MLD 2014 Judgments - Pakistan Legal Archive

Courts in this Volume

Board Of Revenue Punjab
Federal Shariat Court
Gilgit Baltistan Chief Court
High Court Azad Kashmir
Islamabad
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan
Shariat Court Azad Kashmir
Supreme Court Azad Kashmir

Board Of Revenue Punjab

MLD 2014 BOARD OF REVENUE PUNJAB 1163 #

2014 M L D 1163

[Board of Revenue, Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MAQSOOD AHMAD and another---Appellants

Versus

MANZOOR AHMAD and others---Respondents

R.O.A. No. 80 and R.O.R. 1328 of 2012, decided on 1st January, 2014.

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

----S.10---Punjab Colonies Department, Memorandum No. 868-C, dated 19-2-1952---West Pakistan Land Revenue Act (XVII of 1967), S.164---Mare Breading Scheme---Transfer of lease to grandson---Allottee of land in question filed application to authorities for transfer of lease to his grandson---District Officer (Revenue) instead of transferring the lease, made a fresh allotment in the name of grandson for an initial period of six years---Additional Commissioner (Revenue) in exercise of appellate jurisdiction set aside the order passed by District Officer (Revenue), cancelled the allotment and directed to advertise for fresh allotment---Validity---Order passed by Additional Commissioner (Revenue) was lawful, which did not warrant any major interference---Board of Revenue modified the order of Additional Commissioner (Revenue) to the extent that first of all issue of allotment on the basis of inheritance would be exhausted in terms of Memorandum No. 868-C, dated 19-2-1952, Colonies Department---If no one out of the successors of deceased allottee qualified for lease of land under the scheme, then the land in question would be offered to other persons---Revision was dismissed accordingly.

Khalid Masood Rana for Petitioner (in R.A.O. No.80 of 2012.)

Mian Muhammad Siddique Kamyana for Petitioner (in ROR No.1328 of 2012) and for Respondent No.1 (in R.O.A. No. 80 of 2012).

Federal Shariat Court

MLD 2014 FEDERAL SHARIAT COURT 1712 #

2014 M L D 1712

[Federal Shariat Court]

Before Mrs. Ashraf Jehan, J

2014 M L D 86

[High Court (AJ&K)]

Before Munir Ahmed Chaudhry, J

Syed NISAR HUSSAIN SHAH---Appellant

Versus

Sahibzada ABDUL RASHID and 2 others---Respondents

Civil Appeal No.270 of 2011, decided on 9th August, 2012.

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

----O.IX, R.13---Ex parte decree, setting aside of---Remedies enumerated.

Certain remedies are available against an ex parte decree, which are as under:--

(i) An application under Order IX, Rule 13 of C.P.C.

(ii) A review application under section 114 of C.P.C.

(iii) An appeal under section 96 of C.P.C.

(iv) An application under section 12(2) of C.P.C. on the ground of fraud, misrepresentation or want of jurisdiction.

(v) A revision against the ex parte judgment and decree.

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

----O.IX, R.13---Limitation Act (IX of 1908), Art. 164---Application for setting aside ex parte decree---Limitation, starting point---Ex parte decree passed on 28-2-2008, while such application filed on 27-5-2008---Validity---Limitation of 30 days provided under Art. 164 of Limitation Act, 1908 for filing such application would start running from date of decree---Such application filed after 89 days of passing the decree was hopelessly time barred---Applicant had not alleged fraud, misrepresentation or want of jurisdiction---Such application was dismissed in circumstances.

PLD 1979 SC AJ&K 120; 1997 MLD 2926; 2001 YLR 3237; 2005 SCR 251; 2006 SCR 22 and 2009 SCR 14 ref.

----Knowledge of counsel would be knowledge of client.

Raja Fazal Hussain Rabanni for Appellant.

Ch. Muhammad Riaz Alam for Respondents.

MLD 2014 HIGH COURT AZAD KASHMIR 242 #

2014 M L D 242

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD SABIR and another---Appellants

Versus

AZAD GOVERNMENT OF THE STATE Of JAMMU AND KASHMIR through Chief Secretary and 4 others---Respondents

Civil Appeals Nos.45 of 2008 and 1 of 2009, decided on 2nd May, 2013.

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

----S. 12(2) & O.XXIII, R.3---Application under S. 12(2), C.P.C. for setting aside consent decree---Maintainability---Trial Court passed consent decree against which official defendants' appeal was accepted---Other defendants filed suit against the consent decree which was dismissed by the Trial Court but appeal was accepted and case was remanded---Forest land had been converted into Shamlat Deh and was transferred in the name of plaintiffs---Trial Court had not read the documentary evidence---Suit related to correction of entries of revenue was not within the jurisdiction of civil court---Land owners of the Deh were necessary party in the suit---Findings of the Appellate Court were based on cogent reasons---Questions of fake and fictitious decrees and fraud could be looked into under S. 12(2), C.P.C. but other questions could be resolved in civil suit---Application under S. 12(2), C.P.C. for setting aside an ex parte/consent decree was competent---No case was made out by the plaintiffs for interference in the impugned orders---Appeals were dismissed.

Lt. Col. Sana Ullah Raja v. Muhammad Shafi and 2 others 1997 CLC 1708; Khalid Hussain and 3 others v. Haji Muhammad Rafique and another 2008 SCR 207; Abdur Rasheed and 4 others Muhammad Younas and another 2010 SCR 102; Muhammad Shafi v. Bashir Ahmed and 6 others 2010 SCR 280 and Muhammad Bashir Khan v. Muhammad Sharif and 2 others 2011 SCR 214 rel.

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

----S. 12(2)---Application under S. 12(2), C.P.C. for setting aside ex parte/consent decree---Limitation---Limitation for setting aside an ex parte/consent decree was three years.

Sardar Ghulam Mustafa for Appellants.

A.A.-G. for Respondents Nos. 1 to 3 (in Appeal No.45 of 2008).

Respondents Nos. 12 to 14 (in Appeal No.1 of 2009).

Raja Imtiaz Ahmed for Respondents Nos. 4 and 5 (in Appeal No.45 of 2008) and Respondent No. 15 (in Appeal No. 1 of 2009).

Ch. Manzoor Ahmed for Respondents Nos. 1 to 11 (in Appeal No.1 of 2009).

MLD 2014 HIGH COURT AZAD KASHMIR 711 #

2014 M L D 711

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MENDI KHAN---Petitioner

Versus

INAYAT ALI and 26 others---Respondents

Writ Petition No.32 of 2012, decided on 22nd March, 2013.

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

---O. XIII, Rr. 1 & 2---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Production of additional evidence---Scope---Plaintiff moved application for production of additional evidence which was allowed by the Trial Court subject to payment of costs and on non-payment of costs defendant filed application for rejection of the same which was dismissed concurrently---Parties to the suit should produce all the evidence or list of witnesses at the first hearing of the suit and if a party failed to produce the same at the first hearing then court might allow additional evidence on sufficient cause---Trial Court had committed no illegality while allowing the application---Writ petition was dismissed.

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

----S. 115---Revisional jurisdiction---Scope---Revisional power could be exercised if subordinate court had exercised jurisdiction not vested in it or failed to exercise jurisdiction vested in it or acted in exercise of such jurisdiction illegally or with material irregularity.

---S. 44---"Writ jurisdiction" and powers of court of appeal---Distinction---Scope---High Court under writ jurisdiction had ample powers to make an order directing a person or a local authority to refrain from doing which he was not permitted to do or to do which he was bound to do and same could also be issued to the courts or tribunal---High Court could not exercise such powers which were vested in it as an "appellate court" and there was distinction between the powers vested under S. 44 of the Interim Constitution Act, 1947 in writ jurisdiction as constitutional court and powers vested in it as a court of appeal---High Court while exercising the writ jurisdiction could not sit as an appellate court.

Ghulam Mustafa v. AJ&K Government and 2 others 1996 MLD 355 rel.

Liaquat Ali Khan for Petitioner.

Arshad Majeed Malik for Respondents.

MLD 2014 HIGH COURT AZAD KASHMIR 783 #

2014 M L D 783

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

JAMROZ KHAN and another---Petitioners

Versus

MUHAMMAD AFZAL KHAN and 12 others---Respondents

Revision Petition No.35 of 2012, decided on 19th December, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 42---Suit for declaration and application for grant of temporary injunction---Defendants were in possession of the disputed land which had not been partitioned in accordance with law---Defendants who were co-sharers in the disputed land had submitted an undertaking that they would not claim cost of any improvement if decision was made against them---Court had discretion to inspect the disputed land and no party could claim for inspection of the same as a right---Findings recorded by the courts below were based on sound and cogent reasons---Revision was dismissed in circumstances.

Ch. Muhammad Ilyas for Petitioners.

Raja Javaid Akhtar Khan for Respondents.

MLD 2014 HIGH COURT AZAD KASHMIR 840 #

2014 M L D 840

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

ANWAR BEGUM and 5 others---Appellants

Versus

COLLECTOR LAND ACQUISITION, MANGLA DAM RAISING PROJECT, MIRPUR and another---Respondents

Civil Appeal No.650 of 2009, decided on 27th January, 2014.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 4---Reference to court---Enhancement of compensation---Referee Judge enhanced compensation price to the extent of Rs.2,90,000 Mera Doam and Rs. 1,40,000 for Banjar Qadem, per kanal---Validity---Land was to be acquired at the market rate and Collector had not only to consider the present potential value of the same but also to consider its future possible use---Compensation and not the market value of land to be acquired had to be considered by the Collector Land Acquisition---Potential value of the land to be acquired for public purposes would relate to the capability of such land for its future use for some financial purpose---Purpose for which the land was proposed to be acquired had to be overlooked while determining value of the same---Land proposed to be acquired had no capability of use in the near future for a financial purpose---Collector Land Acquisition was required to ascertain market value of the land to be acquired at the time of notification under S. 4 of Land Acquisition Act, 1894---No error with regard to ascertaining market value of the land to be acquired had been committed by the Collector Land Acquisition---Referee Judge had enhanced the amount of compensation without furnishing any plausible explanation---No one should be penalized for an error committed by the public functionaries---Sale deed and mutation entries would serve as an aid to the prevailing market value---Price of land under the Banjar category had wrongly been assessed---Plaintiffs were entitled to enhanced amount of Rs. 15,08,000 and compulsory acquisition charges of Rs. 2,26,000---Appeal of plaintiffs was accepted whereas that of defendants-WAPDA was dismissed in circumstances.

AIR 1988 SC 1652; PLJ 2013 Lah. 172 and Rehmat Jan and 9 others v. Collector Land Acquisition and others 2009 CLC 741; ref.

PLD 1986 SC 158; PLD 2004 SC 512; PLD 2009 SC 16 and 1999 SCMR 1647 rel.

Raja Muhammad Niaz Khan for Appellants.

Haji Muhammad Afzal for WAPDA.

Ch. Muhammad Jameel, Collector Land Acquisition.

MLD 2014 HIGH COURT AZAD KASHMIR 1003 #

2014 M L D 1003

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

MUHAMMAD RIAZ CHOHAN and 11 others---Petitioners

Versus

Malik ABDUL REHMAN and 7 others---Respondents

Writ Petition No.107 of 2005, decided on 27th January, 2014.

Azad Jammu and Kashmir Rent Restriction Act (XIII of 1986)---

----Ss. 14 & 18---Limitation Act (IX of 1908), S. 5---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Maintainability---Requirements---Interlocutory order---Handing over keys of one part of premises to its owner who was not party to the ejectment proceedings---Appeal---Condonation of delay---Scope---High Court in its constitutional jurisdiction did not sit as a court of appeal against the orders passed by a special tribunal---Petitioner in order to get the order set aside passed by the tribunal or authority had to show that same was passed beyond jurisdiction and was illegal or evidence had been mis-read---Order passed by the Rent Controller did not relate to the resolution of ownership of premises in question rather keys of one part of such building had been handed over to its claimant---Parties had claimed to be owners of said premises in equal shares---Rent Controller had rightly observed that closure of premises for uncertain period would render loss to the property---Final order of Rent Controller could be challenged in appeal before the Appellate Authority and order of handing over keys to the claimant was an interlocutory order---Impugned order was not appealable and findings of Appellate Authority were in accordance with law---Appellate Authority did not condone delay in favour of petitioner and such conclusion could not be questioned through writ petition---When limitation had been prescribed by a special statute then same could not be condoned under S. 5 of Limitation Act, 1908---Authority whose order had been challenged in writ petition was necessary party and without impleading the same writ petition was not maintainable---Petitioner had not impleaded the Rent Controller and Appellate Authority in the present writ petition---Writ petition was dismissed in circumstances.

PLD 1981 Kar. 498; PLD 1963 SC 147; 1981 CLC 797 and NLR 1979 Civil Lah. 538 ref.

PLD 1981 Kar. 498 and PLD 1963 SC 147 distinguished.

Riaz Tabassum for the petitioners.

Raja Muhammad Farooq Minhas for the non-petitioners.

MLD 2014 HIGH COURT AZAD KASHMIR 1104 #

2014 M L D 1104

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

SHAISTA JABEEN---Petitioner

Versus

SAMMIYA MUNIR and 7 others---Respondents

Writ Petition No.59 of 2012, decided on 7th June, 2013.

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

----S.44---Writ petition---Maintainability---Alternate remedy---Admission in medical college on the basis of "state-subject certificate"---Cancellation of bogus "state-subject certificate"---Powers of Azad Jammu and Kashmir Council---Scope---Petitioner challenged the nomination/admission of respondent/candidate against the seat reserved for the refugees for MBBS course---Petitioner had challenged the admission of respondent/candidate on the basis of allegedly fictitious "state-subject certificate"---Azad Jammu and Kashmir Council had got powers to cancel a "state-subject certificate" in accordance with law---Petitioner did not approach the Azad Jammu and Kashmir Council for the cancellation of certificate---Petitioner having an alternate remedy which he did not avail, writ petition was dismissed.

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

----S.44---Writ petition---Maintainability---Disputed facts---Admission in medical college on the basis of "state-subject certificate"---Petitioner had challenged the admission of respondent/candidate on the basis of allegedly fictitious "state-subject certificate"---Validity---Fact that the "state-subject certificate" was fictitious or not could only be proved through evidence---Matter of facts could not be resolved through writ petition---Writ petition was not maintainable in circumstances and was dismissed.

Muhammad Ayub Sabir for Petitioner.

Syed Gohar Abbas for Respondents.

MLD 2014 HIGH COURT AZAD KASHMIR 1155 #

2014 M L D 1155

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MUHAMMAD AZAM and 2 others---Appellants

Versus

MUHAMMAD HUSSAIN and 2 others---Respondents

Civil Appeal No.94 of 2012, decided on 6th July, 2013.

Specific Relief Act (I of 1877)---

----S. 54---Suit for permanent injunction---Contention of plaintiffs was that they were owners in possession of suit land while defendants contended that disputed land was Shamlat Deh which had not been partitioned---Suit was decreed concurrently---Validity---Land in question was Shamlat Deh---Civil court had limited jurisdiction and could not grant permanent injunction against all the shareholders who possessed the land in the estate as well---No specific share could be declared to be in possession of any land owner unless Shamlat Deh land was partitioned by the revenue authorities---Version of plaintiffs was corroborated by the revenue record and they were in possession of the suit land---Defendants could not produce reliable revenue record in their favour---Both the courts below had recorded their findings in accordance with law, however, judgment passed by the Trial Court should be enforceable inter-party and not against other share-holders nor the same should be binding on the revenue authorities---Impugned judgment and decree were modified to such extent---Appeal was dismissed in circumstances.

2009 SCR 158 rel.

Hafiz Fazal-ur-Rehman Dar for Appellants.

Ch. Muhammad Siddique for Respondents.

MLD 2014 HIGH COURT AZAD KASHMIR 1340 #

2014 M L D 1340

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

BADAR ZAMMAN and 10 others---Petitioners

Versus

DISTRICT JUDGE and 2 others---Respondents

Writ Petition No.482 of 2011, decided on 24th January, 2014.

Civil Procedure Code (V of 1908)---

----0. XXIII, R. 1---Specific Relief Act (I of 1877), S. 8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Suit for possession of immovable property---Application for withdrawal of suit with permission to file fresh one---Object and requirements---Scope---Formal defect---Suit could be withdrawn at any time without prior permission of the court however application for withdrawal of the same with permission to, institute fresh one could be filed by the plaintiff---Object of such provision was to prevent the plaintiff from filing a fresh suit after having failed to conduct the first one with care and diligence---Withdrawal of suit with permission to file fresh one could not be claimed as a matter of right---Satisfaction of court with regard to formal defect or other sufficient grounds for withdrawal of suit was mandatory---Suit could be withdrawn on the ground of any formal defect or other sufficient grounds---No formal defect, in the present case, was pointed out by the Appellate Court in the suit to be withdrawn---Application for withdrawal of suit with permission to file fresh one was rightly turned down by the Trial Court---Impugned order passed by the Appellate Court was without lawful authority and same was having no legal effect---Order passed by the Trial Court was restored and application for withdrawal of suit was turned down---Writ petition was accepted in circumstances.

Sardar Sikandar Hayat Khan v. Government of Azad Jammu and Kashmir PLD 1978 AJ&K 25; Sardar Abdul Ghafoor Khan and 3 others v. Federal Land Commission, Islamabad, PLD 1978 Lah. 264; Gul Amin and another v. Haji Muhammad Akram PLD 1981 Pesh. 72; Muhammad Shanf Khan .v. Mirza Fazal Hussain and others 1993 SCR 88 and Abdul Baqi Siddiqui v. Province of Sindh through Chief Secretary, Sindh Karachi and 2 others PLD 2000 SC 58 ref.

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 v. Sardar Muhammad Asim Fakhuruddin Durrani and others 2001 SCMR 148; Salma Khalil and 3 others v. Rashida Siddique and another 2000 CLC 260; Chairman Municipal Committee Muzaffarabad and others v. Habibullah" PLJ 1978 AJ&K 25; Gul Amin and another v. Haji Muhammad Akram PLD 1981 Pesh. 72 and Shah Jehan v. Nawabzada Khalid Khan and others 1998 CLC 1397 rel.

Syed Mushtaq Hussain Gillani for Petitioners.

Nemo for Respondent No.1 and 3.

Respondent No.2 in person.

MLD 2014 HIGH COURT AZAD KASHMIR 1422 #

2014 M L D 1422

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MUHAMMAD ASLAM SHAHEEN---Petitioner

Versus

RENT CONTROLLER/SENIOR CIVIL JUDGE MIRPUR and another---Respondents

Writ Petition No.76 of 2013, decided on 27th August, 2013.

Azad Jammu and Kashmir Rent Restriction Act (XIII of 1986)---

---Ss. 14 & 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ Petition---Default in payment of rent---Landlord filed application for eviction of tenant wherein Rent Controller ordered for payment of outstanding amount of rent---Validity---Rent Controller was not bound to follow the procedure prescribed in the Code of Civil Procedure, 1908 and he could pass order after holding inquiry---High Court while exercising writ jurisdiction could not sit upon the judgments of subordinate courts, local authorities or tribunals as a court of appeal---Orders passed by the courts below could not be set aside by High Court in writ jurisdiction---Tenant had no locus standi to file writ petition and same was dismissed in limine.

PLD 1983 (AJ&K) 204; 1996 MLD 355 and 2011 SCR 59 rel.

Abdul Razzaq Chaudhary for Petitioner.

Babar Ali Khan for Respondents.

MLD 2014 HIGH COURT AZAD KASHMIR 1457 #

2014 M L D 1457

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

WAPDA through Chief Engineer, Mangla Dam Raising Project Mirpur and another---Petitioners

Versus

INHABITANT OF BOHA through Fazal Ellahi and 2 others---Respondents

Civil Appeals Nos. 152 and 163 of 2010, decided on 11th March, 2014.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 4---Acquisition of land---Reference to court---Enhancement of compensation---Referee Judge enhanced compensation price to the extent of Rs. 5,55,000 Hael, Rs. 5,00,000 Mera Awal, Rs.1,50,000 Deegar Ghair Mumkin and Rs. 6,60,000 for Ghair Mumkin Aabadi, per kanal along with 15% compulsory acquisition charges---Validity---Collector Land Acquisition had relied upon sale-deeds executed during one year period before issuance of notification---Location of acquired land had to be considered while ascertaining its market price---No record was available to the effect that acquired land was situated on road side or near populated area---No material was on record that lands sold through said sale-deeds were of similar kind having similar location to the land under reference---Sale price mentioned in said sale-deeds was not received in cash in toto by the vendors before Sub-Registrar at the time of registration---Comparison of price of said lands could not be made with the land under reference---Reference Court had enhanced compensation to some extent only to console the owners of land for their deprivation from their land without their consent---Owners of land did not prove the market value of acquired land as they had claimed through their reference---Authorities could not prove that Reference Court had not enhanced compensation in accordance with the evidence and provisions of law---Findings recorded by the Reference Court ware based on sound and cogent reasons---Appeals were dismissed in circumstances.

Masood-A Sheikh for Appellants.

Ch. Munsaf Dad for the WAPDA.

Ch. Muhammad Jamil for the Collector.

MLD 2014 HIGH COURT AZAD KASHMIR 1557 #

2014 M L D 1557

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD SIDDIQUE and 6 others---Petitioners

Versus

HABIB JAN and 6 others---Respondents

Revision Petition No.56 of 2007, decided on 7th June, 2013.

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

----O. IX, R. 13---Limitation Act (IX of 1908), Art. 164---Application for setting aside ex parte decree---Limitation---Contention of the petitioners was that no issue was framed---Application was dismissed concurrently---Appellate Court had rightly observed that petitioners were in the knowledge of litigation and they were under obligation to be vigilant---Petitioners had not filed application for condonation of delay and ground of sufficient cause did not spell out from the record---Cases should be decided on merit instead of dismissing on technical grounds but negligent prosecution of the case was not approved---Petitioners had to show sufficient cause and mere filing an affidavit could not benefit them---Petitioners were contesting the case and later on absented themselves---Application was beyond limitation i.e. 30 days---Framing of issues and recording of evidence was not necessary---Concurrent findings of the courts below did not warrant interference of the High Court---Application had rightly been rejected by the courts below---Revision was dismissed.

(b) Administration of justice---

----Cases should be decided on merit instead of dismissing on technical grounds.

Aftab Ahmed Awan for Petitioners.

Syed Shahid Bahar for Respondents.

MLD 2014 HIGH COURT AZAD KASHMIR 1680 #

2014 M L D 1680

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

ABDUL AZIZ CHAUDHARY, ADVOCATE---Appellant

Versus

S.D.O. ELECTRICITY DEPARTMENT, SUB-DIVISION MIRPUR and 5 others---Respondents

Civil Appeal No.150 of 2005, decided on 28th March, 2011.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2 & S.100---Excess billing---Excess electricity bill---Suit filed by plaintiff was dismissed and judgment of trial court was upheld by Appellate Court---Concurrent findings of courts below---Plaintiff filed second appeal before High Court---Courts below had not properly appreciated documentary evidence---Statement of the plaintiff was not cross-examined by defendants to the extent of excess billing---Documents exhibited in additional evidence had proved the case of plaintiff/appellant---Validity---Copy of correction of the electricity bill had been placed on file by electricity department---Letter had been issued by electricity department, wherein, it was mentioned that the Committee constituted for settlement of the disputes of electricity bills probed into the case of the appellant with regard to excess bills and had recommended refund/adjustment of the excess amount---Admittedly, department had issued excess bill to the appellant whereas they were not authorized under law to issue such average or excess bill---Present case was fit one of concurrent findings which merited interference by High Court in second appeal---Judgments and orders of Trial Court and Appellate Court were set aside---Suit of the plaintiff was decreed against the defendants.

Syed Lal Hussain Shah v. Lal Muhammad and 5 others 2005 CLC 1076 and Sultan Muhammad v. Haji Khair Muhammad PLD 2008 Quetta 1 ref.

Abdul Aziz Chaudhary Petitioner in person.

Raja Niaz Ahmed Khan for Respondents.

MLD 2014 HIGH COURT AZAD KASHMIR 1742 #

2014 M L D 1742

[High Court (AJ&K)]

Before M. Tabbasum Aftab Alvi, J

SARDAR FAROOQ AHMED TAHIR and 7 others---Petitioners

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 7 others---Respondents

Writ Petition No.2255 of 2012, decided on 12th November, 2013.

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

----S. 44---Civil Procedure Code (V of 1908), O. I, R. 8---Writ petition---Educational Institution---Up-gradation of schools by the Government---Proposal of District Education Officer for withdrawal of up-gradation of said schools---Scope---Contention of petitioners was that proposal of District Education Officer for withdrawal of up-gradation of school was without lawful authority---Validity---Schools were up-graded without creation of posts---No proposal was made by the heads of said institutions for their up-gradation---District Education Officer was unaware about such up-gradation of schools---Neither Divisional Director of Schools nor Secretary Education (School) made recommendations for up-gradation of schools in question---Disputed schools were up-graded without processing files in hasty manner and without receiving proposals and recommendations of Headmasters/Headmistress of concerned schools---Criteria laid down by the Finance Department for up-gradation of schools was not considered while up-grading such schools---Ill-gotten gains could not be protected through writ jurisdiction---Schools were up-graded without adopting due process of law by violating fundamental right of education of students---Petitioners having not invoked writ jurisdiction of High Court with clean hand, equitable relief could not be extended in favour of such a party---Every suit to be instituted as a representative suit must be filed in accordance with the procedure provided in O. I R. 8, C.P.C. which was mandatory and same rule was also applicable to writ petition---Up-gradation of Schools Rules had not been framed---Up-gradation of schools was prerogative of Government which must be exercised in genuine case and not in arbitrary and unguided manners---Land required for up-gradation of schools must be acquired, premises be erected, posts needed to administer an up-graded school be created and concurrence of Finance Department for such purpose must be obtained before up-gradation of schools---Strength of students lesser to the strength of staff of concerned institution should not be considered---Writ petition was dismissed in circumstances.

Custodian of Evacuee Property and 7 others v. Tariq Mahmood Butt 2001 YLR 3139; Mst. Kaniz Fatima v. Muhammad Salim and others 2001 SCMR 1493; Messrs Air Home International v. Government of Punjab and another 2002 CLC 780; Kamran Asghar v. Board of intermediate and Secondary Education, D.G. Khan and others PLD 2001 Lah. 260; Kashmir Mining and Development Works v. Azad Jammu and Kashmir Government and 5 others 1997 CLC 1771; Waqar Alam Saeed v. District Coordination Officer/Chairman and 3 others 2005 YLR 1742 and Tanzeem Bazyabi-E-Haqooq Malkhan-E-Orush Abbottabad through General Secretary v. Deputy Commissioner/Collector, Abbottabad and 8 others 1992 CLC 382 rel.

Raja Gul Majeed Khan for Petitioners.

Sardar M.R. Khan, Additional Advocate General for Respondents Nos.1 to 6.

Asghar Ali Malik for Respondents Nos.7 and 8.

MLD 2014 HIGH COURT AZAD KASHMIR 1788 #

2014 M L D 1788

[High Court (AJ&K)]

Before Munir Ahmed Chaudhry, J

WASIM AFZAL---Petitioner

Versus

EHTESAB BUREAU AZAD KASHMIR through Chief Prosecutor/Deputy Chief Prosecutor Ehtesab Bureau Mirpur---Respondent

Criminal Revision No.34 of 2013, decided on 9th April, 2014.

Azad Jammu and Kashmir Ehtesab Bureau Act (I of 2001)---

----Ss. 11 & 21(6), proviso---Criminal Procedure Code (V of 1898), S.265-K---Penal Code (XLV of 1860), Ss.467, 468 & 471---Forgery of valuable security, will etc., forgery for purpose of harming reputation, using as genuine a forged document---Reference to Ehtesab Bureau---Application filed by petitioner for his acquittal under S.265-K Cr.P.C., was dismissed by Judge Ehtesab Court---Validity---Reference in Ehtesab Court was submitted after 4 years and 4 months from receipt of complaint against the petitioner---Version of Ehtesab Bureau was that delay in filing the reference was caused by the petitioner in the garb of departmental inquiry and other excuses---Delay caused by any act of petitioner/accused, would not be counted towards the period of one year, as provided by the proviso to S.21(6) of Azad Jammu and Kashmir Ehtesab Bureau Act, 2001---Whether the petitioner caused delay in completion of investigation against him or not was yet to be proved which required proof by both the parties---Charge against the petitioner had been framed and the prosecution witnesses had been summoned for recording of statements---Court could not ascertain the fact as to whether reference was filed within time or not without recording of the evidence---Paramount consideration of court to pass order under S.265-K, Cr.P.C., was to ensure that miscarriage of justice was prevented---Evidence must be appreciated as to whether any of accused had committed any offence or not---Order of acquittal of accused under S.265-K, Cr.P.C. in appeal or revision, had not the same sanctity as orders of acquittal on merits---Prosecution should be provided every possible opportunity to prove its case and establish guilt of accused after full-fledged trial---Findings recorded by the Judge Ehtesab Court were based on sound and cogent reasons---No indulgence being required into the findings of the Judge Ehtesab Court, revision petition stood dismissed.

2005 SCMR 1544; PLD 2013 Bal. 138; Muhammad Manzoor Tahir v. Ehtesab Bureau decided by the High Court of AJ&K under Criminal Revision No. 19/2012 on 14-6-2013; and 2005 SCR 1544 ref.

Sheikh Masood Iqbal for Petitioner.

Aurangzeb Chaudhary, Deputy Chief Prosecutor for Respondent.

Islamabad

MLD 2014 ISLAMABAD 41 #

2014 M L D 41

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

SAAD JAN---Petitioner

Versus

F.B.I.S.E. and others---Respondents

Writ Petition No.3318 of 2013, decided on 11th September, 2013.

Federal Board of Intermediate and Secondary Education Act (LXVIII of 1975)---

----Ss.8(j) & 17(f)---Federal Board of Intermediate and Secondary Education Rules for Examination, R.1.19---Constitution of Pakistan, Art.199---Constitution petition---Declaration of top position amongst students of Higher Secondary School Certificate (HSSC) examination---Petitioner and respondent candidate appeared in HSSC examination, whereby the respondent candidate having obtained highest 914 marks out of 1400 was declared as first position holder---Subsequently, the petitioner candidate with a view to improve his marks, availed the facility of re-appearance in examination and got 927 marks out of 1400---Contention of the petitioner was that as he got highest marks and as such he was entitled to be declared as first position holder---Federal Board of Intermediate and Secondary Education rejected the claim of petitioner as according to policy instructions/rules, repeater in examination was not entitled to ranking---Validity---Candidate who obtained highhest marks, while appearing one time and in one go could not be equated with the one, who though obtained highest marks, but through repetition---Impugned decision of the Board, refusing the petitioner to declare as first position holder was justified being in consonance with the spirit of natural justice, doctrine of prudent reason and therefore could not be termed as arbitrary, perverse and unreasonable and the same was based on reasonable distinction---Constitutional petition was dismissed.

Raja Inaam Amin Minhas, Advocate Supreme Court for Petitioner.

Dr. Babar Awan, Advocate Supreme Court for Respondent No.1.

Muhammad Waheed for Respondent No.2.

Malik Ghulam Mustafa Kundwal for Respondent No.3.

Hafiz Muhammad Asif, Assistant Secretary, Federal Board I & SE.

MLD 2014 ISLAMABAD 1220 #

2014 M L D 1220

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

AHSAN-UL-HAQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.168-B of 2014, decided on 12th May, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-e-amd, common intention---Bail, refusal of---Complainant was not the eye-witness of the alleged incident, but prosecution witnesses had implicated accused by assigning role through statements recorded under S.161, Cr.P.C.---Police had secured empty of Kalashnikov, two cartridges fired from repeater, and empty bullets fired from the pistol---Prosecution witnesses had alleged that accused fired along with co-accused with repeater over them, who saved themselves by taking shelter of walls---Such act done on the part of accused was duly supported by memo of recoveries, and signs of firing available on the walls---Role of accused was of the nature to facilitate others for committing murder---Attempt to commit murder, was visibly available against accused---Bail petition of accused, was dismissed, in circumstances.

Allah Bachaya v. State and another PLJ 2011 Cr.C. (Lahore) 119 and Tasaver and another v. The State 2006 PCr.LJ 620 ref.

Muhammad Nazir Abbasi for Petitioner.

Raja Rizwan Abbasi for the Complainant.

Muhammad Jahangir Khan Jadoon, Standing Counsel with Azhar Mahmood, S.I. with record.

MLD 2014 ISLAMABAD 1262 #

2014 M L D 1262

[Islamabad]

Before Riaz Ahmad Khan, J

ASHIQ HUSSAIN SHAH and others---Petitioner

Versus

Mst. SARWAR JAN and others---Respondents

Civil Revision No.2 of 2014, heard on 10th February, 2014.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2-A---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Inheritance---Concurrent findings of fact by two courts below---Plaintiff was daughter of deceased owner of suit land who claimed that on death of her father, suit property was transferred to her mother and after her death property was transferred to her paternal uncle (predecessor-in-interest of defendants), who could not inherit that land as legal heir---Suit was concurrently decreed in favour of plaintiff by Trial Court and Lower Appellate Court---Validity---Paternal uncle of plaintiff was not heir of deceased mother of plaintiff because at that time plaintiff was alive---Under Shia law, property of deceased lady had to be transferred into the name of plaintiff---Mutations of inheritance showed that name of plaintiff was concealed and predecessor-in-interest of defendants had illegally become owner of land in question---Two mutations of inheritance were illegal and were set aside---Plaintiff was actual owner of suit land and being co-sharer, every new entry in revenue record, gave her fresh cause of action, therefore, limitation did not run against her---High Court maintained judgments and decrees passed by two courts below as suit of plaintiff was rightly decreed in her favour---Revision was dismissed in circumstances.

Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501 distinguished.

Muhammad Nazir Jawad for Petitioner.

Ch. Haseeb Muhammad for Respondents Nos. 1 and 2.

Syed Tanvir Haider Shah for Respondents Nos. 3 and 4.

Date of hearing: 10th February, 2014.

MLD 2014 ISLAMABAD 1515 #

2014 M L D 1515

[Islamabad]

Before Noor-ul-Haq N. Qureshi and Athar Minallah, JJ

Messrs SHIFA INTERNATIONAL HOSPITAL LTD. and others---Petitioners

Versus

NADEEM AKHTAR---Respondent

Civil Revision No.189 of 2014, decided on 25th June, 2014.

(a) Interpretation of statutes---

----Fragment of a provision of law---Scope---Subsection cannot be read or interpreted in isolation---Statute has to be read as a whole, harmoniously and each provision to be interpreted within the context of the statute.

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

----Ss.13(1), 23 & 31 (4)---Civil Procedure Code (V of 1908), S.115 & O.VII, R.11---Suit for recovery of damages---Professional negligence---Application of defendant for rejecting plaint was dismissed by High Court---Plea raised by defendant was that claim of professional negligence was initially to be established before Disciplinary Committee of Pakistan Medical and Dental Council, before "any other proceedings"---Validity---Phrase "any other proceedings" related to proceedings for removal of names from the Register maintained under S.23 of Pakistan Medical and Dental Council Ordinance, 1962---Words "other proceedings" appearing in S.31(4) of Pakistan Medical and Dental Council Ordinance, 1962, had reference to and created nexus with proceedings as contemplated in S.13(1) of Pakistan Medical and Dental Council Ordinance, 1962---Extending the phrase to any other proceedings would be reading in the statute something not intended by legislature---Single Judge had correctly interpreted S.31(4) of Pakistan Medical and Dental Council Ordinance, 1962, and no material defect or infirmity was pointed out in the order---Division Bench of High Court declined to interfere in order passed by Single Judge as the same had been passed in accordance with law having correctly interpreted provisions of Pakistan Medical and Dental Council Ordinance, 1962---Revision was dismissed in circumstances.

Secretary of State v. Mask and Co. AIR 1940 Priry Council 105 rel.

----Ordinary court---Scope---Jurisdiction of ordinary courts cannot be abolished/doubted or in any other manner restricted, unless this is done by express, clear and unambiguous words.

Abdul Latif v. The Government of Pakistan and others PLD 1962 SC 384; Karamat Ali v. Muhammad Younis PLD 1963 SC 191; State v. Qaim Ali Shah 1992 SCMR 2192 and Federation of Pakistan v. Ghulam Mustafa Khar PLD 1984 SC 26 rel.

Zaheer Bashir Ansari for Petitioners.

Karachi High Court Sindh

MLD 2014 KARACHI HIGH COURT SINDH 1 #

2014 M L D 1

[Sindh]

Before Salahuddin Panhwar and Syed Muhammad Farooq Shah, JJ

MUHAMMAD IKRAM---Petitioner

Versus

PRINCIPAL AND CHAIRMAN ADMISSION COMMITTEE, SUKKUR and 2 others---Respondents

Constitutional Petition No.D-3441 of 2012, decided on 18th January, 2013.

(a) Constitutions of Pakistan---

----Arts. 25 & 199---Constitutional petition---Educational institution---Refusal for admission in MBBS course---Petitioner qualified in admission test, on merit---Respondent/college scored off petitioner's name from merit list---Candidate secured less percentage than the petitioner was given admission---Validity---Rules, regulations and policy explained in the prospectus was followed---Every institution has a right to make rules, regulations and policy of its own so as to run the same---Such authority and power was always subject to certain limitations and should not come out as a sword of discrimination---Article 25 of the Constitution provided a guarantee of equal protection of law and equal treatment before law---Respondent/college was directed to admit the petitioner in MBBS course---Constitutional petition was allowed.

(b) Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Educational institution---Refusal for admission in MBBS course---Gender-based policy---Male candidate had obtained higher marks/score and better place, but male candidate was replaced by a female who had neither obtained marks/ score equal to such male candidate and even was placed after the name of such candidate in the merit list---Validity---Policy, so framed, gave a right of choice of the female candidates alone which could well be used as manoeuver by female candidates for taking advantage of such choice option at the cost of the rights, interests and claims of the male candidates---Induction of such choice option policy denied the very guarantee of Art.25 of the Constitution---Petitioner was entitled to relief claimed.

Mst. Attiyya Bibi Khan and others v. Federation of Pakistan 2001 SCMR 1161 rel.

----Arts. 25 & 199---Constitutional petition---Educational institution---Classification made for the purpose of admission into institution of higher learning---Gender based policy---Constitution speaks about the person and not gender---Institution/authority, within the spirit of Constitution is required to frame rules, keeping in view such principle else the purpose and object of Art.25 of the Constitution will stand frustrated.

Abdul Farid v. NED University of Engineer 2001 CLC 347 rel.

(d) Constitution of Pakistan---

----Arts. 25, 37(c) & 199---Constitutional petition---Educational institution---Admission in Medical College---Right of Higher Education---Technicalities of procedure---Scope---Method of preparing joint merit list, equipping female candidates of top and bottom to oust the intermediate male candidate, cannot be said to be within spirit and object of Art.25 of the Constitution---Refusal of petitioner, a male candidate, for his admission in MBBS class on sole count for exercise of choice option by female does not seem to be justified; it is legitimate and legal right of every individual to have higher education and it would not be appropriate to deprive the petitioner from his such legitimate and legal right in name of an option choice technique, meant for female candidates alone---Technicalities of procedure should not be used as a sword but as a bridge of facilitation in achieving intended objects of legislation, rules, procedure and policy.

Mst. Attiyya Bibi Khan and others v. Federation of Pakistan 2001 SCMR 1161; Ali Yousuf and another v. Chairman Acadmic Council and Principal DOW Medical College Karachi 2000 SCMR 1222; Mst. Faiqa Ali v. Vice Chancelor, Govt. College 2010 MLD 103; Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961; Secretary, B, & R, Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625 and Abdul Farid v. NED University of Engineer 2001 CLC 347 ref.

Mst. Faiqa Ali v. Vice Chancellor, Govt. College 2010 MLD 103; Zaheeruddin Sheikh and 30 others v. United Bank Ltd., 2002 CLC 147 and Ali Yousuf and another v. Chairman Academic Council and Principal DOW Medical College Karachi 2000 SCMR 1222 distinguished.

Maqbool Ahmed Awan for Petitioner.

Ghulam Ali Samtio for Respondents Nos. 1 and 2.

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

Nemo for Respondent No.3 in absent.

MLD 2014 KARACHI HIGH COURT SINDH 11 #

2014 M L D 11

[Sindh]

Before Naimatullah Phulpoto, J

GHULAM YASEEN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-478 of 2012, decided on 5th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/353---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty---Bail, grant of---Further inquiry---Police encounter---Cross-firing---No injury or damage caused despite cross-firing---Challan submitted in court---Effect---Accused and co-accused persons allegedly fired at a police party with the intention to kill---Police party also allegedly fired in defence---Despite cross-firing with sophisticated weapons, no one received any injury and no damage was caused to the police vehicle---Case had been challaned, therefore, there was no question of tampering with prosecution evidence---Application of S. 324, P.P.C was yet to be determined at trial---Concession of bail could not be refused to accused on basis of mere allegations without sufficient material---Case was one of further inquiry and accused was released on bail accordingly.

Habibullah G. Ghouri for Applicant.

Abdul Rasheed Soomro for the State.

MLD 2014 KARACHI HIGH COURT SINDH 23 #

2014 M L D 23

[Sindh]

Before Aziz-ur-Rehman, J

MUHAMMAD ANWAR---Petitioner

Versus

Mir RAFIQUE AHMED TALPUR and 2 others---Respondents

C.P. No.S-125 of 2012, and M.As. Nos. 7814, 1841 and 1842 of 2012, decided on 8th October, 2013.

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

----Ss. 15, 2(f) & 2(j)---Qanun-e-Shahadat (10 of 1984), Art. 115---Constitution of Pakistan, Art.199---Constitutional petition---Application for ejectment of tenant---Competency---Bona fide personal need of landlord---Denial of relationship of landlord and tenant by the tenant---Contention of tenant was that he had purchased half share from the premises and ejectment petition was filed by only one of the legal heirs of the landlord---Ejectment petition was accepted concurrently---Validity---Rent agreement and deposit of security amount had been admitted by the tenant---Once relationship of landlord and tenant was established then during the existence of tenancy agreement, the tenant would be estopped from questioning the title of landlord---Question of title had no relevancy in rent proceedings---Existence of relationship between landlord and tenant had been proved through evidence---Alleged sale deed could not end the relationship of landlord and tenant---Tenant obtained possession of premises as a tenant and not as a purchaser---Once a tenant was always a tenant---Tenant could not be permitted to approbate, reprobate and raise self-contradictory pleas in violation of the terms and conditions of tenancy agreement---"Landlord" included all those persons who were co-owners of the premises---Any one of the co-owners could file ejectment petition in respect of rented premises jointly owned by them---Title of tenant in the premises could not be adjudicated upon by the Rent Controller in the eviction petition---Rent Controller could only assume jurisdiction when there existed relationship of landlord and tenant---Entitlement of landlord to receive rent could not be disputed after acknowledging the relationship of landlord and tenant---Tenant was bound to firstly hand over vacant possession to the landlord and thereafter contest his title---Tenant had committed wilful default in payment of rent---Concurrent judgments passed by the courts below being based upon well and un-exceptionable reasoning did not warrant interference by the High Court---Constitutional petition was dismissed in circumstances.

Sanobar Sultan and others v. Ubaidullah Khan and others PLD 2009 SC 71; Barkat Masih v. Manzoor Ahmed 2006 SCMR 1068 and Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320 rel.

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

----S. 2 (f)---"Landlord"---Meaning---Definition of landlord not only included owner but also the authorized person entitled to receive rent of rented premises.

Sundardas for Petitioner.

Irfan Ahmed Qureshi for Respondent No.1.

Date of hearing: 6th September, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 52 #

2014 M L D 52

[Sindh]

Before Syed Muhammad Farooq Shah, J

FARAZ ALAM SOLANGI---Applicant

Versus

PROVINCE OF SINDH through Secretary, Home Department and 2 others---Respondents

Criminal Miscellaneous Application No.127 of 2013, decided on 23rd September, 2013.

Criminal Procedure Code (V of 1898)---

----Ss.168, 173 & 561-A---Application for quashment---Investigation report---Class of case---Determination---Magistrate, duty of---Police submitted final report in "A" class due to lack of prosecution evidence but "A" class was not attracted as police had wrongly submitted final report in "A" class---Validity---Magistrate had also erred to accept report in "A" class as due to lack of evidence, it fell in "B" class---While passing administrative order, Magistrate was not supposed to act upon police report, on the contrary, it was duty of Magistrate to give his own finding with regard to sufficient or lack of evidence---Magistrate, while passing executive order had not gone through record of the case with such prudence as his office demanded from him and also failed to apply his conscious mind to the facts of the case and evidence collected by police---Non-speaking order was passed without any reason---Opinion of police was not to be followed blindly in every case and such opinion in view of legal evidence had to be tested in the light of totality of material on record---High Court set aside the order passed by Magistrate and report of police was directed to be treated as accepted under "B" class---Application was allowed in circumstances.

Hussain Bux Saryo for Applicant.

Malik Khushhal for the Complainant.

Date of hearing: 11th September, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 73 #

2014 M L D 73

[Sindh]

Before Munib Akhtar and Mrs. Ashraf Jahan, JJ

MUHAMMAD HUSSAIN through Attorney---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Housing and Town Planning and 2 others---Respondents

Constitutional Petition No.D-1571 of 2012, decided on 12th September, 2013.

Karachi Building and Town Planning Regulations, 2002---

----Regl.25---Sindh Building Control Ordinance (V of 1979), S.19---Constitution of Pakistan, Art. 199---Constitutional petition---Property situated within radius of 3/4 mile (1.2 kilometer) of Mazar of Quaid-e-Azam---Building consisting of basement, ground and three upper floors constructed over such property according to building plan approved in year 1997---Raising of additional 4th floor over such property according to its building plan approved in year 1998 by Karachi Building Control Authority prior to promulgation of Karachi Building and Town Planning Regulations, 2002---Demolition of construction of 4th floor by Authority in absence of height certificate due to restriction on height of building above podium level of 91 feet above Main Sea Level within radius of 3/4 mile (1.2 kilometer) of the Mazar---Validity---Record showed that building plan of basement, ground and three upper floors was approved in the year 1997, while that of 4th floor was approved by Authority in year 1998 much prior to promulgation of Karachi Building and Town Planning Regulations, 2002 and was still intact---Said Regulations became effective from 4-4-2002, thus, such height restriction imposed thereby for being prospective could not be enforced retrospectively---High Court directed Authority not to interfere in lawful construction being raised by petitioner in accordance with approved building and demolish any part thereof.

Haider Imam Rizvi for Petitioner.

Shahid Jamiluddin for Respondents Nos. 2 and 3.

Saifullah, A.A.-G. for the Respondents.

2014 M L D 149

[Sindh]

Before Irfan Saadat Khan, J

SIKANDER SHAH and 5 others---Petitioners

Versus

Dr. NARGIS SHAMSI and 2 others---Respondents

IInd Appeal No.65 of 2013, decided on 20th September, 2013.

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

----S. 1---Suit for compensation---Death of plaintiff's wife alleged to be caused due to negligence of Administration of Hospital and their two doctors during her treatment---Compromise between plaintiff and two doctors during trial---Decree against Administration of Hospital passed by Trial Court set aside by First Appellate Court---Validity---Plaintiff had sent legal notice and made complaints against Administration of Hospital and its two doctors---Main grievance of plaintiff was against said doctors, but he had also alleged Administration of Hospital to be responsible for negligence causing death of his wife---Administration of Hospital in various inquiry reports had been found responsible for such negligence for lacking enough staff to look after pre and post-operation care of deceased---Record showed that deceased after operation had been shifted to Ward instead of ICU and Hospital had not provided pre and post-operation care to deceased and had failed to maintain normal standards of a reasonable skilled and a well-equipped Hospital---Administration of Hospital and their doctors were equally responsible for such negligence, and Administration of Hospital could not be exonerated from what had happened in Hospital---Administration of Hospital could be exonerated from payment of decreed compensation only by plaintiff, but not court---High Court accepted second appeal, set aside impugned judgment/decree and restored that passed by Trial Court.

Punjab Road Transport Board v. Muhammad Sadiq and another 1987 CLC 933; Karachi Transport Corporation through Principal Officer/Secretary v. Mst. Qaisar Jehan and another 1995 CLC 196 and Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another 1993 SCMR 848 ref.

(b) Tort---

----Negligence---Medical malpractice---Duties of Hospital and their doctors/staff owed to patients and breach thereof---Scope.

The doctors examining a patient are primarily responsible to look-after the patients, but the administration of hospital also plays an important role in the care of a patient, as it is the hospital where the patients are given the treatment and the administrator of hospital is primarily responsible to make necessary arrangements like ICU availability of oxygen etc., for those patients. Simply shifting the burden upon the doctors cannot absolve the hospital from their responsibilities towards the patients.

The Hospital is vicariously" liable for negligence of its staff also. Hospital may also be negligent where they have failed to adequately supervise or train their doctors, nurses or where hygiene standard have not been maintained properly.

The administration of the hospital is also responsible for the negligence of the doctors/staff/employees.

Neither a doctor/surgeon can simply shift his responsibility upon the administration in case of happening of any event nor can the hospital lay off its hands by throwing away the responsibility upon the doctors.

Halsbury's Laws of England, Fourth Edition, Volume 30 in paras, 34 and 40 and Master Abdul Basit and another v. Dr. Saeeda Anwar and another PLD 2011 Kar. 117 rel.

----S.1---Suit for compensation---Death of deceased alleged to be caused due to negligence of doctors in hospital---Effect---Court could grant compensation to plaintiff after coming to conclusion that alleged negligence had taken place.

Sikandar Shah for Appellants.

Ms. Mahmooda Suleman for Respondent No.3.

Date of hearing: 10th September, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 158 #

2014 M L D 158

[Sindh]

Before Aftab Ahmed Gorar, J

ADNAN ALI CHOHAN---Applicant

Versus

PROJECT DIRECTOR, LINES AREA RE-DEVELOPMENT PROJECT, C.D.G.K. through Representatives---Respondent

Civil Revision Application No. 74 of 2011, decided on 15th April, 2013.

Specific Relief Act (I of 1877)---

---S. 8---Civil Procedure Code (V of 1908), O.I, R.1---Suit for possession of immovable property---Non-joinder of necessary parties---Contention of plaintiff was that Original allottees had transferred the plots to him---Suit was decreed by the Trial Court but the same was dismissed by the Appellate Court---Validity---Plaintiff had allegedly purchased the plots in question from the original allottees and it was his duty to have asked them to deliver the possession of the said plots---Plaintiff had not filed any document showing the terms and conditions of the sale and purchase nor he had filed any document which created any liability upon the department---Possession of the plots in question was handed over to the original allottees and defendant/department had fulfilled his obligation and did not owe any responsibility/liability to the transferee---Responsibility of the original allottees was to deliver possession to the plaintiff but plaintiff could not demand the same from the department---Plaintiff had failed to produce any document to show that the original allottees had given undertaking to deliver possession of the plots in question to him---Documentary evidence vis-à-vis the oral evidence would be preferred---Assertions of the plaintiff were merely words while department had produced documentary evidence---Plaintiff had not impleaded the original allottees whose presence was important and necessary and suit filed by the plaintiff seemed to be hit for non-joinder of necessary parties---Revision was dismissed.

Muhammad Yousuf Chohan for Applicant.

S. Ali Bin Adam Jafri for Respondent.

Date of hearing: 1st April, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 164 #

2014 M L D 164

[Sindh]

Before Sadiq Hussain Bhatti, J

Messrs AL-RAUF BUILDERS through Sale Proprietor and another---Appellants

Versus

Pir MUHAMMAD ISHAQUE SARHANDI---Respondent

2nd Appeal No.12 of 2012, decided on 6th September, 2013.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Cancellation of allotment of flat---Plaintiff got a flat booked with defendant company and according to terms of agreement certain amount was to be paid in cash by plaintiff while remaining amount was the loan obtained by defendant company and to be paid by plaintiff in instalments---Defendant company cancelled the allotment of flat on the plea that plaintiff failed to pay instalments in time---Contention of plaintiff was that loan was to be arranged by defendant company, which it failed to arrange---Both the courts below concurrently decreed suit in favour of plaintiff---Validity---Loan of Rs.300,000 was to be obtained by defendant company and the same was to be paid by plaintiff in 30 instalments---If defendant company failed to arrange such loan, it was not the fault of plaintiff and defendant company could not demand the same from plaintiff within three months---Defendant company was not able to arrange for loan and could not derive benefit from its own fault / failure---No clause existed in agreement between parties catering for penalty in case of late payment and there was no late payment on the part of plaintiff, as he had paid agreed amounts on time---Concurrent findings of courts below could be reversed in case non-reading or misreading of evidence was shown---Defendant company failed to show that judgments of two courts below were a result of non-reading or misreading of evidence---No error in procedure was adopted by courts below nor any question of law had arisen for determination by High Court---Second appeal was dismissed in circumstances.

Muhammad Zubair v. Mansoor Ali and others 2008 CLC 921 ref.

Zafar Iqbal Dutt for Appellants.

Abdul Rehman for Respondent.

Date of hearing 21st August, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 174 #

2014 M L D 174

[Sindh]

Before Muhammad Ali Mazhar and Farooq Ali Channa, JJ

MUHAMMAD HUSSAIN and another---Petitioners

Versus

PROVINCE OF SINDH through Home Secretary and 4 others---Respondents

Constitutional Petition No.D-1505 of 2013, decided on 10th September, 2013.

(a) Calendar of Board of Secondary Education, Karachi (Examination Rules and Procedures)---

----Vol.III, Ch.-XI, R. 2(iv)---Constitution of Pakistan, Art. 199---Constitutional petition by two students---Secondary School Certificate Examination Part-I & II---Deposit of admission forms for such Examination and its fees by students in their School for its onward submission to Board's office---Misappropriation of amount of fee and non-filing of such forms by employee of School deputed to submit such forms and fee in Board's office---Validity---List produced by petitioners showed that 79 students were affected---Principal of School had agreed that if such students were allowed to participate in examination, then he would pay their entire examination fee from School Funds---Board or its Chairman in anticipation of Board's approval had powers under R. 2(iv) of Calendar of the Board of Secondary Education, Karachi, Volume-III (Examination Rules and Procedures) to meet any exigency as a special circumstance and accommodate an untoward situation relating to force majeure---Fees amount paid by such students with hope and assurance to appear in examination had been misappropriated, thus, they were not at fault and could not be penalized, rather they were entitled to be allowed to appear in examination in larger public interest and in order to save one year of their academic career---Loss of one year of academic career of such students could not stand compensated by prosecution or conviction of such employee of School---Discretionary powers given to Board under R. 2(iv) of the Calendar must be exercised fairly, justly and to advance cause of justice---Order allowing petitioners to appear in examination would not be treated as precedent in future---Constitutional petition had been filed by only two students, but directions passed therein by High Court would be treated as directions in rem benefitting equally all such 79 students, if they wanted to appear in examination---High Court directed Board to accept examination fees and forms from all such students including late fee, if any, and allow them to appear in examination.

(b) Administration of justice---

----Function of court being to do substantial justice between parties keeping aside intricacies and/or technicalities.

----Non-exercise of discretionary powers by an authority in a legitimate case---Legal effect stated.

Non-exercise of discretionary powers in legitimate cases, which require expediency in favour of subject or withholding of such discretionary powers, without any rhyme or reason will tantamount to repudiation and negation of powers conferred upon an authority to meet a particular situation, which was beyond the control of party seeking relief through the discretionary powers.

1993 PLC 673 rel.

Javed Iqbal Barqi for Petitioners.

Syed Masroor Ahmed Alvi for Respondent No.2.

Manzoor Ali for Respondent No.3.

Muhammad Waseem Sammo, A.A.-G. for the State

MLD 2014 KARACHI HIGH COURT SINDH 192 #

2014 M L D 192

[Sindh]

Before Muhammad Tasnim and Aziz-ur-Rehman, JJ

MUHAMMAD HUSSAIN---Appellant

Versus

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN, HYDERABAD and another---Respondents

Ist Appeal No.31 of 2011, decided on 19th December, 2012.

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

----O.XXI, Rr. 54, 66, 67, 68, 89 & O.XXIII, R.1---Limitation Act (IX of 1908), Arts. 166 & 181---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 19--- Execution proceedings---Public auction of mortgaged property---Judgment-debtor's application under O.XXI, R.89, C.P.C. for setting aside auction sale---Auction-purchaser's plea was that such application filed beyond 30 days was time barred by virtue of Art. 166 of Limitation Act, 1908---Non-confirmation of auction sale by Banking Court on account of compromise made between Bank and borrower---Validity---Duty of Executing Court under O.XXI, R.66, C.P.C. was to cause proclamation of intended auction and such proclamation was required to be drawn up after notice to decree holder and judgment debtor stating therein time and place of auction and accurate description of property to be auctioned---Neither judgment debtor had been served with requisite notice in terms of O.XXI, R.66, C.P.C. nor reserve price and venue of auction had been mentioned in sale proclamation---Valuation report had been obtained in violation of direction of Banking Court much after date of auction---Impugned auction had taken place before expiry of 30 days---Auction purchaser had deposited 25% of bid money after conclusion of auction proceedings, but not immediately in compliance of terms and conditions of auction---Impugned auction was collusive, unfair and in violation of mandatory provisions of O.XXI, C.P.C.---Article 181 of Limitation Act, 1908 and not Art. 166 thereof would apply to the present case---Executing Court had neither confirmed nor had accepted auction, thus, no vested right to confirmation of auction had accrued in favour of auction purchaser---In absence of specific provision of law pertaining to compromise of execution, court had inherent powers to pass order on compromise application filed in execution proceedings---High Court dismissed appeal filed by auction purchaser.

Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan and others PLD 1987 SC 512; Muhammad Din v. Ellahi Noor and 4 others PLD 1975 Lah. 1393; U.B.L. v. Heryana Asbestos Cement Industries (Ltd.) and 20 others 2006 CLC 1272; Muhammad Suleman v. Allied Bank of Pakistan Ltd. and 11 others 1987 CLC 1338; Muhammad Attique v. Jami Limited and others PLD 2010 SC 993; Messrs National Electric Company of Pakistan v. Allied Bank of Pakistan Limited and 2 others 1996 CLC 192; Noor Ellahi v. Trading Corporation of Pakistan (Pvt.) Ltd. and 4 others 2007 CLC 1409 and Noor Badshah v. House Building Finance Corporation through District Manager, HBFC, Faisalabad and another PLD 2006 Lah. 771 ref.

Muhammad Attique v. Jamil Ahmad and others PLD 2010 SC 993 rel.

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

----O. XXI, Rr. 89 & 90---Application for setting aside of auction sale---Scope---Such application could be filed either under R. 89 or R.90 of O. XXI, C.P.C., but both such applications had different connotations and parameters---Question of deposit of an amount of 20% or not exceeding 20% of sum realized in sale or otherwise of furnishing security would not arise in absence of application under O.XXI, R.90, C.P.C.---Person upon filing of application under O.XXI, R.90, C.P.C. would become disentitled to make application under R.89 thereof---Principles.

Nadia Malik v. Makki Chemical Industries Pvt. Ltd. and others 2011 SCMR 1675 rel.

----S. 151, O.XXI, R.11 & O.XXIII, R.1---Execution proceedings, compromise in---Scope---In absence of specific provision of law pertaining to compromise of execution, court had inherent powers to pass order on compromise application filed in execution proceedings.

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

----S. 19(2)---Execution of decree, three different modes for---Effect---Once the mode for execution of decree was chosen, then the same could not be changed by Executing Court---Principles.

The word "or" used twice in subsection (2) of section 19 of Financial Institutions (Recovery of Finances) Ordinance 2001 has to be read disjunctively which classify three modes for execution of the decree. Once the mode for execution of the decree is chosen, then same cannot be switched over to another made by the Executing Court much less unilaterally.

Aijaz Ali Hakro for Appellant.

Ms. Nasreen Qadri along with Aftab Amin, AVP of I.D.B.P. and Shabir Ahmed OG-I.

Pirbhulal Goklani for Respondent No.2.

Muhammad Azeem Panhwar, State Counsel.

Dates of hearing: 22nd November and 4th December, 2012.

MLD 2014 KARACHI HIGH COURT SINDH 221 #

2014 M L D 221

[Sindh]

Before Aqeel Ahmed Abbasi and Habib-ur-Rahman Shaikh, JJ

ATTA MUHAMMAD CHANIHO---Petitioner

Versus

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

Constitutional Petition No.D-255 of 2013, decided on 25th April, 2013.

Sindh Public Procurement Rules, 2010---

----R.17---Constitution of Pakistan, Art. 199---Constitutional petition---Notice inviting tenders for development works and services issued by Municipal Administrator---Petitioner alleged such tenders to be violative of Public Procurement Laws and the Constitution---Validity---Record showed that impugned tenders had been advertised in six (6) newspapers in English, Urdu and Sindhi languages having wide circulation in locality---Election Commission of Pakistan had imposed ban on diversion of funds already allocated to various development projects---Record showed that authority had not diverted any funds nor diversion of funds was required for proposed schemes of impugned tenders---Sindh Peoples Development Committee had already accorded approval for proposed schemes---Funds required for proposed schemes of impugned tenders were available with Municipal Administration---Municipal Administration had complied with codal formalities before issuing impugned tenders---Any development civil work in a Tehsil or District could not be stopped at whims or desire of an individual in absence of any illegality or malice on part of Authority---Inviting tenders for construction of roads and services in a Taluka would be domain of concerned Municipal Administration---Petitioner was previous Nazim of Union Council concerned, which was not constituency of ruling party---Petitioner was not an aggrieved person and he had approached High Court with unclean hands---Petitioner had not filed any affidavit or re-joinder in rebuttal of record produced by authority---High Court dismissed constitutional petition in circumstances.

Rafiq Kalwar for Petitioner.

Mamoon Choudhry for Respondents.

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

Date of hearing: 25th April, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 254 #

2014 M L D 254

[Sindh]

Before Nisar Muhammad Shaikh, J

Syed ASAD RAZA NAQVI---Petitioner

Versus

Mst. SAIMA FATIMA and another---Respondents

Constitutional Petition No.S-847 of 2012, decided on 17th December, 2012.

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

----S.7---Constitution of Pakistan, Art. 199---Constitutional petition---Divorce, pronouncement---Fiqah Jafria---Parties were husband and wife inter se and dispute between them was regarding pronouncing of divorce---Grievance of husband was that divorce was not properly pronounced and executed hence was invalid---Validity---In divorce deed there was no mention that husband or authorized person recited Seegha or pronounced Talaq, orally in a set form of Arabic words to wife by her name---It was mentioned in certificate of Talaqnama that it was decided to issue Seegha of Talaq on behalf of husband but it was not mentioned therein that such decision was acted upon and followed by pronouncement of oral Talaq or recitation of Seegha/Khutba Talaq---Such certificate of Talaqnama did not say about pronouncement of Talaq in prescribed form in presence of witnesses, though names of two witnesses were mentioned therein with their signatures like attesting witnesses of Talaqnama but for its pronouncement, their evidence was not recorded in court---Though Talaqnama was followed by divorce deed but it also did not fulfil requirements of earlier document---Divorce pronounced by husband to wife was not valid Talaq or valid repudiation in accordance with requirement of Fiqah Jafria and, therefore, the same was not effective under Shia doctrine of Talaq---As valid Talaq was precondition for exercise of jurisdiction under S.7(1) of Mulsim Family Laws Ordinance, 1961, or initiating proceedings under it and as Talaq in question was invalid, therefore, wife was not liable to act upon such invalid Talaq and as such any proceedings, if initiated, on the basis of invalid Talaq would be illegal and without lawful authority and of no binding effect---Husband was at liberty to pronounce fresh Talaq to his wife keeping in view the requirements prescribed under Shia law and thereafter, wife would act in accordance with without any delay---Petition was disposed of accordingly.

1998 MLD 85; 2004 YLR 111; PLD 2005 Kar. 358; 2006 YLR 1753 and 1992 SCMR 1273 ref.

PLD 1963 SC 51; 1984 CLC 1961; PLD 1988 Kar. 169 and PLD 1993 SC 901 rel.

Molvi Iqbal Haider for Petitioner.

Muhammad Rafi for Respondent No.1.

Chairman/Secretary, Union Council No.8, Gulberg Town for Respondent No.2.

Date of hearing: 31st October, 2012.

MLD 2014 KARACHI HIGH COURT SINDH 276 #

2014 M L D 276

[Sindh]

Before Ghulam Sarwar Korai and Nadeem Akhtar, JJ

MUHAMMAD SIDDIQ SADDIDY---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU OF PAKISTAN (NAB) through Director General---Respondent

Constitutional Petition No.D-2120 of 2013, decided on 23rd August, 2013.

National Accountability Ordinance (XVIII of 1999)---

----S.9(a) & (b)---Constitution of Pakistan, Art.199---Constitutional petition---Bail, grant of---Further inquiry, case of---Petitioner was not named in F.I.R. and his name was not mentioned anywhere in complaint filed by Security and Exchange Commission of Pakistan or in Supplementary Reference filed by NAB---Though Supplementary Reference was filed by NAB after submission of Supplementary Report showing petitioner's name first time but Supplementary Reference was silent with regard to role of petitioner in alleged offence---NAB had stated in Supplementary Reference that other co-accused mentioned therein had defrauded the clients---Effect---Matter required further inquiry in order to determine the guilt or innocence of petitioner---Bail was allowed in circumstances.

2013 CLD 1273 ref.

M. Siddiq Mirza for Petitioner.

Muhammad Altaf, Senior Prosecutor, NAB for Respondent.

Date of hearing: 24th July, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 288 #

2014 M L D 288

[Sindh]

Before Abdul Maalik Gaddi, J

MOHAN---Petitioner

Versus

Mrs. MUHAMMAD YOUNUS BHOJAN and 2 others---Respondents

Constitutional Petition No.S-1222 of 2012, decided on 24th October, 2013.

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

----S.15---Constitution of Pakistan, Arts.23 & 199---Constitutional petition---Ejectment of tenant---Bona fide personal need of landlord---Ejectment application was concurrently allowed by Rent Controller and Lower Appellate Court in favour of landlord on the plea of default in monthly rent and bona fide personal need of landlord for his son---Validity---No circumstance was available on record to show that desire of landlord to use his own property for his son was tainted with malice or any evil design---Statement of landlord's son on oath was not seriously challenged and same being consistent with case pleaded by landlord must have been accepted on its face value and giving due weight---Conclusion drawn by Rent Controller to the effect that landlord's need was bona fide, could not be dislodged in absence of any strong evidence to rebut presumption of truth in statement of landlord---Landlord had absolute right to acquire and deal with property in the manner best suited to him and tenant had no right to disentitle landlord of his valuable rights to acquire, deal and possess his property which right was guaranteed by Art. 23 of the Constitution---Finding of Rent Controller on the point of personal need of landlord's son was in accordance with law---Tenant failed to point out any illegality or infirmity in the judgments/orders---High Court declined to interfere in eviction orders passed by two courts below---Petition was dismissed in circumstances.

Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197 and Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613 ref.

Javed Ali Khan for Petitioner.

Mrs. Farkhunda Jabeen for Respondent No.1.

Date of hearing: 22nd October, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 297 #

2014 M L D 297

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD ASHRAF---Petitioner

Versus

PHILIP JAVED and 2 others---Respondents

Constitutional Petition No.S-661 of 2010, decided on 16th August, 2013.

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

----Ss. 15 & 21---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Concurrent findings recorded by the courts below, particularly in cases under Rent Laws could not be disturbed by the High Court in its constitutional jurisdiction, except in exceptional circumstances where the finding so recorded by the courts was perverse or the impugned order suffered from some jurisdictional error and the decision was void ab initio---Constitutional jurisdiction in such matters could not be invoked as a routine or be used as alternate of an appeal or revision, which remedy otherwise had not been provided by law.

Raja Abdul Rauf v. Haibi Ahmed and others PLD 2005 Kar. 416 rel.

M. Aziz Khan, for Petitioner.

Farid Hussain, for Respondent No.1.

Date of hearing: 16th August, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 316 #

2014 M L D 316

[Sindh]

Before Irfan Saadat Khan and Naimatullah Phulpoto, JJ

MUHAMMAD AQEEL alias TAPLA---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.78 of 2013, decided on 13th February, 2013.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 365, 511 & 34---Qanun-e-Shahadat (10 of 1984), Art. 38---Attempt to commit qatl-e-amd, kidnapping or abducting with intent secretly and wrongfully to confine person, common intention---Bail, grant of---Further inquiry---Case of no direct evidence---Implication of accused on basis of confession of co-accused before the police---Accused was implicated on the basis of belated supplementary statement of complainant---Effect---Implication of accused in the case on basis of admission made by co-accused during investigation and on the basis of further statement made by complainant after considerable time of lodging the F.I.R.---Article 38 of Qanun-e-Shahadat, 1984 provided that no confession made to a police officer should be proved as against a person accused of any offence---Prima facie there was no direct evidence against accused regarding commission of offence---Evidentiary value of further (supplementary) statement made by complainant was yet to be determined at trial---Case against accused required further inquiry---Accused was extended bail accordingly.

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

----Art. 38---Confession made by accused against co-accused before the police---Admissibility---Such confession made by accused against co-accused was inadmissible (in evidence) in view of Art. 38 of Qanun-e-Shahadat, 1984.

Abdul Qadir Motiwala v. The State 2000 PCr.LJ 1734 rel.

Muhammad Ali Waris Lari for Applicant.

Saleem Akhtar Buriro, Additional Prosecutor-General for the State.

MLD 2014 KARACHI HIGH COURT SINDH 328 #

2014 M L D 328

[Sindh]

Before Farooq Ali Channa, J

MOULA BUX---Applicant

Versus

ISLAMUDDIN---Respondent

Civil Revision No.S-156 of 2010, heard on 19th November, 2012.

(a) Evidence---

----Interested witness---Principle---No bar existed on becoming the interested person as attesting witness, however his evidence must be considered with deep care and caution and must be corroborated by independent witnesses.

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

----Ss.12 & 21(c)---Civil Procedure Code (V of 1908), S.115---Suit for specific performance of agreement to sell---Agreement not specifically enforceable---Description of suit land, non-mentioning of---Revisional jurisdiction---Scope---Suit filed by plaintiff was decreed by Trial Court in his favour but Lower Appellate Court dismissed the same---Validity---In absence of survey numbers identifying agricultural land under sale, certainty in sale agreement and failure on the part of plaintiff to examine proper witnesses to identify survey numbers mentioned in plaint to be the same property sold to plaintiff under sale agreement, lower Appellate Court had correctly allowed appeal based upon cogent reasons passed after considering evidence and circumstances---High Court could exercise limited jurisdiction in revision under S. 115 C.P.C., which was meant primarily for correcting errors made by subordinate courts in exercise of their jurisdiction and not those which were made in their discretion unless discretion was found to have been exercised fancifully or arbitrarily---As such conditions were lacking in the matter and judgment passed by Lower Appellate Court did not suffer from infirmity or misreading of evidence, calling for interference of High Court in its revisional jurisdiction---Revision was dismissed in circumstances.

United Bank of India Ltd. v. Aziranessa Bewa alias Azizannessa PLD 1965 SC 274; Mst Sakina v. S.S.P and others 2003 YLR 673; Muhammad Shafi and others v. Sultan 2007 SCMR 1602 and Bashir Dawood v. Haji Suleman Goawala and Sons Ltd. 2010 CLC 191 distinguished.

Mst. Saeeda Akhtar and others v. Lal Din and others PLD 1981 Lah. 623 and Mian Muhammad Saleem and others v. Mst. Hameeda Begum and others 1987 SCMR 624 rel.

Mushtaque Ahmed Shahani for Applicant.

Mian Abdul Salam Arain for Respondent.

Date of hearing: 19th November, 2012.

MLD 2014 KARACHI HIGH COURT SINDH 342 #

2014 M L D 342

[Sindh]

Before Syed Hasan Azhar Rizvi, J

Syed ADNAN ASHRAF---Plaintiff

Versus

Syed AZHAR-UD-DIN through Attorney---Defendant

Civil Suit No.831 of 2005, decided on 13th November, 2012.

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

----Arts.75 & 76---Document, proof of---Procedure---If validity of existence of document is disputed and original is not produced, certified copy is not admissible in evidence without proving non-availability of original and taking permission of court.

(b) Power of attorney---

----Object, purpose and scope---Power of attorney is written authorization by virtue of which principal assigns to a person as his agent and confers upon him the authority to perform specified acts on his behalf---Primary purpose of instrument of such nature is to assign authority of principal to another person as his agent.

---Ss.2(e) & 10---Agreement to sell property---Necessary ingredients---Four components to form an agreement to sell a property:- (i) identification of seller and purchaser, (ii) sale consideration amount, (iii) identification of property to be sold and (iv) parties to agreement to sell property at consensus ad idem.

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

----Ss.12 & 54---Qanun-e-Shahadat (10 of 1984), Art.79---Suit for specific performance of agreement to sell---Execution of agreement---Proof---Plaintiff claimed that defendant who was owner of suit property entered into agreement to sell and had received part payment against receipt, through his brother, in whose favour he had executed irrevocable general power of attorney---Plaintiff did not implead the attorney as defendant while the owner of property declined to have executed any agreement to sell as well as receipt of part payment---Validity---Both parties i.e. plaintiff and general attorney of defendant, were to contemplate sale agreement, after issuance of receipt dated 19-4-2004, which had not been admittedly executed between the parties---Relief in suit for specific performance was discretionary relief and could only be granted to party which had approached court with clean hands and had placed material on record to show bona fides on his part to perform contract---Plaintiff failed to establish that irrevocable general power of attorney was executed by defendant in favour of his brother, so also the defendant denied issuance of any receipt in favour of plaintiff---Suit was dismissed in circumstances.

Ahmed Zaman Khan v. Ch. Nazeer Ahmed 2005 MLD 190; Abdul Ghafoor v. Muhammad Rafique 2006 CLC 1796; Abdul Ghaffar v. Faisalabad Development Authority 2006 CLC 1802; Raja Yusuf v. Sharifan Bibi 2006 MLD 1829 and Imam Din v. Bashir Ahmed PLD 2005 SC 418 ref.

Abdullah Balouch for Plaintiff.

Wafi Khan for Defendant.

Date of hearing: 28th May, 2012.

MLD 2014 KARACHI HIGH COURT SINDH 356 #

2014 M L D 356

[Sindh]

Before Irfan Saadat Khan, J

CDGK through Administrator and 3 others---Applicants

Versus

Mst. SHAKEELA BEGUM through Legal Heris---Respondents

Civil Revision Application No.120 of 2012, decided on 10th June, 2013.

Suit for damages---

---Award of damages---Conditions---Demolition of house---Compensation---Quantum of compensation---Determination---Rule of thumb---Applicability---Development Authority/defendant demolished plaintiff's house---Plaintiff challenged demolition of house before High Court, whereby the High Court declared the demolition illegal and directed to approach competent court of law for adequate compensation---Suit for damages filed by plaintiff was dismissed by Trial Court---Appellate Court allowed appeal of the plaintiff and awarded compensation along with interest thereon---Appellate Court after thrashing out the entire record and evidence had come to the conclusion that specific amount would be the correct amount for granting compensation to the plaintiff in respect of the agonies suffered---Validity---Awarding of damages was always the discretionary power of the court and such power had to be exercised keeping in view the facts of each case---No exact amount of compensation could be calculated and only a tentative assessment had to be made keeping in view the evidence produced by the plaintiff and rule of thumb could be applied in this regard---Claim of money as nearly possible to damages suffered by the plaintiff are to be granted---Defendant admitted the fact that without proper application of law they had demolished the property of plaintiff---Plaintiff had proved that she was entitled for compensation---Compensation awarded by the Appellate Court keeping in view all the attending circumstances, evidence, documents and other material appeared to be reasonable and no interference in this regard was warranted---Revision application was dismissed.

Qamaruddin v. Province of Sindh and 4 others 2002 CLC 825; Ali Raziq v. Sabar Khan 2003 CLC 1342; Ali Muhammad v. Muhammad Hayat 1982 SCMR 816; Federation of Pakistan v. Al-Farooq Flour Mills Ltd., 2000 CLC 215; Klb-e-Hyder and Company (Pvt.) Ltd. through Chief Executive v. National Bank of Pakistan through President 2008 CLC 965; Malik Liaquat Ali v. Zafar Ali 2003 SCMR 1207; Hafiz Ali Muhammad v. Muhammad Abad and others PLD 1999 Kar. 354; Muhammad Ishaq v. Azizuddin and others 2004 MLD 251; Municipal Corporation Bahawalpur v. Sh. Aziz Elahi PLD 1970 SC 506; PIA v. Pak Saaf Dry Cleaners PLD 1981 SC 553; Shaikh Faqir Muhammad v. Muhammad Din 1993 SCMR 1955; Molvi Muhammad Azeem v. Al-Haj Mehmood Khan Bangash and another 2010 SCMR 817; UBL v. Yousuf Haji Noor Dhadhi 1988 SCMR 82; Zakirullah Khan v. Faizullah Khan 1999 SCMR 971; Mushtari Khan v. Jehangir Khan 2006 SCMR 1238; Abdul Hameed and others v. Khalid and others 2007 SCMR 938; Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 and Shamshad v. Arif Ashraf Khan 2010 SCMR 473 ref.

Muhammad Akram v. Arman Bibi PLD 1990 SC 28 and Sufi Muhammad Ishaque's case PLD 1996 SC 737 rel.

S. Sultan Ahmed for Applicants.

Nazar Akber for Respondents.

Dates of hearing: 15th, 22nd, April, 20th and 27th May, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 370 #

2014 M L D 370

[Sindh]

Before Farooq Ali Channa, J

SHAKEEL AHMED KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal Against Acquittal No.112 of 2012, decided on 10th April, 2013.

Illegal Dispossession Act (XI of 2005)---

---Ss. 3 & 4---Complaint---Both the parties were claiming their possession over the disputed house on the basis of documents executed in their favour---Proper forum to decide the controversy with regard to genuineness of documents and ownership of the disputed house would be the civil court, where suits were already pending.

Iftikhar Ahmed v. Zulfiqar Ali and 3 others PLD 2008 Lah. 59 and Muhammad Usman and 2 others v. The State 1992 SCMR 48 rel.

Afaq Yousuf for Appellant.

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

Naimatullah Khan for Respondent No.2.

Date of hearing: 10th April, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 377 #

2014 M L D 377

[Sindh]

Before Salahuddin Panhwar, J

MANSOOR alias GUDO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.653 of 2012, decided on 11th January, 2013.

Criminal Procedure Code (V of 1898)---

---S.497---Penal Code (XLV of 1860), Ss. 376 (i), 341, 342 & 506 (2)---Rape, wrongful restraint, wrongful confinement and criminal intimidation---Bail, refusal of---Allegations against the accused were that he committed rape with the daughter of complainant---Accused committed rape with a minor girl of 9 years and incident was seen by the parents of the minor victim---Statement of victim was recorded which disclosed that the accused forcibly committed rape with her---Medical certificate disclosed that victim was subjected to sexual intercourse---From tentative assessment, reasonable grounds existed against the accused regarding his involvement in a case of capital punishment, falling within the prohibitory clause of subsection (1) of S.497, Cr.P.C.---Delay in lodging F.I.R. per se was not sufficient for grant of bail---In case of Zina, it was not believable that without any reason, one would go to shoulder such an allegation with reference to name and honour of his family, which no doubt would leave an impact upon the life and career of victim---Chemical report reflected that human semen was found on the Shalwar of victim---Prima facie the accused was linked with the case of capital punishment and he had failed to bring his case within purview of subsection (2) of S. 497, Cr.P.C.---Bail was refused accordingly.

Muhammad Iqbal Mahar for Applicant.

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

Rana Hafiz Tanveer Ahmed for the Complainant.

MLD 2014 KARACHI HIGH COURT SINDH 384 #

2014 M L D 384

[Sindh]

Before Sadiq Hussain Bhatti, J

Chaudari SHABBIR HUSSAIN---Applicant

Versus

The STATE---Respondent

Special Criminal Bail Application No.17 of 2013, decided on 11th November, 2013.

Criminal Procedure Code (V of 1898)---

----S.497---Sales Tax Act (VII of 1990), Ss.2(37), 3, 6, 7, 8, 22, 23, 26, 33, 34, 37-A & 73---S.R.O. 1125(I)/2011, dated 31-12-2011---Tax fraud---Bail, grant of---Accused was alleged to have been engaged in tax fraud by facilitating different manufacturers / importers of textile related items by misusing provisions of S.R.O. 1125(1)/2011, dated 31-12-2011---Validity---Company of accused was not genuine taxpayer and not doing business in textile industry but on the basis of paper transactions had facilitated textile manufacturers to evade tax liabilities by declaring zero-rated supplies under S.R.O. 1125(I)/2011, dated 31-12-2011, while the same were chargeable at 5%---Returns filed by the company of accused showed unlawful adjustment of input tax / refund against invoices of those units/importers who were engaged in import of steel, in such a manner accused caused huge loss of millions of Rupees to national exchequer---Bail was refused, in circumstances.

Black's Law Dictionary; Legal Terms and Phrases 2013 Edition by M. Ilyas Khan; Khawaja Shahbaz Ahmed v. Deputy Director, Directorate General of Intelligence and Investigation, Range Officer, Gujranwala and another 2012 PTD 1361; GMH Traders and Manufacturers v. Deputy Director/Investigating Officer, Directorate of Intelligence and Investigation, Lahore 2009 PTD 1894; Zaheer Hussain v. The State PLD 2006 Kar. 397 and Imtiaz Ahmed v. The State PLD 1997 SC 545 ref.

Muhammad Kokab Sabahuddin for Applicant.

S. Mohsin Imam for Federal Board of Revenue

Dilawar Hussain, Standing Counsel.

Saeed Khan, Investigating Officer and Muhammad Azam Nafees ROA/DR, Directorate of ISI/IB, Karachi. present.

MLD 2014 KARACHI HIGH COURT SINDH 394 #

2014 M L D 394

[Sindh]

Before Aftab Ahmed Gorar, J

ASAD ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-953 of 2012, decided on 11th January, 2013.

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

----S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 20---Haraabah liable to tazir---Bail, grant of---Further inquiry---Delay in lodging F.I.R.---Rule of consistency---Implication on basis of further statement of complainant---Effect---Allegation against accused was that on his alleged instigation co-accused robbed complainant of his cash---F.I.R. was lodged with a delay of 7 days without any plausible explanation---Accused was involved in the present case on basis of further statement of complainant, which was recorded 24 days after the occurrence---After arrest of accused he was not produced before any Magistrate and was shown as arrested after his father filed a habeas corpus petition---Co-accused had already been granted bail and case of accused was on a better footing compared to that of co-accused---Case against accused was one of further inquiry---Accused was admitted to bail accordingly.

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

----S. 497---Bail---Rule of consistency---Scope---Where a co-accused in a case, to whom a role similar to that of the accused was attributed, had been released on bail, accused should (also) be released on bail on the principle of consistency.

Muhammad Afzal alias Bodi v. The State 1979 SCMR 9 rel.

Ayaz Hussain Tunio for Applicant.

Shahzado Saleem Nahyoon, Asstt. P.G. for the State.

MLD 2014 KARACHI HIGH COURT SINDH 400 #

2014 M L D 400

[Sindh]

Before Aftab Ahmed Gorar, J

SAJJAD HUSSAIN and another---Applicants

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No.302 of 2012, decided on 8th July, 2013.

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

----S. 561-A---Application for quashing of proceedings---Point of maintainability of the proceedings, was to be decided at the first instance.

Darya Khan v. The State PLD 1989 Kar. 115; Iqbal v. The State 2001 PCr.LJ 1634; Rahmat Ali alias Lunda v. The State 1971 SCMR 513; Ghulam Sarwar and another v. The State 1979 SCMR 43; Juan Sullivan v. The State 1971 SCMR 618; Raju and another v. Emperor AIR 1928 Lah. 462; 2003 PCr.LJ 1847; Zeeshan Ahmed v. The State and another 2012 PCr.LJ 700 and 2005 YLR 3297 ref.

PLD 1970 SC 335 distinguished.

PLD 2009 Lah. 415 rel.

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

----S. 497(5)---Bail, cancellation of---Considerations---Considerations for cancellation of bail were different from the considerations for the grant of bail; and in the absence of strong and exceptional grounds warranting interference, bail earlier granted to accused could not be cancelled.

1993 PCr.LJ 2051; 1997 PCr.LJ 408; 1998 PCr.LJ 69; 1998 PCr.LJ 1022; 1983 PCr.LJ 2005; 1984 PCr.LJ 2086; PLD 1970 SC 335; PLD 1991 SC 412; 2005 SCMR 1936; PLD 1989 SC 742; 1999 PCr.LJ 699; PLD 1966 Kar. 101; 2007 PCr.LJ 1408; 1977 PCr.LJ 573; 1996 (2) SCC 384; 1983 (3) SCC 217; 2002 SCMR 1009; PLD 2007 SC 183; PLD 1950 Baghdad-ul-Jadid 71; (1990) 1 SSC 550; 2004 PCr.LJ 1039; 1988 PCr.LJ 343; AIR 1992 SC 1161; 1999 YLR 101; 1975 SCMR 69; AIR 1987 SC 1080; (1998) (8) SCC 635; 2002 PCr.LJ 1169; 2002 PCr.LJ 807; 1987 PCr.LJ 1979; 2005 MLD 440; 1999 YLR 101; 1975 SCMR 69; 1977 PCr.LJ 573; AIR 1987 SC 1980; PLD 2005 SC 252; 1975 SCMR 394; AIR 1960 P&H 303; (1987) Cr.LJ 1541; PLD 1998 Lah. 383; PLD 1995 FSC 135; 1969 PCr.LJ 1333; 2012 PCr.LJ 700; 2004 SCMR 231; 1999 MLD 408; 1996 SCMR 986 and 2002 YLR 2440 ref.

2004 SCMR 231 rel.

Faisal Siddiqui for Applicant.

Fazlur Rahman Awan for Respondent No.2.

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

Date of hearing: 22nd April, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 414 #

2014 M L D 414

[Sindh]

Before Syed Muhammad Farooq Shah, J

MOAZZAM alias MUHAZE---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-964 of 2012, decided on 14th December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324/353/34---Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, common intention---Bail, grant of---No specific role assigned during the occurrence---Inimical terms between parties---Effect---Allegation against accused and co-accused persons was that they started firing at a police party as a result of which a police official received injury on his leg---One of the co-accused also received injuries during the occurrence and was arrested, whereafter he (i.e. co-accused) allegedly disclosed the name of accused---Contentions of accused were that he had inimical terms with the co-accused, who allegedly disclosed his (i.e. accused's) name; that an inquiry report of police showed that several cases had been registered against the accused due to political rivalry; that medical record showed that injured co-accused and injured police-official did not receive injuries at the same time, rather there was difference of 2 to 3 hours between their injuries, and that no empties were recovered from the place of occurrence---Validity---Contentions raised by accused were not rebutted by the prosecution---Inimical terms existed between both parties-No specific role of causing bullet injury had been assigned to the accused---Accused was admitted to bail, in circumstances.

Sher Muhammad v. The State 2000 YLR 121; Yar Muhammad v. The State 2004 SCMR 864 and Jaffer and others v. The State 1980 SCMR 784 rel.

Syed Tariq Shah for Applicant.

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

MLD 2014 KARACHI HIGH COURT SINDH 419 #

2014 M L D 419

[Sindh]

Before Zafar Ahmed Rajput, J

Hafiz MUHAMMAD MUBEEN through Legal theirs---Applicant

Versus

GOVERNMENT OF SINDH through Deputy Commissioner, Sukkur and 5 others---Respondents

Civil Revision No.137 of 2010, heard on 9th September, 2013.

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

----S. 149---Court Fees Act (VII of 1870), S. 28---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Closure of evidence---Non-affixation of court fee on memo of appeal---Effect---Appellate Court dismissed appeal due to non-payment of court fee---Validity---Chief Ministerial Officer of the court was bound to receive the appeal and examine the same to see whether all the requirements of law had been complied with or not---Act of the court or of the public functionary should not be allowed to prejudice any one---Purpose for the enactment of Court Fees Act, 1870 was to recover the revenue and not to penalize the litigant public for non-compliance of any provision of the same---Provisions of Court Fees Act, 1870 and other fiscal statute were to be construed strictly in favour of subjects---Appellate Court did not go through the provision of S. 149, C.P.C. and dismissed the appeal for non-payment of court-fee---Court might in its discretion at any stage allow the person where whole or any part of court-fee had not been paid to pay the same and upon such payment the document should have the same force and effect as such fee had been paid in the first instance---Appellate Court was bound to direct the plaintiff to make up deficiency of court-fee upon the memo of appeal but no such direction was passed---Appeal should be deemed to have been filed on the date of its presentation if court-fee was affixed later on and same would not render it time barred---Appellate Court had acted in exercise of its jurisdiction illegally and with material irregularity and failed to exercise jurisdiction vested in it---Impugned judgment and decree passed by the Appellate Court were set aside and case was remanded for decision in accordance with law---Revision was accepted in circumstances.

Taza Gul and others v. Haji Fazal Subhan 2006 SCMR 504 and Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289 rel.

Mst. Sadiqunnisa v. Khan Sahib Aga Muhammad Sultan Mirza and 8 others PLD 1972 Kar. 103 distinguished.

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

----Preamble---Object of court Fees Act, 1870---Purpose for the enactment of the Court Fees Act, 1870 was to recover the revenue and not to penalize the litigant public for non-compliance of any provision of the same---Provisions of Court Fees Act, 1870 and other fiscal statute were to be construed strictly in favour of subjects.

Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289 rel.

----S. 149---Making up deficiency of court fees---Scope---Court might in its discretion at any stage allow the person, where whole or any part of court-fee had not been paid, to pay the same and upon such payment the document should have the same force and effect as such fee had been paid in the first instance.

Syed Bahadur Ali Shah for Applicant.

Yousif Ali and Imtiaz Ali Soomro, A.A.-G. for Respondents.

Date of hearing: 9th September, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 428 #

2014 M L D 428

[Sindh]

Before Nazar Akbar, J

Pir SHER MUHAMMAD---Plaintiff

Versus

SUI SOUTHERN GAS COMPANY LTD. through Managing Director and another---Defendants

Suit No.1198 of 2006, decided on 21st October, 2013.

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

---Art. 74---Civil Procedure Code (V of 1908), O.XIII, R.2 & S. 151---Application for permission to place copies of documents on the record--- Documents mentioned in the application had already been filed with the plaint----Said documents had been admitted by the defendants and their contents had not been denied by them---Nothing had been alleged to have been changed/forged in the certified copies---Courts were not supposed to pass any verdict on the quality of evidence during recording of the same---Evidentiary value of the documents was to be determined at the final disposal of the suit---Application was accepted in circumstances.

Shabbir Ahmed Awan for Plaintiff.

Asim Iqbal for Defendants.

Date of hearing: 9th September, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 433 #

2014 M L D 433

[Sindh]

Before Syed Hassan Azhar Rizvi, J

FARHAJ AHMED---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.646 of 2013, decided on 16th July, 2013.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.406, 420 & 489-F---Criminal breach of trust, cheating and dishonestly issuing a cheque---Bail, grant of---Habitual offender---Accused defrauded complainant of her huge amount by issuing bogus cheques, which amounted to financial murder of complainant by accused---Accused only offered for furnishing security equivalent to dishonoured cheques and not the full amount---Effect---Offence with which accused was charged did not fall under prohibitory cause of S. 497, Cr.P.C., however, grant of bail in such like cases was not a rule of universal application, and each case had to be seen on its own facts and circumstances---Deeper appreciation of evidence was neither permissible nor warranted under law at bail stage---Accused was in the habit of issuing bogus cheques to different persons and there was no mala fide or ulterior motive on the part of complainant or police to falsely involve accused in case---Accused had closed his business and if he would be admitted to bail, there was every likelihood of his jumping the bail---Bail was declined in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Muhammad Zulfiqar v. The State 2005 MLD 1063; Safdar Hussain v. The State 2005 YLR 1607; Mian Allah Ditta v. The State and others 2013 SCMR 51; 2001 SCMR 806; 2010 PCr.LJ 1099; 2011 PCr.LJ 747; 2009 PCr.LJ 805; 2009 PCr.LJ 1140; 2011 PCr.LJ 774; 2011 PCr.LJ 268; 2007 YLR 1542; 2007 YLR 1796 and 2008 YLR 1686 ref.

Aamir Jamil for Applicant.

M.B. Khatian for the Complainant.

Imtiaz Ali Jalbani, learned A.P.-G.

MLD 2014 KARACHI HIGH COURT SINDH 440 #

2014 M L D 440

[Sindh]

Before Aftab Ahmed Gorar, J

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

Versus

MUHAMMAD ALI---Respondent

Civil Revision Application No.240 of 2011, decided on 23rd May, 2013.

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

----S.42---Date of birth, correction of---Declaratory suit---Maintainable.

1994 MLD 2208 rel.

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

----S.42---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Date of birth recorded in Service Record, correction of---Plaintiff (employee of Pakistan Steel Mills) alleged that his date of birth had wrongly been recorded in Service Record as 21-12-1951 instead of year 1956---Defendant-employer's plea was that suit was time-barred for having been filed after 30 years of joining service---Proof---Year of date of plaintiff birth was mentioned as 1956 in his old and new National Identity Cards, authenticity whereof had not been challenged by defendant---Joining report relied upon by defendant had been admitted by its witness not to be in handwriting of plaintiff---Defendant's witness admitted that plaintiff's date of birth recorded in Medical Card and Insurance paper was year 1956---According to plaintiff that he came to know about such wrong entry in his service record, when he applied for loan and he was informed that he was going to retire in year 2011 according to his date of birth i.e 1951, but defendant declined to correct same in year 2008---Defendant had failed to establish that plaintiff was in knowledge of such entry in Service Record prior to year 2008---Defendant had not produced any Rules/Regulations governing terms and conditions of its employees barring alteration in their date of birth---Suit was decreed in circumstances.

2007 SCMR 66; SBLR 2009 Sindh 115; 1994 SCMR 1633; PLD 2006 SC 602 and 1994 MLD 2208 ref.

1994 SCMR 1633 and SBLR 2009 Sindh 115 rel.

----S.115---Revisional jurisdiction of High Court---Scope---Such jurisdiction for being very limited could be exercised only when court below had either exceeded its jurisdiction or declined to exercise same or acted in an illegal manner.

2001 SCMR 789 and PLD 1994 SC 291 rel.

Moin Azhar Siddiqui for Applicant.

Muhammad Ramzan for Respondent.

Date of hearing: 30th April, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 457 #

2014 M L D 457

[Sindh]

Before Aziz-ur-Rehman, J

Syed ALTAF HUSSAIN through Attorney---Applicant

Versus

IRSHAD AHMED and 9 others---Respondents

Civil Revision Application No.146 of 2012, decided on 7th November, 2013.

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

----O.IX, R.9---Application for restoration of suit dismissed for non-prosecution---Dismissal of such application without giving its notice to defendant---Validity---No order on such application could be passed without issuing notice thereof to defendant---Order dismissing such application was erroneous, illegal, without jurisdiction and lawful authority.

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

----O.IX, R.8 & O. XLIII, R.3---Appeal against order of Trial Court dismissing suit for non-prosecution---Dismissal of appeal by Appellate Court for want of non-compliance of O.XLIII, R.3, C.P.C.---Validity---Provision of O.XLIII, R.3, C.P.C. would apply to an appeal filed against an order during pendency of suit---Appeal, in the present case, had not been filed during pendency of suit, rather same had commenced from dismissal of suit for non-prosecution---Strict compliance of provision of O.XLIII, R.3, C.P.C. was not absolute requirement of law---High Court set aside impugned order in circumstances.

Abdul Lateef v. Muhammad Yousuf and 2 others PLD 1996 Kar. 365 rel.

----Art.10-A---Right to fair trial---Scope---order passed in proceedings held in violation of "fair trial" and "due process" would be null and void.

Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235; Shabbir Ahmed v. Kiran Khursheed and others 2012 CLC 1236 and Altaf Hussain v. Arifa Farooqi and 7 others PLD 2013 Lah. 95 rel.

Faqeer Ghazi Darban Hisbani for Applicant.

Muhammad Ghalib for Respondents Nos. 1 to 7.

MLD 2014 KARACHI HIGH COURT SINDH 471 #

2014 M L D 471

[Sindh]

Before Zafar Ahmad Rajput, J

Syed MUHAMMAD ZUBAIR SHAMSHAD---Appellant

Versus

MUKHTIARKAR SALEHPAT and 3 others---Respondents

IInd Civil Appeal No.S-1 of 2009, decided on 25th September, 2013.

Limitation Act (IX of 1908)---

----S. 5---Time-barred appeal---Condonation of delay---Principles---Contention of plaintiff was that he was under treatment due to which he could not file appeal within time---Impugned judgment and decree were passed on 4-12-2008 and appeal was filed on 27-4-2009 which was 52 days time-barred---Certificate of treatment did not disclose that plaintiff was unable to move or communicate instructions to his counsel to prefer appeal---Person seeking condonation of delay must explain delay of each and every day to the satisfaction of court and should also establish that same had been caused due to reasons beyond his control---When delay in filing the appeal was due to negligence and carelessness of plaintiff then he was not entitled to indulgence by the High Court---Valuable rights would accrue to other party by lapse of time in civil matters---Appeal was dismissed in circumstances.

Muhammad Hussain v. Settlement and Rehabilitation Commissioner 1975 SCMR 304; Muhammad Saeed v. Shaukat Ali 1982 SCMR 285 and Mst. Rukhsana Ahmed v. Tariq Attaullah 1980 SCMR 36 rel.

Mian Mumtaz Rabbani for Appellant.

Abdul Ghaffar Memon for Respondents.

Date of hearing: 25th September, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 476 #

2014 M L D 476

[Sindh]

Before Syed Muhammad Farooq Shah, J

IBRAHIM KHAN---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No.191 of 2013, decided on 5th December, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 154, 173, 190(1), 193(1) & 561-A---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-e-amd, common intention---Order of cancellation of F.I.R. in "C" class by Magistrate---Application for quashing of order---Powers of Magistrate to record evidence in Sessions case and sending case to Court of Session---Magistrate, though could not record the evidence in sessions case, but that would not mean that he had to automatically send the case for trial to the Court of Session, simply because a section relating to an offence exclusively triable by the Court of Session had been mentioned by the Police in challan---Magistrate on having taken cognizance of such a matter, placed before him by the Police, was required to send it to the Sessions Court, in order to determine whether the allegations made in the Police report, had made out a prima facie case---Magistrate could not determine the nature of offence, as to whether or not the case was triable exclusively by the Court of Session---Magistrate was not competent to dispose of a sessions case, while cancelling the F.I.R. or Police report---Magistrate could draw the inference and conclusion, and then transmit the same to the Sessions Court, as it was for that competent court to decide whether cognizance, was to be taken or otherwise---In the present case, offence under Ss.302, 34, P.P.C., was exclusively triable by the Court of Sessions, Magistrate, after receiving the report under S.173, Cr.P.C., was required to forward the same to the Sessions Court without recording, or discussing any evidence, as provided under S.190, Cr.P.C.---Impugned order passed by Magistrate being coram non judice to the extent of cancelling the F.I.R. in 'C' class was set aside---Magistrate was directed to forward the report submitted by the Investigating Officer under S.173, Cr.P.C. to the Court of Session for its disposal/trial.

Syeda Afshan v. Syed Farukh Ali PLD 2013 Sindh 423 ref.

M. Qadir Khan for Applicant.

Ali Gohar Masroof for the Complainant.

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

Date of hearing: 6th November, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 486 #

2014 M L D 486

[Sindh]

Before Abdul Maalik Gaddi, J

IRFAN YAQOOB---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.152 of 2013, decided on 22nd October, 2013.

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

----Ss. 497, 498 & 499---Penal Code (XLV of 1860), Ss.420, 468 & 471---Cheating, forgery, using as genuine a forged document---Grant of bail---Reduction of surety amount---Accused was granted bail by the Magistrate subject to furnishing solvent surety in the sum of Rs.20,00,000, which subsequently was reduced from Rs.20,00,000 to Rs.10,00,000---Accused was unable to furnish surety in said amount and prayed for reasonable reduction in surety amount---Validity---Once accused was granted bail and despite possible efforts he was unable to furnish surety in the required amount, then keeping in view the facts and circumstances of the case a reasonable reduction in the surety amount could be made, so that accused should not suffer unnecessarily for reasons beyond his control---Bail was not to be withheld as a punishment; after the bail was granted, the question of liberty of accused was involved---In the present case, reasonable grounds had been disclosed by accused in application and in his affidavit---Quantum of surety, in circumstances was reduced from Rs.10,00,000 to Rs.600,000.

Muhammad Shafiq Shah and 2 others v. The State 1993 PCr.LJ 483 rel.

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

----S. 439---Revisional jurisdiction of High Court---Scope---Such jurisdiction was very wide and it was to be exercised whenever facts calling for its exercise, were brought to the notice of the court; and where the question of hardship was involved, such jurisdiction was to be exercised to prevent gross miscarriage of justice.

Waqar Shah for Applicant.

Khadim Hussain, D.P.G. for the State.

Muhammad Hanif Ghanchi for the Complainant.

MLD 2014 KARACHI HIGH COURT SINDH 493 #

2014 M L D 493

[Sindh]

Before Abdul Rasool Memon, J

MADAD ALI---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.S-455 of 2012, decided on 7th November, 2013.

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

----Ss. 173 & 561-A---Report of Police Officer---Inherent powers of High Court under S.561-A, Cr.P.C.---Scope---Order which the Magistrate passed on the report submitted by Investigating Officer under S.173, Cr.P.C., was an administrative order---While passing such an order Magistrate had to act fairly, justly and honestly and same be looked into under S.561-A, Cr.P.C. by exercising the inherent powers by the High Court.

PLD 1985 SC 627 rel.

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

----Ss. 173, 190(1)(b) & 561-A---Penal Code (XLV of 1860), Ss.419, 427 & 411---Cheating by personation, mischief causing damage to the amount of fifty rupees, dishonestly receiving stolen property---Application for quashment of proceedings---Powers of Magistrate under S.190(1)(b), Cr.P.C.---Scope---Magistrate, on the one hand had rejected the final report submitted under S.173, Cr.P.C., taking cognizance of the case for offences under Ss.419, 427, 411, P.P.C. and issued non-bailable warrants against accused; while on the other hand issued directions to register F.I.R. against accused persons and simultaneously, the Investigating Officer was directed to submit fresh charge sheet---Magistrate, in order to justify his action had issued directions for registration of fresh F.I.R. by concerned Police Official, and submission of final report, which was outside the scope of subsection (3) of S.173, Cr.P.C.---Magistrate, on the report submitted by the Investigating Officer, could pass an order as he would think fit; he could agree or not with the Investigating Officer; he could refuse to cancel the case, and order further investigation, or to take cognizance on the basis of that Police report under S.190(1)(b), Cr.P.C., but under said provisions of the law, the Magistrate after rejecting final report of Investigating Officer, could not pass order for registration of F.I.R.; and submit fresh report of his own choice---Magistrate was not justified in putting the cart before the horse---Order of Magistrate, in circumstances, was not sustainable.

Haq Nawaz v. Haji Alam Khan and 8 others 2012 MLD 1075 and Naseer and others v. Khuda Bakhsh and others 2011 SCMR 1430 rel.

----S. 561-A---Penal Code (XLV of 1860), Ss.411, 419 & 427---Dishonestly receiving stolen property; cheating by personation, mischief causing damage to the amount of fifty rupees---Application for quashment of proceedings---Neither the jeep in question had been stolen nor the FI.R. regarding its theft was registered by the concerned department---Mere possession of the jeep was not sufficient to attract the provisions of S.411, P.P.C., but the essential ingredients that the property/Jeep should be stolen property was missing in the present case---No allegations of cheating or personation against accused, but the jeep had been allotted to one Health Lady Supervisor, who gave it to accused for one hour, but it was retained by him for more than the period he was allowed---Jeep having been given to accused by consent of original allottee, no offence was committed under S.419, P.P.C., in circumstances---No allegations of destruction of jeep in question or its change by accused in any manner was on record---Provisions of S.427, P.P.C., were not attracted---Accused would not be convicted for the offences, while the Magistrate had taken cognizance thereon---Continuance of criminal trial of accused, in circumstances, would be abuse of process of the court---Proceedings, pending before the Trial Court were ordered to be quashed.

Nisar Ahmed Durani for Applicant.

Mushtaque Ahmed Abbasi, Additional Prosecutor General for the State.

Date of hearing: 25th October, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 501 #

2014 M L D 501

[Sindh]

Before Riazat Ali Sahar, J

AHMED---Appellant

Versus

RASOOL BAKHSH and 3 others---Respondents

Criminal Acquittal Appeal No.S-30 of 2012, decided on 16th August, 2013.

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

----Ss.392 & 215---Criminal Procedure Code (V of 1898), S. 417(2)---Robbery, taking gift to help to recover stolen property---Appeal against acquittal---Alleged incident was reported after the delay of more than a month, without furnishing plausible explanation for such delay---Complainant had stated in the F.I.R. that after consultation with their Nekmard, he lodged F.I.R.---Alleged pistol and robbed articles, were not recovered from accused---Names of material witnesses, neither transpired in the F.I.R. nor their statements were recorded during course of investigation; nor complainant could produce them before the Trial Court for recording their evidence---Civil dispute was pending between the parties over the agricultural land---One of the eye-witness had denied to have witnessed the incident, but he was not declared hostile and cross-examined by the prosecution---Evidence of said witness rendered the prosecution case doubtful---Complainant had involved accused aged about 80 years along with his son---Prosecution witnesses had contradicted each other on material points; and Trial Court seemed to have dealt with the contradictions and defects in the prosecution evidence carefully and validly---For basing conviction against accused there should be strong evidence before the Trial Court, and, if the doubt, even slightest, would arise in the prudent mind as to the guilt of accused, benefit of the same had to be extended in favour of accused---Sufficient facts to record acquittal of accused being present, there was no justification to interfere with the findings of acquittal recorded by the Trial Court---Appeal merited no consideration, was dismissed accordingly.

Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329 and Farhat Azeem v. Asmat Ullah and 6 others 2008 SCMR 1285 rel.

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

----S. 265-K---Power of court to acquit accused at any stage---Scope---Section 265-K, Cr.P.C., had empowered the court to acquit accused at any stage of the case, even before examination of the witnesses, just to protect accused from agony of protracted trial---Accused could be acquitted, if from the evidence available on record there appeared no probability of accused being convicted of the offence, he was charged with---Court, was under obligation to record such acquittal judiciously and not capriciously.

Abdul Qadir Bhatti for Appellant.

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

MLD 2014 KARACHI HIGH COURT SINDH 509 #

2014 M L D 509

[Sindh]

Before Riazat Ali Sahar and Zafar Ahmed Rajput, JJ

ASHIQUE HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-164 of 2009, decided on 5th December, 2013.

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

----S. 9(b)---Possessing and trafficking narcotics---Appreciation of evidence---Evidence of both the prosecution witnesses was consistent on all the material particulars, such as date, time, place and manner of recovery of contraband---No material contradictions had been noticed in the evidence of the prosecution witnesses---Some minor contradictions found in the evidence of the witnesses, could not be sufficient to cut the roots of the prosecution case---Such discrepancies were bound to occur due to lapse of considerable time---Positive report of Chemical Examiner, had been produced in evidence---Evidence of Police Officials, was as good as of any other public witness, in absence of any malice or mala fide of the Police Officials---In the present case, prosecution witnesses had no enmity with accused to foist contraband upon him; it was proved by cogent evidence that accused was found in possession of narcotic substance---Accused had failed to discharge burden to show that he was not in possession of narcotic---Trial Court on the basis of sufficient evidence had rightly convicted accused, in the case---Impugned judgment being based upon sound reasons was maintained---Accused being on bail, his bail bonds stood cancelled, and surety discharged and accused was taken into custody and remanded to jail to serve out his remaining sentence.

Muhammad Khan v. The State 2008 SCMR 1616 and Kashif Amir v. The State PLD 2010 SC 1052 ref.

Appellant in person.

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

Date of hearing: 5th December, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 519 #

2014 M L D 519

[Sindh]

Before Farooq Ali Channa, J

Mst. SHAMSHAD BIBI---Petitioner

Versus

The S.S.P. and 3 others---Respondents

Constitutional Petition No.S-1439 of 2013, decided on 8th January, 2014.

Constitution of Pakistan---

----Art.199---Constitutional petition---Recovery of children residing of their own will with their step-mother---Petitioner/real mother of children pleaded that her children were in the wrong confinement of their step-mother; that her husband was murdered a few months ago, therefore there was no one to look after the detained children---Validity---All the three children, ages 16, 14 and 10 years respectively were present in court and seemed to be grown up and mature---Children stated before court that they used to reside with their deceased-father and step-mother; that they knew that petitioner was their real mother, but never remained with her nor she made any attempt to meet them whenever they visited their village; that they were getting proper education and were being cared for properly; that they did not want to go with their real mother/petitioner and intended to reside with their step-mother---No case of habeas corpus was made out in such circumstances, nor transfer of custody of detenues/children was warranted---petitioner was at liberty to seek appropriate remedy for custody of minors provided under the law through Family Court, which was the competent forum to take care of and detemine the welfare of ward with either party---Constitutional petition was disposed of accordingly.

Munawar Alam Khan for Petitioner.

Ziauddin Junejo, A.A.-G. for Respondents.

Ali Haider Saleem, A.P.G.

MLD 2014 KARACHI HIGH COURT SINDH 524 #

2014 M L D 524

[Sindh]

Before Ghulam Sarwar Korai and Abdul Rasool Memon, JJ

TARIQ NAZIR BUKHARI---Petitioner

versus

PROVINCE OF SINDH through Home Secretary and 4 others---Respondents

Constitutional Petition No.D-4458 of 2012, decided on 27th November, 2013.

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

----Ss. 406 & 420---Criminal breach of trust and cheating---Essential ingredients---Fraudulent and dishonest intention and inducement at the time of performing act are essential ingredients for offence of cheating and criminal breach.

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

----Ss.420 & 506 (b)---Criminal Procedure Code (V of 1898), S.561-A---Cheating and criminal intimidation---Quashing of F.I.R.---Civil dispute---Contract, breach of---Scope---Complainant alleged in F.I.R. that accused received amount from her and breached the terms of contract---Validity---Breach of contract, if any, in absence of dishonest intention did not constitute criminal offence under S. 420, P.P.C.---Controversy between parties was with regard to not fulfilling terms of agreement executed between them---Even on admitted facts no offence could be made out against accused as dispute was entirely of civil nature which had been converted into criminal proceedings---Proceedings before any court on the basis of F.I.R. in question was nothing but an abuse of process of law and the case would not end in conviction---High Court in exercise of inherent powers quashed the proceedings---Application was allowed in circumstances.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Muhammad Nasim Khan and another v. Fida Muhammad Khan and another 1993 PCr.LJ 1795; Bashir Dawood and 2 others v. Tanveer Ahmed and another 2000 PCr.LJ 1230 and Abdul Rashid and 2 others v. The State and another 1987 PCr.LJ 1380 ref.

Faisal Siddiqui for Petitioner.

Khawaja Naveed Ahmed for Respondent No.4.

Saifullah, A.P.-G.

Date of hearing: 1st November, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 550 #

2014 M L D 550

[Sindh]

Before Syed Muhammad Farooq Shah, J

ABDUL GHAFFAR and 6 others---Petitioners

Versus

EJAZ ALI and another---Respondents

Constitutional Petition No.S-1082 of 2010, decided on 27th November, 2013.

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

----S.15---Constitution of Pakistan, Art.199---Constitutional petition---Eviction of tenant---Judgment passed against dead person/tenant---Effect---Ejectment application filed by landlord against tenant on default of payment of rent was dismissed---Appeal filed by landlord was allowed by Appellate Court, consequently tenant was directed to vacate the shop in question---Contention of the petitioners/legal heirs of deceased tenant was that during pendency of ejectment proceedings/ appeal, the tenant died but his legal heirs/petitioners were not impleaded as party and judgment passed against a dead person was not sustainable under law---Validity---Appellate Court recorded and pronounced the judgment against a dead person, without impleading or hearing the legal representatives of the deceased tenant---Impugned judgment was a nullity, which could not be rectified, more particularly, when right to sue survived and such intimation in shape of statement showing the death of tenant had been placed before the Appellate Court in that behalf and court was to cause legal heirs to be made them party---Court could not continue with the adjudication of proceedings in appeal without joining and notice to legal heirs of the deceased tenant---Impugned Appellate Court judgment was set aside---Case was remanded to Appellate Court with the direction to make legal heirs of the deceased tenant as party and thereafter decide the matter afresh on merit.

Merri Khan v. Faqeer Muhammad PLD 1980 Lah. 110; Imamuddin and 4 others v. Bashir Ahmed and others PLD 2005 SC 208 and Messrs A.M Industrial v. Ejaz Mehmood 2006 SCMR 437 rel.

Mst. Bismillah Begum v. Fazal Muhammad 1987 CLC 1113; Masjid-e-Rizwan through Haji Abdul Salam v. Niazuddin 1991 MLD 3151; Abdul Kadir and another v. Muhammad Yaqoob 1991 SCMR 1029; Messrs General Services Corporation v. Messrs Pakistan National Shipping Corporation 1987 MLD 2149; Muhammad Ikran and another v. Rent Controller 2004 CLC 1326; Ali Muzaffar v. Syed Muhammad Ali Abedi 2006 CLC 379; Anis Abbas Jalali v. Abdul Wahid 1993 CLC 1970; Waqas v. Ist Additional District Judge and another 2004 YLR 3278 and Hafiz Shafatullah v. Mst. Shamim Jahan and another PLD 2004 Kar. 502 ref.

Syed Noman Zahid for Petitioners.

Zahid Hussain for Respondents.

Date of hearing: 23rd October, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 561 #

2014 M L D 561

[Sindh]

Before Muhammad Ali Mazhar and Sadiq Hussain Bhatti, JJ

ABDUL RASHEED and 2 others---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary Sindh and 5 others---Respondents

Constitutional Petition No.D-4924 of 2013, decided on 5th December, 2013.

(a) Appeal---

----Appeal is a continuation of original proceedings---Each appellate authority was responsible and obliged to decide appeals on merits and not in slipshod manner.

(b) Sindh Local Government Act (XLII of 2013)---

----S.13---Constitution of Pakistan, Art. 199---Constitutional petition---Delimitation of constituency---Grievance of petitioner was with regard to delimitation process and Appellate Tribunal had wrongly maintained the order passed by Delimitation Officer---Validity---Grant of relief under Art. 199 of the Constitution was intended to foster administration of justice and turn down the orders which were self-evidently arbitrary, capricious and suffering from misreading of record---Where order challenged was found illegal, same could be rectified, rescinded and altered---If any order was passed in violation of law or was nullity in the eyes of law, High Court in exercise of its constitutional jurisdiction could refuse to perpetuate something which was obviously unjust and unlawful---High Court in exercise of constitutional jurisdiction set aside the order passed by Appellate Tribunal and remanded the appeal for decision afresh---Petition was allowed accordingly.

Yawar Farooqui and Irfan Memon for Petitioners.

Khalid Javed Khan, A.G. Sindh Adnan Karim and Abdul Jalil Zubedi, A.A.-G. for Respondents Nos. 1 to 4.

Abdullah Hanjrah, Law Officer, ECP, S. Rashid Hussain, Election Officer, ECP and Abdul Aleem Ghazi, Assistant Commissioner Census and for Respondents Nos. 5 & 6.

Date of hearing: 5th December, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 574 #

2014 M L D 574

[Sindh]

Before Nadeem Akhtar, J

KHADIM HUSSAIN and 12 others---Appellants

Versus

GUL HASSAN TIWANO and 3 others---Respondents

First Civil Appeal No.2 of 2010, decided on 7th January, 2013.

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

----S. 13 & Preamble---Constitution of Pakistan, Art. 199---Interpretation of S.13, Defamation Ordinance, 2002---Trial of cases under Defamation Ordinance, 2002---Jurisdiction---Scope---Suit for damages on ground of loss of reputation and defamation was decreed by Trial Court (which was the civil court)---Contention of the defendant was that suit of plaintiffs was barred under S.13 of the Defamation Ordinance, 2002 as only the District Court had jurisdiction to try the same and Trial Court had no jurisdiction in respect of the matter, therefore the impugned proceedings were coram non judice---Validity---Special law excluded general law and where a special tribunal/court was constituted to hear and decide a dispute which came under the relevant statute, then all other courts would stand debarred from exercising powers of the same nature---Section 13 of the Defamation Ordinance, 2002 provided that the District Court shall have the jurisdiction to try cases under the Ordinance, and the language used in S.13 of the Defamation Ordinance, 2002 was absolutely clear and unambiguous while the use of the word "shall" was of great significance---Interpretation of S.13 of the Defamation Ordinance, 2002 made it abundantly clear that all cases in respect of defamation and/or the matters connected therewith or incidental thereto could be tried under the Ordinance only by the District Court and no other Court, including the High Court, shall have jurisdiction in respect thereof---Suit for defamation, in the present case, ought to have been filed by the plaintiffs before the District Court---High Court declared impugned proceedings of civil court as coram non judice and void ab initio and having no legal effect---High Court converted appeal of defendants into a constitutional petition and set aside impugned order of Trial Court---Constitutional petition was allowed, accordingly.

Pakistan Herald Publications (Pvt.) Ltd. and 2 others v. Karachi Building Control Authority through Controller of Buildings 2012 CLD 453; A. Khalid Ansari v. Mir Shakil ur Rehman 2011 CLD 1196; Industrial Development Bank of Pakistan v. Allied Bank of Pakistan and another PLD 1986 SC 74; Attaullah Khan and others v. Samiullah and others 2007 SCMR 298; Shahid Maqbool v. Mst. Ayesha Saleem Khan and 24 others 2009 CLC 1452; Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others PLD 2007 SC 571; Shabbir Jan Sarhandi v. Province of Sindh through Chief Secretary and 3 others 2006 PLC (C.S.) 955; Mst. Mubarak Salman and others v. The State PLD 2006 Kar. 678; Muhammad Ayaz alias Cheena and others v. The State PLD 2004 Kar. 652 and Syed Ghazanfar Hussain through Legal heirs and others v. Nooruddin and others 2011 CLC 1303 rel.

(b) Interpretation of statutes---

----Preamble of a statute was always the key to interpret the statute.

Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others PLD 2007 SC 571 rel.

----Order/judgment without jurisdiction was void and a nullity in law and an order/judgment without jurisdiction being void ab initio could not be clothed with legality merely because it had been upheld in appeal or revision by inadvertence.

Muhammad Ayaz alias Cheena and others v. The State PLD 2004 Kar. 652 rel.

(d) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S. 151---Constitutional jurisdiction of High Court---Inherent powers of High Court---Scope---High Court had inherent and constitutional powers to remedy/ correct the wrongs committed by subordinate courts by passing judgments/orders which were void or without jurisdiction.

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

----Ss. 151, 96, & 115---Constitution of Pakistan, Art.199---Appeal and revision---Inherent powers of High Court---High Court, in its inherent jurisdiction, could convert an appeal, constitutional petition or revision to any other remedy.

Syed Ghazanfar Hussain through Legal heirs and others v. Nooruddin and others 2011 CLC 1303 rel.

Abdul Qadir Shaikh for Appellants.

Arbab Ali Chandio for Respondents.

Date of hearing: 24th September, 2012.

MLD 2014 KARACHI HIGH COURT SINDH 583 #

2014 M L D 583

[Sindh]

Before Aftab Ahmed Gorar, J

Mst. GHAZALA FIRDOUS and 2 others---Petitioners

Versus

MUHAMMAD KHALID and another---Respondents

Constitutional Petition No. S-873 of 2011, decided on 19th April, 2013.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and jewellery---Contention of wife was that at the time of marriage her parents had given dowry articles including gold ornaments which were still lying with the husband---Trial Court decreed the suit which was maintained by the Appellate Court with certain modifications---Validity---After pronouncement of divorce wife was residing in the flat where she was living with husband before divorce---Trial Court rightly allowed maintenance for Iddat period its order about jewellery was just and proper---Rate of maintenance fixed by the Appellate Court did not require interference---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of two courts below could not be interfered in exercise of constitutional jurisdiction.

Mst. Farhat Jabeen's case 2011 SCMR 1073 rel.

A. Khursheed Khan and Muhammad Rafiq Khan for Petitioners.

Naeem Ahmed and Naveed Ahmed for Respondent No.1.

Date of hearing: 2nd April, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 591 #

2014 M L D 591

[Sindh]

Before Abdul Maalik Gaddi, J

ALI SHER and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-401 of 203, decided on 6th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 337-F(i)(v), 337-A(i), 337-H(2), 506 & 34---Causing Damiyah and Hashimah, Shajjah-i-Khafifah, rash and negligent act, criminal intimidation, common intention---Bail, grant of---All the injuries on the person of the complainant being punishable with five years or less and, bail was to be granted to accused as a rule---Court could decline the bail in recognized exceptional circumstances, but in the present case, Trial Court had rejected bail, without mentioning exceptional circumstances and without applying its judicial mind---Brother of accused persons had registered a criminal case against the complainant party---Civil litigation was also pending between the parties---Parties, in circumstances, had inimical terms with each other---No evidence was on record that accused persons were previous convicts---Challan having already been submitted, there was no possibility of tampering with prosecution evidence by accused---Accused having made out a case for grant of bail, they were granted bail, in circumstances.

2007 PCr.LJ 299 and Tariq Bashir v. The State PLD 1995 SC 34 ref.

Habibullah G. Ghouri for Applicants.

Zulfiqar Ali Jatoi, Deputy Prosecutor General for the State.

MLD 2014 KARACHI HIGH COURT SINDH 604 #

2014 M L D 604

[Sindh]

Before Hasan Feroz, J

MUHAMMAD SHAHID SIDDIQUI---Appellant

Versus

MUHAMMAD MANZAR ALAM QADRI and another---Respondents

First Appeal No.17 of 2011, decided on 28th January, 2014.

Civil Procedure Code (V of 1908)---

---O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S.118---Institution of summary suit on negotiable instruments---Contention of defendant was that he had paid the whole amount to the plaintiff---Suit was decreed by the Trial Court---Validity---Certified copies of dishonoured cheques as well as endorsement of bank and statement of account had not been denied by the defendant---Issuance of cheques had been admitted by the defendant---No proof was available on record to establish that defendant had paid amount to the plaintiff---Presumption of correctness was attached in favour of documents which would fall within the ambit of Negotiable Instruments Act, 1881---Defendant was bound to discharge the initial presumption, he had not proceeded with the matter diligently and ex parte decree was passed against him---Ample opportunity had been granted to the defendant but he showed his negligent conduct in pursuing the suit---Appeal was dismissed in circumstances.

1980 CLC 110; PLD 1962 Pesh. 28; PLD 2001 Lah. 9 and PLD 2004 SC 10 rel.

Muhammad Iqbal Khan for Appellant.

Nemo for Respondents.

Date of hearing: 10th December, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 617 #

2014 M L D 617

[Sindh]

Before Farooq Ali Channa, J

Haji NASARULLAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-121 of 2013, decided on 28th October, 2013.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.295-B & 295-C---Defiling etc., of the Holy Qur'an and use of derogatory remarks, etc., in respect of the Holy Prophet---Bail, refusal of---Evidence, assessment of---Case falling in prohibitory clause of S.497, Cr.P.C.---Plea raised by accused was that he had been involved due to some personal grudge between complainant, prosecution witnesses and him---Validity---Grant or refusal of bail was necessarily a judicial exercise of discretion---Courts were bound to make tentative assessment of material collected by prosecution as well defence keeping in mind; firstly, the matter of accusation and prosecution evidence in support of it; secondly, severity of punishment; and thirdly, behavior or plea of defence---Tentative assessment of evidence collected by prosecution and defence of accused, prima facie, showed that there were reasonable grounds to believe that accused had been guilty of an offence punishable with death or imprisonment for life---Bail was refused in circumstances.

Anwar Masih v. State 2005 PCr.LJ 1636; Muhammad Riaz v. State 2005 PCr.LJ 591; Muhammad Ehsan Ullah v. State 2006 MLD 1504; Habibulah v. State (Supreme Court of Pakistan) 1997 SD 442 and Muhammad Anwar v. State 1996 PCr.LJ 1633 distinguished.

Martha Bibi v. District Police Officer Kasur 2008 YLR 274 and 2001 YLR 484 rel.

Muhammad Yousuf Leghari and Ghulamullah Chang for Applicant.

Aijaz Shaikh for the Complainant.

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

Date of hearing: 28th October, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 625 #

2014 M L D 625

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD ASHRAF---Applicant

Versus

MUHAMMAD IRFAN MOTLANI and another---Respondents

Civil Revision Application No.176 of 2012, decided on 4th June, 2013.

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

----S.115---Revision petition before High against order passed by District Judge under S.115(2), C.P.C.---Maintainability---High Court could not entertain further revision petition against such order.

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

----S.24-A(2)---Dismissal of miscellaneous applications by Trial Court by observing same having no merits for consideration---Validity---Trial Court had dismissed such applications with one stroke in a slipshod manner without discussing merits and demrits thereof and assigning reasons therefor---High Court set aside impugned order for being non-speaking in circumstances.

PLD 2002 Kar. 524 rel.

----Ss.151 & 152---Inherent jurisdiction of court to correct its own mistake/error---Scope---Court of its own motion could correct its mistake/error at any time i.e. for which no time limit provided---Principles.

Justice is not only to be done, but it should appear to have been done. The inherent powers bestowed under section 151, C.P.C. empowers the court to do justice or redress a wrong even if there is no express provision of the Code in order to secure the ends of justice. The court had inherent power to take all steps to executes its own mandates and orders. The provision of this section empowers a court to correct its own mistake. Likewise from the perusal of language of section 152, C.P.C., it seems that the court is empowered to correct, inter alia, the errors arising therein from any accidental slip or omission at any time even of its own motion. The wordings in the said section i.e. (i) errors arising therein from any accidental slip or omission, (ii) at any time and (iii) of its own motion are of wroth importance.

Words "at any time" also stipulates that there is no time limit provided, but such error can be corrected at any time.

Abdul Khalique for Applicant.

Sami Ahsan for Respondents Nos. 1 and 2.

Date of hearing: 3rd April, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 641 #

2014 M L D 641

[Sindh]

Before Shah Nawaz Tariq, J

MEHBOOB---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1123 of 2011, decided on 9th September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Bail, refusal of---Accused who had committed the brutal murder, was not entitled for grant of bail merely on the ground of delay in conclusion of trial, whereas such delay was on part of accused as defence counsel himself had sought ten adjournments, despite the presence of prosecution witnesses before the Trial Court---Only official witnesses were left to be examined by the prosecution---Trial Court was directed to conclude the trial and decide the case within three months without fail---Bail was refused.

2012 SCMR 354; 1996 PCr.LJ 1440; 2002 YLR 3625; 2004 YLR 2027; 2008 SCMR 1448; 2004 PCr.LJ 1154 and 1991 PCr.LJ 534 ref.

1998 SCMR 897; 2002 SCMR 1381; Ali Muhammad and another v. The State 2009 PCr.LJ 521 and Lal v. Allahyar and another 1993 SCMR 525 rel.

Muhammad Iqbal Memon for Applicant.

Manzoor Ahmed Junejo for the Complainant.

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

MLD 2014 KARACHI HIGH COURT SINDH 653 #

2014 M L D 653

[Sindh]

Before Abdul Rasool Memon, J

SUI SOUTHERN GAS COMPANY LTD.---Applicant

Versus

Haji FAIZ MUHAMMAD and 3 others---Respondents

R.A. No.162 of 2011, decided on 29th April, 2013.

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

----S. 1---Civil Procedure Code (V of 1908), O.XVII, R.2, O.IX, R.9 & S.115---Suit for recovery of compensation amount---Plaintiffs filed suit which was dismissed due to non-appearance of the parties---Application for restoration of suit---Application filed by the plaintiffs was dismissed by the Trial Court but Appellate Court remanded the case for disposal in accordance with law---Validity---Suit was fixed for evidence of the plaintiff and both the parties absented themselves from the court and suit was dismissed---Said suit was dismissed under O. XVII, R. 2, C.P.C.---Impugned order passed by the Appellate Court which had authority to interfere with the order of dismissal of suit as a revisional court could not be declared as without lawful authority and of no legal effect---Requirement of law was that the case was to be decided on merit and not on technical ground---Order for remanding the case to the Trial Court was according to law and did not require interference by the High Court---Revision petition was dismissed.

Mst. Noor Jehan v. Mst. Roshen Jehan and 6 others 1994 SCMR 2265 rel.

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

----S. 115, O. IX, R. 4 & O. XVII, R. 2---Revision---Competency---When order on account of absence of plaintiff resulting in dismissal of suit for want of prosecution was passed in the manner prescribed under O. IX, R. 4, C.P.C. or under O. XVII, R. 2, C.P.C. then same was open for revision but not for appeal.

Mst. Noor Jehan v. Mst. Roshen Jehan and 6 others 1994 SCMR 2265 rel.

----Requirement of law was that the cases were to be decided on merit and not on technical ground.

Farmanullah Khan for Applicant.

None present for Respondents.

Date of hearing: 8th April, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 663 #

2014 M L D 663

[Sindh]

Before Riazat Ali Sahar, J

SHAHBAN BHERI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-39 of 2008, decided on 24th May, 2013.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Medical account being in conflict with the ocular account had cast doubt on the veracity of the version of F.I.R.---Complainant, did not hold accused responsible for the murder in the court---Complainant in cross-examination had exonerated the accused---Contents of F.I.R. stood negated by informant---Dying declaration was not produced before the Trial Court at the time of trial---Previous vengeance between the parties, and the record did not speak of the deceased being in expectancy of death at the time of giving his statement, which could hardly meet the requirement of dying declaration---False implication of accused was possible in circumstances---In view of circumstances which having made the case doubtful, the purported dying declaration, could hardly be given weight, specifically for the purpose of basing conviction---Impugned judgment was set aside, in circumstances.

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

----Art. 46---Dying declaration---Scope---Dying declaration by itself was not a strong piece of evidence being not tested by way of cross-examination---For believing or disbelieving a dying declaration, the court should always insist upon strong, independent and reliable corroboratory evidence for the sake of safe dispensation of justice---Dying declaration stood on the same footing as any other piece of evidence, and had to be judged in the light of surrounding circumstances; and with reference to the principles governing the appreciation of evidence in criminal cases---Not an absolute rule of law; or even of prudence, that a dying declaration could not form the sole basis of conviction unless it was corroborated---Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made, so that the court was satisfied that the same was true and genuine---In order to test the reliability of a dying declaration the court had to keep in view the various circumstances like the opportunity of the dying man for observation; whether the capacity of the deceased to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; whether the statement had been consistent throughout if he had made several dying declarations; and whether the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties---Exact contents of the dying statement should be proved by reliable evidence, and for that reason a dying statement recorded by a competent Magistrate in the proper manner in the words of the maker of the declaration would carry greater weight than on oral statement which could suffer from all the infirmities of human memory and human character---If the court would come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the identity of the assailants, there was no need of further corroboration, but if it appeared to be unreliable by itself, or suffered from some infirmity, then it could not form the basis of a conviction without corroboration.

----Benefit of doubt---Scope---Benefit of a slightest doubt, emerging out of the story of prosecution, had to be given to accused as a matter of right.

Manzoor Ahmed Junejo and Ubedullah Ghoto for Appellant.

Zulfiqar Ali Jatoi, Deputy Prosecutor General for the State.

Date of hearing: 24th May, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 673 #

2014 M L D 673

[Sindh]

Before Abdul Rasool Memon, J

DHANI BUX---Appellant

Versus

SIKANDAR and 6 others---Respondents

Criminal Acquittal Appeal No.S-31 of 2013, decided on 19th August, 2013.

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

----Ss. 417(2-A) & 410---Appeal against acquittal and appeal against conviction---Scope---Appraisal of evidence---Principles---Principles 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 trial, then he would earn the presumption of double innocence, which could not be set at naught by the Appellate Court slightly, unless it was established on the basis of available evidence that the impugned judgment of acquittal was perverse, fanciful, or had resulted into grave miscarriage of justice.

Barkat Ali v. Shaukat Ali and others 2004 SCMR 249 rel.

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

----Ss.506(2), 114, 147, 148 & 504---Criminal Procedure Code (V of 1898), S. 417(2-A)---Criminal intimidation, abettor present when offence was committed, rioting---Appeal against acquittal---Appreciation of evidence---Enmity existed between the parties over forest land---Both prosecution witnesses were son and nephew of the complainant, and one of the said prosecution witnesses was not examined in the case---Whole case of prosecution was based on interested and hostile witnesses; their evidence required close scrutiny, in circumstances---Major contradictions were noticed in the statements of alleged eye-witnesses---Complainant had contradicted his own version given in the F.I.R., which indicated that either the alleged eye-witnesses were not together with complainant at the time of incident, or incident had not taken place as was alleged by the prosecution---Evidence of alleged eye-witnesses, being not trustworthy and confidence inspiring, independent corroboration was necessary, which was lacking in the case---Accused persons having succeeded to create shadow of doubt upon prosecution case, Trial Court had rightly acquitted the accused persons---Complainant having failed to make out a case for taking cognizance under S.417, Cr.P.C., appeal against acquittal being devoid of merits, was dismissed, in circumstances.

Muhammad Ali v. Muhammad Yaqoob and 3 others 1998 SCMR 1814 and Amal Sherin and another v. The State through A.G. N.-W.F.P. PLD 2004 SC 371 ref.

Barkat Ali v. Shaukat Ali and others 2004 SCMR 249 and Muhammad Irshad and another v. The State 1999 SCMR 1030 rel.

Ali Nawaz S. Junejo for Appellant.

MLD 2014 KARACHI HIGH COURT SINDH 681 #

2014 M L D 681

[Sindh]

Before Ghulam Sarwar Korai and Naimatullah Phulpoto, JJ

ATHER NAEEM alias WAQAS CHAUDHARY---Appellant

Versus

The STATE---Respondent

Special Anti-Terrorism Jail Appeal No.31 of 2006, decided on 11th October, 2013.

Penal Code (XLV of 1860)---

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Kidnapping for ransom, act of terrorism---Appreciation of evidence---Complainant had identified accused in the identification parade as well as in court---No mala fide or enmity had been alleged by accused for his false implication in the case---No material contradiction had been highlighted by defence counsel on any point---Minor contradictions, which were bound to occur in every case, would not be fatal to the case of prosecution---Non-payment of ransom to accused was not material---Trial Court had properly appreciated the evidence---Evidence of the complainant and abductee, was also corroborated by other evidence---Despite lengthy cross-examination, nothing had been brought on record which could cast any doubt as to veracity of the evidence of witnesses---Appreciation of evidence by the Trial Court was to be given full weight by High Court for the reason that Trial Court had the advantage of observing demeanour of the witnesses---Evidence of prosecution witnesses was quite straightforward and confidence inspiring and not having any inherent defect---Prosecution having succeeded to prove its case against accused, Trial Court had rightly found accused guilty after appreciating the evidence in accordance with principles of law---Conviction recorded by the Trial Court against accused vide impugned judgment, was maintained, which required no interference.

Mst. Anwar Begum and 7 others v. Syed Muhammad Siddique and another 1991 MLD 1182; Mst. Zeenat alias Baby alias Madam and others v. The State 2007 YLR 3012; Dr. Muhammad Abrar Younus v. The State 2010 YLR 1674; Agha Wazir Abbas and others v. The State 2003 PCr.LJ 1353 and Abdul Sattar v. The State 2002 PCr.LJ 51 ref.

Abdul Razzak and S.Lal Hussain Shah for Appellant.

Khadim Hussain Khuharo, D.P.G. for the State.

Date of hearing: 30th September, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 693 #

2014 M L D 693

[Sindh]

Before Nadeem Akhtar, J

TARIQ ALI---Petitioner

Versus

Mst. RUBINA BANO and another---Respondents

Constitutional Petition No.S-6 of 2013, decided on 12th December, 2013.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Scope---Application for ejectment of tenant---Bona fide personal need of landlady---Ejectment petition was dismissed by Rent Controller which was accepted partly by the Appellate Court on the ground of personal bona fide need of landlord---Appellate Court maintained the dismissal of eviction petition on the ground of default in payment of rent as same was not challenged by the landlady---Validity---Landlady did not disclose in her evidence the nature of business she intended to establish at the demised premises---Another shop belonging to landlady which was bigger than the demised premises was lying vacant and was in her possession prior to filing of rent petition---Landlady had tried to improve her case in her evidence as same was not consistent with the averments made by her in her eviction petition---Landlady had not mentioned either in eviction petition or her evidence that another shop was lying vacant and was in her possession and same was not suitable for the business she intended to start---Landlady was bound to give plausible and satisfactory ground/explanation to occupy a particular premises in preference to occupy any other premises available for occupation and use---Such concealment made by the landlady had not only negated her good faith and bona fide but had also demolished her case---No reason was given by the Appellate Court for disagreeing with the well-reasoned findings of Rent Controller---Impugned judgment was vague and non-speaking which was passed without appreciation of evidence on record---Appellate Court was bound to give its own independent and logical reasons for setting aside judgment of Rent Controller---Appellate Court had committed grave error in law by not giving reasons for disagreeing with the findings of Rent Controller---Findings of Appellate Court were erroneous and were based on misreading of evidence---Appellate Court had failed to exercise jurisdiction vested in it---High Court having inherent and constitutional powers to remedy/correct the wrong committed by the courts below when judgments/orders were passed either without exercising jurisdiction vested in them or by exercising jurisdiction not vested in them---Impugned judgment was declared to be of no legal effect and same was set aside---Constitutional petition was accepted in circumstances.

Allies Book Corporation through L.Rs. v. Sultan Ahmed and others 2006 SCMR 152 rel.

Aziz-ur-Rahman Akhund for Petitioner.

Mst. Rubina Bano, Respondent No.1 (in person).

1st Additional District Judge, Karachi Central Respondent No.2.

Date of hearing: 13th August, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 723 #

2014 M L D 723

[Sindh]

Before Aziz-ur-Rehman, J

MUNEER---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-400 of 2012, decided on 23rd October, 2013.

Criminal Procedure Code (V of 1898)---

----Ss.103 & 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9 (c) & 25---Recovery of narcotic substance---Bail, grant of---Complainant as investigating officer---Delay in trial---Private witness, non-association of---Charas weighing 3 kilograms was allegedly recovered from accused during day time in a busy street---Plea raised by accused was that no private person was associated with recovery proceedings, complainant of case himself investigated the case and accused had been in custody for the last 22 months---Validity---Investigating officer should not be biased and if complainant of crime was also investigating officer, then in such eventuality factor of bias could not be ruled out---Provisions of S. 25 of Control of Narcotic Substances Act, 1997, excluded applicability of S. 103, Cr.P.C. but such exclusion did not authorize investigating officer of police or such other officer absolutely to exclude independent witnesses in all circumstances---Question of extension of benefit of doubt particularly at least in a case of further inquiry needed to be determined at bail stage, keeping in view the difference between "jail life" and "free life"---Accused was a young man of phosphoric age and since his arrest he had been behind the bar (for more than 22 months)---Case set up against accused was of great doubt and needed further inquiry---High Court did not allow to keep accused behind bars continuously amongst criminals and that too without any conviction in regular trial---Grant of bail in bailable offences was a right and not a favour and in non-bailable offences grant of bail though was not a right but a grace/concession---Bail was allowed in circumstances.

Dildar Ali, P.C. v. The State 2009 MLD 133; Tariq Bashir and 5 others v. The State PLD 1995 SC-34; Ghulam Murtaza and others v. The State PLD 2009 Lah. 362; Nazeer Ahmed v. The State PLD 2009 Kar. 191; State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408; Agha Qais v. The State 2009 PCr.LJ 1334; Ghulam Abbas v. The State 2011 YLR 1723; Bahawal alias Naang v. The State 2011 PCr.LJ 1200; Nasir Khan Afridi v. The State 2011 YLR 2316; Khuda Bux v. The State 2010 SCMR 1160; Muhammad Faiz v. The State 2008 YLR 1214; Imdad Ali v. The State 2001 YLR 1848; Hakim Mumtaz Ahmed v. The State PLD 2002 SC 590; Hamza v. The State 2000 PCr.LJ 1360 and Nisar Khan v. The State 2013 YLR 1120 rel.

Ahsan Gul Dhari for Applicant.

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

Date of hearing: 8th October, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 750 #

2014 M L D 750

[Sindh]

Before Sadiq Hussain Bhatti, J

Mrs. RUBINA ALI through Special Attorney---Plaintiff

Versus

AYESHA KAMAL through Legal heir and 4 others---Defendants

Suit No.1316 of 2009, decided on 22nd October, 2013.

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

----O.VIII, R.10---Qanun-e-Shahadat (10 of 1984), Art. 118---Non-filing of written statement and non-entering of defendant in witness box to rebut plaintiff's assertions made in plaint and affidavit-in-evidence---Effect---Such assertions of plaintiff being un-rebutted would be admitted.

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

----S.12---Civil Procedure Code (V of 1908), O.VIII, R.10---Qanun-e-Shahadat (10 of 1984), Art. 118---Suit for specific performance of oral sale agreement---Plaintiff claimed to be in possession of suit property for several years after paying entire sale consideration to defendant against receipt/pay orders---Non-filing of written statement and non-entering of defendant in witness box to rebut plaintiff's assertions made in plaint and affidavit-in-evidence---Validity---Such assertions of plaintiff for being un-rebutted would be admitted---Such receipt, in absence of written sale agreement between parties, constituted a privity of contract between parties---Had such payment not been made to defendant towards sale consideration, then he would have definitely asserted such possession of plaintiff over suit property to be illegal and agitated thereagainst---Plaint and affidavit-in-ex parte proof were verified on oath, and there was nothing in rebuttal thereof---Suit was decreed in circumstances.

Muhammad Ikhlaq v. Sheikh Muhammad Saeed 1991 CLC 2064 rel.

S.A. Shabbar Rizvi for Plaintiff.

Nemo for Defendants.

Date of hearing: 4th October, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 771 #

2014 M L D 771

[Sindh]

Before Shahnawaz Tariq, J

KHUSHI MUHAMMAD---Applicant

Versus

The STATE and 6 others---Respondents

Criminal Miscellaneous Application No.698 of 2013, decided on 8th November, 2013.

Criminal Procedure Code (V of 1898)---

----S.491---Habeas corpus petition---Recovery of wife---Custody with parents---Petitioner and alleged detenu were husband and wife who contracted marriage without consent and knowledge of her parents---Grievance of petitioner was that his wife had gone with her parents who had kept her in illegal custody---Validity---High Court declined to accept that wife of petitioner had been detained by her parents and also declined to get her recovered from house of her parents through police as the same would cause humiliation and disgrace to them in society as well as in relatives and neighborhood---Custody of petitioner's wife in house of her real parents could not be termed as unlawful and path adopted by petitioner was a mala fide on his part---High Court advised the petitioner to approach proper court for seeking conjugal rights---Petition was dismissed in circumstances.

Irfan Ahmed v. S.H.O. and 6 others 2011 PCr.LJ 597; Mst. Islam Khatoon v. S.H.O. Police Station Manjoo Shori and 9 others 2011 PCr.LJ 871; Muhammad Javed Sagar v. Station House Officer and 2 others 2011 PCr.LJ 674 and Shoukat Ali v. Altaf Hussain Qureshi and another 1972 SCMR 398 ref.

Sohail Ahmed Khoso for Applicant.

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

Date of hearing: 8th November, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 789 #

2014 M L D 789

[Sindh]

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

CHIEF ENGINEER AND PROJECT DIRECTOR through authorized person/Special Attorney---Petitioner

Versus

2ND ADDITIONAL DISTRICT AND SESSIONS JUDGE, HYDERABAD and 2 others---Respondents

Constitutional Petition D-1563 of 2013, decided on 26th September, 2013.

Constitution of Pakistan---

----Art.199---Constitutional petition---Attachment of account of petitioner by executing court for non-payment of interest---Scope---Contention of petitioner was that entire amount had been paid---Validity---Neither the decree directing payment of interest nor the order for payment of same was assailed in any proceedings and same had attained finality---Executing Court passed order for attachment of account of petitioner so that decree be executed---Orders of executing court to enforce and implement such orders could not be called in question---No illegality was pointed out in the impugned order---Constitutional petition was dismissed in circumstances.

2014 M L D 905

[Sindh]

Before Hasan Feroz, J

Messrs TANVEER POULTRY SERVICES through Proprietor---Appellant

Versus

Messrs K & N'S POULTRY FARMS through Managing Partner and 2 others---Respondents

2nd Appeal No.68 of 2012, decided on 31st January, 2014.

Constitution of Pakistan---

----Art.10-A---Civil Procedure Code (V of 1908), S.100---Second appeal---Scope---Second appeal had limited scope whereby decision having failed to determine some material issue of law which might possibly had produced error in the same---Decision made by the courts below was not corroborated by evidence---Issue framed by the Trial Court required determination on basis of evidence while deciding the matter---Right of fair opportunity was to be afforded in accordance with law---Counsel for defendant could not appear and adduce evidence due to his illness---Essence of justice required that defendant should be afforded with chance to produce his evidence---Impugned judgments and decrees of both the courts below were set aside and case was remanded to the Trial Court for decision afresh on merit---Appeal was accepted in circumstances.

Muhammad Rashid for Appellant.

Bashir Ahmed for Respondents.

Date of hearing: 6th November, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 927 #

2014 M L D 927

[Sindh]

Before Abdul Maalik Gaddi, J

MUHAMMAD NASEEM---Petitioner

Versus

MUHAMMAD IMRAN and 3 others---Respondents

Constitutional Petition No.S-613 of 2012, decided on 19th February, 2014.

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

----S. 15---Constitution of Pakistan, Arts.199 & 23---Constitutional petition---Application for ejectment of tenant on the grounds of default in payment of rent, sub-letting of premises by the tenant and bona fide personal need of landlord---Scope---Ejectment petition was accepted concurrently---Validity---Demised premises was required by the landlord for bona fide personal use---No circumstances existed to show that the desire of landlord to use the property for his own accommodation was tainted with malice or any evil design---Statement of landlord was consistent with the case pleaded by him and same must have been accepted by giving due weight---Findings of Rent Controller with regard to bona fide personal need of landlord could not be dislodged in the absence of any strong evidence to rebut the presumption of truth in his statement---Landlord had right to acquire and deal with the property in the manner best suited to him and tenant had no right to disentitle him from his valuable right to acquire, deal and possess his property---Tenant had sub-letted the premises without any legal justification---Findings of both the courts below with regard to personal bona fide need of landlord were correct and in accordance with law---Tenant was directed to vacate the premises within a period of 60 days---Constitutional petition was dismissed in circumstances.

Rais Illahi Bux and another v. Inamullah 1991 CLC Note 46 at p.33; Iqbal Book Depot and others v. Khatif Ahmed and 6 others 2001 SCMR 1197; Mst. Jamila v. Muhammad Iqbal and 2 others 2013 MLD 52; Muhammad Arshad v. Syed Ali Hussain Rizvi and 2 others 2013' CLC 1129 and Mrs. Ghulam Fatima v. Shaikh Muhammad Yousuf and another 2013 MLD 1233 ref.

Rais Illahi Bux and another v. Inamullah 1991 CLC Note 46 at p.33 distinguished.

Samsam Ali Raza for Petitioner.

Azizuddin Qureshi for Respondent No.1

Petitioner in person for Respondent No.2.

None for Respondents Nos.3 and 4.

Date of hearing: 19th February, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 936 #

2014 M L D 936

[Sindh]

Before Aftab Ahmed Gorar, J

LALIO and 6 others---Appellants

Versus

1ST ADDITIONAL SESSIONS JUDGE, DISTRICT BADIN and another---Respondents

Criminal Appeal No.S-270 of 2012, decided on 11th March, 2013.

Penal Code (XLV of 1860)---

----Ss. 324, 335, 336 & 337-A(i)---Attempt to commit qatl-e-amd, Itlaf-i-Salahiyyat-i-Udw---Appreciation of evidence---Accused were charged for having caused injuries to the injured, whereby left side of her body was weakened---Evidence of the complainant and other witnesses, was circumstantial---Lady Doctor did not specify, either in her certificate or deposition, as to which organ of body of the victim was destroyed, or was permanently impaired, or disfigured, and these were the essential ingredients of S.335, P.P.C. punishable under S.336, P.P.C.---Charge against accused persons was framed under S.324, P.P.C., and they were not given the notice of the injuries allegedly sustained by the victim---Statements of accused persons, were not recorded in accordance with law, as there was no question put-forth to them in respect of injuries allegedly sustained by the victim, or the material produced by the prosecution in order to explain their position---Trial Court did not follow relevant provision of law while framing the charge, and recording statement of accused persons under S.342, Cr.P.C., which had prejudiced the case of accused persons---Impugned judgment was set aside, and case was remanded to the Trial Court to frame the charge properly in accordance with law; and after recording evidence of the prosecution witnesses, record the statements of accused persons under S.342, Cr.P.C. putting forth the material purportedly brought by the prosecution; and conclude the trial in accordance with law.

Munir Ahmed alias Munni v. The State 2001 SCMR 56; Asif Iqbal and 3 others v. The State and another 2012 PCr.LJ 91; Dilsher v. The State PLD 2012 Sindh 307; Pir Mumtaz and another v. The State 2005 PCr.LJ 721 and Muhammad Ayub v. The State 2006 PCr.LJ 257 ref.

Sajjad Ahmed Chandio for Appellants.

Shahzado Saleem Nahyoon Assistant Prosecutor General for Respondents.

Date of hearing: 25th February, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 953 #

2014 M L D 953

[Sindh]

Before Abdul Rasool Memon, J

UMAIR AHMED KHAN---Appellant

Versus

YOUSUF ALI KHAN GHOURI and another---Respondents

Criminal Appeal No.S-97 of 2011, decided on 28th June, 2013.

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

----Art. 117---Burden of proof---Criminal trial---Burden was upon the prosecution under Art.117 of Qanun-e-Shahadat, 1984---Accused's defence or no defence, was immaterial.

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.324 & 506(b)---Attempt to commit qatl-e-amd, criminal intimidation---Appeal against acquittal---Appreciation of evidence---Complainant gave different version of the occurrence, and made improvements in his court statement to justify his presence at alleged place of occurrence, otherwise he had not stated in the F.I.R. as to why he was present at the place of occurrence---Other eye-witnesses, had also deposed a different fact---Complainant had admitted enmity with accused---Evidence of both the eye-witnesses who were friends of the complainant, was interested and untrustworthy---Said witnesses could not be deemed independent witnesses---When the parties were on inimical terms, independent corroboration was necessary---Independent witness, had clearly stated that he himself had not seen accused at the time of alleged incident---Wife of complainant, though was sister of accused, but she was not present at the time of alleged incident, her evidence, in circumstances, was hearsay and not material one---Investigating Officer was not examined, but in his place another Police Officer was examined, who simply identified the handwriting of both the Investigating Officers---Prosecution was to prove its case against accused beyond any shadow of reasonable doubt, and the prosecution could not take benefit from the weakness of the defence plea---Prosecution having failed to establish its case beyond reasonable doubt, accused was rightly acquitted by the Trial Court.

Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644 rel.

Appellant in person.

Abid Akram for Respondent No.1.

Shahzado Saleem Asst. P.G. for the State.

Date of hearing: 22nd May, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 965 #

2014 M L D 965

[Sindh]

Before Farooq Ali Channa, J

ASGHAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.332 of 2009, decided on 6th May, 2013.

Penal Code (XLV of 1860)---

---Ss. 308 & 331---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-e-amd not liable to qisas---Appreciation of evidence---Allegation against the accused was that he committed murder of the sister of complainant (wife of the accused) by setting her on fire---Trial Court convicted the accused---Validity---Prosecution witnesses had supported the prosecution and defence counsel had failed to shake their evidence or extract any contradiction to cause dent in prosecution evidence---Complainant had reiterated the same facts mentioned in the F.I.R. and his brother had corroborated his evidence---Investigation Officer in his evidence before the trial court had narrated in detail whatever evidence he had collected during investigation---Medical Officer in her evidence had deposed that she examined the injured and declared her death due to severe burning injuries and suffocation and during cross-examination, she denied that deceased had committed suicide---Counsel for accused had failed to produce the record of property mutated in the name of accused which the complainant intended to usurp by implicating the accused in the case falsely---Defence counsel had failed to point out enmity or any reason compelling prosecution witnesses to give false evidence against the accused having no interaction with the complainant party---Entire prosecution case was based upon the statement of deceased which amounted to be her dying declaration which under Art. 46(1) of Qanun-e-Shahadat, 1984 could be admitted to help the courts of justice to arrive at correct finding of fact---Investigation Officer who recorded the statement of deceased had fully supported the prosecution version and his evidence was corroborated by the witnesses in whose presence the statement of deceased was recorded---Statement of the deceased that she was set on fire by sprinkling kerosene oil was corroborated by recovery of gallon bottle containing some quantity of kerosene oil and match box along with burnt bed sheet and pillow cover from the place of incident and these recoveries were not denied by the accused---Dying declaration/statement of deceased satisfied the test of its sanctity---Prosecution had proved its case beyond any shadow of reasonable doubt---Trial Court had discussed the prosecution evidence thoroughly keeping the defence plea in juxta position and had come to a correct conclusion that accused was guilty of committing the murder of his deceased wife---Impugned judgment did not suffer from infirmity nor was based upon misreading and non-reading of evidence, requiring the interference by the High Court---Jail appeal was dismissed.

Khashif-ur-Rehman and others v. The State 1996 PCr.LJ 1689 and Khalid Memhood and others v. The State 1998 PCr.LJ 901 rel.

Mumtaz Ali Khan Deshmukh for Appellant.

Ms. Rahat Ehsan, D.P.G. for the State.

Date of hearing: 30th April, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 980 #

2014 M L D 980

[Sindh]

Before Syed Muhammad Farooq Shah, J

HAKIM ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-8 of 2011, decided on 11th February, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-A(i) & 34---Qatl-e-amd, attempt to commit qatl-e-amd, causing Shajjah-i-Khafifah, common intention---Appreciation of evidence---Benefit of doubt---Two eye-witnesses of the incident, had not supported the case of prosecution---Version of the complainant, was also not inspiring confidence due to admitted enmity with accused---Prosecution's evidence did not inspire confidence, and was full of doubts---Both eye-witnesses had resiled from their S.161, Cr.P.C. statements---Private mashir had also been declared hostile when he did not support the case of prosecution, relating to recovery of crime weapon---Accused had established the plea of 'alibi', by showing his presence at another place at a marriage ceremony at the time of occurrence---False implication of accused in the case could not be ruled out---Trial Court was not justified to award conviction and sentence to accused, which were not sustainable in law, in the light of the principle that a single circumstance creating doubt in the prudent mind, was sufficient to extend benefit of doubt to accused, not as a matter of concession, but as a matter of right---Accused was acquitted of the charge, in circumstances.

Muhammad Afzal v. The State 2007 MLD 275; Dhani Bux and others v. The State 1984 PCr.LJ 2533; Ali Muhammad and others v. The State 2007 YLR 894; Amir Bux and others v. The State 2012 YLR 498; Laaik Ali alias Jangu v. The State 1983 PCr.LJ 1378; Zulfiqar Ali Rahar v. The State 2011 PCr.LJ 890; 1995 SCMR 1345; 1997 SCMR 25; 2008 SCMR 1221 and Mehmood Ahmed and 3 others v. The State 1995 SCMR 127 ref.

Ayaz Hussain Tunio for Appellant.

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

Date of hearing: 11th February, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1000 #

2014 M L D 1000

[Sindh]

Before Nazar Akbar, J

Mst. HAFEEZ BEGUM through Attorney---Plaintiff

Versus

Mrs. ZAINAB MUHAMMAD ALI and others---Defendants

Suit No.1224 of 2001, decided on 2nd October, 2013.

Civil Procedure Code (V of 1908)---

----S.75---Partition Act (IV of 1893), S.4---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration, injunction and partition---Local Commission, appointment of---Recording of evidence---Object and scope---Local Commission already appointed returned the commission due to attitude of counsel for defendant---Plea raised by defendant was that recording of evidence was function of court and appointment of Commission would delay the matter---Validity---If High Court had power to save its time by recording evidence through the Commission, it was expected the counsel appearing for litigants should facilitate the court and cooperate with Commissioners as it was always in their own benefit---Whatever time saved by court in recording of evidence, was consumed by the court in other urgent matters requiring immediate orders in different cases and at the same time it would give some space to the court in reducing backlog by pronouncing lengthy judgments in cases which were ripe for final disposal---High Court appointed another Commissioner for recording of further evidence.

Muhammad Haseeb Jamali for Plaintiff.

Mushtaq A. Memon for Defendants Nos.1 and 4 to 8.

Basil for Defendant No.2.

MLD 2014 KARACHI HIGH COURT SINDH 1016 #

2014 M L D 1016

[Sindh]

Before Abdul Maalik Gaddi, J

MUHAMMAD ASLAM and 4 others---Appellants

Versus

MUHAMMAD JAVED and 7 others---Respondents

IInd Appeal No.17 of 2012, decided on 21st January, 2014.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession of immovable property---Oral evidence in presence of documentary evidence---Scope---Contention of defendants was that they were owners of disputed premises---Suit was decreed concurrently---Validity---Defendants had failed to produce any sale agreement, payment receipt or any documentary proof with regard to payment of sale consideration---No witness of sale transaction had been produced by the defendants to prove that suit property was sold to them---Plaintiffs had produced documentary proof with regard to their ownership in the suit premises whereas the claim of defendants was based on oral assertion---Oral evidence/assertions had no value in presence of documentary evidence---Mere possession or occupation of disputed property would not constitute a legal right to retain the same for indefinite period---Possession or occupation could not sustain the claim to title to the property in possession or occupation---Possession itself could not be equated to that of legal right---Defendants had no locus standi with regard to their claims and their possession on the suit property was illegal---No illegality or infirmity had been pointed out in the impugned orders---Concurrent findings recorded by the courts below could not be disturbed unless same were against the evidence on record---Appeal was dismissed in circumstances.

Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin 1988 SCMR 753; Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837 and Ghiasuddin and others v. Ghulam Mohyuddin and others 2005 SCMR 471 rel.

Asmat Ara Qureshi for Appellants.

Nadeem Ahmed Farooqi for Respondents.

Date of hearing: 21st January, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1033 #

2014 M L D 1033

[Sindh]

Before Shahnawaz Tariq, J

MUHAMMAD WARIS---Applicant

Versus

STATION HOUSE OFFICER and another---Respondents

Criminal Miscellaneous Applicant No.S-434 of 2013, decided on 17th February, 2014.

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

----Ss. 22-A & 154---Application before Justice of Peace for lodging of F.I.R. against police officials---Ulterior motives of complainant---Effect---Complainant/applicant filed an application before Justice of Peace contending that accused-police officials entered his house, maltreated womenfolk causing them injuries, due to which his pregnant wife also lost her unborn child---Justice of Peace refused application of complainant---Validity---Complainant failed to produce any medical certificate/treatment regarding alleged abortion of his wife as well as injuries sustained by other women---Brother of complainant had been challaned in two cases by the concerned police station, from which accused police officials belonged---Record showed that one of the police officers who allegedly entered complainant's house remained suspended from duty much before the incident, and thereafter he was posted at another city---Such facts were self-explanatory to falsify the allegations levelled by the complainant, which failed to prima facie establish that a cognizable offence had been made against the accused-police officials---Application of complainant was dismissed with the observations that it was mandatory for the court to keep strict check over the highhandedness of the police, but at the same time (court had to consider) the aspect of discouragement and humiliation of police at the hands of criminals with ulterior motives for creating deterrence by approaching the Justice of Peace for lodging of F.I.R., so that police may not take action against them.

Javed Tariq Khan v. Ahmad Raza Khan 1999 MLD 3230; Zafar Iqbal v. Inspector General of Police and others 1994 MLD 374; Qadar Ullah v. S.H.O. Police Station Latamber and 2 others 2012 YLR 1836 and Imtiaz Ahmed Cheema v. S.H.O. Police Station Dharki Ghotki 2010 YLR 189 rel.

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

----Ss. 22-A & 154---Application before Justice of Peace for lodging of F.I.R.---Ulterior motives of complainant---Duty of Justice of Peace to decide application judiciously---Scope---Public had made it a practice to settle their accounts by approaching the Justice of Peace under S.22-A, Cr.P.C. for lodging of F.I.R. against the opposite party so as to humiliate and disgrace them in society at large as well as in front of relatives and friends---Prime duty of court was to examine each and every case minutely and such applications must not be allowed in routine, as the hands of a judge were tied by the provisions of S. 22-A, Cr.P.C. and an application under the said section must be considered independently and judiciously to meet the ends of justice.

Ghazanfar Ali Jatoi for Applicant.

Shahid Ahmed Shaikh, Assistant P.G. for Respondent.

Zafar Ali Otho for proposed accused.

MLD 2014 KARACHI HIGH COURT SINDH 1046 #

2014 M L D 1046

[Sindh]

Before Aftab Ahmed Gorar, J

ABDUL QAYYUM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.57 of 2011, decided on 16th April, 2013.

Penal Code (XLV of 1860)---

---Ss. 320, 337-G & 427---Criminal Procedure Code (V of 1898), S.345---Qatl-e-khata by rash or negligent driving, hurt by rash or negligent driving and mischief---Compounding of offences---Accused was convicted and sentenced by the Trial Court who during pendency of appeal moved application for permission to enter into compromise---Offence under S. 320 P.P.C. was made compoundable---Injured admitted the contents of the compromise application and had pardoned the accused and waived all the claims---Major legal heirs of the deceased as well as Wali of the minor legal heirs had pardoned the accused and waived all the claims including Diyat---Offences having been compounded, report of the Trial Court regarding genuineness of the compromise had been submitted---Appeal was disposed of and accused was acquitted.

Hussain Bux and others v. The State PLD 2003 Kar. 127 rel.

Zia Hussain Shah for Appellant.

Ms. Ahsan Rahat, Addl. P.G. for the State.

MLD 2014 KARACHI HIGH COURT SINDH 1059 #

2014 M L D 1059

[Sindh]

Before Aftab Ahmed Gorar, J

GHULAM ARIF KHAN---Petitioner

Versus

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

Constitutional Petition No.S-371 of 2013, decided on 2nd May, 2013.

(a) Administration of justice---

----No one should be knocked out on technicalities, rather controversy to be decided on merits while providing equivalent opportunity of being heard.

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

----Ss. 523 & 550---Constitution of Pakistan, Art.199---Constitutional petition---Seizure of property by Police---Procedure---Dispute of civil nature---Effect---Petitioner had purchased the car from complainant---F.I.R. lodged by complainant was disposed of by the Judicial Magistrate treating the dispute between the parties to be of civil nature---Police impounded the car from the house of petitioner---Validity---Seized car was not a stolen property and same was purchased by the petitioner in lieu of consideration from complainant---Police was not justified to seize the car---Constitutional petition was allowed---Police was directed to hand over the custody of seized car to the petitioner.

----Ss. 523 & 550---Constitution of Pakistan, Art.199---Constitutional petition---Seizure of property---Procedure by police upon impounding of property---Petitioner had purchased the car from complainant---Dispute of civil nature---Scope---Seized car had neither been forcibly snatched nor found involved in the commission of any offence and the police was not justified in seizing the same from the house of petitioner---Police did not obtain any warrant from the concerned Magistrate to enter into house of petitioner---Conduct of police officer was highly deplorable---Nobody could be allowed to enter into house, there was no reasonable ground that petitioner had committed any offence and in this regard nothing even had been brought on record---High Court directed to hand over the custody of seized car to the petitioner.

2005 SLJ 734; PLD 2009 Lah. 382; 1968 SCMR 1143 and Javed Iqbal v. Crescent Commercial Bank Ltd. PLD 2009 Lah. 382 ref.

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

----S.561-A---Inherent powers of High Court under S.561-A, Cr.P.C.---Scope---Administrative orders can be challenged before the High Court under S.561-A, Cr.P.C.

Arif Ali v. The State 1983 SCMR 187 rel.

Fareed Ahmed A. Dayo for Petitioner.

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

MLD 2014 KARACHI HIGH COURT SINDH 1065 #

2014 M L D 1065

[Sindh]

Before Sadiq Hussain Bhatti, J

MUHARRAM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-264 of 2006, decided on 28th August, 2013.

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

----S. 302---Qatl-e-amd---Appreciation of evidence---All three eye-witnesses had fully supported the prosecution case, and there was no dent in their evidence and their presence at the spot was not denied---Act of accused had shown the degree of venom, he had for the deceased---Motive was introduced, but left aside and not pressed, or hushed up to avoid further untoward incident---Motive, in circumstances, was not proved---Eye-witnesses' account was unblemished, corroborated by recovery of blood-stained crime-weapon, blood-stained clothes---Chemical report was positive---Since motive was not proved, accused had been given lesser punishment---After the final arguments were addressed, accused decamped, the court after declaring him proclaimed offender, kept his case on dormant file under S.512, Cr.P.C.---Accused after hectic effort was arrested after five years of his abscondance---Statements of eye-witnesses remained consistent on material particulars, despite lengthy cross-examination---Prosecution had been able to prove its case beyond reasonable doubt, in circumstances---Appeal was dismissed.

(b) Criminal trial---

----Witness---Related witness---Consideration of---Related witnesses could not be disbelieved, because of their relationship; their testimony could very well be taken into account, to evaluate their evidence, if it rang true coupled with other evidence.

Ms. Alia Sehar for Appellant.

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

Date of hearing: 22nd July, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 1078 #

2014 M L D 1078

[Sindh]

Before Hasan Feroz, J

Chaudhary MUHAMMAD YASEEN---Appellant

Versus

ABID WASEEM---Respondent

First Appeal No. Nil of 2012, decided on 31st January, 2014.

Civil Procedure Code (V of 1908)---

---O. XLI, R. 19---Limitation Act (IX of 1908), S. 5---Appeal, restoration of---Scope---Contention of applicant was that he could not furnish court fee due to his illness---Validity---Applicant had paid court fee after dismissal of his appeal with an application for condonation of delay---Conduct of applicant with the deposit of court fee and his inability for appearing on the date fixed for hearing would attract the essence of S. 5 of Limitation Act, 1908---Substantial justice would not meet the ends of justice if applicant would be precluded from pursuing his appeal---Appeal was restored subject to payment of cost of Rs.5,000 in circumstances.

Tariq Mahmood for Appellant.

Raja Muhammad Sabir for Respondent.

Date of hearing: 23rd January, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1086 #

2014 M L D 1086

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

Dr. ABDUL WAHAB---Appellant

Versus

SAMEENA MAQSOOD and others---Respondents

H.C.A. No. 76 of 2011, decided on 13th November, 2013.

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

----Ss.8, 39, 42 & 54---Civil Procedure Code (V of 1908), O.XL, R. 1---Suit for declaration, possession, cancellation of registered declaration confirming oral gift, injunction and rendition of accounts---Receiver, appointment of---Scope---Defendant being co-sharer in suit property claimed to be in its possession on basis of such registered gift made in his favour by other co-owner---Plaintiff's application for appointment of Receiver of suit property to take accounts and collect rent thereof from tenants---Acceptance of such application by Trial Court---Validity---Order XL, R. 1, C.P.C. was a harsh remedy---Legal presumption would exist in favour of a registered document, unless same was cancelled---No adverse inference could be drawn regarding validity of registered document and entitlement of person in whose favour same was executed---Mere allegations, unless proved to be correct through evidence, could not be treated at par with evidence in shape of a registered document---Defendant's possession over suit property on basis of such registered gift was constructive and he was collecting its rent for last several years without any objection by plaintiff---Suit property as per such registered gift was prima facie owned and possessed by defendant---High Court set aside impugned order in circumstances.

Mst. Afroze v. Senior Member, Federal Land Commission 1989 MLD 1732; Bahadur Khan v. Mst. Niamat Khatoon 1987 SCMR 1492 and Gulab Begum v. Additional Secretary, Home and Tribal Affairs Department, Govt. of N.W.F.P. PLD 1989 Pesh. 142 ref.

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

----S. 151, O. XXXIX, Rr. 1 & 2---Application for grant of temporary injunction---Factors essential to be proved by applicant and considered by Court stated.

While deciding an application under Order XXXIX Rules 1 and 2 read with section 151, C.P.C. seeking injunction, the courts are required to examine as to whether a party, who is claiming such interim relief, has a good prima facie case on merits, whereas balance of convenience for grant of injunction is also in his favour. Further it may be taken into consideration that if injunction is not granted, it may cause irreparable loss and damage to the claimant.

While seeking a favourable injunctive relief, the applicant has to prove the prima facie existence of the right claimed in the suit and also its infringement. But the mere fact that a prima facie case has been established will not entitle the applicant to an injunction unless the other two factors i.e. balance of convenience and irreparable damage or injury, are fulfilled. The court is required to balance the inconvenience and to see as to whether applicant will suffer more inconvenience by the withholding of the injunction than that which the respondent would suffer by granting of injunction. The Court is further required to weigh the mischief of either party in case of grant or refusal of the injunction. Normally the balance lies in favour of continuation of a state of things, such as to protect the possession of a party or to allow the continuance of a contract. Similar while granting injunction or otherwise, it has to be ensured that the grant of injunction to one party may not cause irreparable damage or injury to the other party whose loss cannot be compensated in terms of money.

Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139; Marghub Siddiqi v. Hamid Ahmed Khan and 2 others 1974 SCMR 519 and Abdul Ghafoor Memon v. Muhammad and another PLD 1975 Kar. 464 rel.

Fiaz H. Shah for Appellants

Shafi Muhammadi for Respondents Nos.1 and 2.

Suleman Huda for Respondent No. 3.

Sardar Muhammad Yousuf for Respondent No.4.

Date of hearing: 24th October, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 1107 #

2014 M L D 1107

[Sindh]

Before Nadeem Akhtar and Shahnawaz Tariq, JJ

Mst. NAGHMA and another---Petitioners

Versus

SUPERINTENDENT OF POLICE, NAUSHAHRO FEROZE and 3 others---Respondents

Constitutional Petition No.D-184 of 2014, decided on 18th February, 2014.

Penal Code (XLV of 1860)---

----Ss. 365-B & 452---Constitution of Pakistan, Art.199---Constitutional petition---Kidnapping, abducting or inducing woman to compel for marriage etc., house-trespass---Quashing of F.I.R.---Alleged abductee had not involved petitioner, accused for her abduction on gunpoint; and she herself returned to her house at her own accord, which had caused serious dent to the prosecution case---Alleged incident was not reported by father of alleged abductee, but was lodged by cousin of father of alleged abductee---F.I.R. was lodged about 13 days after alleged occurrence which had taken place on a bright day---Complainant party neither resisted the culprits, nor made hue and cry to attract public attention---Matter was not reported to Police immediately after alleged occurrence for recovery of the abductee---Statement of alleged abductee recorded under S.164, Cr.P.C., was absolutely contradictory to her statement recorded at the Principal seat of High Court---Investigating Officer was directed by High Court at Circuit Bench to record the statement of Nikah Khawan, witnesses and vakil of marriage under S.161, Cr.P.C., and then submit such report before concerned Magistrate, who would pass appropriate order after considering all the relevant facts strictly in accordance with law---Investigating Officer would not cause the arrest of accused, till final order was passed by Magistrate upon the report submitted by him.

Karim Bux Rind for Petitioner No.2.

Allah Bachayo Soomro, Addl. A.G along with SIP Imdad Hussain Mallah, S.H.O. Police Station Kandiaro for Respondents Nos.1, 2 and 4.

Mst. Naghma, Petitioner along with her father Ghayasuddin Shah.

Shamshad Ali Qureshi for Respondent No.3.

MLD 2014 KARACHI HIGH COURT SINDH 1123 #

2014 M L D 1123

[Sindh]

Before Hasan Feroz, J

IMRAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 137 of 2014, decided on 21st March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Sindh Arms Act (V of 2013), S.23(1)(a)---Possessing unlicensed arms---Bail, grant of---Further inquiry---Case was of two versions i.e. one by prosecution and the other by the Police---Accused was not shown to have made any sort of resistance, till such time he was intercepted and alleged recovery was shown---Such fact had nexus to support the plea taken by accused that actually he was in detention with the Rangers; and it was pursuant to his shifting to other Police Station that present F.I.R. was lodged---Such was a matter which required probe at trial---Non-presence of sketch of weapon allegedly recovered on the Mashirnama had also made the prosecution case highly doubtful---Investigation of the case was over and accused was in judicial custody---Inordinate delay was in dispatching of the pistol for Forensic Science Laboratory---Till such time it was sent to Forensic Science Laboratory, nothing was to show that in whose custody it remained---No entry existed in the Police file in that respect which had also made the prosecution case a matter of further inquiry within the meaning of S. 497(2), Cr.P.C.---Bail was granted to the accused.

Muhammad Asif Qureshi for Applicant.

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

Date of hearing: 21st March, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1130 #

2014 M L D 1130

[Sindh]

Before Ahmed Ali M. Shaikh and Salahuddin Panhwar, JJ

MANZOOR AHMED BHAYO---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary, W & PHD and 3 others---Respondents

Constitutional Petition No.D-451 of 2009, decided on 18th September, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Contractual obligations---Enforcement---Factual controversy---Petitioner failed to complete the work within the stipulated time---Dropping of Work Schemes---Claim of unpaid payment including damages---Validity---Petitioner's claim related to the contractual obligation---Question as to whether the petitioner completed the work in accordance with terms and conditions of contract or not, could not be resolved in the constitutional jurisdiction as recording of evidence was necessary to resolve the same---Unpaid amount for the work carried out by the petitioner, could be proved, through evidence in ordinary court, having jurisdiction, because if the amount was ascertained and was admitted by the respondent in that eventuality High Court could exercise its discretion in favour of the petitioner---Not only claim of the petitioner but also the work claimed to be done by the petitioner was disputed---Such controversy being fatual could not be resolved in the constitutional jurisdiction---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Contractual rights---Alternative remedy---Commitments, undertakings and obligations had to be enforced through courts of ordinary jurisdiction---Petition which fell within the ambit of factual controversy could not be resolved under constitutional jurisdiction---Constitutional petition was dismissed.

Pak.Com Ltd. v. Federation of Pakistan PLD (sic) SC 544 and Nizamuddin and others v. Civil Aviation and 2 others 1999 SCMR 467 rel.

Bhajandass Tejwani and Manoj Kumar Tejwani for Petitioner.

Liaquat Ali Shar, Additional Advocate General for Respondents.

Date of hearing: 18th September, 2012.

MLD 2014 KARACHI HIGH COURT SINDH 1141 #

2014 M L D 1141

[Sindh]

Before Salahuddin Panhwar, J

JAN MUHAMMAD and 6 others----Applicants

Versus

GHULAM FARID and 3 others----Respondents

Civil Revision Application No.134 of 2010, decided on 2nd December, 2013.

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

----O. XIV, Rr. 1 & 5, O. XIII, Rr. 1 & 2 & O. XLI, R. 31---Specific Relief Act (I of 1877), S.42---Suit for declaration---Framing of issues---Judgment---Points for determination---Production of document in the court---Scope---Contention of plaintiffs was that plot in question was allotted to them but said allotment was cancelled illegally---Suit was decreed concurrently---Validity---Both the courts below had passed their decisions while comparing two notifications but neither the Trial Court framed any issue with regard to such controversies nor Appellate Court framed any point for determination to such effect---Issue/point with regard to application of notification/policy could not be resolved unless it was determined as to where plot in question was situated---Findings of Appellate Court with regard to location of disputed plot were not supported by any document nor parties were put on notice to prove such aspect of the matter---Notifications were not referred by the plaintiffs in their case---Order XIII, Rr. 1 & 2, C.P.C. had put an obligation upon the parties or their counsel to produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power on which they would intend to rely and which had not already been filed in the court and all the documents which the court had ordered to be produced---Object behind such provision was to put other side on a notice of such document---Document not brought on record through witness and duly exhibited could not be taken into consideration by the court---Administration of justice would demand that the decision should not be made in an arbitrary manner but same should be confined to the manner provided by the law---Court for proper determination of rights of parties could consider such things which were not pleaded by either sides but not in deviation or departure of the procedure---Provisions of Order XIV and that of Order XLI, R.31, C.P.C. should be given due weight otherwise every decision would give rise to the plea of prejudice which could not be approved---Impugned judgments and decrees of both the courts below were set aside and case was remanded to the Trial Court for decision afresh after framing of proper issue with regard to application of policies---Revision was accepted in circumstances.

Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604 rel.

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

----O. XIV, Rr. 1 & 5---Framing of issues---Object---Scope---Every material proposition of fact or law affirmed by one and denied by the other should be dressed as an issue---Purpose of framing of issue was not a mere formality but object behind same was to put the parties on complete notice and knowledge to enable them to support their respective claims by evidence on all material points.

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings could not be considered sacred in a situation where the rights of the parties were not determined in accordance with law and judgments of the courts below were perverse or based on mis-reading or non-reading of evidence---Revisional jurisdiction was meant to rectify the errors made by the subordinate courts.

(d) Administration of justice---

----Decision should not be made in an arbitrary manner but same should be confined to the manner provided by the law.

Mir Mohammad Jamali for Applicants.

Raham Ali Rind for Respondent No.1.

Sharfuddin Mangi for the State.

Date of hearing: 30th September, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 1153 #

2014 M L D 1153

[Sindh]

Before Aftab Ahmed Gorar, J

LIAQAT ALI SUNANI---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.S-44 of 2013, decided on 10th February, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 498, 499 & 561-A---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Penal Code (XLV of 1860), S.342---Haraabah, wrongful confinement---Bail, grant of---Jumping bail and accused remaining absent for one day after grant of bail but appearing on the next date voluntarily without service of non-bailable warrant---Accused was remanded to jail and was again released on bail---Absence of accused on a single date of hearing, could be condoned even on humanitarian ground, but the Trial Court punished accused by sending him to jail on his appearance on the next date of hearing; and was again released on bail---No material was on record to show that surety was instrumental in causing disappearance of accused---Nothing was on record to show that surety had failed to produce accused despite grant of time by the Trial Court---Taking lenient view penalty amount of Rs.75,000 imposed by the Trial Court upon the surety, was reduced to Rs.15,000, which would be deposited by him within a period of one month.

Rafique Ahmed K. Abro, for the Applicant.

Imtiaz Ali Jalbani, Assistant Prosecutor General for the State.

MLD 2014 KARACHI HIGH COURT SINDH 1158 #

2014 M L D 1158

[Sindh]

Before Nazar Akbar, J

MARIA---Applicant

Versus

STATION HOUSE OFFICER, KARACHI---Respondent

Criminal Miscellaneous Application No.54 of 2014, decided on 30th April, 2014.

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

----Ss. 22-A & 561-A---Applicant/one of the sisters of the victim, had impugned the order passed by Justice of Peace, whereby her prayer for issuance of direction to concerned S.H.O. for registration of F.I.R. against accused had been dismissed---Earlier, S.H.O. concerned, in collusion with main accused had lodged F.I.R., allegedly on the complaint of other sister of the victim, but said F.I.R. failed to reflect true facts and real incident reported by the complainant; her statement was not properly incorporated in the F.I.R.---Applicant, on having come to know about manipulation in the F.I.R., filed application under S.22-A, Cr.P.C. for registration of separate F.I.R.---Justice of Peace, on the report of S.H.O. to the effect that second F.I.R. could not be lodged for the same incident as alleged by the complainant, dismissed application filed under S.22-A, Cr.P.C. and applicant had filed application under S.561-A, Cr.P.C. for setting aside said order---Collusion of Police with accused had been confirmed---Justice of Peace had not relied upon any authority, and had ignored the two judgments of the High Court, which were binding upon her in terms of Art.189 of the Constitution---Impugned order was set aside by High Court and application was allowed as prayed---S.H.O. was directed to record the statement of the applicant.

2013 PCr.LJ 117 and 2013 PCr.LJ 660 distinguished.

2001 SCMR 1556 and PLD 2005 SC 297 ref.

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

----S. 154---first Information Report---Right to contest contents of F.I.R.---Scope---Accused was not entitled to contest the contents of F.I.R. before it was registered against him---Accused would have right to approach the court only after the lodging of F.I.R. and could take any defence at the trial.

Faiz H. Shah for Applicant.

Abdullah Rajput, Assistant Prosecutor General for Respondent.

Date of hearing: 8th April, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1171 #

2014 M L D 1171

[Sindh]

Before Shahnawaz Tariq, J

EHTISHAMULLAH KHAN, ADVOCATE---Applicant

Versus

STATION HOUSE OFFICER, ZAMAN TOWN, KARACHI and another---Respondents

Criminal Miscellaneous Application No.272 of 2011, decided on 31st March, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B, 154 & 561-A---Penal Code (XLV of 1860), Ss.302, 109 & 34---Qatl-e-amd, abetment, common intention---Lodging of second F.I.R.---Application before Justice of Peace, earlier filed by the applicant/brother of the deceased for lodging F.I.R. against accused was allowed, with direction to S.H.O. concerned to record the statement of applicant, but S.H.O. allegedly lodged F.I.R. without recording the statement of the applicant---Station House Officer having refused from taking any action against accused persons, applicant again approached the Justice of Peace and filed application, with prayer that S.H.O. be directed to record statement of the applicant under S.154, Cr.P.C. and to conduct investigation fairly but same was dismissed by Justice of Peace---Counsel for the accused, had opposed the application contending that applicant having already lodged F.I.R., could not apply for lodging second F.I.R.---Validity---Applicant had levelled serious allegations against conduct of concerned Police; and had blamed that the case of murder of his brother was not properly investigated by the Police; and even his statement was not recorded in verbatim---While dealing with such cases it was prime assignment of the court to minutely examine the involved circumstances of the main issue judiciously to ensure the administration of justice; and the door of the investigation must not be closed---Application of the aggrieved person could not be declined merely on the ground that he had already lodged one F.I.R.---Since there was no legal impediment that another F.I.R. could not be lodged regarding same occurrence, S.H.O. was directed to record statement of applicant under S.154, Cr.P.C., in his verbatim; and if any cognizable offence was made out, further action be initiated strictly in accordance with law.

Abdul Karim v. The S.H.O. Sariab Police Station, Quetta and 3 others 2014 PCr.LJ 240 and Wajid Ali Khan Durani v. Government of Sindh 2001 SCMR 1556 ref.

Aamir Mansoob Qureshi for Applicant.

Javed Iqbal Burqi for Respondents.

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

MLD 2014 KARACHI HIGH COURT SINDH 1183 #

2014 M L D 1183

[Sindh]

Before Abdul Rasool Memon and Abdul Maalik Gaddi, JJ

LAL MUHAMMAD alias LALOO and another----Applicants

Versus

The STATE----Respondent

Criminal Bail Application No. D-26 of 2013, decided on 11th September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 365-A---Kidnapping or abduction for extorting property, valuable security etc.---Bail, grant of---Accused and co-accused were not named in the F.I.R., nor any prosecution witness had implicated them in their statements recorded under S. 161, Cr.P.C---Complainant gave names of accused and co-accused in his further statement, but stated that he had no evidence or proof against them and he gave their names at the instance of somebody else and under doubt---Contents of supplementary challan showed that no substantial material had been collected against the accused and co-accused to connect them with the commission of the alleged offence---Investigation Officer had stated in the supplementary challan that no material for taking cognizance against accused and co-accused could be collected---Five other accused persons had already been granted bail, and case of present accused and co-accused was on better footing than said persons, therefore on the basis of rule of consistency they also deserved the same treatment and concession---Accused and co-accused were granted bail in circumstances.

Aijaz Ali Shah, Advocate for the Applicants.

Abdul Rasheed Soomro for the State Counsel.

MLD 2014 KARACHI HIGH COURT SINDH 1194 #

2014 M L D 1194

[Sindh]

Before Hasan Feroz, J

MOINUDDIN---Applicant

Versus

MUHAMMAD AZAD KAMAL and 2 others---Respondents

Revision Application No.30 of 2013, decided on 14th October, 2013.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of contract---Impugned judgment was well discussed which did not suffer from any jurisdictional error---No illegality was pointed out in the judgment passed by the courts below---Revision was dismissed in circumstances.

Naveed Ali and Mufti Muhammad Bashir for Applicants.

Syed Assad Ali Shah for Respondent No.1.

Date of hearing: 17th September, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 1208 #

2014 M L D 1208

[Sindh]

Before Abdul Maalik Gaddi, J

MUHAMMAD NAEEM----Petitioner

Versus

Sardar WAQAR AZAM and 2 others----Respondents

Constitutional Petition No.S-189 of 2013, decided on 10th March, 2014.

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

----Ss. 8 & 21(3)---Constitution of Pakistan, Art.199---Constitutional petition---Fixation of fair rent---Enhancement of rent by appellate court---Scope---Powers and scope---Rent Controller on the application of landlord, fixed the rent of demised shop---Tenant filed appeal against the order of Rent Controller, which was dismissed by appellate court and also further enhanced the rent---Contention of the petitioner/tenant was that landlord had not filed any appeal against the order of Rent Controller, therefore further enhancement of rent by appellate court on the appeal of tenant/petitioner was illegal, coram non judice---Validity---Appellate court had no power to pass order in favour of respondent/landlord, who had not filed an appeal against the order of Rent Controller---Appellate court was required to exercise power reasonably, justly and fairly within the framework of the controversy which had been brought before the appellate authority and not in respect of a matter against which the landlord/respondent had no grievance because he had not filed any appeal---Appellate court was not justified to enhance rent, therefore the findings of the appellate court was not sustainable under law.

Messrs Noori Trading Corporation (Pvt.) Limited v. Abdul Ghaffar 1997 CLC 205 ref.

Mirza Saeed Baig for Petitioner.

Mehmood Ahmed Khan for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 25th February, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1216 #

2014 M L D 1216

[Sindh]

Before Nazar Akbar, J

MUHAMMAD NAZIM---Plaintiff

Versus

ANWAR HUSSAIN DARBARI and another---Defendants

Suit No.86 and C.M.A. No.2492 of 2012, decided on 28th April, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Specific Relief Act (I of 1877), S.12---Contract Act (IX of 1872), S.23---Suit for specific performance---Rejection of plaint---Plaintiff entered into agreement to sell with defendant in respect of property which belonged to his son, who was real owner of the suit property---Validity---Plaintiff's agreement with defendant was without permission of original owner who never consented to the agreement and refused to execute power of attorney in favour of defendant---No privity of contract existed between the plaintiff and the real owner of the suit property---Plaintiff knew that the agreement was dependent upon execution of General Power of Attorney by original owner who was not under any obligation to execute the power of attorney---Defendant had no authority to enter into an agreement to sell in respect of property which did not belong to him---Agreement was, therefore, not for lawful object in terms of S.23 of the Contract Act, 1872 as the same involved injury to the property of another person---Plaintiff had no cause of action---Plaint was rejected.

Abdul Wajid Wyne for Plaintiff.

Syed Muhammad Akbar for Defendants.

Date of hearing: 3rd February, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1226 #

2014 M L D 1226

[Sindh]

Before Farooq Ali Channa, J

SAJJAD HUSSAIN MUKHI---Appellant

Versus

The STATE through A.G. Sindh and others---Respondents

Criminal Acquisition Appeal No.48 of 2013, decided on 3rd February, 2014.

Penal Code (XLV of 1860)---

----Ss.392, 406, 468, 471, 109, 193 & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Robbery, criminal breach of trust, forgery for purpose of cheating, using as genuine a forged document, abetment, false evidence, common intention---Appeal against acquittal---Trial Court observed all possible measures to secure the attendance of prosecution witnesses, but despite said efforts, the prosecution failed to produce the witnesses, which left the adverse inference, that either the prosecution was suppressing material facts, or the witnesses were not supporting the prosecution---Trial Court was justified to treat such withholding evidence as a flaw in the prosecution evidence---Trial Court had no other option, except to pass appropriate order and decide the case on basis of evidence available on record---Appellant/complainant had admitted that flats in dispute were the property of his accused/wife---Complainant had also admitted that on the basis of power of attorney executed by his wife in his favour, he executed, registered sale deed in respect of said flats in his favour---Complainant had no proof of gold ornaments allegedly robbed from his office---Complainant had admitted that after the incident, he was residing with his wife and sons in the same flat---Said admission set out stigma in the sanctity of allegations and did not appeal that a victim of robbery case without redressal of his grievance, was residing with the offenders in the same flat---Civil litigation was pending between the parties---No illegality or irregularity having been notified in the impugned order of acquitting accused, same did not require interference of High Court.

Syed Ghulam Hasnain for Appellant.

Rahat Ahsan, A.P.-G. for the State.

Muhammad Ishaque Memon for Respondents Nos. 2 to 7.

MLD 2014 KARACHI HIGH COURT SINDH 1232 #

2014 M L D 1232

[Sindh]

Before Hasan Feroz, J

IMRAN KHAN---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No. 342 of 2011, decided on 25th October, 2013.

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

----S. 498---Bail before arrest---Matter of two versions---Accepting the version of accused and discarding that of the prosecution thereby assessing matter of two versions without taking into consideration the statement of prosecution eye-witnesses recorded under S.161, Cr.P.C.; seemed beyond the scope of judicious assessment of evidence at the time of pre-arrest bail---Further inquiry into the guilt of accused inter alia mala fide, and with ulterior motives could be assessed in a matter of bail before arrest.

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

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-e-amd, common intention---Application for cancellation of pre-arrest bail---Two versions as to whether the offence was the outcome of dacoity; or it was a murder with premeditated design to kill the deceased, could not be brushed aside in presence of the statements of eye-witnesses recorded by the Police, that two days before the incident, accused came in their house and threatened their mother to give hand of her daughter to accused, otherwise he would kill the deceased---Said incident reflected the mens rea of accused which the Trial Court had not taken into consideration; and simply on the basis of version of dacoity, instead of murder, confirmed the bail before arrest, which seemed not based on correct appreciation of facts as well as law---Exceptional grounds were required for the cancellation of bail---Trial Court instead of assessing the evidence in its true perspective, considered the counter version for the purpose of further inquiry, which was not only improper, but unjust as well---Sufficient ground existed that accused was connected with the commission of offence---Weak alibi, which had shown presence of accused in hospital, required proof of evidence---Weak form of the alibi being illness of accused, and admission in the hospital, could only be ascertained during trial; and at stage of pre-arrest bail would not make the case for grant of pre-arrest bail---Discretion exercised by the Trial Court granting pre-arrest bail to accused was not tenable under the law.

2005 YLR 1979; 2007 YLR 1877; 2006 YLR 3114; 2006 SCMR 66; 2009 SCMR 1202 and 2008 SCMR 1715 ref.

----S. 497(5)---Bail, cancellation of---Principle---Strong and exceptional grounds were required---Principle for grant and cancellation of bail were different, as exceptional grounds were needed for cancellation of bail, as it also pertained to the liberty of a citizen.

Imdad Ali M. Ujjan for Applicant.

Ahmed Ali Shah for Respondent No.2.

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

Date of hearing: 17th September, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 1241 #

2014 M L D 1241

[Sindh]

Before Sadiq Hussain Bhatti, J

SHAFIQUDDIN---Plaintiff

Versus

MUHAMMAD MAQSOOD ALI SIDDIQUI and another---Defendants

Suit No.368 of 2006, decided on 25th October, 2013.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O. XXII, Rr.4 & 9---Suit for specific performance of agreement to sell---Legal heirs, impleading of---Limitation---Causing of delay---Scope---Defendant died during pendency of the suit and his legal heirs mentioned in list were impleaded---Five months after death of defendant, one daughter of deceased filed application to be impleaded, later on it discovered that deceased had a widow and two more daughters as legal heirs---Plea raised by plaintiff was that legal heirs of deceased were using delaying tactics to prolong litigation---Validity---Held, it was clear from day one that it was suit for specific performance in respect of suit property and rights and interest of all legal heirs would be affected, therefore, it was wrong that some legal heirs were subsequently revealed---Even deceased knew fully well that rights and interests of all legal heirs were involved but even then he did not disclose names of all legal heirs in List of Legal Heirs---Notice was issued to National Database and Registration Authority, as legal heirs of deceased were not coming forward with true and correct facts---Seeking condonation of delay, each day's delay was to be explained, which had not been done by legal heirs---No plausible reason was advanced for condoantion of delay of over two years---Application filed by legal heirs was barred by limitation---Application was dismissed in circumstances.

Saifuddin v. Zainuddin and another 1995 CLC 1348 rel.

Muhammad Akhlaq v. Karam Ali Tar Muhammad 1984 CLC 2564; Nizamuddin v. Settlement Commissioner and others PLD 1973 Lah. 573; Fazal Muhammad through L.Rs. and others v. Zainab Bibi and others 1994 SCMR 275 and Khushi Muhammad v. Mst. Aziz Bibi PLD 1988 SC 259 ref.

Ch. A. Rasheed for Plaintiff.

Abarar Hassan for Defendant No.1.

Ms. Samiya Durrani and Mazharul Haq for Defendant No.2.

MLD 2014 KARACHI HIGH COURT SINDH 1255 #

2014 M L D 1255

[Sindh]

Before Irfan Saadat Khan, J

JAVED AHMED ANSARI---Appellant

Versus

MALIR EDUCATION SOCIETY (REGD) through General Secretary---Respondent

IInd Civil Appeal No.45 of 2013, decided on 14th May, 2013.

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

----Ss. 3 & 5---Delay, condonation of---Powers of court---Scope---Law would help vigilant and not indolent---Court would be bound to dismiss suit, appeal or application, if found same to be time-barred---Vested right would be created in favour of opposite party after expiry of limitation, which could not be taken away lightly---Applicant for condonation would have to explain delay of each day---Condonation of delay being prerogative of court, which must be exercised rationally and judicially---Delay could be condoned only on showing sufficient cause for not approaching court within time.

Ali Muhammad v. Chief Settlement Commissioner 2001 SCMR 1822; Muhammad Nawaz and 3 others v. Sakina Bibi and 3 others 1974 SCMR 223; Mustafa v. Settlement Commissioner Bahawalpur 1974 SCMR 104 and Commissioner of Income Tax v. Rais Pir Ahmad Khan 1981 SCMR 37 rel.

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

----S. 5---Words "sufficient cause" as used in S. 5 of Limitation Act, 1908---Connotation stated.

In Section 5 of the Limitation Act, 1908, the law maker has used the words "sufficient cause", but these words are not to be confused with the words "wilful or intentional". "Sufficient cause" has to be interpreted keeping in view the facts and circumstances of each case, as what is sufficient cause in one case may not be in other case. As no two sun rise are same so as the peculiar facts and circumstances of each case. It is seen from the study of some cases that delay of even one day was not condoned, whereas in some cases delay comprising of years had been excused depending upon the facts and circumstances of the case.

----S. 5---Delay in filing appeal, condonation of---Appellant's plea was that such delay was due to wrong advice of his counsel, whereas counsel shifted its responsibility on his clerk---Validity---Wrong advice or negligence of counsel or shifting burden of such delay by counsel on his clerk would not constitute sufficient ground for condonation of delay, rather applicant could file suit for damages against his counsel for his negligence.

Mirza Muhammad Saeed v. Shahabuddin and 8 others PLD 1983 SC 385; Nek Muhammad v. A.C. Jehlum 1986 SCMR 1493; WAPDA through its Chairman, and 4 others v. Karam Din 2005 YLR 341; Jhanda v. Maqbool Hussain and others 1981 SCMR 126 and Collector Land Acquisition v. Fazal-ur-Rehman 2009 SCMR 767 rel.

Muhammad Nouman Jamali for Appellant.

Date of hearing: 9th May, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 1269 #

2014 M L D 1269

[Sindh]

Before Syed Hasan Azhar Rizvi, J

In the matter of: WAQF MUHAMMAD MEHER ELAHI through Mutawalli

J.M. No.46 of 2012, decided on 9th May, 2013.

Islamic Law---

----Waqf-ul-aulad---Mutwali sought permission to sell waqf property for being in delipidated condition---Proof---Waqf deed contained a clause to the effect that if waqf property became delipidated likely to decrease its value, then Mutawali could obtain permission from the Court to sell waqf property and purchase with its proceeds another profitable property---Photographs of waqf property lying on record showed its status being vacant and condition being very dilapidated---Additional Advocate General supported sale of waqf property under supervision of Nazir of Court---Mutawali expressed apprehension that in case such sale was not permitted, then Land Grabblers would encroach upon the Waqf property which was lying vacant for decades---Nobody from public-at-large came forward to object to such sale despite publication of notice in newspapers---Mutawali was attorney of other trustees and fully competent to present such petition on their behalf---Mutawali had already arranged prospective buyer of waqf property---High Court directed Nazir to inspect waqf property and assess its market value through renowned Evaluators/Estate Agents, and Mutawali was directed to produce such prospective buyer before Nazir, who would submit report before Court within specified time.

Hussain A. Haroon and others v. Mrs. Laila Sarfraz and others 2003 CLC 771 rel.

Moiz Ahmed for Petitioner.

Qazi Majid Ali A.A.-G. for the State.

MLD 2014 KARACHI HIGH COURT SINDH 1279 #

2014 M L D 1279

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD ASLAM---Petitioner

Versus

Mst. FOZIA AQEEL ZAHEER LARI and 2 others---Respondents

Constitutional Petition No.S-1203 of 2010, decided on 1st April, 2014.

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

----S. 14(1)---Constitution of Pakistan, Art. 199---Constitutional petition---Widow/landlady on attaining age of 63 years sought ejectment of tenant from demised shop on the ground of her personal bona fide use---Rent Controller accepted the application of the landlady, which on first appeal was maintained by the appellate Court---Landlady being owner of three other shops in the same building had obtained the ejectment and rented out the same on enhanced rent---Landlady under S.14(1) of Sindh Rented Premises Ordinance, 1979 had failed to prove service of two months notice on the tenants---Plea of maintainability of ejectment petition was taken by the tenant before the lower courts, which was not considered---Effect---Landlady had already availed the facility provided under S. 14 of the Ordinance---Owner of premises under different tenements of same character could not get all the tenancies vacated but was entitled to get only one tenancy vacated under S.14 of the Ordinance, such provision being special in nature creating restricted rights could not be extended to other tenancies even though the premises got vacated might not be sufficient for the requirements of landlady---For obtaining the premises on the ground of bona fide personal need the landlady had remedy to file application under S.15 of the Ordinance---Where two separate tenancies were involved, both of the same character i.e. residential or commercial, they could not be got vacated by recourse to S. 14 of the Ordinance---Constitutional petition was allowed.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Concurrent findings---Plea that concurrent findings of facts recorded by both the courts below could not be interfered in constitutional jurisdiction was not maintainable where the view taken by both the courts below was not only contrary to the established principles of law but also to evidence on record---High Court, in circumstances, was competent and justified to interfere in exercise of constitutional jurisdiction under Art. 199 of the Constitution.

Naeem Suleman for Petitioner.

Munawar Husain for Respondents.

Date of hearing: 1st April, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1292 #

2014 M L D 1292

[Sindh]

Before Sadiq Hussain Bhatti, J

Syed AKBER HUSSAIN WASTI---Applicant

Versus

ABDUL WAHEED---Respondent

Civil Revision Application No.27 of 2012, decided on 25th November, 2013.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.XLI, R.19---Suit for specific performance of agreement to sell---Appeal, restoration of---Avoiding of technicalities---Suit was decreed by Trial Court in favour of plaintiff---Appeal filed by defendant was dismissed for non-prosecution and Lower Appellate Court restored the same---Validity---Held, it was not justified to non-suit the appellant when it had come on record that on the fateful day mother of his advocate had expired and he himself was not well---High Court directed Lower Appellate Court to expeditiously dispose of appeal pending before it---Revision was dismissed in circumstances.

Noorul Amin and another v. Muhammad Hashim and others 1992 SCMR 1744 and Ch. Akber Ali v. Secretary, Ministry of Defence, Rawalpindi and another 1991 SCMR 2114 rel.

S. Nasir Abbas Rizvi for Applicant.

Amjad Junaid Hashmi for Respondent.

Date of hearing: 18th November, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 1304 #

2014 M L D 1304

[Sindh]

Before Nazar Akbar, J

ASIF NAJMA ANSAIZI---Appellant

Versus

Mrs. MARIAM MIRZA and another---Respondents

F.R.A. No.17 of 2014, decided on 27th May, 2014.

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

---S. 17 (9) & (8)---Ejectment petition---Tentative rent, fixation of---Non-deposit of arrears of rent---Effect---Contention of tenant was that arrears of rent was disputed and order of Rent Controller was wrong as he had allowed the landlord to withdraw the same---Validity---Tenant had failed to deposit arrears of rent within stipulated time given by the Rent Controller---Recording of evidence before passing of tentative rent order by Rent Controller was not possible as if evidence was recorded the tentative rent order would become final order---Tentative rent order which was passed without -recording of evidence was within the parameters of law---Tenant was in possession of demised premises and same would secure him against payment of rent---Rent should be ordered to be adjusted in future rent or refunded if no arrears of rent were found at the time of filing of case---Tenant should first have complied with the tentative rent order and then invoked the inherent jurisdiction of court to safeguard his interest---Excuses were trot acceptable to defy mandatory orders when such non-compliance would provide a statutory right in favour of other side---Court had no discretionary powers to deny statutory rights accrued to the other side on account of failure of a party to abide by such statutory orders---Tenant had committed default with regard to payment of tentative rent---Appeal was dismissed in limine.

Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi PLD 2007 SC 504 and Saeed Ahmed Khan v. Jamila Khanum 1999 CLC 852 ref.

Sohail Qasim All for-Appellant.

Abdullah Munshi for Respondent No.1.

MLD 2014 KARACHI HIGH COURT SINDH 1311 #

2014 M L D 1311

[Sindh]

Before Abdul Maalik Gaddi, J

GHULAM NABI alias GULA---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-208 of 2013, decided on 3rd September, 2013.

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

---S. 497---Penal Code (XLV of 1860, Ss. 365-B, 376, 371-A, 371-B & 344-Kidnapping, abducting or inducing woman to compel for marriage etc., rape, selling person for purposes of prostitution etc., buying person for purposes of prostitution etc,, wrongful confinement for ten or more days---Bail, refusal of---Co-accused was alleged to have kidnapped the abductee/complainant and confined her at a place where accused allegedly committed zina with her---Name of accused appeared in the F.I.R. with direct allegation of committing zina---Although abductee had given a statement in court that she had contracted nikah with the co-accused, but such statement according to her had been given due to fear of her life, as accused had pressurized her to do so---Abductee had been in custody of accused and co-accused right from the date of her abduction therefore such statement made by her in court was not the sole ground for grant of bail---Prosecution version was corroborated by medical evidence---Delay in lodging of F.I.R. was explained by the fact that abductee/complainant was in the illegal confinement of accused and co-accused as such the situation was beyond her control---Record did not show any element of mala fide against accused from either the complainant or the police---Offence alleged appeared to be heinous and also fell within the prohibitory clause of S. 497, Cr. P. C---Accused was refused bail accordingly.

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

---Ss. 497 & 154---Penal Code (XLV of 1860), S. 376---Rape---Bail---Delay in lodging of F.I.R.---Effect---Delay in lodging of F.I.R. in itself was not fatal to the prosecution case, as people naturally avoided rushing to the police in the first instance because of family honour.

2007 PCr.LJ 649; 2013 PCr.LJ 316 and 2012 MLD 579 rel.

----S. 497---Post-arrest bail, grant of---Scope---Mala fide of complainant or police against the accused---Such mala fide was sine qua non for grant of post arrest bail to an accused.

Mian Mumtaz Rabbani for Applicant.

Sikander Ali Shah for the Complainant.

Miss Shazia, State Counsel.

MLD 2014 KARACHI HIGH COURT SINDH 1317 #

2014 M L D 1317

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD REHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Applications Nos.1571 and 1578 of 2013, decided on 21st March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 392, 397 & 34---Robbery, robbery or dacoity, with intent to cause death or grievous hurt, common intention---Bail, grant of---Sole allegation against accused was that he was seen standing outside the house where robbery was committed---Per prosecution case neither accused entered house of complainant nor robbed property was recovered from his possession or on his pointation---Accused was granted bail accordingly.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 392, 397 & 34---Robbery, robbery or dacoity, with intent to cause death or grievous hurt, common intention---Bail, grant of---Accused was not named in the F.I.R. nor he was known to the prosecution witnesses prior to the incident-Putting accused on identification parade through prosecution witnesses was obligatory in such circumstances---Investigating officer allegedly recovered a laptop, mobile phone and shaving machine on the pointation of accused, however such property except for shaving machine was not shown in the F.LR. to have been robbed---Mere recovery of some robbed property (from accused) would not amount to offence of robbery, such recovery, in circumstances, would fall under S. 411, P.P.C., punishable to the extent of three years, as it did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Accused was granted bail accordingly.

Arshad Khan and Habibur Rehman for Applicants.

Ms. Rahat Ehsan, D.P.G. for the State.

MLD 2014 KARACHI HIGH COURT SINDH 1323 #

2014 M L D 1323

[Sindh]

Before Hasan Feroz, J

AMIR MEHMOOD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1239 of 2013, decided on 24th December, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)---Possession of narcotic---Bail, grant of---Further inquiry---Arrest from public place---Non-association of private witnesses---Doubt regarding actual date of arrest---Mushirnama silent as to the manner of weighing narcotic and the scale used---Effect---Case required further inquiry in terms of S. 497(2), Cr. P. C---Accused was granted bail accordingly.

PLD 2009 Lah. 362; PLD 2012 SC 380 and 2012 SCMR 573 ref.

Umer Awan for Applicant.

Muhammad Iqbal Awan A.P.-G. along with SI, Nadeem Haider, Police Station Preedy.

2014 M L D 1380

[Sindh]

Before Nadeem Akhtar, J

S. ABDUL MANNAN MUTTAQI---Plaintiff

Versus

DEFENSE HOUSE AUTHORITY, through Administrator and 4 others---Defendants

Suit No.830 of 2013, decided on 28th April, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Specific Relief Act (I of 1877), Ss.21, 42 & 12---Contract Act (IX of 1872), Ss.13, 25 & 29---Suit for specific performance---Rejection of plaint---Object and scope---Plaintiff sought specific performance of contract on the basis of 'token receipt'---Validity---Said token receipt was undated---Name of witness was mentioned but his signatures were missing---Cheque towards token amount was issued conditionally and amount mentioned therein was not received by defendant---Consent decree and token receipts were admitted documents, same could be taken into consideration for purpose of rejecting plaint---No amount whatsoever had passed from plaintiff to any of the co-owners/defendants---Under S.25 of the Contract Act, 1872 an agreement made without consideration was void unless the same was in writing and registered---Under S.29 of the Contract Act, 1872 agreements, the meaning whereof was not certain or capable of being made certain, were void---Suit, therefore, was barred under Ss.25 and 29 of the Contract Act, 1872---One of the defendants who alone had authority to sell the suit property had not given consent to alleged sale---Under S.13 of the Contract Act, 1872 two or more persons were said to have consented when they agreed upon the same thing in the same sense---Suit was also barred under S.13 of the Contract Act, 1872---Plaintiff never acquired any right title or interest in the suit property in terms of S.42 of the Specific Relief Act, 1877---In case of any of the eventualities provided in O.VII, R.11, C.P.C. court was not only empowered to reject the plaint but was under obligation to reject even without application from a party---Object of O.VII, R.11, C.P.C. was to save parties from rigors of frivolous litigation at the very inception of the proceedings---Plaint was rejected by High Court.

Jewan and 7 others v. Federation of Pakistan 1994 SCMR 826; Abdul Nasir and another v. Haji Saeed Akbar 2010 SCMR 1770; Raja Ali Shah v. Messrs Essem Hotel Ltd. and others 2007 SCMR 741 and Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371 rel.

Mr. Z.-U. Mujahid, for the Plaintiff.

Ejaz Mubarak Khattak, advocate for Defendant No.1 / DHA.

Raja Qasit Nawaz Khan, advocate for Defendants Nos. 2 and 3.

ShehanshahHussain, advocate for defendants4 and 5.

Date of hearing: 16th April, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1391 #

2014 M L D 1391

[Sindh]

Before Aftab Ahmed Gorar, J

Hanifa Alamgir Jame Masjid---Petitioner

Versus

THE 1ST ADDITIONAL DISTRICT JUDGE KARACHI and 4 others---Respondents

Constitutional Petition No.S-1172 of 2010, decided on 19th December, 2012.

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

----S.15---Ejectment petition---Default in payment of rent by tenant---Tenant's plea that nobody had come to collect rent on behalf of landlord or there was practice of tendering rent for few months in lump sum---Validity---Tenant on basis of such plea could not absolve himself of responsibility to pay monthly rent to landlord within time.

Muhammad Saleh v. Muhammad Shafi NLR 1981 (Civil) 467; 1986 CLC 393 and 1986 CLC 93 rel.

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

----S.15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Default in payment of rent by widow of deceased tenant---Dismissal of ejectment petition by courts below on ground that landlord in his letter sent to widow after death of original tenant had not disclosed factum of commission of default for disputed period---Validity---Tendering rent in time to landlord was legal obligation of widow, who even if be a pardanashin lady could tender rent through her son doing business in demised shop---Neither widow herself nor her son had taken any step to tender monthly rent to landlord in time---Widow/tenant could not absolve herself from such obligation merely on such ground that landlord had not disclosed factum of default for disputed period in such letter or he had knowledge about death of original tenant---High Court set aside impugned orders and directed widow/tenant to hand over vacate possession of shop within specified time.

M.S. Qureshi for Petitioner.

Ghulam Sarwar Thebo for Respondent No.3.

Date of hearing: 15th December, 2012.

MLD 2014 KARACHI HIGH COURT SINDH 1400 #

2014 M L D 1400

[Sindh]

Before Irfan Saadat Khan, J

MUHAMMAD IMRAN AHMED---Petitioner

Versus

Mst. HINA FAHEEM and 2 others---Respondents

Constitutional Petition No.480 of 2008, decided on 3rd July, 2013.

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

----Ss. 17 & 5---Jurisdiction of Family Court---Bar on application of provisions of Civil Procedure Code, 1908 and Qanun-e-Shahdhat, 1984---Scope---Provisions of Civil Procedure Code, 1908 and Qanun-e-Shahdat, 1984 although were not applicable to family matters stricto senso; but the Family Court was always competent to grant relief keeping in view circumstances of each case---Family Court was competent to grant such relief, which though was not claimed, but which was in its view just and proper for the disposal of the case.

2009 CLC 835 rel.

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

----Ss.5 & 7, Proviso---Civil Procedure Code (V of 1908) O. II, R. 2---Suit for recovery of dower---Wife had filed an earlier suit for dissolution of marriage on basis of khula whereafter she filed another suit for recovery of dowery articles---Contention of the husband was that wife was not justified in filing the second suit and any claim should have been made in the first suit, and therefore, in view of Order II, Rule 2 C.P.C., she was barred from filing second suit---Validity---Provisions of the West Pakistan Family Courts Act, 1964 specifically provided for consolidation of suits meaning thereby that a number of suits could be filed if such a situation arose and had this not been the intention of the legislature, the words "consolidation of suits" would not have been used.

----S. 3----Dowry and Bridal Gifts (Restriction) Rules, 1976, R. 3---West Pakistan Family Courts Act (XXXV of 1964) S. 5---Restriction on dowry, presents and bridal gifts---Scope and effect---Suit for recovery of dower---Contention of the husband was that restriction imposed by section 3 of the Dowry and Bridal Gifts (Restriction) Act, 1976 had not been complied with, therefore the wife was not entitled for the recovery of dowry articles---Validity---Under S. 3 of the Dowry and Bridal Gifts (Restriction) Act, 1976; a restriction had been imposed that bridal gifts should not exceed Rupees Five Thousand (5000) but said restriction was only restrictive and not prohibitive and the said bar was only meant to control the restriction but did not impose a complete ban as non-compliance of this provision was only a technical lapse which would not disentitle a genuine claim if a claimant was able to prove that dowry articles exceeding Rupees Five Thousand had been usurped and were in illegal possession of a person---Contention that since the parameters of S. 3 of the and Rule 4 of the Rules had not been fulfilled, hence the wife was not entitled to return of dowry, was rejected by High Court.

Musarat Zaman Begum v. Ali Hassan 1986 CLC 2265; Masud Sarwar v. farah Deeba 1988 CLC 1546 and Anisur Rehman and another v. Mst. Shehla Fatima 1988 CLC 1808 rel.

Muhammad Ali Waris Lari for Petitioner

Arran Sheerin Khattak for Respondent.

Dates of hearing: 25th April, 2013, 15th, 30th May, 2013

MLD 2014 KARACHI HIGH COURT SINDH 1417 #

2014 M L D 1417

[Sindh]

Before Salahuddin Panhwar, J

NAWABZADA MUHAMMAD ZAMAN KHAN---Appellant

Versus

MUNICIPAL COMMITTEE, SHAHDADPUR through Chairman---Respondent

Civil Revision Application No.87 of 2007, decided on 5th August, 2013.

(a) Laches---

----Rights of parties---Scope---Delay defeats equity as equity aids vigilant and not indolent---Those who sleep over their rights stand estopped from getting enforcement of their rights though their rights continue---Law of laches takes away right of party to have the right enforced, which otherwise, is enforceable under the law because law requires that one having an enforceable right should seek enforcement whereof within time specified by law---Conduct and attitude of party itself brings doctrine of laches into play where the party loses such right to the extent of its enforcement.

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

----Ss.42 & 54---Suit for declaration, injunction and mesne profits---Limitation---Laches, doctrine of---Applicability---Concurrent findings of fact by two courts below---Earlier suit filed by plaintiff was dismissed in year, 1988, and after its dismissal, Municipal Committee constructed shops over plot in question---Plaintiff filed second suit in year, 1998, claiming to be owner of suit land over which Municipal Committee had already constructed shops---Trial Court and Lower Appellate Court concurrently dismissed suit and appeal filed by plaintiff---Validity---Plaintiff was in full knowledge and notice about infringement of his legal right, if any, at such time, therefore, law required him to have approached Court within time so provided by law of limitation but he had acted otherwise---Limitation operated as a legal bar to grant of remedy---Limitation was examined by Limitation Act, 1908, or by special law which had inbuilt provisions for seeking relief against any grievance within the time specified under the law---If any party aggrieved did not approach appropriate forum within stipulated period of time, the grievance though remained but it could not be redressed because if on the one hand there was a right with a party which he could have enforced against the other but because of principle of limitation / laches, the same right then vested / accrued in favour of the opposite---Suit of plaintiff was hit by both the law of limitation so also by doctrine of laches---High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of fact by two Courts below---Revision was dismissed in circumstances.

----O. II, R.2---Omission of claim in suit---Effect---Once party approaches Court to seek relief, it has to seek all reliefs to which it thinks is entitled to---Any relief available but not asked for, cannot be claimed by filing a subsequent legal proceedings.

Syed Ahsan Ali Shah for Applicant.

Muhammad Ashraf Usmani for Respondent.

Date of hearing: 5th August, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 1431 #

2014 M L D 1431

[Sindh]

Before Farooq Ali Channa, J

FAKIR S. AIZAZUDDIN---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.49 of 2012, heard on 8th May, 2013.

Penal Code (XLV of 1860)---

----Ss. 406 & 420---Criminal breach of trust, cheating and dishonestly inducing delivery of property---Complainant lodged F.I.R. that he purchased a flat from accused and made payment, but he sold said flat to third party against high price---Contention of accused was that dispute between the parties was purely of civil nature as complainant had purchased the flat from him and made part payment but had cancelled the booking of the subject flat---Counsel for the complainant did not controvert said submission of counsel for accused, and had admitted that the dispute between the parties was that of civil nature---Complainant had further admitted that he had received back the amount payed by him to accused for booking of flat in question---Appellate Court had acquitted the accused of the charge under S.420, P.P.C. but maintained conviction under S.406, P.P.C. making some observations, which observations appeared to be misinterpretation of S.406, P.P.C.---Amount paid by complainant was against purchase/ booking of flat under certain terms and conditions, enumerated in the agreement; and violation of any term and condition of agreement would constitute a dispute of civil nature and not a criminal case---Even if it was taken into consideration that besides the case of civil nature, the ingredients of criminal offence were attracted, preference be given to civil court to decide the controversy between the parties regarding the disputed facts---Impugned judgment being outcome of misinterpretation of law, was liable to be set aside---Conviction and sentence awarded to the accused by the Trial Court, and upheld by the Appellate Court, were set aside and he was acquitted of the charge under S.406, P.P.C.

Badaruddin v. Mehr Ahmed Raza, Additional Sessions Judge, Jhang and 6 others PLD 1993 SC 399; Jamot Ghulam Muhammad and others v. The State 1972 PCr.LJ 1130; and Khan alias Khanu and others v. The State 1989 PCr.LJ 1883 rel.

Khawaja Naveed Ahmed Khan for Applicant

Rahat Ehsan, D.P.G for the State.

Z. K. Jatoi and Mallag Dashti for the Complainant.

MLD 2014 KARACHI HIGH COURT SINDH 1443 #

2014 M L D 1443

[Sindh]

Before Hasan Feroz, J

Mst. KHALIDA and another---Petitioners

Versus

PROVINCE OF SINDH through Home Secretary and 3 others---Respondents

Constitution Petition No.S-358 of 2014, decided on 27th May, 2014.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 365-B- Constitution of Pakistan, Art. 199---Constitutional petition---Protective bail, grant of---Protection from harassment---F.I.R. under S. 365-B, P.P.C was registered against the petitioner accusing him of abducting the alleged abductee---Petitioner was shown as an absconder in the said case---Petitioner claimed that alleged abductee was his wife and they had contracted marriage---Alleged abductee/wife stated before court that she was happily living with the petitioner and also produced affidavit of free will and Nikahnama---High Court granted protective bail to the petitioner for seven days to enable him to approach the concerned court which was trying him for alleged abduction, and directed officials concerned to provide the alleged abductee/wife protection so that she may get on with her matrimonial life as per her wish---Constitutional petition was disposed of accordingly.

Zulfiqar Ali Chang for Petitioners.

Chaudhry Bashir Ahmed Gujar, Asst. A.G. and SIP Salahuddin Police Station Tando Ghulam Hyder for Respondent.

MLD 2014 KARACHI HIGH COURT SINDH 1454 #

2014 M L D 1454

[Sindh]

Before Hasan Feroz, J

HABIBULLAH SHAR---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-863 of 2013, decided on 2nd May, 2014.

Criminal Procedure Code (V of 1898)---

----S. 498-A---Penal Code (XLV of 1860), Ss. 324, 337-H(2), 147, 148, 149, 114, 337-A(i), 337-F(i) & 337-F(vi)---Attempt to commit qatl-e-amd, hurt by rash or negligent act, rioting, rioting armed with deadly weapons, abettor present when offence committed, shajjah-i- khafifah, ghayr-jaifahdamiyah, ghayr-jaifah (munaqqillah)---Bail, refusal of---Admitted enmity between the parties---Specific role of firing at the hip of injured victim---Version of complainant supported by prosecution witnesses and medical evidence---Prima facie Ss. 324 & 337-F(vi), P.P.C. were attracted to the present case, which were punishable upto ten years and fell within the prohibitory clause of S. 497(1), Cr.P.C.---Accused was refused bail in circumstances.

Muhammad Waqas v. State 2002 SCMR 1370 ref.

Amjad Ali Sahito for Applicant.

Mushtaque Ahmed Abbasi, DDPP for the State.

Syed Madad Ali Shah for the Complainant.

MLD 2014 KARACHI HIGH COURT SINDH 1461 #

2014 M L D 1461

[Sindh]

Before Farooq Ali Channa, J

MEHMOOD KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.130 of 2014, decided on 6th March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 462-B, 462-C, 462-E & 109---Theft of gas from main pipeline, installation of fake/ unauthorized meters, abetment---Accused was alleged to have installed a fake/unauthorized meter at a factory, which was connected illegally with the main gas service pipe---At the time of raid/inspection at the factory no gas meter was found installed in the premises---Pipeline allegedly connected with the main gas service pipe was also not found---Meter was allegedly recovered from the accused's shop and not from his physical possession---F.I.R. did not reflect that any witness had seen the accused take away the meter---Recovery of gas meter from accused was also doubtful as such recovery was effected two days after the interim charge sheet was prepared---Accused was admitted to bail in circumstances.

Tahir Rahim and Musarat Khan for Applicant.

Ashfaq Rafiq Janjua, Standing Counsel.

MLD 2014 KARACHI HIGH COURT SINDH 1471 #

2014 M L D 1471

[Sindh]

Before Muhammad Iqbal Kalhoro, J

MEHBOOB ALI SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-316 of 2014, decided on 9th June, 2014.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 114, 504, 147 & 148---Qatl-e-amd, abettor present when offence is committed, intentional insult with intent to provoke breach of peace, rioting, rioting armed with deadly weapons---Bail, refusal of---Instigating a murder---Accused was alleged to have instigated the co-accused to start an assault upon the deceased---Defence side did not deny the fact of instigation---Presence of accused at the spot was not disputed and same was supported by statements of witnesses recorded under Ss. 161 & 164, Cr.P.C.---Deceased was brutally murdered as ten sharp cutting injuries were found on his body---Contention of accused was that allegation of instigation against him required further inquiry as it was yet to be seen at trial whether co-accused acted under his influence, could not be appreciated at bail stage---Validity---On any hypothetical question bail could not be granted---Investigating Officer also found the accused involved in the crime---Prosecution had collected sufficient material against accused during investigation to prima facie connect him with commission of the offence---Case diaries showed that almost on all dates, complainant and prosecution witnesses were present but accused on one pretext or other was not proceeding with the case---Accused was refused bail in circumstances.

Ghulam Muhammad and others v. The State 2010 MLD 877; Aitebar v. The State 2013 YLR 1481 and Ali Muhammad v. The State 2013 MLD 1475 distinguished.

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

----S. 497---Bail---Tentative assessment of evidence---Hypothetical question---Bail could not be granted to an accused on any hypothetical question.

Akhlaque Hussain Shato for Applicant.

Muhammad Ishaque Khoso for the Complainant.

Mushtaque Ahmed Abbasi, DDPP for the State.

MLD 2014 KARACHI HIGH COURT SINDH 1477 #

2014 M L D 1477

[Sindh]

Before Hasan Feroz, J

SUDHEER and 3 others---Applicants

Versus

FAMILY JUDGE and 4 others---Respondents

Criminal Miscellaneous Application No.S-113 of 2014, decided on 29th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 173---Penal Code (XLV of 1860), Ss. 457, 380 & 511---Lurking house-trespass, theft in dwelling house and attempting to commit offences---Summoning of challan of accused whose name was mentioned in column 'C'---Scope---Judicial Magistrate did not agree with the report of Investigating Officer and directed him to submit challan in the court---Validity---Previous enmity between the parties was on record and complainant was also accused in a double murder case---Police report was not binding upon the court---Judicial Magistrate took cognizance of the offence keeping the medical certificate in his consideration which was without consideration of facts and evidence and also without considering the material collected by Investigating Officer---Impugned order passed by the Magistrate was set aside.

Bhagwandas Bheel for Applicants.

Mushtaque Ahmed Abbasi, DDPP for Respondent.

Date of hearing: 11th April, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1482 #

2014 M L D 1482

[Sindh]

Before Syed Saeed-ud-Din Nasir, J

Messrs MULTIX INTERNATIONAL CORPORATION through Partner---Plaintiff

Versus

KARACHI METROPOLITAN CORPORATION through Administrator and 4 others---Defendants

Suit No.418 of 2014, decided on 12th June, 2014.

Arbitration Act (X of 1940)---

----Ss. 34 & 20---Civil Procedure Code (V of 1908), S. 151---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Arbitration agreement---Arbitration clause---Stay of proceedings---Scope---Defendants did not make application for stay of suit in the first instance but they filed memo of appearance and statement along with para-wise comments copy of which was supplied to the plaintiff---Present application under S. 34 of Arbitration Act, 1940 had been filed at a belated stage---Section 20 of Arbitration Act, 1940 was not applicable as suit had already been filed---Application filed under Ss.20 & 34 of Arbitration Act, 1940 read with S. 151, C.P.C. was dismissed in circumstances.

PLD 2006 SC 196; 1987 CLC 2205; 2013 CLC 799 and New Bangla Shipping Company v. Eric Lan Caster Stump PLD 1952 Dacca 22 rel.

K.A. Wahab for Plaintiff.

Syed Iftikhar Hassan for Defendant.

Date of hearing: 5th June, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1494 #

2014 M L D 1494

[Sindh]

Before Sadiq Hussain Bhatti, J

Mst. SAFIA---Petitioner

Versus

SENIOR SUPERINTENDENT OF POLICE, HYDERABAD and 6 others---Respondents

Constitutional Petition No.S-101 of 2013, decided on 1st April, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Sui juris lady---Right to marry according to her own free will---Plea of petitioner (lady) that she had contracted marriage with her husband with her own free will, which annoyed her mother, who was causing harassment to her through police officials---Petitioner's mother contended that there was a Nikahnama which showed that petitioner was already married to a person "Q" and the marriage was still in existence, therefore, petitioner was committing adultery---Validity---Nikahnama in question was totally denied by the petitioner---Record showed that petitioner married her husband almost a month after the date given on the alleged Nikahnama produced by petitioner's mother----During such time no F.I.R. was registered by person "Q", nor petitioner filed any case for jactitation of marriage against her husband---High Court directed that petitioner should be set at liberty and allowed to go wherever she wants, and that police officials should not cause any type of harassment to her and her husband---Constitutional petition was disposed of accordingly.

(b) Islamic law---

----Sui juris lady---Stay in Darul Aman---No lady who was a sui juris could be detained in Darul Aman against her wishes, which was illegal and improper.

Mst. Samina Akhtar v. Shah Muhammad and 8 others 2000 PCr.LJ 1150 and Hafiz Abdul Waheed v. Mst. Asma Jehangir and another PLD 2004 SC 219 ref.

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Question of validity or existence of a marriage/Nikahnama, determination of---High Court in its constitutional jurisdiction could not embark upon the jurisdiction of Family Court, which was competent to decide about the existence/ non-existence of marriage or validity/invalidity of a Nikahnama.

Naresh A. Kella for Petitioner.

Agha Kashif Hussain for Respondents.

Syed Madad Ali Shah, Amicus Curiae.

Mukhtar Ahmed Khanzada, State Counsel a/w SIP Manzoor Ali on behalf of SSP, Hyderabad and SIP Najam Din Nizamani on behalf of S.H.O. Police Station Husri.

MLD 2014 KARACHI HIGH COURT SINDH 1504 #

2014 M L D 1504

[Sindh]

Before Abdul Rasool Memon, J

SHAMS-UL-HAQ and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.184 of 2012, decided on 29th January, 2013.

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

----S. 302---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Foundation of the prosecution case was the oral dying declaration of the deceased before the prosecution witnesses, who all were her relatives---Complainant, who was father of the deceased had admitted that he was not an eye-witness of the occurrence---Complainant had not deposed for his any conversation with deceased before her death---Witnesses to the dying declaration had deposed that they had disclosed the fact of dying declaration to the parents of the deceased on the very day---Deceased died on the next day of the occurrence---Question arose that when the deceased was whole day alive, then why they did not report the matter to the Police on the same day or call the doctor, or Magistrate for certifying the dying declaration made before them---Alleged dying declaration could not be relied upon because the truthfulness of its contents were not free from doubt---No postmortem of the deceased was conducted after her death---Even in the F.I.R., which was recorded after about two months and thirteen days, had adversely affected upon the veracity of their statements---Delay in making the report with inconsistencies in the testimony of eye-witnesses had rendered their evidence doubtful, unreliable and did not inspire confidence---Deceased before death, had clearly spoken to have been burnt accidentally while working in the kitchen---Assertion of Investigating Officer and said statement of deceased had not been disputed/refuted by the complainant and prosecution witness---Said scenario had given presumption that complainant and the witnesses had accepted the death of deceased as accidental---Report of chemical examination was in the negative---Said piece of evidence was also not helpful to the case of the prosecution---Motive as set up also appeared to be improbable---Prosecution having failed to prove the charge against accused persons, judgment passed by the Trial Court was not sustainable, which was set aside---Accused were acquitted extending benefit of doubt to them and were directed to be released, in circumstances.

Faqir Ali v. The State 1997 PCr.LJ 1453; Raziqdino v. The State 1975 PCr.LJ 590; The State v. Rahim Gul 1999 PCr.LJ 1087; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Ata Muhammad and another v. The State 1995 SCMR 599; Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; Unreported judgment dated 17-1-2000 passed by High Court of Sindh in Criminal Appeal No.124 of 1999; Muhammad Akram alias Pehalwn v. The State 2007 PCr.LJ 173; Mohabbat v. The State (1990 PCr.LJ 73; Allah Yar and another v. The State 2006 PCr.LJ 1748; Yusuf and 6 others v. The State 1984 PCr.LJ 684 and Yasir Mahmood v. The State 2009 SD 401 ref.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 rel.

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

----Art. 46---Dying declaration---Scope---Dying declaration made in the presence of the relatives, would always be taken with a pinch of salt, and same would render the dying declaration doubtful---Corroboration of independent source was necessary---Great caution was to be taken before placing reliance on dying declaration, because it was weak piece of evidence; its maker having not been subjected to cross-examination.

----Motive---Evidence of motive could never be regarded as sufficient to take the place of actual evidence of participation in a crime, if the latter was absent.

Muhammad Ashraf Kazi for Appellants.

Syed Nadeem Abbas for the Complainant.

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

Date of hearing: 13th December, 2012.

MLD 2014 KARACHI HIGH COURT SINDH 1524 #

2014 M L D 1524

[Sindh]

Before Hasan Feroz, J

MUHAMMAD YAR---Appellant

Versus

DATAL KHAN JAMALI and 14 others---Respondents

Criminal Acquittal Appeal No.S-280 of 2011, decided on 28th May, 2014.

Penal Code (XLV of 1860)---

----Ss.324, 379, 395, 448, 452, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17 (3)---Criminal Procedure Code (V of 1898), Ss.265-K & 417---Attempt to Qatl-e-Amd, theft, dacoity, house trespassing, rioting armed with deadly weapons and Haraaba---Appeal against acquittal---Appreciation of evidence---Accused faced trial in direct complaint and Trial Court in exercise of powers under S.265-K, Cr.P.C., acquitted them of the charge---Validity---Approach for dealing with appeal against conviction was different from that against acquittal---Presumption of double innocence of accused was attached to order of acquittal---Complainant failed to establish case against accused by producing tangible material---If conclusion reached by Trial Court was such that no reasonable person would conceivably reach the same, then Appellate Court would interfere in such cases on overwhelming proof resulting in conclusive and irresistible conclusion and that too with a view to avoid grave miscarriage of justice and for no other purpose---Order of acquittal passed by Trial Court did not suffer from any illegality or irregularity, therefore, the same did not call for interference by High Court---Order of Trial Court was based on proper reasons and there were no exceptional grounds for interference in the same---Appeal against acquittal was dismissed in circumstances.

Munawar Shah v. Liaqat Hussain and others 2002 SCMR 713 and Haji Amanullah v. Munir Ahmed and others 2010 SCMR 222 rel.

Imamuddin Otho for Appellant.

Nisar Ahmed Durani for Respondent No.1.

Syed Meeral Shah, D.P.G. a/w Insp. Abdul Sattar Solangi S.H.O. Rahuki for Respondent No.14.

Date of hearing: 16th May, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1537 #

2014 M L D 1537

[Sindh]

Before Nadeem Akhtar, J

AMIR KARIM---Plaintiff

Versus

MUHAMMAD ASIF and 10 others---Defendants

Suit No.1373 of 2012, decided on 26th June, 2014.

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

----O. VII, R. 11 & O. XX, R. 13---Specific Relief Act (I of 1877), S.42---Suit for declaration and administration---Rejection of plaint---Scope---Averments and allegations made in the plaint were to be examined for the purpose of rejection of plaint---Plaint could not be rejected if cause of action was spelt out from the same assuming the plaint to be correct---Question as to whether plaintiff would be able to prove cause of action or not was irrelevant for deciding an application for rejection of plaint where same was disclosed---Accompaniments of plaint and other undisputed material on record could also be looked into for deciding the said application---Questions as to whether other legal heirs of the deceased were entitled to their share in the properties left by him or whether said properties were left by the deceased or not were subject of decision in the suit for administration---Suit for administration by a co-sharer could not be dismissed as barred by time---Plaint could not be rejected in piecemeal and for rejection of the same plaintiff should not be entitled to any of the relief sought therein---Parties were at variance on question of fact which could not be resolved without recording their evidence---Plaint could not be rejected in circumstances without affording opportunity to the parties to adduce evidence and without providing them chance of hearing---Application for rejection of plaint was dismissed in circumstances.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371; Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others PLD 1962 SC 291; Q.B.E. Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. and others 2008 SCMR 1037; Mst. Karim Bibi and others v. Zubair and others 1993 SCMR 2039; Muhammad Younis Arvi v. Muhammad Aslam and 16 others 2012 CLC 1445 and Muhammad Afzal v. Muhammad Manzoor and 40 others 2013 YLR 85 rel.

(b) Words and Phrases---

----"Cause of action"---Meaning---Cause of action would represent all the requisites and facts which were necessary for the plaintiff to prove before he could succeed in a suit.

Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371 rel.

Mobarak Ahmad for Plaintiff.

Abdul Wahid and Muhammad Sajjad Abbasi for Defnedant No.1.

Daniel Bakhsh for Defendant No.11.

Date of hearing: 25th April, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1551 #

2014 M L D 1551

[Sindh]

Before Aftab Ahmed Gorar, J

NADEEM MANZOOR HASAN---Applicant

Versus

MUHAMMAD ADIL KHAN and 2 others---Respondents

Civil Revision Application No.199 of 2012, decided on 2nd May, 2013.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Said jurisdiction had very limited scope, and could be exercised only in the cases where subordinate court had exceeded its jurisdiction; or had declined to exercise its jurisdiction; or had acted in exercise of its jurisdiction in a manner contrary to law; or in manner not warranted by law.

2001 SCMR 789 and PLD 1994 SC 291 rel.

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

----S. 115---Revisional jurisdiction of High Court---Concurrent findings of fact---Interference---Scope---Jurisdiction of High Court to interfere with concurrent findings of fact in revisional jurisdiction, was narrower---High Court could only interfere with the order of subordinate court on ground that court below had assumed jurisdiction, which did not vest in it; or it had failed to exercise jurisdiction vested in it by law; or the court below had acted with material irregularity affecting its jurisdiction in the case---High Court under revisional jurisdiction, could only correct jurisdictional errors of courts below---Fact that High Court, while reappraising evidence on record, reached a conclusion different from that arrived at by two courts below, could never be a ground justifying interference with a finding of fact, muchless a concurrent one on basis of evidence produced before them.

----S. 115---Revision---Maintainability---Trial Court, in the present case, had very elaborately and comprehensively discussed each and every point and had assigned cogent and sound reasons for its findings---No misreading or non-reading of the evidence adduced by the parties, either by the Trial Court or by the Appellate Court were noticed---Two courts below had not ignored any material piece of evidence on record; or that their findings were not perversed, or were suffering from any jurisdictional error---Revision application being not maintainable, was dismissed, in circumstances.

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

----Ss. 115 & 100---Revision---Scope and mandatory requirements---Revision would lie to High Court against the decision or order of subordinate court in which no appeal lay---Revision was competent only in non-appealable orders or decisions; and where appeal had been prescribed under the law, revision was not competent---Revisional jurisdiction of High Court under S.115, C.P.C. did not confer any substantive right; and the right to move in revision, was merely a privilege granted to a party---In the present case, applicant had the remedy of moving Second Appeal under S.100, C.P.C. against the decree passed in appeal by the Appellate Court, subordinate court to High Court, but instead of availing said remedy, the applicant had chosen to prefer revision application, which was not maintainable---Copies of the pleadings etc., should be filed along with the revision application which was a mandatory requirement.

1997 CLC 659; PLD 1985 Pesh. 135; 2006 SCMR 595; PLD 2006 SC 309; 2006 SCMR 1304; 2000 SCMR 431 and CLC 2006 ref.

PLD 1970 SC 506; PLD 1995 SC 472 and Banori (Mst.) v. Jilani PLD 2010 SC 1186 rel.

Naheed Afzal Khan for Applicant.

Khawaja Amjad Pervaiz for Respondent No.1.

Date of hearing: 22nd April, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 1572 #

2014 M L D 1572

[Sindh]

Before Aqeel Ahmed Abbasi and Aftab Ahmed Gorar, JJ

SHAHNAWAZ alias SHAHID ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-69 of 2013, decided on 29th January, 2014.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Charas allegedly recovered from accused, were two patties in single joint shape; and from only one Patti one piece of 10 grams, was taken out, and sent for chemical examination---Each Patti seemed to be equal in weight, which would be 500 grams each---By applying the sentencing Policy, while maintaining the conviction of accused, his sentence was reduced from seven years to one year, six months and fine from Rs.25,000 to Rs.11,000.

PLD 2012 SC 380; 2013 MLD 1512 and Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 ref.

Ahmed Bux Abro for Appellant.

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

Date of hearing: 29th January, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1582 #

2014 M L D 1582

[Sindh]

Before Abdul Rasool Memon, J

MUHAMMAD MUSTAFA---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.S-268 of 2013, decided on 28th October, 2013.

Penal Code (XLV of 1860)---

----Ss.381-A & 411---Criminal Procedure Code (V of 1898), Ss.249-A & 561-A---Theft of car and dishonestly receiving stolen property---Quashing of proceedings---Principles---Application under S. 249-A, Cr.P.C., non-filing of---Accused was arrested for theft of car in question as it was recovered from his custody---Validity---Accused was not nominated in F.I.R. and nobody else had seen him while committing theft of the car---Accused immediately after missing of car was found to be in possession of the same and presumption would be that he had stolen the same---Accused claimed that he took it for joyride and complainant not only before police and Trial Court but before High Court also stated to have pardoned his mistake---Complainant did not say that his car had been stolen by accused---Even if entire evidence was brought on record, accused would not be convicted for the offence with which he had been charged---Continuance of criminal trial of accused would be abuse of process of the court---High Court in exercise of its inherent jurisdiction under S.561-A, Cr.P.C. had ample powers to quash proceedings, if it had come to conclusion that even if entire evidence was brought on record there was no likelihood of accused being convicted irrespective of the fact that accused had not approached Trial Court under S. 249-A, Cr.P.C.---High Court quashed proceedings pending before Trial Court against accused---Application was allowed in circumstances.

AIR 1972 SC 635 ref.

Khawaja Naveed Ahmed for Applicant.

Ms. Rahat Ahsan, D.P.G.

MLD 2014 KARACHI HIGH COURT SINDH 1592 #

2014 M L D 1592

[Sindh]

Before Irfan Saadat Khan and Abdur Rasool Memon, JJ

Malik SHAMSHER and 43 others---Petitioners

Versus

PROVINCE OF SINDH through Senior Member, Board of Revenue, Sindh and 13 others---Respondents

Constitution Petition No.D-2593 of 2012, decided on 17th February, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Licensed land---Removal of construction---Petitioners were employees of Karachi Water and Sewerage Board who had raised constructions over land owned by the Board---Grievance of petitioner was that authorities had demolished their constructions raised over the land allotted to them---Validity---Original allottees raised some construction on plots allotted to them from their meagre earnings and they were liable to be compensated by the Board in such behalf---Original allottees, to whom Karachi Water and Sewerage Board with the connivance of other respondents were adamant to remove, could not ask to be compensated with regard to price of land, as the land did not belong to original allottees and it belonged to the Board---Original allottees were only entitled for compensation in respect of whatever construction had been raised by them---High Court directed the authorities to compensate original allottees by paying them amount of cost of construction as per current government rates of cost of construction, as per designated category---Petition was disposed of accordingly.

Mobin Rafique and another v. Rashid Ahmed and 2 others PLD 2012 Sindh 449; Muhammad Mazhar Iqbal v. Vth Additional District Judge 2010 MLD 439 and Mir Zaman v. Mst. Shada and others 2000 SCMR 1699 ref.

Abdul Wajid Wyne and Abdul Jabbar Mirza for Petitioners.

Ahmed Pirzada for Respondents Nos. 1, 2, 3 and 4.

Dr. Ata Muhammad Panhwar, Respondent No.7 (in person).

Qazi Asif Ali for Respondent No.8.

Jamil Ahmed for Respondent No.9.

Saifullah, A.A.-G. for Respondents Nos. 5, 6, 10 and 13.

Salman Hamid for Respondent No.12.

S. Sultan Ahmed for Respondents Nos.11 and 14.

Dates of hearing: 16th and 28th January, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1607 #

2014 M L D 1607

[Sindh]

Before Nadeem Akhtar, J

Syed AMJAD MAHBOOB---Plaintiff

Versus

Raja MUMTAZ HUSSAIN ARIF and 3 others---Defendants

Suit No.1447 of 2006, decided on 15th April, 2014.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Rejection of plaint---Scope---Defendant moved an application for rejection of plaint with the contention that same did not disclose cause of action and suit was barred by law---Validity---Averments and allegations made in the plaint and other undisputed material on record could be looked into for rejection of the same---Plaintiff had pleaded all facts and had made all such allegations in the plaint which were required to be pleaded and made in a suit for specific performance of an immovable property---Question as to whether plaintiff would be able to prove facts made in the plaint was irrelevant for deciding an application for rejection of the same where a cause of action was disclosed---Defendant had admitted agreement for sale of suit property and general power of sub-attorney was executed by him for consideration---Defendant could not unilaterally revoke general power of attorney granted by him for consideration and deed of revocation had no consequences as nothing was on record to show that intimation with regard to such revocation was given---Stance taken by the defendant was self-contradictory---Parties were at variance on questions of fact which could not be resolved without recording of their respective evidence---Plaint could not be rejected in such circumstances without affording opportunity to the parties to adduce evidence and without providing them chance of hearing when issues had been framed---Person seeking specific performance of contract had to show his readiness and willingness to perform his agreed part of contract---Plaint in the present case had disclosed a cause of action and same could not be rejected---Application for rejection of plaint was dismissed in circumstances.

Haji Abdul Karim through attorney and 4 others v. Messrs Florida Builders (Pvt.) Ltd. Karachi, 2009 YLR 451; Muhammad Iqbal v. Altaf Hussain and others 2011 CLC 250; Mst. Hajran Bibi and others v. Suleman and others 2003 SCMR 1555; Abdul Rahim v. Mukhtar Ahmed and 6 others 2001 SCMR 1488; Ashfaque Ahmed and 8 others v. Nadeem Ahmed and 3 others PLD 2006 Lah. 643; Messrs FOSPAK (Private) Ltd. through Chief Executive v. Fosroc International Limited and another PLD 2011 Kar. 362; Meer Hassan alias Ameer Hassan v. Federation of Pakistan through Secretary Port and Shipping 2009 YLR 1827; Muhammad Tufail v. Muhammad Younus and others 2006 CLC 779; Mst. Zakia Begum through legal heirs v. Niaz Ahmed 1999 MLD 3156 and Tajuddin Khan v. Habib Bank Ltd., and 3 others 1998 CLC 563 ref.

Mst. Hajran Bibi and others v. Suleman and others 2003 SCMR 1555; Abdul Rahim v. Mukhtar Ahmed and 6 others 2001 SCMR 1488; Ashfaque Ahmed and 8 others v. Nadeem Ahmed and 3 others PLD 2006 Lahore 643; Messrs FOSPAK (Private) Ltd. through Chief Executive v. Fosroc International Limited and another PLD 2011 Kar. 362; Meer Hassan alias Ameer Hassan v. Federation of Pakistan through Secretary Port and Shipping 2009 YLR 1827; Muhammad Tufail v. Muhammad Younus and others 2006 CLC 779; Mst. Zakia Begum through legal heirs v. Niaz Ahmed 1999 MLD 3156; Tajuddin Khan v. Habib Bank Ltd., and 3 others 1998 CLC 563; Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371; Q.B.E. Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. and others 2008 SCMR 1037; Mst. Karim Bibi and others v. Zubair and others 1993 SCMR 2039; Muhammad Younis Arvi v. Muhammad Aslam and 16 others, 2012 CLC 1445 and Muhammad Afzal v. Muhammad Manzoor and 40 others 2013 YLR 85 rel.

Haji Abdul Karim through attorney and 4 others v. Messrs Florida Builders (Pvt.) Ltd. Karachi 2009 YLR 451 and Muhammad Iqbal v. Altaf Hussain and others 2011 CLC 250 distinguished.

(b) Words and phrases---

----"Cause of action"---Meaning---Cause of action would represent all the requisites and facts which were necessary for the plaintiff to prove before he could succeed in a suit.

Zia-ul-Haq Makhdoom for Plaintiff.

Riaz Ahmed Bhatti for Defendant No.2.

Date of hearing: 15th April, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 1618 #

2014 M L D 1618

[Sindh]

Before Dr. Zafar Ahmed Khan Sherwani, Election Tribunal

Syed ZAIN-UL-ABDIN---Petitioner

Versus

GHULAM QADIR CHANDIO and 19 others---Respondents

Election Petition No.3 of 2014, decided on 4th August, 2014.

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

---Ss. 68 (b), 69, 99 (f), 70 (a) & 52---Election petition---Election for the seat of Member of Provincial Assembly---Fake declaration about educational certificate---Not righteous and honest---Rule of thumb---Scope---Contention of petitioner was that returned candidate was not sagacious, righteous, non-profligate, honest and ameen as he had falsely claimed his qualification as M. A. in his nomination paper form filed before the Returning Officer---Validity---Returned candidate had failed to prove his degree of qualification as M. A. to be genuine as claimed by him in his nomination form verified by him on oath---Returned candidate could not be termed as honest and righteous on account of his forged degree and false oath---No estoppel would apply against statute---Person should not be qualified to be elected as a member of an Assembly unless he was righteous and honest---Returned candidate was not qualified to be elected as member of the Assembly as he lacked the qualification of being righteous and honest and his election was void---Rule of thumb to throw away the votes was applicable in the present case---If disqualification was notorious and electors knew the said disqualification of the returned candidate then votes secured by him were to be thrown away and runner up candidate had to be declared as returned candidate---No evidence was on record in the present case that the disqualification of returned candidate was notorious to his voters and votes obtained by him could not be thrown away and petitioner could not be declared as the returned candidate---Result of present election had been materially affected---Election petition was accepted and election of returned candidate was declared to be void as a whole.

Ghulam Akbar Lang v. Deewan Ashiq Hussain Bukhari 2012 SCMR 366 ref.

Haji Amanullah Khan v. Sahibzada Tariqullah 1995 CLC 158 rel.

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

----S. 99 (f)---Qualification and disqualification of a member---Scope---Person should not be qualified to be elected as a member of Assembly unless he was sagacious, righteous, non-profligate, honest and ameen.

Jhamat Jethanand for Petitioner.

Bhajandas Tejwani for Respondent No.1.

MLD 2014 KARACHI HIGH COURT SINDH 1639 #

2014 M L D 1639

[Sindh]

Before Zafar Ahmed Rajput, J

WAPDA through Chairman and 5 others---Appellants

Versus

Messrs KHAN COTTON GINNING FACTORY through Director---Respondent

Civil Appeals Nos.1 and 2 of 2008, decided on 30th September, 2013.

Limitation Act (IX of 1908)---

----S. 5 & Art. 156---Civil Procedure Code (V of 1908), S. 100---Second appeal---Limitation---Condonation of delay---Sufficient cause---Negligence of party---Effect---Second appeal, in the present case, was time barred by one year and six days---Contention of defendants-Department was that delay was due to late sanction of court-fee amount for filing of second appeal---Validity---Person seeking condonation of delay must explain delay of each and every day to the satisfaction of court and should also establish that delay had been caused due to the reasons beyond his control---Person who was negligent in filing appeal and had failed to pursue his case with due diligence was not entitled to any indulgence by the court---Government or any department of the same were to be treated like an ordinary litigant while considering condonation of delay under S. 5 of Limitation Act, 1908---Ninety days time prescribed for filing of second appeal had already expired before applying for copies of judgment and decree---Present appeal was time barred by one year and six days---No sufficient cause for condonation of delay was shown by the defendants-Department---Second appeal was dismissed being time barred.

Government of Punjab through Chief Secretary Government of Punjab and others v. Syed Muhammad Rafique Shah 2013 SCMR 1468; Managing Director Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others PLD 2003 SC 724; Chief Personal Officer, Pakistan Railways, Head Quarter Lahore v. Anjum Farooq and 6 others 1997 SCMR 860; Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Limited 1990 SCMR 1059; Government of Punjab, through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396; Federation of Pakistan and 5 others v. Jamaluddin and others 1996 SCMR 727; Lahore High Court v. Nazar Muhammad Fatina and others 1998 SCMR 2376 and Collector Land Acquisition Chashma Right Bank Canal Project, WAPDA v. Ghulam Sadiq and others 2002 SCMR 677 ref.

Government of Punjab through Chief Secretary Government of Punjab and others v. Syed Muhammad Rafique Shah 2013 SCMR 1468 and Managing Director Sui Southern Gas Company Ltd Karachi v. Ghulam Abbas and others PLD 2003 SC 724 distinguished..

Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Limited 1990 SCMR 1059; Government of Punjab, through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396; Federation of Pakistan and 5 others v. Jamaluddin and others 1996 SCMR 727; Lahore High Court v. Nazar Muhammad Fatina and others 1998 SCMR 2376; Collector Land Acquisition Chashma Right Bank Canal Project, WAPDA v. Ghulam Sadiq and others 2002 SCMR 677; Muhammad Hussain v. Settlement and Rehabilitation Commissioner 1975 SCMR 304; Muhammad Saeed v. Shaukat Ali 1982 SCMR 285; Mst. Rukhsana Ahmed v. Tariq Attaullah 1980 SCMR 36; Central Board of Revenue, Islamabad through Collector of Custom, Sialkot Dry Port, Samberial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others 1998 SCMR 307 and Chairman, District Evacuee Trust, Jhelum v. Abdul Khaliq PLD 2002 SC 436 rel.

David Lawrance for Appellants.

Abdul Naeem and Faisal Naeem for Respondents.

Date of hearing: 30th September, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 1651 #

2014 M L D 1651

[Sindh]

Before Hasan Feroz, J

PROVINCE OF SINDH through Secretary, Home Department and another---Appellants

Versus

Mst. SYEDA TASNIM FATIMA and 3 others---Respondents

IInd Appeal No.18 of 2009, decided on 30th May, 2014.

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

----S.1---Fatal accident---Suit for compensation---Determination of amount of compensation---Plaintiff/legal heirs of the deceased, claimed that accident wherein deceased died occurred due to rash and negligent driving of defendant (driver), during deceased's employment with defendants---Defendants had not denied the ownership of vehicle in question as well as employment of defendant as their driver---Defendants had neither denied the accident nor death of deceased due to such accident---Plaintiff claimed damages of Rs.5,74,45000---Validity---Quantum of the compensation in fatal accident, was to be determined on the basis of the earning of the deceased, his average age, his legal heirs, their expected expenses as well as other attending circumstances---Trial Court assessed the compensation, keeping in view the average income of the deceased for his remaining excepted life as well as other things and calculated the amount to the tune of Rs.69,50298---Said determination of the compensation by the Trial Court was based on sound reason in as much as the basic aspects were considered while assessing the same---Trial Court had properly thrashed out the evidence of the parties and came to a right conclusion with regard to the responsibility of the defendants, as well as determination of the compensation in respect of the deceased, who was a young person having wife and children---Said findings of the Trial Court had rightly been upheld by the Appellate Court below---Findings of courts below on the issue of quantum of compensation, not suffering from any illegality or irregularity, arrived at after proper appreciation of evidence, could not be interfered with.

PLD 2001 SC 213; PLD 1992 SC 838; 1972 SCMR 437; 1984 SCMR 621; 1993 SCMR 1149; PLD 1995 Kar. 329; 2007 SCMR 1394; Mrs. Gul Bano v. Muhammad Ramzan 1982 CLC 1120; Mst. Zebunnisa v. Sindh Road Transport Corporation 1982 CLC 1228; Spin Gul v. Ikramul Haq 1987 MLD 2402, Hayat Services Pak Ltd. v. Kandan 1989 CLC 2153; Kazi Arifuddin v. Government of Sindh PLD 1991 Kar 291; Pakistan Steel Mills Corporation v. Malik Abdul Habib 1993 SCMR 848; Mst. Sakina v. National Logistic Cell 1995 MLD 633; Anisur Rehman v. Government of Sindh 1997 CLC 615; Roshan Bai v. Pakistan Steel Mills Corporation 2000 CLC 111; Ashique Masih v. Abbot Laboratories Pak. Ltd. 2001 CLC 913; Shamim Akhtar v. Muhammad Arif Baloch 2001 YLR 821; Aijaz and 6 others v. Karachi Transport Corporation through Chairman, Director of Secretary and 2 others 2004 MLD 491; Punjab Road Transport Board v. Abdul Wahid Usmani and others PLD 1980 Lah 584; Pakistan Steel Mill Corporation Ltd. through its Managhing Director and Director's Secretary and another v. Nazir Hussain Shah 1990 CLC 515 and Sri Manmatha Nath Kuri v. Moulvi Muhammad Mokhlesur Rehman and another PLD 1969 SC 565 ref.

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

----S.100---Second appeal---Scope---Second appeal had a limited scope as compared to the first appeal; and second appeal lay only on the grounds mentioned in S.100, C.P.C.

Ashfaque Nabi Qazi A.G. for Appellant.

Farukh Usman and Aamir Maqsood for Respondents Nos.1 to 3.

Date of hearing: 21st May, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1668 #

2014 M L D 1668

[Sindh]

Before Faisal Arab and Shaukat Ali Memon, JJ

CITY DISTRICT GOVERNMENT, KARACHI---Petitioner

Versus

NAZIR AHMED KHAN ADIB---Respondent

Constitutional Petition No.D-262 of 2009, heard on 28th November, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Allocation/offer for allotment of plot---Department withdrew allocation/offer for allotment of plot against which complaint was filed before Ombudsman which was accepted---Contention of department/petitioners was that issuance of allotment order was subject to compliance of terms and conditions and fulfilment of certain formalities which had not been done and no vested right had been created---Validity---Allotment order was to be issued after fulfilment of conditions---Mere issuance of allocation letter did not create any enforceable relationship amounting to right in rem---Entire occupancy value was not paid/deposited within stipulated period for issuance of allotment order---Allocation order had not matured into final allotment order for want of fulfilment of conditions forming part of said order/letter---Allocation/offer letter had created no right nor same could be enforced due to shortcomings---Decision/order of Ombudsman was outcome of mis-reading and mis-interpretation of word 'allotment' for allocation---Impugned orders were set aside and constitutional petition was accepted in circumstances.

1987 SCMR 1840; PLD 1969 SC 407; 1991 MLD 2317; 1996 CLC 333; 2007 SCMR 1451; PLD 1991 SC 973 and 2005 PLC (C.S.) 1457 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Factual controversy---Factual controversy could not be decided in exercise of constitutional jurisdiction.

2001 SCMR 135 and 2000 SCMR 81 rel.

Jamil Ahmed for Petitioner.

Province of Sindh for Respondent No.1.

Ms. Pooja Kalpana for Respondent No.2.

Date of hearing: 28th November, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 1688 #

2014 M L D 1688

[Sindh]

Before Syed Saeed-ud-Din Nasir, J

Mrs. HUSNA RIZVI---Plaintiff

Versus

Mrs. KIRAN ASIF ALI CHUDHARY and 3 others---Defendants

Suit No.960 of 2010, decided on 11th July, 2014.

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

----S.19---Civil Procedure Code (V of 1908), O.I, R.10, O.XXI, Rr.84, 85 & 86---Execution of decree---Auction bidder---Impleading of necessary party---Entitlement---During pendency of suit, intervener sought himself to be impleaded as necessary party, on the plea that he was auction bidder of suit property during execution proceedings of decree passed by Banking Court---Validity---Proposed intervener failed to deposit 25% bid money with Banking Court concerned and could not assume status of auction purchaser---Against proposed intervener no relief was claimed in the suit---It was not necessary to join intervener as necessary party---Writ of attachment was issued in respect of property in question by Banking Court in execution proceedings, therefore, High Court declined to restrain Banking Court from executing decree---Application was dismissed in circumstances.

Salim Salam Ansari for Plaintiff.

Wasi Hyder Jafferi for Defendants.

Imran Ameer for applicant/intervener.

Date of hearing: 7th July, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1698 #

2014 M L D 1698

[Sindh]

Before Salahuddin Panhwar and Muhammad Iqbal Kalhoro, JJ

GHULAM HUSSAIN alias BASHOO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-79 of 2013, decided on 9th July, 2014.

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

----S. 9(a)(c)---Possessing and trafficking of narcotics---Appreciation of evidence---F.I.R., challan and memo. of recovery reflected that 1050 grams of charas, consisting of 20 pieces of different sizes were recovered from accused; out of which 10 grams of charas was separated and sealed to be sent for Chemical Analysis---Exact weight of each piece of charas, recovered from accused was not identified, nor an attempt appeared to have been made by the complainant while preparing the relevant papers---Evidence qua sample was in conflict with the report sent by Chemical Examiner---Report of Chemical Examiner reflected that sample which was received by its office contained only one piece of charas, and same was in rod shape, which ruled out any possibility of different pieces of charas blended together with each other, either intentionally or not to make out one piece---Recovery of charas was 1050 grams containing 20 pieces of different sizes, by the principle of average, if 20 pieces of charas were equally divided, each piece would become in between the limits of 52 to 53 grams---Accused, in circumstances, would become only liable for 52/53 grams of charas from which sample appeared to have been taken---Prosecution had failed to discharge its burden of proving beyond reasonable doubt the recovery of 1050 grams of charas from accused---Case of accused, in circumstances, did not come within the mischief of clause (c), but fell within the ambit of clause (a) to S.9 of Control of Narcotic Substances Act, 1997---Accused had served his sentence for 11 months and 4 days, and had earned remission of 4 months and 15 days; his unexpired portion of sentence had been stated as 5 years, 8 months and 1 day with fine---By dismissing the appeal conviction and sentence awarded to accused were modified from S.9(c) to S.9(a) of Control of Narcotic Substances Act, 1997, and reduced the same to the period, accused had already undergone with fine of Rs.5000.

Muhammad Hashim v. The State PLD 2004 SC 856; Ameer Zaib's case PLD 2012 SC 380 and Ghulam Murtaza's case PLD 2009 Lah. 362. ref.

Shafi Muhammad Memon for Appellant.

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

Date of hearing: 9th July, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1720 #

2014 M L D 1720

[Sindh]

Before Dr. Zafar Ahmed Khan Sherwani, Election Tribunal

ABDUL RAZZAK---Petitioner

Versus

Syed HAFEEZ-UDDIN and 27 others---Respondents

Election Petition No.7 of 2013, decided on 7th August, 2014.

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

---Ss. 83 (b), 68 (d), 38 (9) 69 & 52---Election petition---Election for the seat of Member of Provincial Assembly---Illegal practice---Presiding Officer, bias of---Effect---Election Tribunal, powers of---Scope---Contention of petitioner was that votes of returned candidate were increased by the Presiding Officer---Validity---Presiding Officer had not mentioned the name of petitioner in the statement of count and she was ignorant of the fact as to who had contested the election from the specific constituency---Said statement of count did not provide the details with regard to contesting candidates and votes polled by them which was doubtful---Presiding Officer was bound to prepare statement of count showing therein the numbers of valid votes polled by each contesting candidate and ballot papers excluded from the count---Unexplained discrepancies with regard to correctness, overwriting and miscalculation in counting were on record---Petitioner had proved that he obtained 94 votes but not 8 votes from specific polling station---Returned candidate had committed an act of illegal practice on account of obtaining illegal assistance of Presiding Officer to further his election as a candidate---Election Tribunal had powers to declare the election of returned candidate to be void if it was satisfied that a corrupt or illegal practice had been committed by the said candidate or his election agent or by any other person with connivance of the candidate or his election agent---Connivance between the Presiding Officer and returned candidate was on record---Election of returned candidate was declared as void and petitioner being the runner up in the same election was declared as returned candidate---Election petition was accepted in circumstances.

Syed Wajihul Hassan v. Mohammed Khalid Alam 2010 PLC(C.S.) 1308 rel.

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

----S. 83 (b)---"Illegal practice"---Meaning---Person would be guilty of illegal practice if he had obtained or procured or attempted to procure the assistance of any person in the service of Pakistan to further or hinder the election of a candidate.

----S. 68 (d)---Election Tribunal, powers of---Scope---Election Tribunal had powers to declare the election of returned candidate to be void if the Tribunal was satisfied that a corrupt or illegal practice had been committed by the said candidate or his election agent or by any other person with connivance of the candidate or his election agent.

(d) Constitution of Pakistan---

----Art. 260---"Service of Pakistan"---Meaning---"Service of Pakistan" meant any service, post or office in connection with the affairs of the Federation or of a Province.

Abid Zubairi and UmerLakhani for Petitioner

Ghulam Shabbir Shah for Respondent No.1

Kareem Durrani for Respondent No. 4.

MLD 2014 KARACHI HIGH COURT SINDH 1765 #

2014 M L D 1765

[Sindh]

Before Zafar Ahmed Rajput, J

WAPDA through Chairman WAPDA and 3 others---Applicants

Versus

BHAJAN DAS TEJWANI---Respondent

Civil Revision No.111 of 2009, decided on 18th November, 2013.

Limitation Act (IX of 1908)---

----Ss. 5 & 29---Civil Procedure Code (V of 1908), S. 115---Revision petition---Limitation---Condonation of delay---Negligence of party---Applicability of S.5 of Limitation Act, 1908---Suo motu revisional jurisdiction, invocation of---Scope---Revision petition was time barred by one month even after excluding the time consumed for obtaining copies of judgment and decree---Contention of defendants-Department was that delay was due to shortage of funds/late supply of court fee papers for filing of revision application---Validity---Delay would defeat equity and equity would aid the vigilant and not the indolent---Person who was negligent in filing appeal and had failed to pursue his case with due diligence was not entitled to any indulgence by the court---Government or any department of the same could not be treated differently from an ordinary litigant and opposite party could not be penalized for negligence of said Government or department---If Statute governing proceedings did not prescribe period of limitation then proceedings instituted there-under would be governed by Limitation Act, 1908 but where law under which proceedings had been launched had prescribed a period of limitation then benefit of S.5 of said Act could not be availed unless same had been made applicable as per S.29(2) of Limitation Act, 1908---Section 5 of Limitation Act, 1908 was not applicable under S.29(2) of said Act on revision petition which had 90 days of period of limitation---Present revision petition was time barred by one month---No illegality or material irregularity was found in the impugned judgment to invoke suo motu revisional jurisdiction to go into fetters of limitation for ensuring adherence to law and administration of justice---Revision was dismissed being time barred in circumstances.

Allah Dino and others v. Muhammad Shah and others 2001 SCMR 286; City District Government Lahore, through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676; Hafeez Ahmed and others v. Civil Judge, Lahore and others PLD 2012 SC 400 and State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 = 2012 PLC (C.S.) 218 ref.

Allah Dino and others v. Muhammad Shah and others 2001 SCMR 286; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 = 2012 PLC (C.S.) 218; The Canara Bank Ltd. v. The Wardon Insurance Co.Ltd. AIR 1935 Bombay 35; Abdul Ghaffar and others v. Mst. Mumtaz PLD 1982 SC 572; Ali Muhammad and anothers v. Fuai Hussain and others 1983 SCMR 1239; Controller of Customs (Appraisement) v. Messrs Saleem Adaya, Karachi PLD 1999 Kar. 76; Haji Muhammad Ashraf v. The State and 3 others 1999 MLD 330 and Province of Punjab through Collector and others v. Muhammad Farooq and others PLD 2010 SC 582 rel.

Nemo for Applicants.

Manoj Kumar Tejwani for Respondent.

Date of hearing: 18th November, 2013.

MLD 2014 KARACHI HIGH COURT SINDH 1773 #

2014 M L D 1773

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

MUMTAZ and 7 others---Appellants

Versus

The STATE---Respondent

Special Criminal ATA Appeal No.31 of 2014, decided on 17th June, 2014.

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

----Ss.6(2)(m) & 7(h)---Criminal Procedure Code (V of 1898), S.561-A---Serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties---Sentence, suspension of---Unexplained delay in registration of F.I.R.---Accused were convicted and sentenced to imprisonment for five years---Validity---Delay of five days in registration of F.I.R., was not explained, whereas Presiding Officer, who was complainant in the case, did not report the matter to appropriate forum in accordance with law on the date of alleged incident---Complainant stated in his evidence that he did not give name of accused persons at the time of registration of F.I.R., nor he could identify accused produced in court to be the persons who committed alleged offence---No incriminating material was recovered from accused nor any other evidence had been produced by prosecution which could directly connect accused with alleged offence---Trial Court had convicted accused under Ss. 6(2)(m) & h) of Anti-Terrorism Act, 1997, without even recording any finding as to whether alleged offence fell within the definition of terrorism or not---Accused persons had no previous criminal record and they had made out a case for their release on bail by suspending sentence awarded to them during pendency of appeal---Bail was allowed in circumstances.

Iftikhar Ahmed v. The State and others 2014 SCMR 07; Naseer and others v. Khuda Bakhsh and others 2011 SCMR 1430 and Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 ref.

M.A. Kazi for Appellants.

Ms. Rehana Akhtar, Additional P.G. for the State.

Date of hearing: 17th June, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1783 #

2014 M L D 1783

[Sindh]

Before Amir Raza Naqvi, J

MUHAMMAD NABI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.843 of 2014, decided on 4th July, 2014.

Criminal Procedure Code (V of 1898)---

----S.497---Sindh Arms Act (V of 2013), S.23 (1)-A---Recovery of illegal automatic weapon---Bail, grant of---Bail in main case---Accused was facing murder trial and during investigation a Kilashankov was allegedly recovered from him---Accused contended that he had been granted bail in the main case---Validity---Accused had already been granted bail in main cases and was acquitted in four cases registered against him---Having history of many cases did not go against accused---Registration of false case on account of enmity or on account of relevant authorities not happy with a particular person, could not be ruled out---Bail was allowed in circumstances.

Muhammad Rafique v. The State 1997 SCMR 412; 2012 SCMR 1137; Ali Sher and others v. The State 2008 SCMR 707; Syed Afzal Ali v. The State 2009 MLD 674; Ghulam Yaseen v. The State 2013 YLR 1256; 1991 PCr.LJ 1856 and 1990 MLD 2004 ref.

Noor Muhammad for Applicant.

Saleem Akhtar, Addl. P.G. for the State.

Date of hearing: 4th July, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1795 #

2014 M L D 1795

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

Messrs N.A.A. CONSULTING ENGINEERS and another---Petitioners

Versus

KARACHI METROPOLITAN CORPORATION through Administrator---Respondent

Constitutional Petition No. D-1451 of 2013, decided on 5th May, 2014.

(a) Constitution of Pakistan---

----Art. 199---Arbitration Act (X of 1940), S.2(a)---General Clauses Act (X of 1897), S. 24-A---Constitutional petition---Maintainability---Contractual obligation---Alternate remedy---Withdrawal of assignment order---Order, making of---Requirements---Contention of petitioners was that no show cause notice was issued nor they were provided any opportunity of hearing---Validity---Respondent-Authority had withdrawn assignment orders for the time being but same had not been cancelled or terminated and subject work had not been awarded/assigned to any other person or firm---No financial loss had accrued to the petitioners due to withdrawal of said assignment orders---Petitioners were entitled to the remuneration and reimbursable costs expenditure up to the effective date of termination in case of termination of any assignment orders as per conditions of contract executed between the parties---Issuance of any show cause notice or providing opportunity of hearing to the other party in a contract was not necessary---Necessity of issuing show-cause notice or providing an opportunity of hearing would arise when any disciplinary or penal action was required to be taken---Only an Authority, office or person conferred with the power to make any order or to give any direction under any enactment was obliged to give reasons for making such order or direction so far as necessary or appropriate---Respondents while issuing impugned letter had not acted as an Authority, office or person under any enactment but had acted as a promisor in a contract and they had not acted unfairly and unjustly---Controversies arisen out of a contract and contractual obligations could not be resolved and enforced through constitutional petition---Constitutional petition for enforcement of contractual obligation between promisor and promissee under an arbitration agreement was not maintainable---Petitioners had alternate remedy under Arbitration Act, 1940 to redress their grievances---Constitutional petition was dismissed in circumstances.

Ali Hussain v. Karachi Municipal Corporation and 3 others PLD 1977 Kar. 601; Zonal Manager, U.B.L. and another v. Mst. Parveen Akhter PLD 2007 SC 298; Government of Punjab through Minister for Revenue, Board of Revenue Lahore and others v. Messrs Crescent Textile Mills Limited PLD 2004 SC 108 and Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another PLD 1966 SC 639; Mailis-i-Intizamia, Jamia Masid, Ghulam Muhammad Abad Colony. Lyallpur v. the Secretary to Government of West Pakistan, Communication and Works Department, Lahore PLD 1963 SC 109 and Pakcom Ltd. and others v. Federation of Pakistan and others PLD 2011 SC 44 ref.

Ali Hussain v. Karachi Municipal Corporation and 3 others PLD 1977 Kar. 601; Zonal Manager, U.B.L. and another v. Mst. Parveen Akhter PLD 2007 SC 298; Government of Punjab through Minister for Revenue, Board of Revenue Lahore and others v. Messrs Crescent Textile Mills Limited PLD 2004 SC 108; Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another PLD 1966 SC 639 and Mailis-i-Intizamia, Jamia Masid, Ghulam Muhammad Abad Colony. Lyallpur v. the Secretary to Government of West Pakistan, Communication and Works Department, Lahore PLD 1963 SC 109 distinguished.

Pakcom Ltd. and others v. Federation of Pakistan and others PLD 2011 SC 44; S.M. Hashim Hussain v. Pakistan Defence Officer's Housing Society 2005 SCMR 1782; Gandapur Construction Company v. Government of Khyber Pakhtunkhwa 2014 YLR 399; Sheikh Wajahat Ali v. Government of Khyber Pakhtunkhwa through Secretary Industries 2013 YLR 2132 and Messrs Syed Bhais (Pvt.) Ltd. through Director v. Government of Punjab, through Secretary Local Government PLD 2012 Lah. 52 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Contractual obligation under an arbitration agreement---Constitutional petition for enforcement of contractual obligation between promisor and promissee under an arbitration agreement was not maintainable.

----S. 24-A---Order, passing of---Requirement---Only an Authority, office or person conferred with the power to make any order or to give any direction under any enactment was obliged to give reasons for making such order or direction so far as necessary or appropriate.

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

----S. 2(a)---"Arbitration agreement"---Meaning---"Arbitration agreement" was a written agreement to submit present or future differences to arbitration.

Shehensha Hussain for Petitioners.

Behzad Khan for Respondent.

Saifullah A.A.-G. for Respondent.

Date of hearing: 10th February, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1813 #

2014 M L D 1813

[Sindh]

Before Salahuddin Panhwar and Muhammad Iqbal Kalhoro, JJ

MUHAMMAD UMER MANGRIO---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.D-137 of 2014, decided on 7th July, 2014.

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

----Ss. 6, 7 & 23---Penal Code (XLV of 1860), Ss.324, 353 & 216-A---Attempt to commit qatl-e-amd, assault or criminal force to deter public servants from discharging of his duty, harbouring robbery or dacoity act of terrorism---Application for transfer of case from Anti-Terrorism Court to Ordinary Court was dismissed---Validity---Taking cognizance and forming opinion regarding an offence to be either scheduled one or not, could not be treated as two separate acts, which were to be performed by the court at different times---Court would take cognizance of a given offence, only when it was without any doubt with regard to its jurisdiction to try the offence by examining the material presented to it in terms of S.173, Cr.P.C.---Law had provided for one exception that a Magistrate taking cognizance of offence triable exclusively by a Court of Session, would without recording the evidence send the case to court of session for trial in terms of S.190(3), Cr.P.C.---Such exception was entirely cognate with design contemplated under S.193, Cr.P.C.---Court was competent to make up its mind as to whether the offence was scheduled one or not at the time of taking cognizance of offence on the basis of material submitted to it in shape of challan---In case the court decided in affirmative, it would proceed with the matter in accordance with law and it would not restrict the jurisdiction of the court to hold otherwise at a subsequent stage, but the exercise of jurisdiction to transfer the case to a regular court, could be resorted to by the court on the basis of new material brought before it, either by prosecution or defence---Scheme of law in terms of S.23 of Anti-Terrorism Act, 1997, appeared to have enjoined upon the court to minutely examine all the material presented at the time of challan---Impugned order appeared to have been passed in haste which did not reconcile with the judicial norms and requirements of law---Court could have waited and postponed the decision on the application of accused till the submission of challan to form its opinion that the offence was scheduled one or not, instead of dismissing it in hasty manner---Impugned order being not sustainable under the law, was set aside---Application of accused would be deemed to be pending before the court, which would be decided afresh, evaluating the material submitted to it.

(b) Words and phrases---

----'Cognizance'---Dictionary meaning.

Manzoor Akbar Turk v. Raja Ishaq Hussain 2008 MLD 728 and Ali Asghar v. Raja Khushal Khan 1982 PCr.LJ 415 ref.

Muzafar Ali Leghari for Applicant.

Syed Meeral Shah, Deputy Prosecutor General Sindh along with SIP Muhammad Hassan S.H.O. Police Station Ghulam Nabi Shah, District Umerkot.

Date of hearing: 2nd July, 2014.

MLD 2014 KARACHI HIGH COURT SINDH 1830 #

2014 M L D 1830

[Sindh]

Before Hasan Feroz, J

ZAFAR ABBAS and others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.924 of 2014, decided on 16th June, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.380 & 409---Prevention of Corruption Act (II of 1947), S.5(2)---Theft in dwelling house, criminal breach of trust by public servant, corruption---Bail, grant of---Further inquiry---Entrustment of property/boxes of Prize Bonds, was in three hands in shape of joint entrustment, between the State Bank Officials, Railways Authorities and Police personnel---Nowhere it had been the contention of prosecution that during the journey the lock of the bogie/carriage of train, had been opened or broken, or any pilferage in any other shape from the said bogie, had taken place throughout the journey of train---In a joint entrustment of property in question, equal liability would fall on the shoulders of all the persons responsible for safe delivery of boxes---Doubt crept up from the number of boxes of Prize Bonds, booked from place 'L' being ten, and its arrival at place 'K' being nine boxes, with one box missing, which was shrouded in mystery and uncertainty---Nothing had been recovered from Police guards, nor they were shown of having acquired any benefit from that property---Was yet to be ascertained through evidence on trial regarding the role of the Railway authorities and the State Bank Authorities of place 'L', which had given room for further inquiry into guilt of accused persons---Allegedly missing box containing Prize Bonds, had reportedly been cancelled by the State Bank---No loss in circumstances to Exchequer accrued, but offence still exited---Under Ss.409 & 380, P.P.C., and S.5(2) of Prevention of Corruption Act, 1947, when doubt precipitated, it would not be the entailment of maximum sentence falling upon accused persons---Punishment that could fall, would be subject to evidence during trial; and the quantum of liabilities under the offence falling on the shoulders of each of accused persons; in such legal and factual spectrum, case fell under further inquiry under S.497(2), Cr.P.C.---Accused persons having succeeded to make out a case for grant of bail, they were admitted to bail.

Hasan Sabir for Applicant.

Muhammad Qasim, Standing Counsel, along with I.O. for the State.

Date of hearing: 16th June, 2014.

Lahore High Court Lahore

MLD 2014 LAHORE HIGH COURT LAHORE 7 #

2014 M L D 7

[Lahore]

Before Shahid Bilal Hassan, J

RAWAIDAH BIBI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.770-B of 2013, decided on 22nd May, 2013.

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

----S.497---Penal Code (XLV of 1860), Ss.406 & 506---Criminal breach of trust and criminal intimidation---Bail, grant of---Accused a female, with suckling baby---Case of civil nature---Further inquiry---Complainant alleged that his sister entrusted 291 Tolas of gold and Rs.56,00,000 to accused lady who had misappropriated the same---Validity---Sister of complainant was star witness of the case who since lodging of F.I.R. did not approach investigating agency or any other forum so as to support stance taken up by complainant, who happened to be her real brother---Issue, if any, between complainant and accused party was that of civil liability/contract---Offences levelled against accused did not fall within the ambit of prohibitory clause of S. 497 Cr.P.C.---Accused was mother of a suckling baby aged one year and two months confined with her in jail---Case lodged against accused fell within the ambit of further inquiry as no exceptional ground was made out by prosecution so as to deny accused her liberty, as she had been behind the bars since 13-10-2012 i.e. approximately seven months and there was no likelihood of conclusion of trial in near future---Bail was allowed in circumstances.

Mst. Nusrat v. The State 1996 SCMR 973; Ghulam Sakina and others v. The State 1991 PCr.LJ 1316; Mst. Irshad alias Mst. Waziran v. The State 2000 PCr.LJ 613; Mst. Latifan Bibi v. The State 2006 PCr.LJ 251; The State v. Farzana Kausar 2008 YLR 2600; Nasreen Bibi v. The State 2011 YLR 1028 and Mst. Kabela v. The State 2011 YLR 2975 ref.

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

----Ss. 497 & 498---Bail, grant of---Principle---In absence of any exceptional circumstances grant of bail to accused is a right which should be given and refusal is an exception.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

Ch. Riaz Ahmed for Petitioner.

Asghar Ali Gill, Deputy Prosecutor-General and Fayyaz, S.I.. for the State.

Malik, Mukhtar Ahmed for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 16 #

2014 M L D 16

[Lahore]

Before Shezada Mazhar, J

ABDUL HAMEED---Petitioner

Versus

DISTRICT CO-ORDINATION OFFICER, MULTAN and others---Respondents

Writ Petitions Nos.8698, 8358 and 8231 of 2013, decided on 1st August, 2013.

Punjab Local Government (Taxation) Rules, 2001---

----Rr.1 & 3---Punjab Local Government Ordinance (XIII of 2001), S.116 & Second Sched., Part IV---Constitution of Pakistan, Art.199---Constitutional petition---Imposition of tax---Tax proposal---Procedure---Petitioners assailed notification issued by local government administration for imposing 1% tax on sale of animals in cattle market---Validity---Necessary for Local Government administration to indicate in draft notification/advertisement, the class of persons or categories of property proposed to be taxed---Advertisement of tax proposal in newspaper did not contain the class of persons, whereas in the notification class of persons was added at the end of the notification---Note at the end of the notification, made the whole process illegal and against Punjab Local Government (Taxation) Rules, 2001, as the same had provided a complete procedure to be followed for imposition of tax/fees etc. by the Local Councils---High Court set aside notification issued by authorities---Petition was allowed in circumstances.

2008 CLC 896 and 2007 CLC 587 ref.

Muhammad Maqsood Khan for Petitioner.

Abdul Saleem Alvi for Respondents.

MLD 2014 LAHORE HIGH COURT LAHORE 38 #

2014 M L D 38

[Lahore]

Before Rauf Ahmad Sheikh, J

Mst. SAIMA BIBI---Petitioner

Versus

RAHEEL BUTT and 3 others---Respondents

Writ Petition No.2800 of 2012, decided on 18th March, 2013.

Criminal Procedure Code (V of 1898)---

---S.491---Constitution of Pakistan, Art. 199---Constitutional petition---Minor-detenue, recovery of---Contention of the petitioner-wife was that she was turned out by the respondent-husband from the house after snatching the minor-detenue---Petitioner filed a application under S.491 Cr.P.C. which was dismissed by the Additional Sessions Judge on the ground that matter was pending before the Guardian Court---Validity---Ad-interim injunction granted by the Guardian Judge was to the effect that the minor-detenue should not be snatched per force, so the said order or pendency of the petition under the Guardians and Wards Act, 1890 was no bar on decision of the application under S.491 Cr.P.C. on merit---Provisions of S. 491 Cr.P.C. provided efficacious and speedy relief for release of the person kept under illegal or improper custody---Minor-detenue girl aged about 5 years needed constant love, care and affection of the mother---Respondent-husband was a businessman and he looked after his business during day time so he could not look after the minor-detenue properly---Though the father's mother lived in the same house but she was not a substitute of the real mother---Minor girl could be brought up properly by the mother only and her custody with anyone except the real mother was improper---Matters of custody of minor should be dealt with parental jurisdiction---Minor-detenue was not in proper custody---Constitutional petition was accepted and minor-detenue was given in the custody of the petitioner-mother.

Malik Ghulam Mustafa Kanwal for Petitioner.

G.M. Shah for Respondent No.1.

Khurshid Ahmad Satti, A.A.-G. for the State.

MLD 2014 LAHORE HIGH COURT LAHORE 47 #

2014 M L D 47

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

QAISAR KHAN and 74 others---Petitioners

Versus

GOVERNMENT OF PUNJAB and 4 others---Respondents

Writ Petition No.184 of 2013, decided on 15th May, 2013.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S. 195, Sixth Sched. Cls. 49 & 53---Constitution of Pakistan, Art.199---Constitutional petition---New Cattle Market, establishment of---Petitioners being Commission Agents of Old Cattle Market claimed to have right to collect entry fee and commission from sellers and purchasers of cattle and claimed compensation from Municipal Administration for damage caused to their fixtures at Old Cattle Market---Validity---Local Government under law had exclusive power to establish or relocate any public market or public-slaughter house or any part thereof---Private markets could be established within area of Local Government after obtaining licence, but not otherwise---Association of some persons in establishment of a cattle market in public sector by investing amount in purchasing or taking property on lease or by providing allied facilities therein would not legally entitle such persons to claim such fee and commission from sellers or purchasers of cattle using such market---Practice of such association in past would not confer any right on such persons violating relevant law on the subject---Term "commission" for being alien to scheme of law provided for establishment of a cattle market could not be claimed even by a person licensed to establish a private market nor could any one pray for a decree of court in such regard---Petitioners for their claim regarding their investments in establishing new cattle market or providing facilities therein could approach competent court, which after recording of evidence could decide same---Relief asked for by petitioners being in negation of statutory provisions could not be granted---High Court dismissed constitutional petition in circumstances.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Relief asked for, if be in negation of statutory provisions, could not be granted at any cost.

Khalid Ashraf Khan and Mehmood Ashraf Khan for Petitioners.

Ch. Sagheer Ahmad, Abdul Salam Alvi, Haji Malik Muhammad Aslam and Aziz-ur-Rehman Khan, A.A.-G. for Respondents.

Date of hearing: 8th May, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 69 #

2014 M L D 69

[Lahore]

Before Ali Baqar Najafi, J

YAQOOB alias QOBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.479 of 2013, decided on 9th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 540---Constitution of Pakistan, Art.10-A---Penal Code (XLV of 1860), Ss.396, 397 & 412---Dacoity with murder, robbery or dacoity, with attempt to cause death or gravious hurt, dishonestly receiving property stolen in the commission of a dacoity---Re-summoning of prosecution witnesses for cross-examination---Right of fair trial as fundamental right of accused---Petitioner had sought setting aside the order passed by the Trial Court, whereby re-summoning of prosecution witnesses for cross-examination, was disallowed---Defence Counsel, appointed at the State expense, did not cross-examine certain prosecution witnesses---Right of fair trial had been guaranteed as a fundamental right under Art. 10-A of the Constitution which right was meaningless, unless the veracity of the prosecution witnesses was properly thrashed and weighed through the art of cross-examination---Article 10-A of Constitution was a living organism, and not a vague concept---Just by providing on Advocate to an accused at the State expense, evaluating his performance in the court, should not escape the attention of the court---Filling of lacunae, delay in making such an application, or even partiality, were ignorable technicalities, when compared to the concept of complete justice---Courts, could not be absolved of their responsibilities to ensure that accused were extended all possible legal help/assistance to defend their cases---Trial Court was directed by High Court to re-examine prosecution witnesses, who were not re-examined on behalf of accused/petitioner to be completed within a period of seven days from the receipt of order in that respect.

Nawabzada Shah Zain Bugti and others v. The State PLD 2013 SC 160; Pervaiz Ahmad v. Munir Ahmad and another 1998 SCMR 326; The State v. Muhammad Yaqoob and others 2001 SCMR 308 and Maqbool v. The State 2006 PCr.LJ 110 rel.

Pir Ali Raza Gilani for Petitioner.

Mian Imran Rahim, D.P.G. for the State.

Zafar Iqbal Klasson for Respondent No.2.

MLD 2014 LAHORE HIGH COURT LAHORE 90 #

2014 M L D 90

[Lahore]

Before Abdus Sattar Asghar, J

GHULAM YASEEN---Petitioner

Versus

The STATE and 3 others---Respondents

Writ Petitions Nos.13941 of 2010 and 229 of 2011, decided on 18th September, 2012.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Constitution of Pakistan, Art. 199---Constitutional petition----Superdari of vehicle---Ownership/title of vehicle disputed---Vehicle given in possession of the police till final disposal of case and determination of its owner---Legality---Petitioner had lodged an F.I.R. alleging that his truck had been snatched---Subsequently body of the truck was changed and converted into a bus---Police recovered the truck from the respondent---Magistrate handed over truck on superdari to the petitioner, however, First Appellate Court set aside order of Magistrate and ordered that till final disposal of the case, truck should remain with the police and parties could file civil suits to prove their ownership of the truck---Validity---Report of Forensic Science Laboratory showed that truck in question did not bear the chassis numbers alleged by both the parties---During investigation respondent failed to produce the alleged owner of the truck who had given an open transfer letter to the respondent---Respondent had simply brought on record an open transfer letter, which was not a valid document of title and did not bear any legal worth to claim ownership---Both parties claimed ownership of the truck, therefore, First Appellate Court had rightly directed them to approach the civil court for determination of their ownership---Criminal courts were not competent to determine question of title or ownership of the case property rather same fell within the exclusive domain of the civil court---Disputed ownership of vehicle was a factual controversy which could not be resolved by invoking constitutional jurisdiction of the High Court---Constitutional petition was dismissed in circumstances.

Zahurudin v. Muhammad Inayatullah Khan and another 1973 PCr.LJ 288 and Ali Muhammad v. Addl. Sessions Judge and others 2007 MLD 1096 distinguished.

Republic Motors Ltd. v. M. Anwar and others 1980 SCMR 954 rel.

Sardar Tariq Sher Khan and Abdul Rehman Laskani for Petitioner/Respondent No.2 (in Writ Petition No.229 of 2011).

Muhammad Ramzan Khalid Joyia for Respondent No.4/ Petitioner (in Writ Petition No.229 of 2011).

MLD 2014 LAHORE HIGH COURT LAHORE 102 #

2014 M L D 102

[Lahore]

Before Amin-ud-Din Khan, J

ASAD NAEEM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4153-B of 2013, decided on 15th May, 2013.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 324, 452, 109 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, house-trespass, abetment, common intention---Bail, grant of---Further inquiry---Accused was not nominated in the F.I.R., either by the complainant or after her death by her son---Son of deceased complainant in his statement recorded under S.161, Cr.P.C. had admitted that he was not an eye-witness, and he also had not ascribed any role to accused---Sole witness of the F.I.R., who was also injured, had supported the contents of the F.I.R. in which accused nowhere figured---Only evidence against accused was his confessional statement recorded by the Investigating Officer---Motive was also not attributed to accused---Co-accused had been allowed post arrest bail by High Court---Case of accused, in circumstances, required further probe, falling under S.497(2), Cr.P.C.---Accused who was detained in the lock-up since 30-10-2012, was no more required by the Police for further investigation, was entitled to concession of post-arrest bail---No direct evidence being available on record against accused to connect him with the commission of alleged offence, his bail petition was allowed and he was directed to be released on bail in circumstances.

Muhammad Amjad Ghori and another v. The State 1977 PCr.LJ 490; Allah Bakhsh v. The State 2007 PCr.LJ 1755 and Bashir alias Taddy v. The State 1989 PCr.LJ 951 ref.

Mian Pervaiz Hussain for Petitioner.

Muhammad Ishaque, Deputy Prosecutor General.

Sardar Khurram Latif Khan Khosa for the Complainant.

Akbar, Sub-Inspector.

MLD 2014 LAHORE HIGH COURT LAHORE 109 #

2014 M L D 109

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD ASHRAF---Petitioner

Versus

KASHIF IQBAL through Mst. Fakhar-un-Nisa and another---Respondents

Civil Revision No.633 of 2009, decided on 3rd September, 2013.

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

----S. 12 (2) & O.XXIII, R.3---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Compromise decree---Application under S.12(2), C.P.C. for setting aside compromise decree was filed which was dismissed concurrently---Validity---Applicant had no locus standi to file application under S.12(2), C.P.C. when a decree had been passed against a person who was alive and had not challenged the same in any proceedings before any forum---Revision was dismissed.

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

----Ss. 12(2) & 115---Decision on application under S.12(2), C.P.C.---Revision---Competency---Revision could be filed against the decision of application under S.12(2), C.P.C. by the Trial Court---If First Appellate Court had entertained and decided the matter as an appeal then same could be treated as decision of the revision which was competent but second revision was not competent after the revision---High Court, however, converted revision into constitutional petition accordingly and dismissed.

Syed Zil-e-Hasnain Kazmi for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 117 #

2014 M L D 117

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

ZULFIQAR ALI and others---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No.4410 of 2012, decided on 5th June, 2013.

Constitution of Pakistan---

---Art.199---Penal Code (XLV of 1860), Ss. 392 & 406---Robbery and criminal breach of trust---Constitutional petition---Quashing of F.I.R.---Allegations against the accused were that they refused to pay sale price of apartments purchased from the complainant and snatched the cheque from his pocket at the pistol point---Contention of the accused was that offence under S. 406, P.P.C. was not made out and the matter related to civil jurisdiction---Validity---Accused wanted to short circuit the procedure to avail the opportunity to get their acquittal from the charge which could not be granted to them in view of availability of alternate remedy before the Trial Court---Constitutional petition was dismissed.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 distinguished.

Ahmed Saeed v. The State and another 1996 SCMR 186; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76 and Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401 rel.

Syed Zameer Hussain, Abdul Sattar Junaid and Syed Salman Haider Jafri for Petitioners.

Syed Ali Abid Tahir, Assistant Advocate-General for the State.

Ch. Muhammad Rashid-III for the Complainant.

Muhammad Saleem, S.I. for the State.

MLD 2014 LAHORE HIGH COURT LAHORE 124 #

2014 M L D 124

[Lahore]

Before Abdul Sami Khan, J

KHAWAR ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.268-B of 2013, decided on 24th January, 2013.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324/148/149/109/ 337-A(i)/337-F(i)/337-L(2)---Attempt to commit qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, abetment, shajjah-i-khafifah, ghayr-jaifah damiyah, other hurt---Bail, grant of---Further inquiry---Accused allegedly fired at the body of the injured victim---Although accused was named in the F.I.R. but during investigation he was not found present at the place of occurrence at the time of the alleged offence, therefore, he was liable only to the extent of abetment under S. 109, P.P.C---One of the co-accused was found innocent by the investigating officer, while the other two were allowed bail on basis of compromise effected with the complainant---Injury attributed to accused fell under S. 337-A(i), P.P.C which was a bailable offence---Question of applicability of S. 324, P.P.C was to be determined by the Trial Court after recording of evidence---Accused was a previous con-convict---Investigation of the case was complete and accused was no more required for further investigation---Accused was allowed bail in circumstances.

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

---Ss. 497 & 154---Bail---Registration of other cases against accused---Effect---Mere registration of (other) case(s) against accused without conviction was no ground to refuse bail.

----S. 497---Bail---Commencement of trial-Effect---Commencement of trial was no ground to refuse bail, if otherwise the accused became entitled to concession of bail.

Malik Ali Gohar for Petitioner.

Ch. Muhammad Akram Tahir, Deputy District Public Prosecutor for the State along with Niaz A.S.-I.

Agha Abdul Hassan Arif for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 130 #

2014 M L D 130

[Lahore]

Before Abid Aziz Sheikh, J

WAHID BAKHSH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 5 others---Respondents

Writ Petition No.9930 of 2011, decided on 24th June, 2013.

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

----Art. 84---Specific Relief Act (I of 1877), S. 12---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for specific performance of contract---Application for cancellation of written statement along with power-of-attorney---Comparison of thumb impression---Scope---Suit for specific performance of contract was filed wherein defendant moved application for cancellation of written statement along with power-of-attorney---Contention of defendant was that both the documents were forged and fabricated---Application was dismissed concurrently---Validity---Neither any issue had been framed nor any evidence had been recorded to determine whether documents were genuine---Dispute with regard to genuineness of documents could be resolved by referring the matter to expert---Courts below could compare the admitted thumb impressions with the alleged thumb impressions on such documents to come to a fair conclusion---No such exercise was done by the courts below---Mere mentioning of CNIC number on the court file without proper identification in the court was not sufficient to discard the contention of defendant that he had not appeared in the court and his thumb impressions were not genuine and were the result of fraud and impersonation---Courts below were required to compare the admitted thumb impressions with the alleged disputed thumb impressions itself or through expert---Real defence should be reflected from the side of defendant in the proceedings---Impugned orders were the result of patent illegality and jurisdictional error---Non-interference by the High Court in such circumstances would amount to protect fraud and deprive defendant from his valuable rights by defeating the cause of justice---Impugned orders were set aside and case was remanded to the Trial Court to decide the matter afresh after comparing the alleged forged documents with the admitted documents by itself or through an expert and if so, required also frame issues and record evidence---Constitutional petition was allowed accordingly.

Sh. Muhammad Sadiq v. Elahi Bakhsh and 2 others 2006 SCMR 12; Dara and 4 others v. Khurshid Ali and 4 others 2001 SCMR 761; Ilahi Bakhsh v. Illahi Bakhsh 2005 CLC 1704 and Shah Nawaz v. Civil Judge Rahim Yar Khan and 3 others 1992 CLC 1 rel.

Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970; Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131 and Muhammad Samiullah Khan v. Additional District Judge, Sargodha PLD 2002 Lah. 56 distinguished.

Malik Ahmad Shehzad for petitioner.

Syed Niaz Rasul Shah Bukhari for Respondents Nos. 3 and 4.

Rana Muhammad Hussain, A.A.-G. for the State.

MLD 2014 LAHORE HIGH COURT LAHORE 146 #

2014 M L D 146

[Lahore]

Before Miss Aalia Neelum, J

JAHANGIR CHEEMA---Petitioner

Versus

STATION HOUSE OFFICER, SARGODHA and another---Respondents

Writ Petition No.20837 of 2013, decided on 2nd September, 2013.

Penal Code (XLV of 1860)---

----Ss. 324, 427 & 279---Criminal Procedure Code (V of 1898), Ss.249-A & 561-A---Attempt to commit Qatl-e-amd, mischief causing damage to the amount of fifty rupees and rash driving or riding on a public way---Petition for quashing of F.I.R.---Investigation pending---Inherent powers of High Court---Scope---Accused sought quashing of F.I.R. on the plea that F.I.R. was lodged with mala fide and due to political rivalry---Validity---Facts revealed in F.I.R. disclosed some private vengeance on both the parties; it would be premature to say that allegations were genuine or otherwise, as the investigation was still in pipeline---Matter was at initial stage of investigation and case had not yet been sent to competent court---If case after investigation was sent to court for trial and accused were challaned, they could avail remedy before Trial Court by filing application under S. 249-A, Cr.P.C.---Petition was dismissed in circumstances.

Col. Shah Sadiq v. Muhammad Ashiq 2006 SCMR 276; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 and Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76 rel.

Ms. Rabbiya Bajwa for Petitioners.

Muhammad Maqsood ul Hassan, Assistant Advocate Geneal with Faiz Ahmad, A.S.-I. for the State.

Mian Muhammad Mudassar Bodla for Respondent No.2.

MLD 2014 LAHORE HIGH COURT LAHORE 161 #

2014 M L D 161

[Lahore]

Before Ijaz Ahmad, J

MUHAMMAD EJAZ---Petitioner

Versus

JUDGE FAMILY COURT, KHANEWAL and 3 others---Respondents

Writ Petition No.15680 of 2012, decided on 15th January, 2013.

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

----Ss. 17-A & 5, Sched.----Constitution of Pakistan, Art. 199---Constitutional petition -Suit for recovery of maintenance allowance of wife and minors---Striking-off right to defend by husband---Scope----Family Court ordered husband (petitioner) to pay interim maintenance, which he did not pay, whereafter the Family Court struck off the husband's right to examine witnesses under S. 17-A of the West Pakistan Family Courts Act, 1964---Contention of the husband was that the Family Court could strike-off his right to submission of written statement and right to produce his evidence but could not strike-off the right to cross-examine the wife's witnesses---Validity---Penalty provided under S. 17-A of the Act for neglecting to pay interim maintenance was that the court may strike-off the right of defence of the husband, which included the right of filing written statement, production of evidence, subjecting the wife's witnesses' to cross-examination and of objection to the admissibility or relevance of the wife's documents---Such penalty would not automatically entitle the wife/minors to a decree of payment of maintenance allowance as prayed for in the plaint---Court had the right to examine the genuineness of the claim of the wife, needs of the minors and financial capacity of the husband to pay---No interference in order of Family Court was called for in the present case---Constitutional petition was dismissed, in circumstances.

Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832 and Kings Tyre Industries Ltd. through Director and 5 others v. Union Bank Limited through Manager and 2 others 2007 CLD 1649 rel.

(b) Administration of justice---

----Right to defend by defendant in civil suit---Scope enumerated.

Khawaja Qaiser Butt for Petitioner.

Malik Farooq Ahmad Thaheem for Respondents.

MLD 2014 LAHORE HIGH COURT LAHORE 171 #

2014 M L D 171

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD RIAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2052-B of 20103, decided on 8th March, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss. 392, 397 & 412---Robbery, robbery or dacoity, with intent to cause death or grievous hurt, dishonestly receiving property stolen in the commission of dacoity---Bail, refusal of---Recovery of looted articles from the accused---History of involvement of accused in similar offences---Effect---Accused and co-accused persons allegedly committed dacoity at the house of complainant---Complainant implicated accused through a supplementary statement before the police---Mere fact that accused had been implicated through a supplementary statement, without disclosing his source of knowledge, could not be considered a circumstance going in favour of accused for the reason that accused and co-accused led to the recovery of some of the looted articles, which were duly identified by the complainant in presence of witnesses---Memo of identification qua the recovered articles had also been prepared by the investigating officer---Non-holding of test-identification parade might have been an irresponsible act on part of the police, but it did not mean that the complainant should suffer for it---Offence under S. 412, P.P.C was punishable with life imprisonment, thus falling under prohibitory clause of S. 497(1), Cr.P.C---Accused had a history of involvement in seven other cases identical to the present case, which showed him to be a desperate character---Mere non-conviction of accused in the past for any crime was no ground by itself to release him on bail---Accused was refused bail accordingly.

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

----S. 497---Bail---Grounds---Accused involved in identical offences in the past but not convicted for any of them---Mere non-conviction of accused in the past for any crime was no ground by itself to release him on bail.

Afzaal's case 2003 SCMR 573 rel.

Gohar Razzaq Awan for Petitioner.

Mrs. Muqadass Tahira, Additional Prosecutor General Punjab for the State with Rasheed, S.I.

Azhar Hussain Sani for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 190 #

2014 M L D 190

[Lahore]

Before Miss Aalia Neelum, J

SHAHID---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.10737-B of 2013, decided on 10th September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 377 & 337-J---Unnatural offence, causing hurt by means of a poison---Bail, grant of---Further inquiry---Delay in lodging of F.I.R.---Unwitnessed occurrence---Contradiction between F.I.R. and medical evidence---Effect---Accused and co-accused allegedly added some intoxicant in victim's meal, where-after they committed sodomy with him---F.I.R. was lodged with an unexplained delay of three days---First medical examination of victim was conducted a day after the alleged incident, wherein he was fully conscious and well-oriented with time and place---Second medical examination of accused showed that externally no abrasion, laceration or swelling was seen on the anal area, on elbows, on back or knees---On internal examination of victim's anus no abrasion, laceration or swelling was seen---Medical reports of victim were thus paradoxical to the allegation in the F.I.R.---No eye-witness of the occurrence had been named in the F.I.R., thus it was an unseen occurrence---Case of accused fell within the ambit of further inquiry---Accused was granted bail accordingly.

Abid Saqi for Petitioner.

Mian Tariq Hussain for the Complainant.

Ch. Muhammad Jahangir, D.P.G. and Zawar Hussain A.S.-I. for the State.

MLD 2014 LAHORE HIGH COURT LAHORE 233 #

2014 M L D 233

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

The BANK OF PUNJAB through Attorney---Plaintiff

Versus

Messrs ZEPHYR TEXTILE LIMITED through Chief Executive Officer and 3 others---Defendants

Civil Miscellaneous No.595-B of 2012 in C.O.S. No.8 of 2011, decided on 11th October, 2012.

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

----Preamble---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Preamble---Proceedings before Banking Court---Absence of procedure in Financial Institutions (Recovery of Finances) Ordinance, 2001---Effect---Procedure provided in C.P.C. would become applicable in such case.

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

----O.XXIII, R.1---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 9 & 10---Suit for recovery of finance---Grant of leave to defend---Procedure---Framing of issues and fixation of case for evidence after granting of defendant's leave application unconditionally---Plaintiff's application for withdrawal of suit with permission to file fresh one due to existence of some formal defect therein---Validity---Procedure provided in C.P.C. for decision of suit would be followed after granting of leave application due to absence of procedure in Financial Institutions (Recovery of Finances) Ordinance, 2001---Plaintiff had not pointed out any formal defect, which might result into dismissal of suit---Court had to pass decree according to pleadings and evidence to be adduced by both parties---Plaintiff had every opportunity to adduce evidence or amend plaint in accordance with law---High Court dismissed such application in circumstances.

Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durrani and others 2001 SCMR 148; Municipal Committee Chakwal v. Ch. Fateh Khan and others PLD 1959 (W.P.) Lah. 535; Pehlwan and others v. Haji Muhammad Muran and others 2005 SCMR 1405; Muhammad Saleem v. Muhammad Tariq 2009 CLC 1295; Mana and 4 others v. Hussain Bakhsh and 5 others 1993 CLC 1400; Ghulam Farid and 2 others v. Muhammad Ashraf and 8 others 2000 YLR 2166; Ismail v. (1) Fida Ali and (2) Sayyed Iqbal Shabbir PLD 1965 SC 634; Karamat Ali Khan and another v. Sardar Ali and 29 others PLD 2001 SC(AJ&K) 30; Ahban Uthool Village v. Ahban Zani Village PLD 2004 Pesh. 198 and Muhammad Din v. Atta Muhammad and others PLD 1957 Lah. 971 ref.

Sardar Muhammad Kazim Ziaduddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durrani and others 2001 SCMR 148 rel.

Abdul Hameed Chohan and Imran Muhammad Sarwar for Plaintiff.

Munawar-us-Salam for Defendants.

MLD 2014 LAHORE HIGH COURT LAHORE 251 #

2014 M L D 251

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. RAFIQUE BIBI---Petitioner

Versus

MUHAMMAD ARSHAD and others---Respondents

Writ Petition No.3913 of 2008, decided on 13th May, 2013.

Constitution of Pakistan---

----Art.199---Constitutional petition---Matter relating to inheritance mutations---Impugned order passed by Member Judicial, Board of Revenue neither finding mention facts of case for forming an opinion nor reasons in its support---Validity---Member, Board of Revenue had not applied his judicial mind to facts of case---Impugned order was not sustainable in law for not being a speaking/judicial order---Passing of such perfunctory order was disapproved---High Court set aside impugned order and remanded case to Member, Board of Revenue for passing a speaking order afresh.

Muhammad Iqbal Chaudhry and another v. Secretary, Ministry of Industries and Production, Government of Pakistan and others PLD 2004 SC 413 rel.

Muhammad Asghar Awan, for Petitioner.

Ejaz Ahmed Chadhar for Respondents Nos. 1 to 3.

Waqas Qadeer Dar, A.A.-G. for Respondents Nos. 4 and 5.

Date of hearing: 13th May, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 268 #

2014 M L D 268

[Lahore]

Before Amin-ud-Din Khan, J

ABDUL KHALIQ---Appellant

Versus

IMTIAZ AHMAD and others---Respondents

R.S.A. No.84 of 2005, heard on 16th January, 2013.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 72 & 78---Suit for specific performance of agreement to sell---Document, proof of---Scribe of stamp paper (an Advocate) filed suit on behalf of the plaintiff---Scribe appeared as witness of plaintiff---Plaintiff was to prove valid execution of agreement to sell---Agreement to sell was not signed by the plaintiff---Agreement could not be termed as valid agreement to sell---Plaintiff, in circumstances, had not proved the valid execution of agreement to sell and entering into agreement to sell. [pp. 270, 271] A, B & C

Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 rel.

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

----S. 100---Second appeal---Scope---Appellant was bound to show that the decision of first appellate court was contrary to law or first appellate court had failed to determine some material issue of law or usage having the force of law or there was some substantial error or defect in the procedure provided by the C.P.C. by the first appellate court---No defect had been found by the High Court, no case for interference while exercising jurisdiction under S. 100 of C.P.C. was made out.

Rana Nasrullah Khan for Appellant.

Ch. Nusrat Javed Bajwah for Respondents.

Date of hearing: 16th January, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 284 #

2014 M L D 284

[Lahore]

Before Shahid Bilal Hassan, J

RWAIDAH BIBI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.771-B of 2013, decided on 22nd May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.406, 420 & 506-B---Criminal breach of trust, cheating, criminal intimidation---Bail, grant of---Further inquiry---Ornaments were allegedly given to accused as investment against which profit was to be given to the complainant by accused and was not entrusted to hold in a fiduciary capacity---Provisions of S.406, P.P.C. were not made out from the bare reading of the F.I.R., as no entrustment was made by the complainant---Accused after arrest joined the investigation during which no recovery was made from accused---Accused was mother of a suckling daughter, aged one year and two months---Accused had not committed any crime---Incomplete challan had been submitted in the Trial Court, it was yet to progress, as same was at initial stage---In absence of any exceptional circumstances, grant of bail to accused was a right, and refusal was an exception---Case against accused fell within the ambit of further inquiry, as no exceptional ground had been made out by the prosecution, so as to deny liberty to her---Accused was behind the bars since seven months; and there was no likelihood of the conclusion of trial in the near future---Accused, was admitted to bail, in circumstances.

Shaukat Ali Sagar v. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others 2006 PCr.LJ 1900; Muhammad Akram Lone Saeed v. The State 2008 PCr.LJ 1351; Muhammad Rizwan v. The State 2008 PCr.LJ 2169; Zahid Jameel v. S.H.O. and 2 others 2008 YLR 2695; Sajjad Azmat Chahal v. The State and another 2011 MLD 459; Ghulam Sakina and others v. The State 1991 PCr.LJ 1316; Mst. Irshad alias Mst. Waziran v. The State 2000 PCr.LJ 613; Mst. Latifan Bibi v. The State 2006 PCr.LJ 251; The State v. Farzana Kausar 2008 YLR 2600; Nasreen Bibi v. The State 2011 YLR 1028 and Mst. Kabela v. The State 2011 YLR 2975 ref.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 and Tariq Bashir and 5 others The State PLD 1995 SC 34 ref.

Ch. Riaz Ahmed, for Petitioner.

Asghar Ali Gill, Deputy Prosecutor-General and Fayyaz, S.I. for Respondent.

Malik Mukhtar Ahmed, for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 293 #

2014 M L D 293

[Lahore]

Before Shoaib Saeed, J

Mst. SHAMSHAD KANWAL---Petitioner

Versus

CONTROLLER OF EXAMINATION, BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN---Respondent

Writ Petition No.13031 of 2012, heard on 1st October, 2013.

Constitution of Pakistan---

---Art. 199---Constitutional petition---Educational institution---Failure of student to pass M. A. Part-I Examination despite availing three chances---Contention of student was that she was allowed to appear in M. A. Part-II Examination and she had passed all the subjects---Validity---Student through mis-statement of facts could manage to appear in M. A. Part-II Examination though she was not eligible to appear in the same---Petitioner had not come to the court with clean hands and she was not entitled to discretionary relief---No one could be given the benefit of one's own wrong or fraud---Any superstructure built on weak foundation was not sustainable---Petitioner could not be allowed another chance nor her M. A. Part-II result card could be issued---High Court could not issue any direction to the University as same would amount to perpetuating an illegality committed by the student---Constitutional petition was dismissed in circumstances.

Mst. Farhana Riaz v. Government of Sindh and others 2001 SCMR 1430; Ali Yousaf v. Chairman of Academic Council 2000 SCMR 1222 and Miss Sidra Naeem v. Vice Chancellor, Bahauddin Zakariya University Multan and 4 others 2012 MLD 1824 rel.

Khurshid Ahmad Khan for Petitioner.

Malik Muhammad Tariq Rajwana, for Respondent.

Date of hearing: 1st October, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 313 #

2014 M L D 313

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD SARWAR---Petitioner

Versus

MEMBER (JUDL: II), BOARD OF REVENUE, PUNJAB, LAHORE and 3 others---Respondents

Writ Petition No.1068 of 2005, heard on 17th December, 2012.

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

----S. 24---Notification No. 4292-83-2537-CL-1 dated 9-8-1983---Constitution of Pakistan, Art. 199---Constitutional petition---Horse Breeding Scheme---Petitioner, allottee of government land under the Horse Breeding Scheme, impugned order of Revenue Officer whereby directions were given to the effect that rectification according to Notification No. 4292-83-2537-CL-1 dated 9-8-1983 be got effected of the lease of the petitioner and in case of failure of the petitioner to do so, the land be resumed in favour of the State---Validity---Petitioner could not have been condemned for miscarriage/abortion of his mare and could not be penalized for ill-fated acts of nature---Observation that the previous conduct of the petitioner did not inspire confidence was not sufficient to pass the impugned order---Notification No. 4292-83-2537-CL-1 dated 9-8-1983 was not applicable to Horse Breeding Schemes---Under S. 24 of the Colonization of Government Lands (Punjab) Act, 1912 penal action in form of fine up to rupees 10,000 was clearly provided----Impugned orders were, therefore, illegal and accordingly set aside---Constitutional petition was allowed, in circumstances.

(b) Administration of justice----

----Where any enactment provided two penalties, then the harsher penalty should not be imposed.

Mian Muhammad Siddique Kamyana for Petitioner.

Mahar Nazar Abbas Chawan, A.A.-G. for Respondents.

Date of hearing: 17th December, 2012.

MLD 2014 LAHORE HIGH COURT LAHORE 322 #

2014 M L D 322

[Lahore]

Before Atir Mahmood, J

Mst. KARIM BIBI and others---Petitioners

Versus

MUHAMMAD SHAFI AKHTAR and others---Respondents

Civil Revision No.549/2000/BWP, decided on 12th June, 2013.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Limitation Act (IX of 1908), Art. 120---Suit for declaration and possession---Mutation of sale attested in favour of defendant by predecessor of plaintiff---Plaintiff alleged such mutation to be for lease and not for sale of suit property---Suit mutation was attested on 31-3-1968, whereas suit was filed on 7-3-1986---Validity---Plaintiff in plaint had not stated date of death of his predecessor---Plaintiff's own two witnesses had deposed that plaintiff's predecessor died in year 1971 and that plaintiff came to know about suit mutation after one year of death of his predecessor---Plaintiff would be bound by statements of his own witnesses---Stance taken by plaintiff during his evidence that his father died in year 1967 i.e. prior to attestation of suit mutation, was contradictory to such statements of his own witnesses---Plaintiff despite being aware about suit mutation had instituted suit in year 1986 i.e. after 18 years of date of its attestion---Plaintiff's predecessor during his life time had not challenged suit mutation---Defendant by examining Naib Tehsildar and witnesses of mutation had proved signatures of plaintiff's predecessor thereon---Plaintiff had failed to prove suit mutation to be illegal and collusive and that his predecessor had died prior to its attestation---Suit was dismissed in circumstances.

Mukhtar Ahmad v. Malik Muhammad Shafi 1991 SCMR 668; Ch. Muhammad Ashraf and others v. Mst. Gulshan Ara and others 2008 YLR 650; Muhammad Shafi through legal representatives v. Abdul Rehman through legal representatives PLD 2005 Lah. 129; Mehandia v. Juma through L.Rs. 2011 MLD 1801; Muhammad Akram and another v. Altaf Ahmed PLD 2003 SC 688 and Ghulam Hussain Khan v. Mst. Aseela Begum and 3 others 1982 CLC 1709 rel.

Ch. Naseer Ahmed and Naveed Ali Abbasi for Petitioners.

Aejaz Ahmed Ansari and Amir Aqeel Ansari for Respondents Nos.1 to 12.

Date of hearing: 13th May, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 337 #

2014 M L D 337

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

YASIR IMRAN alias YASIR ARAFAT---Petitioner

Versus

MUHAMMAD ASHRAF and another---Respondents

Criminal Revision No.656 of 2012, decided on 14th May, 2013.

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

----Ss.154 & 161---F.I.R., registration of---Statement of witness---Scope---F.I.R. is the document which is entered under S. 154, Cr.P.C. and the same brings law into motion---Any statement or further statement of complainant recorded during investigation by police is considered as statement under S. 161 Cr.P.C.

Akhtar Ali and others v. The State 2008 SCMR 6 rel.

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

----Ss.302, 367-A, 377, 201 & 34---Criminal Procedure Code (V of 1898), Ss.161 & 162---Qatl-e-amd, abducting for unnatural lust, committing of sodomy, disappearance of evidence of offence or giving false information to screen offender---Supplementary statement of complainant---Introducing names of accused in F.I.R.---Accused contended that supplementary statement of complainant could not be exhibited during the course of recording of statement of complainant as there was bar of S. 162 Cr.P.C.---Validity---Such statement of complainant was not recorded in prescribed form, rather the same was through application which was duly signed by complainant wherein texture of application was the same in addition to the names of accused persons and prosecution witnesses whose statements were made basis for coming to the conclusion that nephew of complainant was seen last time in the company of accused persons, compelling local police to take legal action against them and as the case was not only traced rather challan was submitted before court of competent jurisdiction for its onward transmission for trial in accordance with law---No legal bar existed in exhibiting subsequent application / supplementary statement of complainant---High Court declined to interfere in the order made by Trial Court and maintained the same---Revision was dismissed in circumstances.

Falak Sher alias Sheru v. The State 1995 SCMR 1350; Anees-ur-Rehman and another v. The State PLD 2002 Lah. 110 and Panjo v. The State 1991 PCr.LJ 247 ref.

The State and others v. Abdul Khaliq and others PLD 201 SC 544 rel.

Sajjad Hussain Tarar for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General.

Ch. Nazir Ahmad Kamboh for Respondent No.1.

MLD 2014 LAHORE HIGH COURT LAHORE 353 #

2014 M L D 353

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD NADEEM NASIR---Petitioner

Versus

CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE---Respondent

Writ Petition No.19664 of 2013, decided on 20th September, 2013.

Constitution of Pakistan---

----Arts. 25-A & 199---Constitutional petition---Right to education and appear in examination---Scope---Petitioner/student of F.Sc. appeared in examination of Intermediate and accordingly was issued date sheet for practical examination---Petitioner/candidate due to his illness failed to appear in practical examination on given date---Petitioner/candidate requested the Controller of Examination of Board of Intermediate and Secondary Education to allow him to appear in practical examination in second batch but his request was turned down---Contention of the petitioner was that earlier the petitioner failed to appear in practical examination on account of his illness for which he submitted medical certificate, therefore impugned order of Board of Intermediate and Secondary Education was illegal and violated his fundamental rights---Validity---In the event of missing one batch of practical, the Board authorities could permit a candidate to appear before the same examiner for which special slip could be issued subject to deposit of payment---Respondent/Board authorities had directed the petitioner/candidate to deposit the fee of practical examination after missing the first batch and the same was accordingly deposited---Delay in issuing of the slip for the second batch was due to the respondent/Board authorities for which the petitioner could not be held responsible---Petitioner/candidate was required to be accommodated in the second batch of practical examination---Right to education and to appear in examination under the rules and regulations was the fundamental right of a student---Any rule meant for conducting examinations had to be beneficially interpreted to accommodate and facilitate the student---Respondent/Board authorities were directed to hold the practical examination of petitioner---Constitutional petition was allowed.

Fida Hussain Rana for Petitioner.

Mahboob Azhar Sheikh, Legal Advisor for Respondent.

MLD 2014 LAHORE HIGH COURT LAHORE 368 #

2014 M L D 368

[Lahore]

Before Shoaib Saeed, J

GULBAZ AMIN and others---Appellants

Versus

INAYAT BEGUM through Legal Heirs and others---Respondents

F.A.O. 352 of 2013, decided on 10th July, 2013.

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

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Application for grant of temporary injunction---Ingredients---Plaintiffs waited for 16-years before filing the suit and failed to bring on record the original agreement to sell---No reason was assigned for filing the suit at such a belated stage---Photocopy of agreement to sell was stated to be altered---Plaintiff had to make out a good prima facie case and in the event of success if injunction was not granted then he would suffer an irreparable injury---Plaintiffs failed to meet any of the ingredients for issuance of injunction---Trial Court had rightly dismissed the application for grant of temporary injunction and no infirmity was found in the impugned order---Appeal was dismissed.

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

----O. XXXIX, Rr. 1 & 2---Temporary injunction---Ingredients---Plaintiff had to make out a good prima facie case and in the event of success if injunction was not granted then he would suffer an irreparable injury.

Waris Ali Khokhar for Appellants.

MLD 2014 LAHORE HIGH COURT LAHORE 374 #

2014 M L D 374

[Lahore]

Before M. Sohail Iqbal Bhatti, J

RIASAT MEHMOOD---Petitioner

Versus

Mst. NADIA PARVEEN and another---Respondents

Writ Petitions Nos.1443 and 1442 of 2011, decided on 7th November, 2013.

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

----S. 25---Constitution of Pakistan, Art. 199---Constitutional petition---Application for custody of minor---Welfare of minor---Scope---Primary consideration was welfare of minor while deciding the question of custody---Court should exercise its parental jurisdiction while handing over custody to the mother or father and should give due consideration to the welfare of minor---Father, in the present case, had not contracted second marriage who was retired person and was in better position to look after his children---Minors were happy, healthy, well adjusted, confident and emotionally stable while living with their father---Minors would be in a better position while living with their father instead of their mother and cousins---Constitutional petition was accepted and custody of minors was handed over to their father.

Malik Ibrar Hussain for Petitioner.

Raja Aamir Mehmood for the Respondents.

MLD 2014 LAHORE HIGH COURT LAHORE 379 #

2014 M L D 379

[Lahore]

Before Ijaz Ahmad, J

MUHAMMAD ADEEL JAVED---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY through Vice Chancellor, Multan and others---Respondents

Writ Petitions Nos.13641, 13287, 13276, 13249, 13229, 13290 and 14161 of 2012, decided on 12th December, 2012.

(a) Baha-ud-din Zakaria University Act (III of 1975)---

----S. 16(3)---Constitution of Pakistan, Art. 199---Constitutional petition---Admission in University---Criteria for admission changed by University after issuance of merits list of candidates under previous criteria and its refusal to grant admission to successful candidates---Validity---Vice Chancellor under S.16(3) of Baha-ud-Din Zakaria University Act, 1975 could take immediate action in an emergency only, but not otherwise---Such decision of Vice-Chancellor must satisfy objective test to the effect that such a situation existed and his choice of action to be made provided necessity to deviate from normal procedure---No emergency existed in the present case requiring immediate action by Vice-Chancellor---Matter of admission being a regular and recurring feature could not be regulated by use of power under S.16(3) of the Act---High Court accepted constitutional petition in circumstances.

Naghmana Subhan v. Islamia University through Vice Chancellor and 3 others 2000 YLR 1700 rel.

(b) Administration of justice---

----When law prescribes certain mode for doing a thing or taking an action, then same has to be done in such manner alone.

Mehmood Ashraf Khan, Abdul Qaddus Khan Tareen, Aurangzeb Ghumman, Mumtaz Hussain Jai, Ch. Muhammad Afzal Jatt, Malik Khan Langah, Sardar Muhammad Sarfraz Dogar for the Petitioners.

Malik Muhammad Tariq Rajwana, Legal Advisor for B.Z.U. with Dr. Farman Iqbal Assistant Professor (Zoology) BZU.

Syed Jaffar Tayyar Bukhari, Advocate for Respondents.

Abdul Salam Alvi, Advocate for Respondent No.5 (in Writ Petition No.13290 of 2012).

2014 M L D 426

[Lahore]

Before Mamoon Rashid Sheikh, J

MUHAMMAD AKRAM---Petitioner

Versus

MUHAMMAD ILYAS CHEEMA and another---Respondents

Writ Petition No.3150 of 2013, decided on 23rd December, 2013.

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

----S. 17(8)---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Oral tenancy---Default in payment of rent---Tentative rent, fixation of---Procedure---Ordinarily tentative/ approximate rent had to be fixed on the basis of pleadings of the parties where default was alleged in payment of the same---Rent Controller was bound to pass order under S. 17(8) of Cantonments Rent Restriction Act, 1963 before framing of issues and was not bound to hold detailed inquiry while passing order of tentative rent which was to be fixed on the basis of material placed before him---Tenancy was oral, in the present case, and no receipts with regard to payment of rent had been placed on record---Tenant had failed to point out that rate of tentative rent was not according to the pleadings of the parties---Impugned order for fixation of tentative rent was not arbitrary or perverse---Actual rate of rent was yet to be determined during course of recording evidence in the ejectment proceedings---Deposit made with regard to arrear or future rent under the impugned order would be adjustable towards the final liability of tenant if any---Tenant had failed to deposit future rent as directed by the Rent Controller and committed default in payment of rent---Constitutional petition was dismissed in circumstances.

Rana Tauseer Haider for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 431 #

2014 M L D 431

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

SHAMS-UR-REHMAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.1170-B of 2013, decided on 20th August, 2013.

Criminal Procedure Code (V of 1898)---

----S.497---Foreign Exchange Regulation Act (VII of 1947), Ss.4 & 23---Anti-Money Laundering Act (VII of 2010), S.3---Possession of illegal foreign exchange and money laundering---Bail, grant of---Plea raised by accused was that he purchased foreign currency from money exchanger and neither he misused the same nor it was crime proceed---Validity---There was no allegation of any misuse of foreign exchange acquired by accused from authorized money exchanger, therefore, offence under S. 4 of Foreign Exchange Regulation Act, 1947, was not made out---For offence of money laundering, offending money must be proceed of crime---Nothing was alleged against accused that foreign exchange recovered from the possession of accused was in fact a proceed of crime---Bail was allowed in circumstances.

Manzoor Hussain Malik for Petitioner.

Sarkar Abbas, Standing Counsel.

Tariq Mahmood, Inspector F.I.A.

MLD 2014 LAHORE HIGH COURT LAHORE 451 #

2014 M L D 451

[Lahore]

Before Mamoon Rashid Sheikh, J

MUHAMMAD RAMZAN---Petitioner

Versus

Malik REHMAT ULLAH and others---Respondents

Civil Revision No.560 of 2012, heard on 1st October, 2012.

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

----O.IX, Rr.7 & 13---Ex parte proceedings, setting aside of---Limitation---Only when a decree has been passed against defendant that a period of 30 days has been prescribed for making application for setting aside ex parte decree---During pendency of suit no such period has been prescribed for setting aside of ex parte proceedings.

Ghulam Muhammad and others v. Mst. Irshad Begum and others PLD 1964 (W.P.) Lah. 782 and Police Department through Deputy Inspector-General of Police and another v. Javid Israr and 7 others 1992 SCMR 1009 rel.

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

----O. IX, R.7---Ex-parte proceedings, setting aside of---Wrong address of defendant---Effect---Trial Court proceeded ex parte and application for setting aside the order was dismissed---Plea raised by defendant was that summons was not served upon him as his incorrect address was mentioned on the plaint---Validity---Nothing was available on record to show that defendant was actually served in person or that his address had been correctly given in plaint and summons was served upon him in accordance with law---High Court set aside ex parte proceedings subject to payment of cost by defendant and directed the parties to appear before Trial Court and contest the suit in accordance with law---Revision was allowed in circumstances.

Nida-e-Millat, Lahore v. Commissioner of Income Tax, Zone-I, Lahore 2008 SCMR 284; Abdul Rashid v. Director-General, Post Offices, Islamabad and others 2009 SCMR 1435; Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705; Secretary Education Department, Government of N.-W.F.P., Peshawar and others 2008 SCMR 287 and Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 ref.

Munir Ahmad Malik for Petitioner.

Ch. Umar Hayat for Respondents.

Date of hearing: 1st October, 2012.

MLD 2014 LAHORE HIGH COURT LAHORE 473 #

2014 M L D 473

[Lahore]

Before Abdul Sami Khan, J

SHAMAS DIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.8717-B of 2013, decided on 18th July, 2013.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.365-B---Kidnapping woman to compel for marriage---Bail, grant of---Divergent stance of alleged abductee---Case of further inquiry---Three statements of alleged abductee were on the record which were contradictory to one another---Effect---Alleged abductee had taken divergent stands at different forums and the same had prima facie created serious doubt in prosecution story mentioned in F.I.R. and benefit of such doubt was to go in favour of accused---High Court expressed with concern that it had become routine that when girl/abductee joined her parents she took summersault from her earlier stance---Mere heinousness of offence was not a ground to refuse bail to an accused person who otherwise was entitled for the same relief---Case against accused called for further inquiry into his guilt within the purview of S.497(2), Cr.P.C.---Bail was allowed in circumstances.

Rana Mujahid for Petitioner.

Nisar Ahmad Virk, Deputy Prosecutor-General for the State and Munawar, A.S.-I. with record.

Rao Hammad Hassan for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 489 #

2014 M L D 489

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

TARIQ AMJAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.1240 of 2010, heard on 9th May, 2013.

(a) Criminal trial---

----Evidence---Contradictions---Scope---Mere fact that on some points, witness has given a different statement than the one taken by other witnesses is not sufficient to discard his testimony, which is otherwise supported by evidence on record.

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

----S.302(b)---Qatl-e-amd---Appreciation of evidence---Substitution of real culprit, phenomena of---Applicability---Scope---Accused was convicted and sentenced to imprisonment for life by Trial Court for committing murder---Plea raised by accused was that it was blind murder---Real brother of deceased could not let off real assailant and substitute some other person for murder of his brother---Trial Court rightly observed that it was accused who had knowledge of place where he kept crime weapon and he led to that place and got recovered the same---Such finding of Trial Court could not be set aside on the ground that independent person of locality or some respectable did not join at the time by investigating officer---Prosecution successfully proved case against accused who was the sole person inflicting single fatal injury to deceased in daylight for no legal justification---Findings of Trial Court were borne out of the record and supported by convincing and cogent prosecution evidence and the same were maintained---Appeal was dismissed in circumstances.

Mian Ahmad Mahmood for Appellant.

Muhammad Ishaq, Deputy Prosecutor-General for the State.

Muhammad Ali Khatana for the Complainant.

Date of hearing: 9th May, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 497 #

2014 M L D 497

[Lahore]

Before Mehmood Maqbool Bajwa, J

DEFENCE HOUSING AUTHORITY, LAHORE through Secretary---Petitioner

Versus

Mst. AMT-UL-QAYYUM---Respondent

Civil Revision No.577 of 2012, decided on 4th December, 2012.

Civil Procedure Code (V of 1908)---

----O. XVII, Rr. 3 & 2---Adjournments---Closing of right to produce evidence after successive adjournments---Defendant in a suit, impugned order of Trial Court whereby his right to produce evidence was closed, after his failure to produce record despite successive adjournments---Validity----Seeking adjournments in order to produce the record and failure of the defendant to produce the same ultimately and categorical refusal on part of the defendant to give an undertaking to produce the record on the next date of hearing clearly demonstrated that the case of the defendant fell within the mischief of Order XVII, R. 3, C.P.C.---Adjournment was claimed at the instance of the defendant and it was to be noted that provisions of Order XVII, R. 3, C.P.C. were not only attracted in case of default on act of party to produce evidence but also in a situation where a party due to his act or omission made it impossible for the court to proceed with the suit keeping in view the use of the expression "or to perform any other act necessary to the further progress of the suit" , used in Order XVII, R. 3, C.P.C.---Behaviour of the defendant in the present case made it impossible for the Trial Court to make further progress in the suit and therefore impugned order could not be interfered with---Revision was dismissed.

Tariq Masood for Petitioner.

M. Naeem Sadiq for Respondent.

MLD 2014 LAHORE HIGH COURT LAHORE 506 #

2014 M L D 506

[Lahore]

Before Shezada Mazhar, J

ASIM ALI KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 5864-B of 2013, decided on 3rd June, 2013.

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

----S. 497---Penal Code (XLV of 1860), S 489-F---Dishonestly issuing a cheque---Bail, grant of---Cheque issued on basis of a business transaction---Dispute of civil nature---Delay in lodging F.I.R.---Effect---Accused had purchased some leather from the complainant and for payment of outstanding amount, he issued nine cheques in favour of complainant which were dishonoured on presentation before the Bank---Plea of accused was that cheques in question were only given as a guarantee/security---Validity---Although accused was named in the F.I.R., but there was an unexplained delay of more than 5 months in lodging the F.I.R.---Relationship between complainant and accused was that of a seller and purchaser---Dispute between the parties concerned adjustment of a liability and complainant himself failed to mention the dates on which leather was purchased by the accused---Prima facie, dispute seemed to be of a civil nature and for such purpose complainant had the remedy to file a suit for recovery or rendition of accounts before the court of competent jurisdiction---Question as to whether cheques in question were issued towards fulfilment of an "obligation" or as "security" would be seen by the Trial Court after recording of evidence---Offence alleged did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Accused was behind bars for the last eight months and was no more required for further investigation---Accused was granted bail in circumstances.

Riaz Jafar Natiq v. Muhammad Nadeem 2011 SCMR 1708 and Muhammad Shafiq v. The State 2011 PCr.LJ 869 rel.

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

----S. 497(1)---Bail---Offence not falling within the prohibitory clause of S. 497(1), Cr.P.C.---Effect---Where offence did not fall within the prohibitory clause of S. 497(1), Cr.P.C., concession of granting bail must be considered in favour of the accused and it should be denied only in exceptional cases.

Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 rel.

Ch. Abdul Waheed for Petitioner.

Nasir Mahmood Sial, Deputy Prosecutor-General along with Shahbaz, A.S.-I.

MLD 2014 LAHORE HIGH COURT LAHORE 522 #

2014 M L D 522

[Lahore]

Before M. Sohail Iqbal Bhatti, J

ZAMURRAD HUSSAIN through Attorney and another---Petitioners

Versus

MUHAMMAD YOUNAS and 15 others---Respondents

Writ Petition No.1676 of 2013, decided on 7th November, 2013.

Civil Procedure Code (V of 1908)---

----S.148---Constitution of Pakistan, Art.199---Constitutional petition---Suit for possession through partition---Non-deposit of stamp duty within time fixed by court---Effect---Contention of petitioners was that after lapse of period fixed for deposit of stamp duty the suit stood dismissed---Validity---Appellate Court passed direction for deposit of stamp duty but no time was fixed---Judgment and decree of Trial Court had merged into the judgment and decree of Appellate Court---Condition for deposit of stamp duty within a specified time was no more in existence---Cause of action was continuous in a suit for partition and purpose of the same was to separate the share---Parties could not be non-suited and put to the agony of prolonged litigation where condition imposed by the Trial Court had already been merged in the judgment and decree of Appellate Court---Court had inherent jurisdiction to extend/enlarge time for deposit of stamp duty---Constitutional petition was dismissed in limine.

Majid Ali Ghazi for Petitioners.

MLD 2014 LAHORE HIGH COURT LAHORE 532 #

2014 M L D 532

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

LAEEQ AHMED KHAN and 2 others---Petitioners

Versus

Mst. FOUZIA ASIF and another---Respondents

Writ Petition No.2596 of 2013, decided on 5th November, 2013.

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

----Ss. 17 & 24---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Application for ejectment of tenant---Reasonable time---Laches, principle of---Striking off right of cross-examination of tenant---Interlocutory order---Scope---Landlady filed eviction petition wherein right of cross-examination of tenants was struck off by the Rent Controller---Validity---Tenants sought numerous adjournments for cross-examination but they failed to cross-examine the witnesses of landlady---Ample opportunities to cross-examine the witnesses were granted and even last opportunity subject to payment of cost was allowed---Rent Controller could not await for unspecified period for the tenants to cross-examine the witnesses---Procedure provided in the Cantonments Rent Restriction Act, 1963 for trial of an eviction petition was of summary manner but tenants for one reason or the other delayed the proceedings despite warning and imposition of fine---No appeal was competent against an interim order passed by the Rent Controller---When statute did not provide an appeal against an interlocutory order the same could not be challenged by way of constitutional petition---Remedy which was not directly available could not be sought through indirect means---If statute had provided remedy against order then constitutional jurisdiction of High Court could not be invoked to bypass provisions of said statute---Impugned order which caused no damage to the tenants and was incapable to cause any loss had been challenged---Right of appeal would accrue to the tenants when impugned order would be substituted by the final order and such right would be more extensive and beneficial---Impugned order had been challenged after a lapse of one year and two months---Constitutional jurisdiction of High Court could be invoked within a reasonable time which was 90 days---Present petition suffered from laches---Constitutional petition was dismissed being not maintainable.

1996 SCMR 1165; Muhammad Saeed v. Saratul Fatima and others PLD 1978 Lah. 1459; PLD 1975 SC 678 and PLD 2011 SC 676 rel.

Zaheen Akhtar Siddiqui for Petitioners.

MLD 2014 LAHORE HIGH COURT LAHORE 536 #

2014 M L D 536

[Lahore]

Before Nasir Saeed Sheikh, J

SARFRAZ---Petitioner

Versus

MUHAMMAD AKRAM through Legal Heirs and others---Respondents

Civil Revision No.1002 of 2000, decided on 2nd April, 2013.

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

----S.53-A---Part performance, doctrine of---Un-registered agreement---Scope---Contention was that doctrine of part performance and protection of possession under unregistered agreement to sell is applicable only if there is unequivocal proof of existence of agreement to sell and delivery of subject property to vendee under the sale agreement---Such contention was sine qua non for claiming protection of possession under S. 53-A of Transfer of Property Act, 1882---Agreement to sell must have been capable of enforcement at the time when defence of doctrine of part performance was pleaded.

Ali Rehman v. Fazal Mehmud and 8 others 2003 SCMR 327; Sardar Mahomed Tahir v. K.B.Mian Pirbux AIR 1932 Sindh 42; Raju Roy and others v. Kasinath Roy and others AIR 1956 Patna 308 and Messrs Saudi Arabian Airlines through Sales Manager, Lahore and another v. Miss Hira Khan and another 2002 CLC 204 rel.

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

----S.8---Transfer of Property Act (IV of 1882), S.53-A---Suit for recovery of possession---Part performance, doctrine of---Suit for recovery of possession on the basis of agreement to sell dated 10-7-1971, was decreed by Trial Court but Lower Appellate Court dismissed the suit in favour of plaintiffs---Validity---Predecessor-in-interest of plaintiffs instituted suit for specific performance of agreement to sell dated 10-7-1971 in his life time which was dismissed on the point of limitation and his appeal was also dismissed---Alleged agreement to sell dated 10-7-1971 was rendered incapable of specific performance and lost its all efficacy in the eye of law, if any---Agreement to sell did not have any other right created in favour of vendee except that of seeking relief of specific performance---Plaintiffs were not justified to claim protection of alleged illegal possession taken by them over subject property and that too under the agreement which did not specifically speak of delivery of possession to them and which agreement to sell was not specifically performed by Civil Courts and suit instituted by predecessor-in-interest of plaintiffs was dismissed---High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed in circumstances.

Muhammad Ismail and 5 others v. Bashir Ahmad and others 2005 SCMR 1079; Malik Ellahi Bux and others v. Muhammad Aslam 2002 CLC 433; Rashid Ahmad v. Messrs Friends Match Works PLD 1989 SC 503; Muhammad Rafique through Legal Heirs and 2 others v. Mst. Marzia Sultana 2002 CLC 662; Hoshiar Ali v. Ghulam Sabir 2000 CLC 1858; Rasool Bakhsh v. District Judge, Dera Ghazi Khan and 15 others 2000 YLR 1513; Dost Muhammad and others v. Ghaus Muhammad through Legal Heirs and others 2004 SCMR 515 and Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838 distinguished.

Malik Noor Muhammad Awan for Petitioner.

Muhammad Farooq Qureshi Chishti for Respondents.

Date of hearing: 28th January, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 555 #

2014 M L D 555

[Lahore]

Before Amin-ud-Din Khan, J

ABDUL HAFEEZ---Petitioner

Versus

SHAUKAT ALI and others---Respondents

Civil Revision No.513 of 2010, decided on 8th November, 2013.

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

----S.8---Civil Procedure Code (V of 1908), S.115---Suit for possession of immovable property on the basis of agreement---Scope---Revision---Requirements---Contention of plaintiff was that suit property was given to the defendants for the time being---Suit was dismissed concurrently---Validity---Suit for possession under S.8 of Specific Relief Act, 1877 should be filed on the basis of ownership---Plaintiff had claimed possession on the basis of "Iqrar Nama" but copy of the same had not been produced---Plaintiff was bound to produce certified copies of pleadings, evidence oral as well as documentary and if he was unable to comply with the mandatory provision of S.115, C.P.C. with regard to production of certified copies of documents with the revision, the same could be dismissed on such score only or at least such document would be presumed against him---Both the courts below had scrutinized the evidence minutely---Plaintiff was bound to show some mis-reading or non-reading of evidence or any jurisdictional defect to invoke jurisdiction under S.115, C.P.C. but such defect had not been pointed out---Defendants had been wrongly engaged in the litigation---Revision was dismissed with special cost of Rs.50,000.

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

----S.115---Revision, filing of---Requirements---Petitioner was bound to produce certified copies of pleadings, evidence oral as well as documentary and if he was unable to comply with the mandatory provision of S.115, C.P.C. with regard to production of certified copies of documents with the revision, the same could be dismissed on such score alone or at least such document would be presumed against him.

Abdul Salam Awan for Petitioner.

Malik Amjad Pervaiz for Respondent.

Date of hearing: 8th November, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 581 #

2014 M L D 581

[Lahore]

Before Shoaib Saeed, J

ABDUL RASHEED through L.Rs.---Petitioner

Versus

ABDUL HAMEED and 5 others---Respondents

Civil Revision No. 2541 of 2013, decided on 8th November, 2013.

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

----S.13---Constitution of Pakistan, Art. 10-A---Suit for possession through pre-emption---Fair trial, right of---Trial Court closed evidence of vendees just providing them one opportunity---Lower Appellate Court set aside the order passed by Trial Court and remanded the matter to Trial Court to decide the matter afresh after recording of evidence of vendees---Validity---Trial Court without closing evidence of vendees on 22-3-2011, fixed the case for final arguments for 25-3-2011---On the contrary, the case for adducing evidence by pre-emptors started in year, 2001 and on 1-3-2011, oral evidence was closed and last opportunity for submitting documentary evidence was given to pre-emptors for 5-3-2011---Pre-emptors took almost ten years for producing evidence, whereas vendees were given only one opportunity for the same purpose---Vendees were deprived of the opportunity to lead evidence in the light of issues framed---Undue haste was reflected in the orders passed by Trial Court and the same was violation of Art. 10-A of the Constitution---Judgment and decree passed by Lower Appellate Court was with jurisdiction vested in it and there was no illegality or infirmity in the same---Revision was dismissed in circumstances.

Qazi Shamas ur Rehman and another v. Chaman Dasta and others 2004 SCMR 1798 distinguished.

Sh. Irfan Akram for Petitioners.

MLD 2014 LAHORE HIGH COURT LAHORE 594 #

2014 M L D 594

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD SALEEM---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.7510-B of 2013, decided on 26th June, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(iii), 337-F(v), 337-L(2), 452, 109 & 34---Shajjah-i-khafifah, shajjah-i-hashimah, ghayr-jaifah-hashimah, other hurt, house-trespass after preparation for hurt, assault or wrongful restraint, abetment, common intention----Bail, grant of---Non-conclusion of trial within the statutory period---Case diary did not indicate that accused was solely responsible for the delay in conclusion of trial---On various dates prosecution witnesses did not turn up and the court had to take coercive measures for procuring their attendance, while on other dates, the Bar remained on strike, therefore, the accused was not at fault for delay in conclusion of trial---Person could not be detained in jail for an indefinite period as his life and liberty were involved---Although prosecution contended that injury was caused on vital part of the body of injured victim, which fact was supported by medical evidence, statements of prosecution witnesses and opinion of police, but the accused could not be convicted on basis of such evidence---Evidence collected by police was not legal evidence nor it enjoyed such status for the reason that prosecution witnesses had merely made statements, which could not be equated with legal evidence---Legal statements were those upon which the opposite party had made cross-examination to sift the truth---Since trial of accused had not been concluded within the statutory period of time and there was nothing on record to declare him a desperate and hardened criminal, as such he was entitled for concession of bail---Accused was granted bail accordingly.

(b) Evidence---

----Legal evidence/statements upon which conviction could be based---Scope---Legal statements were those upon which the opposite party had made cross-examination to sift the truth---Unless such statements were subjected to cross-examination they could not enjoy the status of legal evidence.

Rai Salah ud Din Kharal for Petitioner.

Muhammad Ishaque, D.P.G. with Tariq Mehmood, A.S.-I. for the State.

Muhammad Saleem for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 599 #

2014 M L D 599

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

IQRA HUSSAIN---Petitioner

Versus

S.H.O. POLICE STATION NAWAB TOWN and another---Respondents

Writ Petition No.25980 of 2013, decided on 4th November, 2013.

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

----Ss.561-A, 173, 249-A & 265-K---Constitution of Pakistan, Art.199--Constitutional petition---Maintainability---Application for quashing of F.I.R.---Filing of Challan---Effect---Contention of authorities was that police after preparation of report under S. 173, Cr.P.C. had placed the same before Trial Court and it would be appropriate for accused to have first approached Trial Court in view of S. 265-K, Cr.P.C.---Validity---High Court in exceptional cases could exercise jurisdiction under S.561-A, Cr.P.C. without waiting for Trial Court to pass orders under S.249-A or 265-K, Cr.P.C., if the facts of the case so warranted---Main consideration to be kept in view was futile exercise, wastage of time and abuse of process of Court or not---High Court declined to refer the matter to Trial Court where challan under S. 173, Cr.P.C. had been filed---Constitutional petition was maintainable in circumstances.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 rel.

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

----Ss.371-A & 371-B---Constitution of Pakistan, Art.199---Constitutional petition---Quashing of F.I.R.---Selling and buying persons for prostitution---Raid was made at guest house in search of some proclaimed offender, instead accused were arrested who were found there in objectionable position busy in some obscene activities---Validity---Prosecution was launched for some ulterior motives just to create harassment for persons involved therein---Prosecution was not equipped with any material in order to involve accused or other persons in offences punishable under Ss. 371-A & 371-B, P.P.C.---When court was convinced that from very inception, prosecution was started with malice, then there was no justification to wait for Trial Court to pass any order under S. 265-K, Cr.P.C.---High Court quashed F.I.R. and proceedings pending on the basis of such F.I.R. before Trial Court---Constitutional petition was allowed in circumstances.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Muhammad Abbas alias Ajmi v. The State 2005 YLR 3193 and Ghulam Qadir Faraz alias Babar v. Station House Officer, Police Station Saddar Kamoke and 2 others 2012 PCr.LJ 638 rel.

Rana Baleegh-ur-Rehman for Petitioner.

Muhammad Nasir Chohah, Assistant Advocate General with Muhammad Hussain, A.S.-I. for Respondent.

MLD 2014 LAHORE HIGH COURT LAHORE 609 #

2014 M L D 609

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Mazhar Iqbal Sidhu, JJ

MUHAMMAD ARSHAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.15453-B of 2012, decided on 22nd November, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/109/148/149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-e-amd, attempt to commit qatl-e-amd, abetment, rioting armed with deadly weapons, unlawful assembly, acts of terrorism---Bail, grant of---Further inquiry---Allegation against accused was that during the occurrence he inflicted a firearm injury on the cheek of the injured victim---Medico Legal Report of injured victim revealed that injury ascribed to accused was a grazing wound---During course of investigation investigating officer opined that accused did not actively participate during the occurrence and at most he might have abetted the crime---Case against accused fell within the ambit of further inquiry in such circumstances---Accused remained on physical remand for nine days but nothing was recovered on his pointation---Accused was stated to be a first time offender and was in jail since date of his arrest---Accused was no more required by police for further investigation---Bail petition of accused was allowed and he was admitted to bail.

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

----S. 497(2)---Bail---Offence entailing capital punishment---Case of further enquiry into guilt of accused---Plea that offence against accused carried capital punishment, therefore, he was not entitled to relief of bail---Validity---When otherwise case against accused was covered under S. 497(2), Cr.P.C., he was entitled to concession of bail as a matter of right.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Azam Nazeer Tarar for Petitioner.

Tariq Javed, DDPP for the State.

Salman Mansoor for the Complainant.

Mushtaq Hussain, S.I. with Police record.

MLD 2014 LAHORE HIGH COURT LAHORE 614 #

2014 M L D 614

[Lahore]

Before Muhammad Tariq Abbasi, J

ABDUL QADEER---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2915-B of 2013, decided on 5th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 109, 337-A(i), 337-F(i)(ii), 148 & 149---Qatl-e-amd, abetment, causing Shajjah-i-Khafifah, Shajjah-i-Mudihah, Damiyah, and badiah, rioting---Bail, grant of---Further inquiry---Injury found at the right side of the neck of the deceased being through and through, exit of said injury was the other injury observed on the left side of the neck---Except said injury, no other injury to the deceased had been attributed to accused---Co-accused to whom injuries on the person of prosecution witnesses, were attributed, had been admitted to bail---Chhuri allegedly been used and recovered from accused, could not be found to be stained with blood of human origin, during forensic analysis---Case of accused was that of further inquiry---Accused was admitted to post-arrest bail, in circumstances.

Mudassar Altaf Qureshi for Petitioner.

Sh. Ghayas-ul-Haq for the Complainant.

Hassan Mahmood Khan Tareen, D.P.G. with Mehdi Khan, S.I. for the State.

MLD 2014 LAHORE HIGH COURT LAHORE 622 #

2014 M L D 622

[Lahore]

Before Abdus Sattar Asghar, J

ABID ALI alias AABU---Petitioner

Versus

The STATE and others---Respondent

Criminal Miscellaneous No.18199-B of 2012, decided on 14th February, 2013.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Accused was not nominated in the F.I.R.---Complainant did not provide features, description, estimated height or any other relevant information with regard to unknown accused who allegedly participated in the occurrence---Accused was implicated on basis of supplementary statement of complainant made three days after the occurrence---Said supplementary statement failed to disclose the source of information with regard to identification or nomination of accused for the offence, and also did not attribute any specific injury or role to the accused---No identification parade was held---Supplementary statement of injured prosecution witness also did not nominate the accused for the offence---No motive was alleged against the accused---Mere recovery of one empty from place of occurrence and subsequent recovery of weapon from accused, which was denied by him, could not be termed as prima facie incriminating material against him to connect him with the offence---Case was one of further inquiry---Accused was admitted to bail accordingly.

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

----S. 497---Bail, grant of---Scope---Plea that accused was a habitual criminal involved in number of offences of heinous nature---Effect---Such plea had no force to deny concession of bail, if accused was otherwise entitled to bail on merits.

Muhammad Suleman v. Riasat Ali and another 2002 SCMR 1304; Noor Muhammad v. The State 2008 SCMR 1556 and Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.

Jalees Ahmad Meer for Petitioner.

Muhammad Nawaz, D.P.G. for the State along with Mushtaq S.I.

Sadaqat Mehmood Butt for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 633 #

2014 M L D 633

[Lahore]

Before Shahid Hameed Dar, J

FAYAZ HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.6566-B of 2013, decided on 14th June, 2013.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Bail, grant of---Delay in conclusion of trial---Trial Court failing to comply with directions of High Court regarding conclusion of trial within a certain time period---Effect---Bail application of accused was disposed of by the High Court with a direction to Trial Court to conclude the trial within three months---Trial Court had recorded statement of only two prosecution witnesses so far out of a total of ten---Trial Court had to issue non-bailable warrants of arrest of the prosecution witnesses---Neither accused nor any other person acting on his behalf ever showed indolence during trial---Offence alleged did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Direction of High Court regarding conclusion of trial within three months had not been complied with mainly for the fault of the prosecution---No one could be left to rot in jail for an indefinite period of time only to satisfy the whimsical grudge of the complainant---Accused was granted bail in circumstances.

Rustam Khan Padhiar for Petitioner.

Mrs. Muqadass Tahira, Addl: Prosecutor General Punjab for the State.

Malik Abdul Sattar Dogar for the Complainant.

Muhammad Anwar A.S.-I. with record.

MLD 2014 LAHORE HIGH COURT LAHORE 646 #

2014 M L D 646

[Lahore]

Before Rauf Ahmad Sheikh, J

Sheikh MUHAMMAD IJAZ---Petitioner

Versus

Sheikh MUHAMMAD MUSHTAQ---Respondent

Civil Revision No.1315 of 2013, decided on 20th May, 2013.

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

----O.IX, R.13, O. XXI, R. 26, O. XXXVII, R.2 & O.XLI, R.5---Application for setting aside of ex parte decree passed in suit for recovery of money under O.XXXVII, C.P.C.---Order of Trial Court dismissing such application upheld by High Court, but was challenged before Supreme Court, which granted leave to appeal to defendant---Application by defendant under O.XXI, R.26 read with O. XLI, R.5, C.P.C. for staying execution proceedings---Dismissal of stay application by Executing Court---Validity---Executing Court was supposed to proceed with execution proceeding in accordance with law, when Supreme Court had declined to grant ad interim injunction to defendant---Order of Trial Court dismissing defendant's application for setting aside ex parte decree upheld by High Court was still holding field---Suit challenging genuineness of signatures on cheque filed by defendant would not be a ground to stay execution proceedings---High Court dismissed revision petition in circumstances.

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

----O.XXI, Rr.66 & 90---Application for stay of execution proceedings---Applicant's plea was that reserve price of his property to be auctioned shown in proclamation was very low---Validity---Reserve price was estimated price---Executing Court in case of commission of any irregularity or fraud, if established, could set aside auction under O.XXI, R.90, C.P.C.---Execution proceedings could not be stayed on such ground---Defendant's such plea was repelled in circumstances.

Qazi Imran Zahid for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 661 #

2014 M L D 661

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

ZAHID MEHMOOD---Petitioner

Versus

REGIONAL MANAGER UTILITY STORES, FAISALABAD and 2 others---Respondents

Writ Petition No.22505 of 2013, decided on 8th May, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Petitioner sought direction to restrain the Utility Stores Corporation from opening a megastore at city "F" on the ground that already seven utility stores existed in the town and that instead of opening a megastore, the Corporation be directed to consider feasibility of setting up new stores at different locations in the city---Petitioner was unable to point out if any fundamental right of the petitioner had been infringed---Equitable jurisdiction of High Court could not be invoked to perpetuate injustice against the welfare and interest of the public at large---Petitioner failed to provide legal basis for his contentions and was not an aggrieved person---Petitioner lacked bona fides, locus standi and cause of action---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Public interest litigation---Requirements---High Court has to guard against frivolous petitions as it was a matter of common observation that in the garb of public interest litigation, matters are brought to the court which are neither of public importance nor relatable to enforcement of a fundamental right or public duty.

Ashok Kumar Pandey v. State of West Bengal AIR 2004 SC 208 and Dr.Akhtar Hasan Khan v. Federation of Pakistan 2012 SCMR 455 rel.

2014 M L D 715

[Lahore]

Before Abdus Sattar Asghar, J

MICHEL MASIH and another---Petitioners

Versus

TAJ BHATTI and 3 others---Respondents

Civil Revisions Nos.2363 and 2364 of 2000, heard on 6th February, 2013.

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

----Ss. 42 & 12---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for declaration and specific performance of contract---Non-production of two attesting witnesses of agreement to sell---Scope---Plaintiffs filed suit for declaration while defendant filed suit for specific performance of contract---Contention of plaintiffs was that they were owners in possession of suit land and agreement to sell in favour of defendant was against law and fact and same was based on mala fide and fraud---Both the suits were consolidated and suit of plaintiffs was dismissed whereas that of defendant was decreed concurrently---Validity---Defendant was bound to prove agreement to sell by producing its two attesting witnesses---Impugned agreement to sell had signatures of two marginal witnesses but only one witness was produced in the court---Said witness had not referred impugned agreement to sell and receipt in his examination-in-chief---Document not verified by the marginal witness during examination-in-chief could not be termed as duly acknowledged by the said witness---Other marginal witness had not been alleged to have been won-over by the plaintiffs and he was not summoned through the process of the court who appeared in favour of plaintiffs---Possession on suit land as part performance of agreement to sell could not be established---Plaintiffs had proved their plea through reliable and confidence inspiring evidence that they were owners of suit land---Deed-writer was not attesting witness rather he had only scribed the agreement to sell---Testimony of deed-writer was of no avail with regard to attestation of transaction of sale---Execution of agreement to sell was not proved due to non-production of two attesting witnesses of the same---Defendant had failed to establish payment of any consideration amount through reliable and confidence inspiring evidence and had failed to establish his case---Judgments and decrees of both the courts below were result of mis-reading and non-reading of evidence and were liable to be set aside---Impugned judgments and decrees were set aside and suit for specific performance filed by the defendant was dismissed and that of declaration was decreed---Revisions were accepted in circumstances.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal heirs and others PLD 2011 SC 241 rel.

(b) Words and Phrases---

---"Attestation of document"---Meaning---Attestation was the act of witnessing the actual execution of document subscribing ones name as witness to such effect---Attestation was also the signing of document to testify that the attester was witness to the execution of document.

----"Attesting witness"---Meaning---One who had signed the document in presence of its executant after seeing the execution of same was called an "attesting witness".

Abdul Majeed Chaudhary for Petitioners.

Ijaz Farhat for Respondent No.1.

Bashir Ahmad Shaheen for Respondents Nos. 2 to 4.

Date of hearing: 6th February, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 746 #

2014 M L D 746

[Lahore]

Before Abdus Sattar Asghar, J

Raja ABDUR RASHEED---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No.25016 and Criminal Original No.2275-W of 2012, heard on 21st February, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 154---Penal Code (XLV of 1860), S. 489-F---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 20(4), 22 & 7---Constitution of Pakistan, Art.199---Constitutional petition---Dishonouring of cheque issued by customer for repayment of loan advanced by Bank---Registration of case on application of Bank by order of Additional Sessions Judge/Ex-Officio Justice of Peace---Quashing of F.I.R.---Objective in enacting the Banking Laws was to provide speedy remedy at one forum to the Banks for the recovery of their loans and for the customers of the Banks to approach the same court in case of grievance against the Banks---Objective to legislate S. 20(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and S. 489-F of P.P.C. being altogether different, should not be intermingled---Order passed by Additional Sessions Judge/Ex-Officio Justice of the Peace and F.I.R. registered on the basis thereof being abuse of process of law were untenable---Constitutional petition was accepted and order passed by Additional Sessions Judge/Ex-Officio Justice of the Peace and F.I.R. registered on the basis thereof were quashed.

Rana Habib ur Rehman Khan for Petitioner.

Ms. Asma Tanvir for Respondent No.2.

Ms. Firdous Butt, A.A.-G. with Muhammad Anwar A.S.-I. for the State.

Date of hearing: 21st February, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 766 #

2014 M L D 766

[Lahore]

Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ

HAIDER ALI KHAN and another---Appellants

Versus

RAZIA BEGUM and others---Respondent

R.F.A. No.110 of 2007, heard on 1st October, 2013.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S. 42---Suit for declaration---Gift---Ingredients---Mutation of gift, attestation of---Essentials---Contention of plaintiffs was that suit land was gifted in their favour by their grandfather---Validity---Plaintiffs were required to prove entry of rapt roznamcha as well as the events of gift i.e. offer, acceptance and delivery of possession for establishing claim of gift---Plaintiffs were to plead events of gift with full detail along with names of witnesses before whom same had taken place while there was no document or record available with regard to such events---Plaintiffs had not pleaded that before the entry of rapt roznamcha events of gift were completed---Oral gift had been claimed by the plaintiffs without mentioning any date of offer of the gift---Entering date of gift in the plaint was not sufficient for pleading a case on the basis of gift---No independent witness had been produced to prove gift---No identification of lumberdar or pattidar of alleged donor was available in the rapt---Rapt roznamcha contained the signatures of witnesses but not of donor---Entry of mutation of gift did not bear the signatures of witnesses---No signature of donor upon the said document was available and there was no mention of lumberdar or pattidar---Assistant Commissioner had rightly refused to pass the mutation---Statement with regard to event mentioned in the mutation by the transferor as well as attestation of the same by the lumberdar or pattidar was necessary for passing any mutation except of inheritance---No such statement was available on the record---Observing of formalities was necessary for incorporation and attestation of mutation---None of the formalities had been proved by the plaintiffs---When donor did not appear before the revenue officer to confirm previous event of gift, there was no occasion for donor to attest the mutation of gift---Plaintiffs had failed to prove the ingredients of gift---Findings recorded by the Trial Court were in accordance with law---No case for interference by the High Court had been made out---Appeal was dismissed in circumstances.

(b) Islamic law---

----Gift---Proof of---Offer, acceptance and delivery of possession was necessary for proving a gift.

----O. VI, R. 17---Amendment of pleadings---Scope---Provisions of O.VI, R. 17, C.P.C. were permissive in nature and same could be used in order to foster justice and not the in-justice.

Muhammad Jaffar Javed Khan for Appellants.

Mehmood Ashraf Khan and Ch. Abdul Ghani for Respondents.

Date of hearing: 1st October, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 780 #

2014 M L D 780

[Lahore]

Before Shoaib Saeed, J

MUHAMMAD AKRAM---Petitioner

Versus

MEMBER, BOARD OF REVENUE (JUDICIAL-VII) and 8 others---Respondents

Writ Petition No.1249 of 2013, decided on 28th January, 2014.

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

----S.135---Constitution of Pakistan, Art.199---Constitutional petition---Scope---Partition of agricultural land by the Revenue Officer---Scope---Parties were co-owners in the property which was partitioned and wandajaat were prepared accordingly---Mode of partition was made in line with the principles of consolidation and partition---Some land given to the applicant was not contiguous as he was in possession on the said land---Question of inferior land could not be raised as it was compactness on which partition was based---Partition of agricultural land was to be based on its classification/category---Revenue hierarchy had given concurrent findings of fact against the applicant---Conclusions made by the Revenue Authorities were based on cogent reasons which should not be interfered in constitutional jurisdiction---High Court could not substitute its own findings in place of findings of courts below---Constitutional petition was dismissed in circumstances.

Muhammad Younis and another v. Member (Judicial), Board of Revenue, Punjab and 2 others 2004 YLR 793 distinguished.

Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970; Dilshad v. Additional District Judge, Multan and others 1986 SCMR 1396; Muhammad Mansha and others v. Sharifan Bibi and others 2006 CLC 608 and Khuda Yar v. M.B.R. and others 2003 MLD 1075 ref.

1990 MLD 575 rel.

Iftikhar Ibrahim Qureshi for Petitioner.

Mirza Muhammad Saleem Baig, A.A.-G. and Sakhi Muhammad, Naib Tehsildar.

Najeeb Ullah Khan for Respondent No.5.

MLD 2014 LAHORE HIGH COURT LAHORE 785 #

2014 M L D 785

[Lahore]

Before Shahid Hameed Dar, J

ZAMAN---Petitioner

Versus

The STATE and another ---Respondents

Criminal Miscellaneous No.1109-B of 2013, decided on 12th February, 2013.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-e-amd, common intention---Ad interim pre-arrest bail, recalling of---Active participation in a murderous assault---Scope---Allegation against accused and co-accused persons was that they murdered the deceased persons by beating them with wooden clubs (sota)---Accused was specifically named in the F.I.R. with the role that he being armed with a wooden club (sota), joined by co-accused persons, tortured the deceased persons and committed their cold-blooded murder---Although accused was not assigned a specific role in the F.I.R., but he appeared to have actively participated in the occurrence as post-mortem examination report of one of the deceased revealed multiple blunt weapon injuries on her head---Accused had also been summoned by Trial Court in a private complaint for the same occurrence, wherein accused was levelled with the same charge as in the present challan case---Weapon of offence was still to be recovered from the accused---Ad interim pre-arrest bail already granted to accused was recalled in circumstances.

Muhammad Amin and another v. The State 1987 SCMR 1522; Bahadur Khan Niazi v. Alam Khan and 2 others PLD 2000 Kar. 74 and Ghulam Murtaza Qureshi v. The State 1990 PCr.LJ 323 distinguished.

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

----S. 498---Pre-arrest bail, grant of---Scope---Bail before arrest was an extraordinary relief with a narrow scope, which was meant only for the innocent, or was available to a person who had not committed a non-bailable offence or whose involvement in a case was necessarily due to malice or ulterior motives of the complainant.

Muhammad Iqbal Chaudhary for Petitioner.

Mrs. Muqadass Tahira, Addl: Prosecutor General Punjab for the State.

Maqsood S.I. with record.

MLD 2014 LAHORE HIGH COURT LAHORE 791 #

2014 M L D 791

[Lahore]

Before Shahid Hameed Dar, J

MEHDI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.2354-B of 2013, decided on 20th March, 2013.

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

---S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 34, 337-A(i), 337-A(ii) & 337-F(ii)---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah-badiah---Bail, grant of---Further inquiry---Case of cross-version F.I.Rs.---F.I.R. registered by the accused side was prior in time and was recorded a day before the F.I.R. registered by the complainant side---Record showed that it was the complainant party which went to the place of occurrence, where accused and his companions were cutting fodder---Accused and his father received multiple injuries during the occurrence, which was evident from their medical certificates---Question as to whether the occurrence was pre-meditated or pre-concerted could not be answered in the facts of the case---Which party had initiated the aggression could only be resolved after recording of evidence at trial---Recovery of weapon from accused might not be of much relevance at bail stage as investigating officer failed to collect any crime empty---All the co-accused had already been granted bail---Case of accused was one of further inquiry into his guilt---Accused was admitted to bail accordingly.

Noor Muhammad v. The State 2009 SCMR 324 rel.

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

----S. 497---Bail---Recovery of weapon at the instance of accused---Relevance---Such recovery might not be of much relevance at bail stage, if the investigating officer failed to collect any crime empty during spot inspection.

Rai Muhammad Ali Kharal for Petitioner.

Ch. Muhammad Jahangir, Deputy Prosecutor General Punjab with Asif, A.S.-I.

Mian Muhammad Sikandar Hayat for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 799 #

2014 M L D 799

[Lahore]

Before Mahmood Ahmad Bhatti, J

MUHAMMAD AZHER---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.5147-B of 2013, decided on 26th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 468 & 471---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Pre-arrest bail, confirmation of---Holes were noticed in the prosecution story---Complainant had launched criminal proceedings, despite pending a civil suit in the competent court of law between the parties in which leave to appeal had been granted---Such aspect of the case had reflected adversely on the bona fides of the complainant---Report of Handwriting expert was conspicuous by its absence---Alleged false, forged and fabricated document handed over to the complainant by accused, could very well serve as a ground of defence for him in the suit---Court after recording evidence of the parties, would be in a better position to adjudicate upon as to whether, the pro note produced before it was genuine or forged one---Unless controversy as to the genuineness or otherwise of pro note in question was determined; it would not serve the purpose of justice to send accused behind the bars---Delay of almost two months in registration of the case against accused had not been explained satisfactorily---Offence under S.420, P.P.C. was bailable; while the offences under Ss.468 & 471, P.P.C. were non-cognizable---Interim pre-arrest bail granted to accused, was confirmed in circumstances.

Malik Muhammad Zafar Iqbal for the Petitioner.

Mian Abdul Qayyum, A.P.-G. with Liaquat Ali, S.I. for the State.

Nemo for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 808 #

2014 M L D 808

[Lahore]

Before Ijaz Ahmad and Ayesha A. Malik, JJ

Malik MUHAMMAD ASGHAR---Appellant

Versus

Haji MUHAMMAD AKBAR DARVESH and 2 others---Respondents

R.F.A. No.168 of 2004, heard on 16th July, 2013.

Defamation Ordinance (LVI of 2002)---

----Ss. 3 & 2(dd)---Punjab Local Government Ordinance (XIII of 2001), S. 88---Defamation---Originator, scope of---Suit for damages on account of defamation was dismissed---Plaintiff had sought damages on ground of alleged defamation caused when defendant moved application before Nazim, Union Council stating that the plaintiff had usurped the property of lawful owners; which was also published as a newspaper story---Validity----Culpability and criminality of an act under the Defamation Ordinance, 2002 was conditioned with the falsehood of the statement, representation or the publication in question---Falsehood of the application made by the defendants before the Nazim, Union Council, did not appear from the record, to be proved---Distinction had to be drawn between a statement which was not proved and which was explicitly proved to be false, an element which was missing in the present case---Said application was made to the Nazim, Union Council for resolution of a dispute, which was provided under S. 88 of the Punjab Local Government Ordinance, 2001---Plaintiff had been unable to prove that the making of the complaint before Nazim was designed to end in its publication of the newspaper---Gap between making of the application before the Nazim and its publication in the newspaper denied the element of actionable foreseeable republication---Link between the defendant and the newspaper publisher necessary to make the defendant liable, was missing---In absence of a conspiracy between the defendant and the publisher to defame the plaintiff, defendant could not be held liable for defamation---Originator was sued on account of his vicarious liability with the principal accused, however, in the present case the publisher had been spared and only the defendant was being prosecuted by the plaintiff, and defendant could not be termed to be originator of the publication and of the alleged defamation---No illegality in order of Trial Court was found---Appeal was dismissed, in circumstances.

Dr. Mukhtar Ahmad v. Mst. Shamim Hashmi 2007 CLC 941; Barrett v. Rosenthal, a 2006 California Supreme Court case concerning online defamation; Government of Punjab through Secretary, Ministry of Agricultural Lahore and another v. Mst. Kamina and others 1990 CLC 404; Syed Zaheerul Hassan Jeelani Chandpuri v. Government of Sindh through Secretary, Local Self-Government, Sindh and 6 others 2008 CLC 107 and Muhammad Ibrahim v. Irshad Begum and 7 others 2006 MLD 924 rel.

Mujeeb-ur-Rehman Kiyani for Appellant.

Haroon Irshad Janjua for Respondents.

Date of hearing: 16th July, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 820 #

2014 M L D 820

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

Messrs LALA ZAR TEXTILE MILLS and others---Petitioners

Versus

MUHAMMAD YASAR HAYAT and others---Respondents

Writ Petition No.15914 of 2012, heard on 27th May, 2013.

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

----Ss.2(2), 47 & 104(1)(ff)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Scope---Execution proceed-ings---Objection petition, filing of---Constitutional petition challenging order of Executing Court dismissing objection petition---Maintainability--Order passed under S.47, C.P.C. would be considered as decree and appealable, but could not be challenged in constitutional petition---Petitioner had not availed remedy of appeal or revision available against impugned order---High Court dismissed constitutional petition for being not maintainable.

Messrs Saadullah Khan and Brothers and another v. The Province of West Pakistan and another PLD 1971 Quetta 101; Muhammad Ismail v. Raja Muhammad Younis 2003 CLC 1252; Muhammad Afzal and 4 others v. Bashir Ahmed and 4 others 2007 YLR 2821; Muhammad Akbar and others v. Riaz Hussain and others 1995 MLD 1943 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition in presence of alternate remedy under law---Maintainability---Such petition would not be maintainable.

Ch. Saghir Ahmad for Petitioners.

Muhammad Iqbal Khan for Respondent No.2.

Date of hearing: 27th May, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 834 #

2014 M L D 834

[Lahore]

Before Shoaib Saeed, J

Mst. SHAZIA RAFIQUE---Petitioner

Versus

BAHAUDDIN ZAKRIAYA UNIVERSITY, MULTAN SERVICE through Vice Chancellor and 2 others---Respondents

Writ Petition No.11755 of 2013, decided on 24th October, 2013.

Constitution of Pakistan---

---Art. 199---Constitutional petition---Educational institution---Failure of student to pass LL. B. Part-III Examination despite availing three chances---Contention of student was that she was entitled to three grace marks---Validity---Student who appeared in the examination in parts was not entitled to grace marks---Petitioner had availed three chances and failed in her last attempt was not entitled to grace marks---Petitioner had not come to the court with clean hands as she had failed to disclose that she had availed two chances prior to the last and third chance---Constitutional petition was dismissed in circumstances.

University of the Punjab, Lahore and 2 others v. Akbar Ali 1995 SCMR 537; Sajid Bin Nawaz v. Punjab University 2001 CLC 433 and Zahid Ullah v. N.W.F.P. Public Service Commission through Chairman, Peshawar and 2 others PLD 2010 Pesh. 2 distinguished.

Tariq Muhammad Iqbal for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

MLD 2014 LAHORE HIGH COURT LAHORE 851 #

2014 M L D 851

[Lahore]

Before Shahid Hameed Dar, J

Syed SHEHZAD HUSSAIN SHERAZI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.6216-B of 2013, decided on 31st May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 396 & 412---Qatl-e-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity---Bail, grant of---Further inquiry---Accused was identified during test identification parade but not by main eye-witnesses---Recovery of cash from accused not free from doubt---Effect--Allegation against accused was that he facilitated his co-accused in committing a dacoity which also resulted in murder of one person---Accused was implicated in the case after being picked by witnesses in the test identification parade and cash amounting to Rs.2 million was also recovered at his pointation---Complainant and other eye-witnesses who were present at the spot at the time of occurrence claimed that they could identify the accused persons if they ever saw them again, however at the time of test identification parade they were not present for identifying the accused, and instead two other witnesses picked up the accused during the identification parade---Both said other witnesses were not named in the F.I.R. as eye-witnesses, and during identification parade they made statements to the supervising Magistrate to the effect that they saw the accused stepping down and then getting back in a car at the time of occurrence, while a fire shot was fired---Recovery of cash amounting to two million rupees at the instance of accused, appeared to be huge amount, but possibility could not be ruled out that it was part of strategy of prosecution to involve the accused in the present case---Recovery memo prepared by the investigating officer in such regard might not be as transparent and unblemished as shown by the prosecution---Question as to whether the currency notes allegedly recovered from the accused bore any distinguishing marks still remained a riddle---Evidentiary value of recovered cash was to be determined by the Trial Court after recording evidence at trial---Case against accused required further inquiry---Accused was granted bail in circumstances.

Naseer Ahmad Bhutta and Ch. Waris Ali Janjua for Petitioner.

Zahid Yunus, District Public Prosecutor for the State with Saleem S.I.

Syed Imdad Hussain Hamdani for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 863 #

2014 M L D 863

[Lahore]

Before Mehmood Maqbool Bajwa, J

MUHAMMAD EJAZ---Appellant

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman and another---Respondents

F.A.O. No.93 of 2014, decided on 19th March, 2014.

(a) Federal Public Service Commission Rules for Competitive Examination (CSS), 2013---

----Rr.7 (ii), 8 (vi) & 17 (d)---Competitive examination---Chances---Ineligibility---Appellant was candidate who took competitive examination but his result was not announced as he was not eligible for appearing in examination---Validity---Candidate could avail of three chances of examination, under R.8(vi) of Federal Public Service Commission Rules for Competitive Examination (CSS), 2013, which he had availed prior to appearing in competitive examination in year, 2013---Earlier three chances were availed having domicile of province of Punjab and later on candidate got certificate of domicile from Azad Jammu and Kashmir and certificate of State subject and again applied but since it was fourth chance, therefore, he was not entitled to apply and appear in competitive examination held in year 2013---Federal Public Service Commission, under R. 8 (vi) Federal Public Service Commission Rules for Competitive Examination (CSS), 2013, reserved right to declare candidature of examinee cancelled, if after announcement of result of written part of examination, candidate was found ineligible in any respect under the rules in examination but it did not mean that the Commission got no authority to declare any candidate ineligible prior to announcement of result---High Court declined to interfere in order passed by Federal Public Service Commission---Appeal was dismissed in circumstances.

(b) Federal Public Service Commission Rules for Competitive Examination (CSS), 2013---

----R.6 (d)---Domicile---Scope---Domicile once claimed by candidate and accepted by Federal Public Service Commission for the purpose of admission to an examination is final and no change is allowed at subsequent examination or selection.

Mamoon Rasheed Pirzada for Appellant.

Waqas Qadeer Dar, Deputy Attorney-General along with Syed Nadar Hussain Shah, Deputy Director Federal Public Service Commission, Lahore.

MLD 2014 LAHORE HIGH COURT LAHORE 874 #

2014 M L D 874

[Lahore]

Before Shoaib Saeed, J

TECHNO TIME CONSTRUCTION COMPANY through Partner---Petitioner

Versus

PUNJAB HIGHWAY DEPARTMENT through Chief Engineer and 2 others---Respondents

Writ Petition No.24274 of 2013, heard on 4th November, 2013.

Constitution of Pakistan---

---Art. 199---Constitutional petition---Tender for construction of road---Filing of bid by the bidder---Clause for forfeiture of earnest money of lowest bidder in case of refusal or non-furnishing of additional performance security---Scope---Petitioner-company was the lowest bidder and Authority provided him an opportunity to deposit additional performance security within stipulated time---Petitioner, instead of making compliance with the terms of acceptance of offer approached the High Court seeking direction to be declared as successful bidder or in alternate for return of security---Petitioner had failed to follow the procedure prescribed for awarding of contract---High Court, under constitutional jurisdiction, could not interfere with the terms and conditions of tender/contract documents unless same were contrary to public policy---Petitioner was not entitled for discretionary relief as prayed for---Constitutional petition was dismissed in circumstances.

Rana Shahid Mehmood-I, for Petitioner.

Muhammad Iftikhar-ur-Rasheed and Wali Muhammad Khan, Assistant Advocates General with Muhammad Iqbal Awan, XEN/Respondent No.3.

Date of hearing: 4th November, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 887 #

2014 M L D 887

[Lahore]

Before Nasir Saeed Sheikh, J

MUHAMMAD ISHAQUE---Petitioner

Versus

Mst. AMNA BIBI and 22 others---Respondents

Civil Revision No.682 of 2005, heard on 21st November, 2013.

Civil Procedure Code (V of 1908)---

---O. XVII, R. 3---Suit for possession through partition---Closure of evidence---Validity---Only three opportunities to produce evidence were granted to the plaintiffs by the Trial Court---Appellate Court exercised its discretion properly and allowed one opportunity to the plaintiffs to produce their evidence---No illegality had been committed by the Appellate Court and substantial justice had been done---Revision was dismissed in circumstances.

Abdul Shakoor and others v. Province of The Punjab and 4 others 2005 SCMR 1673 distinguished.

Qazi Shamsur Rehman and another v. Mst. Chaman Dasta and others 2004 SCMR 1798 and Suleman v. Mst. Zeenat Jan and 2 others PLD 2003 SC 362 rel.

Muhammad Akbar Butt for Petitioner.

Raja Muhammad Aslam for Respondents.

Date of hearing: 21st November, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 893 #

2014 M L D 893

[Lahore]

Before Abdul Sami Khan, J

ASIM SHAHZAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.129-J and Criminal Revision No.166 of 2010, heard on 2nd October, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of extenuating circumstances, entitlement to---Matter was reported to the Police with sufficient promptitude without deliberation or consultation by the complainant---Complainant and prosecution witness, both had sufficiently explained the mode and manner of the occurrence; place of occurrence, locale of injury sustained by the deceased, and kind of weapon used during the occurrence---Both said eye-witnesses being residents of same locality were natural witnesses and their presence at the place of occurrence was natural---Eye-witnesses were known to accused being neighbour---Identification of accused at the spot, was established in circumstances---Both were subjected to lengthy cross-examination by the defence, but they remained consistent on all material aspects, and successfully answered the questions put by the defence---Prosecution had proved the ocular account through sound, cogent, motivating, trustworthy, reliable and confidence inspiring eye-witness account---Medical evidence, was absolutely in line with ocular account---Post-mortem examination report, had fully corroborated the ocular account regarding nature of injuries, weapon of offence used by accused, and locale of firearm injuries sustained by the deceased---Pistol of 30 bore recovered on the pointation of accused and the crime empties collected during investigation from the spot, were sent to office of Forensic Science Laboratory, and report in this regard was positive---Motive set up by the prosecution, was admitted by accused in his statement made under S.342, Cr.P.C.---Accused had no personal grudge with the deceased, but it was the deceased who established illicit liaison with the sister of accused---Occurrence had taken place due to some excentricting circumstances created by the deceased himself---All those facts were taken as mitigating circumstances in favour of accused---Trial Court, in circumstances, was well justified for not awarding capital sentence of death to accused, and rightly awarded him life imprisonment---No good reason was available to differ with the judgment passed by the Trial Court, which was based upon proper appreciation of evidence---Upholding the conviction and sentence passed against accused, criminal appeal filed by accused was dismissed---Revision petition filed by the complainant for enhancing sentence of life imprisonment to capital punishment of death, was also dismissed, in circumstances.

2011 SCMR 208, 2010 SCMR 556, 2010 SCMR 374; 2010 SCMR 846; 2006 SCMR 1396; 2007 SCMR 1427; PLD 2006 SC 283; 2010 SCMR 1084; 2003 SCMR 647; 2003 SCMR 189; PLD 2002 SC 781; 2003 SCMR 1678; 2004 SCMR 723; 2003 SCMR 522; 2003 SCMR 1164; 2003 SCMR 884; 2003 SCMR 1419 and 2009 SCMR 4 ref.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 and Sharafat Ali Khan v. The State 2010 SCMR 1205 rel.

Raja Ghaneem Abir Khan for Appellant.

Mirza Muhammad Usman, Deputy Prosecutor General for the State.

Raja Ikram Amin Minhas for the Complainant.

Date of hearing: 2nd October, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 902 #

2014 M L D 902

[Lahore]

Before M. Sohail Iqbal Bhatti, J

QURBAN HUSSAIN---Petitioner

Versus

DIRECTOR MILITARY LANDS OF CANTONMENTS and others---Respondents

Civil Revision No.49-D of 2014, decided on 20th January,2014.

Arbitration Act (X of 1940)---

----Ss.14 & 30---Limitation Act (IX of 1908), Art. 158---Award---Objections---Limitation---Award dated 9-9-2011, was filed in court by arbitrator and on 12-12-2011, petitioner filed objections to the award---Trial Court decreed the suit in terms of award announced by arbitrator and the same was maintained by Lower Appellate Court---Validity---Petitioner had knowledge of award dated 9-9-2011, when he filed application for restoration of suit on 21-9-2011 by specifically mentioning that award had been announced against him and thereafter he filed application for amendment in plaint, in which petitioner sought amendment in plaint for challenging award dated 9-9-2011---Both the courts below had rightly observed that objections filed by petitioner on 12-12-2011, were barred under Art.158 of Limitation Act, 1908---High court in exercise of revisional jurisdiction declined to interfere in concurrent judgments and decrees passed by two courts below as the court had not committed any material irregularity---Revision was dismissed in circumstances.

Col (Retd) Muhammad Aslam v. Haji Muhammad Shafi and another PLD 1993 Lah. 11; Messrs Shafi Corporation Ltd. v. Govt. of Pakistan through Director General of Defence Purchase, Ministry of Defence, Karachi PLD 1994 Kar. 127 and Late Mst. Majeedan through Lrs. v. Late Muhammad Naseem 2001 SCJ 96 ref.

Sh. Zameer Hussain for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 921 #

2014 M L D 921

[Lahore]

Before Atir Mahmood, J

NADEEM AHMED---Appellant

Versus

ALTAF HUSSAIN and others---Respondents

R.S.A. No.266 of 2010, heard on 12th December, 2013.

Civil Procedure Code (V of 1908)---

----O. XVII, Rr. 3 & 1 (3)---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Closure of evidence---Applicability---Expression "Proceed to decide the suit forthwith" occurring in R. 3, O.XVII, C.P.C.---Scope---Provisions of O. XVII, Rr. 1(3) & 3 were directory in nature as no penalty had been imposed upon non-production of evidence---Court might decide the case on the same day and it was for the court to proceed with the matter in accordance with law on the basis of material available on record---Provisions of O. XVII, R. 3, C.P.C. were applicable when on the date previous to the date of final order an adjournment was sought by the plaintiff---When no objection was made to such adjournment by the other party, then it could not be presumed that the adjournment was granted on behalf of the party who sought the same---Request for adjournment on the date previous to that of final order was made by the counsel for plaintiff which was not objected to by the other side---Trial Court, without taking into consideration that on the previous date of hearing no objection was raised by the other side, invoked provisions of O. XVII, R. 3, C.P.C. and dismissed the suit without giving its issue-wise findings---Trial Court was bound to decide the case on the basis of material available on record and gave its findings issue-wise---Trial Court was not justified to close the right of evidence of plaintiff rather to decide the case on merits other than on technicalities---Impugned judgments and decrees passed by both the courts below were set aside and case was remanded for decision afresh on merit after affording one last and final opportunity to produce evidence---Appeal was accepted in circumstances.

Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 SC 270; Ali Muhammad v. Mst.Murad Bibi 1995 SCMR 773; Muhammad Arshad v. Muhammad Jahanzeb Khan 2008 SCMR 1335; Muhammad Ramzan v. Khadim Hussain 2007 SCMR 1269; Ghulam Rasool v. Rai Ghulam Mustafa and others 1993 SCMR 2026; Amanullah Khan and 3 others v. Mst. Akhtar Begum 1993 SCMR 504; Zahoor Ahmed v. Mehra through Legal Heirs and others 1999 SCMR 105; Syed Tasleem Ahmad Shah v. Sajawal Khan and others 1985 SCMR 585; Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others PLD 2003 SCMR 180; Abdul Shakoor and others v. Province of the Punjab and 4 others 2005 SCMR 1673; Fateh Sher v. Muhammad Zubair 2003 SCMR 797; Zahoor v. Election Tribunal, Vehair and others 2008 SCMR 322; Mst.Hurmat Bibi v. Lt. Col. Muhammad Bukhsh Soobi 2005 PSC 1118; Barkat Ali v. Muhammad Nawaz PLD 2004 SC 489 and Tasleem Khan v. Sher Ghulam and others 2010 SCMR 1422 ref.

Syed Tasleem Ahmad Shah v. Sajawal Khan and others 1985 SCMR 585 and Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Sleuman and 6 others PLD 2003 SCMR 180 rel.

Zafar Iqbal Bhatti for Appellant.

Irshad Ahmed Cheema for Respondents.

Date of hearing: 12th December, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 933 #

2014 M L D 933

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD ARSHAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.2610-B of 2014, decided on 10th March, 2014.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 34 & 109---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, abetment---Bail, grant of---Further inquiry---Non-attribution of any overt act or firing during the occurrence---Motive not established---Effect---Accused and co-accused allegedly chased the deceased on a motorcycle, after which co-accused fired at and killed the deceased---Motive for the occurrence was that prior to the incident co-accused and deceased had exchanged hot words---No overt act was attributed to accused and he was not alleged to have fired at anyone, including the deceased---Motorcycle allegedly recovered from accused was not owned by him, and according to the police same was owned by the co-accused---No lalkara was attributed to accused---Accused was not directly connected with the motive part as exchange of hot words had taken place between co-accused and deceased---Common intention or vicarious liability of accused was yet to be established during course of evidence---Prosecution prima facie had no incriminating material as yet to connect the accused with the commission of the alleged offence---Guilt of accused in such circumstances was a matter of further inquiry---Investigation was complete and accused was no more required for further investigation---Trial of accused had also not progressed---Accused was allowed bail in circumstances.

Nisar Ahmed v. The State and others 2014 SCMR 27 rel.

(b) Words and phrases---

----"Overt act"---Definition.

Black's Law Dictionary 8th edition and Chambers 21st Dictionary ref.

Muhammad Ameer Khan Niazi for Petitioner.

Ch. Ahmed Raza, A.P.-G. and Allah Jiwaya S.I. for the State.

Malik Muhammad Imtiaz Mahl for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 950 #

2014 M L D 950

[Lahore]

Before Mahmood Ahmad Bhatti, J

MARRAYAM MAI---Petitioner

Versus

STATION HOUSE OFFICER and 2 others---Respondents

Writ Petition No.13638/Q of 2013, decided on 6th December, 2013.

Penal Code (XLV of 1860)---

----Ss. 365-B & 380---Constitution of Pakistan, Arts.199 & 35---Kidnapping, abducting or inducing woman to compel for marriage and theft in dwelling house---Quashing of F.I.R.---Constitutional petition---Maintainability---Aggrieved person---Scope---Parents and brother of petitioner-abductee were not willing with regard to her marriage with the accused---Petitioner might not be an "aggrieved person" but an extended meaning had to be given to the expression "aggrieved" contained in Art. 199 of the Constitution---Petitioner being wife of accused was aggrieved by the registration of case against her husband and his relatives---Registration of case was not only causing agony and distress to her husband but she was also undergoing the same condition---Petitioner-abductee herself was not willing to go with her parents and brother and it would be an exercise in futility to continue with the prosecution or prosecute the accused---State had to protect the marriage, family, the mother and the child---High Court had power to prevent the abuse of law restraining the prosecution to proceed with the criminal case---Constitutional petition was accepted and F.I.R. was quashed accordingly.

Rashid Rehman Khan for Petitioner.

Muhammad Javed Saeed Pirzada, A.A.-G. along with Khalid, S.I. for the State.

Tahir Mehmood for Respondent No.2.

MLD 2014 LAHORE HIGH COURT LAHORE 957 #

2014 M L D 957

[Lahore]

Before Ijaz Ahmad, J

DUBAI ISLAMIC BANK PAKISTAN LTD. through Authorized Attorneys---Petitioner

Versus

FEDERATION OF PAKISTAN, through Ministry of Defence, Rawalpindi and 2 others---Respondents

Writ Petition No.2820 of 2012, decided on 28th March, 2013.

Cantonments Act (II of 1924)---

----Ss. 282 & 283---Companies Ordinance (XLVII of 1984), Ss. 143 & 144---Constitution of Pakistan, Art. 199---Constitutional petition---Notice issued by Cantonment Board demanding tax from Bank on displaying advertisement boards on its own building---Bank's plea was that non-publication of its name outside its business place was punishable under S. 144 of Companies Ordinance, 1984---Validity---Bank on basis of such plea would not be absolved from paying any charges, if due under law---Board without providing any space or service could not demand under law any fee or tax from Bank---Providing spaces was pre-condition for imposition of tax---Board could not entrust duty of collecting charges, fees and taxes to a contractor---Local Council, but not contractor, would be answerable to people---Collection of advertisement fee, if permissible under law, could not be entrusted to a contractor---Board could assign its functions to a contractor requiring application of technology and scientific know-how, which could not be performed by a non-technical employee of a Local Council---Board before demanding charges was legally obliged to provide places of uniform size within its limits for displaying names and boards by persons and companies desiring so---High Court declared impugned notice as illegal and directed Board to provide uniform size of boards while keeping in view safety of life and property of people etc.

Station Commander, Chaklala Cantt. v. CoL(R) Muhammad Abbas Malik 2006 CLC 1674; Messrs Ace Quality (Pvt.) Limited through Chief Executive v. Tehsil Municipal Administration, Multan Sadder through Nazim and 3 others 2007 CLC 35; Messrs Coca-Cola Beverages v. Cantonment Board Chaklala, Rawalpindi and others 2011 MLD 1987; 2011 MLD 1987 and Messrs Haidri Beverages (Pvt.) Ltd. v. Office of the Contonment Board Rawalpindi through its President and another Writ Petition No.322 of 2004 ref.

Muhammad Munir Abdullah v. T.M.A. and others 2010 YLR 2543; Messrs Shamim and Co. v. Tehsil Municipal Administration, Multan City through Nazim and 2 others 2004 YLR 366; Arbab Contracting and Co. through Managing Partner v. Tehsil Municipal Administration Multan and 2 others 2005 MLD 1520; 2001 MLD 1987 and Azad Government of the State of Jammu and Kashmir through Chief Secretary Azad Kashmir Government, Civil Secretariat Muzaffarabad v. Haji Mir Muhammad Naseer and others 1999 PLC (C.S.) 1173 ref.

Malik Muhammad Siddique Awan for Petitioner.

Mirza Waqas Rauf, Advocate/Legal Advisor for Respondent No.2.

MLD 2014 LAHORE HIGH COURT LAHORE 977 #

2014 M L D 977

[Lahore]

Before Muhammad Tariq Abbasi, J

ABDUL JABBAR and others---Petitioners

Versus

ALLAH BUKHSH and others---Respondents

Writ Petition No.14988 of 2013, decided on 2nd December, 2013.

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

----S. 7---Constitution of Pakistan, Art. 199---Constitutional petition---Appointment of guardian of person and property of minor---Scope---Father moved application for his appointment as guardian of person and property of minors which was accepted and with the permission of court he sold their property---Guardian court recalled order passed by it with regard to permission of sale of property of minors on the ground that list of expenses/sale deed was not submitted within time---Vendees of said sale filed application that they had purchased property through sale deed and they should not be penalized for the act of guardian which was accepted and order re-calling the permission to sell the property of minors was recalled---Validity---Vendees were not party when guardian of person and property of minors was appointed---Mother of minors got recorded her consenting statement that she had no objection with regard to appointment of her husband as guardian of person and property of minors---Guardian of minors got permission for sale of property and same was sold to the applicants against consideration---Guardian was bound to submit details of expenses and sale deed but he could not submit the same---No reason, cause or justification existed for the Guardian Court to cancel the order for sale of property as sale had become final and sale deed had been executed in favour of applicants---Guardian Court had correctly passed order re-calling its previous order with regard to cancellation of permission to sell property of minors which had not prejudiced any party---Appeal was filed with the mala fide on behalf of minors through their mother as guardian of minors was appointed legally and their mother was not competent to pose herself to be the guardian of minors and prefer the appeal---Appellate Court had passed the impugned order against the facts and erroneously order of Guardian Court was set aside---He, who had sought equity, must do equity and he, who had come to the court, must come with clean hands---Guardian and his wife had not approached the Appellate Court with clean hands---Impugned judgment passed by the Appellate Court was not sustainable in the eye of law which was set aside---Constitutional petition was accepted in circumstances.

Ch. Abdul Ghani for Petitioners.

Saghir Ahmad Bhatti for Respondents.

Date of hearing: 2nd December, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 993 #

2014 M L D 993

[Lahore]

Before Amin-ud-Din Khan, J

PROVINCE OF PUNJAB and others---Petitioners

Versus

KHALID HUSSAIN and others---Respondents

Civil Revision No.1793 of 2012, decided on 27th February, 2014.

(a) Administration of Justice---

----Where public property is involved in a litigation, court is required to be more conscious and careful in dealing with such matters as it is a common phenomenon that officials of government departments do not perform their duties to safeguard interest of Government.

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

----S.42---Suit for declaration---New right, creating of---Scope---Plaintiff in such a suit is required to prove a case pleaded by him by producing cogent and convincing evidence---Decree can be granted by court in such a suit with regard to a pre-existing right of a party---New right cannot be created in favour of a party through a decree granted under S. 42 of Specific Relief Act, 1877.

----S.42---Civil Procedure Code (V of 1908), O.IX, R.13---Suit for declaration---Ex-parte decree, setting aside of---Fraudulent transaction---Plaintiffs claimed to be the owners of suit property which was originally a public property---Suit was ex parte decreed in favour of plaintiffs and application for setting aside ex parte decree was dismissed by Trial Court as well as Lower Appellate Court---Validity---All proceedings were fraudulent, when after cancellation of original allotment in favour of plaintiffs, there was complete silence of 19 years and after that on the basis of forged document claiming that payment had been made but payment had no value in the eye of law---Plaintiffs in their plaint asked for performance of some acts and duties, therefore, direction given by Trial Court through ex-parte decree to issue conveyance deed in favour of plaintiffs was not in the jurisdiction of Trial Court---Trial Court had no jurisdiction to pass such decree in favour of plaintiffs and the same were set aside and suit was dismissed---Revision was allowed in circumstances.

Mst. Zulaikhan Bibi through L.Rs. and others v. Mst. Roshan Jan and others 2011 SCMR 986 ref.

Muhammad Arif Raja, Additional Advocate General with Azhar Saeed Awan, Deputy Director, Punjab Housing and Town Planning Agency, Khushab for Petitioners.

Malik Noor Muhammad Awan, for Respondent No.2.

Date of hearting: 27th February, 2014.

MLD 2014 LAHORE HIGH COURT LAHORE 1012 #

2014 M L D 1012

[Lahore]

Before Arshad Mahmood Tabassum, J

JAMSHED GULZAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.440 of 2014, heard on 29th January, 2014.

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

----Art.103---Written agreement---Exclusion of oral evidence---Scope---Oral evidence could not be preferred over the documentary evidence.

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

----Ss. 15, 19 & 34---Qanun-e-Shahadat (10 of 1984), Art.103---Constitution of Pakistan, Art.199---Constitutional petition---Default in payment of rent---Scope---Landlord filed ejectment application against the tenant on account of default in monthly payment of rent as provided in the terms of written agreement---Leave to contest of tenant was declined and the ejectment order was passed by the Rent Tribunal---Appeal filed by the tenant was dismissed---Contention of the tenant/ petitioner was that he had not committed any default in payment of rent as he regularly paid rent but he failed to produce receipts before the Rent Tribunal as the landlord used to issue receipts after six months---Validity---Petitioner/tenant had violated the terms of lease agreement in respect of payment of monthly rent, therefore oral evidence was not required to be recorded/produced in circumstances---Lease agreement was an admitted document and violation thereof was established from the application of leave to contest, therefore Special Judge (Rent) was left with no option to pass an order of ejectment against the petitioner/tenant by dismissing application for leave to contest---Judgment passed by two courts below did not require interference---Constitutional petition was dismissed.

Younas Siddique's case PLD 2009 Lah. 469; Muhammad Bashir's case 2010 SCMR 1915 and Bashir Ahmad's case PLD 1995 Lah. 48 ref.

Bolan Beverages (Pvt.) Ltd. v. Pepsico Inc. and 4 others PLD 2005 SC 860 rel.

Muhammad Ali Siddiqui for Petitioner.

Asghar Ali Ansari for Respondent No.3.

Date of hearing: 29th January, 2014.

MLD 2014 LAHORE HIGH COURT LAHORE 1023 #

2014 M L D 1023

[Lahore]

Before Rauf Ahmad Sheikh, J

KHURRAM JALIL and another---Petitioners

Versus

MISRI KHAN and 2 others---Respondents

Writ Petition No.565 of 2013, decided on 5th March, 2013.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Constitution of Pakistan, Art. 199---Constitutional petition---Amendment of plaint---Plaintiff-respondent filed a suit for possession through pre-emption of land measuring 2-kanals 4-marlas wherein an application for amendment in the plaint was moved---Contention of the plaintiff-respondent was that through clerical mistake the measurement of land was wrongly given as 2-kanals 4-marlas instead of 2-kanals 9-marlas---Application for amendment of plaint was allowed concurrently---Validity---Plaint showed that the details of both the mutations, number of Khatas and Khasras along with shares were correctly given---Measurement given in the plaint i.e. 2-kanals 4-marlas instead of 2-kanals 9-marlas appeared to be result of a clerical mistake---Clerical or mathematical mistakes could be corrected at any stage---Delay in submission of the application was no ground to disallow the prayer and application under O. VI, R. 17, C.P.C. could be moved at any stage of the proceedings including the appeal---Impugned order passed by the Trial Court and Appellate Court did not suffer from any illegality or infirmity---Suit was not for partial pre-emption and incorrect measurement was given due to the clerical mistake and no right had accrued in favour of the defendants-petitioners---Constitutional petition was without merit and the same was dismissed in limine.

Raja Faheem Altaf for Petitioners.

MLD 2014 LAHORE HIGH COURT LAHORE 1030 #

2014 M L D 1030

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. BUSHRA PARVEEN---Appellant

Versus

MUHAMMAD MOHSIN SHEIKH---Respondent

F.A.O. No.511 of 2013, decided on 14th October, 2013.

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

----S.17---Ejectment petition---Default in payment of rent---Denial of relationship of landlord and tenant by the tenant---Scope---House in question was transferred by the tenant in the name of landlord after fulfilling formalities---Written rent agreement between the parties was on record---Tenant had failed to get declared from any competent court of law that ownership of landlord and rent agreement were result of fraud---Tenant could not question the title of landlord in presence of rent agreement---Rent Controller was not competent to decide the question of title between the parties---No illegality or legal infirmity was found in the impugned order---Appeal was dismissed in circumstances.

Suqrat Mir Basit for Appellant.

MLD 2014 LAHORE HIGH COURT LAHORE 1043 #

2014 M L D 1043

[Lahore]

Before Muhammad Tariq Abbasi, J

Mst. JANNAT---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.358 of 2010, decided on 4th November, 2013.

Criminal Procedure Code (V of 1898)---

----Ss.88 (6A) & 88 (6D)---Penal Code (XLV of 1860), Ss.302 & 324---Qatl-e-Amd and attempt to Qatl-e-Amd---Proclaimed offender---Attachment of property---Objections---Accused was declared proclaimed offender and Trial Court attached his property---Wife of proclaimed offender filed objection on the plea that property in question had been given to her as dower but Trial Court dismissed the objection---Validity---Wife of proclaimed offender filed objection petition to the effect that property in question had been given to her by her husband, hence she had interest in the property and as such it could not be sold---Wife of proclaimed offender also instituted suit before Family Court, which had been decreed, therefore, objection was not ignorable and needed consideration---High Court set aside the order and remanded the matter to Trial Court for decision afresh on objection petition filed by wife of proclaimed offender---Revision was allowed accordingly.

Tahir Mehmood for Petitioner.

Hasan Mehmood Khan, D.P.G. for the State.

Rana Muhammad Shakeel for the Complainant.

Date of hearing: 4th November, 2013

MLD 2014 LAHORE HIGH COURT LAHORE 1050 #

2014 M L D 1050

[Lahore]

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

SHERAZ AKRAM alias SHERAZI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.2205 and Capital Sentence Reference No.50/T of 2010, heard on 27th January, 2014.

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

----Ss. 302(b) & 353---Anti-Terrorism Act (XXVII of 1979), S.7(a)---Qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, act of terrorism---Appreciation of evidence---Benefit of doubt---Story of F.I.R., not only suffered from self-contradictions but was astounding as well as preposterous---Inordinate delay of twenty four hours before registration of F.I.R., had not been explained anywhere by prosecution---Probability that F.I.R. had been recorded with the fictitious timings, could not be ruled out---Inquest report also cast doubt on the timing of registration of the F.I.R.---Registration of the F.I.R., in circumstances could not be other than an ante-timed affair---Story of F.I.R. had been badly distorted and dishonesty improved upon by two Police Officials who appeared as prosecution witnesses---Both the sides exchanged firing, which fact was evident from the testimonies of the eye-witnesses as well as from the visual site plan---Briskness shown by the eye-witnesses in the shifting from one stance to another in their testimonies spoke the falsity of the story narrated by them---Prosecution, in circumstances, had failed to bring home the guilt of accused beyond reasonable doubt---Conviction recorded and sentence awarded to accused by the Trial Court, could not be sustained---Conviction and sentence awarded to accused, were set aside, and accused was acquitted of the charge and was released, in circumstances.

(b) Criminal trial---

---Medical evidence---Scope---Medical evidence could furnish all the necessary details qua the injuries of a person, living or dead, but it could not identify as to who inflicted injuries.

Ms. Bushra Qamar for Appellant.

Khurram Khan, Deputy Prosecutor-General Punjab for the State.

Date of hearing: 27th January, 2014.

MLD 2014 LAHORE HIGH COURT LAHORE 1075 #

2014 M L D 1075

[Lahore]

Before Atir Mahmood, J

MAZHAR IQBAL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No.13269 of 2013, decided on 12th November, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Omission to submit list of witnesses---"Good cause"---Scope/ambit---Trial Court dismissed defendant's application for submission of list of witnesses and summoning the record at the stage of documentary evidence---Appellate court dismissed appeal---Defendant contended/pleaded that he was not aware of non-submission of the list of witnesses and came to know about the same only at the time of depositing expenses for summoning of witnesses---Validity---Defendant's contention did not come within the definition of "good cause"---Constitutional petition was dismissed for not being maintainable.

The Australasia Bank Ltd. v. Messrs Mangora Textile Industries, SWAT and others 1981 SCMR 150; Naeem Akhtar v. Additional District Judge and others 2005 MLD 1713 and Muslim Insurance Co. Ltd. through Chief Executive and another 2003 MLD 1521 ref.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

Ch. Khawar Siddique Sahi for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 1084 #

2014 M L D 1084

[Lahore]

Before Shoaib Saeed, J

MUHAMMAD ASIF---Petitioner

Versus

AMINA BIBI and others---Respondents

Writ Petition No.17306 of 2013, decided on 9th July, 2013.

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

----Ss. 15, 7 & 20---Constitution of Pakistan, Art. 199---Constitutional petition---Application for eviction of tenant---Payment of rent---Procedure---Ejectment petition was filed on 27-3-2013 and rent was deposited on 30-3-2013 after institution of the same---Tenant neither followed the terms of tenancy agreement nor the provisions of S. 7(2) and (3) of the Punjab Rented Premises Act, 2009---Payment of accumulated rent could not be considered a proper payment---Tenant deposited the rent for the defaulted period but he could not take refuge by such deposit of rent nor that would cause prejudice to the right of the landlord---Tenant should have made a tender or deposited rent on refusal of landlord or his agent to collect the same after seeking permission from the court but no such steps were taken in the present case---Tenant had failed to point out any illegality, irregularity or infirmity in the impugned orders passed by the two courts below---Constitutional petition being devoid of any force was dismissed in limine and tenant was directed to handover the vacant possession of the shop to the landlord within a period of 45-days from passing of the order.

Messrs Mehran Distributors through proprietor and 2 others v. United Bank Limited through Engineering Division, Karachi and 2 others 2009 YLR 1024 rel.

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

----Ss. 7 & 20---Payment of rent---Procedure---Tenant should make a tender or deposit rent in the court on refusal of landlord or his agent to collect the same after seeking permission from the court.

M. Safdar Shaheen Pirzada for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 1100 #

2014 M L D 1100

[Lahore]

Before Muhammad Tariq Abbasi, J

NAZIR HUSSAIN---Petitioner

Versus

AMJAD HUSSAIN---Respondent

Civil Revision No. 1072 of 2009, decided on 26th November, 2013.

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

----Arts. 75, 76 & 77---Civil Procedure Code (V of 1908), O. XXXVII, Rr. 2 & 3 & O. XI, R. 14---Institution of summary suit on negotiable instrument---Production of secondary evidence---Scope---Contention of defendant was that impugned pronote was not against consideration but same was result of arbitration decision and both the parties had executed pronotes, receipts and agreement in favour of each other---Application of defendant for production of secondary evidence with regard to pronote, receipt and Iqrar Nama was accepted by the Trial Court---Validity---Defendant had fully described about the execution of pronote, receipt and agreement in his written statement---Application for production of secondary evidence was moved when such documents were denied by the possessor of the same---Defendant was to prove that such documents were executed in favour of each other through permissible modes---Defendant moved an application to summon the possessor of such documents who denied the possession of said documents---Documents must be proved by primary evidence except in the circumstances narrated in Art. 76 (a) & (c) of Qanun-e-Shahadat, 1984---Secondary evidence could be produced when original document was not in existence---If during evidence execution of documents in question and their afterward loss was not proved then secondary evidence would have no value---Impugned order had not prejudiced anyone and production of such documents would be helpful for the Trial Court for just conclusion---Revision was dismissed in circumstances.

Sagheer Ahmad Bhatti for Petitioner.

Nadeem Ahmad Tarar and Malik Muhammad Siddique Kamboh for Respondents.

Date of hearing: 26th November, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 1113 #

2014 M L D 1113

[Lahore]

Before Rauf Ahmad Sheikh, J

MUHAMMAD TAJ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, TAXILA and 3 others---Respondents

Writ Petition No.562 of 2013, decided on 4th March, 2013.

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

----S. 15---Qanun-e-Shahadat (10 of 1984), Art.115---Constitution of Pakistan, Art.199---Constitutional petition---Eviction of tenant---Relationship of landlord and tenant---Denial of, by tenant---Estoppel, principle of---Applicability---Scope---Tenant had taken the possession of rented premises through a duly executed rent note in favour of the landlord---Tenant was estopped from denying the title of the person from whom he obtained the immovable property on rent.

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

----Ss. 15(b) & 24(4)---Constitution of Pakistan, Art.199---Constitutional petition---Eviction of tenant---Default in payment of rent---Special Judge directed the tenant to deposit arrears and monthly rent---Order of eviction was passed due to non-compliance of the order of Special Judge---Effect---Tenant was under obligation to deposit the arrears and monthly rent, and tenant became defaulter in case of non-compliance of the order of Special Judge---Order passed by the Special Judge did not suffer from any illegality or infirmity---Constitutional petition was dismissed.

Malik Hamid Mehmood Khan for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 1127 #

2014 M L D 1127

[Lahore]

Before M. Sohail Iqbal Bhatti, J

GHULAM RASOOL and 2 others---Petitioners

Versus

MANSAB KHAN and 2 others---Respondents

Civil Revision No.657-D of 2012, decided on 19th November, 2013.

Civil Procedure Code (V of 1908) ---

----O. XLI, R. 27---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Production of additional evidence in Appellate Court---Scope---Suit was dismissed against which appeal along with application for production of additional evidence was filed---Said application was dismissed by the Appellate Court---Validity---Pedigree table which was sought to be produced in evidence was not included in the list of reliance and same was produced during the course of appeal---Said document was prepared on 2-8-2001---Delay of more than nine years could not rule out the fabrication of such document---Provisions of O.XLI, R.27, C.P.C. was negative in language with regard to production of additional evidence in the Appellate Court---Plaintiffs had not applied to the Trial Court for production of said pedigree table---Appellate Court had rightly dismissed the application for production of additional evidence---Revision was dismissed in limine.

Muhammad Aslam Qureshi for Petitioners.

MLD 2014 LAHORE HIGH COURT LAHORE 1137 #

2014 M L D 1137

[Lahore]

Before Ali Baqar Najafi, J

SAIRA ANJUM and 2 others---Petitioners

Versus

RIZWAN RIAZ SAIGAL and 2 others---Respondents

Writ Petition No.19120 of 2013, heard on 11th September, 2013.

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

----Ss. 12 & 25---Constitution of Pakistan, Art. 199---Constitutional petition---Interim custody of minors to the father during summer vacations---Propriety---Guardian Court settled a monthly schedule of meeting between the minors and their father---Subsequently Guardian Court permitted the custody of minor to the father for four additional days during summer vacations subject to surety bonds---Validity---Schedule of meeting of minor with the father during the summer vacation was a reasonable and just requirement of law through which the father could show his love and affection for the minor---In the backdrop of the type of education the minors received in an urban society, they could not develop their emotional attachment with the father if they were not permitted to live with him during the vacation period---Order passed by Guardian Court was neither illegal nor defective---Constitutional petition was dismissed accordingly.

Saima Ahmad v. Tanvir Ahmed and others 2009 SCMR 1062 distinguished.

Bilal Bashir Mian for Petitioners.

Farhad Ali Shah for Respondents.

Date of hearing: 11th September, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 1148 #

2014 M L D 1148

[Lahore]

Before Shezada Mazhar, J

IFTIKHAR AHMED---Petitioner

Versus

ZAHID HUSSAIN and 10 others---Respondents

Civil Revision No.85 of 2013, decided on 30th October, 2013.

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

----O. XLI, R. 27---Punjab Pre-emption Act (IX of 1991), S. 6---Production of additional evidence in Appellate Court---Requirements---pre-emption suit was dismissed against which appeal was filed wherein application for additional evidence was moved---Contention of plaintiff was that documents required to be produced as additional evidence were necessary for proper adjudication of the lis---Said application was dismissed by the Appellate Court---Validity---Proper opportunity to lead evidence was afforded to the plaintiff by the Trial Court---No application for additional evidence was filed during the trial and plaintiff woke up from a deep slumber after a considerable period---Receipts of acknowledgement due were not allowed to be produced on record by the Trial Court---Plaintiff had knowledge that said receipts of acknowledgement due had not been placed on record---No efforts were made to bring the same on record as exhibits---Receipts of acknowledgement due could not be placed on record by the plaintiff as same were to be placed on record by the postman---Application for additional evidence could not be allowed on flimsy grounds---Provisions with regard to additional evidence were not intended to allow a litigant to patch-up the weak parts of his case and fill up omissions in the court of appeal---Additional evidence to be adduced should be that same had a direct and important bearing on the main issue in the case---Such powers to grant permission to adduce additional evidence ought to be exercised very sparingly---No illegality, perversity or infirmity in the impugned order had been pointed out by the plaintiff---Revision was dismissed in circumstances.

The Secretary to the Government of West Pakistan, Communication and Works Department and The Advisor, Town Planning v. Gulzar Muhammad PLD 1969 SC 60 rel.

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

----O. XLI, R. 27---Production of evidence in appellate court---Grounds---Additional evidence could be produced on the grounds that the court from whose decree appeal was preferred had refused to admit evidence which ought to have been admitted or the Appellate Court required any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause.

Munir Ahmad Kiyani for Petitioner.

Raja Mehfooz Ali Satti for Respondents.

MLD 2014 LAHORE HIGH COURT LAHORE 1168 #

2014 M L D 1168

[Lahore]

Before Amin-ud-Din Khan, J

NAZIR AHMAD and another---Petitioners

Versus

REHMAT ALI through Legal Heirs and others---Respondents

Civil Revision No.2891 of 2004, decided on 8th October, 2013.

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

---S. 13---Talb-i-Ishhad, performance of---Requirements----Contiguity, proof of---Scope---Plaintiffs had produced copy of Aks Shajra in the statement of their counsel for proving contiguity---Pre-emptors were bound to produce Patwari Halqa to prove correctness of said document that same was in accordance with the original record available with him---Patwari was able to make statement as to which Khasra owned by the plaintiffs was contiguous to the suit property---Without undergoing such process plaintiffs could not be declared owners of the adjacent land---Plaintiffs, in circumstances, had failed to establish their right of pre-emption on the basis of contiguous property owned by them with the suit property---Plaintiffs had failed to prove service of notice of Talb-i-Ishhad or refusal of the same upon all the defendants as original envelop sending the said notice or acknowledgement due had not been produced on record---Proof of Talb-i-Ishhad upon each of the defendants was pre-requisite for filing a suit for pre-emption---Pre-emption suit was not competent if plaintiffs had failed to prove notice of Talb-i-Ishhad against any one of the defendants---Production of postman for proving service or refusal of notice of Talb-i-Ishhad through registered post acknowledgement was necessary---Plaintiffs had failed to prove notice of Talb-i-Ishhad against one of the defendants---Findings recorded by the courts below with regard to proving of notice of Talb-i-Ishhad were not sustainable---Revision was dismissed in circumstances.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 and Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762 rel.

Raees Khan and others v. Mst. Naseeb Khatoon 2006 SCMR 1836 distinguished.

Abdul Wahid Chaudhary for Petitioners.

Nemo for Respondents.

MLD 2014 LAHORE HIGH COURT LAHORE 1179 #

2014 M L D 1179

[Lahore]

Before Amin-ud-Din Khan, J

Mst. KANEEZ BEGUM---Petitioner

Versus

MUHAMMAD ASGHAR and others---Respondents

Civil Revision No.2484 of 2004, heard on 20th February, 2013.

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

----S. 13---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---When the receipt of sending notice of Talb-i-Ishaad had not been produced and the registered letter did not contain acknowledgment due, then, it was not a substantial compliance of S. 13 of the Punjab Pre-emption Act, 1991, with regard to sending notice under registered acknowledgment due---For proving Talb-i-Muwathibat, it was basic duty of the plaintiffs to plead and prove the exact time, date and place of gaining knowledge of the sale and then to plead and prove the making of jumping demand forthwith after gaining the knowledge---If the time, date and place was not pleaded or proved through evidence, the plaintiffs could not prove the jumping demand because first they had to prove the gaining of knowledge at specific place, time and date---Pleadings could not be used as evidence for proving the specific time, date and place, the statements of the plaintiffs and their witnesses were relevant---Announcement of exercise of right of pre-emption was a personal act of every plaintiff, if announced that could be proved if he appeared before the court himself or through attorney.

Muhammad Javaid Kasuri for Petitioner.

Mian Zulfiqar Ali for Respondents.

Date of hearing: 20th February, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 1192 #

2014 M L D 1192

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

BASHIR AHMAD---Petitioner

Versus

DISTRICT OFFICER (REVENUE), NAROWAL through Province of Punjab and 9 others---Respondents

Civil Revision No.92 of 2013, decided on 1st November, 2013.

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

----S. 11 & O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Res judicata, principle of---Applicability---Scope---Rejection of plaint without framing of issues---Effect---Mutation was attested on the basis of decree passed by a competent court of law and said decree was not challenged and had attained finality---Competent court passed a well reasoned decree and dispute of inheritance was resolved---Doctrine of res judicata had universal application and same was based on principle of public policy that one cause should not be tried for the second time and there must be an end of litigation---Subsequent suit could not be considered if it was hit by the doctrine of res judicata which could be decided at any stage of proceedings---Present suit had been filed on oblique motives which was hit by the principle of res judicata---Plaintiffs could not again agitate same matter which had already been decided---Both the courts below had rightly rejected the plaint---Concurrent findings were neither arbitrary nor fanciful or perverse for interference by the High Court---No illegality or material irregularity had been committed by the courts below---Revision was dismissed in limine.

Akram and 3 others v. Nazar Ali and others 2011 YLR 2969; Sanesra Star Screen Industries through Partner v. Jamia Masjid Eid Gah through Secretary-General Trustee and another 2009 CLC 67; Abdul Hadi and others v. Jami Masjid Eid Gah and another 2009 MLD 679 and Mst. Rabia Khatoon v. Abbas Ali and another 2013 YLR 736 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court was for correcting errors of law committed by subordinate court which was restricted and narrower.

2007 SCMR 236 and 2011 SCMR 762 rel.

Sh. Naveed Shahryar for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 1206 #

2014 M L D 1206

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. IQBAL BIBI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.1242 of 2009, decided on 17th April, 2013.

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

----Ss.5, Sched. & 11---Qanun-e-Shahadat (10 of 1984), Art.133---Constitution of Pakistan, Art.199---Constitutional petition---Family court decreed the suit without recording evidence of the parties---Effect---Affidavit without production of the deponent in the court and without giving an opportunity of cross-examination to the other side by the court would have no evidentiary value---Party against whom an affidavit was produced was entitled to cross examine the person who sworn the affidavit, about the contents thereof---If the deponent was not produced for cross-examination, his affidavit in such circumstances would loose all its force as probative piece of evidence and could not be acted upon---Constitutional petition was allowed, matter was remanded to the Family Court with direction to record evidence of parties and then decide the suit afresh in the light of evidence adduced by the parties.

Mst. Shehnaz Begum v. Muhammad Shafi and 3 others (PLD 2004 Lah. 290 rel.

Bilal Masood for Petitioner.

Respondent No.2 proceeded against ex-parte on 26-8-2010.

MLD 2014 LAHORE HIGH COURT LAHORE 1213 #

2014 M L D 1213

[Lahore]

Before Syed Iftikhar Hussain Shah, J

KHALID YAQOOB---Appellant

Versus

Mst. NASREEN AFTAB---Respondent

F.A.O. No. 357 of 2010, heard on 6th February, 2014.

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

----S. 17 (4) (b) (i) (6)---Application for ejectment of tenant---Bona fide personal need of landlady---Scope---Contention of tenant was that landlady sought eviction on the ground of personal need for the use of premises by her son---Eviction petition was accepted by the Rent Controller---Validity---Tenancy, terms and conditions of lease deed were in existence between the parties---Rent Controller had rightly held that amount which was lying with the landlady should be paid to the tenant at the time of vacation of premises---Landlord could apply for ejectment of tenant for his personal use and not for any member of family but in the present case landlady intended to convert the premises into restaurant and her son would look after the business on her behalf---Demised premises were required to the landlady for her own use who had prerogative to use the same in any manner she would like---Rights of tenant were protected under S. 17(6) of Cantonments Rent Restriction Act, 1963---Tenant might apply for an order directing the possession of premises be restored to him if landlord did not occupy the same within one month of date of obtaining its possession---Sufficient safeguard had been provided in the statute against the landlord getting possession of premises with mala fide intention---No infirmity or illegality had been pointed out in the impugned order which was passed in accordance with law---Appeal was dismissed in circumstances.

Mrs. Noor Jehan Bi v. Muhammad Yousaf 2002 SCMR 1933; Muhammad Inayat v. Saleh Muhammad 2001 SCMR 599; Mst. Bilquis Oadri v. Mst. Nishat Mushtaq 2010 SCMR 775; Ch. Akbar Hussain v. Mrs. Zehra Bai 2002 SCMR 789; Altaf Hussain v. Mst. Nuzhat un Nisa PLD 2000 SC 67; Umair Ahmed v. Muhammad Jameel 2011 YLR 82 and Mst. Firdous Sabir v. Haji Mushtaq Ahmed Pervaiz 1994 SCMR 355 ref.

Mrs. Noor Jehan Bi v. Muhammad Yousaf 2002 SCMR 1933; Muhammad Inayat v. Saleh Muhammad 2001 SCMR 599; Mst. Bilquis Oadri v. Mst. Nishat Mushtaq 2010 SCMR 775 and Ch. Akbar Hussain v. Mrs. Zehra Bai 2002 SCMR 789 rel.

Umair Ahmed v. Muhammad Jameel 2011 YLR 82 rel.

Muhammad Yasin Chaughtai for Appellant.

Najaf Muzzamal Khan for Respondent.

Date of hearing: 6th February, 2014.

MLD 2014 LAHORE HIGH COURT LAHORE 1223 #

2014 M L D 1223

[Lahore]

Before Abdul Sami Khan, J

BILAL---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.9833-B of 2013, decided on 5th August, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss. 392 & 411---Qanun-e-Shahadat (10 of 1984), Art. 22---Robbery , dishonestly receiving property stolen---Bail, grant of---Further inquiry---Non-holding of test identification parade---Delay in registration of F.I.R.---Implication through supplementary statement of complainant---Effect---Accused was not named in the F.I.R. and was involved in the case through supplementary statement of complainant recorded after four months and eighteen days of the occurrence, and that too without identifying any source---No test identification parade was conducted---Delay of fifteen (15) days in registration of F.I.R. had not been explained, which prima facie showed that F.I.R. had been recorded after due deliberations and consultations---Accused could not be denied bail only on the ground that some cash had been recovered from him---Accused was a previous non-convict---Investigation of the case was complete---Case was one of further inquiry---Accused was granted bail in circumstances.

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

----Ss. 161 & 497---Bail---Implication of accused based on supplementary statement of complainant recorded without disclosing any source of information----Effect---Such a supplementary statement had no value in the eyes of law.

1996 SCMR 511 rel.

----S. 497---Qanun-e-Shahadat (10 of 1984), Art. 22---Bail---Accused not named in the F.I.R.---Test identification parade, significance of---When accused was not named in the F.I.R., test identification parade became mandatory to establish identity of actual culprits---Test identification parade was not only a check against false implication but was a good piece of evidence against actual culprits.

1997 SCMR 971 rel.

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

----S. 497---Penal Code (XLV of 1860), S. 392-- Qanun-e-Shahadat (10 of 1984), Art. 22---Robbery---Bail---Test identification parade, holding of---Holding of test identification parade could not be dispensed with simply because accused, who allegedly committed the robbery, was subsequently found in possession of robbed goods---Illustration.

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

----Ss. 497 & 154---Bail, refusal of----Grounds---Registration of other cases against accused---Effect---Mere registration of (other) cases against accused was no ground to refuse bail, if otherwise the accused became entitled to concession of bail.

Rana Muhammad Nawaz for Petitioner.

Mian Imran Kaleem, Deputy Prosecutor General along with Iqbal S.I. for the State.

MLD 2014 LAHORE HIGH COURT LAHORE 1230 #

2014 M L D 1230

[Lahore]

Before Shahid Hameed Dar, J

ABDUL AZIZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.8252-B of 2013, decided on 10th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Ad interim pre-arrest bail, confirmation of---Taking oath on Holy Quran to prove innocence for purposes of bail---Scope---Husband/co-accused had divorced his wife---Nikah Registrar (accused), husband and his father (co-accused persons) were alleged to have tampered with the Nikahnama---Accused was 82 years of age and offered to take oath on the Holy Quran before the court to establish that he had not tampered with the Nikahnama in question---Although criminal matters could not be decided on basis of special oath of accused, yet his voluntariness in such terms to take oath, opened the matter to a serious question, whether or not the Nikahnama had ever been tampered with by the accused---Wife had filed a suit in the Family Court for maintenance and return of dowry articles on the strength of her Nikahnama, but she did not raise any plea in her suit regarding any interpolation in the Nikahnama and believed it as a genuine document, having not been doctored by anyone---Complainant's sister had been divorced, which might be a reason for him to involve the accused and co-accused persons in the present case---Co-accused persons had already been granted pre-arrest bail by the Trial Court, and in such a situation there was no option with the High Court but to allow bail to accused---Ad interim pre-arrest bail already granted to accused was confirmed in circumstances.

Rana Zulfiqar Ali Khan for Petitioner.

Mrs. Muqadass Tahira, Additional Prosecutor General Punjab and Nawaz S.I. for the State.

Tabassam Pervaiz Cheema for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 1237 #

2014 M L D 1237

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD NAWAZ and others---Petitioners

Versus

NAWAB DIN and others---Respondents

Civil Revision No.2544 of 2000, heard on 28th November, 2012.

Specific Relief Act (I of 1877)---

----S.42---Qanun-e-Shahadat (10 of 1984), Art. 64---Civil Procedure Code (V of 1908), O.XLI, R.27---Production of additional evidence---Scope---Suit for declaration of title---Inheritance---Plaintiff's sought declaration to the effect that they were the legal heirs of the original deceased owner of the suit property, along with the defendants, and were entitled to a share in the deceased's property---Suit was dismissed concurrently---Validity---Plaintiffs had made application under O.XLI, R.27, C.P.C. to place on record the passport of the original owner of the suit property, and it was clear that the entries on said passport had been subsequently made---Said documents were inadmissible at the belated stage as the same were not offered at trial stage or the first appellate stage---Oral evidence regarding proof of the plaintiffs' relationship with the deceased predecessor-in-interest of the defendants had not been established---Plaintiffs in accordance with Art. 64 of the Qanun-e-Shahadat, 1984 had not produced the witnesses who were personally known them and the witnesses were not of the area in which the predecessor resided---One witness was the material uncle of the plaintiffs while the other was also an interest witness and their statements, thus, could not be relied upon---No documentary evidence had been produced by the plaintiffs and they were not parties to the previous round of litigation in relation to the suit property---No illegality was found in the findings of the courts below---Revision was dismissed.

Muhammad Zaheer Butt for Petitioners.

Syed Kazim Ali Bukhari for Respondents.

Date of hearing: 28th November, 2012.

MLD 2014 LAHORE HIGH COURT LAHORE 1249 #

2014 M L D 1249

[Lahore]

Before Amin-ud-Din Khan and Shahid Waheed, JJ

ABDUL SATTAR---Appellant

Versus

MUHAMMAD RAFI and others---Respondents

R.F.A. No.732 of 2012, decided on 20th January, 2014.

Limitation Act (IX of 1908)---

----Ss. 5 & 14---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Appeal---Determination of form of Appeal---Good faith---Condonation of delay---Scope---Applicant had not explained the delay after order of return of memorandum of appeal till filing of same before the High Court---Conduct of applicant was negligent in filing of appeal---Value of suit property for the purpose of court fee and jurisdiction was Rs. 3,150,000--No doubt or complication to determine the forum of appeal existed in the present case---Sections 5 & 14 of Limitation Act, 1908 for condonation of delay would be applicable if applicant was prosecuting his case with due diligence---Time consumed in wrong forum could not be condoned under S. 5 of Limitation Act, 1908 as applicant had failed to show that he prosecuted his remedy in good faith---Delay in the present case was on account of applicant's own negligence and not due to the act of court---Application for condonation of delay along with appeal were dismissed in circumstances.

Karamat Ullah and 3 others v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892 rel.

Ijaz Mehmood Chaudhary for Appellant/Applicant.

MLD 2014 LAHORE HIGH COURT LAHORE 1253 #

2014 M L D 1253

[Lahore]

Before Shoaib Saeed, J

Messrs MEHMOOD TEXTILE MILLS LTD. through General Manager Finance---Petitioner

Versus

MULTAN ELECTRIC POWER COMPANY (MEPCO) through C.E.O.---Respondent

Writ Petition No.14493 of 2012, decided on 16th January, 2014.

Constitution of Pakistan---

----Art.199---Constitutional petition---Electrical power company---Overdue payment---Stoppage of payment due to audit objection---Scope---Petitioner/electric supply company supplier under agreement with Multan Electric Power Company (MEPCO), had supplied electricity but the amount/payment due on account of supply of electricity was not released---MEPCO informed the petitioner/electric supplier that its payments were withheld on account of audit objections---Contention of the petitioner/electric supplier was that audit objection was internal affair of MEPCO and payment could not be denied on this ground---Validity---In view of Revised Power Generation Agreement, MEPCO was bound to make payments against invoices, submitted for the relevant months---Respondent/MEPCO had admitted that payments were withheld due to audit objection, which was a matter between MEPCO and its audit department---MEPCO was directed by High Court to release the long overdue withheld payment of petitioner/ electric supplier along with prescribed mark-up---Constitutional petition was accepted.

WAPDA through Chairman and 3 others v. Fazal Karim and 5 others 2008 YLR 308 and Water and Power Development Authority and others v. Umaid Khan 1988 CLC 501 ref.

Malik Kashif Rafiq Rajwana for Petitioner.

Rao Muhammad Iqbal for Respondents.

MLD 2014 LAHORE HIGH COURT LAHORE 1267 #

2014 M L D 1267

[Lahore]

Before Shahid Jamil Khan, J

GHULAM SARWAR KHAN---Petitioner

Versus

TARIQ KHATTAK---Respondent

Civil Revision No.272 of 2014, decided on 25th March 2014.

Civil Procedure Code (V of 1908)---

----S. 24---Specific Relief Act (I of 1877), S. 54---Suit for permanent injunction---Transfer of case---Bias in Judge---Scope---Plaintiff filed application for transfer of suit which was dismissed by the District Judge---Contention of plaintiff was that he had lost faith in the Trial Court as court was extending lenient view in favour of defendant---Validity---Plaintiff wanted to linger on the matter and instead of producing evidence he had been filing different applications---No arbitrariness was found in exercise of discretion by the District Judge---District Judge was administrative head of lower judiciary and management and assignment of cases was his sole prerogative---Interference into his functions on flimsy grounds would shatter the confidence of lower judiciary---Revisional jurisdiction in favour of a litigant who had misused the process of law could not be exercised---Revision was dismissed in limine.

Attaullah alias Billa and others v. Muhammad Ilyas and others 2004 SCMR 830 rel.

Muhammad Atif Farzauq Raja for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 1275 #

2014 M L D 1275

[Lahore]

Before Ijaz ul Ahsan and Mrs. Ayesha A. Malik, JJ

Malik MUNIR AHMED KHAN and others---Appellants

Versus

MUHAMMAD IJAZ TAHIR and others---Respondents

I.C.A. No.353 of 2013 in Writ Petition No.21215 of 2012, decided on 10th June, 2013.

(a) Constitution of Pakistan---

----Art. 199----Law Reforms Ordinance (XII of 1972) S. 3----Intra court appeal---Constitutional petition filed by respondent was disposed of by the High Court after coming to the conclusion that the matter related to a management dispute between the parties and could not be adjudicated upon by the High Court in its constitutional jurisdiction---High Court, however, directed the sum of money deposited by appellant, who was respondent in the constitutional petition, may be released to the respondent (the petitioner in the constitutional petition) if he obtained relief from competent forum, failing which the amount should be refunded to the appellant---Contention of the appellant was that since the High Court had come to the conclusion that it could not adjudicate upon a management dispute in its constitutional jurisdiction, the petition should have been dismissed instead of providing an opportunity to the respondent to approach a competent forum/court within 30 days---Validity----Appellant had not denied that there was a management dispute between the parties and the fact that the appellant agreed voluntarily to deposit the sum with the Deputy Registrar High Court by itself showed that the appellant recognized the claim of the respondent to some extent and had agreed to work towards an out of court settlement----Amount in question was deposited to retain the benefits for the Hajj quota as well as to establish bona fides and provide a basis and incentive for the parties to resolve the matter---High Court, in exercise of its constitutional jurisdiction, was not only a court of law but also a court of equity and could not have closed its eyes to the fact that where was a dispute which needed to be resolved and even if the management dispute could not be resolved in exercise of constitutional jurisdiction, both parties should be given a fair chance to approach the courts of competent jurisdiction to not only resolve their management dispute but also to determine the date of the amount deposited with the Deputy Registrar by way of security---Impugned order was just and fair through which while maintaining status quo relating to the amount, parties had been given a fair chance to approach a court of the competent jurisdiction to settle their management dispute in a lawful manner----Intra-court appeal was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199----Constitutional jurisdiction of High Court----Scope---High Court in exercise of its constitutional jurisdiction was not only a court of law but also a court of equity.

Muhammad Salman Masood for Appellant.

MLD 2014 LAHORE HIGH COURT LAHORE 1284 #

2014 M L D 1284

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD IKRAM and 2 others---Petitioners

Versus

BAHA-UD-DIN ZAKARIYA UNIVERSITY through Vice-Chancellor and 5 others---Respondents

Writ Petitions Nos.9959, 6964, 7016 and 7132 of 2013, decided on 7th October, 2013.

Constitution of Pakistan---

----Art.199---Constitutional petition---Educational Institution---Admission of students in the University with the connivance of its official---Contention of students was that their admission was cancelled by the University against the rules---Validity---Students themselves had allowed to be defrauded by an individual act of official working in the University---Petitioners might proceed against such criminal act of the official---Private arrangement between students and official of University would not create any right in their favour to get something which was not according to their entitlement---None of petitioners had obtained marks with the required merits and through some fraudulent means they had shown their admission---Petitioners had no right to continue with their such ill-gotten gains---Such wrong could not be perpetuated---No fundamental right had been infringed by the act of University in cancelling the ill-gotten admission---Constitutional petition was dismissed in circumstances.

Khawaja Qaisar Butt for Petitioners (in Writ Petition No.7016 of 2013).

Shakeel Javaid Chaudhry for Petitioners (in Writ Petition No.6964 of 2013).

Muhammad Aamir Khan Bhutta for Petitioner (in Writ Petition No.7132 of 2013).

Malik Muhammad Tariq Rajwana for Respondents University.

MLD 2014 LAHORE HIGH COURT LAHORE 1289 #

2014 M L D 1289

[Lahore]

Before Miss Aalia Neelum, J

Mst. SALLA---Petitioner

Versus

DISTRICT POLICE OFFICER, SARGODHA and 7 others---Respondents

Writ Petition No.28334 of 2013, decided on 12th February, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan, Art.199---Constitutional petition---Allegation of police torture to son of petitioner---Order of Justice of Peace for registration of case---Petition for setting aside said order---Petitioner had prayed for setting aside order, whereby Justice of Peace had directed that on receipt of report of judicial inquiry; and that of re-examination of dead body by way of exhumation, complainant would be at liberty to file private complaint regarding alleged occurrence---Application of the petitioner for registration of a criminal case against respondents/Police Officials, was dismissed---Validity---Medical examination of son of the petitioner regarding alleged Police torture was not conducted---Petitioner had also not made any effort for getting her said son medically examined---Facts and circumstances had shown that the petitioner wanted to involve the Police Officials in the case of her son's murder just to save skin of her other son, against whom criminal cases were registered---Petitioner had failed to point out any illegality or irregularity in the impugned order---Impugned order of the Justice a Peace, not calling for any interference, petition being without merits, was dismissed, in circumstances.

Mehar Ahmad Bakhsh Bharwana for Petitioner.

Ashfaq Ahmad Kharal, A.A.-G. and Safdar Ali, S.I. along with record.

MLD 2014 LAHORE HIGH COURT LAHORE 1300 #

2014 M L D 1300

[Lahore]

Before Muhammad Tariq Abbasi, J

MUHAMMAD TAJ and others---Petitioners

Versus

MUHAMMAD NAWAZ---Respondent

Civil Revision No.241-D of 2009, heard on 7th May, 2014.

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

----Ss. 6 & 13---Suit for pre-emption---Shafi-Sharik, Shafi Khalit and Shafi Jar--- Talbs---Proof---Requireinents/essentials--- Talb-e-Muwathibat and Talb-e-Ishhad were pre-requisites for filing suit for' pre-emption---Specific mention of time, date and place of Talb-e-Muwathibat in plaint as well as notice of Talb-e-Ishhad was mandatory---Pre-emptor did not mention either in plaint or notice of Talb-e-Ishhad the place where he received information of sale of suit land---No proof of sending any notice to defendant was brought on record of Trial Court---Notice of Talb-e-Ishhad was not proved which was fatal to the suit---Pre-emptor claimed that notice had been sent to defendants but they did not receive the same---Pre-emptor was bound to get the postman examined even if service of notice had been admitted--Pre-emptor failed to perform his obligation---Courts below failed to appreciate evidence by ignoring material contradiction regarding pre-emptor's knowledge of sale---Revision was allowed---Impugned judgments were set aside---Suit was dismissed.

Muhammad Ali and 7 others v. Humaira Fatima and 2 others 2013 SCMR 178; Munawar Hussain and others v. Afaq Ahmed 2013 SCMR 721 and Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 rel.

Mumtaz Ali Khan for Petitioners.

Muhammad Ijaz Chaudhry for Respondent.

Date of hearing: 7th May, 2014.

MLD 2014 LAHORE HIGH COURT LAHORE 1308 #

2014 M L D 1308

[Lahore]

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

JAVED IQBAL---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Home Secretary and another---Respondents

Writ Petition No.1023 of 2014, decided on 11th March, 2014.

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

----S. 11EE & Fourth Schedule---Penal Code (XLV of 1860), S.188---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner's name was listed to the Fourth Schedule to the Anti-Terrorism Act, 1997 once again, after High Court had directed the authorities to delete his name after the expiry of previous enlistment---Validity---Prosecution produced a copy of F.I.R. under S.188, P.P.C. alleging that petitioner was still an activist of a banned organization since his mother's last rites were attended by some other activists---Allegations in the said F.I.R. could not impose any liability on petitioner under S.188, P.P.C.---No fresh material was available against petitioner to necessitate relisting his name to the Fourth Schedule---Liberty of a man could not be curtailed on lame excuses---Courts being custodians of law, had to jealously guard the fundamental rights of citizens---Relisting of petitioner to the Fourth Schedule to the Anti-Terrorism Act, 1997 was illegal in circumstances---Petition was allowed.

Arif Mehmood Rana for Petitioner.

Ch. Muhammad Shabbir Gujjar, A.A.-G. with Irfan Ali Chheena, Section Officer, Home Department and Anwar, S.I. for Respondent.

MLD 2014 LAHORE HIGH COURT LAHORE 1320 #

2014 M L D 1320

[Lahore]

Before Faisal Zaman Khan, J

MUSARAT RAEES alias MUSARAT GULL---Petitioner

Versus

MUSHTAQ AHMED and another---Respondents

Civil Revision No.3331 of 2011, decided on 10th April, 2014.

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

----S. 13--Qanun-e-Shahadat (10 of 1984), Art. 129---General Clauses Act (X of 1897), S. 27---Talb-i-Ishhad, performance of---Scope---Preemptor was bound to prove the issuance and receipt/refusal of notices by producing cogent and confidence inspiring evidence---Presumption attached under Art. 129 of Qanun-e-Shahadat, 1984 read with S. 27 of General Clauses Act, 1897 was rebuttable---Onus would shift on the plaintiff who was relying on notices to prove the service of same when defendants had denied such service on oath unless there was other available evidence about such service---Pre-emptor was bound to prove acknowledgement-due and produce postman which was a sine qua non to prove notice of Talb-i-Ishhad---Plaintiff had failed to prove notice of Talb-i-Ishhad which was mandatory for establishing her right of preemption---Revision was dismissed in limine.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762; Abdul Khan v Ramzano Bibi PLD 2013 SC 193 and Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 rel.

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

----S. 13---Talb-i-Ishhad---Meaning---Talb-i-Ishhad was sending of notice in writing attested by two truthful witnesses to the vendee under registered cover acknowledgement-due within two weeks of making of Talb-i-Muwathibat.

Allah Wasaya Malik for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 1330 #

2014 M L D 1330

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD YOUSAF MALIK---Petitioner

Versus

MUHAMMAD SULEMAN DOGAR and 2 others--Respondents

Writ Petition No.6129 of 2013, heard on 13th March, 2014.

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

----Ss. 6, Civil Procedure Code (V of 1908), O. XIII, R.2 & O.XLI, R.27---Constitution of Pakistan, Art.199---Constitutional petition---Suit for pre-emption---Affirmative evidence of the petitioner/pre-emptor was recorded---After recording of evidence of vendee/respondent, pre-emptor made a statement that he did not want to produce evidence in rebuttal---Application for production of additional evidence of Patwari was filed by pre-emptor after making said statement, which was dismissed by the Trial Court---Revision filed by the pre-emptor was also dismissed---Pre-emptor did not produce copy of complete Jamanbandies containing complete khasra numbers of the khewat and stated that "inadvertently the patwari could not be produced as a witness---Effect---Courts below concurrently held that said reason was not a sufficient ground for non-production of evidence, as opportunity was granted to the pre-emptor for production of evidence in rebuttal, which was refused by him making a categoric statement---Filing of application for additional evidence was held not to be warranted by law---Recording of statement of patwari would not be helpful for the pre-emptor unless complete Jamanbandies containing complete Khasra numbers of the Khewat were produced---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199---Punjab Pre-emption Act (IX of 1991), S.6---Constitutional jurisdiction---Order of revisional court challenged in constitutional petition---Scope---Re visional order arising out of civil litigation could not be challenged in constitutional jurisdiction except if the litigant could show that the orders impugned in the constitutional petition were without jurisdiction---No such defect had been claimed in the constitutional petition---When the court while passing the orders had exercised the jurisdiction vested in it by law, such orders could not be set aside in exercise of constitutional jurisdiction---Constitutional petition was dismissed.

Abdul Majeed Chaudhary, for Petitioner.

Saeed-uz-Zafar Khawaja for Respondent.

Date of hearing: 13th March, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 1346 #

2014 M L D 1346

[Lahore]

Before Shahid Waheed, J

MUHAMMAD MANSHA and another---Appellants

Versus

MUHAMMAD NAWAZ---Respondent

F.A.O. No.4 of 2012, decided on 13th March, 2014.

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

----S. 5---Civil Procedure Code (V of 1908), O. VII, R. 11---Right of pre-emption---Cancellation of mutation relating to sale of property---Rejection of plaint---Scope---Contention of defendants was that due to cancellation of mutation the property had been reverted to the original owner---Application for rejection of plaint was accepted by the Trial Court but same was dismissed by the Appellate Court---Validity---Impugned mutation had been cancelled and cause of action to file a suit had ceased to exist as right of pre-emption would arise in case of sale of immovable property---No right of pre-emption would exist if there was no sale of immovable property---Right of pre-emption was not a right of re-purchase but same was a right of substitution---Right to pre-empt the sale would extinguish if sale or contract of sale had ceased to exist---Cancellation or revocation of sale would terminate right of pre-emption as pre-emptor in order to succeed had to establish such right on the day of sale, on the day of filing a suit and it should continue till the day of decree---Plaintiff had not disclosed the time of making of Talb-i-Muwathibat and such omission was not curable and plaint was liable to be rejected---Trial Court had rightly rejected the plaint under O. VII, R. 11, C.P.C.---Impugned judgment passed by the Appellate Court was set aside whereas that of Trial Court was restored---Appeal was accepted in circumstances.

Mian Pir Muhammad and others v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Haqnawaz v. Muhammad Kabir 2009 SCMR 630 and Muhammad Ali and 7 others v. Humaira Fatima and 2 others 2013 SCMR 178 rel.

Syed Muhammad Shah for Appellant

Rana Dildar Amanat for Respondent.

Date of hearing. 13th March, 2014

MLD 2014 LAHORE HIGH COURT LAHORE 1358 #

2014 M L D 1358

[Lahore]

Before Shoaib Saeed, J

IMRANA SHABBIR---Petitioner

Versus

VICE CHANCELLOR, BAHA-UL-DIN ZAKRIYA UNIVERSITY, MULTAN and 5 others---Respondents

Writ Petition No.11706 of 2013, decided on 5th December, 2013.

Constitution of Pakistan---

---Art. 199---Constitutional petition---Educational Institution---Admission in M. Sc. Biochemistry, basic qualification being B.Sc. only---Candidate having additional qualification of B.Ed---Effect---Contention of University was that candidate was having additional qualification of B.Ed. and she was not eligible for the admission---Validity---Candidate was having the qualification of B.Sc. with B.Ed---Criteria for admission in M.Sc. Biochemistry was fulfilled by the petitioner as she had passed B.Sc. examination with requisite subjects---Additional qualification of B.Ed. could not be bar for admission in M. Sc. Biochemistry---Prospectus mentioned minimum qualification but did not place any embargo with regard to additional qualification which the student was holding---University calculated marks in the relevant subjects and placed the candidate on higher position in the list vis-à-vis other students already admitted and had joined the session---Petitioner was therefore eligible for admission in M. Sc. Biochemistry---Constitutional petition was accepted and University was directed to admit the petitioner in accordance with law.

Abdul Salam Alvi for Petitioner.

Malik Muhammad Tariq Rajwana, for Respondents/BZU.

Mr. Haqnawaz, Lecturer B.Z.U.

MLD 2014 LAHORE HIGH COURT LAHORE 1364 #

2014 M L D 1364

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD AZAM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.2977 of 2012/BWP, decided on 20th November, 2013.

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

----O. XVIII, R.1---Qanun-e-Shahadat (10 of 1984), Arts.74, 76 & 78---Constitution of Pakistan, Art.199---Suit for partition---Proof of document---Application of defendant to produce secondary evidence was dismissed by lower courts---Validity---Under O.XVIII, R.1, C.P.C. the party on whom onus to prove a particular issue had been placed, had the right to begin and complete evidence on such issue whereafter the other party could produce his evidence in rebuttal---Defendant did not cross-examine the plaintiff's witness whose evidence had been recorded 5 years ago---Plaintiff's evidence was being recorded, defendant could produce his evidence after completion of plaintiff's evidence---Where law required an act to be done in a particular way, that act had to be done in that particular way---Witness could not be confronted with certified copies of a document without comparing such copies with the original document---Bank had no record of the documents in question---No link of the person sought to be produced as secondary evidence with the predecessor in interest of plaintiff was shown---Where scribe of a document was not available had died his signature could be proved by producing any other person who was acquainted with signature/handwriting of the deceased---Defendant could produce any person in evidence with permission of the court if name of such person had not been mentioned in the list of witnesses on his turn---Constitutional petition was dismissed.

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

----Witness could not be confronted with certified copies of a document without comparing such copies with the original document.

----Where scribe of a document was not available (had died) his signatures could be proved by producing any other person who was acquainted with signature/handwriting of the deceased.

(d) Administration of Justice---

----When law required an act to be done in a particular manner, that act had to be done in that particular manner.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

Abdul Majeed Bhatti for Petitioner.

Mian Ahmad Nadeem Arshad for Respondents Nos. 3-A to 3-G.

MLD 2014 LAHORE HIGH COURT LAHORE 1374 #

2014 M L D 1374

[Lahore]

Before Abdus Sattar Asghar, J

MUHAMMAD ANWAR and another---Petitioners

Versus

DISTRICT OFFICER (REVENUE)/DISTRICT COLLECTOR, SARGODHA and 3 others---Respondents

Writ Petition No.13144 of 2012, decided on 10th March, 2014.

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

----Ss. 32 & 34---Constitution of Pakistan, Arts.10-A & 199---Constitutional petition---Maintainability---Ejectment order---Show cause notice---Impugned orders of re-entry were passed without giving opportunity of hearing to the petitioner---Validity---Collector was required to probe in the matter in accordance with the principles of natural justice---Impugned orders passed without notice and without providing opportunity of hearing was void and no sanction could be attached to the superstructure based on it---Impugned orders passed in violation of the fundamental rights of due process and fair trial , therefore amenable by invoking constitutional jurisdiction of High Court---Impugned orders were set aside---Constitutional petition was allowed.

Malik Amjad Pervaiz for Petitioners.

Ms. Asma Hamid, Assistant Advocate General, Punjab with Mr. Tariq Mehmood, District Collector, Sargodha and Sana Ullah, Naib Tehsildar Sargodha for Respondents.

Date of hearing: 10th March, 2014.

MLD 2014 LAHORE HIGH COURT LAHORE 1388 #

2014 M L D 1388

[Lahore]

Before Mahmood Ahmed Bhatti, J

DILDAR HUSSAIN alias DIBAR---Petitioner

Versus

JUDGE FAMILY COURT, SUB-DIVISIONAL COURTS, TEHSIL CHICHAWATNI and another---Respondents

Writ Petition No.14503 of 2013, decided on 17th March, 2014.

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

---Ss. 5, Sched & 17---Civil Procedure Code (V of 1908), O.VI, R.17---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for jactitation of marriage---Amendment in the written statement---Scope---Wife had denied the existence of her marriage with the defendant---Conflicting claims made by the parties to the suit had already been crystallized into their pleadings---No elaboration of facts in the pleadings was required---Parties had yet to prove their respective pleas by adducing evidence---Detail of documents on which the case of a party rested need not spell out from the pleadings---Only material facts were to be alleged in the pleadings whether suit was civil or family one---Provisions of O. VI, R. 17, C.P.C. would not be applicable to the family suits except Ss. 10 & 11 of C.P.C.---Constitutional petition was dismissed in circumstances.

Shaban Ali v. Mst. Zainaba and 6 others 2012 CLC 1403 and Nasim Begum v. Farah Absar and 7 others 2012 CLC 1776 distinguished.

Aftab Hussain Malik for Petitioner.

M. Saddique Bhatti for Respondent No.2.

MLD 2014 LAHORE HIGH COURT LAHORE 1395 #

2014 M L D 1395

[Lahore]

Before Atir Mahmood, J

ALI MUBIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.6684 of 2009, decided on 25th February, 2014.

West Pakistan Family Court Act (XXV of 1964)---

----Ss.10(4) & 5, Sched---Constitution of Pakistan, Art.199---Constitutional petition---Execution of decree for recovery of dower amount---Dissolution of marriage on the basis of khula---Scope---Contention of husband was that wife was required to relinquish her claim of dower--Validity---Decree for recovery of dower was passed in favour of wife and during pendency of appeal marriage was dissolved on the basis of khula without fixation of any consideration for khula---Amount of deferred dower would become due to be paid to the wife at the time of dissolution of marriage or at the time when husband died---Husband would not be entitled to receive anything back given by him to his wife if he divorced her--Wife would have to give something in lieu of her release if she wanted to desert her husband--Family Court was bound to restore dower received by the wife to the husband while passing decree for dissolution of marriage on the basis of khula---Wife could seek dissolution of marriage on the basis of khula and she would have to pay back what she had received from her husband if he did not relinquish the same and no upper limit had been fixed by the Holy Quran for consideration of khula---Wife had obtained decree for dissolution of marriage on the basis of khula and she could not claim amount of deferred dower as same could only be paid if divorce was given by the husband or he died---Impugned judgments and decree for recovery of dower would become redundant and in-executable which were set aside---Constitution petition was accepted in circumstances.

Mst. Khrushid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Muhabbat Hussain v. Mst. Naseem Akhtar and others 1992 PSC 1034 and Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi PLD 1959 (Writ Petition) Lah. 566 ref.

Verse No.229 of Surah Baqar and saying of Holy Prophet (peace be upon him) rel.

Abdul Khaliq Safrani for Petitioner.

Mian Subah Sadiq Wattoo for Respondent.

Date of hearing: 25th February, 2014.

MLD 2014 LAHORE HIGH COURT LAHORE 1413 #

2014 M L D 1413

[Lahore]

Before Sadaqat Ali Khan, J

MUHAMMAD ISMAIL---Appellate

Versus

The STATE and others---Respondents

Criminal Appeal No.180 of 2010, decided on 18th December, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 417(2-A), 403 & 248---Penal Code (XLV of 1860), Ss.337-A(iv) & 34---Causing Shajjah-i-Munaqqilah, common intention---Appeal against acquittal---Double jeopardy---Complainant, initially got registered F.I.R. against respondents/accused persons for causing injuries to him and his brother---Complainant being dissatisfied with the investigation of the Investigating Officer filed private complaint against accused persons in the court of Magistrate---Challan had been submitted in the F.I.R. case---State case and the private complaint, both were consolidated by the Trial Court and charge was framed---After framing of the charge, evidence was recorded, whereafter complainant made a statement for withdrawal of private complaint---Trial Court, granted permission to withdraw case and acquitted accused persons---No person would be liable to be tried again for the same offence, nor on the same facts after acquittal while such acquittal remained in force; as S.403, Cr.P.C. contemplated a situation where a person had once tried by a court of competent jurisdiction and acquitted he could not be tried again for the same offence, nor for any other offence based on similar facts---Criminal charge once having been adjudicated upon by a competent court and that adjudication was final, whether it ended in acquittal or conviction---Complainant having withdrawn his private complaint after recording of the prosecution evidence and accused were acquitted in view of S.248, Cr.P.C., they could not be tried in State case in view of S.403, Cr.P.C. being double jeopardy---Accused could not be tried a second time for the same offence in presence of the acquittal, as acquittal would bar the trial of the acquitted accused in accordance to the provision of subsection (1) of S.403, Cr.P.C.---Impugned order of the Trial Court was quite legal warranting no interference.

2005 MLD 1859; PLD 1987 Lah. 245; 1993 PCr.LJ 576 and 2011 PCr.LJ 936 ref.

Mian Muhammad Tayyab Wattu for Appellant.

Muhammad Saleem Faiz for Respondent.

Mr. Khalid Pervaiz Uppal, learned D.P.G. for the State.

Date of hearing: 18th January, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 1428 #

2014 M L D 1428

[Lahore]

Before Muhammad Tariq Abbasi, J

MUZAMIL HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.63 of 2014, heard on 5th March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 239---Penal Code (XLV of 1860), Ss.302, 148 & 149---Qatl-e-amd, rioting, common object---Joint trial---Criminal case was registered against accused and other six co-accused---One of said co-accused was proclaimed offender, and charge against accused and other five co-accused was framed---Trial continued and during the same substantial prosecution evidence was recorded---Proclaimed offender, thereafter was arrested; and challaned but Trial Court had separately charge-sheeted said co-accused and his five co-accused---Validity---Accused as well as his co-accused persons were involved in the case, and mandate of law on the subject was that they all should be charge-sheeted and tried together---As all accused persons were facing the charge for similar offence during same occurrence/transaction, as per provisions of S.239, Cr.P.C., joint trial was required---Impugned order passed by the court below was set aside, with direction to the Trial Court to carry on the joint trial of all accused who were available before it.

Ghulam Abbas Niazi v. Federation of Pakistan and others PLD 2009 SC 866 rel.

Mudassar Altaf Qureshi for Petitioner.

Hassan Mehmood Khan Tareen for the State.

Tahir Mehmood for Respondent No. 2.

Date of hearing: 5th March, 2014.

MLD 2014 LAHORE HIGH COURT LAHORE 1439 #

2014 M L D 1439

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

ABDUL AZEEM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.2401 of 2013, decided on 18th March, 2014.

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

----S. 25---Constitution of Pakistan, Art. 199---Constitutional petition---Application for custody of minor---Father filed application for custody of minor son on the ground that he could provide best health and education to him as compared to the mother---Application for custody of minor was dismissed concurrently---Validity---Father did not meet the minor son from the time of separation---Application for custody of minor by father was moved subsequent to the suit filed by the mother for maintenance allowance---Father had least interest in the welfare of minor and he had filed present petition just to avoid payment of maintenance allowance to the minor---Minor was living with his real mother since from his birth and she had not contracted second marriage for the sake of minor---Minor was enjoying good health and he could not be left in solitude or with his step mother as father remained outside the house for the whole day in pursuit of earning his livelihood---Step mother could not be given preference over real mother---Father was legally and morally bound to maintain the minor even he was residing with her mother---Mother could not be deprived of the custody of minor on the pretext of having limited sources---No illegality or irregularity had been pointed out in the impugned orders---Constitutional petition was dismissed in limine.

Arshad Ali Cohan for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 1451 #

2014 M L D 1451

[Lahore]

Before Muhammad Yawar Ali, J

Mst. SOBIA---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, LAHORE and 2 others---Respondents

Writ Petition No.6617 of 2013, decided on 29th May, 2013.

Criminal Procedure Code (V of 1898)---

----Ss.22-A & 22-B---Constitution of Pakistan, Art. 199---Constitutional petition---Ex-officio Justice of Peace had directed the S.H.O. concerned to record the statement of complainant/applicant under S.154, Cr.P.C., and proceed in the matter in accordance with law---Petitioner had impugned said order of Justice of Peace---Version of complainant as contained in his application filed under Ss.22-A, 22-B, Cr.P.C. had been found to be false and incorrect by S.H.O.---Complainant who was a proclaimed offender in an other criminal case against him, had filed application before Justice of Peace with mala fide intention and ulterior motive to counter a criminal case registered against him on the complaint of brother of the petitioner---Constitutional petition was allowed and Impugned order passed by Justice of Peace, in absence of the comments of S.H.O. concerned, was set aside, in circumstances.

Hammad Akbar Wallana for Petitioner.

M. Arif Raja, Addl. A.G. Hammad, Inspector and Arshad Ali, S.I. for Respondents Nos.1 and 2.

Syed Z.H. Jaffari for Respondent. 3.

MLD 2014 LAHORE HIGH COURT LAHORE 1466 #

2014 M L D 1466

[Lahore]

Before Sadaqat Ali Khan, J

SABIR ALI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 268 of 2014/BWP, decided on 16th January, 2014.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), S. 12---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for specific performance of contract---Application alleging fraud and misrepresentation---Requirements---Consent decree, setting aside of---Ingredients---Compromise statement---Scope---Contention of applicant was that Trial Court had not framed issues---Application for setting aside consent decree was dismissed concurrently---Validity---Applicant was identified by his counsel whose thumb impression as well as signature were also obtained on the margin of order sheet---Applicant had not stated that he did not engage his counsel and his counsel did not identify him while making the statement of compromise in the suit---No affidavit of counsel of applicant was annexed that he did not identify him at the time of recording statement of compromise nor any application against the said counsel was moved---No particulars or details of fraud and misrepresentation had been given in the application while challenging judicial proceedings---Judicial proceedings had presumption of truth and mere application not supported by any material would not warrant inquiry or investigation in each case---Trial Court had to see whether the facts and circumstances of the case would require further probe into the allegations or not---Trial Court should frame issues and record evidence of the parties if further inquiry was required and if no inquiry was required then Trial Court was not bound to frame issues in each and every case---Consent decree did not suffer from fraud, misrepresentation or want of jurisdiction and same was not amenable to challenge under S. 12 (2), C.P.C.---No ingredient for challenging the validity of decree was available to the applicant---Orders passed by the courts below were neither perverse nor illegal---Constitutional petition was dismissed in limine.

Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation, Karachi PLD 2002 SC 500 rel.

Ghazanfar Ali Khan for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 1479 #

2014 M L D 1479

[Lahore]

Before Arshad Mahmood Tabassum, J

Mst. KANIZAN BEGUM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAYYAH and 2 others---Respondents

Writ Petition No.4704 of 2011, heard on 20th December, 2013.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dower i.e. landed property incorporated in column No. 16 of Nikah Nama---Jurisdiction of Family Court---Scope---Column No. 16 of Nikah Nama would pertain to the adjustment made between the parties in lieu of dower---Landed property mentioned in the Nikah Nama was given to the wife in lieu of dower and same was incorporated in column No. 16 of Nikah Nama---Said property had become personal property of the wife---Said matter was in exclusive jurisdiction of Family Court---Findings of Appellate Court were contrary to the facts and law---Judgment of Appellate Court was set aside and that of Family Court was restored---Constitutional petition was accepted in circumstances.

Allauddin Arshad v. Mst. Neelofar Tareen and 2 others 1984 CLC 3369; Muhammad Akram v. Mst. Hajra Bibi and 2 others PLD 2007 Lah. 515; Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 and Ghulam Muhammad v. Mst. Parveen Akhtar and others 2012 CLC 321 ref.

Rafique Ahmad Malik for Petitioner.

Muhammad Jamil Nazmai and Mujtaba Aziz for Respondents.

Date of hearing: 20th December, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 1487 #

2014 M L D 1487

[Lahore]

Before Amin-ud-Din Khan, J

Mst. SUGHRAN BIBI through L.Rs. and others---Petitioners

Versus

DEPUTY COMMISSIONER/DISTRICT COORDINATION OFFICER, DISTRICT COLLECTOR, FAISALABAD and others---Respondents

Writ Petition No.6700 of 1995, C.Ms. Nos.2669 of 2006 and 3968 to 3971 of 2013, decided on 18th December, 2013.

Pakistan Administration of Evacuee Property Rules, 1950---

----R. 12---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Laches, principle of---Applicability---Sanction of mutation of sale on the basis of order of Custodian of Evacuee Property---Limitation---Scope---Requirements for granting relief in the constitutional petition was that the orders annexed with the said petition be presumed as correct and validly issued by the competent forum---Evidence was required for deciding title of petitioners with regard to property in question which could not be done in constitutional jurisdiction as complicated questions of facts were involved---Neither the original nor copy of alleged sale deed was on record---Respondents had purchased suit property in the auction proceedings conducted by the Banking Court and after purchase a sale certificate had been issued and mutation had been sanctioned in their favour---Application for confirmation of transaction was to be made within 60 days to the Custodian of Evacuee Property---Petitioners filed application before the Deputy Custodian for confirmation of transaction long after the alleged accrual of cause of action---Custodian was bound to issue notice to the Rehabilitation Authorities of the area and affected persons but no such notice had been issued---Property in question had been exchanged with the other land---Respondents had denied from any record and issuance of any certified copy from the office of Custodian---Petitioners could not be permitted to prove such record by adducing witness as well as other evidence---Local commission could not be appointed for confirmation of possession of petitioners---Applications moved by the petitioners before the Deputy Custodian for declaring the suit property as non-evacuee or muslim property were in contradiction with the endorsement of his order---Order passed by the Custodian could not be termed as an order in the eye of law---Complete and full-fledged trial was required for resolving dispute between the parties which practice could not be adopted in constitutional jurisdiction---Constitutional petition had been filed after about 38 years from passing of alleged order and principle of laches was applicable in the present case---Petitioners had failed to prove the existence of order of Custodian and to prove that certified copies issued by the record keeper were of those orders---Constitutional petition was dismissed in circumstances.

Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Ata Ullah Malik v. The Custodian Evacuee Property West Pakistan and Karachi and others PLD 1964 SC 236; Amir Jamal and others v. Malik Zahoor ul Haq and others 2011 SCMR 1023 and Executive Engineer, Irrigation Department, Layyah Division and another v. Abdul Majeed and others 2006 SCMR 907 rel.

Muhammad Umar Riaz for Petitioner.

Muhammad Shafique for BOR.

Waqar Ahmad Chaudhary, A.A.-G.

S.M. Naseem for Respondent No.6.

Imran Muhammad Sarwar for Respondent No.8.

Dates of hearing: 3rd, 9th, 10th 17th and 18th December, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 1497 #

2014 M L D 1497

[Lahore]

Before Mahmood Ahmad Bhatti, J

MUHAMMAD SHOBAN---Petitioner

Versus

MUHAMMAD ASLAM and 11 others---Respondents

Civil Revision No.791-D of 2013, decided on 21st November, 2013.

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

----O. XVII, R. 3---Punjab Pre-emption Act (IX of 1991), S. 6---Pre-emption suit---Closure of evidence---Scope---Proper opportunities were granted to the plaintiff to produce evidence but he failed to produce the same---Evidence of plaintiff was rightly closed under O. XVII, R. 3, C.P.C.---No material irregularity was committed by the Trial Court---Judgments of both the courts below were well-reasoned---Revision was dismissed in circumstances.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could not interfere with the orders passed by the courts below unless same were found to have been passed without jurisdiction or in excess of jurisdiction conferred upon the court below or their judgments/orders suffered from material irregularities.

Ch. Shahid Mehmood Buttar for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 1502 #

2014 M L D 1502

[Lahore]

Before Shahid Hameed Dar, J

IRFAN alias FANI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.2112-B of 2014, decided on 4th March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 337-F (iv)---Qatl-e-amd, ghayr-jaifahmudihah---Bail, grant of---Further inquiry---Implication on basis of supplementary statement of complainant---Initially F.I.R. was lodged against unknown armed men---Subsequently, a day after the registration of F.I.R. complainant rendered his supplementary statement implicating the accused for firing at the ankle of the deceased, and co-accused for firing at the chest of deceased---Reason given by complainant for not implicating the accused and co-accused in the F.I.R. was that he was highly perturbed and in a confused state of mind, and could not nominate the accused and co-accused, despite knowing both of them---Question was as to why complainant required a period of 24 hours to compose and recollect himself---Evidentiary value of supplementary statement of complainant could be assessed by the Trial Court---Post-mortem examination report showed that injury on ankle of deceased, assigned to the accused, was ghayr-jaifahmudihah [S. 337-F(iv), P.P.C.], which was punishable with 5 years' imprisonment [thus it did not fall within the prohibitory clause of S. 497(1), Cr.P.C.]---Medical Officer had declared the injury on the chest of deceased, assigned to the co-accused, as the fatal injury---Case was one of further inquiry, and accused was granted bail accordingly.

Muhammad Tanveer Chaudhary for Petitioner.

Humayun Aslam, Deputy Prosecutor General Punjab for the State with Ilyas S.I.

MLD 2014 LAHORE HIGH COURT LAHORE 1513 #

2014 M L D 1513

[Lahore]

Before Miss Aalia Neelam, J

WAHEED AHMED SIDDIQUI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No.5465 of 2014, decided on 21st May, 2014.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Complaint, filing of---"Land grabbers"---Scope---Complainant filed complaint which was dismissed by the Trial Court without summoning the accused---Validity---Complainant and accused were real brothers---Date, time and year of commission of offence had not been mentioned in the complaint---No proof with regard to dispossession was adduced by the complainant---Non-mentioning of such facts in the complaint had created doubt with regard to applicability of provisions of Illegal Dispossession Act, 2005---Civil litigation was sub judice before the civil court---No proof was on record to the effect that accused were "land grabbers" or they belonged to "land mafia" or "Qabza group"---Dispute between the parties did not fall within the purview of Illegal Dispossession Act, 2005 which was of civil nature---Present case did not fall under S. 3 of Illegal Dispossession Act, 2005---Trial Court had rightly dismissed the complaint without summoning of accused---Constitutional petition was dismissed in circumstances.

Habib Ullah and others v. Abdul Manan and others 2012 SCMR 1533 rel.

Muhammad Khalid Chaudhary for Petitioner.

Ashfaq Ahmad Kharal, A.A.-G. for the State.

MLD 2014 LAHORE HIGH COURT LAHORE 1532 #

2014 M L D 1532

[Lahore]

Before Shezada Mazhar, J

Ex Sepoy MUHAMMAD ALAM and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petitions Nos.2064 and 2065 of 2007, 3549, 1110, 2534, 2537 and 2974 of 2009, 2176, 1048, 1469 and 1895 of 2010, 3190, 2775, and 2462 of 2011, 1152, 2777, 2778, 2469, 2412 to 2415 of 2012, decided on 23rd October, 2013.

Pakistan Army Act (XXXIX of 1952)---

----Ss. 2(1)(d)(iii), 59(4) & 133-B(3)---Constitution of Pakistan, Arts.8(3) & 199(1)(3)(5)---Constitutional petition---Maintainability---Conviction and sentence awarded to petitioners by Field General Court Martial (FGCM)---Petitioners' application for obtaining copies of proceedings of FGCM (i.e. copies of investigation reports, Court of Inquiry, summary of evidence along with charge sheets, convening order and committal warrants) for formulating grounds of appeal---Refusal of FGCM to provide such copies to petitioners---Validity---Petitioners except one civilian were members of Pakistan Army, thus, impugned order passed against them was not without jurisdiction or mala fide---Civilian petitioner was involved in anti-State/terrorist activities for seducing army personal, thus, he was liable to be tried and dealt with under S. 2(1)(d)(iii) of Pakistan Army Act read with S.59(4) thereof---Bar contained in Art. 199(3) of the Constitution would apply to cases of petitioners including civilian petitioner---Petitioners had been sentenced by FGCM, which had allegedly refused to provide them copies of its proceeding---High Court under Art. 199(1) of the Constitutional could direct only "person"---No writ could be issued against a Court or Tribunal established under law relating to Armed Forces of Pakistan for not falling within definition of "person"---High Court dismissed constitutional petitions for being not maintainable.

Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; The State v. Zia-ur-Rehman and others PLD 1973 SC 49; Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738; Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672; Muhammad Azhar Siddique and another v. Government of Punjab Through Chief Secretary Lahore and 18 others PLD 2010 Lah. 138; Federation of Pakistan through Secretary Defence and others v. Abdul Basit 2012 SCMR 1229; Federation of Pakistan and others v. Raja Muhammad Ishaque Qarar and another PLD 2007 SC 498; Mrs. Naheed Maqsood v. Federation of Pakistan through Secretary, Ministry of Interior Government of Pakistan, Islamabad and 4 others 1999 SCMR 2078 and Federal Government Ministry of Defence v. Seopy Liaqat Ali 2004 SCMR 1676 ref.

Ex.Lt.-Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary, Ministry of Defence Rawalpindi and 2 others PLD 2001 SC 549 and Mrs. Naheed Maqsood v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 4 others 1999 SCMR 2078 rel.

Col. (R) Muhammad Akram for Petitioner (in Writ Petitions Nos. 2064 and 2065 of 2007, 2534, 2537 and 3549 of 2009, 1469 and 1895 of 2010 and 2775 of 2011).

Nadeem Ahmed Shah for Petitioner (in Writ Petition No.3190 of 2011).

Sarkar Abbas, Standing Counsel with Col Shamshar Ali, JAG Department GHQ for Respondent.

MLD 2014 LAHORE HIGH COURT LAHORE 1547 #

2014 M L D 1547

[Lahore]

Before M. Sohail Iqbal Bhatti, J

MIRZA KHAN and others---Petitioners

Versus

Mst. AJAIB SULTAN and others---Respondents

Civil Revision No.524 of 2004, decided on 29th January, 2014.

Partition Act (IV of 1893)---

----S.4---Civil Procedure Code (V of 1908), S.47---Suit for partition---Execution of decree---Plea not raised during trial---Judgment debtors sought fresh determination of shares from Executing Court, on the plea that plaintiffs and their father had third brother who died issueless---Validity---Judgment debtors failed to take such plea either in written statement or during proceedings before decree, therefore, they could not take such plea during execution proceedings, as such plea had not been taken before Trial Court and decree had become final---Executing Court could not extend its jurisdiction to go behind decree except where decree was silent as to which property was subject matter of execution---Executing Court could look into judgment, in application under S.47, C.P.C., in order to find out that property brought for satisfaction of decree actually belonged to judgment debtors but could not entertain application relating to dispute which might change and alter terms of decree---Executing Court could neither go behind the decree nor it had jurisdiction to re-determine liability of any party or reconsider law for such purpose---High Court declined to interfere in the order and judgments passed by two courts below, as no jurisdictional error or material irregularity had been committed---Revision was dismissed in circumstances.

Rashid Ahmad through L.Rs. and others v. Nazar Hussain Malik and others 2013 YLR 1516 ref.

Rai Muhammad Riaz v. Ejaz Ahmad 2013 YLR 1890 distinguished.

M. Aslam Malik for Petitioners.

M. Safdar Samor for Respondents.

Date of hearing: 29th January, 2014.

MLD 2014 LAHORE HIGH COURT LAHORE 1561 #

2014 M L D 1561

[Lahore]

Before Shahid Hameed Dar, J

TARIQ SAEED---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.261 of 2002, heard on 5th March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 417(2-A)---Penal Code (XLV of 1860), S.302---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd, possessing illicit arms---Appeal against acquittal---Accused who was acquitted for the murder charge, requested for his acquittal in case under S.13 of Pakistan Arms Ordinance, 1965, which request was acceded to, and accused was also acquitted of the charge under S.13 of Pakistan Arms Ordinance, 1965---Validity---Facts relating to recovery of dagger, were inseparably stitched with story qua the murder of the deceased---Said dagger had not been recovered from the possession of accused, but Investigating Officer took it in his possession in absence of accused---Accused was implicated as an accused of murder case, and he was also booked in a separate case under the same F.I.R.---Witnesses of recovery of said dagger, who also deposed against accused in murder case, were disbelieved---Story of murder of the deceased and that of recovery of dagger both were disbelieved and accused acquitted---Case, depended a lot on the outcome of the murder case, in which accused was acquitted---Recovery of the dagger was not an independent circumstance, but it stood imbedded in murder case, in which accused was acquitted---Complainant had failed to file appeal within prescribed time-limit---Appeal was also liable to be dismissed on that score.

Malik Muhammad Ghafoor for Appellant.

Hamayun Aslam, Deputy Prosecutor General Punjab for the State.

Muhammad Asif Saeed and Abdul Rehman for Respondent No.2.

Date of hearing: 5th March, 2014.

MLD 2014 LAHORE HIGH COURT LAHORE 1564 #

2014 M L D 1564

[Lahore]

Before Faisal Zaman Khan, J

MUHAMMAD ISHAQ and 4 others---Petitioners

Versus

MUHAMMAD HAYAT through Legal Heirs and others---Respondents

Writ Petition No.8783 of 2010, heard on 23rd May, 2014.

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

----Ss. 161, 164 & 182---West Pakistan Land Revenue Rules, 1968, R.6-A---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Scope---Partition of joint khata by the Revenue Officer---Remand of case---Scope---Contention of applicants was that no subordinate functionary in the revenue hierarchy other than Board of Revenue was competent to remand a case---Validity---Revenue Courts while exercising powers under Ss. 161 & 164 of West Pakistan Land Revenue Act, 1967 could either "modify or reverse a previous order"---Said provisions did not preclude a court while reversing or modifying an order from remanding the case---Rider placed through R.6-A of West Pakistan Land Revenue Rules, 1968 was excessive as parent provisions did not restrict the exercise of a power whereas through the said rule an embargo had been placed on the powers of Appellate or Revisional Court---West Pakistan Land Revenue Rules, 1968 were made under S.182 of West Pakistan Land Revenue Act, 1967 in order to carry out the purpose of said Act and not to curtail the powers vested through the same---Rules should yield towards the Statute and latter should prevail in case of inconsistency between Statute and Rules framed there-under---No provision existed in West Pakistan Land Revenue Act, 1967 against the order of remand of a case by a court---Embargo placed through R.6-A of West Pakistan Land Revenue Rules, 1968 by restricting the powers of remand while reversing or modifying an order only in the Board of Revenue was an inconsistency and same could not be reconciled---West Pakistan Land Revenue Rules, 1968 would be given primacy when same were made way for West Pakistan Land Revenue Act, 1967---Decision erroneous on a point of law could be quashed under constitutional jurisdiction on the ground that same was in excess of jurisdiction---No bar existed with regard to exercise of constitutional jurisdiction by the High Court against an order passed in revisional jurisdiction---High Court had discretion to interfere where same was warranted---Impugned order was not passed on merits rather on technical ground of non-compliance of R.6-A of West Pakistan Land Revenue Rules, 1968 which was without jurisdiction and High Court could exercise discretion---Legal objection could have been raised at a subsequent stage---Constitutional petition was accepted and impugned order was set aside and case was remanded to Board of Revenue for decision afresh on merits.

Ghulam Mustafa Khan v. Member Board of Revenue and others 1996 MLD 954; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Ismail v. Member, Board of Revenue, Punjab, Lahore and 13 others 2000 YLR 295; Syed Qadar Dad and others v. Muhammad Afzal and others PLD 1997 SC 859; Ghulam Ahmad v. Member Board of Revenue, Punjab, Lahore 2010 CLC 1921; Osman Khan through Attorney v. Aisha Naz and 2 others 2010 CLC 475; Ms. Clare Bendicta Conville and others v. Mst. Sabahat Idrees and others 2009 SCMR 851; Qamar ud Din v. Muhammad Din and others PLD 2001 SC 518; Muslim Commercial Bank Limited through General Manager v. Muhammad Farooq Abid and another 2002 SCMR 1536 Muhammad Sami v. Additional District Judge, Sargodha Mr.Mehr Ghulam Farid Khan, 2. Civil Judge Ist Class, Sargodha, 3. Sh. Muhammad Ikram Ullah Khan 2007 SCMR 621 ref.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Ismail v. Member, Board of Revenue, Punjab, Lahore and 13 others 2000 YLR 295; Qamar ud Din v. Muhammad Din and others PLD 2001 SC 518; Suo Motu Case No.13 of 2007 PLD 2009 SC 217; Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemicals Industries (Pvt.) Ltd., Peshawar and others 2003 SCMR 370; Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806; Excise and Taxation Officer, Karachi and another v. Burmah Shell Storage and Distribution Company of Pakistan Limited and 5 others 1993 SCMR 328; Shahzada Khurram Nazir and another v. Province of Punjab through Secretary Industries, Punjab, Lahore and 4 others PLD 2011 Lah. 276; Utility Store Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Muhammad Hussain Munir v. Sikander PLD 1974 SC 139 and Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Decision erroneous on a point of law could be quashed under constitutional jurisdiction on the ground that same was in excess of jurisdiction.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Utility Store Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 and Muhammad Hussain Munir v. Sikander PLD 1974 SC 139 rel.

Malik Noor Muhammad Awan for Petitioners.

Mehdi Khan Chohan for Respondent No.1.

Anwaar Hussain, Assistant Advocate General for Respondents.

Date of hearing: 23rd May, 2014.

MLD 2014 LAHORE HIGH COURT LAHORE 1579 #

2014 M L D 1579

[Lahore]

Before Mahmood Ahmad Bhatti, J

MUHAMMAD SHAFI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and 3 others---Respondents

Writ Petition No.3717 of 2014, decided on 25th March, 2014.

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

----S. 12---Constitution of Pakistan, Art.199---Constitutional petition---Interim custody of two female minors aged 5 and 3-1/2 years was handed over to the mother of the minors by Guardian Judge---Two applications for the custody and guardianship of the minors were filed, one by the father and the other by the mother---Trading allegations were made against each other (mother and father) for having preference for the custody of minors---Petitioner/father had contracted second marriage which became a bone of contention---Applications were moved from both sides for interim custody---Petitioner father withdrew application to the extent of male minor aged 1-1/2 years on account of compromise---Family Court handed over the custody of the male minor to mother but dismissed her application for interim custody to the extent of two female minors---Ground taken by the Family Court was the dismissal of mother habeas corpus petition in that regard for non-prosecution---Order of Family Court was reversed by allowing the appeal of mother---Validity---Petitioner-father had contracted second marriage---Step-mother need not be tasked with the upbringing of the minor girls---Custody of the female children with mother was an established law---Tender ages of the minors and the custody of the male child willingly to mother also entitled her to have the interim custody of female minors---Siblings were to be brought up under the same roof in order to foster love and affection and the same would also be helpful for their mental health and growth---Welfare of minor would always be a paramount consideration---Constitutional petition was dismissed in limine.

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

----S. 12-A---Family Court/Guardian Court was required to decide the pending petitions within six months from the date of their institutions.

Muhammad Ghias ul Haqq Sheikh for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 1587 #

2014 M L D 1587

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

MATLOOB QADIR---Petitioner

Versus

MUJAHID SHAH and 5 others---Respondents

Criminal P.S.L.A. No.341 of 2010, decided on 10th April, 2014.

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

----Ss.440, 506, 148 & 149---Criminal Procedure Code (V of 1898), S.417(2)---Mischief committed after preparation made for causing death or hurt, criminal intimidation, rioting, common object---Petition for special leave to appeal against acquittal---Private complaint---"Mischief"---Ingredients---Civil litigation regarding ownership of disputed property was still pending---Possession of the property was continuously with accused party, and never remained with complainant---Complainant could not be deemed to be the owner of the property in issue, unless and until title of the same was finally decided by the competent court---Matter of ownership/title, in view of the pendency of civil litigation between the parties was yet to be finalized---Possession, previous or present and construction over the disputed property by accused party being admitted, it could not be declared that accused had committed the offence of "mischief" against the complainant---Most important ingredients to constitute the offence of "mischief", were; intention to cause wrongful loss or damage to the public or to any person; cause the destruction or change to destroy or diminish its value or utilities---Prosecution had failed to establish that new construction of building after demolishing the old one had caused any wrongful loss, or had caused any loss or damage to the complainant, especially when title dispute was pending before the appellate forum; that any change in the property had caused any destruction, or had diminished its value or affected it injuriously---No commission of offence under S.440, P.P.C. had been proved against accused persons---When continuous possession of accused persons was admitted over the place of alleged occurrence, then no question of commission of offence under Ss.148 & 149, P.P.C. would arise---Threat simpliciter, would not constitute the offence of criminal intimidation---None of the offences charged against accused persons, had been proved by the prosecution---Valid and convincing reasons had been given by the Trial Court for acquittal of accused persons---Said reasons being neither perverse nor arbitrary or wrongful, impugned judgment of acquittal would not call for any interference by High Court.

Tayyaba Younus v. Muhammad Ehsan 2010 SCMR 1403 ref.

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

----S. 417(2)---When a court of competent jurisdiction, would acquit an accused of the charge after regular trial, then double presumption of innocence would always be attached with the order of acquittal; and strong and exceptional reasons were required to set aside the order of acquittal.

Iftikhar Hussain and others v. The State and others 2004 SCMR 1185 ref.

M. Baleegh uz Zaman for Petitioner.

MLD 2014 LAHORE HIGH COURT LAHORE 1615 #

2014 M L D 1615

[Lahore]

Before Sh. Najam-ul-Hassan, J

SHAHZAD ASHRAF---Petitioner

Versus

AKBAR SHAH and others---Respondents

Criminal Miscellaneous No.428-BC of 2014, decided on 11th February, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.395, 397 & 411---Dacoity, robbery or dacoity, with attempt to cause death or grievous hurt, dishonestly receiving stolen property---Bail, cancellation of---Accused during investigation had admitted occurrence of the case---Accused was duly identified by the complainant and other witnesses of the F.I.R., in identification parade---Accused had no ground to entitle him to be released on bail---Accused during investigation got recovered gold ornaments, which were later on identified by the witnesses to be stolen property of the occurrence---No reason for the complainant and for other witnesses to falsely implicate accused in the case, had been brought on record---In absence of any other ground, accused was not entitled to bail in the matter---Bail granting order was recalled---Accused was ordered to be taken in custody and be kept in judicial lock up to face trial.

Ch. Abdul Ghaffar for Petitioner.

Rana Tassawar Ali Khan, D.P.G. and Muhammad Afzal, S.I. for the State.

Ijaz ahmad Janjua for Respondent No.1.

MLD 2014 LAHORE HIGH COURT LAHORE 1635 #

2014 M L D 1635

[Lahore]

Before Atir Mahmood, J

FAREED GUL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 3 others---Respondents

Writ Petition No.11358 of 2013, heard on 21st November, 2013.

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

----S.151---Inherent jurisdiction---Consolidating of suits---Principle---No provision for consolidation of civil suits has been provided in Civil Procedure Code, 1908---Court may consolidate different suits to avoid conflict of judgments provided parties in the suits are the same and cause of action is common.

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

----S.372---Civil Procedure Code (V of 1908), S.115---Constitution of Pakistan, Art. 199---Constitutional petition---Succession certificate---Successive applications---Scope---Son and widow of deceased filed two separate applications for issuance of succession certificates---During pendency of proceedings for issuance of succession certificates, three applications were filed one for consolidating both applications for issuance of succession certificates, second for providing details of business and third for impleading other business partners as party---All three applications were dismissed by Trial Court against which widow filed two revision applications before Lower Appellate Court out of which one was dismissed whereas the other was allowed---Validity---During pendency of first revision application, widow filed second revision application concealing the filing of earlier revision application, and such facts were not adverted to by Lower Appellate Court---Subsequent revision application was not maintainable in view of the earlier revision application filed by same party challenging the same judgment on same cause of action---Subsequent revision application against the same judgment attacking different findings of the same judgment which were not assailed in earlier revision application by widow was not maintainable---Lower Appellate Court in exercise of revisional jurisdiction was not justified to accept subsequent revision application filed by the widow---High Court set aside the order passed by Lower Appellate Court and subsequent revision application was dismissed---Petition was allowed accordingly.

Syed Muhammad Ali Gilani for Petitioner.

Muhammad Asghar Bhutta for Respondent No.2.

Ms. Riffat Zahra for Respondents Nos. 2 to 4.

Date of hearting: 21st November, 2013.

MLD 2014 LAHORE HIGH COURT LAHORE 1648 #

2014 M L D 1648

[Lahore]

Before Shah Khawar, J

MUHAMMAD ZEESHAN---Petitioner

Versus

VICE-CHANCELLOR, BAHAUDDIN ZAKARIYA UNIVERSITY MULTAN and another---Respondents

Writ Petition No.10933 of 2013, decided on 22nd May, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Using unfair means by examinee---Petitioner examinee was disqualified for taking examination for three years---High Court, under its constitutional jurisdiction did not interfere in the disciplinary matters of an institution---Noting and charge-sheet by the authorities reflected the connivance of the institution's staff---Examination branch of the Board had failed to maintain secrecy---Allegations against examinee were ambiguous and vague---Disqualification of examinee was modified from "three" years to "two" years and petition was disposed of accordingly.

Khursheed Ahmed Khan for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

MLD 2014 LAHORE HIGH COURT LAHORE 1664 #

2014 M L D 1664

[Lahore]

Before Mahmood Ahmad Bhatti, J

MUHAMMAD IRFAN---Petitioner

Versus

JUDGE FAMILY COURT, TAUNSA SHARIF and another---Respondents

Writ Petition No.13718 of 2013, decided on 12th May, 2014.

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

----Ss. 5, Sched. & 11(3)---Constitution of Pakistan, Art.199---Constitutional petition---Suit for jactitation of marriage---Closure of defendant's right to cross-examine plaintiff's witnesses---Validity---No mala fide was ascribed to defendant/petitioner for seeking adjournment on his behalf---Impugned order did not mention that defendant's counsel avoided or refused to cross-examine the witnesses in attendance---Right of cross-examination under subsection (3) of S.11 of the West Pakistan Family Courts Act, 1964 was very valuable right and same could not be taken away without compelling reasons for exercising discretion against a party---Defendant should have been allowed time to cross-examine the witnesses produced by plaintiff, especially when defendant's Counsel was in attendance on the date of impugned order which was sustainable---Petition was accepted---Impugned order was set aside---Parties were directed to appear before Trial Court---Defendant was given one/final opportunity to cross-examine the witnesses---Order accordingly.

Sardar Hameed Ullah Sikhani for Petitioner.

Malik Khuda Bakhsh Door for Respondents No.2.

MLD 2014 LAHORE HIGH COURT LAHORE 1676 #

2014 M L D 1676

[Lahore]

Before Amin-ud-Din Khan, J

GHULAM YASIN---Petitioner

Versus

MUHAMMAD NAWAZ and others---Respondents

Civil Revision No.14 of 2005, heard on 5th March, 2014.

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

----S. 12---Contract Act (IX of 1872), S. 2 (e) (h)---Suit for specific performance of contract---Agreement---Ingredients---Scope---Contention of defendant was that impugned agreement to sell did not bear the signatures of plaintiff---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Alleged agreement to sell did not contain the date of performance of the same and no separate receipt of payment of money had been produced---Impugned agreement to sell was allegedly signed by the defendant but no signature of plaintiff was available on the same---Signatures of son of plaintiff were available but there was no mention whether he was attorney or he had any power on behalf of his father to enter into an agreement to sell with the defendant---Local commission had assessed the value of suit property as Rs. 4,80,000 whereas under the agreement same had been mentioned as Rs. 22,000---Present suit had been filed after about 10 years of the alleged agreement to sell which was doubtful---Agreement to sell was signed by only one party and same could not be termed as an agreement under S. 2(e)(h) of Contract Act, 1872---Contract would come into existence upon acceptance of offer/proposal and to have an agreement there should be consideration for the promise---Both the parties to the agreement should agree for fulfilling the condition to such agreement for enforcement of the same in the future or performance of their part in the future and they should be able to file suit for specific performance on the basis of said agreement---When one of the parties had not signed the agreement then other party could not file suit for specific performance of said agreement against the party who had not signed the same---Ingredients of valid agreement were missing in the present case---Alleged agreement to sell was not an agreement in the eye of law---Findings recorded by the Appellate Court while decreeing the suit were against the law as well as evidence available on the file which were set aside with costs throughout---Revision was accepted in circumstances.

Mst. Nazeer Begum v. Syed Abid Hussain Shah and others PLD 2005 Lah. 419; Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 ;Mst. Barkat Bibi and others v. Muhammad Rafique and others 1990 SCMR 28 and Mst. Latifan Begum and another v. Nisar Ahmad 2001 YLR 701 ref.

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

----S.115---Revisional jurisdiction of High Court---Concurrent findings of fact by courts below---Scope---High Court while examining concurrent findings of fact recorded by courts below, in exercise of its revisional jurisdiction under section 115 C.P.C., has to attend reasons given by courts below in support of such findings and misreading, non-reading or perverse appreciation of evidence has to be discovered in reasoning of courts below to justify interference in exercise of its revisional jurisdiction.

Malik Ameer Muhammad Joyia for Petitioner.

Nemo for Respondents.

Date of hearing: 5th March, 2014.

MLD 2014 LAHORE HIGH COURT LAHORE 1683 #

2014 M L D 1683

[Lahore]

Before Umar Ata Bandial, C.J. and Shezada Mazhar, J

ZAHID BASHIR---Appellant

Versus

LIAQAT ALI CHISHTI and others---Respondents

I.C.As. Nos.424 and 53 of 2012, decided on 13th May, 2013.

Pakistan Red Crescent Society Act (XV of 1920)---

----S.8(1-D)---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Appointment of Chairman---Dispute was with regard to appointment of Chairman in exercise of powers under S. 8(1-D) of Pakistan Red Crescent Society Act, 1920---Validity---President of Society lacked authority to override executive or regulatory decisions of Provincial Managing Committee of the Society---Single Judge of High Court rightly declared that orders passed by President of the Society interfered with decisions and direct course of executive action determined by him were issued in excess of authority vested in him---President had authority to approach Managing Body of Federal level to highlight any complaint or grievance made with respect to conduct and actions of Provincial Managing Committee---In addition to availing any judicial remedy, President of Society had authority to approach Managing Body of the Society at Federal level for redress of grievances against executive decisions taken by Provincial Managing Committee---Intra-court appeal was disposed of accordingly.

Jahanzeb Khan Bharwana for Appellant.

Muhammad Ahsan Bhoon for Appellant (in C.M. No.3851 of 2012).

Muhammad Azhar Siddique and Waqar and A. Shaikh for Respondents Nos. 1, 2, 5 and 6 along with Brig. (R) M. Saleem, Secy. PRCS.

MLD 2014 LAHORE HIGH COURT LAHORE 1694 #

2014 M L D 1694

[Lahore]

Before Miss Aalia Neelum, J

Qari ABDUL SHAKOOR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and 3 others---Respondents

Writ Petition No.6211 of 2014, decided on 11th June, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), S.354---Constitution of Pakistan, Art. 199---Constitutional petition---Allegation of assault or criminal force to woman with intent to outrage her modesty---Powers and duties of Justice of Peace to issue directions for registration of F.I.R.---Scope---Allegations levelled by complainant were found to be baseless by Police during interrogation---Petitioner/proposed accused produced copy of F.I.R. registered by complainant against some other persons showed that she was in the habit of levelling (false) allegations of assault in order to resolve disputes---Application for registration of case was based on mala fide intention---Ex-officio Justice of Peace was duty bound to look into the matter minutely and peruse the comments filed by Police to discourage the practice of registration of cases on account of animosity---Each case had to be decided on its particular facts and circumstances---Ex-officio Justice of Peace was not supposed to exercise powers under Ss.22-A and 22-B, Cr.P.C. in a mechanical manner and pass order for registration of case blindly on false application---Remedy of filing private complaint before a competent court was available to complainant---Order of Ex-officio Justice of Peace was set aside---Petition was accepted.

Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 rel.

Malik Saboor Alam for Petitioner.

Ashfaq Ahmad Kharal, Assistant Advocate General with Muhammad Nawaz, A.S.-I. for the State.

Syed Ansar Abbas Rizvi for Respondent No.4.

MLD 2014 LAHORE HIGH COURT LAHORE 1718 #

2014 M L D 1718

[Lahore]

Before Sikandar Zulqarnain Saleem, J

MAHAK BIBI---Petitioner

Versus

ADDITIONAL SESSION JUDGE and 3 others---Respondents

Writ Petition No.6355 of 2014, decided on 14th May, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 491 & 561---Constitution of Pakistan, Art.199---Constitutional petition---Powers under S.491, Cr.P.C.---Scope---Additional Sessions Judge restrained petitioner/mother from removing minors from territorial jurisdiction of Tehsil---Validity---Scope of S.491, Cr.P.C. was not wide---Object of S.491, Cr.P.C. was to secure freedom and not to curtail liberty---If the persons (in illegal custody) was a minor, the court might make over his custody to the guardian who would deal with the minor in accordance with law but court could not place embargo (on the movement of minor or guardian) as such embargo would tantamount to curtail liberty which was not permissible under S.491, Cr.P.C.---By restraining movement of petitioner/mother and minors, Additional Sessions Judge interfered with the sphere of Guardian Court which was empowered to decide matter of final custody---Impugned order was set aside---Constitutional petition was accepted.

Malik Sajjad Haider for Petitioner.

2014 M L D 1781

[Lahore]

Before James Joseph, J

MUHAMMAD AFZAL alias JANI---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.11222-B of 2014, decided on 15th September 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 381-A & 411---Theft of motor vehicle, dishonestly receiving stolen property---Bail, grant of---Further inquiry---Implication through supplementary statement of complainant---Source of information not mentioned by complainant---Effect---Accused and co-accused were alleged to have committed theft of car belonging to the complainant and said car was also allegedly recovered from possession of the accused---Accused was not nominated in the F.I.R. and no direct evidence was available against him on the file---Accused was involved in the case through supplementary statement of complainant, without mentioning any source of information---Evidentiary value of such supplementary statement would be adjudged by the Trial Court after recording of evidence---Co-accused had already been allowed post-arrest bail by Trial Court---Although recovery had been effected from possession of accused but the same fell under S. 411, P.P.C. which entailed a maximum punishment of three years, and hence did not fall within the prohibitory clause of S. 497, Cr.P.C.---No useful purpose would be served by keeping accused behind bars for an indefinite period---Matter required further inquiry---Accused was admitted to post-arrest bail accordingly.

Tanveer Shah v. The State 2012 MLD 1742 ref.

Haris Azmat for Petitioner.

Rana Muhammad Shafique, D.P.G. and Shakeel A.S.-I. for the State.

Nemo for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 1792 #

2014 M L D 1792

[Lahore]

Before Mahmood Ahmad Bhatti, J

ZAFAR IQBAL AHMED and 2 others---Petitioners

Versus

The STATE and another ---Respondents

Criminal Miscellaneous No.1615-B of 2014, decided on 24th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.406---Criminal breach of trust---Anticipatory bail, grant of---Complainant and accused persons, were legal heirs of the deceased, who died issueless and they had made claim to the bequest left by the deceased---Three months' inordinate delay in reporting the matter to the Police, was a reflection on the case set up by the complainant---What was owned and left by the deceased by way of his legacy/bequest, could be ascertained after holding a full-fledged trial by a court of law and it would be too early to jump to the conclusion that accused persons were guilty of an offence under S.406, P.P.C.---Misappropriation of a joint property by another co-sharer, was a complex issue of law---Provisions of S.406, P.P.C. were not attracted to the facts and circumstances of the case---Civil liability was being turned into a criminal one, which furnished the basis of mala fides with which the prosecution had been launched---Ad interim pre-arrest bail granted to accused persons, was confirmed, in circumstances.

Muhammad Usman Sharif Khosa for Petitioners.

Shoukat Ali Ghouri, A.P.G. with Tariq Javed, S.I. for the State.

Rana Muhammad Asif Saeed for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 1804 #

2014 M L D 1804

[Lahore]

Before Muhammad Tariq Abbasi, J

ALTAF HUSSAIN and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 3129-B of 2014, decided on 3rd July, 2014.

Criminal Procedure Code (V of 1898)---

----Ss.497 (2) & 498---Penal Code (XLV of 1860), S.324---Attempt to commit Qatl-i-Amd---Pre-arrest bail, grant of---Further inquiry, case of---Medical and ocular evidence---Conflict---Accused as alleged to have caused injury by firing with 12 bore repeater gun, at left knee of complainant---During medical examination, no firearm injury to complainant was found rather an incised wound at the back of left leg of complainant was observed having been caused with sharp edged weapon---Effect---Pre-arrest bail could be granted to accused if his case was found to be of further inquiry, as no useful purpose would be served in sending accused behind bars for a few days---Pre-arrest bail was confirmed in circumstances.

Farhat Husain Shah and another v. The State and others 2010 SCMR 1986; Ghulam Mohi-ud-Din Shah v. Hafiz Muhammad Ramzan and others 2007 SCMR 1931 and Kh. Masood-ul-Hassan v. The State and another 2013 PCr.LJ 1420 rel.

Malik Imtiaz Haider Maitla for Petitioner.

Shaukat Ali Ghauri, Addl. P.G. Farrukh Durrani A.S.-I. for the State.

Mehr Mazhar Hussain Hiraj for the Complainant.

MLD 2014 LAHORE HIGH COURT LAHORE 1809 #

2014 M L D 1809

[Lahore]

Before Atir Mahmood, J

SHAFQAT IBRAR---Petitioner

Versus

JUDGE FAMILY COURT and another---Respondents

Writ Petition No.653 of 2013, decided on 30th May, 2014.

Civil Procedure Code (V of 1908)---

----S. 55---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suits for dowry articles and maintenance allowance of minors---Execution petitions---Re-arrest of judgment debtor---Trial Court decreed suits---Defendant was sent to civil prison for his failure to pay decretal amount in execution petition for recovery of dowry articles while execution petition for recovery of maintenance allowance remained pending---Defendant appeared before executing court in Police custody and refused to pay decretal amount in execution for recovery of maintenance allowance as well---After lapse of one year defendant was released but, thereafter, executing court sent the defendant to civil prison again for his failure to pay decretal amount in execution petition for maintenance allowance---Validity---Defendant was brought before court in execution petition for maintenance allowance while he was under arrest in civil prison for failure to pay decretal amount in execution petition for dowry articles---Executing Court should have made speaking orders in execution petition for maintenance allowance as defendant had been brought before the court in both execution petitions which had been in progress simultaneously---Omission of the executing court to pass a speaking order could not prejudice the rights of defendant who could not be vexed twice by sending to civil prison for more than one year which he had already served---Petition was accepted---Order of re-arrest of defendant was set aside.

Abdul Ghafoor Sheikh for Petitioner.

Ch. Sameed Ahmad Wains for Respondents.

Date of hearing: 21st April, 2014.

MLD 2014 LAHORE HIGH COURT LAHORE 1824 #

2014 M L D 1824

[Lahore]

Before M. Sohail Iqbal Bhatti, J

[Peshawar]

Before Mrs. Irshad Qaiser, J

KHUDADAD and others---Appellants

Versus

GHULAM AHMAD and others---Respondents

Civil Revision No.226 of 2010, decided on 18th July, 2013.

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

----O.XXIII, R.1 & O.VII, R.11---Specific Relief Act (I of 1877), S.8---Suit for possession of immovable property---Withdrawal of suit---Scope---Plaintiff filed suit wherein defendants moved application for rejection of plaint which was accepted by the Trial Court but Appellate Court remanded the case for decision on merit after recording evidence---Validity---Plaintiff filed suit after withdrawal of former suit with regard to same land which was mentioned in the previous suit---Subject matter and relief in both the suit were same---No permission to institute fresh suit was sought by the plaintiff and suit was simply dismissed as withdrawn---Plaintiff should be precluded from institution of fresh suit in respect of same subject matter or such part of claim---Appellate Court had not applied its conscious mind to the facts of the case and recorded its findings without appreciating the law applicable to the present case---Order passed by the Trial Court was legal, lawful and was based on the facts and circumstances of the case---Judgment and decree of the Appellate Court were based on non-reading and misreading of evidence and were without jurisdiction---Findings of the Appellate Court warranted interference by the High Court in its revisional jurisdiction---Revision petition was accepted and order of the Trial Court was maintained and that of the Appellate Court was set aside and plaint was rejected.

2013 SCMR 464 rel.

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

----O. XXIII, R. 1---Withdrawl of suit---Scope and object of O.XXIII, R.1, C.P.C.---Withdrawl of suit could be done at any time without the prior permission of the court---Plaintiff could withdraw his suit where he did not desire to institute a fresh suit and permission to withdraw the same was not necessary---Object of rule was to prevent the plaintiff from filing a fresh suit after having failed to conduct the first one with care and diligence---Plaintiff had the right to withdraw his suit whenever he desired but he could not file a fresh suit on the same subject matter unless permission was sought for filing the same.

Shafique Tanoli for Appellants.

Qazi Rashid Ahmad Arshad for Respondents.

Date of hearing: 18th July, 2013.

MLD 2014 PESHAWAR HIGH COURT 105 #

2014 M L D 105

[Peshawar]

Before Malik Manzoor Hussain and Ikramullah Khan, JJ

KHANAN---Petitioner

Versus

D.C.O., KOHAT and 5 others---Respondents

Writ Petition No.2144-P of 2013, decided on 7th August, 2013.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Arts. 199, 4, 9, 10 & 15---Constitutional petition---Arrest and detention of suspected person---Deputy Commissioner, on the report of police, issued preventive detention order of the petitioner---Impugned detention order was not supported by any material and no unlawful/anti social activities of the petitioner was provided---No previous history of involvement of petitioner in any offence was available in support of detention order---Substantial material should be placed by the Authority in the detention order to curb liberty and freedom of an individual---Authority was bound to show reasons and grounds while passing the said order---High Court was bound under its constitutional jurisdiction to scrutinize the material furnished by the detaining Authority for detention of any individual---Right of personal liberty of a citizen was to be guarded by the courts---Deputy Commissioner did not apply his independent judicious mind and passed the impugned order mechanically without considering the worth of material made available to him---Detention order in question amounted to curtailing the fundamentally guaranteed right of liberty of a citizen---Grounds of detention enumerated in the impugned order were vague which was passed on presumption and speculation---Deputy Commissioner was directed to be careful in future otherwise he could be burdened with fine to be paid from his pocket to the detenue---Constitutional petition was accepted.

Ismail v. The State 2010 SCMR 27; Muhammad Sharif v. The State PLD 2009 SC 709; Federation of Pakistan v. Mrs. Umatul Jalil Khawaja PLD 2003 SC 442 and Mst. Mizbah Tabbasum and 2 others v. Government of Punjab through Secretary Home Department 2007 PCr.LJ 1776 rel.

M. Amin Khattak Lachi for Petitioner.

Saadullah Jandoli for Respondents.

MLD 2014 PESHAWAR HIGH COURT 113 #

2014 M L D 113

[Peshawar]

Before Muhammad Daud Khan, J

Haji ABDUL HAMID KHAN---Petitioner

Versus

AMANULLAH JAN KHATTAK---Respondent

Civil Revision No.236-B of 2013, decided on 15th August, 2013.

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

----S. 42---Suit for declaration---Town Municipality---Auction of contract of collection of tax of "cattle fair"---Acceptance of plaintiff's highest bid by Town Municipal Officer, but approval of such contract by Secretary Local Council Board after increasing bid money unilaterally---Dismissal of suit by Trial Court upheld by Appellate Court---Validity---Record showed that Secretary had approved auction after enhancing bid money, but without notice to or hearing petitioner and without giving any reasons therefor---Terms and conditions for contracts of Cattle Fair for relevant year issued by Government and Board did not find mention that Board could enhance contract amount after finalization of bid by fall of hammer---Secretary Local Board, if had any discretion to enhance contract amount, could not do so without hearing petitioner and assigning valid reasons---Secretary Local Board could either accept or reject auction process, but could not enhance contract amount---No detrimental action against a person could be taken without any prior notice to him and without assigning any valid reasons---High Court set aside impugned judgments/decrees and decreed plaintiff's suit in circumstances.

(b) Natural justice, principles of---

----No detrimental action against a person could be taken without any prior notice to him and without assigning any valid reasons.

---Arbitrary exercise of discretion---Not permissible.

Zafar Ali Khan for Petitioner.

Faridullah Khan, D.A.G. for Respondent.

Date of hearing: 13th August, 2013.

MLD 2014 PESHAWAR HIGH COURT 127 #

2014 M L D 127

[Peshawar]

Before Assadullah Khan Chamkani, J

MUHAMMAD AKRAM alias MUHAMMAD IKRAM and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous (B.A.) No.276-M of 2013, decided on 30th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 452 & 34---Qatl-e-amd, house-trespass after preparation for hurt, assault or wrongful restraint, common intention---Bail, grant of---Further inquiry---Accused persons were charged by name in the F.I.R., but with no specific role---Occurrence took place at night time, and no direct evidence of murder of the deceased, was available on record---Recovery of two empties of .30 bore, and a charger containing six rounds of same bore, was effected from the place of occurrence after sixteen days of the occurrence; particularly, when the first Investigating Officer failed to secure them at first instance at the time of a spot inspection---Question of its concoction or otherwise, was to be resolved at the time of trial after recording statements of the prosecution witnesses---Bail was to be granted as a matter of right and not by way of any concession or grace in case of further inquiry---Life and liberty of a citizen was very precious and granted by Art.4 of the Constitution---Deeper appreciation of evidence and circumstances appearing in the case, were not permitted at bail stage; only tentative assessment was to be made---Where accused, would satisfy the court that reasonable grounds were available to believe that he was not guilty of such offence, then the court must release accused on bail---Accused was granted bail.

PLD 1989 SC 585; Munir v. The State 2002 MLD 712 and Yar Muhammad v. The State and another 2004 YLR 2230 rel.

Muhammad Saleem Mardak for Petitioners.

M. Raziq and Aziz Muhammad for the State/Respondents.

Date of hearing: 30th July, 2013.

MLD 2014 PESHAWAR HIGH COURT 141 #

2014 M L D 141

[Peshawar]

Before Abdul Latif Khan, J

GHULAM MUHAMMAD---Petitioner

Versus

ABDULLAH---Respondent

Civil Revision No.314-D of 2012, decided on 12th August, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements and mode---Informer had vital role in pre-emption case who was bound to depose about date, time and place of performance of Talb-i-Muwathibat---Omission to mention time by the informer in his statement would be fatal to the case---Informer had failed to mention the time of disclosing information to the plaintiff in his statement---Place instead of 'baithak' 'ghar' had been mentioned in his statement but same could not be taken into consideration as "baithak" was part and parcel of the house---Plaintiff had given details of talbs in his plaint with regard to date, time and place of performance of Talb-i-Muwathibat and deposed in support of his plaint but informer had not supported his version---Assertion made by the plaintiff with regard to performance of Talb-e-Muwathibat not proved by the informer---Plaintiff was bound by the statement given by his witness and he could not be allowed to resile from the statement of informer---Party producing a witness was bound by his statement given in the court---Courts below were right in holding non-proof of Talb-i-Muwathibat on behalf of plaintiff due to deficiency in his evidence with regard to time of performance of Talb-i-Muwathibat---Notices of Talb-i-Ishhad were in typed form already prepared and kept by the petition-writer which were against the provisions of S. 13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987---General statement had been typed leaving space for the names of parties, description of property and the names of witnesses which was against the mandate of law---After making Talb-i-Muwathibat plaintiff should make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses within two weeks under registered cover for confirmation of his intention to exercise right of pre-emption---Already typed notice of Talb-i-Ishhad did not fall within the ambit of "notice" in writing nor did it fulfil the requirements of S.13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987---Receipts for mailing of notices of Talb-i-Ishhad through registered envelopes acknowledge-due were not available on the file---Postman had not been produced in support of delivery of notices of Talb-i-Ishhad---Person entrusted with the delivery of notices of Talb-i-Ishhad had expired but no serious effort had been made by the plaintiff to prove that in fact delivery of notices of Talb-i-Ishhad was made in accordance with law---Revision was dismissed in circumstances.

PLD 2011 Pesh. 116; 2011 SCMR 762 and Munawar Hussain and others v. Afaq Ahmad 2013 SCMR 721 rel.

Rustam Khan Kundi for Petitioner.

Zainul Abadin for Respondent.

Date of hearing: 12th August, 2013.

MLD 2014 PESHAWAR HIGH COURT 155 #

2014 M L D 155

[Peshawar]

Before Lal Jan Khattak, J

ISLAM UD DIN and 8 others---Petitioners

Versus

ABDUL MAJEED and 14 others---Respondents

Civil Miscellaneous Application No.107 of 2013 in Civil Revision Petition No.200 of 2006, decided on 1st July, 2013.

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

---S. 114---Review---Scope---All points raised by the defendants in the review petition had been discussed in the judgment under review in the light of evidence---Petitioners had tried to re-open the entire case which they could not do keeping in view the very limited scope of review---Counsel for the defendants had not pointed out any error or mistake in the judgment of the High Court which could justify its review---Review petition was dismissed in circumstances.

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

----S. 114 & O. XLVII---Review---Scope---Review petition was to be entertained and decided to correct an error or mistake which was so apparent and resting on the surface of the judgment which being in contrast to a provision of law or was in total derogation to the evidence of the case---Review of a judgment necessitated correction of an error in a judgment which must be readily perceived and understood and which could cause injustice---Review could not be equated with re-hearing of a case.

Malik Muhammad Bashir for Petitioners.

Muhammad Ayaz Chaudhry for Respondents.

Date of hearing: 1st July, 2013.

MLD 2014 PESHAWAR HIGH COURT 212 #

2014 M L D 212

[Peshawar]

Before Ikramullah Khan, J

MUHAMMAD ZAHIR and 3 others---Petitioners

Versus

AMIR SALEH and 4 others---Respondents

Civil Revision No.988 of 2005, decided on 30th August, 2013.

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

---Ss. 60 & 61---Limitation Act (IX of 1908), Arts. 148 & 114, Ss. 20 & 28---Suit for possession through redemption---Limitation---Prescription---Scope---Contention of defendants was that they were owners in the suit land to the extent of their shares---Suit was dismissed concurrently---Validity---Suit land was under the possession of various owners and mortgagees---Period of limitation with regard to redemption of suit property would be reckoned from the first deed of mortgage---Suit of plaintiffs was within time---Defendants were usufructuary mortgagees of disputed land and they could not be accepted as owners of the same---Defendants never succeeded in decree for foreclosure or sale before the target date i.e. 31-8-1991---No decree could be passed after 31-08-1991 in favour of any person who claimed to have acquired the right of ownership through prescription or implication of law---When mortgagee was in possession of mortgage property and he received the usufruct then same should be deemed to be a payment of the mortgage money---Fresh period of limitation to be computed from the time when such payment was made---Period of limitation should be reckoned from the last transfer of right of mortgagee and not from the first creation of the usufructuary mortgage---New acquisition of right in the mortgaged property was an acknowledgement of liability with regard to the mortgaged property---Defendants had purchased rights of previous mortgagee and plaintiffs could not claim more than what had come in the possession of defendants---Impugned judgments of both the courts below were set aside and suit of plaintiffs was decreed.

Maqbool Ahmad v. Hakoomat-e-Pakistan 1991 SCMR 2063; Muhammad Iqbal and 17 others v. Ghaunsullah Khan and 17 others 2002 CLC 1533; Baidullah Jan v. Hawas Khan PLD 2002 Pesh. 92; Abdul Haq v. Ali Akbar 1998 CLC 129; Nawaz Ali Jan v. Nawabzada and others PLD 2003 SC 425 and Abdul Haq v. Ali Akbar 1999 SCMR 2531 rel.

Abdul Sattar Khan for Petitioners.

Jan Muhammad Khan and Pir Bakhsh Mehtah for Respondents.

Date of hearing: 30th August, 2013.

MLD 2014 PESHAWAR HIGH COURT 248 #

2014 M L D 248

[Peshawar]

Before Abdul Latif Khan, J

Mst. KHURSHID BEGUM and another---Petitioners

Versus

FAIZ MUHAMMAD and another---Respondents

Civil Revision No.54 of 2012, decided on 9th September, 2013.

Specific Relief Act (I of 1877)---

----S.42---Suit for possession---Constructed property---Jurisdiction of civil court---Scope---Petitioners/plaintiffs filed suit for possession of constructed property/house before civil court, which was decreed in favour of the plaintiffs---Appeal filed by defendants was accepted and judgment and decree passed by Trial Court was set aside on the ground that the jurisdiction for ejectment of tenant exclusively fell within the domain of revenue court and the civil court was barred to adjudicate the matter in dispute---Contention of the plaintiffs/petitioners was that civil court had exclusive jurisdiction to decide the suit for possession through devolution of constructed house, therefore the appellate court had wrongly set aside the judgment and decree passed by trial court---Validity---Proceedings for ejectment could only be filed before civil court in respect of constructed property, whereas ejectment of the tenant from agricultural property could be sought from revenue hierarchy---Petitioners/plaintiff had rightly filed their suit for possession through ejectment of tenant from suit property/house which had no nexus with the agricultural property---Property in dispute was in constructed nature in the shape of house and jurisdiction to adjudicate the issue exclusively lay with civil court---Impugned judgment and decree passed by appellate court was set aside---Revision petition was accepted.

Muhammad Waheed Anjum for Petitioners.

Malik Muhammad Asad for Respondents.

Date of hearing: 9th September, 2013.

MLD 2014 PESHAWAR HIGH COURT 272 #

2014 M L D 272

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

HASHIM ALI and others---Petitioners

Versus

DIRECTOR GENERAL and others---Respondents

Civil Revision No.843 of 2011, decided on 17th June, 2013.

(a) Cantonments Act (II of 1924)---

----S. 273---Specific Relief Act (I of 1877), S. 42---Civil Procedure Code (V of 1908), O. VI, R. 7---Suit for declaration, mandatory and permanent injunction---Notice under S.273, Cantonments Act, 1924---Departure from pleadings---Effect---Plaintiffs filed suit seeking declaration to the effect that they were lawful and legal allottees of the shops in question---Suit was dismissed concurrently---Validity---No notice as required under S. 273 of the Cantonments Act, 1924 had been served upon the defendants---Plaintiffs had filed amended plaint to avoid such legal obligation to seek mandatory and permanent injunction in lieu of declaration---Such act was departure from pleadings and inconsistent with the previous pleadings and prayer which were not permissible under the law---Civil court had no jurisdiction to entertain the suit of the plaintiffs---Impugned judgments and decrees of courts below were well founded which were passed on proper appreciation of evidence and legal provisions of law---Courts below had neither exercised discretion not vested in it by law nor had failed to exercise jurisdiction so vested by law nor had acted illegally or with material irregularity---Suit was rightly dismissed by the courts below---Revision was dismissed in circumstances.

(b) Cantonments Act (II of 1924)---

----S. 273---Notice---Object---Object of notice under S. 273 of the Cantonments Act, 1924 was to provide a course or mechanism to a person who was aggrieved of an act done or purported to be done for speedy redressal of his grievance at departmental level---In case the grievance was not attended to within two months from the date of service of notice on the Board, member or servant of the Board, then act complained of could be brought to the court---Such course was available where the act complained of was performed or proposed to be carried out fell within the four corners of the Cantonments Act, 1924 or of any rules or bye-laws made thereunder.

Salim Shah Hoti for Petitioners.

Syed Hamad Ali Shah for Respondents.

Date of hearing; 17th June, 2013.

MLD 2014 PESHAWAR HIGH COURT 300 #

2014 M L D 300

[Peshawar]

Before Abdul Latif Khan, J

ABDUL HAKEEM KHAN---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Miscellaneous Quashment Petition No.158-D of 2012, decided on 24th June, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 190(2), 265-D & Chap. XXII (Ss.261 to 265)---Penal Code (XLV of 1860), Ss.324 & 34---Attempt to commit qatl-e-amd, common intention---Petition for quashment of order---Petitioner had prayed for quashing of order of the Sessions Judge, vide which registration of case under S.324/34, P.P.C. was held doubtful; and record was returned to the petitioner for applying correct section of law---Present case was forwarded by the Magistrate in compliance to provisions of S.190(2), Cr.P.C. to the Court of Session under Chap. XXII, Cr.P.C.---If after perusing the Police report, complaint, and all other documents and statements filed by the prosecution, the Court of Session was of the opinion that there was ground for proceeding with the trial of accused; the court would frame in writing a charge against accused; but in no case the Court of Session was empowered to observe registration of F.I.R. as doubtful; without the aid of any evidence, or legal provision---No power was vested in the Court of Session to return the record to the prosecution for applying correct section of law; and then sending it to the proper court for trial---Impugned order was alien to the procedure prescribed under Chap. XXII, Cr.P.C. for the trial before the Court of Session---Court under S.265-D, Cr.P.C. was obliged to peruse all those reports, documents and statements; and then form an opinion at the time of framing charge, which was lacking in the present case---Impugned order passed in violation of procedure and law, was quashed, with direction to Sessions Judge to proceed with the case in accordance with procedure given in Chap. XXII, Cr.P.C.

Muhammad Asghar Khan Kundi for Petitioner.

Jehan Zeb Ahmed Chughtai and Sarwar Khan Kundi for Respondents Nos. 3 and 4.

Date of hearing: 24th June, 2013.

MLD 2014 PESHAWAR HIGH COURT 309 #

2014 M L D 309

[Peshawar]

Before Waqar Ahmad Seth, J

Malik MUHAMMAD MISKEEN---Petitioner

Versus

Haji OBDAIDULLAH KHAN and others---Respondents

Writ Petition No.215 and Civil Revision No.170 of 2004, decided on 19th September, 2013.

(a) Khyber Pakhtunkhwa Conservation and Exploitation of Forest in Hazara Division Ordinance (VII of 1980)---

----S. 3(2)(a)---Constitution of Pakistan, Art. 199---Constitutional petition---Agreement against the prohibition contained in statutory law---Effect---Valid agreement---Parties had entered into a settlement/ exploitation agreement which was in respect of standing trees and exploitation---Agreement was hit by S.3(2)(a) of Khyber Pakhtunkhwa Conservation and Explanation of Forest in Hazara Division Ordinance, 1980, thus was not enforceable being a void agreement---Judgment and decrees of the courts below were set aside.

(b) Khyber Pakhtunkhwa Conservation and Exploitation of Forest in Hazara Division Ordinance (VII of 1980)---

----Ss.70 & 70-A---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for declaration---Non-issuance of statutory notice---Effect---Before filing suit no notice as required under Ss. 70 & 70-A of Khyber Pakhtunkhwa Conservation and Exploitation of Forest of Forest in Hazara Division Ordinance, 1980 was given, which was mandatory---Suit in absence of such notice was not maintainable in circumstances---Constitutional petition was dismissed.

Zia-ur-Rehman Alvi v. Messrs Allahabad Cooperative Housing Society Limited and 2 others PLD 1995 Kar. 399 and Lahore Cantt. Cooperative Housing Society Limited v. Messrs Builders and Developers (Pvt.) Ltd. and others PLD 2002 SC 660 rel.

Tanveer Ahmed Mughal for Petitioner.

Muhammad Wajid Khan and A.A.-G. for Respondents.

Date of hearing: 19th September, 2013.

2014 M L D 437

[Peshawar]

Before Assadullah Khan Chamkani, J

SAID MUHAMMAD---Petitioner

Versus

MUHAMMAD SIRAJ-UD-DIN and others---Respondents

Criminal Miscellaneous No.293-M of 2013, in Criminal Miscellaneous (BCA) No.1-M of 2013, decided on 9th July, 2013.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-e-amd, common intention---Bail, cancellation of---Bail was granted to accused, through a short and non-speaking order---Accused, during the trial went into hiding and absented himself, and he was declared proclaimed offender and was arrested after long 'abscondence' of seventeen (17) years---Trial Court in the impugned order had observed that in absence of independent witness, post mortem examination and specific role, accused was entitled to concession of bail, but did not discuss deliberate longstanding 'abscondence' of accused in the impugned order---Accused had been charged directly by the complainant in his report for murder of his son---Accused, on tentative assessment of the case, prima facie was connected with the commission of offence falling within the prohibitory clause of S.497, Cr.P.C.---Plea of counsel for accused that on the same set of evidence, co-accused had already been acquitted; and that there was no probability of the conviction of accused on the same evidence, was not reasonable, because the judgment of acquittal of co-accused had no effect on the trial of accused---Evidence recorded in absence of accused, could not be used for his conviction; similarly, same also could not be used for the benefit of accused---Accused was guilty of deliberate, long and unexplained 'abscondence', and was waiting for the acquittal of his co-accused---Such type of conduct of accused, would be sufficient to disentitle him for the concession of bail---In view of prolong abscondence, conduct of accused and nature of crime, accused was not entitled to the concession of bail---Bail granted to accused by the Trial Court was recalled by High Court in circumstances.

Sardar v. The State PLD 1979 Pesh. 16 rel.

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

----S. 497---Bail---Fugitive from law and courts---Disentitlement to concession of bail---Fugitive from law and courts, would lose some of his normal rights granted by the procedure; as well as substantive law and the unexplained 'abscondence' of accused, would disentitle him to concession of bail, notwithstanding the merits of the case.

Muhammad Sadiq's case PLD 1985 SC 182 rel.

M. Saddique Haider Qureshi for Petitioner.

Raza Ullah and Muhammad Javed, D.A.G. for the State.

Date of hearing: 9th July, 2013.

MLD 2014 PESHAWAR HIGH COURT 446 #

2014 M L D 446

[Peshawar]

Before Waqar Ahmad Seth and Mrs. Irshad Qaiser, JJ

AMIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.56 of 2009, decided on 11th September, 2013.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Double murder---Medical evidence---Medical reports showed that injuries on the persons of both the deceased were of different sizes and four of alleged empties did not match with crime pistol recovered on pointation of accused---Such facts suggested that dual murders were not the doing of a single person---Medical Board constituted during trial suggested that accused was an insane person suffering from Schyphonzi, a disease allegedly caused at the spur of moment---Motive put forward by prosecution was not proved according to law, as no independent person was produced regarding alleged extension of threats on pistol point to brother of deceased and there was no report to such effect---Prosecution suppressed material facts and occurrence was shrouded in mystery as to under what circumstances, in what manner, at what time and by whom deceased were injured and done to death---Either it was case of no evidence or occurrence did not take place in the manner as suggested by prosecution---Prosecution failed to prove its case against accused beyond any shadow of doubt---High Court extended benefit of doubt, set aside conviction and sentence awarded to accused and acquitted him of the charge---Appeal was allowed in circumstances.

Rashid Ahmed v. Muhammad Nawaz and others 2006 SCMR 1152; Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 and Ghulam Qadir v. State 2008 SCMR 1221 rel.

Atif Ali Khan Jadoon for Appellant.

Fazali Haq Abbasi for the Respondent/Complainant.

Date of hearing: 11th September, 2013.

MLD 2014 PESHAWAR HIGH COURT 467 #

2014 M L D 467

[Peshawar]

Before Malik Manzoor Hussain and Mussarat Hilali, JJ

SAMAWAT---Appellant

Versus

The STATE through Advocate General---Respondents

Criminal Appeal No.233-P of 2013, decided on 17th September, 2013.

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

----Ss. 9(c), 21, 22 & 25---Possessing and trafficking narcotics---Appreciation of evidence---Search and arrest---Mode---Whole trial could not be vitiated for the simple reason that arrest, seizure and initial investigation in the shape of recovery memo was made by an incompetent Police Officer---Police Official was expected to immediately rush to the spot and apprehend offender/suspect of indulging in narcotics offences---In the present case, after arrest the complainant handed over the investigation to Sub-Inspector who was competent to complete the investigation and submit the challan---Section 25 of Control of Narcotic Substances Act, 1997, had expressly excluded the application of S.103, Cr.P.C. to the cases registered under Control of Narcotic Substances Act, 1997---Police Officials were as good witnesses as any other from the public---Normally persons from public, hesitate to be a witness of recovery or crime---No one from public came forward to associate, with the recovery of narcotics etc.---Police was generally reluctant to become witness in such like cases out of fear of reprisals from accused side---Police Officials were as good witnesses as other public witnesses, unless and until some enmity, ill-will or mala fide had been proved on the record by accused---Even otherwise search and arrest by Police Officer was only an irregularity; and not an illegality vitiating the whole trial---Report of Chemical Examiner was not questioned by the defence at the trial or in appeal---Said report was received in positive, which fully corroborated the evidence furnished by the complainant as well as the recovery witnesses---No enmity or ill-will had been established against the complainant as well as to the marginal witnesses of the recovery---Prosecution had proved the guilt of accused beyond any reasonable doubt; and had successfully discharged its burden through consistent and confidence inspiring evidence---Conviction of accused was based on correct application of law and proper evaluation of evidence---Conviction of accused was maintained, but as accused was first offender and having no record of past history; and remained in jail from the date of registration of case (17-6-2012) the sentence awarded to accused was reduced from 3 years to the period already undergone by him, and amount of fine was also reduced from Rs.10,000 to Rs.5,000.

The State v. Bashir PLD 1997 SC 408; Muhammad Hanif v. The State 2003 SCMR 1237 and 2007 SCMR 1671 rel.

Arshad Zaman for Appellant.

Riaz Painda Khel, D.A.G. for the State.

Date of hearing: 17th September, 2013.

MLD 2014 PESHAWAR HIGH COURT 481 #

2014 M L D 481

[Peshawar]

Before Lal Jan Khattak, J

SHAFQAT REHMAN---Petitioner

Versus

Mst. MAHJABEN and 27 others---Respondents

Civil Revision Petition No.389 of 2012, decided on 1st July, 2013.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Application for rejection of plaint---Contention of defendants was that suit was hit by principle of res judicata, estoppel and was time-barred---Application for rejection of plaint was accepted by the Trial Court but same was dismissed by the Appellate Court---Validity---Plaintiffs had challenged the legality of mutation on the ground of its being based on fraud which was a separate cause of action---Question of fraud, res judicata and limitation could be resolved only after recording of evidence---Judgment and decree of the Appellate Court was based on sound reasons and was in accordance with law---No illegality or infirmity in the impugned judgment and decree was found---Revision was dismissed in circumstances.

Muhammad Waheed Anjum for Petitioner.

Ahmad Ali Khan Marwat and Ghazanfar Ali Khan for Respondents.

Date of hearing: 1st July, 2013.

MLD 2014 PESHAWAR HIGH COURT 513 #

2014 M L D 513

[Peshawar]

Before Rooh-ul-Amin Khan, J

NASEER KHAN---Appellant

versus

The STATE and others---Respondents

Criminal Appeal No.55 of 2013, decided on 9th September, 2013.

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

----Ss. 324 & 337-F(ii)---Attempt to commit qatl-e-amd, causing Damiyah---Appreciation of evidence---Delay of 2 hours in reporting the incident to the Police, had not been plausibly explained---Blood feud enmity with accused had been alleged by the complainant---Consultation and deliberation in substitution of actual culprit, could not be excluded, in circumstances---Statement of injured complainant, ran contrary to his earlier version given in report---Complainant had introduced a new story in his statement---Story of complainant shifting him to Police Station in a Rickshaw did not appeal to mind; because he had not named the Rickshaw driver---Neither in his report nor in his statement, the Investigating Officer had tried to examine said Rickshaw driver under S.161, Cr.P.C., and to cite him as witness in the challan---Statement of the complainant was total negative of his report---Complainant in his report had specifically mentioned that sufficient people of village had witnessed the occurrence, but no independent witness had been procured by the Investigating Officer to testify about the occurrence---Complainant and Investigating Officer had stated that site plan was prepared on the same day of occurrence at night time, but complainant had admitted that he remained hospitalized for 3 days---In view of material contradictions and discrepancies in the statement of the complainant, the complainant had not come forward with clean hands, and had tried his best to conceal the actual facts of the occurrence---In hurt cases statement of injured witness, supported by medical evidence, though was sufficient for recording conviction, provided it rang true and was trustworthy, in view of its intrinsic worth; but mere stamp of injuries on the person of a witness, would not be a proof of the fact that whatever he deposed would be the truthful account of the events---Injured witness's veracity was to be tested from the circumstances of the case; and his own statement, whether same in the circumstances of the case or otherwise---Medical evidence, did not support the version of the complainant---No pellet had been extracted from the wound of the injured; and no crime empty had been recovered from the crime scene---Only recovery of blood-stained earth and blood-stained clothes of the injured, by no strength of imagination would be sufficient to prove the guilt of accused---Manner of occurrence appeared to be highly doubtful and concocted---Prosecution had failed to bring home charge against accused---Appeal of accused against judgment of the Trial Court was accepted; and connected revision petition filed by the complainant for enhancement of sentence of accused was dismissed---Accused was acquitted of the charge levelled against him and he was set at liberty, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Scope---Strong and corroborative evidence of unimpeachable character was required for recording conviction---Finding of guilt against accused must not be based on probabilities to be inferred from evidence---Such finding must rest surely and firmly on the evidence of unimpeachable character, otherwise, the golden rule of benefit of doubt would be reduced to naught---Absolute certainty was seldom in forming an opinion qua guilt or innocence of a person---Court by means of proper appraisal of evidence, must be vigilant to dig out truth of the matter to ensure that no injustice was caused to either party---Prosecution was bound to prove its case beyond any shadow of doubt---If any reasonable doubt would arise in the prosecution case, the benefit of the same must be extended to accused, not as a grace or concession, but as a matter of right---So many doubts in the prosecution case were not needed, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind was sufficient for acquittal of accused---Accused was acquitted in circumstances.

Sultan Mehmood for Appellant.

Saifur Rehman A.A.-G. for the State.

Ghafoor Khan and Syed Umar Ali Shah for the Complainant.

Date of hearing: 9th September, 2013.

MLD 2014 PESHAWAR HIGH COURT 528 #

2014 M L D 528

[Peshawar]

Before Lal Jan Khattak, J

JAMIL-UR-REHMAN---Petitioner

Versus

REHMATULLAH---Respondent

Civil Revision No.595 of 2011, decided on 29th August, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O. XLI, R. 27---Suit for possession through pre-emption---Talbs, performance of---Requirements---Application for recording additional evidence by plaintiff---Scope---Contention of plaintiff was that Appellate Court had not decided application for recording additional evidence and decreed the suit---Validity---Proposed additional evidence was available with the plaintiff at the time of conducting of trial but he did nothing to get the postman examined---Plaintiff filed application for additional evidence before the Appellate Court at belated stage---Such attempt had been made to counter the findings of the Trial Court that pre-emptor had not proved sending of notice of Talb-i-Ishhad---Pre-emptor moved application to fill up lacunae which was contrary to the provisions of O. XLI, R. 27, C.P.C.---Non-disposal of said application did not matter anymore---Pre-empted land was a plot and developers of the town invited all and sundry through advertisement to get plots---Had plaintiff been serious in getting the suit plot then he could have easily purchased the same without entering into any litigation---Plaintiff had already purchased some plots in the town and there was no hindrance or snags in the way of plaintiff to get the plot, had he been serious in purchasing the same---Conduct of pre-emptor was sufficient to non-suit him---Findings of two courts below were based on correct appreciation of evidence---Neither the pre-emptor nor his witnesses of notice of Talb-i-Ishhad had deposed anything that plaintiff performed Talb-i-Ishhad in their presence---Plaintiff was bound to refer to his Talb-i-Muwathibat in presence of two truthful witnesses while performing his second talb of Ishhad---Mere sending notice (of Talb-i-Ishhad) could not be equated with performance of Talb-i-Ishhad---Plaintiff had not performed necessary talbs and his right of pre-emption had been extinguished---No illegality or defect had been pointed out in the judgments and decrees of two courts below which were based on correct appreciation of law and facts of the case---Revision was dismissed in circumstances.

Rustam Khan Kundi and Fazlur Rehman Baloch for Petitioners.

Ehsan-ul-Haq Malik and Syeda Talat Zahra for Respondents.

Date of hearing: 29th August, 2013.

MLD 2014 PESHAWAR HIGH COURT 559 #

2014 M L D 559

[Peshawar]

Before Assadullah Khan Chamkani, J

JEHANZADA---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.1021-P of 2012, decided on 15th August, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34---Qanun-e-Shahadat (10 of 1984), Art. 38---Qatl-e-amd, common intention---Bail, grant of---Further inquiry---Confession before police---Admissibility as evidence---Unseen occurrence---No ocular account available---No recovery of weapon---Effect---Police found dead bodies of deceased persons during patrolling---Accused was implicated subsequently with the crime on the information collected by the Investigation Officer---Crime in question was an unseen occurrence---During investigation, Investigation Officer failed to get any ocular account despite the fact that alleged offence took place in front of a place which was a restaurant, hotel and a wedding hall---Accused remained on physical remand for two days but neither weapon used in the commission of crime could be recovered from him nor any discovery was made on pointation of accused, which could connect him with the commission of the alleged offence---Observation of Trial Court that accused confessed his guilt before Investigation Officer was not legal as per Art. 38 of Qanun-e-Shahadat, 1984---Mere heinousness of crime was no ground for refusal of bail if the case was one of further probe---Accused was granted bail, in circumstances.

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

----S.497(2)---Bail---Heinousness of offence---Effect---Mere heinousness of crime was no ground for refusal of bail if the case was one of further probe.

Maqsood Anwar Aziz for Petitioner.

Fazle Rehman, A.A.-G. for Respondent.

Date of hearing: 15th August, 2012.

MLD 2014 PESHAWAR HIGH COURT 567 #

2014 M L D 567

[Peshawar]

Before Abdul Latif Khan, J

WAPDA and others---Appellant

Versus

MUHAMMAD USMAN KHAN---Respondent

R.F.A. No.99 of 2007, decided on 7th October, 2013.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 23---Reference to court---Enhancement of compensation---Referee Judge enhanced compensation amount from Rs. 700 per Marla to Rs. 2000 per Marla along with compulsory acquisition charges with simple interest---Validity---Quantum of enhancement claimed by the plaintiffs was not supported by any evidence available on file---Possession of suit land was taken on 4-12-2002 whereas average relied upon by Collector for compensation was from 7-3-1993 to 6-3-1994 which was not in accordance with law---Fair compensation had to be determined for which price shown in the average would not be safe criteria---Potentialities of property were to be seen keeping in view the location and mere reliance of average could not be made---Assessment made on the basis of average was not safe reliance for determination of value of property for the purpose of compensation---Acquired land was situated near metal road and sale price in the vicinity was higher than as assessed by the Collector---Amount paid to the owners of land acquired was not the market value rather compensation which was always higher than the price (market value)---Average sale price of back dates could not be relied upon---Amount assessed in the award, therefore, was not in accordance with the compensation to be awarded to the land owners---Referee Court had rightly assessed and fixed the rate of acquired land by enhancing the compensation from the date of possession---Compulsory acquisition charges were to be awarded at the rate of 25% if acquisition of land had been made for company---WAPDA for which land was acquired, was company and land owners were entitled to compulsory acquisition charges to the tune of 25% instead of 15%---No infirmity was pointed out in the impugned judgment---Appeals were dismissed with modification to the extent of compulsory acquisition charges.

PLD 1997 Pesh. 19; Land Acquisition Collector, Abbotabad and others v. Gohar-ur-Rehman Abbasi 2009 SCMR 771; Province of Punjab through Collector Bahawalpur and others v. Sh. Hassan Ali and others PLD 2009 SC 16; Mst. Sumaria Gul v. Land Acquisition Collector GSC, WAPDA, Peshawar and others 2011 SCMR 118; Secretary to Government of N.-W.F.P., Peshawar v. Haji Fateh Khan 2001 SCMR 974 and Muhammad Mushtaq Ahmad Khan and 2 others v. The Assistant Commissioner, Sialkot and 3 others PLD 1983 Lah. 178 rel.

Syed Rehman for Appellant.

Muhammad Tariq Khan Hoti for Respondent.

Date of hearing: 7th October, 3013.

MLD 2014 PESHAWAR HIGH COURT 587 #

2014 M L D 587

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

NASEEB RAHMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 78-M of 2013, decided on 27th September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 32 & 74---Possessing and trafficking of narcotics---Superdari of vehicle---Vehicle in question had been seized in narcotic case from accused against whom the trial was in progress---Claimant of the vehicle was not accused in the narcotic case---Vehicle being non-customs paid had been registered in the name of the claimant and no other person had come forward to claim ownership or possession of vehicle in question---Nothing was on the file to indicate that the vehicle was used in the commission of the crime with the knowledge of the claimant---No doubt S.74 of Control of Narcotic Substances Act, 1997 prohibited the grant of custody of the vehicle used in the export, import or transportation of narcotic substance to accused, or any of his associates, or relatives, or any private individual, till the conclusion of the same, but the application of that provision of law, could not be extended to cover an owner, who had no hand or involvement in the crime, as it could not be construed independently of the provisions contained in S.32 of said Act which protected the right of the owner, who had no conscious hand in the commission of the crime---Retention of vehicle in Police custody for an indefinite period, would serve no useful purpose---Judicial discretion could also be exercised for release of the vehicle on 'Superdari' in view of the principle that if a court could grant final relief, it also possessed inherent jurisdiction to grant temporary relief pending proceedings before it, subject to fulfilling condition by the claimant under the law for getting relief finally from the court---Custody of vehicle in question along with its documents, was ordered to be handed over to the claimant on furnishing bond/security, in circumstances.

Muhammad Hanif v. The State and others 2011 SCMR 1471 and Amin Nawaz Baloch v. The State 2013 YLR 1626 rel.

Zia-ur-Rehman Uthmankhel for Appellant.

Rafiq Ahmad, Deputy Advocate General for the State.

Date of hearing: 27th September, 2013.

MLD 2014 PESHAWAR HIGH COURT 597 #

2014 M L D 597

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

ABDUL JABBAR alias ABDUL---Petitioner

Versus

The STATE---Respondent

Bail Application No.398-P of 2013, decided on 17th April, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(1)---Pakistan Arms Ordinance (XX of 1965), Ss. 13 & 14---Possession and smuggling of illegal weapons---Bail, grant of---First time offender---Offence not falling within prohibitory clause of S.497(1), Cr.P.C.---Effect---Accused was driving a vehicle which was stopped at a police checkpoint---Upon search of vehicle huge quantity of arms and ammunitions were recovered from its secret cavities---None of the offences with which accused was charged fell within the prohibitory clause of S. 497(1), Cr.P.C., as they entailed punishment of seven years---Prosecution did not have any history of accused available with it to show that he had ever indulged in offences of similar nature, therefore, being first time offender accused deserved lenient treatment in the matter of bail---Investigation of the case was complete and accused was no more required for further investigation---Accused was granted bail in circumstances.

Shakil Khan Gilani for Petitioner.

Muhammad Haroon Durrani for the State.

Date of hearing: 17th April, 2013.

MLD 2014 PESHAWAR HIGH COURT 612 #

2014 M L D 612

[Peshawar]

Before Malik Manzoor Hussain, J

Mst. SHAHIN SHAH BIBI---Petitioner

Versus

MUSHARAF and others---Respondents

Civil Revision No. 754-M of 2012, decided on 26th November, 2013.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Private settlement of dispute---Authenticity---Dispute between the parties was already settled in Jirga---Plaintiff subsequently filed suit for declaration and partition against the same property---Suit was decreed in favour of plaintiff but appellate Court set aside the judgment and dismissed the suit---Validity---Private arrangement and partition deserved the same sanctity which a lawful contract deserved and should not be interfered with in any legal proceedings unless the private arrangement or partition was otherwise not legally permissible---Private arrangement had been duly taken place and was acted upon by the parties and the petitioner could not turn around and question authenticity of same through asking for fresh petition before any court of law---Revision was dismissed.

Said Jalal for Petitioner.

Zafar Hayat for Respondents.

Date of hearing: 26th November, 2013.

MLD 2014 PESHAWAR HIGH COURT 635 #

2014 M L D 635

[Peshawar]

Before Abdul Latif Khan, J

Mst. ASHOO BIBI through Legal Heirs---Petitioner

Versus

GAMON and 9 others---Respondents

Civil Revision No.421 of 2010, decided on 16th September, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. VI, R. 4---West Pakistan Land Revenue Act (XVII of 1967), S. 42---Suit for declaration---Inheritance---Gift mutation---Contention of plaintiff was that donor had not made gift and same was result of fraud committed by the donees---Suit was dismissed concurrently---Validity---None out of legal heirs of donor except the plaintiff had assailed the gift nor came to support her claim---Party alleging fraud had to give the particulars, the mode and manner of commission of fraud---No evidence to such effect was produced---Donees of both the gift mutations were minors at the time of attestation of the same and were incapable to commit fraud---Plaintiff was bound to prove as to how fraud was committed or even expected from those who were minors---No explanation was put forward with such regard by the plaintiff through evidence---Defendants were in possession of the suit property---Possession was not transferred at the time of gift but delivery of the same was not necessary as donees were minors---Delivery of possession was not material in case of minor donees---Such was one of the important ingredients of gift but there was exception when father gifted property in favour of minor son or by a guardian to ward and possession of father or guardian after declaration of gift would amount to possession on behalf of the donee/minor---Delivery at a subsequent stage would cure the deficiency of non-delivery of possession---No eventuality would make the gift invalid due to non-delivery of possession in case of minor and ward---Donor had gifted the property and mutations were validly attested---Gift could be made orally without the aid of any instrument like registered deed and mutation---Mutation did not create title but if same was attested in public gathering and entries were made then same could be taken as evidence---Gift mutation was attested in the year 1952---Attestation of mutation did not require any witness to sign the same---Section 42 of the West Pakistan Land Revenue Act,1967 did not give impression of being mandatory in nature---Mutation in question was attested by Lumberdar duly endorsed by revenue officer who appeared as marginal witness---Signature of donor or donee was not required upon the mutation under the law in such circumstances---Statement of donor was recorded to the effect that he had gifted certain property---Such mutation for gift was entered at the instance of donor---Said statement of donor verified by Qanoongo and endorsed/attested by revenue officer in public gathering would not be termed as defective---Donor had gifted certain land to the only son born of his previous wife and later on out of second marriage two sons born to whom he made gift to equalize their right---Donor had the right to use his property as he liked---No bar existed against gift made by the owner/donor in favour of any one and he was not bound to assign any reason for making the same---Defendants had succeeded to prove that gifts were validly made and plaintiff had failed to make out a case for interference---Both the courts below had properly evaluated the factual as well as legal position and arrived at correct conclusion---Revision was dismissed.

Muhammad Waheed Anjum for Petitioner.

Muhammad Younis Thaheem for Respondents.

Date of hearing: 16th September, 2013.

MLD 2014 PESHAWAR HIGH COURT 648 #

2014 M L D 648

[Peshawar]

Before Abdul Latif Khan, J

Mst. SAIMA BIBI---Appellant

Versus

Mst. ZAHIDA PARVEEN---Respondent

Regular First Appeal No.66 of 2012, decided on 16th September, 2013.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S.118---Suit on the basis of negotiable instrument---Contention of defendant was that her signatures were obtained on blank paper---Suit was decreed by the Trial Court---Validity---Execution of pro note was proved by the plaintiff by producing scribe, marginal witness and other witnesses present at the time of scribing of the same apart from herself---Burden had shifted upon the defendant to establish that she had signed/thumb marked on the blank paper---Defendant lady had not produced her husband to support her contention with regard to fraud, coercion at the time of signature on the pro note and had restrained her husband from deposing as witness of plaintiff in order to damage her case due to non-production of other marginal witness---Witnesses produced by the plaintiff had not been shattered in cross-examination nor imputed to them that they were making false statements---Presumption was in favour of negotiable instrument that same was with consideration and was negotiated until contrary was proved---Onus would be on the person denying consideration to allege and prove the same---Whenever instrument was issued same was issued for consideration and burden was on the defendant to prove that no consideration was paid---Defendant had relied upon solitary statement of her own and had not rebutted the contrary as per law---No infirmity or material irregularity was found in the impugned judgment---Appeal was dismissed in circumstances.

Malik Muhammad Jehangir Awan for Appellant.

Muhammad Anwar Awan for Respondent.

Date of hearing: 16th September, 2013.

MLD 2014 PESHAWAR HIGH COURT 657 #

2014 M L D 657

[Peshawar]

Before Lal Jan Khattak, J

MUHAMMAD ATHAR ABBAS---Appellant

Versus

MUHAMMAD WASEEM and 2 others---Respondents

Criminal Appeal No. 20-D of 2013, decided on 4th October, 2013.

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.324, 337-A(ii), 34 & 109---Attempt to commit qatl-e-amd, causing Shajjah-i-Mudihah, common intention, abetment---Appeal against acquittal---Maintainability---Complainant reported to local Police about the firing made on him by accused persons with which he was hit and sustained injuries on his right thigh---Only victim of the firing was the complainant, whereas the appellant, who was brother of the complainant appeared when alleged firing was over---Entire controversy was between the complainant and accused persons, while the appellant only figured in the case as a witness to the occurrence---Appellant was neither fired upon by accused persons, nor criminally intimidated, nor any other harm was caused to him in the alleged occurrence---Impugned judgment had neither any observation given against appellant by the Trial Court, nor he had wrongly been deprived of any of his legal right---Matter always remained in between the State, victim and accused, except in the case of murder where legal heirs of a deceased had right to participate in the court proceedings; and to impugn the judgment, if they would feel themselves aggrieved of it, but in the cases of simply bodily hurt, no other person could impugn the decision of the Trial Court in appeal against acquittal, except the victim himself, or the State in special circumstances---In the present case appeal against acquittal, neither had been filed by the State, nor by the injured complainant, but by his brother, who was only a witness to the occurrence---Appellant being not an aggrieved person, appeal filed by him was not maintainable which was dismissed, in circumstances.

(b) Words and phrases---

----'Aggrieved'---Meaning explained.

Ghulam Hur Khan Baloch for Appellant.

Sanaullah Khan Shamim, A.A.-G. for the State.

Ahmad Ali Khan for Respondents.

Date of hearing: 4th October, 2013.

MLD 2014 PESHAWAR HIGH COURT 670 #

2014 M L D 670

[Peshawar]

Before Mrs. Irshad Qaiser, J

MUHAMMAD ABID KHAN---Petitioner

Versus

Mst. NOREEN and others---Respondents

Criminal Revision No.34-A of 2013, decided on 4th November, 2013.

Criminal Procedure Code (V of 1898)---

----S. 491---Proceedings under S.491, Cr.P.C.---Nature---Issuance of directions of the nature of habeas corpus---Scope---Petitioner/brother of alleged detenu had claimed that respondent had been divorced by alleged detenu, and that there was no relationship of husband and wife between them, but respondent/divorced wife, in order to get revenge, had kept the detenu (husband) in illegal confinement in order to increase his agonies---Factum of divorce was strongly denied by respondent lady---Petitioner could not produce relevant record in respect of divorce---Proceedings under S.491, Cr.P.C. by their nature were summary in character, and the entire evidence was not recorded to decide the main controversy between the parties---Section 491, Cr.P.C. had not mandated to determine the factum of Nikkah or divorce between the couple; and it would be none other than the Judge Family Court to adjudicate the same---No illegality having been pointed out in impugned order, petition was dismissed, in circumstances.

PLD 2005 SC 219 ref.

Naz Elahi Mughal and Q.M. Sheheryar for Petitioner.

S.M. Asif and Yasir Zahoor Abbasi for Respondents.

Date of hearing: 4th November, 2013.

MLD 2014 PESHAWAR HIGH COURT 690 #

2014 M L D 690

[Peshawar]

Before Mazhar Alam Khan Miankhel and Ikramullah Khan, JJ

FAKHAR ZAMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.558 of 2010, decided on 28th May, 2013.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Five witnesses examined by the prosecution to prove its case, had given a vivid account of the occurrence in the court---No discrepancy was noticed in the statement of any of the witnesses as could create doubt in the prosecution version---All the witnesses were subjected to a searching cross-examination---Nothing was on record as could even remotely suggest that the incriminating substance was either planted, or accused was falsely charged and there was no doubt as to the guilt of accused---Accused who was a young man, was sentenced to life imprisonment---Accused besides being a patient of Hepatitis-C was also a first offender, having no history of being involved in narcotics cases---Material available on record showed that the accused appeared to be a carrier---Role and conduct of accused, in circumstances, would call for lesser punishment---While maintaining conviction of accused, his sentence was reduced from life imprisonment to ten years' R.I., by leaving the fine and benefit of S.382-B, Cr.P.C., intact.

Gul Raeef Khan v. State 2008 SCMR 865; Muhammad Tariq v. State 2009 SCMR 1220 and Mudassir v. State 2012 YLR 463 rel.

Noor Alam Khan for Appellant.

Muhammad Atif Nazir, SSP for State.

Date of hearing: 28th May, 2013.

MLD 2014 PESHAWAR HIGH COURT 705 #

2014 M L D 705

[Peshawar]

Before Mian Fasih-ul-Mulk and Yahya Afridi, JJ

SHAKEEL KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.156 of 2010, decided on 3rd December, 2013.

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

----Preamble, Ss.9 & 29---Purpose and nature of Control of Narcotic Substances Act, 1997---Onus to prove guilt of accused---Control of Narcotic Substances Act, 1997, was a special law, which the legislature had enacted mainly to curb the menace of narcotics in the country; and had provided therein special provisions to achieve the said end---Onus to prove the guilt of accused had not been placed entirely on the prosecution, but on accused to prove his innocence---Legislature had cast a presumption in favour of the prosecution, which had to be rebutted by accused to prove his innocence---Prosecution could not be totally absolved of its obligation and duty of initially establishing a "prima facie" case of recovery of contraband from conscious possession of accused---Only after said initial burden was discharged by the prosecution, that the onus would shift upon accused to prove his innocence.

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

----Ss. 9(c) & 29---Possessing and trafficking of narcotics---Appreciation of evidence---Recovery of huge quantity of narcotics was proved by direct ocular testimony of the recovery officer, further confirmed by marginal witness---Manner, mode and place of recovery of contraband from motor car driven by accused had been proved to the hilt by convincing prosecution evidence---Recovered contrabands were properly sent and received for chemical examination at Forensic Science Laboratory on the next day of its recovery and result thereof was also positive---All the witnesses were consistent regarding their testimony and corroborated each other on material particulars---No evidence in rebuttal had been brought on record by accused---Accused having been suffering from Hepatitis, Jail Authorities as well as Medical Officer, were directed to take his extraordinary care; and if needed, accused be periodically shifted to the hospital for medical treatment.

Muhammad Imran's case 2011 SCMR 1954 and Ameer Zeb's case PLD 2012 SC 380 rel.

Farhana Marwat for Appellant.

Syed Rehman for the State.

Date of hearing: 3rd December, 2013.

MLD 2014 PESHAWAR HIGH COURT 745 #

2014 M L D 745

[Peshawar]

Before Shah Jehan Akhundzada, J

FAKHR-E-ALAM---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.429-P of 2013, heard on 17th April, 2013.

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---Trial Court not complying with directions of High Court regarding conclusion of trial within a time frame---Effect---Bail petition of accused was dismissed by High Court with a direction to Trial Court to conclude trial within one month---Trial Court failed to conclude trial within one month---Order sheets of Trial Court showed that case was lingering on due to absence of prosecution witnesses and the accused was not at fault for unnecessary adjournments---Accused was admitted to bail in circumstances.

Mian Qamar Gul Kakakhel for Petitioner.

Imran Hashtnagar for Respondent.

Date of hearing: 17th April, 2013.

MLD 2014 PESHAWAR HIGH COURT 758 #

2014 M L D 758

[Peshawar]

Before Ikramullah Khan, J

JALAT KHAN and others---Petitioners

Versus

Mst. BAKHT SULTAN---Respondent

Civil Revision No.479 of 2009, decided on 25th September, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for declaration---Power of attorney, execution of---Burden of proof---Co-sharer, rights of---Contention of defendants was that suit property had been sold to them by the plaintiffs---Suit was decreed concurrently---Validity---Burden of proof should be on the person who had derived or had to derive any benefit of transaction---Power of attorney was attested by two witnesses but none of them appeared in the witness box to verify his signature---Person who had alleged that witness was not alive had to produce any other document signed by the deceased for comparison of one under consideration---Bald statement of relative or friend of deceased would not be sufficient proof that deceased had signed the document---Due execution of document should be proved by the executant---Mere proof of signature of attesting witness was not the requirement of law---No witness had deposed that power of attorney was signed or thumb impressed by the plaintiffs in his presence---Defendants had failed to prove factum of payment of sale consideration---Defence witness was not confronted with original script of power of attorney for the purpose to recognize signature of his father---Reference to copy in absence of original should not be considered as admissible evidence---Witness should not be confronted with a copy of document without prior permission to prove such missing document through secondary evidence---No permission had been granted, evidence of said witness being inadmissible should not have been considered---Where execution of registered document was denied by the executants then said document would lose its sanctity of presumption to be considered as correct and its veracity would depend upon the quantum and quality of evidence produced to prove its execution---Two witnesses were required to prove the transaction of sale and payment of sale consideration---Everything found mentioned in the registered deed or revenue paper must not invariably be accepted without proof of its due execution, genuineness and authenticity---Neither limitation nor conduct of plaintiff could estop him from claiming his legal share in matter of inheritance---Passage of time did not extinguish right and every fresh Jamabandi would accrue fresh cause of action to the plaintiff---No limitation should run against co-sharer---Every co-owner should be considered in possession on behalf of all other co-owners---Every legal heir would become co-owner in the legacy of predecessor as soon as he died irrespective of entries in revenue record---Cogent, tangible and un-rebuttable evidence was required to oust co-owner from the joint corpus of undivided immovable property---Doubtful and dubious entries in the record of right could not be made basis to deprive legal owner of his ownership in the legacy of predecessor in interest---Concurrent findings of facts delivered by the courts below could not be disturbed in revisional jurisdiction merely on bald assertion unless and until gross illegality or irregularity was found---Non-payment of usufruct or being in continuous possession of land could not confer any proprietary right---No illegality or irregularity had been pointed out by the defendants---Revision was dismissed in circumstances.

Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1991 SCMR 1245; Mst. Kishwar v. Abdul Dahyan and others 2004 CLC 203; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Riaz v. Muhammad Saleem and 4 others 1989 SCMR 1491; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Yaqoob v. Muhammad Jan PLD 2004 Kar. 543 and Saabran Bibi v. Muhammad Ibrahim 2005 CLC 1160 rel.

Abdullah Saani for Petitioner.

Muhammad Shoaib and Hassan Zeb Rahim for Respondent.

Date of hearing: 25th September, 2013.

MLD 2014 PESHAWAR HIGH COURT 777 #

2014 M L D 777

[Peshawar]

Before Shah Jehan Akhundzada, J

SALEEM---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.470-P of 2013, decided on 3rd May, 2013.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 20---Pakistan Arms Ordinance (XX of 1965), S. 13---Possession of narcotic, power to issue warrants for search, possession of illegal weapons---Bail, grant of---Further inquiry---Police raid on basis of prior information---Non-obtaining of search warrants---Non-association of private witnesses from the locality---Effect---Police on basis of spy information raided house of accused and allegedly recovered illegal weapons, ammunition and narcotics---Despite prior information no search warrants under S. 20 of Control of Narcotic Substances Act, 1997, was obtained by the Inspector/Station House Officer before entering into the house of accused---Station House Officer who conducted the raid had not recorded grounds and reasons, as to why he avoided obtaining search warrants under S. 20 of Control of Narcotic Substances Act, 1997---Purpose of said section was to safeguard the right of privacy of a citizen, which should not be allowed to be violated at the whims of a police officer---Recovery was effected from accused on basis of prior information but no witness from the locality was associated with the recovery proceedings---Case required further inquiry and accused was released on bail, accordingly.

Raees Khan v. The State 2005 PCr.LJ 76; Waris Khan v. The State 2000 PCr.LJ 1225; Hakim Mumtaz Ahmad and another v. The State PLD 2002 SC 590 and 2003 SCMR 881 rel.

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

----S. 497---Bail---Assessment of evidence---Scope---Only tentative assessment of evidence had to be made and deeper appreciation had to be avoided at bail stage.

Nek Nawaz Khan for Petitioner.

Alamgir Khan Durrani, Dy. A.G. for the State.

Date of hearing: 3rd May, 2013.

MLD 2014 PESHAWAR HIGH COURT 795 #

2014 M L D 795

[Peshawar]

Before Rooh-ul-Amin Khan, J

AFTAB AHMED---Petitioner

Versus

The STATE and 4 others---Respondents

Criminal Miscellaneous Quashment Petition No.20-B of 2013, decided on 30th April, 2013.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 337-F (iv), 452, 148 & 149---Ghayr-jaifah, house trespass, rioting and common object---Quashing of F.I.R.---Inherent powers of High Court---Scope---Allegations against the accused were that they committed house trespass and injured the wife of complainant and also criminally intimidated---Another F.I.R. was on record against the complainant party wherein the Police Station, date and place of occurrence were the same---Two versions existed qua the same incident and one person from each party had allegedly sustained injuries and which of the two versions was correct, was a question which required determination in the light of the evidence during trial---Question as to who was the aggressor and who was aggressed upon could not be answered in absence of evidence---When an offence had been committed, then ordinary course of trial was not to be deflected by resorting to quashment---Inherent powers of the High Court could only be invoked in extraordinary cases, where no offence was made out, even if the allegations made in the F.I.R. were proved at the trial or when there was a case of no evidence, or where there was a violation of any law or where any illegality had been pointed out, causing grave miscarriage of justice---Not a single circumstance had been pointed out, which might warrant interference of the High Court to exercise its inherent jurisdiction---Jurisdiction under S. 561-A Cr. P. C., was only meant to fill lacuna, existing in the Criminal Procedure Code, in the matters, for which no specific provision or remedy had been provided and it would not be frequently applied for determining the guilt or innocence of an accused at premature stage---Petitioners had failed to make out case of quashment---Petition was dismissed.

Bashir Ahmad v. Zafrul Islam PLD 2004 SC 298 and Sher Afghan Khan Niazi v. Ali Habib and another 2011 SCMR 1813 rel.

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

----S. 561-A---Inherent powers of High Court---Conditions---Conditions essential to be fulfilled to seek interference under S. 561-A, Cr.P.C. were that the injustice which came to light, should not be of a trivial character; that the injustice which was noted was of a clear and palpable character and not of a doubtful character and that there existed no other provisions of law by which the party aggrieved could have sought relief---Power under S. 561-A Cr.P.C. was extraordinary in its nature which could be exercised sparingly, carefully and with caution and only where such exercise was justified by the tests specially laid down in the S. 561-A, Cr.P.C. itself as its application in frequent and light manner would tend to circumvent the due process of law.

Younas Ali Shah for Petitioner.

MLD 2014 PESHAWAR HIGH COURT 804 #

2014 M L D 804

[Peshawar]

Before Abdul Latif Khan, J

ALLAH NAWAZ---Petitioner

Versus

Mst. HASINA BIBI and another---Respondent

Civil Revision No.341 of 2011, decided on 30th September, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Inheritance---Contention of plaintiff was that he being nephew of deceased was entitled to inherit house owned by deceased---Trial Court decreed the suit but same was dismissed by the Appellate Court---Validity---Disputed house was situated in Aabadi Deh---Plaintiff had not produced any documentary proof with regard to title of deceased---No pedigree table had been produced nor any other documentary evidence had been brought on file to the effect that plaintiff was nephew of deceased---Contradictions in the evidence and plaint were on record which were sufficient to non-suit the plaintiff---Suit house was in the possession of defendant---Plaintiff was bound to prove his case but he had failed to prove the same---Revision was dismissed in circumstances.

Muhammad Anwar Awan for Petitioner.

Ahmed Ali Khan and Muhammad Ayaz Chaudhry and Miss Samina Kanwal for Respondents No.2.

Date of hearing: 30th September, 2013.

MLD 2014 PESHAWAR HIGH COURT 829 #

2014 M L D 829

[Peshawar]

Before Yahya Afridi, J

MUHAMMAD SIDDIQUE KHAN---Petitioner

Versus

MUHAMMAD YOUSAF---Respondent

Civil Revision No.380-A of 2010, decided on 5th December, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 6---Suit for pre-emption---Talbs, performance of---Requirements---Trial Court decreed the suit to the extent of half property but Appellate Court decreed the same to the extent of whole property---Validity---Both the courts below had correctly and legally appreciated the evidence with regard to performance of talbs and recorded concurrent findings---Plaintiff had fulfilled the requirements of S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Both the parties were co-owners in the disputed khata which was undivided---Persons in an undivided khata would remain co-owners till its actual partition between them---Plaintiff and defendant were Khata Sharik owners in the present case---Appellate Court had wrongly observed that plaintiff and defendant had no right of Shafi Sharik over the suit land due to bifurcation of different Khasra numbers by intervening thoroughfare---Findings of Appellate Court were not based on correct appreciation of revenue record and evidence produced by the parties---Appeal was partially accepted and decision of Appellate Court was set aside and that of Trial Court was restored.

Muhammad Muzaffar Khan's case PLD 1959 SC 9 rel.

Muhammad Ali Khan for Petitioner.

Malik Mehmood Akhtar for Respondent.

Date of hearing: 5th December, 2012.

MLD 2014 PESHAWAR HIGH COURT 869 #

2014 M L D 869

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khan Khattak, JJ

ATTA ULLAH---Petitioner

Versus

MUHAMMAD UMAR and 2 others---Respondents

Writ Petition No.459 of 2009 with C.Ms. Nos. 126, 198, 237 and 252 of 2013, decided on 3rd July, 2013.

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

----O.VI, R.7---Pleadings---Departure from the pleadings could not be allowed unless permission was sought from court and necessary amendment was made.

(b) West Pakistan Urban Rent Restriction Ordinance, (IV of 1959)---

----S.13(4)---Ejectment petition---Eviction of tenant on ground of bona fide personal need of landlord---Right of tenant to get restored the possession of suit property---Scope---Mere sole statement of the landlord in that behalf was sufficient for ejectment of the tenant---Ejectment of tenant was made on the basis of personal need, the landlord was bound to make use of the suit shops---Landlord opted for the use of suit property for the purpose other than taken as ground in the ejectment petition---Tenant was at liberty to seek restoration of possession from the Rent Controller within specified time.

Zafar Iqbal Chaudhary, Shaukat Hayat Khan Khakwani and Zafar Iqbal Awan for Petitioner.

Chaudhry Muhammad Khalid for Respondents.

Date of hearing: 3rd July, 2013.

MLD 2014 PESHAWAR HIGH COURT 878 #

2014 M L D 878

[Peshawar]

Before Syed Afsar Shah, J

NAIMAT ULLAH---Petitioner

Versus

FAIZULLAH KHAN---Respondent

Civil Revision No.53-B of 2011, decided on 9th December, 2013.

Islamic law---

---Gift---Ingredients---Scope---Contention of plaintiff was that he did not appear before the revenue officer for attestation of gift mutation and same was result of fraud and collusion---Suit was decreed concurrently---Validity---Donee neither produced witnesses of impugned mutation nor the revenue officer---Defendant was bound to prove the factum of gift as well as its ingredients i.e. offer, acceptance and delivery of possession of property through independent and confidence inspiring evidence---Onus to prove the execution of document of gift would be on the donee---Mere attestation of mutation would not confirm any right or title---Possession of suit property in favour of defendant was doubtful---Donee had failed to prove the gift being valid and genuine in his favour---No mis-reading or non-reading had been pointed out by the defendant---No jurisdictional defect was found in the concurrent findings of both the courts below---Revision was dismissed in circumstances.

Allah Diwaya v. Jag Subhai 1989 ALD 260(2) and Ayub Khan and another v. Mst. Maknoon 2010 CLC 870 rel.

Aslam Khan Michan Khel for Petitioner.

Ikramullah Khan Marwat for Respondent.

Date of hearing: 9th December, 2013.

MLD 2014 PESHAWAR HIGH COURT 891 #

2014 M L D 891

[Peshawar]

Before Syed Afsar Shah, J

NOORMAR JAN---Petitioner

Versus

ABDUL DEYAN and others---Respondents

Civil Revision No.73-B of 2009, decided on 16th December, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-i-Muwathibat, performance of---Requirements---Rival pre-emptor---Non-examination of informer---Effect---Plaintiff had not examined the informer and inference could be drawn that he might not support him if had been produced as a witness---Pre-emptor had failed to comply with the mandatory provisions of S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Revision was dismissed in circumstances.

Sarwar Ahmad v. Iftikhar Ahmad and others 2012 YLR 2348 and Mst. Zahida Parveen v. Mst. Parveen Akhter 2012 CLC 1497 rel.

Sardar Naeem and Sakhi Janan for Petitioner.

Sifat Ali Khan Khattak for Respondents.

Date of hearing: 16th December, 2013.

MLD 2014 PESHAWAR HIGH COURT 908 #

2014 M L D 908

[Peshawar]

Before Waqar Ahmed Seth, J

FAIZ---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.522-A of 2013, decided on 2nd September, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.337-A (ii)---Shajjah-i-mudihah---Bail, grant of---Case of further inquiry---Principle of consistency---Fire shot, non-repeating of---Incident was midnight occurrence and no independent witness was available on record except statement of complainant---Validity---No weapon of crime was recovered from spot and investigation in the case was almost complete, therefore, case of accused was one of further inquiry---Co-accused had already been released on bail, who initially stated the episode, hence principle of consistency was to be adopted in the matter---Sharp conflict in ocular and medical evidence was on record, with no repetition of act/fire nor there was any fracture, besides non-mentioning of motive in F.I.R.---Nothing on record suggested that accused was a previous convict, habitual or hardened or dangerous criminal, therefore, accused was entitled to concession of bail---Accused had been behind the bars since his arrest and he was no more required by police---Bail was allowed in circumstances.

Banaras Khan for Petitioner.

Naeem Ahmed Tahir Khaili for the State.

Fazal-e-Haq Abbasi, for the Complainant.

Date of hearing: 2nd September, 2013.

MLD 2014 PESHAWAR HIGH COURT 932 #

2014 M L D 932

[Peshawar]

Before Yahya Afridi, J

FARMANULLAH---Petitioner

Versus

BASHIR and another---Respondents

Criminal Miscellaneous No.176 of 2013, decided on 20th January, 2014.

Criminal Procedure Code (V of 1898)---

----Ss, 561-A & 517---Control of Narcotic Substances Act (XXV of 1997), S.33---Confiscation of vehicle allegedly used in offence---Dismissal of application for custody of vehicle on 'Superdari'---Petition for quashing of order of dismissal---Nothing had been brought on the record to show that substance recovered from the vehicle in question was transported with the consent, connivance or complicity of the petitioner; or that contraband was kept in secret cavity of the vehicle---Retention of vehicle in Police custody would not be necessary for any purpose---Trial Court had to consider the title and registration of the vehicle in the name of the petitioner during trial as envisaged in S.33 of Control of Narcotic Substances Act, 1997---If the vehicle was required for production and exhibition in the court, that could be arranged by directing the petitioner to produce the same, if and when required---Allowing petition, vehicle was directed to be released to the petitioner on furnishing bonds in the sum of Rs.5,00,000, with sureties.

Noor Alam Khan for Petitioner.

Mian Arshad Jan, A.A.-G. for the State.

Date of hearing: 20th January, 2014.

MLD 2014 PESHAWAR HIGH COURT 942 #

2014 M L D 942

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

Mst. BAKHT SABA and another---Appellants

Versus

The STATE through Additional Advocate-General and another---Respondents

Criminal Appeal No.117 of 2013, decided on 11th October, 2013.

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

----S.302 (b)---Qanun-e-Shahadat (10 of 1984), Art.129 (g)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Unexplained delay in F.I.R.---Withholding of evidence---Presumption---Both accused women were convicted by Trial Court and sentenced to imprisonment for life---Validity---Delay had occurred in lodging F.I.R., as occurrence was alleged to have taken place at midnight while report was lodged at 10.15 hours---Complainant was stated to have received information regarding death of his brother at 7.30/8.00 a.m., whereas distance between place of occurrence and police station was 10/12 kilometer and there was no explanation regarding such delay---Conduct of complainant immediately after incident was contrary to natural course of human conduct as he did not make efforts either to take dead body of his brother to hospital or police station rather he was waiting for arrival of police to the spot, therefore, consultation and deliberation in lodging of report could not be ruled out---Prosecution did not produce those two prosecution witnesses who had allegedly helped accused while shifting dead body of deceased to the house rather abandoned them inspite of the fact that they were important witnesses to provide support to the case of prosecution---Presumption under illustration (g) of Art. 129 of Qanun-e-Shahadat, 1984, could be drawn in favour of accused as prosecution had withheld its best evidence---Single circumstance creating reasonable doubt in a prudent mind was sufficient for acquittal of accused not as a matter of grace but as a matter of right---Evidence led against accused persons was not sufficient for maintaining conviction and sentence---High Court extended benefit of doubt to both the accused and they were acquitted of the charge---Appeal was allowed in circumstances.

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

----S.164---Confessional statement---Duty of Magistrate---Scope---Great duty is cast upon Magistrate recording confession to be satisfied that confession has been voluntarily made---To that end Magistrate must make inquiry before recording confession.

----S.164---Confessional statement---Voluntariness---Proof---Two accused not knowing Urdu language while Magistrate did not understand Pashto language---Magistrate recorded confessions through his steno and such fact was not mentioned by him in confessional statements---Complete disorder existed in verbal communication between Magistrate concerned and accused---Even the stenographer was not produced as witness---Magistrate failed to satisfy himself regarding voluntariness of confessional statements in circumstances.

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

(d) Criminal trial---

----Confession, retracted---Value---Conviction can be based on retracted confession alone but if it is found voluntary, true and confidence inspiring.

Bahadur Khan v. The State PLD 1995 SC 336 rel.

(e) Criminal trial---

----Benefit of doubt---Scope---Conviction must be founded on unimpeachable evidence and certainty of guilt---Any doubt that arises in prosecution case must be resolved in favour of accused.

Jahangir for Appellants.

Sajjad Anwar for the Complainant.

Muhammad Javed, A.A.-G. for the State.

Date of hearing: 11th October, 2013.

MLD 2014 PESHAWAR HIGH COURT 962 #

2014 M L D 962

[Peshawar]

Before Muhammad Daud Khan, J

Mst. MAHAR ANGIZA and 5 others---Petitioners

Versus

Mst. BAKHTI RAJA---Respondent

Civil Revision No.238 with C.M. No.362 of 2013, decided on 19th August, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Inheritance---Plaintiff filed suit to the effect that she was legal sharer of the suit property---Contention of defendants was that she had received her share in the shape of cash amount---Suit was decreed concurrently---Validity---Sale of share was not proved through cogent and reliable evidence which was requirement of law---Payment of alleged money by the defendants could not deprive the plaintiff from her inheritance right---Courts below concurrently decided the case in accordance with law and exercised their jurisdiction to protect the rights of women-folk---Defendants had failed to point out any illegality or irregularity in the concurrent findings of both the courts below---Judgments of both the courts below neither suffered from miscarriage of justice nor were the result of misreading or non-reading of evidence on the record---Concurrent findings of courts below could not be set at naught by the High Court unless it was established that same were perverse, fanciful or erroneous---Revision was dismissed.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; 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 Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 rel.

Umar Ali Akhundzada, Advocate for Petitioners.

MLD 2014 PESHAWAR HIGH COURT 971 #

2014 M L D 971

[Peshawar]

Before Waqar Ahmad Seth, J

SAADIA SAJJAD---Petitioner

Versus

KMU and others---Respondents

Writ Petition No.434-A of 2012, decided on 13th June, 2013.

Khyber Medical University Act (I of 2007)---

----S. 30---Medical and Dental Council Ordinance (XXXII of 1962) Ss.11 & 22-A---Constitution of Pakistan, Art. 199---Constitutional petition---Educational institution---Private Medical College---Affiliation----Recognition of medical institution and qualifications----Petitioners who were students at a medical college which was not affiliated with the Medical University, sought regularization of their studies and registration as medical students with the Khyber Medical University and prayed that they be allowed to participate in the forthcoming final year examination---Validity---No medical institution or university could train or grant medical qualifications, degree or diploma unless said qualifications had been accorded in recognition of terms of S. 11 of the Medical and Dental Council Ordinance, 1962 and admittedly, the medical college of the petitioners was not registered or recognized under S. 11 of the Medical and Dental Council Ordinance, 1962 therefore, it needed to be investigated as to how said medical college remained functional for the past few years and was giving admissions to students especially when officials of council were visiting its premises---High Court directed the NAB authorities to investigate the matter and initiate proceedings against all relevant authorities and officials of PMDC---High Court further directed the PMDC to take immediate action against the petitioners' medical college within fifteen days, and that all students of said medical college be adjusted in private sector medical colleges under supervision of the PMDC within fifteen days, and that the final year students who were permitted to appear in final year examination, should also be adjusted in private sector medical colleges in the final year after due verification of their documents----Constitutional petition was disposed of, accordingly.

Imran Younis for Petitioner.

Asad Tanveer Qureshi for Respondents Nos.1 and 2.

Shoaib Khan for Respondents Nos. 3 and 4.

Mrs. Sara Ibad Nasir Natvi and Mehdi Zaman for Respondents No.5.

Hashmat Habib for Respondent No.8.

Representative of Respondent No.7 present.

Date of hearing: 13th June, 2013.

MLD 2014 PESHAWAR HIGH COURT 988 #

2014 M L D 988

[Peshawar]

Before Mrs. Irshad Qaiser, J

ARSHAD HABIB---Petitioner

Versus

Mst. GHAZALA AKBAR and 2 others---Respondents

Writ Petition No.521-A of 2012, decided on 4th June, 2013.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suits for recovery of dowry articles, dower, maintenance allowance and restitution of conjugal rights were decreed by the Trial Court but no appeal was filed---Judgments and decrees had attained finality---After lapse of two years, husband was estopped to call in question the validity of the same.

(b) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2(ii-a)---Constitution of Pakistan, Art. 199---Constitutional petition---Dissolution of marriage---Second marriage of husband as ground for dissolution of marriage---Contention of the wife was that husband had contracted second marriage without her consent---Suit was decreed by the Trial Court---Husband had failed to rebut the presumption attached to the entries of Nikah Nama---Husband had not taken consent or permission from wife to solemnize second marriage---Ground enumerated in S. 2(ii-a) of the Dissolution of Muslim Marriages Act, 1939 alone was sufficient to dissolve the marriage---Constitutional petition was dismissed.

Aurangzeb v. Ejazul Hassan Khan and another PLD 1984 Pesh. 49 rel.

Baqar Khattak for Petitioner.

Muhammad Shahbaz for Respondents.

Date of hearing: 4th June, 2013.

MLD 2014 PESHAWAR HIGH COURT 1008 #

2014 M L D 1008

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

HUSSAIN GUL---Petitioner

Versus

SOORAT SHAH and others---Respondents

C.M. No.829 with Civil Revision No.969 of 2011, decided on 20th May, 2013.

(a) Malicious prosecution---

----Ingredients---Damages---Plaintiffs filed suit for recovery of Rs.5,00,000 as damages on the ground of malicious prosecution---Suit was decreed to the tune of Rs.1,00,000 concurrently---Validity---Acquittal of the plaintiffs-respondents in the criminal case would not confer right to sue the defendants-petitioners for damages on the basis of malicious prosecution---Prosecution of criminal offence would provide cause for damages for malicious prosecution to the acquitted accused if the same was based on malice of the complainant and that too, when same was without any reasonable and probable cause---Plaintiffs-respondents failed to prove and establish their case and their evidence was deficient in regard to the ingredients of malicious prosecution---Tenor of cross-examination of the defendants-petitioners' witnesses by the plaintiffs-respondents would establish the fact that there was criminal offence wherein plaintiffs-respondents were charged but were acquitted, such acquittal would not ipso facto make them entitled for damages for malicious prosecution---Courts below had failed to appreciate the evidence available on the record and findings being against the record could not left to remain in the field---Judgments and decrees of the courts below were set aside and suit of the plaintiffs-respondents stood dismissed.

(b) Malicious prosecution---

----Damages---Ingredients---Plaintiff in a suit for damages for malicious prosecution should prove that he was prosecuted by the defendant; that the prosecution ended in his favour; that the proceedings had interfered with his liberty and had also affected his reputation; that he was prosecuted with malice and prosecution was without reasonable and probable cause---Unless such ingredients were established, one could not be held entitled for the damages for malicious prosecution.

Rafique Ahmed Khan v. Province of Punjab 2004 SCMR 1065; Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700; United Bank Limited and 5 others v. Raja Ghulam Hussain and 4 others 1999 SCMR 734; Mst. Afroz Qureshi and another v. Muhammad Ikram Siddiqui 1995 CLC 735; Juma Gul v. Yaqeen Khan PLD 2008 Pesh. 21; Sher Muhammad v. Moula Bux 1995 CLC 1134 and Allah Din v. Muhammad Hussain and 2 others PLD 2012 Lahore 279 rel.

Zafrullah Khan for Petitioner.

Noor Rahim for Respondents.

Date of hearing: 20th May, 2013.

MLD 2014 PESHAWAR HIGH COURT 1021 #

2014 M L D 1021

[Peshawar]

Before Malik Manzoor Hussain, J

AYUB KHAN and 3 others---Petitioners

Versus

The STATE and 3 others---Respondents

Quashment Petition No.23-P of 2013, decided on 12th June, 2013.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Illegal Dispossession Act (XI of 2005), Ss.3, 5, 6 & 7---Illegal possession of property---Quashing of order, petition for---Complainants were owners in possession of disputed property---Report of S.H.O., coupled with revenue record supported the contention of complainant---Right of petitioners, if any had to be seen after recording of evidence; and that too after finalization of civil suit filed by them---Civil suit for possession through partition was filed much after filing of complaint under Illegal Dispossession Act, 2005---No possession was regulated by the civil court at the time of filing of complaint---If the case of illegal occupation was not already pending before any other forum on the date of enforcement of Illegal Dispossession Act, 2005, same would squarely fall within the ambit of said Act---Occupier in peaceful possession could not be dispossessed as per provision of S.3 of Illegal Dispossession Act, 2005---For the purpose of attracting the provisions of S.3, the court was required to examine as to whether the occupier of such property was in its lawful possession; and accused had entered upon the property unlawfully; and to dispossess the occupier---Even co-owner, could not dispossess another co-sharer, without suit for partition or due course of law---Impugned order, which was rightly passed, was maintained and petition under S.561-A, Cr.P.C. being devoid of force was dismissed, in circumstances.

Ch. Gulzar Ahmed v. The State 2004 YLR 1321; Jan Pervez v. Haji Fazal Hussain PLD 2007 Pesh. 179; Bashir Ahmed v. Additional Sessions Judge, Faisalabad and 4 others PLD 2010 SC 661 and Mumtaz Hussain v. Dr. Nasir Khan 2010 SCMR 1254 distinguished.

Rahim Tahir v. Ahmed Jan PLD 2007 SC 423 and Shahabuddin v. The State PLD 2010 SC 725 rel.

Asif Hameed Qureshi for Petitioner.

Sultan Hussain for the State.

Ibrahim Shah for the Complainant.

Date of hearing: 12th June, 2013.

MLD 2014 PESHAWAR HIGH COURT 1025 #

2014 M L D 1025

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

Mst. HUSSAN HAWA and 8 others---Petitioners

Versus

SHER AMAN and 8 others---Respondents

Civil Revision No. 457-P of 2012, decided on 2nd May, 2013.

Civil Procedure Code (V of 1908)---

----S.115---Concurrent findings of fact by courts below---Interference in such findings by High Court in revisional jurisdiction---Scope---Such interference neither permissible nor warranted by law---High Court in order to justify such interference would attend to reasons recorded by courts below in support of such findings and discover in their reasoning mis-reading, non-reading or perverse appreciation of evidence.

Nek Nawaz Khan Awan for Petitioners.

Mazullah Barkandi for Respondents.

Date of hearing: 2nd May, 2013.

MLD 2014 PESHAWAR HIGH COURT 1038 #

2014 M L D 1038

[Peshawar]

Before Mrs. Irshad Qaiser, J

Haji SHAH ZAMAN BAIG---Petitioner

Versus

SENIOR MEMBER OF REVENUE and 4 others---Respondents

Writ Petition No.493-A of 2009, decided on 4th June, 2013.

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

----S. 3---Constitution of Pakistan, Art.199---Constitutional petition---Undisposed evacuee property---Contention of petitioner was that shops in question were allotted to him and one room on the ground floor of shops had not been allotted to anyone---Settlement department on appeal had found that room in question would retrieve to the Government---Findings recorded by the Settlement Authorities were reasonable and legally justified and no illegality had been committed---Constitutional petition was dismissed.

Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others PLD 1991 SC 1 rel.

Muhammad Ayub Awan for Petitioner.

Muhammad Nawaz Khan Swati, A.A.-G. and Abdul Shakoor Khan for Respondents.

Date of hearing: 4th June, 2013.

MLD 2014 PESHAWAR HIGH COURT 1072 #

2014 M L D 1072

[Peshawar]

Before Abdul Latif Khan, J

Mst. NASREEN BIBI---Petitioner

Versus

SAHIB JAN and 2 others---Respondents

Civil Revision No.18 of 2010, decided on 30th September, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirement---Plaintiff received notice on behalf of vendors disclosing their intention to sell suit property but she refused to purchase the same on the rate mentioned therein---Plaintiff was having prior knowledge of sale of suit land and was not co-owner of the land---Notice of Talb-i-Ishhad was scribed and signed by the attorney on behalf of plaintiff and same was mailed to the defendants---Talbs were personal act and same were to be performed in person---Attorney was not present at the time of performance of Talb-i-Muwathibat and knew nothing about first talb---Second talb being confirmation of Talb-i-Muwathibat could be performed by the plaintiff or through person present at the time of performance of Talb-i-Muwathibat---Person not present at the time of performance of first talb was not competent to perform second talb---Second talb, in circumstances, was not performed properly and would amount to its non-performance in accordance with law---Contradictions in the statement of witness would amount to disqualification in view of law with regard to truthfulness of witness---Both the courts below had rightly appraised the evidence on record---Judgments of courts below were not suffering from mis-reading or non-reading of evidence---Revision was dismissed in circumstances.

Saleem Nawaz Awan for Petitioner.

Abdullah Khan Gandapur for Respondents.

Date of hearing: 30th September, 2013.

MLD 2014 PESHAWAR HIGH COURT 1080 #

2014 M L D 1080

[Peshawar]

Before Qaiser Rashid Khan, J

MUHAMMAD AKBAR---Petitioner

Versus

Mst. SURAYA BEGUM and others---Respondents

Civil Revision No. 403 of 2011, decided on 8th December, 2011.

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

----Arts. 117, 120 & 127---Specific Relief Act (I of 1877), S.42---Declaration of title---Gift---Inherited property---Gift deed by pardanashin lady---Plaintiff being sister of defendant disputed gift deed in favour of defendant on the ground of deception and fraud---Trial Court decreed the suit and judgment and decree passed by Trial Court were maintained by Appellate Court---If genuineness of a transaction entered on behalf of a pardanashin lady was disputed, heavy onus would lie on the person who asserted right through it, to prove the good faith and genuineness---Pardanashin lady signed the document and later on came to know that she had been deceived and defrauded---Pardanashin lady or for that matter even a moderately educated lady was unable to understand the technicalities of transactions and that too, in a situation where the perpetrators of fraud were their real brothers---Gullible as the ordinary women were, it was quite understandable that they fall easy prey to such machinations especially when they were executed with a degree of finesse by their otherwise benign looking real brothers---Burden to prove the gift fell squarely on the shoulders of the beneficiaries---Petitioner had failed to discharge the burden of proof, High Court dismissed the petition.

Arshad Khan v. Mst.Resham Jan and others 2005 SCMR 1859 rel.

(b) Gift---

----Sine qua non of a valid gift i.e., offer, acceptance and delivery of possession had not been proved during the course of evidence, which singularly nullified the gift.

Malik Muhammad Asad for Petitioner

MLD 2014 PESHAWAR HIGH COURT 1095 #

2014 M L D 1095

[Peshawar]

Before Mrs. Irshad Qaiser, J

AZIZ AHMAD---Appellant

Versus

EJAZ AHMAD and 3 others---Respondents

R.F.A. No.202 of 2011, decided on 25th February, 2013.

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

----S. 5---Condonation of delay---Delay in filing appeal would not be condoned, once a matter was shown to be time-barred and the presentation of appeal before wrong forum was an act of gross negligence.

Abdul Ghani v. Ghulam Sarwer PLD 1977 SC 102 ref.

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

----S. 14---Exclusion of time---Scope---Section 14 of Limitation Act, 1908, permits the exclusion of time only for proceedings "prosecuted in good faith", therefore; in order to make out sufficient cause under S.5 of Limitation Act, 1908, a party must prove that he had acted in good faith in presenting his appeal in the wrong court---Good faith has been defined in clause (7) of S.2 of the Limitation Act, 1908.

----S. 5---Condonation of delay---Sufficient cause---Party could bring his case under S.5 of Limitation Act, 1908, if he could show that there was some ambiguity in the law governing the forum in which the appeal was to be filed or he could show that he was misguided by the practice of the court or by an erroneous judgment of the court.

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

----Ss. 5 & 14---Limitation---Due diligence---Good faith---Sufficient cause---Section 14 of the Limitation Act, 1908 provided that time spent in pursuing the proceedings before wrong appellate forum, could not be excluded, for the purposes of filing of an appeal and in case appeal was barred by time the provision of S.5 of Limitation Act, 1908, could only be invoked by showing the sufficient cause---Two expressions "due diligence" and "good faith" in S.14 of Limitation Act, 1908, do not occur in S.5 of Limitation Act, 1908, which enjoins only "sufficient cause"---Expressions "due diligence" and "good faith" used in S.14 of Limitation Act, 1908, could not be equated with the expression "sufficient cause" used in S.5 of Limitation Act, 1908.

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

----Ss. 5 & 14---Limitation---Discretion---Power to condone the delay and grant an extension of time under S.5 of Limitation Act, 1908, was discretionary, whereas exclusion of time under S.14 of Limitation Act, 1908 was mandatory on the satisfaction of the condition prescribed therein.

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

----Ss. 5 & 2(10)---Condonation of delay---Legislature had specifically excluded the appeal or an application from the purview of "suit"---Benefit of S.14 of Limitation Act, 1908, could not be extended to exclude the time consumed in prosecuting an appeal before wrong forum having no jurisdiction, for the purposes of filing an appeal before a forum having jurisdiction.

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

----Ss. 5 & 14---Condonation of delay---Wrong ill advice of the counsel was not a valid ground for condonation of delay.

Sibtain Raza Hydrocarbon Developer 2012 SCMR 377 and PLD 2003 Pesh. 46 ref.

Siraj Muhammad for Appellant.

Aurang Zeb Khan for Respondents.

Date of hearing: 25th February, 2013.

MLD 2014 PESHAWAR HIGH COURT 1110 #

2014 M L D 1110

[Peshawar]

Before Waqar Ahmad Seth, J

SDA and others---Petitioners

Versus

HEC---Respondent

Civil Revision No.330-A of 2007, decided on 31st March, 2014.

Civil Procedure Code (V of 1908)---

----O.XXIX, R.1---Specific Relief Act (I of 1877), S.42---Suit by Company---Lower courts dismissed the suit by company without resolution of the Board of Directors of the company---Validity---Manager or Director of a company incorporated under the Companies Ordinance, 1984 should be authorized by the company by means of a resolution passed in proper meeting of the Board of Directors---Manager of the plaintiff company was not authorized by the resolution---Suit was not maintainable---When law required an act to be done in particular manner, that act had to be done in that manner---Revision was allowed.

Khan Iftikhar Hussain Khan v. Messrs Ghulam Nabi Corporated Ltd., Lahore PLD 1971 SC 550; Messrs Pakistan Oil Mills (Pvt.) Ltd. v. Messrs Peter Shipping Co. Ltd., and others 2005 MLD 1745 and 1992 SCMR 46 ref.

Malik Muhammad Akhter for Petitioners.

Javid Qureshi for Respondent.

Date of hearing: 31st March, 2014.

MLD 2014 PESHAWAR HIGH COURT 1116 #

2014 M L D 1116

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

Mst. SHEREEN SHAHZADGAI---Petitioner

Versus

SAIFUR REHMAN and another---Respondents

Civil Revision No.1221 of 2004, decided on 17th January, 2013.

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

----S. 42---Suit for declaration---Share in legacy of father according to Shariah claimed by first daughter (plaintiff)---Plea of brother and sister of plaintiff (first and second defendants) was that share of plaintiff and first defendant had been given to each of them in cash through decision of Jirga in year 1980; and that second defendant through agreement dated 27-2-1998 on her own behalf as well as on behalf of plaintiff had admitted receipt of such share---Suit dismissed by Trial Court upheld by Appellate Court---Validity---According to first defendant, decision of alleged Jirga was not reduced into writing, thus, he was obliged to prove through cogent evidence that Jirga was convened to resolve issue of such legacy and that each legal heir had received his/her due share as per decision of Jirga---Second defendant had executed such agreement after filing of suit in year 1997---Such agreement was not binding on plaintiff as she was neither party thereto nor had thumb marked same nor was present at time of its execution by second defendant---Second defendant had not examined herself as witness in support of her written statement and such agreement---Plaintiff had denied her presence at time of Jirga---According to defendants' one witness, such cash payment was made to both plaintiff and second defendant just after decision of Jirga, whereas according to their second witness, plaintiffs share was paid in installments---Defendants had failed to prove payment of cash amount to plaintiff as her share in such legacy---Findings arrived at by courts below were result of mis-reading and non-reading of material evidence on record---High Court accepted revision petition and decreed plaintiff's suit in circumstances.

Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447; Rab Nawaz Khan and another v. Mst. Waziran Mai and 6 others 2004 MLD 1699; Abdul Jabbar and others v. Muhammad Jabbar 2002 SCMR 117; Khona Gul v. Mian Said Farid PLD 1983 SC 209; Dilawar Jan v. Gul Rehman and 4 others PLD 2001 SC 149 and Khalil-ur-Rehman and 5 others v. Talayzar Khan PLD 1992 SC 442 ref.

2002 SCMR 1173 rel.

(b) Islamic Law---

----Inheritance, claim of "Sharai" share in---Limitation---No period of limitation fixed for claiming such share by a person in legacy of his/her predecessor---Principles.

Under any law of the land whether it is customary,'" "Riwaj" or any statutory law, no time frame can be fixed for claiming a "Sharia" share by a person in the legacy of his predecessor, because inheritance always opens just after the death of a person and every legal heir becomes entitled to his respective share in the legacy of the deceased and thereby attains the status of a co-sharer/co-owner in the property so received. Incorporation of the said share in the revenue record at any subsequent stage would be immaterial and would not affect right of inheritance.

----Suit by co-sharer not in physical possession of property---Limitation---Scope---No limitation would run against such co-sharer, thus, he could not be denied his right on account of efflux of time---Principles.

No limitation would run against co-sharer/co-owner, even if a co-sharer/co-owner is out of physical possession of the property. Similarly, every co-sharer/co-owner is presumed to be in symbolic possession of his property and the physical possession of a co-sharer/co-owner would amount to possession of all the co-sharers/co-owners, who cannot be denied his/her right on account of afflux of time.

Muhammad Anwar for Petitioner.

Sher Muhammad Khan for Respondents.

Date of hearing: 17th January, 2014.

MLD 2014 PESHAWAR HIGH COURT 1135 #

2014 M L D 1135

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

KHAN SHAHZADA---Appellant

Versus

ALLIED BANK LTD. and another---Respondents

R.F.A. No. 22-P of 2013, decided on 30th April, 2013.

(a) Malicious prosecution---

----Suit for damages---Appeal---Pecuniary jurisdiction---Additional District Judge had no jurisdiction to entertain the appeal but High Court was the forum where such appeal lays.

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

----O. XVII, R. 3---Malicious prosecution---Damages---Closure of evidence---Plaintiff filed suit for malicious prosecution and for recovery of damages of Rs. 50,00,000---Suit was dismissed by the Trial Court due to failure of plaintiff to produce evidence---Validity---Plaintiff was to prefer the appeal against the judgment and decree of the Trial Court before the High Court but he preferred appeal before the Addl. District Judge when the value of the suit for the purpose of pecuniary jurisdiction was Rs. 50,00,000 mentioned by him in the plaint and was also evident from the decree sheet---Suit of the plaintiff was dismissed by the Trial Court on 28-5-2012 and he preferred the appeal before the High Court on 18-12-2012 after dismissal/return of his appeal on account of lack of pecuniary jurisdiction which was barred by time---Counsel for the plaintiff could not give reasonable and plausible justification as to why the plaintiff preferred appeal before the Addl. District Judge knowing the fact that he had got no jurisdiction to hear and decide the same on account of having no pecuniary jurisdiction exceeding Rs. 10,00,000--Additional District Judge had rightly dismissed the appeal for lack of jurisdiction---Appeal was dismissed in limine.

----Preamble---Object of law of limitation---Law of limitation could not be considered merely a formality but the same was required to be observed and taken into consideration being mandatory in nature---Purpose of law of limitation was to help the vigilant and not the indolent and helping hand could not be extended to a litigant having gone into deep slumber, on having become forgetful of his rights.

Jan Muhammad Khan for Appellant.

MLD 2014 PESHAWAR HIGH COURT 1175 #

2014 M L D 1175

[Peshawar]

Before Lal Jan Khattak, J

IJAZ HUSSAIN---Petitioner

Versus

BASHIR HUSSAIN KHAN and others---Respondents

Civil Revision Petition No.65-D of 2013, decided on 26th July, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Gift---Ingredients of gift---Burden of proof---Donor was father of plaintiffs while defendant was his nephew---When in presence of real sons a gift was made by the father in favour of somebody else then there was heavy burden on the shoulder of the donee to prove that the gift was free from all defects---Donee was bound to prove that gift was effected with free consent, free and peaceful mind, without any pressure or inducement etc and was made in conducive atmosphere by the donor which was known to his near relatives who neither raised any objection or reservation on the said gift---Until and unless such facts were proved it could not be said that gift was made in accordance with law---Donee had not produced any convincing evidence from which it could be ascertained that the donor had made gift in his favour---Mutation per se was not enough to establish title to property---Mutation was made for fiscal and revenue purposes and they were not substitute for the real and actual transaction---Marginal witnesses of gift mutation were resident of different village and they were not witnesses of the real and basic gift transaction in pursuance of which gift mutation was entered and then attested---Witnesses of plaintiffs were just witnesses of mutation alone and not of the factum of gift which was an independent and separate transaction---Mere recital that in their presence the revenue officer put to the donor a query with regard to his willingness to the gift was not a proof that gift was made by the donor---Defendant was bound to prove the factum of gift as to when the offer of gift was made, who was present at that time and he accepted such offer and he was put into possession of the gifted land---Ingredients of a valid gift were lacking in the present case which caused doubt on the legality of alleged gift---Defendant was not in possession of suit land which fact had weakened his stance that suit land was gifted to him---Defendant had responded in his written statement that suit land had been transferred to him through a sale transaction which fact was in negation to the plea taken by him in his evidence that the same was gifted to him by the donor---Both the courts below had rightly and correctly appreciated and assessed the evidence---No illegality or infirmity in the concurrent findings of the courts below was found---Revision was dismissed in circumstances.

Muhammad Waheed Anjum for Appellant.

Abdullah Khan Gandapur for Respondents.

Date of hearing: 26th July, 2013.

MLD 2014 PESHAWAR HIGH COURT 1186 #

2014 M L D 1186

[Peshawar]

Before Malik Manzoor Hussain and Ikramullah Khan, JJ

Haji MUHAMMAD ADEEL and 8 others---Petitioners

Versus

CANTONMENT BOARD, PESHAWAR through the Cantonment Executive Officer, Peshawar Cantt. and 3 others---Respondents

Writ Petition No.1385 of 2013, decided on 27th August, 2013.

(a) Central Government Land and Building (Recovery of Possession) Ordinance (LIV of 1965)---

----Ss.2(a), 2(e) (ii), 3 & 6---Cantonment Rent Restriction Act (XI of 1963), S.3(b)---Constitution of Pakistan, Art.199---Constitutional petition---Un-authorized occupant, eviction of---Property owned by Cantonment Board---Petitioners were inducted as tenant/lessee in the premises through agreement, which was not further extended---Cantonment-board, sealed the rent premises after expiry of agreement and restrained the petitioner tenants/lessees from entering into premises previously occupied by them---Contention of the tenants/lessees was that eviction was taken in disregard to Cantonment Rent Restriction Act, 1963, therefore the same was illegal---Validity---Suit property belonged to Cantonment Board and as such, the Cantonment Rent Restriction Act, 1963 was not applicable to the disputed property---Property owned by the Cantonment Board fell within the definition of "property owned and controlled by government", therefore, Central Government Land and Building (Recovery of Possession) Ordinance, 1965 was applicable on the disputed property---Every lessee or licensee who remained in occupation of the land or building after the determination of lease or licence, became "unauthorized occupant" in respect of suit premises----In case of expiry of period of any lease or licence, any officer authorized by the Central Government on its behalf would, at any time, enter upon the demise land or building and recover the possession of same by evicting the lessee or licensee and may also demolish and remove the structure---Constitutional petition was dismissed.

Messrs Airport Support Services v. The Airport Manager and others 1998 SCMR 2268 ref.

(b) Central Government Land and Building (Recovery of Possession) Ordinance (LIV of 1965)---

----Ss.2(a), 2(e) (ii), 3 & 6---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Un-authorized occupant---Locus standi---Eviction of petitioners tenants/lessees after expiry of lease period---Scope---Tenants/lessees being un-authorized occupants could not seek equitable relief until and unless they come to court with clean hands---Constitutional petition would not lie for retention of ill-gotten gains---Writ has to be issued to right a wrong and not to perpetuate a wrong committed by the un-authorized occupants---Tenants/lessees were bound to hand-over the possession of the property in question, after expiry of lease period, in terms of agreement executed between the parties---Constitutional petition was dismissed.

----Ss.2(a), 2(e) (ii), 3 & 6---Constitution of Pakistan, Art.199---Constitutional petition---Landowners/Lessors and Tenants/Lessees, relationship of---Denial of relationship by tenants/lessees---Scope---On expiry of lease agreement, the tenants/lessees were evicted from suit premises---Contention of the petitioners tenants/lessees was that lessor/Cantonment Board had no lawful title of the premises and as such they could not disturb their possession---Validity---Petitioners tenants/lessees could not turn around and deny the title of the lessor/Cantonment Board in order to prolong their possession---Petitioners tenants/lessees who were inducted under a written agreement, could not challenge the title of lessor without first surrendering possession---Constitutional petition was dismissed.

Madrassa Dar-ul-Uloom v. The Additional District Judge and another PLD 1992 SC 401 and Province of Punjab through Education Secretary v. Mufti Abdul Ghani PLD 1985 SC 1 rel.

Abdul Lateef Afridi for Petitioners.

Abdul Sattar Khan and Ihsanullah for Respondents.

Date of hearing: 27th August, 2013.

MLD 2014 PESHAWAR HIGH COURT 1199 #

2014 M L D 1199

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

SAID RASOOL---Appellant

Versus

Dr. HAMAYUN KHAN and 4 others---Respondents

F.A.O. No.47 of 2011, decided on 4th November, 2013.

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

----Ss. 4, 8 & 15---Suit for recovery of damages---Publication of defamatory material in three leading newspapers of wide circulation causing mental torture to plaintiff and loss to his business and reputation---Filing of suit after giving notice thereof to defendant---Decree for Rs. 10,00,000 passed by Trial Court as against Rs.50,00,000 claimed in suit---Defendant's plea was that plaintiff had failed to comply with mandatory provision of S. 8 of Defamation Ordinance, 2002 for not having proved service of legal notice by examining official from Postal Department or producing postal receipt/ A.D., or receipt of courier service---Validity---Defendant in written statement and during trial had not denied factum of convening press conference and levelling of allegations against plaintiff---Press clippings containing defamatory statements, when tendered in evidence by plaintiff, had not been objected to by defendant---Defendant had produced in evidence copy of such like material without proving its genuineness---Such notice despite being mandatory could be given by any means i.e. through a messenger, ordinary post or any other possible mode---Such prior notice of action given to defendant had not been specifically denied by him nor had he objected to its tendering in evidence by plaintiff---Plaintiffs statement regarding giving prior notice of action to defendant had not been rebutted---Such notice of action would be presumed under law to have been given to defendant prior to filing of present suit---Defendant's such act was an actionable wrong, which had been proved, thus, no further and formal proof thereof would be required --Quantum of damages awarded by Trial Court was a bit harsh in absence of proof of special damages---General damages could be awarded keeping in view gravity of allegations and effect/size/influence of publication---High Court partially accepted appeal by awarding damages of Rs. 50,000 in given circumstances.

Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61; Badar Zaman v. Sultan 1996 CLC 202; Raja Hamayun Sarfaraz Khan and others v. Noor Muhammad 2007 SCMR 307 and Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others 2010 SCMR 1437 ref.

Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others 2010 SCMR 1437; Raja Hamayun Sarfaraz Khan and others v. Noor Muhammad 2007 SCMR 307 and Atta Muhammad Oureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61 rel.

Siemens Pakistan Engineering Co. Ltd. v. Pakistan and others 1999 PTD 1358 and Mudasser Iqbal Butt v. Shaukat Wahab and others PLD 2006 Lah. 557 distinguished.

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

----S. 8---Notice of action to defendant prior to filing of suit for damages by plaintiff---Proof---Such notice, though being mandatory, could be given by any means i.e. through a messenger, ordinary post or any other possible mode and was not statutorily required to be sent through registered post with Acknowledgment Due Card for proof of its delivery---Principles.

The intention of the legislature is quite visible from the plain reading of section 8 of the Defamation Ordinance, 2002. The perusal of this provision of law would make it clear that notice of action prior to filing of any claim/suit for damages is must, but the mode of communication of the same is not the concern of the legislature as nothing special in this regard has been given in the Statute. Had there been any such intention, then the same would have been expressly provided in the Statute like notice of "Talb-i-Ishhad" in pre-emption matters. It can be by any means whether it is through a messenger or through an ordinary post or any other possible mode, and purpose of the same is only to communicate one's intention to file a suit for damages in case the wrongdoer does not respond to the notice. It is not necessary that this notice must be sent through registered post with its acknowledgment for proof of its delivery.

Shah Faisal Utmankhel for Appellant.

Shakeel Ahmad for Respondents.

Date of hearing: 4th November, 2013.

MLD 2014 PESHAWAR HIGH COURT 1295 #

2014 M L D 1295

[Peshawar]

Before Waqar Ahmad Seth and Muhammad Daud Khan, JJ

Haji BASHEER MUHAMMAD---Appellant

Versus

ABDUL SHAMEER KHAN through Legal Heirs and 2 others---Respondents

R.F.A. No.268-M of 2011, decided on 16th January, 2014.

Specific Relief Act (I of 1877)---

----Ss. 42 & 8---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for declaration and possession of immovable property---Iqrarnama, onus to prove---Scope---Plaintiff filed suit for declaration whereas defendants filed suit for possession of disputed house---Contention of plaintiff was that he was owner in possession of suit house on the basis of sale-deed---Both the suits were consolidated and suit of plaintiff was dismissed whereas that of defendants was decreed by the Trial Court---Validity---Onus was on the plaintiff to prove the execution of Iqrar Nama which was a unregistered document through cogent, concrete and reliable evidence---No one could be deprived from his property in absence of forthright and convincing evidence---Original document had not been produced in the court at the time of recording of evidence---Statement of scribe who was servant of plaintiff did not find corroboration from any independent source---Scribe was not attesting witness of sale-deed---Two marginal witnesses of an agreement were necessary to be examined for proving the same---Sale deed had not been proved in accordance with law---Oath Commissioner had not been produced to prove the factum of possession---Appeal was dismissed in circumstances.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Muhammad Yousaf v. Muhammad Ramzan and another 2010 YLR 3222; Ameer and another v. Mohabbata and another 2006 SCMR 690 and Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others 2007 SCMR 1884 rel.

Abdul Sattar Khan for Appellant.

Maazullah Barkandi for Respondents.

Date of hearing: 16th January, 2014.

MLD 2014 PESHAWAR HIGH COURT 1315 #

2014 M L D 1315

[Peshawar]

Before Dost Muhammad Khan, C.J.

ZULFIQAR ALI---Petitioner

Versus

AKMAL KHAN---Respondent

Criminal Miscellaneous (B.A.) No.1803-P of 2013, decided on 17th January, 2.014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.409---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant---Bail, grant of---Further inquiry---Case against accused was that he while In charge of Utility Store, received certain items from the Head Office against proper receipts, but when said items were sold out, the sale proceeds thereof were not deposited by him in full into the bank and that accused, had therefore misappropriated government money---Alleged embezzlement spread over more than a year because the parties had decided not to initiate criminal proceedings and to settle the account through mutual negotiation---Such aspect strongly suggested that it was a matter of rectification of accounts/record and not deliberate embezzlement---Responsibility, could not be fixed explicitly on accused because counsel for Utility Store could not produce any Rule to show that it was duty of accused alone to make the deposit in the bank, and not of the cashier---Case of accused being one of further inquiry, where bail could not be refused lightly, accused was admitted to bail, in circumstances.

Ishtiaq Ibrahim and Qazi Babar Irshad for Petitioner.

Jalal-ud-Din for Respondent.

MLD 2014 PESHAWAR HIGH COURT 1325 #

2014 M L D 1325

[Peshawar]

Before Abdul Latif Khan, J

Syed WAQAS BACHA---Petitioner

Versus

JAN ALI SHAH and 2 others---Respondents

Civil Revision No.1349 of 2011, decided on 13th May, 2013.

(a) Khyber Pakhtunkhaw Pre-emption Act (X of 1987)---

----S.13---Talbs, performance of---Object---Talb-i-Muwathibat---Scope---Provision of S. 13(1) of Khyber Pakhtunkhaw Pre-emption Act, 1987 envisaged the knowledge of factum of sale by the pre-emptor, secondly such knowledge emanating from a sitting or meeting (Majlis) and thirdly the declaration of his intention to exercise the right of pre-emption on acquiring knowledge---Performance of Talb-i-Muwathibat was necessary, as the same according to law amounted to foundation and the superstructure raised would crumble down, if the same was defective.

(b) Khyber Pakhtunkhaw Pre-emption Act (X of 1987)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Talb-i-Muwathibat, performance of---Examination of informer---Plaintiff filed pre-emption suit which was dismissed concurrently---Validity---Plaintiff-petitioner had been unable to explain as to why the informer and one other had not been produced in the evidence---No doubt two witnesses of Talb-i-Muwathibat had been produced, but pre-emptor had no authority to abandon any of the witnesses including informer present at the time of performance of Talb-i-Muwathibat and non-production of the person, from whom pre-emptor acquired knowledge of sale could lead to an adverse inference that he might not had supported the pre-emptor, if had been produced as witness and conclusion could be that no jumping demand was established on account of failure of informer to depose before the court---Making of demand, in the present case, was alleged to have been made in the presence of witnesses, four in number, out of those two including informer had been abandoned, without any explanation, despite the fact that name of the informer, which was a pre-requisite and being most important witness , his examination could not be dispensed with---Under Art. I29(g) of Qanun-e-Shahadat, 1984, adverse inference had to be drawn against the plaintiff-petitioner that informer might not have supported the pre-emptor, if had been produced as a witness--Immediate demand, as prescribed under the law, was a bounden duty of the plaintiff-petitioner as the date on which he acquired the knowledge in a sitting (Majlis), wherein he claimed to have received information, from the informer and to lead evidence in line with his pleadings, in order to prove the factum of Talb-i-Muwathibat---No number of witnesses was provided under the law for proof of factum of Talb-i-Muwathibat but once the pre-emptor opted to name certain witnesses in the plaint and 'based reliance upon the information disclosed by the informer in the presence of other witnesses, in such eventuality, he had no authority to relinquish or abandon any of the witness including informer and would be under obligation to produce all those witnesses, if capable of giving evidence and subject to the process of court---Burden lay on the plaintiff-petitioner to prove the performance of Talbi-Muwathibat through satisfactory evidence as prescribed under the law which had not been discharged---Concurrent findings of the courts below suffered from no legal defect or infirmity---Revision was dismissed.

S.M. Attique Shah for Petitioner.

Qazi Muhammad Aqil for Respondents.

Date of hearing: 13th May, 2013.

MLD 2014 PESHAWAR HIGH COURT 1336 #

2014 M L D 1336

[Peshawar]

Before Malik Manzoor Hussain, J

Mst. RASHIDA---Petitioner

Versus

ASHRAF KHAN and 18 others---Respondents

Writ Petition No.938 of 2010, decided on 25th October, 2013. .

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for declaration---Proof of execution of document---Contention of plaintiff was that suit property was given to her in lieu of dower by her father-in-law and inheritance mutation with regard to said land was void ab initio---Suit was partially decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Agricultural land measuring 8 kanals and 1 marla and constructed property of 1 kanal was alienated in favour of plaintiff by her father-in-law in lieu of dower---One kanal land was already transferred by the transferor in favour of his wife---Plaintiff was not entitled to decree to the extent of said land---Transfer of property in lieu of dower was to be treated as a gift and document manifesting such transfer did not require its registration---No proof of delivery of possession was required in case the property was transferred by father-in-law in favour of daughter-in-law---Statement of scribe could be considered to be statement of marginal witness for proof of execution of document if in addition to one of the marginal witnesses, he appeared in the Trial Court and deposed that agreement was scribed by him and thumb impression was put by the defendants---Not only scribe but two witnesses out of three also appeared in the court and deposed in favour of document in the present case---Requirements of Art. 79 of Qanun-e-Shahadat, 1984 were complied with---Appellate Court had failed to give effect to the proper appreciation of material available on the file---Present case was of non-reading and mis-reading of material evidence which resulted into miscarriage of justice---Appeal was continuation of suit and all the material should be thrashed properly which the Appellate had failed to follow---Judgment and decree of the Appellate Court were set aside and those of Trial Court were restored---Revision was accepted in circumstances.

Mst. Kaneez Bibi and others v. Sher Muhammad and 2 others PLD 1991 SC 466; Mst.Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCMR 154; Inayat Ullah v. Mst. Parveen Akhtar 1989 SCMR 1871 and Mst. Roshan Ara v. Badri Kamala and 9 others 1989 SCMR 1981 rel.

Iltaf Ahmad for Petitioner.

Javed-A-Khan for Respondent.

Date of hearing: 25th October, 2013.

MLD 2014 PESHAWAR HIGH COURT 1353 #

2014 M L D 1353

[Peshawar]

Before Mrs. Irshad Qaiser, J

Malik JEHANDAD KHAN---Appellant

Versus

Mst. TAMEELA BIBI---Respondent

Civil Revision No.293-A of 2007, decided on 28th June, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

---S. 13---Talb-i-Muwathibat, performance of---Requirements---Plaintiff had not produced informer in the court who allegedly had her about the disputed sale---No reason was given as to why said witness could not be produced---Person in whose presence plaintiff declared her intention to pre-empt the sale transaction was necessary to be produced to establish right of pre-emption---Non production of informer who was also marginal witness of notice of Talb-i-Ishhad would be fatal to the exercise of right of pre-emption---Solitary statement of the plaintiff to establish performance of Talb-i-Muwathibat was not sufficient without independent corroboration---Plaintiff was well versed with the sale of suit land prior to alleged date of Talb-i-Muwathibat---Plaintiff had not fulfilled the requirements of S. 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 in proving the essential demand---Findings of the Appellate Court were based on wrong and illegal appreciation of evidence and law qua the performance of Talb-i-Muwathibat---Revision petition was accepted and impugned judgment and decree of the Appellate Court was set aside and that of Trial Court was maintained.

Amin-ud-Din's case 2003 CLC Lah. 1775; Abdul Rehman's case 2007 SCMR 1491 and Muhammad Ijaz v. Abdul Hameed Civil Revision No.273 of 2006 rel.

Sardar Aman Khan for Appellant.

Khurshid Khan for Respondent.

Date of hearing: 28th June, 2013.

MLD 2014 PESHAWAR HIGH COURT 1368 #

2014 M L D 1368

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

Mst. SHER BANU and 10 others---Petitioners

Versus

Syed AMEER HUSSAIN SHAH and 8 others---Respondents

Civil Revision Petition No.57 of 2009, decided on 19th February, 2013.

(a) Pardahnashin lady---

----Document alleged to be executed by an illiterate pardahnashin lady---Ingredients essential for proving its execution and duty of court stated.

The courts have to be very cautious while dealing with the documents purportedly executed by pardahnashin lady. A document purportedly executed by an illiterate pardahnashin lady has to be proved beyond any shadow of doubt by the person, who relied upon such document. The court has to satisfy itself that the document executed by the illiterate pardahnashin lady was within her full knowledge and comprehension about its subject matter and that she understood about the nature and effect of the transaction with independent application of mind and the execution of such document was independent and voluntary, and if these ingredients are missing, then the document would not be deemed to be genuine.

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

----Art. 59---Handwriting expert, opinion and evidence of---Validity---Such opinion, though relevant, but for being weak type of evidence would not amount to conclusive proof---Expert's evidence, for being confirmatory/explanatory of direct or circumstantial evidence, could not be preferred over available confidence inspiring evidence.

PLD 1976 SC 53 rel.

----O. XX, R. 1 & O. XLI, R. 32---Judgments of Trial Court and Appellate Court being at variance---Effect---Findings of Appellate Court would be preferred, if findings of Trial Court were either not supported by evidence or based on surmises and conjectures.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Appellate Court, if rendered findings or adopted a view not supported by material available on record, would commit jurisdictional error causing gross injustice---High Court in such case would be justified to interfere in order to do substantial justice and obviate miscarriage of justice.

Muhammad Wahid Anjum for Appellant.

Mahk Muhammad Bashir for Respondent.

Date of hearing: 19th February, 2013.

MLD 2014 PESHAWAR HIGH COURT 1386 #

2014 M L D 1386

[Peshawar]

Before Lal Jan Khattak, J

Haji MIAN KHAN---Appellant

Versus

GOVERNMENT OF KHYBER PAKHUTNKHWA through Collector District D.I. Khan and others---Respondents

R.F.A. No.188 of 2011, decided on 3rd October, 2013.

Civil Procedure Code (V of 1908)---

---S. 114 & O. XLVII, R. 1---Review---Scope---Contention of petitioners was that huge investment was made by them in the leased out land but no findings had been given on the same---Validity---No obvious or important thing available on record of the case had been overlooked---No legal error or mistake of law floating or apparent on the surface of impugned judgment was pointed out---Subsequent discovery of some documents could not be made a ground of review of a judgment after exhausting all the remedies provided in the courts---No document could be taken into consideration for review which was filed with a purpose and object to fill a lacuna highlighted in the judgment, review of which was sought---Omission in the judgment which did not have a direct bearing on the same was no ground for review as same might be impugned in the next higher forum---No case for a review of impugned judgment had been made out by the petitioners---Review petition was dismissed in limine.

S. Abid Hussain Bukhari for Petitioner.

MLD 2014 PESHAWAR HIGH COURT 1411 #

2014 M L D 1411

[Peshawar]

Before Malik Manzoor Hussain, J

Mst. SHAHIDA---Petitioner

Versus

NADRA through Director National Database---Respondent

Civil Revision No.660-P of 2013, decided on 4th November, 2013.

Specific Relief Act (I of 1877)---

----S.42---Declaratory suit---Correction of date of birth---Suit filed by the petitioner for correction of her date of birth mentioned in identity card was dismissed---Appeal filed by the petitioner was also dismissed---Contention of the petitioner was that no one contested the suit and ex-parte evidence was adduced by the petitioner, therefore in absence of rebuttal, trial court was bound to pass the decree as prayed for---Validity---Petitioner had mainly relied upon primary school certificate but neither the record keeper of the school nor any responsible officer of the school was produced to verify the contention of the petitioner---School was also not made party in the plaint---Old identity card of the petitioner showing her date of birth was based on her affidavit duly attested by an authorized officer---Petitioner had not made any effort for long ten years to apply for the correction of identity card---Period of limitation to challenge the wrong entry through declaration was provided as six years, whereas the present suit was filed after ten years of the issuance of Card, therefore the same was hopelessly time barred---Revision petition was dismissed.

Arshad Jamal Qureshi for Appellant.

Hassan U.K. for Respondent.

Date of hearing: 4th November, 2013.

MLD 2014 PESHAWAR HIGH COURT 1425 #

2014 M L D 1425

[Peshawar]

Before Muhammad Daud Khan, J

INAMULLAH---Petitioner

Versus

QUDRATULLAH alias QUDRATI and another---Respondents

Criminal Bail Application No.62-B of 2014, decided on 29th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-e-amd, common intention---Bail, refusal of---Report in the case had been lodged within 45 minutes of the occurrence---Complainant had himself witnessed the occurrence, and Investigating Officer, during spot inspection had also received 16 empties of 7.62 bore giving smell of fresh discharge from the spot of occurrence---Plea of cross version invariably, would carry phenomena of self defence in it, and when from the record, it was not discernible as to who had aggressed and who had acted in self defence, the parties were normally to be allowed bail; but in the present case, the position was different, as no such circumstance could be gathered, except cross F.I.R.---By raising the plea of cross-version, the occurrence was admitted by accused---When prosecution evidence, prima facie connected accused with the commission of crime, entailing capital punishment; and he himself admitted the occurrence by taking plea of cross-version, then mere cross F.I.R., would not be accepted as licence for grant of bail---Accused of every cross case, could not claim bail as a matter of right---Facts of every cross case were to be tentatively scrutinized and assessed; and then to be decided on its own merits---Co-accused who had been acquitted had been attributed the role of commanding while accused was charged for committing murder of deceased---Role of accused, was not at par with the case of co-accused---Accused was not entitled for concession of bail under the rule of consistency, in circumstances---Accused who prima facie was connected with the crime, was not entitled for his release on bail.

1 & 2 ref.

Farooq Khan Sakari for Appellant.

Muhammad Rashid Khan Dirma Khel for Respondent.

Date of hearing: 29th April, 2014.

MLD 2014 PESHAWAR HIGH COURT 1436 #

2014 M L D 1436

[Peshawar]

Before Musarrat Hilali, J

SALYAR---Petitioner

Versus

AMJID ALI and 5 others---Respondents

Civil Revision No.153 of 2010, decided on 29th November, 2013.

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

----O.XX, R.5 & O. XLI, R.31---Specific Relief Act (I of 1877), S.54---Suit for permanent injunction---Trial Court had decided the case summarily and in a slipshod manner---No issue was discussed nor any findings were recorded on the same---Trial Court was required to record findings or decision with reasons upon each issue---No issue with regard to factum of ownership of suit property was framed by the Trial Court---Trial Court was bound to thrash out the controversy in the light of pleadings of the parties and framed issues covering all the disputes---Appellate Court was also bound to decide the matter by giving issue-wise findings being court of facts---Case was remanded to the Trial Court with the direction to frame an additional issue with regard to ownership of suit property and provide opportunity to both the parties to adduce evidence and then decide the case in accordance with law---Revision was accepted in circumstances.

Ali Muhammad v. Muhammad Hayat and others 1982 SCMR 816; PLD 2003 SC 271 and 2009 SCMR 371 rel.

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

----O. XIV, R. 1---Issue---Scope---Issues were disputed points of law or question of facts set forth in pleadings and denied by the other party---Imperative for the court to have thrashed out the controversy covering all the disputes---Principles.

Liaqat Ali Orakzai for Petitioner.

Malik Haroon Iqbal and Muhamadullah for Respondents.

Date of hearing: 29th November, 2013.

MLD 2014 PESHAWAR HIGH COURT 1445 #

2014 M L D 1445

[Peshawar]

Before Waqar Ahmad Seth, J

SAFDAR ALI---Petitioner

Versus

MUHAMMAD KHAN---Respondent

Civil Revision No.3 of 2004, decided on 28th October, 2013.

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

----Ss. 42, 54 & 55---Suit for declaration, permanent and mandatory injunction---Gift, revocation of---"Seri"---Scope---Plaintiffs filed suit for declaration and permanent injunction whereas defendants filed suit for permanent and mandatory injunction---Contention of plaintiffs was that they were given the land in question by their forefathers as "Seri" by the then village propriety body---Defendants claimed the land as their ownership---Both the suits were consolidated and were dismissed concurrently---Validity---Suit land was given to the plaintiffs by the defendants more than a century ago in lieu of their services rendered and they were paying land revenue and had made construction on the same---Property in question was given by the defendants upon the services rendered by the plaintiffs as reward for the services done---Donor was of sound mind and capable to dispose of his property by way of gift---Donor, who gifted the property to the person who served him, both had died---Gift could not be revoked by the legal heirs after the death of donor---Land given as per custom of the area as "Seri" had the same value like gift---"Seri" land could not be revoked/recalled as same was given for the services rendered and not for the future acts/ actions---Denying the ownership rights of plaintiffs would amount to bringing back the slaves---Defendants had lost their rights of revocation of "Seri"---Both the courts below had failed to appreciate the facts and evidence on record which resulted in mis-reading and non-reading of the same---Suit of plaintiffs was decreed and that of defendants was dismissed---Revisions were disposed of accordingly.

Section 138 Mahomedan Law; Section 139 of Mahomedan Law; Section 167 of Mahomedan Law; Rehman and others v. Atai Khan and 6 others PLD 1976 Pesh. 60; Mst. Bibi Zohra and 24 others v. Abdur Rehman 2003 MLD 918; Abdul Jabbar v. Aziz ul Haq AIR (29) 1942 Peshawar 35 and Muhammad Atiq and others v. Tayubuddin PLD 1998 Pesh. 47 rel.

(b) Words and phrases---

----"Seri"---Meaning---"Seri" had been defined as Sadqa---"Seri" was giving of land to someone who had rendered services.

----Gift---Meaning---Gift was a transfer of property, made immediately and without any exchange by one person to another and accepted by or on behalf of other.

M.A. Tahir Kheli for Petitioner.

Muhammad Ayaz Khan for Respondent.

Date of hearing: 28th October, 2013.

MLD 2014 PESHAWAR HIGH COURT 1464 #

2014 M L D 1464

[Peshawar]

Before Muhammad Daud Khan, J

SARGAND and 6 others---Petitioners

Versus

The STATE through Additional Advocate General and another---Respondents

Criminal Miscellaneous Bail Application No.438-M of 2013, decided on 8th October, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 310-A & 34---Constitution of Pakistan, Art. 9---Giving a female in marriage or otherwise in badal-i-sulh, common intention---Bail, refusal of---Accused persons were accused of giving hand of complainant in "Swara", without her will and consent in order to settle a dispute---Record revealed that a Jirga was convened, wherein the elders of the locality gave hand of complainant as "Swara" as per custom of the area---Practice of such tradition was mere derogation and disobedience of the law---Handing over a lady without her consent in such humiliating manner was not only against the Fundamental Right and liberty of human beings enshrined in the Constitution, but also against the importance and value of human beings given by Allah Almighty to the most imminent of created things ("Ashraful Makhluqat")---Record suggested that accused persons were involved in the commission of the offence and as such no ground existed in their favour entitling them for the concession of bail---Accused persons were refused bail accordingly.

Sajjad Anwar for Petitioners.

Sanaullah for the Complainant.

Rafiq Ahmad, D.A.G. for the State.

Date of hearing: 8th October, 2013.

MLD 2014 PESHAWAR HIGH COURT 1474 #

2014 M L D 1474

[Peshawar]

Before Malik Manzoor Hussain, J

ANAM FAREED---Petitioner

Versus

CHIEF EXECUTIVE and others---Respondents

Writ Petition No.801-A of 2013, decided on 12th June, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational Institution---Medical graduate---House job training in the Medical Institution---Grant of monthly stipend---Scope---Petitioner was admitted as trainee for the purpose of her compulsory house job training and she worked as such since her completion period but no stipend was paid by the Institute---Contention of Institution was that candidate/petitioner had graduated from public sector Medical College and not from the Institution where she had done the house job Training, therefore, she was not entitled for any stipend---Validity---All the institutions were responsible to provide house paid job not only to their own graduates but also to the graduates of other college (s) during the house job in the institution---Respondents would fall within the definition of "Institution" and Rules of Pakistan Medical and Dental Council were applicable to the same which had binding force---All the Medical Institutions were being run by the rules framed by Pakistan Medical and Dental Council and when a mechanism was provided then same could not be flouted---When a medical graduate had rendered his services day and night then non-payment of even a single penny was not justified when other graduates similarly placed were being paid from the institution---No difference with regard to public and private sector existed in Pakistan Medical and Dental Council rules rather word used was any graduate of any other college doing house job in the Institution---Institution was responsible to provide house paid job but it failed and same was not supported by any provision of law rather was against the relevant Pakistan Medical and Dental Council Rules---Petitioner was entitled to the grant of monthly stipend for the period of her house job---Constitutional petition was accepted in circumstances.

Tanveer Ahmed Mughal for Petitioner.

Shahid Aziz for Respondents.

Date of hearing: 12th June, 2014.

MLD 2014 PESHAWAR HIGH COURT 1528 #

2014 M L D 1528

[Peshawar]

Before Lal Jan Khattak, J

WATER AND POWER DEVELOPMENT AUTHORITY PAKISTAN through Chairman WAPDA and 4 others---Appellants

Versus

Haji MUHAMMAD RIYAZ-UL-HASSAN and 9 others---Respondents

Regular First Appeals Nos.5-D and 13 of 2012, decided on 3rd June, 2013.

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

----Ss. 23, 4, 11 & 18---Acquisition of land---Compensation, determination of---Criteria---Objection petition for enhancement of compensation amount---Delay in acquisition process---Effect on compensation amount---Determination of fair compensation and market price of acquired land-Scope---Department acquired the land of land owner---Landowner did not accept the compensation amount so fixed and filed objection petition for its enhancement---Referee Court accepted the objection petition of land owner and enhanced the compensation amount---Contention of the department was that acquired land was agricultural in nature having no potentiality of any commercialism, therefore the enhancement in awarded rates was not justified---Validity---Award was announced after about seven years of publication of notification of acquisition---Collector, while fixing compensation for the acquired land had referred to "Osat yaksala" which was based on sale through mutation executed in village prior to issuance of notification of acquisition---Entire process of acquisition had to be completed within days without unnecessary delay---Rates of compensation had been fixed on the basis of one year average---Award announced by Collector was against the mandate and command of S.11 of the Land Acquisition Act, 1894, which provided that the acquisition process should not be delayed unnecessarily---Impugned judgment of referee court was maintained---Appeal was dismissed.

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

----Ss. 23, 11 & 18---Acquisition of land---Compensation, determination of---Criteria---Objection petition for enhancement of compensation---Determination of fair compensation and market price of acquired land-Suggested rate of compensation by local commission---Scope---Department acquired the land of landowner---Landowner being not satisfied with compensation amount so fixed, filed objection petition for its enhancement---Referee Court appointed local commission to determine the market value of land in dispute---Local commission suggested enhancement of compensation value---Referee court accepted the objection petition of landowner but enhancement in compensation amount was not made as suggested in report of local commission---Contention of the landowner was that acquired land has commercial characteristics and potentials to get more market price in the open market than the compensation enhanced by Referee Court---Validity---Report of the local commission suggesting enhancement of compensation amount had not been based on any sound proof and documentary evidence and the same could not be made basis for further enhancement---Report had been rightly discarded by the Trial Court to the extent of suggested rates---Order of Trial Court was upheld---Appeal was dismissed.

Amir Muhammad Baloch for Appellants.

Muhammad Abdullah Baloch for Respondents.

Date of hearing: 3rd June, 2013.

MLD 2014 PESHAWAR HIGH COURT 1544 #

2014 M L D 1544

[Peshawar]

Before Abdul Latif Khan, J

Dr. HAZRAT KHAN---Petitioner

Versus

HUSSAIN JAN and others---Respondents

Civil Revision No.100-D of 2013, decided on 19th August, 2013.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), S.148---Suit for specific performance of contract by the petitioner---Non-deposit of balance consideration amount by the petitioner on the ground of being huge amount---Extension in time---Refusal of---Dismissal of suit---Appellate Court, in the present case, had passed the judgment and decree with the condition of dismissal of suit, in case of non-payment of the decretal amount within a period of one month---Contention of the petitioner was that as a huge amount was involved; time of one month granted by the Appellate Court for deposit of the amount was insufficient and had sought relief of payment of amount through bearable instalments and for extension in time---Validity---Points raised by the petitioner had no water, as there was no enactment for extension of time---Arrangement of huge amount would not be a valid ground for extension of time---Revision petition was partially allowed with a direction to deposit the decretal amount within a period of fifteen days and in case of failure of petitioner to make payment of the said amount within the extended time of fifteen days, the revision petition shall stand dismissed.

Burhan Latif Khan Khaisori(sic) for Petitioner.

Muhammad Yousaf Khan for Respondents.

Date of hearing: 19th August, 2013.

MLD 2014 PESHAWAR HIGH COURT 1575 #

2014 M L D 1575

[Peshawar]

Before Qaiser Rashid Khan and Syed Afsar Shah, JJ

FAYAZ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.232 of 2011, decided on 27th May, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 7---Qatl-e-amd---Age of accused---Determination---Contentions of accused were that at the time of occurrence his age was less than eighteen years and that he being minor his case fell under the Juvenile Justice System Ordinance, 2000---School Leaving Certificate and National Identity Card of accused produced in the court, showed that accused at the time of occurrence was less than eighteen years of age---Accused being below the age of eighteen years, his trial had to be conducted under the Juvenile Justice System Ordinance, 2000---Conviction and sentence recorded against accused by the Trial Court were set aside; and treating accused an under trial prisoner, his case was sent to the Trial Court for de novo trial, after observing/fulfilling all the requisite formalities under the Juvenile Justice System Ordinance.

Muhammad Zubair v. The State 2010 SCMR 182 and Siraj-ud-Din v. Afzal Khan and another PLD 1997 SC 847 ref.

Shabbir Hussain Gigyani for Appellant.

Noor Alam Khan for the Complainant.

Moin Arshad Jan, A.A.-G. for the State.

Date of hearing: 27th May, 2014.

MLD 2014 PESHAWAR HIGH COURT 1585 #

2014 M L D 1585

[Peshawar]

Before Abdul Latif Khan, J

MUHAMMAD ZAMAN---Petitioner

Versus

AZMAT ULLAH and another---Respondents

Civil Revision Petition No.133-D of 2013, decided on 6th December, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 5, 21 & 22---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Pre-emption suit---Application for grant of temporary injunction---Improvements made in the property by the vendee---Scope---Khyber Pakhtunkhwa Pre-emption Act, 1987 had provided special procedure to meet the eventuality of improvements made in the status of immovable property and vendee after the institution of suit---Provisions for grant of temporary injunction in favour of pre-emptor or otherwise in pre-emption cases were not attracted---Right of pre-emptor would not be affected in case of transfer of property or any change in the nature of the same after institution of suit---Pre-emption being special law had prescribed a special procedure with regard to improvements and change in the status and nature of property and preventive orders to maintain status would not attract in pre-emption cases---No perversity had been pointed out in the impugned order by the plaintiff---Plaintiff was directed to move an application for spot inspection if any construction was raised in order to assess whether improvements were made or otherwise qua the time of improvements---Revision was dismissed in limine in circumstances.

Sheikh Iftikhar-ul-Haq for Petitioner.

MLD 2014 PESHAWAR HIGH COURT 1602 #

2014 M L D 1602

[Peshawar]

Before Rooh-ul-Amin Khan, J

CHANI REHMAN---Petitioner

Versus

Mst. BIBI AISHA and others---Respondents

Civil Revision Petition No.47-B of 2013, decided on 22nd May, 2013.

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

----S.42---Civil Procedure Code (V of 1908), O. VII, R. 11 & S.12(2)---Limitation Act (IX of 1908), Ss. 28 & 20 (2)---Suit for declaration---Maintainability---Rejection of plaint---Principles---Adverse possession---Plaintiffs brought suit to the effect that suit property was mortgaged by predecessor-in-interest of defendants with predecessor-in-interest of the plaintiffs which was not redeemed within sixty years and plaintiffs became owners of the same---Trial Court decreed the suit on the basis of prescription and that decree was challenged through application filed under S. 12(2), C.P.C. by the defendants---Trial Court accepted the said application, set aside the decree which was upheld up to the High Court and thereafter one of the defendants moved application under O.VII, R. 11, C.P.C. on the ground that S. 28 of the Limitation Act, 1908, had been declared as repugnant to the Injunctions of Islam and plaintiffs had got no cause of action which was concurrently accepted---Validity---No doubt, after omission of S. 28 of the Limitation Act, 1908, no suit for prescription could proceed prior to the target date i.e. 31-8-1991 and same would be liable to be burried at its very inception---Present suit had been filed after the target date which was barred by law---When the suit of the plaintiffs-petitioners was barred by law, remand of the same and providing opportunity to the parties to lead evidence would just be a futile exercise and wastage of time and while exercising the jurisdiction under O. VII, R. 11 C.P.C., the court was supposed to look at the grounds alleged in the plaint and if it came to the conclusion that even if all the averments of the plaint were accepted and proved at the trial, the plaintiffs would not be entitled to any relief, the plaint would be rejected---Both the courts below had rightly appreciated the law on the subject and had reached to just and right conclusion by invoking the provision of O.VII, R.11, C.P.C.---Revision was dismissed.

Maqbool Ahmad's case 1991 SCMR 2063 rel.

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

----S. 42---Limitation Act (IX of 1908), S. 20(2)---Receipt of rent or produce of the mortgaged land---Scope---Acknowledgment---Receipt of rent or produce of the mortgaged land by the mortgagee, when such was in his possession, was deemed to be the acknowledgment of the payment of debt for the purposes of subsection (1) of S. 20 of the Limitation Act, 1908, and time would be computed from the date of such acknowledgment---When mortgage property was in possession of the mortgagee and he was receiving rent or usufruct, the receipt of the produce on every harvest, was deemed as acknowledgment and time would be reckoned afresh from every harvest and mortgagor would have recurring cause of action on each harvest, regardless of what the intention of the mortgagee may be or might have been.

Abdul Haq's case 1999 SCMR 2531 rel.

----S. 42---Limitation Act (IX of 1908), S. 28---Extinguishment of right of property---Scope---As per S. 28 of the Limitation Act, 1908, on expiry of period prescribed by law for suit for possession of any property, the right of owner was to be extinguished---Basic concept and logic of the declaration of S. 28 of the Act, to be repugnant to the Injunction of Islam was that no lawful owner could be deprived of his right by efflux of time nor person enjoying possession for such a long period could be rewarded with premium of ownership---Mortgagee enjoying the possession of mortgaged property for 60 years or more got too much through usufruct, more than his mortgage money and could not additionally be bestowed with ownership of the property on expiry of 60 years.

Amanullah Jan Khattak for Petitioner.

MLD 2014 PESHAWAR HIGH COURT 1631 #

2014 M L D 1631

[Peshawar]

Before Malik Manzoor Hussain, J

Mst. HUSSAN BIBI---Appellant

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Collector, Mardan and others---Respondents

R.F.A. No.314-P of 2013, decided on 27th June, 2014.

Land Acquisition Act (I of 1894)---

----S. 18---Civil Procedure Code (V of 1908), S. 48---Land acquisition---Compensation, payment of---Execution petition by the landowners who were not party to the proceedings wherein the compensation was enhanced---Scope---Executing Court dismissed the execution petition being time barred---Validity---Petitioners were not parties to the appeal instituted before the High Court---Petitioners applied for copies of appeal later when they got knowledge of the same and filed execution petition---Present execution petition was within the period prescribed under S. 48, C.P.C.---Amount of compensation was finally determined by the High Court and same was also to be paid to the other co-owners/objectors---Award was amended by the High Court in appeal and all the affectees of such award were entitled to the amount fixed for award---Non-appealing parties or non-objecting land owners were also entitled to the relief/benefit accruing from such determination by the High Court---Executing Court was bound to give the benefit of judgment of High Court to the landowners who approached the said court on the basis of compensation so determined finally---Ultimate goal sought to be achieved was to do justice between the parties and to ensure that the rights were delivered to those to whom they belonged---Findings recorded by the Executing Court were not only against law but same were also against the principles of natural justice---Appeal was allowed and impugned order was set aside in circumstances.

Saddaqat Ali Khan v. Collector Land Acquisition and others PLD 2010 SC 878 rel.

(b) Interpretation of statutes---

----Interpretation of procedural law should be made in a manner that same would not obstruct the course of justice.

Province of Punjab v. Abdul Majeed 1997 SCMR 1692 rel.

Qazi Muhammad Salim for Appellant.

Farman Ali for Respondents.

Date of hearing: 27th June, 2014.

MLD 2014 PESHAWAR HIGH COURT 1645 #

2014 M L D 1645

[Peshawar]

Before Muhammad Daud Khan, J

MUHAMMAD TANVIR KHAN KUNDI and 4 others---Petitioners

Versus

ASHRAF KHAN and 3 others---Respondents

Quashment Petition No.61-B of 2013, decided on 21st April, 2014.

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

----Ss. 561-A & 195---Penal Code (XLV of 1860), Ss.188, 148 & 149---Disobedience to order duly promulgated by public servant, rioting, common object---Quashing of F.I.R.---Complainant of F.I.R., in question was not a public servant, but being an individual, was not competent to make himself as the complainant of the F.I.R.---Additional Assistant Commissioner, before whom application for lodging of F.I.R., was filed, forwarded said application to S.H.O. for registration of F.I.R.---Additional Assistant Commissioner was under obligation to file complaint himself to S.H.O. being a public servant to register F.I.R. against the petitioner in compliance of S.195, Cr.P.C. which was mandatory in nature---Provisions of S.188, P.P.C., could only be invoked when provision of S.195, Cr.P.C. was complied with---Courts could not take cognizance in an offence under S.188, P.P.C. except on complaint in writing of public servant or of some other public servant to whom he was subordinate; while in the present case, complainant was neither public servant nor subordinate to public servant, but was an individual litigant of a civil suit between the parties---Complainant was not competent to have lodged the F.I.R. in view of express bar contained in S.195, Cr.P.C.

2000 SCMR 1904; 2007 PCr.LJ 613 and 2012 YLR 1097 ref.

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

----S. 195(1)(a)---Prosecution for contempt of lawful authority of public servant---Prevention from multifarious litigations---Wisdom behind enactment of provision of S.195(1)(a), Cr.P.C. by the legislatures, was that the litigants in civil proceedings, could be prevented from multifarious litigations by lodging criminal complaints against the orders not complied with or documents in dispute---If the bar of provision of S.195, Cr.P.C. was removed, in every civil case, each party would file criminal proceedings against such like violation of orders of the court or document in dispute.

Abdul Wahab v. Muhammad Nawaz and 7 others 2000 SCMR 1904; Abdul Baqi and 23 others v. The State 1998 PCr.LJ 87; Syed Abdul Rehman Shah and 25 others v. Station House Officer, Police Station City, Mansehra and another 1996 PCr.LJ 483 and Ikram and 6 others v. SDM Tamergara, District Dir and another 2000 PCr.LJ 297 ref.

Muhammad Farooq Marwat for Petitioners.

Qudratullah Gandapur, Asst. A.G. for the State.

Sheikh Fazal Rehman Marwat for Respondents.

Date of hearing: 21st April, 2014.

2014 M L D 1735

[Peshawar]

Before Muhammad Daud Khan, J

ARSALA KHAN---Petitioner

Versus

Haji AHMAD KHAN and another---Respondents

Civil Revision No.510 of 2011, decided on 9th December, 2013.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13, 31, 5 & 2 (d)---Pre-emption, right of---Scope---Right of pre-emption would come into force if transaction was a sale notwithstanding the fact that mutation had effected or not---Sale could be effected through mutation or other registered deed---Vendee and vendor, in the present case, had attempted to defeat the pre-emptive right of plaintiff and no detail of sale was mentioned in the written statement---Pre-emptor in a pre-emption suit could not be defeated through fraudulent manner---Two separate mutations were attested with regard to suit property---No specific issue with regard to the share sold in the suit property was framed but evidence on record was sufficient to enable the court to decide the case---Both the parties were aware of controversy involved in the suit during course of recording of their evidence---Framing or non-framing of issues would lose significance after adducing of evidence by the parties in support of their contentions---Appellate Court should have considered and discussed the entire evidence available on record being court of facts---Judgment of Appellate Court was passed in a slipshod manner and court had not considered the fact that at the time of institution of suit the vendee was not a co-sharer in the suit property---Plaintiff had proved the performance of Talb-i-Muwathibat and Talb-i-Ishhad in accordance with law and his witnesses were consistent with such regard---Impugned judgment passed by the Appellate Court was set aside and that of Trial Court was restored---Revision was accepted in circumstances.

Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411; Muhammad Subhan and others v. Mir Qadam Khan and others 2001 MLD 1716; Allah Ditta v. Fazal Muhammad and others 2002 CLC 1894; Fazal Muhammad Bhatti v. Mst. Saeeda Akhtar 1993 SCMR 2018 and Eada Khan v. Ghanwar and others 2004 SCMR 1524 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 5---Right of pre-emption---Scope---Right of pre-emption would arise in case of sale which could be effected through mutation or other registered deed.

----S. 2(d)---"Sale"---Meaning---"Sale" was permanent transfer of ownership of an immovable property in exchange for a valuable consideration and same would include transfer of an immovable property by way of hiba-bil-iwaz or hiba bi-shart al-iwaz.

Abdul Mabood Khattak for Petitioner.

Zia-ur-Rehman for Respondent.

Date of hearing: 9th December, 2013.

MLD 2014 PESHAWAR HIGH COURT 1753 #

2014 M L D 1753

[Peshawar]

Before Lal Jan Khattak, J

GUL SAMBER KHAN and others---Petitioners

Versus

SAYURAJ and others---Respondents

Civil Revision No.218 of 2011, decided on 26th June, 2014.

Canal and Drainage Act (VIII of 1873)---

---Ss. 68 & 3---Specific Relief Act (I of 1877), S. 42---Civil Procedure Code (V of 1908), O. VII, R. 10---Suit for declaration---Settlement of disputes of canal water---Return of plaint---Scope---Trial Court returned the plaint holding that civil court had no jurisdiction to proceed with the case in view of barring provisions contained in Canal and Drainage Act, 1873---Validity---Provisions of Canal and Drainage Act, 1873 were applicable only in such cases of water disputes where lands were being irrigated from main canal constructed, maintained or controlled by the Provincial Government through Irrigation Department---Settlement of differences over irrigation rights could not be resolved through the hierarchy of Irrigation Department where any water channel or any outlet had neither been constructed by the Government nor same was being financed, maintained, managed or controlled by the said Government through Irrigation Department but had been constructed, managed and controlled privately---Refusal of both the courts below to exercise their jurisdiction over the issue in hand was illegal---Present issue was amenable to the jurisdiction of civil court---Impugned judgments passed by both the courts below were set aside and case was remanded to the Trial Court for disposal in accordance with law---Revision was accepted in circumstances.

Gul Murad for Petitioner.

Siraj Ali for Respondent.

Date of hearing: 26th June, 2014.

MLD 2014 PESHAWAR HIGH COURT 1777 #

2014 M L D 1777

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

QUDRAT SHAH---Petitioner

Versus

Mst. NASEEM AKHTAR and others---Respondents

Civil Revision No.1708 of 2011, decided on 29th May, 2013.

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

----S. 42---Suit for declaration---Plaintiff had sold the suit property through mutation which was correctly attested in favour of defendant who had further transferred some portion from the said land---Findings of courts below were in consonance with the evidence and no prejudice seemed to have been caused to the plaintiff---Plaintiff had failed to substantiate his claim through convincing, reliable and conclusive evidence while defendants had rebutted his claim through convincing evidence---Courts below had rightly clinched the factual controversy---Plaintiff had failed to point out any illegality by way of misreading and non-reading of evidence---Courts below had passed well reasoned judgments and decrees---Revision was dismissed.

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

----S. 115---Revisional jurisdiction---Scope---Findings on question of fact or law could not be interfered with unless those suffered from jurisdictional defect, illegality or material irregularity---Revisional jurisdiction of the High Court to interfere with the concurrent finding of fact was limited---Process of examination of evidence in exercise of revisional powers was neither permissible nor warranted.

Shakirullah Afridi for Petitioner.

Muhammad Rustam Khan for Respondents.

Date of hearing: 29th May, 2013.

MLD 2014 PESHAWAR HIGH COURT 1786 #

2014 M L D 1786

[Peshawar]

Before Malik Manzoor Hussain, J

MUSHARAF KHAN---Petitioner

Versus

NAIMATULLAH---Respondent

Civil Revision No.803-P of 2013, decided on 6th December, 2013.

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

----Arts. 59 & 84---Comparison of signatures---Scope---Best evidence to prove the authenticity of signatures would be of handwriting expert who had examined signatures on the disputed documents with signatures on the admitted one or with signatures taken before the court---Matter was still in progress and evidence was yet to be recorded---Trial Court had erred in holding that documents in question would benefit the defendant and plaintiff was not required to prove the same---Such observations were against the requirement of law as it was a pre-mature stage and no observation could be made with regard to any document without recording of evidence in such respect---Court was competent to compare disputed signatures with the admitted one of any party to ascertain its genuineness but same was not advisable---Impugned order of Trial Court was set aside with the direction to consider the applica-tion for comparison of signatures after recording evidence of other party---Revision was accepted in circumstances.

Fazal Muhammad and another v. Mst. Aiyshan and 9 others 1984 CLC 3401 rel.

Zia-ur-Rehman Tajek for Petitioner.

Nemo for Respondent.

Date of hearing: 6th December, 2013.

MLD 2014 PESHAWAR HIGH COURT 1806 #

2014 M L D 1806

[Peshawar]

Before Lal Jan Khattak, J

ISLAM BADSHAH and another---Petitioners

Versus

The STATE---Respondent

Criminal Revision No.74-P of 2013, decided on 7th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of bond---Issuing of notice to sureties---Object and purpose---Accused for whom the petitioners stood sureties, having failed to appear before the Trial Court when summoned, court issued process against petitioners/sureties for producing accused before it---Petitioners expressed their inability to produce accused as he had gone abroad in connection with his livelihood---Court proceeded against the petitioners and fined them to pay Rs.1,00,000 each as penalty for the bond, which they had executed and submitted in the court---Approach and conclusion of the Trial Court was not legal and rational, as non-appearance or non-production of accused was beyond the control of the petitioners, in view of various restrictions imposed by the foreign masters on overseas Pakistanis working abroad---Orders passed by the courts below were not based on objective interpretation of S.514, Cr.P.C.---Petitioners had kept on their efforts to produce accused before the court, and they succeeded in their efforts to produce accused before the Trial Court, who surrendered himself before the Trial Court and was on pre-arrest bail---Object and purpose for issuing notices to sureties, was that accused be made available before the Trial Court, so that he be brought to justice---Accused having himself appeared before the court, order of forfeiture of bond, would not be proper---Accused had not absconded from the court intentionally, or with any mala fide intention, but for his livelihood---Accused left Pakistan for abroad for work, and might have remitted foreign exchange for the country---Accused should not have been treated like those who intentionally went into hiding in order to avoid the legal proceedings initiated against him---Accused who was handicapped by some compelling reasons, should be treated objectively and with some leniency---Impugned orders were set aside, with direction that penalty amount recovered from the petitioners/sureties be returned to them.

Fazal Malik Kaka Khel for Petitioners.

Arshad Hassain for Respondent.

Date of hearing: 7th April, 2014.

MLD 2014 PESHAWAR HIGH COURT 1820 #

2014 M L D 1820

[Peshawar]

Before Abdul Latif Khan, J

HAZRAT ISA---Petitioner

Versus

GUL AMIN and 28 others---Respondents

Civil Revision No.385 of 2011, decided on 22nd April, 2014.

Contract Act (IX of 1872)---

----S. 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Agreement by minor---Void transaction---Limitation---Scope---Contention of plaintiff was that he was minor at the time of transaction and was not capable to enter into any transaction---Suit was dismissed concurrently---Validity---Plaintiff was of 11 years when alleged deed was executed and same would be void ab initio having no legal effect as minor could not enter into any transaction---Any agreement by minor would be void ab initio and no right or liability would arise in favour of vendee from void transaction---Suit property which was un-partitioned remained in the possession of plaintiff---Plaintiff had failed to question the transaction on attaining the age of majority but initial question that whether he was in knowledge with the same prior to filing of suit and had waived his such right had not been proved by the defendant who was bound to prove the same---Void transaction could be questioned when same came into the knowledge and limitation would start from such knowledge---Burden to prove the deed in question would lie on the defendant being beneficiary of the same who had failed to discharge such burden---Marginal witnesses produced by the defendant were not aware of transaction, description of land and payment of sale consideration---Defendant had failed to prove the deed in question under the law---Both the courts below had not considered the disability of plaintiff as minor at the time of execution of deed and payment of sale consideration---Lis had not been properly decided with conscious and application of independent mind by the courts below---Impugned judgments and decrees passed by the courts below were set aside and suit of plaintiff was decreed---Revision was accepted in circumstances.

2008 SCMR 1031 and Mofizan's case PLD 2004 Lah. 255 rel.

Amir Gulab Khan for Petitioner.

Syed Abdul Haq for Respondents.

Date of hearing: 22nd April, 2014.

MLD 2014 PESHAWAR HIGH COURT 1835 #

2014 M L D 1835

[Peshawar]

Before Dost Muhammad Khan, C.J. and Mrs. Irshad Qaiser, J

A.A. ASSOCIATES through Muhammad Nawab Khan---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary and another---Respondents

Writ Petition No.194-P with C.M. 59-P of 2013, decided on 24th January, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Firm providing construction and engineering services to Provincial Government---Irregularities in work---Cancellation of contract and imposition of penalty---Whether justified---Factual controversy---Highly technical and factual controversy was involved in the matter, which required recording of evidence and spot inspection through qualified expert by appointing Commission, which was neither the function of the High Court nor permissible in its constitutional jurisdiction---Constitutional petition was dismissed and the petitioner-firm was advised to approach the civil court for redressal of its grievance.

Nasir Khan for Petitioner.

Quetta High Court Balochistan

MLD 2014 QUETTA HIGH COURT BALOCHISTAN 19 #

2014 M L D 19

[Balochistan]

Before Muhammad Noor Meskanzai, J

SAADULLAH and another---Petitioner

Versus

SECRETARY, IRRIGATION DEPARTMENT---Respondent

Civil Revision No.244 of 2008, decided on 26th July, 2013.

Specific Relief Act (I of 1877)---

---S. 42---Civil Procedure Code (V of 1908), O. XIV, R. 2---Suit for declaration---Maintainability---Contention of plaintiffs was that opportunity to lead evidence was not provided to them---Suit was dismissed concurrently after framing of preliminary issues---Validity---Property in question vested in the Provincial Government as in the column of ownership the name of Provincial Government had been incorporated as owner---Neither any allotment had been made in favour of plaintiffs nor they had been recorded as owners of the suit property---Plaintiffs had claimed some supposed rights which did not exist---Incomplete suit must not survive---Trial Court framed preliminary legal issue and after hearing both the parties rightly concluded that suit was not competent and maintainable---Suit/proceedings if not competent must be buried at its very inception---Suit was rightly dismissed by the courts below---Revision was dismissed in circumstances.

S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal heirs 2002 SCMR 338 rel.

Khushal Khan Kasi for Petitioner.

Naseer Ahmed Bangulzai, A.A.-G. for Respondent.

Date of hearing: 20th May, 2013.

MLD 2014 QUETTA HIGH COURT BALOCHISTAN 95 #

2014 M L D 95

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

MUHAMMAD RASOOL---Appellant

Versus

ABDUL GHAFOOR---Respondent

Regular First Appeal No.138 of 2010, decided on 25th July, 2013.

(a) Malicious prosecution---

----Suit for damages---Plaintiff filed suit for damages on the ground that he was acquitted of the charge in F.I.R. lodged by the defendant in relation to snatching of a sale agreement---Suit was partially decreed by the Trial Court---Validity---Trial Court had based its findings on certain documents but said documents were neither tendered in evidence nor exhibited---Documents neither tendered in evidence nor produced and exhibited could not be relied---Such documents could not be made basis for decision of a lis rather were treated as non-existent---Defendant was not afforded opportunity of cross-examination on said documents---Trial Court could neither consider such documents as a valid piece of evidence nor same could be used against the defendant---Documents were illegally taken into consideration and were believed though were not referable---Plaintiff had failed to prove the case by producing cogent and confidence inspiring evidence and also failed to justify the compensation demanded on various counts---Defendant was right to lodge the report as there was a probable cause for lodging the same---Prima facie, there was no malice on the part of defendant---Trial Court did not take into consideration the basic elements on the basis of which suit for malicious prosecution could be accepted or rejected---No doubt plaintiff had proved that there was a case against him and he was arrested but rest of elements could not be proved by him---Plaintiff was required to prove want of reasonable and probable cause for prosecution and defendant acted maliciously---Plaintiff had failed to prove elements entailing him for the decree prayed for---Defendant had succeeded to prove that he acted with reasonable and probable cause---Trial Court mis-appreciated the facts, mis-applied the law and mis-read the evidence---Findings drawn by the Trial Court being perverse and un-sustainable could not be maintained---Appeal was accepted and judgment and decree passed by the Trial Court were set aside and suit was dismissed.

(b) Malicious prosecution---

----Elements to be taken into consideration---Elements on the basis of which suit for malicious prosecution could be accepted or rejected were; the prosecution of the plaintiff by the defendant; there must be a want of reasonable and probable cause for that prosecution; the defendant must have acted maliciously i.e. with a improbable motive and not to further the ends of justice; the prosecution must have ended in favour of the person proceeded against; it must have caused damage to the party proceeded against and proceedings had interfered with plaintiff's liberty and had also affected his/her reputation.

Muhammad Ilyas Mughal for Appellant.

Ajmal Khan Kakar for Respondent.

Date of hearing: 30th April, 2013.

MLD 2014 QUETTA HIGH COURT BALOCHISTAN 229 #

2014 M L D 229

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

MUSAWIR AHMED and others---Applicants

Versus

GHULAM RASOOL and another---Respondents

F.A.O. No.36 of 2013, decided on 30th September, 2013.

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

----Ss.13 & 15---Ejectment of tenant on the ground of failure to comply with the order of Rent Controller to deposit rent in time---Scope---Landlord instituted eviction application against the appellant/tenant---Rent Controller directed the tenant/appellant to deposit monthly rent with the court---Appellant/tenant failed to deposit the rent by complying with the order of Rent Controller, consequently impugned ejectment order was passed---Contention of the appellant/tenant was that as he had already deposited the entire rent, therefore order of eviction was illegal---Validity---Report of Civil Nazir of the court showed that appellant/tenant had not deposited the rent in compliance of the order of Rent Controller and deposited rent persistently late---Appellant/ tenant had failed to furnish/offer reasonable explanation for such delayed deposits---Appellant in case of delay, had to explain and justify each day's delay in the deposit of rent and mere deposit of outstanding rent in lump sum was not sufficient to save the tenant from penal consequences---Impugned order passed by Rent Controller was in accordance with law---Appeal was dismissed.

Faizullah Khan Sargarahi for Appellants.

Behlol Khan Kasi for Respondent No.1.

Date of hearing: 4th September, 2013.

MLD 2014 QUETTA HIGH COURT BALOCHISTAN 303 #

2014 M L D 303

[Balochistan]

Before Ghulam Mustafa Mengal, J

HABIBULLAH and 8 others---Petitioners

Versus

Mir MANZOOR HUSSAIN and another---Respondents

Civil Revision No.201 of 2007, decided on 14th October, 2013.

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

----O.VI, R.1---Qanun-e-Shahadat (10 of 1984), Arts. 2(c) & 133---Pleadings, averments made in---Evidentiary value---Pleadings would not be substitute of evidence or substantive evidence, and averments made therein, unless proved, would carry no weight---Principles.

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

----O.XIII, Rr.,3 & 4---Document not admissible in evidence, but exhibited without any objection---Validity---Court could not look into such document.

Muhammad Yousuf Khan Khattak v. S.M. Ayub PLD 1973 SC 160 rel.

----Art. 119---Claim alleged by a party---Burden of proof---Initial burden would lie on such party.

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

----O.VI, R.1---Qanun-e-Shahadat (10 of 1984), Art. 2(c)---Written statement---Evidentiary value---Statement made in written statement could not be treated as evidence.

Khair-un-Nisa v. Muhammad Ishaque PLD 1972 SC 25; Overseas Pakistanis Foundation v. Syed Mtikhtar Ali Shah 2007 SCMR 569 and Abdul Majid v. Muhammad Ali Shamim 2000 SCMR 1391 rel.

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

----S.115---Revision---Concurrent findings by courts below---Interference in such findings by High Court in revisional jurisdiction---Scope---High Court would not interfere in such findings normally except in case of commission of error of law by courts below resulting in grave miscarriage of justice.

Muhammad Rauf v. Muhammad Abbas 1994 SCMR 973; Rehman v. Yara 2004 SCMR 1502; G.R Syed v. Muhammad Afzaal PLD 2007 Lah. 93; Amir Ali v. Indus Entertainment (Pvt.) 2004 YLR 1576 and Ghulam Ishaq Khan v. Shafi Ullah Khan 2011 CLC 921 ref.

Hamayun Sarfraz Khan v. Noor Muhammad 2007 SCMR 307 rel.

Ghulam Mustafa Buzdar for Petitioners.

Attaullah Langov for Respondents Nos. 1 to 3.

Muhammad Usman Yousafzai and Aminullah Gharshin for Respondents Nos.4 to 9.

Date of hearing: 1st October, 2013.

MLD 2014 QUETTA HIGH COURT BALOCHISTAN 397 #

2014 M L D 397

[Balochistan]

Before Ghulam Mustafa Mengal, J

MUHAMMAD KHAN---Appellant

Versus

MUHAMMAD IBRAHIM---Respondent

F.A.O. No.47 of 2013, decided on 10th October, 2013.

(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(4)---Application for restoration of possession of tenant---Eviction of tenant was ordered on the grounds of wilful default in payment of rent and requirement of premises by landlord for his personal use---Contention of tenant was that landlord had failed to occupy the shop in question and to start business therein---Application for restoration of possession was dismissed by the Rent Controller---Validity---No evidence was available on record to substantiate the contention of tenant---Landlord had proved that he was running his business in the disputed shop---Tenant had failed to point out any illegality or material irregularity or factual infirmity in the impugned order---Rent Controller had properly assessed the application and recorded his findings---Appeal was dismissed in circumstances.

(b) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13 (4)---Restoration of possession of tenant---Pre-requisite for attracting S. 13(4) of Balochistan Urban Rent Restriction Ordinance, 1959 was that where the building had been got vacated for the occupation of child of landlord and such child did not occupy the same within one month.

Syed Imdad Shah for Appellant.

Munir Ahmed Langove for Respondent.

Date of hearing: 8th October, 2013.

2014 M L D 911

[Balochistan]

Before Muhammad Ejaz Swati and Muhammad Noor Meskanzai, JJ

ZAFAR IQBAL---Appellant

Versus

MOULA DAD and 3 others---Respondents

R.F.A. No.12 of 2012, decided on 3rd March, 2014.

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

----Arts. 75 & 76---Specific Relief Act (I of 1877), Ss. 42 & 39---Suit for declaration, cancellation of registered power of attorney, sale-deed and mutation entries---Secondary evidence, production of---Conditions---Evidentiary value of copy of document without its production in original in the court---Scope---Contention of plaintiff was that he was owner of suit property and registered power of attorney executed in favour of defendant was forged one whereas defendant contended that he was bona fide purchaser of the same---Suit was dismissed on the ground that plaintiff had not sought relief for cancellation of second power of attorney mentioned in the written statement---Validity---Court had power to grant an effective or ancillary relief even if not prayed for---Sale deed and mutation entries through which suit property was transferred in favour of plaintiff were not disputed between the parties---Plaintiff was owner of suit land and defendant had failed to substantiate his claim with regard to purchase of the same through reliable evidence---Power of attorney purportedly executed by the plaintiff in favour of defendant was doubtful document as no record of the same was produced---No proof was produced with regard to burning of record of said power of attorney---Copy of said general power of attorney had been exhibited in evidence without permission of the court to lead secondary evidence and same could not be considered---Neither marginal witness of said power of attorney nor its executant was produced in the court---Nothing was on record to suggest that original power of attorney was lost or was not available with the defendant---Production of copy of document would not be sufficient to entitle any party to the suit to produce secondary evidence unless conditions provided in Art.76 of Qanun-e-Shahadat, 1984 stood satisfied---Said power of attorney was not only inadmissible in evidence but same did not confer any right, title or interest in favour of defendant---No presumption of correctness or its due execution could be drawn with regard to said power of attorney---Defendant neither pleaded loss or destruction of original power of attorney nor adopted the recourse of Arts. 75 & 76 of Qanun-e-Shahadat, 1984---Defendant had failed to prove the genuineness or authenticity of general power of attorney---Findings of Trial Court were result of misappropriation, mis-reading and non-reading of evidence and same were based on inadmissible evidence produced by the defendant---Registered sale-deed and mutation entries in favour of defendant had no legal effect and same were liable to be cancelled---Plaintiff was entitled for the relief as claimed for---Impugned judgment and decree were not sustainable in the eye of law which were set aside and suit was decreed---Appeal was accepted in circumstances.

Muhammad Nawaz Khan v. Muhammad Jaffar Khan, 2010 SCMR 984; Amirzada Khan and others v. Ahmed Noor and others PLD 2003 SC 410; Syed Mansoro Ahmed v. Mst. Maqbool Begum and others 1990 SCMR 1259 and Anwar Ahmed v. Mst. Nafis Bano through Legal heirs 2005 SCMR 152 rel.

Naseebullah for Appellant.

Naseer Ahmed Bangulzai, Additional A.G. for Respondents.

Ameer Hamza for Respondents Nos.1 and 2.

Date of hearing: 18th December, 2013.

Shariat Court Azad Kashmir

MLD 2014 SHARIAT COURT AZAD KASHMIR 280 #

2014 M L D 280

[Shariat Court (AJ&K)]

Before Sardar Muhammad Shahzad Khan, J

SHAMSAR HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.89 of 2013, decided on 18th September, 2013.

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

----Ss. 497 & 498---Bail---Absconder---While deciding the bail matter, neither any deeper appreciation, nor detailed scrutiny of the evidence was permissible---Only tentative assessment of the record was required for that purpose---Bail matters always had to be decided on merits and technicalities should not defeat the justice to be administered---Absconder, no doubt would loose some rights, like bail, but overall circumstances had to be kept in sight while deciding bail matter.

Muhammad Jahangir Hussain v. Kala Khan 2004 SCR 359 and Fazal-e-Rabi v. State and another 2008 SCR 495 rel.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.324 & 337---Attempt to commit qatl-e-amd, causing Shajjah---Bail, grant of---Further inquiry---Prior to the occurrence an altercation took place between accused and the complainant party---Occurrence having taken place at the house of accused, it could not be determined as to who was the aggressor and who was aggressed upon---Enmity prevailed between the parties---Father of accused and his brother's wife were also present at the place of occurrence, but prosecution failed to cite them in the calendar of challan, whose statements were very much important---Accused had not repeated the act of stabing---Elders of the family had managed a compromise and he went abroad---Accused being a teenager, prima facie, his case fell within the ambit of further probe, and accused could not be deprived from the concession of bail---Bail could not be withheld as a punishment---Bail could not be refused on the ground of absconsion---Accused would be released on bail, in circumstances.

1987 PCr.LJ 2757; 1987 PCr.LJ 1088; 1989 PCr.LJ 1004 and 2004 PCr.LJ 964 ref.

Abdus Salam Chaudhary for Petitioner.

Malik Muhammad Zarriat for the Complainant.

Rafique Shaheen, Addl. A.G. for the State.

MLD 2014 SHARIAT COURT AZAD KASHMIR 815 #

2014 M L D 815

[Shariat Court (AJ&K)]

Before Muhammad Mushtaq Chaudhary, J

NISHAD KHAN and another---Petitioners

Versus

The STATE through Advocate General and another---Respondents

Criminal Revision Petition No.433 of 2012, decided on 30th January, 2014.

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

----S. 497---Bail, grant or refusal of---Principles---Deeper appreciation of the merits of the case, was not permissible at bail stage, but a tentative assessment of the evidence collected by Investigating Agency, and statements recorded by the court below, had to be made---Accused could claim bail on the ground of statutory delay in trial, but it was incumbent upon the courts to determine the heinousness and gravity of offences while allowing bail to an accused---Court had discretion to refuse bail to a hardened, desperate or dangerous criminal---Court could refuse bail to an accused, whether he had suffered any previous conviction, or not, and whether he had been previously adjudicated to be guilty or not.

2012 YLR 2095 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 458, 147, 148, 149, 109 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, lurking house-trespass or house-breaking by night, rioting, common object, abetment and common intention---Bail, refusal of---Accused allegedly fired shot with Kalashnikov at a female, who died on the spot instantaneously---Manner of occurrence, in which five innocent persons were murdered in a brutal manner, itself, prima facie, involved accused with the commission of offence, because he along with co-accused, had created panic for society---Manner of occurrence, was a dangerous one and the role played by accused during the occurrence, was not ordinary---Accused could be subscribed as hardened, desperate or dangerous criminal---Impugned judgment of the Trial Court, whereby bail was refused to accused, did not suffer from any illegality, could not be interfered with.

2012 YLR 2095 distinguished.

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 458, 147, 148, 149, 109 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, lurking house-trespass or house-breaking by night, rioting, common object, abetment and common intention---Bail, grant of---General type of allegation had been levelled against co-accused in the F.I.R.---No specific role having been attributed to co-accused, he was entitled to the concession of bail---Bail was granted to co-accused, in circumstances.

Barrister Hamayun Nawaz for Petitioners.

Sardar Suleman Khan for the Complainant.

Nemo for the State.

Supreme Court Azad Kashmir

MLD 2014 SUPREME COURT AZAD KASHMIR 63 #

2014 M L D 63

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD BOOTA---Appellant

Versus

GHULAM MUHAMMAD---Respondent

Civil Appeal No.34 of 2010, decided on 22nd March, 2012.

(On appeal from the judgment and decree of High Court dated 24-2-2010 in Civil Appeal No.182 of 2007.)

(a) Azad Jammu and Kashmir Chhamb Area Administration and Development Act, 1976---

----Ss.3, 4 & 6---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Allotment of land---Right of allottee to transfer or alienate allotted land---Plaintiff had filed declaratory suit, whereby he challenged an agreement to sell, being against law, liable to be set aside---None of the allottees falling under four categories as mentioned in S.4 of Azad Jammu and Kashmir Chhamb Area Administration and Development Act, 1976, had power to transfer, sell or alienate the land or portion thereof to any person from the land allotted to them as no sale was permissible under the scheme of said Act---Only those persons had right to remain in possession in whose favour the allotment had been made under S.4 of said Act---Allottee had no right to transfer or alienate the land allotted under the Act---Agreement to sell executed by the allottee of agricultural land was not a legal document, in circumstances.

Ghulam Hussain v. Muhammad Hussain delivered on 6th May, 2005 rel.

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

----S.42---Appeal to Supreme Court---Limitation was a mixed question of fact and law---Where question of limitation was not raised in the High Court, same could not be allowed to be raised for the first time in Supreme Court at the time of arguments.

Sh. Masood Iqbal, Advocate for Appellant.

Raja Niaz Ahmed Khan, Advocate for Respondent.

Date of hearing: 20th March, 2012.

MLD 2014 SUPREME COURT AZAD KASHMIR 179 #

2014 M L D 179

[Supreme Court (AJ&K)]

Before Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

AKHTAR HUSSAIN and 2 others---Appellants

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 2 others---Respondents

Civil Appeal No.1 of 2008, decided on 8th May, 2012.

(On appeal from the judgment and decree of the High Court, dated 19-10-2007 in Civil Appeals Nos.55 and 145 of 2004).

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

----S. 23 --- Words "market value" as used in S. 23(1) of Land Acquisition Act, 1894 --- Connotation --- Such words would mean value of land on which its owner would be ready to sell same to a willing buyer voluntarily.

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

----S. 23---Land acquired for housing scheme or agricultural purpose---Compensation, determination of---Criteria stated.

What can be the market value of the land varies from place to place. The value is to be determined according to the place where it is situated and for the purpose for which, in future, it can be utilized. Another important factor is worth consideration that for what purpose the land is being acquired. If a land is being acquired for enhancing agricultural potential of the land, then the future potential of the land is to be considered while keeping in view the market value of the agricultural land, but if the land is being used for a housing scheme, the formula for fixing the price of agricultural land cannot be applied. The potential value of the land, which is being acquired for housing schemes, is enhanced many times, the criterion for determining market value will be different one. [p. 183] B

Province of Punjab v. Molvi Muhammad Faizan, Advocate and 10 others PLD 1980 Lah. 632 ref.

Malik Naseem Ahmed Aheer and 4 others v. WAPDA and 3 others PLD 2004 SC 397; Faiz Akbar Khan and others v. Azad Govt. and others 1996 SCR 132; Azad Government and 2 others v. Mst. Razia Farooqi and others 1996 SCR 136 and Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647 rel.

----S. 23(1) --- Market value of acquired land, determination of ---Method stated.

The market value shall be assessed after analyzing all the material and evidence available on the point and determining the price which a willing purchaser will pay to a willing seller of the acquired land. The court shall take into consideration the market value and the loss by reason of severing such land from the other land. The best method of determination of the market price of the land under the acquisition process is to rely on the instances of sale of it near about the date of notification under section 4(i) of the Land Acquisition Act. The next best method is to take into consideration the instances of sale of the adjacent land made shortly before and after the notification. No doubt, for determining the market value, classification or nature of the land may be taken as relevant consideration, but that is not the whole truth. An area may be Banjar Qadeem or Barani, but its market value may be tremendously high because of its location, neighbourhood, potentiality or other benefits. For determining the market value the measure of fair compensation is the value of property in the open market. Only the past sales should not be taken into account, but the value of the land with all its potentialities may also be determined by examining (if necessary as court-witness) local property dealers or other persons who are likely to know the price which the property in question is likely to fetch in the open market.

Province of Punjab v. Molvi Muhammad Faizan, Advocate and 10 others PLD 1980 Lah. 632 ref.

Raja Hassan Akhtar for Appellants.

Ch. Muhammad Reaz Alam for Respondents.

Date of hearing: 17th January, 2013.

MLD 2014 SUPREME COURT AZAD KASHMIR 238 #

2014 M L D 238

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

CHIEF ADMINISTRATOR AUQAF (NAZAM-E-ALLA AUQAF)---Appellant

Versus

Sain GHULAM AHMED and others---Respondents

Civil Appeal No.31 of 2008, decided on 18th January, 2012.

(On appeal from the judgment and decree of the High Court dated 28-3-2008 in Civil Appeal No.10 of 2007.)

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

----S. 42(11)(d)(e) & (12)---Direct appeal before Supreme Court against judgment of High Court---Scope---Conversion of direct appeal into petition for leave to appeal---Limitation---Condonation---Scope---Appellant had contended that direct appeal was filed on the misconception in view of the judgment of Supreme Court (1999 YLR 1308), wherein it was observed that direct appeal was competent when the value of the subject matter in the lower court and High Court was not less than Rs.50,000---Appellant, after a period of four months of the date of announcement of judgment of the High Court, had moved an application for converting the appeal into petition for leave to appeal, while limitation for filing petition for leave to appeal in the Supreme Court was sixty days from the order/judgment of the High Court---Even if appellant was misled by the judgment, even then, it was enjoined upon him to file application for treating the appeal as petition for leave to appeal, soon after the announcement of judgment by the High Court or within the period of sixty days---Counsel for the appellant could not furnish any explanation of filing application after four months of the announcement of the judgment---Appellant being negligent, was not entitled for condonation of delay, especially when he had not moved any application for condonation of said delay---Direct appeal filed by the appellant before the Supreme Court being not competent, same was dismissed, in circumstances.

Muhammad Khan and another v. Muhammad Shafique and another 1999 YLR 1308; 1999 SCMR 319; 2003 SMR 319; 1997 SCMR 351; 2001 SCR 150; 2008 SCR 1993; PLJ 1991 SC 1976(sic); PLD 1996 SC 1 and 1999 CLC 559 distinguished.

Sardar Muhammad Azam Khan, Advocate for Appellant.

Raja Hassan Akhter, Advocate for Respondents.

Date of hearing: 16th January, 2012.

MLD 2014 SUPREME COURT AZAD KASHMIR 484 #

2014 M L D 484

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

ABDUL HAMEED---Appellant

Versus

NISAWAR HAYAT and another---Respondents

Criminal Appeal No. 29 of 2009, decided on 20th February, 2012.

(On appeal from the judgment of the Shariat Court dated 23-2-2009 in Criminal Revision No.24 of 2008)

Penal Code (XLV of 1860)---

----Ss. 324 & 337-F---Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (IX of 1974), S.25---Attempt to commit qatl-e-amd, causing hurt to any person---Appreciation of evidence---Police, after registration of case on report of complainant against the accused, submitted report under S.173, Cr.P.C. after necessary investigation in Tehsil Criminal Court declaring the accused innocent---Trial Court disagreed with the Police investigation and summoned accused, who filed revision petition in Shariat Court, which was dismissed being incompetent---Validity---Offences registered against accused under Ss.324 & 337-F, P.P.C., were triable by Tehsil Criminal Court---Any interim order or judgment of Tehsil Criminal Court could be challenged by way of a revision before the Shariat Court---Order passed by the Tehsil Criminal Court was an interim order and under S.25(2) of Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act, 1974, any interim order or judgment of Tehsil Criminal Court could be challenged by way of a revision petition in the Shariat Court---Order passed by the Tehsil Criminal Court being an interim order was revisable by the Shariat Court---Shariat Court, in circumstances, had failed to apply correct law---Impugned judgment passed by the Shariat Court was set aside and case was remanded to Shariat Court for decision on merits, in circumstances.

Muhammad Reaz Alam, Advocate for Appellant.

Muhammad Ayub Sabir, Advocate for Respondent No.1.

Raja Ghazanfar Ali Khan, Advocate for the State.

Date of hearing: 20th February, 2012.

MLD 2014 SUPREME COURT AZAD KASHMIR 856 #

2014 M L D 856

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD RAFIQUE---Appellant

Versus

AMJAD MAJEED and 8 others---Respondents

Civil Appeal No.95 of 2009, decided on 11th January, 2013.

(On appeal from the judgment and decree of the High Court dated 23-1-2009 in Civil Appeal No.164 of 2006)

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

----Ss.20(3) & 117---Demarcation of boundaries---Powers of Revenue Officer---Scope---Provision of S.117 of West Pakistan Land Revenue Act, 1967 not mandatory---Power of demarcation vested in Revenue Officer---Demarcation done by Revenue Officer himself or by a competent subordinate staff (i.e. Patwari or Qanungo) deputed by him would be valid---Demarcation report of such subordinate staff would be final, if approved and signed by Revenue Officer after hearing parties and applying his mind---Demarcation report submitted by Patwari on orders of Assistant Collector Grade-II, without being approved by him, would not be reliable---Principles.

Anwar Club and another v. Muhammad Sarwar PLD 1992 Lah. 63 and Sher Ali Khan v. Miram Shah and 26 others 1995 MLD 308 ref.

(b) Interpretation of statutes---

----Mandatory or directory provisions, determination of---Test stated.

The use of expression "shall" or "may" in an enactment is not always a sure guide in ascertaining whether the legislature intended it to be directory or mandatory, unless the scheme of the Act, the purpose with which it was enacted, the end which it sought to achieve and the possible consequences of doing or failing to do an act are taken into consideration. As a general rule, however, a statute is understood be to be directory when it contains matter merely of direction, but when those directions are followed up by an express provision that in default of following them, the acts shall be null and void.

Ghulam Hasan v. Jamshaid Ali and others 2001 SCMR 1001 rel.

Raja Saadat Ali Kayani for Appellant.

Ch. Jahandad Khan for Respondents Nos. 1 to 4.

Date of hearing: 28th November, 2012.

MLD 2014 SUPREME COURT AZAD KASHMIR 1519 #

2014 M L D 1519

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

MUHAMMAD TARIQ and another---Appellants

Versus

Syed ALAM SHAH and 17 others---Respondents

Civil Appeal No.119 of 2012, decided on 7th April, 2014.

(On appeal from the judgment/order of the High Court dated 9-5-2012 in Writ Petition No.228 of 2006).

Azad Jammu and Kashmir Land Acquisition Rules, 1993---

----Rr. 14 & 15---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition before High Court---Ejectment from the land acquired by the department---Scope---Contention of petitioners was that they were entitled for taking back the land which was surplus and had not been utilized---Writ petition was dismissed by the High Court---Validity---Land was acquired by the Government but same was not utilized and remained surplus---Petitioners were in possession of the said land as Ghair Moroos---Government was at liberty to utilize the land, which was acquired for public purpose and after fulfilling the same the land remained surplus and unutilized, for other public purpose for approved scheme---Mere mentioning that Government wanted to utilize the said land for another public purpose was not sufficient---Mutation was attested in favour of Government and possession of land was entered as that of WAPDA---Respondents who moved an application for ejectment of petitioners were unconcerned persons---Only WAPDA could apply for dispossession of petitioners---No unconcerned person had right to file an application for ejectment of a person who was in possession of land---High Court had correctly observed that only WAPDA could apply for dispossession from the land in question---Previous owners of acquired land had right to remain in possession if same was not utilized---Findings recorded by the High Court that possession of petitioners was illegal needed consideration---Writ petition was remanded to the High Court for decision afresh on merit---Appeal was accepted with the observation that possession of petitioners should not be disturbed till disposal of writ petition by the High Court.

Sajida Maqsood v. Azad Government and others 2013 SCR 461; and Ghulam Rasool and another v. Said Ahmad and others 2012 CLC 1665 rel.

Ch. Muhammad Afzal for Appellants.

Muhammad Ayub Sabir for Respondents.

Date of hearing: 18th March, 2014.

MLD 2014 SUPREME COURT AZAD KASHMIR 1759 #

2014 M L D 1759

[Supreme Court AJ&K]

Before Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrhaim Zia, J

MUHAMMAD RIAZ and 14 others---Petitioners

Versus

KALA KHAN and 18 others---Respondents

Civil Appeal No.160 of 2013, decided on 16th January, 2014.

(On appeal from the judgment of the High Court, dated 24-4-2013 in Civil Appeal No.105 of 2012)

Civil Procedure Code (V of 1908)---

----O. XLI, R. 31---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Judgment in appeal contents---Points for determination---Scope---Provisions of O. XLI, R. 31, C.P.C. were mandatory in nature---Appellate Court was bound to decide each and every issue after discussing the evidence but if decision of appeal was possible after recording findings only on one or more issues then recording of issue-wise findings was not necessary---Appellate Court had not recorded issue-wise findings and had failed even to point out all the issues involved in the present case---Appellate Court having set aside the judgment of Trial Court was bound to record findings issue-wise but same had not been done---Impugned judgment passed by the Appellate Court was not in accordance with the provisions of O. XLI, R. 31, C.P.C. and same was not maintainable---Appeal was accepted and judgments of High Court and Appellate Court were set aside and case was remanded to the Appellate Court for recording decision issue-wise.

WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak and Company PLD 1990 SC 359; Syed Rehmat Ali through Legal Heirs and 2 others v. Syed Sadique Ali through Legal Heirs 1999 YLR 1656; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Manzoor-ul-Haq and 3 others v. Mst. Kaneez Begum 1993 CLC 109; PLJ 2007 SC (AJ&K) 143(sic); Bostan and 5 others v. Mst. Sattar Bibi and 11 others PLD 1993 SC (AJ&K) 24 and Jalal-ud-Din v. Mst. Rozman and 31 others 1013 SCR 29 ref.

Allah Ditta and others v. Muhammad Sharif and others 2012 CLC 1274 and Mst. Sardar Begum and others v. Muhammad Ilyas and others 2013 SCR 433 rel.

Syed Shahid Bahar for Appellant.

Kh. Muhammad Nasim for Respondents.

Date of hearing: 10th January, 2014.