial of the cases specified in the Schedule of said Act---Family Court was empowered to examine witnesses produced by the parties in such order as it deemed fit---Though it was not expressly provided as to in what order the witnesses were to be produced, but power was vested in the court that it would determine the mode/order as it deemed fit---Provisions of C.P.C., though were not applicable in the proceedings before the Family Court, but there always existed an implied and inherent power in every court to pass a suitable order to meet the ends of justice and the requirement of principles of natural justice---Azad Jammu and Kashmir Family Courts Act, 1993, did not expressly provide that if the evidence of the witness was not recorded due to fault of defendant, expenses would be paid by defendant to the witnesses, but it was not prohibited to pass such order---Unless it was expressly prohibited that the Family Court would have no power to pass any order for payment of expenses to the witnesses, no bar would exist for ordering the same---Family Court could pass such order as it would feel necessary for doing complete justice in the light of provisions of Azad Jammu and Kashmir Family Courts Act, 1993---Defendant having failed to point out violation of provisions of Azad Jammu and Kashmir Family Courts Act, 1993 or Rules, writ was rightly dismissed by the High Court, in circumstances.

Fozia Javed Qureshi v. Zulfiqar Ali and another 2011 SCR 371 rel.

(b) Interpretation of statutes---

----Whatever was not prohibited expressly by law was deemed to be permitted.

Islamia University Bahawalpur v. Muhammad Hameed Bhatti and another 2004 SCMR 649 and Hakam Deen v. The State and 15 others PLD 2006 SC (AJ&K) 43 rel.

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

----S. 44---Writ of certiorari---Scope---Under S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974, High Court had power to issue a writ of certiorari, if the order passed by the lower forum was against the law or violative of principle of law.

Javaid Najamus-Saqib for Appellant.

Sardar Muhammad Ejaz Nazir for Respondent No.2.

Date of hearing: 29th June, 2012.

2013 M L D 305

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD AJAIB---Appellant

Versus

TASLEEM WAKEEL---Respondent

Civil Appeal No.103 of 2010, decided on 23rd November, 2011.

(On appeal from the order of the Shariat Court dated 13-3-2010 in Civil Appeal No.47 of 2009).

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched. & S. 13---Suit for dissolution of marriage on ground of Khula---Determination of amount of Khula---Jurisdiction---Scope---Trial Court dissolved the marriage on the basis of Khula with the condition that the decree would become final on payment of Rs.39559 as amount of Khula within one month, and in case of failure the suit would be deemed dismissed---Shariat Court through impugned judgment, while accepting appeal partially modified the decree to the effect that question regarding the return of the amount of Khula, was a civil liability which could be enforced by the husband through a separate suit---Validity---After framing specific issue on the question of Khula, parties were provided opportunity for producing proof, and the Family Court after appreciation of evidence, had determined the amount of Khula and question of determination of amount of Khula, had attained finality---Statutory provisions of S.13 of the Azad Jammu and Kashmir Family Courts Act, 1993, remained out of consideration by both the courts below, interpretation of which demanded that whole scheme of the Act along with Preamble had to be considered and appreciated---Intention of the Legislature was clearly ascertainable that the purpose of enforcement of the Family Courts Act was expeditious settlement and disposal of the disputes relating to marriage and family affairs and the matters connected therewith---Once a question of fact had been determined by the Family Court after due appreciation of evidence, dragging the parties on the same question of fact in civil suit, would amount to defeat the very purpose of the special law---Impugned judgment of the Shariat Court was modified by the Supreme Court to the extent that for recovery of the amount of Khula, determined by the Family Court, separate civil suit was not required and such order was executable under the provisions of S.13 of Azad Jammu and Kashmir Family Courts Act, 1993 in circumstances---Order accordingly.

Muhammad Ramzan Khan v. Imran Khan 1995 CLC 1947 ref.

2008 SCR 277 overruled.

Mst. Kousar Nisar v. Raja Muhammad Maqsood 2000 YLR 2519 distinguished.

Haji Ch. Muhammad Anwar for Appellant.

Respondent in person.

Date of hearing: 21st November, 2011.

2013 M L D 514

[Supreme Court (AJ&K)]

Before Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD SIDDIQUE KHAN---Appellant

Versus

Sardar MUHAMMAD AKBAR KHAN and 5 others---Respondents

Civil Appeal No.115 of 2008, decided on 4th September, 2012.

(On appeal from the judgment of the High Court, dated 13-6-2008 in Civil Revision No.4 of 2006).

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

----S. 148---Enlargement of time fixed by court for doing an act---Powers of court---Scope---Court after passing preliminary decree could extend such time as matter would remain sub judice thereafter, but would become functus officio after passing final decree and could not extend such time---Principles.

Section 148, C.P.C. postulates that when any period is fixed or granted by the court for doing of any act prescribed or allowed by the Code, the courts, under its discretion from time to time enlarge such period even though the period originally fixed or granted has expired. The section is applicable in the case where the court has fixed any period for doing an act. The court has power to enlarge and extend the time, if it has seisen over the matter. If the court has passed a preliminary decree and the matter is sub judice before the court, then the court has power to extend time, but when the court has passed a final decree and the matter is not pending before it, the court after passing such final decree becomes functus officio and cannot enlarge the time. The decree normally puts an end to the suit and the power of the court to pass any other order with regard to that particular suit thereafter also comes to an end and the court becomes functus officio. However, in preliminary decree the court doesn't become functus officio but still retains control over actions and has power to make orders including extension of time.

(b) Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)---

----S. 21---Civil Procedure Code (V of 1908), S. 148 & O.XX, R. 14---Pre-emption suit, decree in---Extension of time for depositing purchase money by decree-holder---Scope---Decree would operate automatically and court would have no control over matter, if while passing such decree ordered that suit would stand dismissed in case of failure of decree holder to deposit such money on or before specified date---Court would have control over matter to pass a separate order for dismissal of suit, if while passing final decree ordered that suit would be dismissed in case of such failure of decree holder.

Syed Bashir Hussain Shah and 11 others v. Ghulam Akram and 6 others PLD 1983 SC (AJ&K) 174 rel.

Mst. Zulekha Khatoon v. Ch. Muhammad Yasin and 5 others 2004 SCR 535 distinguished.

(c) Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)---

----S. 21---Civil Procedure Code (V of 1908), S. 148 & O. XX, R. 14---Pre-emption suit, decree in---Decree directed plaintiff to deposit purchase money along with costs of sale deed on or before specified date, otherwise suit would be deemed to have been dismissed---Plaintiff's application for extension of such time filed on such specified/last date---Validity---Such decree was final for being operative automatically---Court after having passed a final decree would cease to have control over suit and become functus officio---Plaintiff's case was not covered by provision of S. 148, C.P.C.---Question of sufficient cause for non-depositing such amount within time fixed would be irrelevant in such case---Such application was dismissed in circumstances.

Syed Bashir Hussain Shah and 11 others v. Ghulam Akram and 6 others PLD 1983 SC (AJ&K) 174; Jehandad Khan v. Muhammad Arif Khan 1991 MLD 2109; Mst. Hanifa Begum v. Hassan Sheikh and 3 others PLD 1983 SC (AJ&K) 163 and Mst. Zulekha Khatoon v. Ch. Muhammad Yasin and 5 others 2004 SCR 535 ref.

Mst. Zulekha Khatoon v. Ch. Muhammad Yasin and 5 others 2004 SCR 535 distinguished.

Tahir Aziz Khan for Appellant.

Sardar Mansoor Pervaiz Khan for Respondents.

Date of hearing: 14th June, 2012.

2013 M L D 749

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Ch. GHALIB HUSSAIN and another---Appellants

Versus

MUHAMMAD SIDDIQUE and others---Respondents

Civil Appeal No.39 of 2011, decided on 28th November, 2012.

(On appeal from the judgment of the High Court dated 26-5-2011 in Application No.10 of 2011).

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

----S.145---Proceedings under S.145 of Cr.P.C.---Maintainability---Such proceedings would not be maintainable, if matter of possession of disputed property was already regulated by civil court.

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

----Ss.107, 145, 150, 151 & 561-A---Attachment of property by Magistrate---Validity---Police report was to the effect that contesting parties were co-sharers of disputed property and were residing therein, and were determined to cause damage to person and property---Magistrate, without determining question as to whether any emergency existed or not, passed attachment order and enlarged arrested persons on bail under Ss.107, 150 & 151, Cr.P.C.---Neither such Police Report spoke about any emergency to attach property nor Magistrate held any inquiry before passing attachment order---Order of attachment of property would be unlawful, if passed without application of mind by Magistrate---Disputed property at time of its attachment by Magistrate was subject of a suit pending between contesting parties in civil court, which had issued interim injunction---Proceedings under S.145, Cr.P.C., would not be maintainable, when matter of possession of disputed property was already regulated by civil court---Continuation of proceedings under S.145, Cr.P.C., would be unnecessary due to pendency of such civil suit---Apprehension of breach of peace would be presumed to have been defused when Magistrate enlarged arrested persons on bail---High Court, quashed impugned order in circumstances.

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

----S.145---Civil Procedure Code (V of 1908), O. XL, R.1---Attachment of property---Powers of Magistrate and civil court---Scope---Powers vested in civil court under O.XL, C.P.C., were much wider and comprehensive than that of Magistrate under S.145, Cr.P.C.

Khalid Rashid Chaudhry for Appellants.

Sardar Ghulam Mustafa for Respondents.

Date of hearing: 22nd November, 2012.

2013 M L D 913

[Supreme Court (AJ&K)]

Before Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

NAZAR KHAN---Appellant

Versus

Mst. HASSAN BEGUM and another---Respondents

Civil Appeal No.74 of 2009, decided on 10th October, 2012.

(On appeal from the judgment and decree of the High Court dated 30-4-2009 in Civil Appeal No.82 of 2007).

(a) Words and phrases---

---"Sale"---Meaning.

The Concise Oxford Dictionary Eight Edition, Edited by R.E. Allen; Black's Law Dictionary Sixth Edition; Electric Supply Corporation Ltd. v. Commissioner of Income Tax AIR 1951 Cal. 151; Tatoba Ganu v. Tarabai AIR 1957 Bom. 280; Mst. Wajida Begum and others v. Mst. Shamim Akhtar and others 2004 CLC 231; Ali Muhammad and others v. Chief Settlement and Rehabilitation Commissioner and others 1984 SCMR 94; Saleem Akhtar v. Ronak Ali PLD 2000 Lah. 385 and Muhammad v. Allah Ditta 1990 CLC 765 ref.

(b) Words and phrases---

----"Gift---Meanings.

The Concise Oxford Dictionary Eight Edition, Edited by R.E. Allen; Black's Law Dictionary Sixth Edition; A Code of Muslim Personal Law" by Dr. Tanzil-ur-Rhaman (First Edition) and Mst. Manzoor Mai v. Abdul Aziz 1992 CLC 235 ref.

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

----Ss.54 & 122---"Sale" and "gift"---Distinction.

Main difference between "sale" and "gift" is that in a case of sale, the consideration and exchange of money is an essential element and condition precedent, whereas in the case of the "gift", there is no such condition precedent. The only condition precedent to a valid "gift" is the transfer of possession, however, the mode and manner of delivery of possession is dependent upon the nature and character of a property keeping in view the overall circumstances of each case.

Muhammad Sadiq and 2 others v. Barkat Ali and 4 others 1990 CLC 533; Muhammad Hussain and others v. Miran Bakhsh and others 1989 SCMR 1064; Ghulam Muhammad and another v. Muhammad Ashraf and 2 others PLD 1981 SC (AJ&K) 118; Muhammad Bashir v. Mirza and others 1987 SCMR 1277; Talib Hussain v. Muhammad Boota and others in (Civil Appeal No.40 of 2006 decided on 28-5-2012) and D.F. Mulla's Principles of Muhammadan Law, Chap. XI, Section 138 ref.

A Code of Muslim Personal Law" by Dr. Tanzil-ur-Rahman (First Edition); Electric Supply Corporation Ltd. v. Commissioner of Income Tax AIR 1951 Cal. 151; Tatoba Ganu v. Tarabai AIR 1957 Bom. 280; Mst. Wajida Begum and others v. Mst. Shamim Akhtar and others 2004 CLC 231; Ali Muhammad and others v. Chief Settlement and Rehabilitation Commissioner and others 1984 SCMR 94; Saleem Akhtar v. Ronak Ali PLD 2000 Lah. 385; Mst. Manzoor Mai v. Abdul Aziz 1992 CLC 235 and Muhammad v. Allah Ditta 1990 CLC 765 rel.

(d) Administration of justice---

----Plaintiff must stand on his own legs and have to advance cogent evidence to prove his case.

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

----Art.71---Hearsay evidence---Not admissible.

(f) Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)----

----S.4---Qanun-e-Shahadat (10 of 1984), Art. 118---Pre-emption suit---Gift deed in favour of vendee alleged by pre-emtpor to be in fact sale---Burden of proof---Plaintiff would be bound to prove such plea/fact---Principles.

When the case of plaintiff is that the document i.e. gift deed was in fact a sale, therefore, the onus of proof lies upon the shoulders of the plaintiff to prove that in fact the gift deed was a sale deed.

In pre-emption case, the plaintiff must prove affirmatively with cogent evidence that the transaction which he wants to pre-empt is a sale and he has a preferential right over the vendee. In absence of any cogent and convincing evidence, the inference cannot be drawn merely on the ground that a person in whose favour the gift deed was executed was enjoying good financial position and the person who has executed the same was only a green-grocer. The gift deed cannot be declared as sale deed merely on the assertion that the transaction garbed in the form of gift deed is infact a sale deed.

To prove a transaction as sale, the pre-requisite condition is a consideration/exchange of money and without fulfilling the said condition, a document cannot be declared as a deed of sale.

Rati Ram and others v. Mam Chand and others AIR 1959 Punjab 117 rel.

While alienating/transferring the property by way of gift, there is no restriction upon the donor, who has un-fettered ü power to gift away property without any consideration. [p. 930] M

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

----S. 100---Second appeal---Concurrent findings of fact by courts below---Interference into such findings by High Court---Scope---High Court normally would not interfere into such findings in absence of mis-reading or non-reading of evidence available on record---Party alleging such misreading would be bound to point out same.

Muhammad Riaz v. Muhammad Riyasat and 8 others 2008 SCR 308; Pir Muhammad Younas Shah and 10 others v. Abdullah and 2 others 1992 CLC 15 and Mst. Manzoor Mai v. Abdul Aziz 1992 CLC 235 rel.

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

----O.VII, R. 1(g)---Relief beyond pleadings---Not grantable.

Misri and 2 others v. Muhammad Sharif and 49 others 1996 MLD 362 and Abdul Malik and others v. Muhamamd Latif and others 1993 SCR 335 rel.

(i) Islamic Law---

----Gift---Donor's power---Scope---Donor has unfettered power to gift away his property without any consideration.

Abdul Majeed Mallick for Appellant.

Ch. Muhammad Taj for Respondents.

Date of hearing: 20th February, 2012.

2013 M L D 978

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Sardar Muhammad Sadiq Khan, J

Mst. ATTIQA BEGUM and 11 others---Appellants

Versus

MUHAMMAD FAYYAZ KHAN through Legal Representatives---Respondent

Civil Appeal No.67 of 2003, decided on 16th October, 2012.

(On appeal from the judgment and decree of the High Court dated 20-11-2002 in Civil Appeal No.90 of 2002)

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

----S.105---Tenant/lessee---Nature---Once a tenant would always be a tenant.

(b) Estoppel---

----Party once having taken a position in a matter strongly before competent court could not change and deviate therefrom by adopting fresh position on same subject-matter.

Abdul Aziz v. Mirza and 3 others PLD 1989 SC (AJ&K) 78; Muhammad Sharif v. Muhammad Manzoor and others 1993 SCR 92 and Malik Khalid Mahmood v. Abdul Majeed and 4 others 1997 MLD 2921 rel.

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

----S.11---Res-judicata---Object.

The object of res judicata is to attach finality to a judicial decision.

The principle of res judicata is based on the principle that there must be an end to the litigation and the parties may not be vexed twice for the same subject matter in the same cause of action. Thus, none of the parties would be allowed to canvass the matter afresh by way of subsequent suit or proceedings between the same parties regarding the same subject matter.

The matter once decided by the competent court of law cannot be re-opened, otherwise it lead to anamolous situation and there would be no end to the litigation.

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

----S.11---Res-judiciata---Raising question of ownership and possession of suit land in subsequent suit after end of first round of litigation between parties---Scope---Such question, if not decided by court in first round of litigation regarding suit land, could be raised subsequently, otherwise same could not be reopened afresh by any party.

Azad Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139 and Abdul Aziz v. Mirza PLD 1989 SC (AJ&K) 78 rel.

Abdul Rashid Abbasi for Appellants.

Muhammad Yaqoob Khan Mughal for Respondents.

Date of hearing: 12th June, 2012.

2013 M L D 1148

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Sardar Muhammad Sadiq Khan, JJ

ABDUL HAFEEZ---Appellant

Versus

SHAMAILA BIBI and 2 others---Respondents

Civil Appeal No.69 of 2012, decided on 24th January, 2013.

(On appeal from the judgment of the Shariat Court dated 12-4-2012 in Family Appeal No.22 of 2010).

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----Ss. 5, Sched. & 14---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(viii)---Suit for dissolution of marriage on ground of cruelty---Cruelty, nature and proof of---Scope---Plea of defendant (husband) was that factor of cruelty as alleged by the plaintiff (wife) was not proved by her, as neither she herself nor any of her witnesses had stated that there was any sign of injury caused by defendant (husband) on the person of the plaintiff (wife)---Validity---Such a plea itself was indicative of the cruel mentality on the part of the husband ---For proof of cruelty, infliction of injury was not the requirement of law, in matrimonial matters---False allegations against wife that she was a woman of bad character was cruelty, which resulted into mental torture and the loss of mutual confidence---Plaintiff in support of the alleged cruelty had produced the witnesses who deposed that the defendant husband had been treating the plaintiff in an ill manner---Courts below, in circumstances, had rightly held that fact of cruelty had been proved.

(b) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----Ss. 5, Sched. & 14---Suit for recovery of dower amount---Marriage between the spouses was solemnized in lieu of dower amounting to Rs.2,50,000---Nikahnama had shown that an amount of dower in shape of ornaments worth Rs.1,13,000 was paid to the wife (plaintiff) while the remaining amount of Rs.1,37,000 was kept deferred and according to the contract of marriage defendant (husband) had to transfer a house comprising two rooms in the name of the plaintiff in lieu of deferred dower amount---Plaintiff in her plaint had alleged that the defendant had not transferred the house in lieu of the remaining dower amount---Witnesses produced by the plaintiff had supported the claim of the plaintiff---Defendant, having failed to rebut the claim of the plaintiff, plaintiff was entitled to recover the deferred amount of dower amounting to Rs.1,37,000.

Syed Imtiaz Hussain Shah and another v. Mst. Razia Begum and 3 others 2011 SCR 233 and Abdul Latif v. Safarish Ali Khan 2004 YLR 1663 ref.

(c) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----Ss. 5, Sched. & 14---Suit for recovery of gold ornaments---Plaintiff (wife) had alleged that when she left the house of defendant (husband), the gold ornaments were snatched by the father of the defendant---Plaintiff having failed to prove that allegation through cogent and reliable evidence, Shariat/Appellate Court was justified to hold that ornaments amounting to Rs.1,13,000 were in the custody of the plaintiff and she could not claim the recovery of the same from the defendant---Shariat Court while granting the decree accordingly, had not acted against law.

(d) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----Ss. 5, Sched. & 14---Suit for recovery of dowry---Plaintiff (wife) along with plaint had produced a list of articles given at the time of marriage to her---Nikahnama also showed that at the time of marriage, a list was produced for the dowry items and an amount of Rs.70,300 was mentioned therein---Plaintiff had proved that the dowry items were still lying with the defendant which fact was proved by plaintiff herself in her own statement as well as the statements of the witnesses---Trial Court as well as Shariat/Appellate Court while passing the decree for recovery of dowry items had appreciated and concluded the matter in its true perspective---Defendant having failed to substantiate his case to interfere with the findings recorded by Shariat Court, same was upheld in its tune and spirit.

Sh. Abdul Aziz, Advocate for Appellant.

Ch. Muhammad Manzoor, Advocate for Respondents.

Date of hearing: 9th January, 2013.

2013 M L D 1204

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, and Sardar Muhammad Sadiq Khan, JJ

QASIM HUSSAIN SHAH and 8 others---Appellants

Versus

AZAD GOVERNMENT through Chief Secretary AJ&K, Muzaffarabad and 7 others---Respondents

Civil Appeal No.32 of 2012, decided on 5th February, 2013.

(On appeal from the Judgment and Decree of the High Court dated 22-3-2010 in Civil Appeal No.49 of 2008).

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 15, 18 & 23---Acquisition of land---Determination of amount of compensation---Reference to Referee Court---Collector Land Acquisition, determined the amount of compensation of acquired land as Rs.600,000 per Kanal, including 15% of compulsory acquisition charges---Dissatisfied from said determination, landowners filed Reference to Referee Court for enhancement of amount of compensation---Referee Court enhanced amount to Rs.7,31,720 per Kanal---Still dissatisfied with the enhancement, landlord filed appeal before High Court for further enhancement of the amount which was dismissed---Validity---Landowners in support of their claim had produced the oral as well as the documentary evidence who had not supported the claim of the landowners---Sale-deed executed from the vicinity of the acquired land, relied upon by the landowners, was executed three years after issuance of the notification in respect of land in question under S.4 of Land Acquisition Act, 1894---Collector Land Acquisition while determining the amount of compensation, would take into consideration the market value of the land at the date of publication of notification---High Court had rightly concurred with the findings of the Referee Court---Enhancement in compensation amount as Rs.7,31,720 per Kanal in addition to 15% compulsory acquisition charges by Referee Court and upheld by High Court, appeared to have been made on the basis of evidence brought on record---Market value of acquired land fixed by Referee Court being just and equitable, judgments of the Referee Court as well as the High Court, needed no interference by the Supreme Court in circumstances.

Sardar Muhammad Azam Khan for Appellants.

Imtiaz Hussain Raja for Respondents.

Date of hearing: 30th January, 2013.

2013 M L D 1435

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD SALEEM KHAN---Petitioner

Versus

Mst. MUQARAB JAN and 2 others---Respondents

Civil Review No.18 of 2011, decided on 10th April, 2012.

(In the matter of review from the judgment of the Supreme Court dated 3-5-2011 in Civil Appeal No.45 of 2008).

Azad Jammu and Kahsmir Supreme Court Rules, 1978---

----O.XLVI, R.1---Civil Procedure Code (V of 1908), O.XLVII, R.1---Review jurisdiction of Supreme Court---Scope---Remedy of review being different from appeal---Re-arguing case in guise of review petition not permissible---Review not grantable on ground of possibility of a different view or dissatisfaction of a party from impugned judgment of the court or interpretation of law by a party in a different manner---Principles.

Said Hussain Khan v. Muhammad Hussain Khan and another PLD 1996 SC (AJ&K) 25; Muhammad Malik v. Yaqoob Javed Batalvi 2004 CLC 882; Mst. Fatima Bi v. Farzand Ali 1992 SCR 236; Muhammad Hafeez Khan v. Mst. Sabiha Khanam PLD 1996 SC (AJ&K) 1; Sardar Muhammad Latif Khan and others v. Ch. Muhammad Latif and another 1999 PLC (C.S.) 69; Zaighum Saleem Khan v. Muhammad Saleem Khan and another 2000 SCR 246; Mst. Farhat Nasreen v. Muhammad Hussain and 2 others PLD 1997 Kar. 204; Zafar Iqbal v. Allotment Committee of Municipal Committee, Mirpur and others 1994 SCR 157 ref.

State through Advocate-General v. Hakam Deen and 15 others PLD 2006 SC (AJK) 28; Malik Zafar Ali Awan and 3 others v. Muhammad Riaz Khan and 7 others 2001 SCR 96(sic.) and Syeda Tasneem Kazmi v. Education Department and 8 others 2011 SCR 155 ref.

Sardar Abdul Hameed Khan for Petitioner.

Ch. M. Mahfooz for Respondent No.1.

Date of hearing: 21st March, 2012.

2013 M L D 1897

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

AYAZ AHMED---Appellant

Versus

SHAMIM AKHTER and 8 others---Respondents

Civil Appeal No.34 of 2009, decided on 22nd January, 2013.

(On appeal from the judgment and decree of the High Court dated 16-2-2008 in Civil Appeal No.168 of 2005).

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

----S. 42---Civil Procedure Code (V of 1908), S. 96 & O. VII, R. 11---Suit for declaration---Plaint rejection of---Suit filed by first defendant against second defendant regarding disputed land dismissed by Civil Judge, but decreed by District Judge in appeal on the basis of compromise between them---Plaintiff's suit for setting aside such compromise decree for being inoperative on his ownership rights in disputed land---Maintainability---No statutory provision existed in C.P.C. authorizing a person to challenge decree/judgment passed by District Judge before Civil Judge (a subordinate court), who was not competent to set aside same---Plaintiff for not being party to such decree could file appeal thereagainst as bar contained in S. 96(3), C.P.C. was operative against a party to a decree, but not against a person not party thereto as plaintiff herein---Plaintiff having remedies of appeal and review against such decree could not challenge same before Civil Judge (a subordinate court)---Plaint in plaintiff's suit for being barred by law and not maintainable was rejected in circumstances.

Masiullah Khan and 3 others v. Sher Afzal Khan 2001 CLC 754 rel.

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

----S. 96(3)---Appeal against consent/compromise decree by a person not party thereto---Scope---Bar contained in S. 96(3), C.P.C. would not operate against such person, rather his right of appeal against such decree would not be barred thereby.

(c) Administration of justice---

----Bench and Bar, duties of---Scope---Bench and Bar for safe administration of justice should discharge their duties vigilantly and strictly in accordance with law.

Sardar M. Azam Khan for Appellant.

Ch. Jehandad Khan for Respondents.

Date of hearing: 22nd January, 2013.