MLD 2015 Judgments

2015 M L D 81

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member Judicial-III

MUHAMMAD SADIQ---Petitioner

Versus

Mst. ZUHRAN BIBI and others---Respondents

R.O.R. No.2512 of 2012, decided on 8th November, 2013.

West Pakistan Land Revenue Act (XVII of 1967)---

----Ss. 44, 161 & 164---Mutation---Challenging mutation on allegations of cheating and fraud---Respondent/owner of land in dispute, alleged that she was an illiterate and naive lady; and petitioner who was her nephew, managed the attestation of mutation of her land in his favour by obtaining her thumb impressions through cheating and fraud---Appeal by respondent lady, had concurrently been accepted by two authorities below---Validity---Enquiry report submitted by Tehsildar had shown that transaction and sanctioned mutation in favour of the petitioner, was quite lawful and it was proved that consideration amount was paid to respondent/owner---Lawful mutation entered/passed, could not be withdrawn or cancelled---Accepting revision petition filed by the petitioner, impugned orders passed by authorities were set aside, in circumstances.

Ch. Abdul Rashid Gujjar for Petitioner.

Sarfraz Nonari for Respondents.

2015 M L D 102

[Board of Revenue Punjab]

Beforen Waheed Akhtar Ansari, Member Judicial-III

BASHIR AHMAD and others---Petitioners

Versus

The STATE and others---Respondents

R.O.R. No.957 of 2013, decided on 24th April, 2014.

West Pakistan Land Revenue Act (XVII of 1967)---

----Ss. 161 & 164---Theft of trees---Criminal proceedings---Jurisdiction of Revenue Authorities---Scope---Allegation against the petitioners was that they had stolen 5 Shisham trees from the government land---On recommendation of Inquiry Officer, District Collector ordered registration of criminal case against the petitioners---Appellate Authority dismissed appeal against order of Collector---Validity---In the present case, due to allegation of commission of a criminal act against the petitioners, matter was not to be adjudicated upon under the provisions of West Pakistan Revenue Land Act, 1967---Petitioners, would have every opportunity to prove their case before the Police Authorities or the court of competent jurisdiction, which would be appropriate forums for the petitioners---Petition was disposed of by the Board of Revenue with the observation that petitioners could approach the Police Authorities for redressal of their grievances, in circumstances.

Zafar Iqbal for Petitioners.

Ex-parte proceedings have been initiated against the respondent on 5-12-2013.

2015 M L D 138

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member Judicial-III

KHALID ABBAS---Petitioner

Versus

The STATE---Respondent

ROR No.2269 of 2012, decided on 16th July, 2013.

West Pakistan Land Revenue Act (XVII of 1967)---

----Ss. 36 & 164---Application for allotment of land under 'Lamberdari Grant'---Application filed by petitioner for allotment of land under "Lamberdari Grant", had been concurrently dismissed by competent authority and Appellate authority---Validity---Facility of allotment of "Lamberdari Grant" had been withdrawn when application of the petitioner was pending adjudication---All matters, even pending, were to be looked into/decided as per policy in vogue, unless provided otherwise---Impugned orders passed on the same principle, were quite lawful and needed no interference and were upheld, in circumstances.

Muhammad Adeel Ch. for Petitioner.

2015 M L D 703

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

Mst. RASHIDA BEGUM and others---Petitioners

versus

The STATE---Respondent

ROR No.2788 of 2012, decided on 23rd October, 2014.

West Pakistan Land Revenue Act (XVII of 1967)---

----Ss. 39, 44, 163, 164 & 172(2)(vi)---Record of rights---Correction of any entry in record of right---Petitioners claimed that their father purchased land in question through registered sale deed-dated 20-10-1959, and mutation was sanctioned; that said property was obtained on rent in the year 1965, but through mutation dated 23-9-1984 same was transferred to the Government as State land, illegally---Petitioners, contended that their property be restored in their names---District Officer (Revenue) allowed review petition of the petitioners and restored land to the petitioners---Government, filed appeal before Commissioner which was accepted---Validity---Petitioners claimed ownership of impugned land on the basis of purchase of said land by their predecessor-in-interest---Record had shown that vendee of predecessor-in-interest of the petitioners was not the owner of the land, he, therefore, could not sell the ownership rights---Purchases of such land could not be in a better position than the seller---Order passed by Additional Commissioner (Consolidation) was lawful and warranted no interference---Revision petition was dismissed, in circumstances.

2012 YLR 403 rel.

Rana Muhammad Nazir Khan for Petitioners.

2015 M L D 759

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

Malik MASOOD AHMAD---Petitioner

versus

IQBAL AHMAD and others---Respondents

R.O.R. No.2157 of 2013, decided on 15th October, 2014.

West Pakistan Land Revenue Act (XVII of 1967)---

----Ss.135 & 164---State land---Partition---Application for execution of conveyance deed and framing of separate wandas---District Collector, ordered the execution of conveyance and also framed separate wandas through ex parte order---Additional Commissioner (Revenue), upheld order passed by District Collector---Validity---Both petitioners and respondents were lessees of the land, whereas Provincial Government was owner---Parties though not owners of the land were claiming partition of said land as lessees---Section 135 of West Pakistan Revenue Act, 1967 dealing with partition, was not attracted in the case---Partition proceedings, which had been undertaken by the lower forums, were nullity in the eyes of law---Orders passed by Additional Commissioner (Revenue) and the one by District Collector, regarding partition of said land were set aside---District Collector was directed by Board of Revenue to reverse the possession as was before order of partition in revenue record, within one month of receipt of present order.

Abdul Haq for Petitioner.

Mian M. Jahangir for Respondent.

2015 M L D 1177

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member Judicial-III

FAISAL MAQBOOL and others---Applicants

versus

The STATE---Respondent

Case No.779 of 2014, decided on 19th June, 2014.

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

----S. 3---Settlement Scheme No.6 (1959)---Application for issuance of certified copy of "Permanent Transfer Deed"---Applicant had claimed that he had purchased property in dispute from original transferee through registered sale-deed---Alleged transferee of the property claimed that he being "non-claimant displaced person" was allotted property in question under the Settlement Scheme No.VI; and that he paid/adjusted its price from Compensation Books through association deeds from the claimants, but said Compensation Books were not available on record, nor he could produce the copies of the same---General attorney of alleged transferee had sold suit property to his son, who sold the same to the applicant vide alleged sale-deed executed on the basis of general power of attorney allegedly executed by the transferee of the property in dispute---General power-of-attorney/ "Ishtraq Nama" was not produced before the Settlement Authorities, which triggered doubts not only about the contents of such "Ishtraq Nama" also about the general power-of-attorney as well---When alleged power of attorney was executed by original transferee, he had not applied for the allotment of impugned property---Even in said general power of attorney, there was no mention of any property, including the property in question for which said power-of-attorney had been used---When credentials of the vendor of applicant had become doubtful, leading to defective title, applicant, who had come into the shoes of the vendor, could not be better of, and would sink and survive with him---Defective title could not be perfect---Application for issuance of certified copy of "Permanent Transfer Deed" regarding the property in question was not maintainable, and same was dismissed, in circumstances.

Applicant in person.

Settlement Clerk with record.

2015 M L D 1659

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MUZAFFAR AHMED and others---Petitioners

versus

The STATE---Respondent

Case No.528, decided on 27th October, 2014.

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

----Ss.2(2) & 3---Petition for allotment of alternate plot---Petitioners contended that they could be allotted alternate plot in pursuance of order passed by Chief Settlement Commissioner---Petitioners, were required to produce the copy of alleged allotment order, which needed to be implemented in obedience of order of Chief Settlement Commissioner---Counsel for the petitioners, straightaway refused to produce any such allotment document, despite proper time was given for the same---In absence of such order/documents, further proceedings in consequence of alleged order of Chief Settlement Commissioner, would not be possible---Order accordingly.

Khurshid Iqbal for Petitioner.

Ch. Muhammad Saeed for S & R Wing.

2015 M L D 1778

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

GHULAM RASOOL and others---Petitioners

versus

ASHIQ and others---Respondents

ROR No.381 of 2011, decided on 9th January, 2014.

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 3, 10, 11 & 13---West Pakistan Land Revenue Act (XVII of 1967), S.164---Consolidation Scheme, confirmation of---Getting land on the basis of "Adhlapy"---Consolidation scheme of village concerned was confirmed by Consolidation Officer---Petitioners, feeling aggrieved by said order, preferred appeal before Deputy District Officer (Consolidation), which was dismissed---Revision petition before Executive District Officer (Revenue), had also been dismissed---Validity---Petitioners, got the land of respondents measuring 90-K, on the basis of "Adhlapy" vide mutation in year 1963---Possession of whole of the land was transferred to predecessor of the petitioners---"Adhlapy" was form of tenure under which proprietary rights were acquired in land through agreement, whether oral or written, by reclamation or expenditure of capital---As per that transaction under "Adhlapy" the petitioners, were bound to develop whole of the land and accordingly the fully developed land was to be distributed between the petitioners and respondents equally---Petitioners, could develop half of the land till year 2001, when the consolidation of the land was undertaken---Consolidation Officer, while finalizing the scheme gave developed piece of land into the share of the respondents being owners of land, and in view of the matrix of "Adhlapy"---Distribution was made with the consent of the father of the petitioners---Petitioners, in circumstances, could not go beyond the consent of their predecessor---Under the terms of "Adhlapy" the petitioners were bound to give half portion of the land to get themselves entitled for remaining half of the land---Impugned order, had been passed on the basis of said principle, which did not merit any interference---Revision petition was dismissed and order passed by Executive District Officer (Revenue), was upheld in circumstances.

Malik Jamshed Akhtar for Petitioners.

Respondents Ex parte.

2015 M L D 155

[Federal Shariat Court]

Before Sardar Muhammad Raza, C.J., Allama Dr. Fida Muhammad Khan and Riaz Ahmad Khan, JJ

Mst. SHAMIM AKHTAR---Appellant

Versus

SAIFUR REHMAN alias SAIFA and 2 others---Respondents

Criminal Appeal No.103/I of 2010, decided on 10th October, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.15 & 17(4)---Criminal Procedure Code (V of 1898), S.417(2-A)---Constitution of Pakistan, Arts.203-D & 203-DD---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, haraabah---Appeal against acquittal---Jurisdiction of Federal Shariat Court---Scope---High Court had transferred appeal to Federal Shariat Court with the observation that accused having been charged for the offence of 'Haraabah' under S.17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, appellate jurisdiction stood vested with Federal Shariat Court---Validity---Complainant, had not uttered a single word, either in the F.I.R., or in the statements etc., that assailants had come for the purpose of taking away the property of the party aggrieved---No allegation was on record to the effect that assailants showed even a slight inclination of demanding either money or the motorbike of the complainant party---When such element was missing altogether, accused could not be charged under S.17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Present case was a case of simple offence of murder, where the assailants had waylaid the victims; and had killed one of them without the intention to rob or extort anything whatsoever---Act of charging accused for haraabah, was void and illegal---Any court, while exercising or assuming the jurisdiction of an appellate court, had absolute authority to appreciate by judicial application of mind, as to whether the Trial Court had charged accused rightly or wrongly---High Court, had jurisdiction to hear the case in appeal; and, Federal Shariat Court, in view of law and facts, lacked jurisdiction---Federal Shariat Court ordered to transmit back the record of appeal to High Court for decision at its own end.

Nemo for Appellant.

Nemo for Respondents.

Nemo for the State.

Date of hearing: 10th October, 2014.

2015 M L D 92

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

SAFA and 3 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.15 of 2011, decided on 26th March, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---F.I.R. lodger/ complainant, who narrated actual account of occurrence, was not an eye-witness of the occurrence, and he reached at the scene of occurrence after hearing fire shots; and found the deceased breathing his last---Motive behind the occurrence was old enmity---Nothing material could be dug out from the lengthy cross-examination of three eye-witnesses, except, relationship of said witnesses, which had been admitted by them---Prosecution case was further proved by material suggestion, put forward by the counsel of accused persons---Occurrence had occurred, exactly according to the version of the prosecution; and the statement of the eye-witnesses---True account of story, had been substantiated through cross-examination, and suggestion put forward to eye-witnesses---Corroborative evidence, under the circumstances, could not be even looked into in presence of un-shattered confidence inspiring, and true account of eye-witnesses, which were enough to prove the guilt of accused persons---Appeal was dismissed maintaining the conviction and sentences, and amount of compensation to be paid by accused persons was enhanced.

Malik Haq Nawaz for Appellants.

Assistant Advocate General for the State.

Amjad Hussain for the Complainant.

2015 M L D 1206

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J. and Muhammad Yar, J

KAMANGO COLLEGE BUS ACCIDENT: In the matter of

Suo Motu Case No. 1 of 2014, decided on 8th November, 2014.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Art. 71---Fatal road accident---Suo Motu jurisdiction of Chief Court, exercise of---Fatal road accident took place, whereby a bus owned by a private Girls College, met an accident and ten precious lives were lost including that of driver and Administrator of the said college---Chief Court, in exercise of its powers under Art.71(2) of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, took the notice of the matter---In response to the court notice, concerned Officers appeared and filed their comments and detail reports on the incident---Said officers stated that as a result of their day and night efforts, as per direction of the court, they succeeded to recover the dead bodies, except one which would be recovered with the help of locals and army personnel---President of District Bar Association, submitted that legal heirs of the deceased, from their own resources approximately spent three lac of rupees for the recovery of dead bodies, which they paid to the rock rafters, helpers, divers---Further proceedings in the matter were closed, in compliance with the order of the chief court---District Administration was directed by the chief court to bear the expenditure amounting to rupees three lac incurred during the recovery of the dead bodies by each legal heir of the deceased, which they paid to the rock rafters, helpers and divers and to establish fully equipped rescue and trained staff for rescue in such like incidents---Incharge Traffic Police and Licensing Authority were directed to carry out verification of valid driving licence of the drivers employed with Public Transport Vehicles, as well as school and college, vehicles---Private school owners were directed not to employee any person as driver having less than five years experience for plying buses, Coaches and Vans, holding the licence of HTV (Heavy Transport Vehicle) in future---Owners of private schools and colleges were ordered to get their buses, coaches, vans insured from recognized Insurance company---Public Works Department was directed to remove sharp cuts and widen the road, and install safety guards where necessary, especially the place where the fateful accident occurred---Water and Power Department was directed, not to use roads for installment of electric polls, and water channels etc., without prior written permission from the department concerned and landowners---Excise and Taxation Officers were directed to carry out the fitness of the school buses, coaches, vans, as well as public transport on monthly basis, and report submitted to concerned Deputy Commissioner with the intimation to the court---Principal/Administration of the concerned College, was directed to furnish detail of their vehicles with certified copies of CNIC and driving licences of drivers to the Deputy Commissioner of the Area within 10 days under intimation to Chief Court---Office of Chief Court was directed to circulate the copy of present order to the concerned quarters for compliance.

Mir Muhammad, Additional Advocate General.

Malik Muhammad Afsar Khan, Commissioner Baltistan Division.

Abid Ali, Deputy Commissioner, Skardu District.

Faryad Khan, Chief Engineer and Ghulam Rasool, Superintending Engineer PWD, Baltistan Division along with Sardar Alam, Executive Engineer Building and Roads PWD Skardu District.

Muhammad Ali, Chief Engineer along with Muhammad Musa, Superintending Engineer Water and Power, Baltistan Division.

Akhond Muhammad Ali, President District Bar Association Skardu.

2015 M L D 1217

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

KACHO ASGHAR---Petitioner

versus

The STATE---Respondent

Cr. Misc. No.4 of 2015, decided on 4th April, 2015.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Possessing and trafficking of narcotics---Bail, refusal of---Huge quantity of 5 Kilograms of charas, value of about Rs.2,00,000 was recovered from accused, and Police submitted incomplete challan for trial of accused under S.9(c) of Control of Narcotic Substances Act, 1997---Later on Police filed complete challan for trial of accused under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979---As heavy quantity of charas was allegedly recovered from accused, S.9(c) of Control of Narcotic Substances Act, 1997, was appropriate law, which was attracted---Police malafidely exercised power of Anti-Narcotic Force and submitted incomplete challan under S.9(c) of Control of Narcotic Substances Act, 1997 first, and then final challan under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979, just to give benefit to accused, as offences under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979 did not fall within the prohibitory clause of S.497, Cr.P.C.---Mala fide on the part of Police, was glaring in circumstances---Bail petition was refused by the Chief Court with directions to the Inspector General of Police for taking disciplinary action against SHO and Investigating Officer for the evident mala fide on their part in conducting the investigation of the case.

Hassan Jahangir for Petitioner.

Mir Muhammad, Addl. Advocate General for the State.

2015 M L D 1374

[Gilgit Baltistan Chief Court]

Before Muhammad Alam and Yar Muhammad, JJ

The STATE---Appellant

versus

SHAKEEL AHMAD and another---Respondents

Cr. Appeal No.14 of 2012, decided on 12th March, 2015.

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

----Ss.6, 7, 21-H, 21-L & 25---Penal Code (XLV of 1860), Ss. 302, 34, 114 & 109---Qanun-e-Shahadat (10 of 1984), Art.40---Criminal Procedure Code (V of 1898), S.417(2-A)---Constitution of Pakistan, Arts.13(b) & 25---Qatl-i-amd, common intention, abetment---Appeal against acquittal---Reappraisal of evidence---Statements of accused recorded by Superintendent of Police, did not contain the proper and clear answers given by accused persons to questions put to them, which could suggest that confessions of accused were voluntary within the contemplation of S.21-H of Anti-Terrorism Act, 1997---Said statements had lost its effectiveness for becoming a piece of evidence---Statement recorded under S.21-H of Anti-Terrorism Act, 1997, could not be used as exclusive piece of evidence, upon which conviction could be based, if said statement was not corroborated by a strong piece of evidence---Said statement, would be treated just a piece of evidence, which would be read along with the other material on record---Section 21-H of Anti-Terrorism Act, 1997, was repugnant to Arts.13(b) & 25 of the Constitution---Prosecution claimed that a .30 bore pistol was recovered at the pointation of accused, which version, was substantiated by prosecution witness; but, in court it turned out to be different one, in description of pistol, rather it was 163 mm and not 30 bore, which had made the recovery doubtful---Recovery of pistol, could not be treated as corroborative piece of evidence---Site-plan prepared at the pointation of accused, could not be termed in pursuance of Art.40 of Qanun-e-Shahadat, 1984, as in order to bring the case within the ambit of Art.40, prosecution must establish that information conveyed by accused, actually led to the recovery of same and that said fact was unknown to the Police, and it was for the first time derived from the accused---Just after the occurrence, the Police had visited the spot, and on the pointation of eye-witness, Investigating Officer, prepared the site-plan---Conditions laid down under Art.40 of Qanun-e-Shahadat, 1984, were not attracted in the case---Each and every piece of evidence, collected by Investigating Officer in the case, to connect accused with the offence, suffered with doubts and infirmities---No conviction could be based on such evidence in circumstances---Appeal against acquittal was dismissed being meritless.

Haji Jamal Khan and Amjad Hussain for Respondents/convicts.

Dy. Advocate General assisted by Malik Haq Nawaz for the State/Complainant.

Date of hearing: 12th March, 2015.

2015 M L D 1484

[Gilgit Baltistan Chief Court]

Before Yar Muhammad, J

Mst. SHEHR BANO---Petitioner

Versus

ABDULLAH through L.Rs.---Respondents

C. Rev. No.85 of 2013, decided on 30th March, 2015.

Civil Procedure Code (V of 1908)---

----S. 115---Revision, filing of---Requirements---When revision petition was filed the record with regard to the dispute lying with the courts below normally was not requisitioned rather it was expected of the party who had come to the court, to equip his revision petition with all and necessary documents answering all questions arising in the mind of Judge during the course of arguments and at the time of writing judgment---Petitioner had failed to bring on record all the memos of appeals, copies of revision petition, objection petition and miscellaneous application filed by the parties during different stages of the litigation and the judgment/orders passed in these matters by the courts of first instance, which was mandatory to be appended with the revision petition---No document had been brought on record by the petitioner available to her on which basis she could allege any injustice done to her---Revision petition having not been properly instituted, was dismissed in circumstances.

Amjad Hussain for Petitioner.

Johar Ali for Respondents.

Date of hearing: 17th March, 2015.

2015 M L D 1672

[Gilgit-Baltistan Chief Court]

Before Yar Muhammad, J

HAZARA BAIG and 9 others---Petitioners

versus

RAZA BAIG and 3 others---Respondents

C. Rev. No.21 of 2007, decided on 24th April, 2015.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Civil Procedure Code (V of 1908), O.XXXII, Rr.1, 2, 3, 4 & 5---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.71---Suit for possession and declaration against minors---Appointment of guardian for minors/defendants---Procedure---Dispute between the parties was over a shop, about which claim of defendants was that same was common and undivided property of the parties; which was kept with the deceased (father of defendants) to achieve common object---Suit had been filed against the legal heirs of deceased son of the predecessor-in-interest of the parties and the widow of deceased son, nominating her as guardian of the minors/defendants, being their mother---Suit was concurrently decreed by the two courts below---Plea of defendants was that at the time of filing suit by the plaintiffs, defendants were minors; but the court below did not take notice of the fact and failed to appoint any person as guardian of the defendants and overlooked the essence and mandate of the provisions of O.XXXII, C.P.C.---Counsel for the plaintiffs contended that minors/ defendants had been sued through their mother who as a natural guardian, had contested the suit in which she was also interested as co-sharer and that throughout the proceedings, no objection in that regard was raised and that neither the minors/defendants had faced any awkward situation while defending the suit---Validity---Fact of defendants being minors, was to be brought to the notice of the court by means of an application under R.3 of O.XXXII, C.P.C. and it was the duty of the court to appoint a guardian-ad-litem, which was its prerogative---Contention of defendants that it was binding upon the Trial Court to appoint a suitable person as guardian-ad-litem to give safeguard to the interest of minors was repelled, as at the time when suit was filed, the plaintiffs had themselves nominated the mother of the defendants to be guardian and that she was also party in the suit as defendant having common interest with her minor offsprings i.e. the defendants---Said nominated guardian/mother, did not raise any objection for her being unable to act as guardian, rather she accepted the responsibility for being natural guardian of the minors/defendants---Object of the provisions, laid down under O.XXXII, C.P.C., suggested that when a suit was filed against minor through natural guardian and the court, if satisfied for such suggestion, formal order of the court regarding appointing a person to be guardian-ad-litem, was not necessary; rather such appointment order became mandatory when a suit was brought against a minor, without a next friend, because without a next friend or appointment of a guardian of the minor, no suit could proceed---Mother of the minors appointed a senior and leading advocate to defend the interests of the minors, she produced evidence, and her counsel subjected the witnesses with lengthy cross-examination leaving no room for the counsel to raise any objection in that behalf---Plaintiffs had established their right over the suit shop as co-sharers brimfully, and the evidence of the plaintiffs so appreciated by the courts below, was in accordance with its essence, calling no interference by Chief Court---During pendency of the suit, two plaintiffs, while relinquishing their claim, had withdrawn themselves from the suit---Chief Court held that remaining plaintiffs, would be entitled for 3/6th share in the shop---Impugned judgments passed by courts below, were maintained, with only modification that after withdrawal of two plaintiffs from their claim, the remaining plaintiffs would be entitled for 3/6th share in the shop.

Amjad Hussain for Petitioners.

Muhammad Isa for Respondents.

Date of hearing: 10th April, 2015.

2015 M L D 1802

[Gilgit-Baltistan Chief Court]

Before Yar Muhammad, J

FIDA HUSSAIN and another---Petitioners

Versus

BASHARAT HUSSAIN and 2 others---Respondents

Cr. Misc. Nos.150 and 175 of 2014, decided on 22nd December, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(1), (2)& (5)---Penal Code (XLV of 1860), Ss.365-B, 496-A & 34---Kidnapping, abducting or inducing woman to compel for marriage etc., enticing or taking away or detaining with criminal intent a woman, common intention---Bail, grant of---Further inquiry---Alleged abductee, had advanced two different versions about her escape from the house of her parents---According to first statement of alleged abductee, she was not kidnapped by anyone, rather she eloped with her lover while in her second statement, she had stated that she was abducted by accused persons---By making two different statements, alleged abductee had changed the entire complex of the prosecution case, making the same one of further inquiry---As to which statement of alleged abductee, out of the two, was correct, would be determined at the trial---Present was a fit case for the enlargement of accused on bail---No ground or reason existed to recall the bail extended to accused---Application by the complainant for cancellation of bail, extended to two accused was dismissed and other accused were granted bail in circumstances.

Raja Zia-ur-Rehman for Petitioner (in Cr. Misc. No.150 of 2014).

Malik Haq Nawaz for Respondents Nos.1 and 2 (in Cr. Misc. No.150 of 2014).

Malik Haq Nawaz for Petitioner (in Cr. Misc. No.175 of 2014).

Raja Zia-ur-Rahman for the Complainant (in Cr. Misc. No.175 of 2014).

Mir Muhammad, Addl. Advocate-General for the State (in both cases).

Date of hearing: 22nd December, 2014.

2015 M L D 1835

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

The STATE through F.I.A., GILGIT---Appellant

Versus

ABDUL RAHIM and 2 others---Respondents

Cr. Appeal No.1 of 2014, decided on 2nd April, 2015.

Penal Code (XLV of 1860)---

----Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Procedure Code (V of 1898), S.417(2-A)---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property---Forgery for purpose of cheating, using as genuine a forged document, corruption---Appeal against acquittal---Reappraisal of evidence---Offence alleged against respondents/accused persons, pertained misappropriation of material or goods in furtherance of their common intention---Trial Court had based its opinion on the defects in investigation of the case, and had omitted to base its decision on the available prosecution evidence---Prosecution had produced evidence showing non-delivery of goods of the department at the target destination by one accused---Prosecution evidence showed that other two accused were in active collusion or connivance with one accused resulting in non-delivery of the goods of the department at target destination---Proof of delivery of different goods of the department to the accused was strong circumstantial piece of evidence, to which Trial Court failed to take up for discussion---Impugned order, was result of misreading of evidence---Delay in filing appeal was condoned by chief court---Impugned order was set aside---Trial Court was directed to require accused persons for furnishing the bonds and hear the parties and pass fresh order in the light of material available on record, or even to seek fresh evidence---Order accordingly.

Additional Advocate-General for the State assisted by Syed Dildar Hussain, Assistant Director Legal, FIA.

Hidayat Ali for Respondent No.1.

Muhammad Nazir for Respondent No.2.

Ghulam Nabi for Respondent No.3.

Date of hearing: 2nd April, 2015.

2015 M L D 85

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MUHAMMAD JAVAID---Petitioner

Versus

MUHAMMAD ASLAM QAMAR and 4 others---Respondents

Revision Petition No.20 of 2013, decided on 20th December, 2013.

Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK)---

----Ss. 4 & 6---Civil Procedure Code (V of 1908), S. 12(2)---Suit for right of prior purchase---Withdrawal of suit on the basis of compromise---Appeal---Withdrawal of said appeal with permission to file application under S. 12(2), C.P.C. before the Tria l Court---Scope---Plaintiff did not press for permission to file an application under S.12(2), C.P.C. before the Appellate Court and he prayed only for withdrawal of appeal---No bar with regard to filing application under S.12(2), C.P.C. with the Trial Court was imposed by the Appellate Court---Plaintiff was debarred to pray for permission to move an application under S. 12(2), C.P.C.---Revision was not maintainable which was dismissed in circumstances.

Ch. Muhammad Ilyas for Petitioner.

Ch. Mehboob Ellahi for Respondent No.1.

2015 M L D 143

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

MUHAMMAD MUBEEN KHAN---Petitioner

Versus

FARZAND BEGUM and 8 others---Respondents

Writ Petition No.53 of 2013, decided on 6th July, 2013.

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

----Ss. 4 & 14---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Scope---Laches, doctrine of---Applicability---Tenant filed application for determination of fair rent of the premises whereas landlord moved application for his eviction---Ejectment petition was accepted concurrently---Validity---Both the parties produced their evidence and case was decided in accordance with law---Tenant had not pointed out that courts below exercised their jurisdiction without justification or exercised the powers which were not vested in the said courts---Rent Controller had powers to summon and enforce the attendance of witnesses and to make inquiry---High Court while exercising writ jurisdiction could not sit upon the judgments of subordinate courts or local authorities or tribunals as a court of appeal---Orders passed by the courts below could not be set aside by the High Court in writ jurisdiction---Writ petition had been filed after five months from the judgment of District Judge---Explanation that copies of judgments were not provided was not reliable---Writ petition could be filed soon after the judgment of District Judge even without appending the copies of the same with permission of the court---Present writ petition was also hit by the doctrine of laches---Writ petition was dismissed in limine.

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

Syed Nishat Kazmi for Petitioner.

Muhammad Farooq Minhas for Respondents.

2015 M L D 199

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

IFTIKHAR AHMED KHOKHAR---Appellant

Versus

MUHAMMAD HUSSAIN and 33 others---Respondents

Civil Appeal No.167 of 2004, decided on 15th April, 2013.

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

----O.VII, R.11---Specific Relief Act (I of 1877), S.42---Suit for declaration---Incompetent suit qua the cause of action---Rejection of plaint---Scope---Plaintiff filed suit for declaration-cum-possession in respect of land in question---Plaintiff as per the averments made in plaint had totally failed to substantiate his claim of ownership/allotment of suit land---Application for rejection of plaint filed by defendant was allowed by court below---Validity---Plaintiff had no cause of action in the light of averments made in the plaint---Court below after appreciating the documents appended with the plaint had rightly pointed out that the plaintiff had no locus standi---Suit was rightly rejected by court below.

2004 CLC 1340 and 2000 CLC 1762 rel.

1998 SCR 153; 1986 PTD 208 and Iftikhar Ahmed Khokhar v. Municipal Corporation Mirpur and 4 others decided by the apex Court on 30-11-2012 ref.

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

----O.VII, R.11---Application for rejection of plaint---Dismissal of suit---Difference between "rejection" of plaint and "dismissal" of suit---Scope---Defendant had moved application under O. VII, R. 11, C.P.C. for rejection of plaint---Court dismissed the suit---Validity---Difference between rejection and dismissal was obvious---In case of dismissal further suit was barred, whereas in case of rejection, there was no bar to further suit on separate cause of action---Defendant filed application of rejection of plaint but the court had dismissed the suit---Dismissal of suit was not permissible under law---Impugned order was modified to the extent of dismissal of suit---High Court rejected the suit under O.VII, R. 11, C.P.C.

Muhammad Idrees Mughal for Appellant.

Sardar Muhammad Azam Khan for Respondents Nos. 10 to 13 (now 26 to 29)

Raja Farooq Minhas for other Private Respondents.

2015 M L D 238

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

ABDUL RASHEED---Petitioner

Versus

DILKASHA BEGUM and 6 others---Respondents

Writ Petition No.18 of 2009, decided on 19th February, 2014.

Azad Jammu and Kashmir Grant of Khalsa Waste Land as Shamilat Deh Act, 1966---

----S. 5---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Shamilat deh land---Ejectment order passed by Revenue Officer---Scope---Contention of petitioner was that ejectment orders were passed without lawful authority--- Validity--­ Impugned orders could not be termed as judicial orders rather same were in contradiction . of Azad Jammu and Kashmir Grant of Khalsa Waste Land Shamilat Deh Act, 1966---Petitioner was owner in possession of disputed land and was share-holder of Shamilat Deh land and till partition/distribution of the same, he could not be ejected from the land that was in his exclusive possession---Impugned orders were without lawful authority having no legal effect and same were set aside---Writ petition was accepted in circumstances.

2001 CLC 920; 2004 YLR 2260; 2000 SCMR 238; 1996 SCR 161; 2013 YLR 169; PLD 1992 SC (AJK) 491; PLD 1984 AJK 15; 1996 MLD 355; 2013 SCR 548 and 2000 YLR 1051 ref.

2001 CLC 920 rel.

2004 YLR 2260; 2000 SCMR 238; 1996 SCR 161; 2013 YLR 169; PLD 1992 SC (AJK) 491; PLD 1984 AJK 15; 1996 MLD 355; 2013 SCR 548 and 2000 YLR 1051 distinguished.

Raja Muhammad Sagheer for Petitioner.

Rafiullah Sultani, Liaqat Hussain Mughal and Rafique Shaheen, Additional Advocate General for Respondents.

2015 M L D 276

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD NASEER BASHIR---Appellant

Versus

ARSHAD MAHMOOD and 5 others---Respondents

Civil Appeal No.22 of 2006, decided on 29th March, 2013.

Civil Procedure Code (V of 1908)---

----O. XXI, R. 35, 99 & S. 47---Decree for immovable property---Execution petition---Resistance or obstruction by bona fide claimant---Objections---Scope---Execution petition was filed wherein warrant for compliance was issued and revenue officer submitted report that neither any construction was made on the suit land nor same was in the possession of judgment-debtor but was in the possession of another person---Other party filed objections with regard to report and execution petition was dismissed concurrently---Validity---Misreading or non-reading had not been pointed out and there were concurrent findings of courts below---Land in dispute was in the possession of another person and property mentioned in the decree was another land---No illegality was found in the impugned judgment which was passed in accordance with law---No reason existed to interfere into the findings of courts below---Appeal was dismissed.

Raja Hassan Akhtar for Appellant.

Ch. Muhammad Afzal for Respondent No.1.

2015 M L D 293

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

SURRIYA BEGUM---Appellant

Versus

ALTAF HUSSAIN and 2 others---Respondents

Civil Appeal No.153 of 2012, decided on 19th December, 2013.

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---Plaintiff filed application for framing of additional issues with regard to sale-deed and recovery of sale money but no order was passed on the same and plaint was rejected---Consideration for rejection of plaint was the contents of the same keeping in view the facts of the case---Preliminary issues could not be decided without recording of evidence after filing of written statement and framing of issues---Trial Court was bound to attend to application for framing of additional issues and complete evidence and then record its findings on each and every issue---Findings on the facts were necessary for disposal of controversy between the parties---Judgment and decree passed by the Trial Court were set aside and case was remanded with the direction to dispose of the same after attending application for framing of additional issues and recording of evidence of both the parties.

2012 CLC 1445 ref.

2002 SCMR 338 and 2006 CLC 1257 distinguished.

2010 SCR 295 and 2012 CLC 1445 rel.

Liaqat Hussain Mughal for Appellant.

Sardar Ishtiaq Ahmed for Respondent No.1.

Raja Tabraiz Iqbal for Respondent No.3.

2015 M L D 349

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

Raja MUHAMMAD SADIQ KHAN---Petitioner

Versus

BOARD OF REVENUE OF AZAD JAMMU AND KASHMIR and 3 others---Respondents

Writ Petition No.62 of 2008, decided on 2nd July, 2013.

Azad Jammu and Kashmir Board of Revenue Act, 1993---

----S.8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Review of judgment by Board of Revenue---Scope---Member Board of Revenue was bound to pass any order after hearing the opposite party---Petitioner was not summoned while hearing the review petition---Member Board of Revenue had violated the provisions of law---Impugned order being contrary to settled law was set aside---Writ petition was accepted in circumstances.

Muhammad Farooq Minhas for Petitioner.

Sardar Ejaz Nazir for Respondent No.4.

Nemo for other Respondents.

2015 M L D 400

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

IFTIKHAR HUSSAIN KHAN and 13 others---Appellants

Versus

MUHAMMAD GULZAR KHAN and 5 others---Respondents

Civil Appeal No.95 of 2002, decided on 4th July, 2013.

Civil Procedure Code (V of 1908)---

----O. VIII, R. 5---Qanun-e-Shahadat (10 of 1984), Art. 100---Suit on the basis of adverse possession---Thirty years old document---Presumption of truth---Scope---Possession of one co-sharer to be considered as possession of all co-sharers---Agreement (document) had not been challenged by the defendants in their suit---Document which had not been challenged or rebutted would be deemed to have been admitted---Said agreement was thirty years old and presumption of truth was attached to the same---Plaintiffs had long and continuous possession over the suit land---Both the courts below had appreciated the evidence in its true perspective---Neither any mis-reading nor non-reading of evidence had been pointed out by the defendants---No illegality or irregularity had been committed by the courts below while passing the impugned judgments and decrees---Appeal was dismissed in circumstances---Impugned judgments and decrees were maintained.

Ch. Amjad Ali for Appellants.

Muhammad Yaqoob Khan Mughal for Respondents.

2015 M L D 417

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD SAGHIR ABBASI---Petitioner

Versus

DISTRICT RENT CONTROLLER and 2 others---Respondents

Writ Petition No. 2307 of 2012, decided on 30th September, 2013.

Azad Jammu and Kashmir Rent Restriction Ordinance (XCII of 1980)---

----S. 18(7)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Maintainability---Concurrent findings---Scope---Order of Rent Controller, subject to appeal if any, was final and could not be assailed in any court of law including High Court by way of suit, appeal or otherwise---Section 18(7) of Azad Jammu and Kashmir Rent Restriction Ordinance, 1980 had created bar to challenge the order of Appellate Court even by way of revision or appeal---Rent Controller had exclusive jurisdiction and interim orders passed by Rent Controller and upheld by the Appellate Court were not questionable by way of revision or writ petition---Concurrent findings could not be challenged by filing writ petition---Writ petition was dismissed in circumstances.

PLD 1997 Lah. 1773; PLD 1983 SC (AJ&K) 204 and 1997 CLC 1822 rel.

Saghir Javaid for Petitioner.

K.D. Khan for Respondents.

2015 M L D 470

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD AZAM and 4 others---Appellants

Versus

SAIF ALI KHAN and 39 others---Respondents

Appeal No.87 of 2002, decided on 4th July, 2013.

Civil Procedure Code (V of 1908)---

----O. XX, R. 5---Decision on each issue---Trial Court passed decree for possession but same was set aside by the Appellate Court and decree for possession was passed in favour of defendants---Validity---Conclusion made by the Appellate Court was based on surmises and conjectures---Impugned order passed by the Appellate Court was set aside and case was remanded to the said court for decision afresh after appreciating the evidence of the parties issuewise---Appeal was accepted in circumstances.

Sardar Atta Elahi Abbasi for Appellants.

Muhammad Yaqoob Khan Mughal for Respondents.

2015 M L D 621

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

HAFEEZ-UR-REHMAN---Appellant

versus

MUHAMMAD AZAM and 2 others---Respondents

Civil Appeal No.191 of 2006, decided on 3rd April, 2014.

Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK)---

----Ss. 4 & 6---Suit for right of prior purchase (pre-emption)---Gift-deed---Scope---Contention of plaintiffs was that transaction was in fact a sale but same had been made a gift only to defeat their right of prior purchase---Suit was decreed concurrently---Validity---Defendant had not denied the claim of plaintiffs with regard to the fact that gift-deed was in fact a sale-deed---Written statement submitted by the defendant was of evasive nature---Denial of any fact of evasive nature was sufficient to treat it as an admission on behalf of defendant with regard to such fact---Findings recorded by both the courts below were based on sound and cogent reasons---Both the courts below had rightly relied upon the evidence available on record---No direct evidence could be produced in such like cases and evidence on record and conduct of the parties was always relevant---Both the courts below had rightly relied upon the record, conduct and intention of the parties---No misreading of evidence had been pointed out in the impugned judgment and decree passed by the courts below---Appeal was dismissed in circumstances.

1993 CLC 1084; 2000 MLD 1813 and 2002 CLC 1121 ref.

Muhammad Ayub Sabir for Appellant.

Muhammad Farooq Minhas for Respondents.

2015 M L D 630

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

CENTRAL ASIA INSTITUTE, GOJRA, MUZAFFARABAD through Program Director and another---Petitioners

versus

DEPUTY COMMISSIONER, DISTRICT, MUZAFFARABAD and 6 others---Respondents

Writ Petition No.1172 of 2012, decided on 5th June, 2014.

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

----S. 44---Criminal Procedure Code (V of 1898), S. 144---Writ jurisdiction---Scope---Non-Governmental Organization, registration of---Establishment of hostel---Alternate remedy---Question of fact---Scope---Contention of petitioners was that respondents/authorities were bent upon to cancel the registration of the hostel and seal the same with mala fide intention---Validity---Trustees of the Organization-Trust having not been impleaded as party, writ petition was not maintainable---Petitioners had an alternate remedy in the shape of revision against the impugned order/letter before the competent court but instead of availing the same they had invoked the extraordinary jurisdiction of High Court which was not warranted---Reports of investigating authorities on the basis of which impugned order/letter had been issued had not been challenged---Question of fact could only be resolved by recording evidence before the concerned authority/forum and High Court could not do the same while exercising writ jurisdiction---No permission for establishment of hostel was available on record---Registrar District Council was not empowered to register or issue registration certificate with regard to registration of hostels who had issued the same---District Council could perform functions of construction and maintenance of buildings to be used as hostels for students and could also arrange programs for training of teachers---Registration of welfare agencies was mandatory with the Kashmir Council/Registration Authority but no such registration was available on record---No illegality, irregularity, mala fide or violation of any law or infringement of any constitutional right of petitioners had been pointed out in the impugned order/letter---Mere levelling an allegation of mala fide did not create any reason for interference in the domain of administrative authorities---Writ petition was dismissed, in circumstances.

Syed Mushtaq Hussain Gillani for Petitioners.

Sardar M.R. Khan, A.A.-G. and Raja Aftab Ahmed Khan for Respondents.

2015 M L D 809

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

Shaikh GULZAR---Appellant

versus

MUHAMMAD SHAWAAL and 6 others---Respondents

Civil Appeal No.99 of 2009, decided on 23rd October, 2014.

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

----S. 42---Suit for declaration---Adverse possession---Scope---Law of adverse possession was un-Islamic---Executor of agreement in question had given the right to possession and not the right to ownership---Land in dispute was an evacuee property---Decree passed by the Trial Court to the extent of protection of possession of plaintiffs was in legal fashion---Law of adverse possession was not holding the field at the time of institution of present suit---Plaintiffs were not entitled to the decree on the basis of adverse possession---Appellate Court had fallen in error while deciding the controversy in favour of plaintiffs---Impugned judgment passed by the Appellate Court was vacated and that of Trial Court was restored---Second appeal was accepted in circumstances.

Aziza Begum v. Muhammad Hussain 2013 SCR 250; 2001 MLD 493; 1998 SCR 369 (sic) and 1983 CLC 699 ref.

Mst. Zainb Bibi and 5 others v. Muhammad Sharif 2004 YLR 1395; Allah Yar and 9 others v. Ghulam Sawar 2004 YLR 1918; Ghulam Muhammad v. Province of Sindh 2008 CLC 960; Habib Ullah Khan and others v. Pakistan and others PLD 1967 Kar. 300; PLD 1994 Queta 47; 1994 MLD 754; 2007 SCMR 236 and 2008 MLD 1571 rel.

(b) Interpretation of document---

----Document should be read and considered in its plain and simple language without putting on it any premium to achieve the object for which no provision had been laid down.

Sardar Muhammad Arif Khan for Appellant.

Sardar Atta Ellahi for Respondents.

2015 M L D 836

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

Mst. HASSAN NOOR through Nazir Muhammad---Appellant

versus

Haji SAID HUSSAIN KHAN and 5 others---Respondents

Civil Appeal No.53 of 1990, decided on 22nd November, 2013.

Civil Procedure Code (V of 1908)---

----O. XXII, Rr. 2 & 3, O. XLI, R. 1 & O. XLII, R. 1---Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK), Ss. 4 & 6---Suit for pre-emption---Right of prior purchase---Two pre-emptors---Appeal---Requirements---Application for impleadment of legal heirs of appellant---Non-deposit of decretal amount---Re-construction of record of appeal---Scope---Suit was decreed in favour of two pre-emptors in the order of preference but plaintiff did not deposit the decretal amount and her suit was dismissed---Record of appeal was burnt to ashes and application for re-construction of the same was filed---Appellant, during pendency of appeal, expired and application for impleadment of her legal heirs was moved---Validity---Application for impleadment of legal heirs of deceased appellant was time barred and no reason was assigned in the said application nor any evidence or document had been placed on record---Legal heirs of the appellant could not be allowed to be impleaded as appellants---Appeal of appellant stood abated in toto---Copies of judgment and decree of the Trial Court were not placed on record---Appellant was second decree holder---Copy of judgment of Trial Court was not appended with the memo of appeal though same was mandatory requirement---Appeal was liable to be dismissed under O. XLI, R. 1 and O. XLII, R. 1, C.P.C.

Sardar Abdul Khaliq Khan for Appellant.

Sardar Muhammad Farooq Khan for Respondents.

2015 M L D 872

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

YAR ALI KHAN---Petitioner

versus

AZAD GOVERNMENT OF STATE OF JAMMU AND KASHMIR through the Chief Secretary, Muzaffarabad and 4 others---Respondents

Writ Petition No.37 of 2007, decided on 20th November, 2013.

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

----S. 44---Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974, S. 3---Writ petition---Factual controversy---Scope---Allotment of land by the Revenue Officer---Cancellation of said allotment---Scope---Contention of petitioner was that land was allotted in his favour and mutation was attested to such effect---Validity---No violation of law had been committed by the authorities while passing the impugned order---Matter of fact could not be considered by the High Court in its writ jurisdiction---Writ petition was dismissed in circumstances.

2005 YLR 1931; 2002 PLC (C.S.) 1282; 1989 SCR 384; 2001 YLR 3139 and 1998 SCR 258 (sic) ref.

2007 SCR 263 rel.

Petitioner in person.

S. Sardar Khan for Non-Petitioners Nos.2 to 4.

2015 M L D 1008

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

AIMNA BIBI---Appellant

versus

MUHAMMAD HUSSAIN and another---Respondents

Civil Appeal No.86 of 2011, decided on 21st October, 2014.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 85, 102 & 103---Suit for declaration---Gift of evacuee property---Procedure---Custodian of Evacuee Property issued "no objection certificate" which was a public document---"No objection certificate" was pre-requisite for the registration of gift deed in case of evacuee property---Impugned gift deed was self-speaking and comprehensive enough---Findings of Trial Court were unexceptional and in-line with the law---Documentary evidence would exclude the oral evidence---Gift had been reduced into writing which was to be construed in accordance with its terms and in the light of facts known to both the parties---Impugned judgment passed by the Appellate Court was the result of misreading and non-reading of evidence---No forgery or fraud had been proved by the plaintiff with regard to completion of gift deed---Elements of a valid gift had been proved in the present case---Impugned judgment and decree passed by the Appellate Court were set aside and that of Trial Court were restored whereby suit was dismissed---Second appeal was dismissed in circumstances.

2006 CLC 1023; 2006 SCR 38 and PLD 1990 AJK 34 ref.

2006 CLC 1023; 2006 SCR 38 and PLD 1990 AJK 34 distinguished.

PLD 1994 Quetta 47; 1994 MLD 754; 2007 SCMR 236 and 2008 MLD 1571 rel.

(b) Islamic Law---

----Gift---Essentials---Essentials of gift were offer, acceptance and delivery of possession.

(c) Administration of justice---

----Party seeking certain relief or alleging something wrong had to prove it on its own.

(d) Interpretation of document---

----Instrument/document should be given natural meaning and all words in a deed must be taken into consideration and it should be read as a whole and be considered in totality---Document should be read and considered in its plain and simple language without putting on it any premium to achieve the object for which no provision had been laid down.

Raja Javed Akhtar and Liaqat Mughal for Appellant.

Mirza Tariq Mahmood for Respondents.

2015 M L D 1110

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

READ FOUNDATION (RURAL EDUCATION AND DEVELOPMENT FOUNDATION MUZAFFARABAD) through Chairman and another---Petitioners

versus

AZAD GOVT. OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 4 others---Respondents

Writ Petition No.1228 of 2012, decided on 19th December, 2014.

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

----S. 44---Azad Jammu and Kashmir High Court Procedure Rules, 1984, R. 32 (2)---Writ of certiorari---Requirements---Ejectment of petitioner---Non-joinder of necessary parties---Effect---Petitioners had solicited quashment of script, letter and notice/order but had failed to append copies of the same---Certified copy of impugned order was the demand of law for filing petition for writ of certiorari---Writ petition was hit by Rule 32(2) of Azad Jammu and Kashmir High Court Procedure Rules, 1984---Petitioners had not impleaded as party the Officials who passed the impugned orders in the line of respondents---Present writ petition was liable to be dismissed due to non-joinder of necessary parties---Petitioners had made construction on the suit land but had failed to bring on record even a single document which could authorize them to do so---Petitioners had no right to occupy the suit land without title---Respondents who were owners of land in question could not be restrained through writ of prohibition to eject the petitioners whose possession on the same was unlawful---Writ petition was dismissed in circumstances.

Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council v. The Government of the Punjab through Secretary Education, Civil Secretariat, Lahore and another 1987 SCMR 1197 ref.

Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council v. The Government of the Punjab through Secretary Education, Civil Secretariat, Lahore and another 1987 SCMR 1197 distinguished.

Mirza Lal Husain v. Custodian of Evacuee Property and others 1992 SCR 214; Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others 1996 SCR 161 and Water and Power Development Authority/Lahore Electricity Supply Company Limited through Sub-Divisional Officer, Sheikhupura v. Messrs Bhatti Ice and Rice Mills, Buchiki through Proprietor and another 2004 YLR 1263 rel.

(b) Azad Jammu and Kashmir High Court Procedure Rules, 1984---

---R. 32 (2)---Writ of certiorari---Requirement---Certified copy of impugned order was the demand of law for filing writ of certiorari.

Syed Shahid Bahar for Petitioners.

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

2015 M L D 1369

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

Mir ABDUL REHMAN---Appellant

versus

KHURSHEED and 11 others---Respondents

Civil Appeal No.86 of 2005, decided on 6th April, 2015.

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

----O. IX, R. 13---Judgment and decree, setting aside of---Appeal---Scope---Defendant filed application for setting aside judgment and decree which was dismissed---Validity---Case was contested by the defendant through written statement who also produced his evidence and suit was decided on merits---Application for recalling the said judgment and decree was not maintainable---Defendant was required to challenge the said judgment and decree through a regular appeal---Defendant filed application for setting aside judgment and decree which was dismissed---First appeal had been filed against the said judgment (passed in the original jurisdiction)---Appeal could be filed against decree passed by any court exercising original jurisdiction and not against the judgment---No decree was drawn by the Trial Court in the present case---Appeal against the judgment was bad in law and was not maintainable in circumstances.

Nasim Javed v. National Bank of Pakistan PLD 1985 Pesh. 91; Muhammad Khan v. Alam Din 1989 CLC 1810 and Azad Government and 5 others v. Syed Sajjad Ali Gillani and another 2001 CLC 1105 rel.

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

----S. 96---Appeal---Scope---Appeal could be filed against the decree and not against the judgment.

Appellant in person.

Nemo for Respondents.

2015 M L D 1452

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

MUHAMMAD MANZOOR KHAN---Appellant

versus

AZAD GOVERNMENT through Chief Secretary, Muzaffarabad and 19 others---Respondents

Civil Appeal No.122 of 2008, decided on 27th May, 2015.

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

----S. 42---Suit for declaration---Adverse possession---Ingredients---Plaintiff had to prove that he had been in a continuous, open and hostile possession of suit land for a specific period of time---Oral evidence could not be a substitute of documentary evidence---Plaintiff was not in continuous possession of suit land at the time of institution of suit---Suit of plaintiff, therefore, lacked an essential ingredient of adverse possession---Suit land was Shamilat deh and title of plaintiff was to be ascertained by the revenue authorities---Co-sharer could not be dispossessed from the Shamilat deh until it was partitioned by the revenue authorities by metes and bounds---Plaintiff having failed to prove his title to the suit land on the basis of adverse possession, could not be ejected from the land unless it was partitioned by the revenue authorities---Suit of plaintiff was decreed in the tone that he should not be dispossessed from the land until it was partitioned in accordance with law---Appeal was disposed of accordingly.

2001 MLD 493; 2012 MLD 1635; 2002 MLD 1923; 2003 YLR 2812; 1982 CLC 1309; 2008 SCR 46; 2005 SCR 222; 1982 CLC 1709; 1980 CLC 1611; PLD 1995 SC AJ&K 41; 2007 SCR 86; PLD 1986 SC AJ&K 56; 1992 SCMR 816; 2001 CLC 920 and 2007 SCR 392 ref.

Fojdar Khan and another v. Azad Govt. and 4 others 2001 CLC 920 rel.

(b) Shamilat deh---

---Co-sharer could not be dispossessed from the Shamilat deh land until it was partitioned by the revenue authorities by metes and bounds.

Fojdar Khan and another v. Azad Govt. and 4 others 2001 CLC 920 rel.

(c) Pleadings---

----Party could not be allowed to lead evidence in conflict with his pleadings---Evidence contrary to pleadings could not be read in favour of a party.

2003 SCR 292 rel.

Sardar Atta Elahi Abbasi for Appellant.

2015 M L D 1505

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

FAZIL HUSSAIN and another---Appellants

Versus

MAQSOOD HUSSAIN and others---Respondents

Civil Appeal No.24 of 2009, decided on 4th June, 2015.

Civil Procedure Code (V of 1908)---

----S. 47---Execution petition---Objection application---Scope---Once decree had attained finality same had to be executed in the true spirit---Second appeal was dismissed in circumstances.

PLD 2003 SC AJK 14 and 2008 SCR 300 rel.

Kh. Shoukat Hussain Ganahi for Appellants.

Syed Nazir Hussain Shah Kazmi for Respondents.

2015 M L D 1760

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD IQBAL and 2 others---Petitioners

versus

CUSTODIAN EVACUEE PROPERTY, (AJ&K) and 3 others---Respondents

Writ Petition No.173 of 2008, decided on 24th February, 2015.

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

----S. 43(6)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Adequate remedy---Allotment of land---Cancellation---Review---Powers of Custodian---Petitioners had efficacious and adequate remedy in the shape of review petition before the Custodian---Custodian was vested with vast powers to review his judgment and order---Petitioners had not produced any proof of their allotment before the concerned authorities---Custodian was a tribunal of exclusive jurisdiction whose findings of facts could not be challenged through writ petition---Writ petition was dismissed in circumstances.

1999 YLR 147; 2000 SCMR 879 and PLD 1982 SC (AJ&K) 107 ref.

2004 SCR 250 distinguished.

Azmat Ullah and another v. Ali Bahadur and another 1996 CLC 254 and Muhammad Habib Khan v. Nasiri Khatoon and 11 others 2006 SCR 22 rel.

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

----S. 44---Writ petition---Scope---Findings of facts could not be challenged through writ petition.

Muhammad Habib Khan v. Nasiri Khatoon and 11 others 2006 SCR 22 rel

Raja Rafi Ullah Sultani for Petitioners.

Riaz Naveed Butt for Respondent No.4.

2015 M L D 22

[Islamabad]

Before Noor-ul-Haq N. Qureshi, J

Raja WAQAS SHAFIQUE---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous. No.532-B of 2014, decided on 29th September, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, refusal of---Unnatural death of deceased by firearm injury occurred in the house of accused, who was husband of deceased---Heavy responsibility incurred upon accused to explain his position with regard to murder committed inside his house---Recovery of weapon and empties lying at the side of dead body prima facie were sufficient proof to connect accused with commission of offence---Empties matched with fire test conducted by expert with the same weapon which was recovered from the possession of accused---Question raised with regard to recovery needed deeper appreciation which was not permissible while deciding bail petition---Bail was refused in circumstances.

2001 SCMR 941 and 2010 PCr.LJ 1750 ref.

Raja Gul Nawaz for Petitioner.

Jahangir Khan Jadoon, Standing Counsel and Muhammad Iqbal, S.I. with record for the State.

2015 M L D 484

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

ATTA ULLAH SHAH---Petitioner

Versus

ADJ, ISLAMABAD and others---Respondents

Writ Petition No.607 of 2011, decided on 11th December, 2014.

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

----Ss. 9(6) & 5, Sched---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and dower---Ex-parte decree, setting aside of---Scope---Two documents (Nikahnamas) having distinct entries---Effect---Contention of wife was that dower of seven tola gold ornaments was fixed at the time of Nikah which had not been paid---Husband contended that same had been paid and Nikah Nama produced by the wife was not genuine and was a forged one---Validity---Husband had failed to advance any cogent, convincing and authentic reason of his absence from proceedings before the Trial Court---Earlier request of husband for setting aside ex parte decree had already been turned down by the High Court---Findings with regard to maintenance allowance were well justified and same did not call any interference---Both the Nikah Namas contained distinct entries with regard to payment of dower---Family Court had not considered the said aspect at the time of passing ex parte judgment and decree and had simply relied upon the copy of Nikah Nama tendered by the wife by treating the same as correct and genuine---Family Court had not ascertained the authenticity of said Nikah Nama through the record of concerned union council as there was a specific allegation of same being forged with another copy of Nikah Nama---Family Court was bound to ascertain the veracity of Nikah Nama while deciding the issue of fact---No such effort was made by the Family Court---Suit was decreed on the basis of document tendered by the wife without taking into consideration the objection contained in written statement coupled with the copy of Nikah Nama having distinct and divergent entry---Family Court was bound to consult the record of concerned union council for ascertaining authenticity of two documents before passing the decree---Said important aspect had also skipped from the sight of Appellate Court which would require rectification in order to do substantial justice---High Court had power to annul orders if same were arbitrary and result of non-reading and misreading of evidence or improper exercise of jurisdiction while exercising constitutional jurisdiction---Impugned order of ex parte proceedings was maintained, however ex parte judgment and decree to the extent of recovery of dower were set aside and matter was remanded to the Trial Court for decision afresh within a specified period---Constitutional petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court had power to annul orders if same were arbitrary and result of non-reading and mis reading of evidence or improper exercise of jurisdiction while exercising constitutional jurisdiction.

Sardar Tariq Mehmood for Petitioner.

Tahir Ishaq Mughal for Respondent No.3.

2015 M L D 637

[Islamabad]

Before Aamer Farooq, J

GHULAM RABBANI and 3 others---Petitioners

versus

NAZIR AHMED and 4 others---Respondents

Civil Revision Petition No.3 of 2015, decided on 9th January, 2015.

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

----O.XIV, R.1---Specific Relief Act (I of 1877), S.42---Suit for declaration---Issues, framing of---Scope---Contention of plaintiffs was that both the courts below had failed to frame proper and specific issue with regard to gift and as a result they could not adduce any evidence regarding the same---Suit was dismissed concurrently---Validity---Trial Court was bound to frame issues on the basis of pleadings of the parties---Relief sought by the plaintiffs was different from the facts pleaded by them in the plaint---Trial Court framed issue with regard to ownership of plaintiffs in the suit land according to pleadings of the parties---Plaintiffs led evidence but nothing was uttered with regard to factum of gift---No application or request was made for amendment in the pleadings during trial and even in appeal with regard to gift specifically---Suit was filed in the year 995 and issues were framed in the year 1998---Plaintiffs could not raise objection with regard to non-framing of issue on the question of gift at such belated stage after about 20 years when they were having knowledge about the same---No prejudice had been caused to the plaintiffs as issue framed would cover the controversy of their ownership and possession in the suit land---Plaintiffs had failed to point out any jurisdictional error in the impugned judgments passed by the courts below---Revision was dismissed in limine.

Muhammad Yousaf and others v. Haji Murad Muhammad and others PLD 2003 SC 184; Mst. Rasheeda Bibi and others v. Mukhtar Ahmed and others 2008 SCMR 1384; Farida Zafar Zehri and others v. Feroza Khanum and others 2007 SCMR 726 and Mst. Sughram Bibi and others v. Mst. Jameela Begum and others 2001 SCMR 772 ref.

Mst. Sughran Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCMR 4; Mehr Din (represented by his Legal Heirs) v. Dr. Bashir Ahmed Khan and 2 others 1985 SCMR 1; Aqeel Hussain and others v. Mst. Alia Bibi and others 2006 CLC 297 and Hafiz Riaz Ahmed and others v. Khurshed Ahmed and others 2013 MLD 947 rel.

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

----S.115---Revision---Scope---Revisional court could interfere with the orders of subordinate court if said court had assumed jurisdiction not vested in it or had failed to exercise jurisdiction vested in it by law or court below had acted with material irregularity in exercise of jurisdiction.

Syed Javed Akbar for Petitioners.

2015 M L D 746

[Islamabad]

Before Athar Minallah, J

NATIONAL HIGHWAY AUTHORITY---Petitioner

versus

ZARGHOON ENTERPRISES (PVT.) LTD.---Respondent

C.S. No.57 of 2013, heard on 19th November, 2014.

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

----Ss. 17 & 33---Award---Objections---Court, jurisdiction of---Sole arbitrator was appointed with the consent of parties and award was filed in court---National Highway Authority was aggrieved of the award, filed its objections against the award---Validity---Arbitrator was final judge of questions of law and fact and that his decision was to be honoured unless it could be explicitly demonstrated that he or she had committed misconduct and the same was established to the satisfaction of the court---Court, while examining validity of award, could not sit as a court of appeal---Court could not reappraise evidence recorded by Arbitrator---Any alleged error or infirmity in award should manifestly appear on the face of the award---Court could not travel beyond the award and make inquiries and investigations in proceedings and documents, which did not form part of the award---In order to construe misconduct on the part of Arbitrator, it was essential that grounds raised with precision and allegations were pleaded clearly, rather being evasive in nature---Objections filed by defendant Authority had no force and the same were dismissed---Award was made Rule of the Court in circumstances.

Khan Iftikhar Hussain Khan of Mamdot (Represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd. PLD 1971 SC 550; Messrs Nishat Chunian Ltd. v. Province of Punjab through Secretary, Local Government 2012 CLD 1288 and Messrs Jaffar Bros Ltd., v. Islamic Republic of Pakistan and another PLD 1978 Kar. 585 ref.

Mian Corporation through Managing Partner v. Messrs Lever Brothers of Pakistan Ltd., through General Sales Manager Karachi PLD 2006 SC 169; Messrs Joint Venture KG/RIST v. Federation of Pakistan PLD 1996 SC 108; Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903; President of Islamic Republic of Pakistan v. Syed Tasneem Hussain Naqvi 2004 SCMR 590; Ascon Engineers (Pvt.) Ltd. v. Province of Punjab 2002 SCMR 1662; Lahore Development Authority v. Khalid Javed Co. 1983 SCMR 718; A. Qutubuddin Khan v. CHEC Millwala Dredging Co. (Pvt.) Limited 2014 SCMR 1268; A. Qutubuddin Khan v. CHEC Millwala Dredging Co. (Pvt.) Limited 2014 CLD 824 and Federation of Pakistan through Secretary M/o Food, Islamabad and others v. Messrs Joint Venture Kocks K.G./RIST PLD 2011 SC 506 rel.

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

----S.17---Arbitration---Alternate Dispute Resolution---Scope---Recent trend is to minimize interference by courts, when parties have voluntarily chosen a forum of their own choice---Courts can interfere to the extent as provided in Arbitration Act, 1940---Expeditious and inexpensive Dispute Resolution is the life blood for vibrant economy and inevitable for economic growth and progress---Courts have a crucial role to play in ensuring that commitments made between the parties are honoured and implemented---Duty of courts is to promote certainty by enforcing binding commitments made by parties.

Zahid Idrees Mufti for Petitioner.

Muhammad Masood Khan and Muhammad Nasir Khan for Respondent.

Date of hearing: 19th November, 2014.

2015 M L D 845

[Islamabad]

Before Aamer Farooq, J

HAMIDA FARHAT BURKI---Petitioner

versus

CAPITAL DEVELOPMENT AUTHORITY and 3 others---Respondents

Writ Petitions Nos.3074, 2535, 3157, 3164 of 2011 and 136 of 2012, decided on 18th February, 2015.

Easements Act (V of 1882)---

----Ss.52, 60, 63 & 64---Constitution of Pakistan, Art. 199---Constitutional petition---Licence, revocation of---Petitioners were granted leases by Capital Development Authority for developing nurseries over plots in question---Grievances of petitioners was that Authority refused to renew their leases on the ground that fresh licences would be granted through open auction / bidding---Validity---Petitioners had no vested right in properties in question which had been taken away by Capital Development Authority through executive order---Status of petitioners was that of licensees and by virtue of S.60 of Easements Act, 1882, licence was a personal right which could always be revoked---Policy of Capital Development Authority to convert all leases to licences and grant of a licence through process of open auction/bidding was not exceptionable---High Court declined to interfere in order passed by Capital Development Authority, however, petitioners were entitled to protection under Ss.63 and 64 of Easements Act, 1882---Petition was dismissed in circumstances.

Pakistan and others v. Hussain Ali Shah PLD 1960 SC 310 distinguished.

Mega Sign and others v. CDA and others 2014 CLC 516; in the matter of Human Rights case No.4668/2006 PLD 2010 SC 759; Tariq Aziz Ud Din and others' case 2010 SCMR 1301; Rehmat Ullah Khan v. GOP 2003 SCMR 50 and Zafar Ali v. The State 2008 YLR 2071 ref.

Barrister Afan Khan and Dr. Muhammad Aslam Khaki for Petitioners.

Tariq Mehmood Jahangir for Respondents.

Date of hearing: 18th February, 2015.

2015 M L D 899

[Islamabad]

Before Aamer Farooq, J

FAZAL-E-QADIR and 5 others---Petitioners

versus

MUHAMMAD AZAM---Respondent

Civil Revision Petition No.25 of 2015, decided on 4th February, 2015.

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

---S. 54---Civil Procedure Code (V of 1908), O. XVII, R. 3---Limitation Act (IX of 1908), Art. 152 & S. 5---Suit for permanent injunction---Appeal---Limitation---Condonation of delay---Scope---Contention of defendants was that no reasonable opportunity was granted to them to cross-examine the witnesses of plaintiff and produce their own evidence and neither the defendants nor their counsel appeared before the Trial Court but their attendance was wrongly marked---Suit was decreed concurrently---Validity--Counsel for the defendants had been marked present at the time of addressing of arguments as well as passing of the decree by the Trial Court---No affidavit was filed with the appeal to indicate that counsel for the defendants was not present when impugned judgment and decree was passed---Appeal filed before the Appellate Court was barred by limitation which was dismissed by the said court on the ground of limitation---Case was pending before the Trial Court for a considerable period of time and defendants were bound to be in touch with their counsel to know the progress of the same---Parties would be bound by acts and omissions of their counsel---Lack of communication and coordination between the client and his counsel could not be construed as sufficient cause for condoning the period of limitation---No material irregularity was pointed out in exercise of jurisdiction by the first Appellate Court---Revision was dismissed in circumstances.

M. Asif Ali Khan v. Ghulam Shabbir 2010 YLR 507; Hassan Abbas v. 1st Additional District and Sessions Judge 2014 YLR 2042; 2013 CLC 254; 2014 PLC (CS) 12; 1998 MLD 416 and 2013 YLR 375 ref.

M. Asif Ali Khan v. Ghulam Shabbir 2010 YLR 507; Hassan Abbas v. 1st Additional District and Sessions Judge 2014 YLR 2042 distinguished.

2013 CLC 254; 2013 YLR 375 and Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others 1974 SCMR 223 rel.

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

----Art.152---Appeal before District Court---Limitation---Period of limitation prescribed for filing of appeal before the District Court was 30 days.

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

----S.115---Revision---Scope---Revision would lie where court had jurisdiction but did not exercise; court did not have jurisdiction but had exercised it and there was material irregularity in the exercise of jurisdiction.

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

----O.XVI, R.3---Failure to produce evidence---Effect---Court had discretion to proceed to pass the decree forthwith if evidence was not produced.

(e) Administration of justice---

----Parties would be bound by acts and omissions of their counsel.

Jam Khursheed Ahmed for Petitioners.

Raja Yasir Shakeel Janjua for Respondent.

2015 M L D 913

[Islamabad]

Before Athar Minallah and Aamer Farooq, JJ

NATIONAL HIGHWAY AUTHORITY---Appellant

versus

SHER ZAMAN---Respondent

R.F.A. No.52 of 2011, decided on 3rd March, 2015.

Land Acquisition Act (I of 1894)---

----Ss.23, 30, 4 & 54---Acquisition of land---Determination of compensation---Criteria---Appellant impugned order of Referee Court on the ground that the Court while dealing with the issue of compensation, did not take into consideration the provisions of S.23 of the Land Acquisition Act, 1894 after acquisition of the appellant's land---Held, that per S.23 of the Land Acquisition Act, 1894 the Court while awarding compensation had to take into regard market value of the land on date of publication of notification under S.4 of the Land Acquisition Act, 1894; the damage sustained by the person by the reason of any standing crop or trees; damage if any, sustained by way of severance of land; the damage, if any, sustained by a person at time of taking of possession of land by the Collector by reason that acquisition affected his other property or his earning---Person, if in consequence of the acquisition of his land, was compelled to change his residence or place of business, the reasonable expense incidental to such change and damage resulting from diminution of profits was also to be taken into consideration---In addition to the market value of the land, the Referee Court under S.23 of the Land Acquisition Act, 1894 also had to award 25% of such market value compensation in case such acquisition had been made for the public purpose---Referee Court, in the present case, had not taken into consideration the criteria provided under S.23 of the Land Acquisition Act, 1894 and the impugned order was therefore not passed in accordance with law---High Court set aside impugned order and remanded the matter to the Referee Court for decision afresh on the question of compensation---Appeal was allowed, accordingly.

Murad Khan v. Land Acquisition Collector, Peshawar 1999 SCMR 1646 rel.

Naseem Ahmed Shah for Appellant.

M. Ilyas Sheikh and Hafeez Ur Rehman for Respondents.

2015 M L D 1347

[Islamabad]

Before Athar Minallah, J

B.C. INTERNATIONAL (PVT.) LTD.---Petitioner

versus

TASHFEEN QAYYUM and others---Respondents

C.R. No.38 of 2011, decided on 5th May, 2015.

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

----S.34---Specific Relief Act (I of 1877), S.42---Suit for declaration---Arbitration---Stay of proceedings---Earlier application for stay of proceedings was filed on behalf of defendant company but the same was dismissed being incompetently filed---On second application, Trial Court stayed proceedings of trial for matter to be decided through arbitration but Lower Appellate Court set aside the order passed by Trial Court and dismissed the application---Validity---Two fundamental factors were to be satisfied, firstly that written statement was not filed and secondly that no steps in the proceedings had been taken by defendant company---Except for such two conditions, no limitation was provided for filing such application and no time was prescribed for filing application under S. 34 of Arbitration Act, 1940---Where court was satisfied that ingredients of S. 34 of Arbitration Act, 1940, had been fulfilled, then proceedings were to be stayed so as to give effect to arbitration agreement---Nature of dispute raised by plaintiffs by instituting suit related to and having essentially arisen from and out of joint venture agreement---Lower Appellate Court passed order in question and in doing so exercised jurisdiction vested in it illegally and with material irregularity---Trial Court properly exercised its jurisdiction in accordance with law and no legal infirmity was pointed out so as to require interference with order passed by Trial Court---Stay of proceedings was in accordance with law and was just and proper---Revision was allowed in circumstances.

Syed Amir Hussain Shah v. Progressive Papers Ltd. and others PLD 1969 Lah. 615; Shahamatullah Qureshi v. Hi-Tech Construction (Pvt.) Ltd. 2004 CLC 640; Sh. Muhammad Salim v. Lahore Race Club and 4 others PLD 1978 Lah. 1098; Ananthalakshmi Ammal and another v. The Indian Trades and Investments Ltd. and another AIR 1953 Madras 467; Town Committee, Gakhar Mandi v. Authority under the Payment of Wages Act Gujranwala and 57 others PLD 2002 SC 452; Haji Abdul Jabbar and others v. Haryana Asbestos Cement Industries 1987 CLC 726; United Liner Agencies of Pakistan Pvt. Ltd, Karachi and 4 others v. Miss Mahenau Agha and 8 others 2003 SCMR 132; Muhammad Hanif v. Eckhard and Co. Marine GMBH and 2 others PLD 1983 Kar. 613; Gulf Iran Co. and another v. Pakistan Refinery Ltd. and others PLD 1976 Kar. 1060; Novelty Cinema Lyallpur v. Firdaus Films and another PLD 1958 Lah. 208; Messrs Cosmopolitan Development Company v. Messrs SO DI. ME.-S. P.A. and another 1987 MLD 2832; Ch. Muhammad Shafi v. Iqbal Hussain PLD 1996 Lah. 667; Khan Iftikhar Hussain Khan Mamdot v. Ghulam Nabi Corporation Ltd. PLD 1971 SC 550; H. M. Ebrahim Sait v. South India Industries Ltd. AIR 1938 Mad 962; Government of Pakistan v. Premier Sugar Mills and others, PLD 1991 Lah. 381; Dr. S.M. Rab v. National Refinery Ltd., PLD 2005 Kar. 478; Abdul Rahim v. United Bank Ltd. of Pakistan PLD 1997 Kar. 62; Qamar Construction (Pvt.) Ltd. v. Saleemullah and others 2008 CLD 239; Dar Okaz Printing and Publishing Ltd. Liability Company v. Printing Corporation of Pakistan (Pvt.) Ltd. PLD 2003 SC 808 and Messrs Eckhardt and Co., Marine GMBH v. Muhammad Hanif PLD 1993 SC 42 ref.

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

----S.11---Res judicata---Scope---Res judicata is a doctrine intended to provide finality to judicial orders---Said doctrine is attracted or becomes applicable when legal rights and obligations have been determined and decided through binding/final judgment---Entire matter, the legal rights and obligations of parties, ought to have been determined and decided, including questions of law, as well as findings of facts---Doctrine of res judicata initially rests on the premise that matters have been determined and adjudicated on merits.

Facto Belarus Tractor Ltd. v. GOP through Finance Economic Affairs and others PLD 2005 SC 605 and Satyadhyan Ghosal and others v. Smt. Deorajin and another AIR 1960 SC 941 rel.

Mehmood A. Sheikh for Petitioner.

Syed Hamid Ali Shah and Syed Ishfaq Hussain Naqvi for Respondent No.5.

Sara Rehman for Respondent No.1.

Muhammad Afzal Siddiqui and Hamid Ahmad for Respondent No.3.

Muzaffar Ahmed Mirza, Director Law and Ibrar Saeed, Deputy Director Law for SECP.

Date of hearing: 29th January, 2015.

2015 M L D 1447

[Islamabad]

Before Aamer Farooq, J

Mst. KHADIJA QURBAN---Petitioner

versus

FEDERAL GOVERNMENT EMPLOYEES' HOUSING FOUNDATION---Respondent

W.P. No. 2177 of 2009, decided on 3rd June, 2015.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Alternate remedy---Allotment of plot---Undertaking by applicant for allotment---Scope---Both petitioner and her husband applied for allotment of plots but application of petitioner was turned down---Contention of petitioner was that husband and wife were two distinct persons and they could not be termed as one for the purposes of allotment of property---Validity---Petitioner had signed an undertaking whereby she agreed to abide by the terms and conditions as given in the brochure of the housing scheme---Priority was to be given to the applicants whose spouses or family had not been allotted a house/flat or plot in the housing scheme or any government agency at any time---Enforcement of contract could not be ordered through constitutional petition---If both husband and wife were successful in draw, only one of them was entitled to retain the plot---Object of housing scheme was to accommodate as many families as possible---Petitioner was bound by such terms of housing scheme---Arbitration clause existed for settlement of all disputes between the applicants/allottees and the management of scheme through arbitration---Executive Committee of the management was to be the sole judge in the matter---Petitioner had an alternate remedy which was efficacious in nature---Where an alternate and efficacious remedy was available, constitutional petition was not maintainable---Constitutional petition was dismissed.

Prof. Kazim Hussain and others v. Government of Pakistan through Secretary M/o Law Justice and Parliamentary Affairs and others as PLD 2013 FSC 18 ref.

Ishrat Jabeen Saeed v. Multan Development Authority 2007 MLD 1164; Messrs Gandapur Construction Company v. Government of KPK and others 2014 CLD 400; Messrs N.A.A. Consulting Engineers and others v. Karachi Metropolitan Corporation 2014 MLD 1795; S.M. Hashim Hussain v. Pakistan Defence Officers' Housing Authority 2005 SCMR 1782; Haji Khalid Usman v. Secretary to the Government of Punjab, Agriculture Department, Lahore 2008 CLC 1360 and Messrs Tauseef Corporation (Pvt.) Ltd. Lahore v. Lahore Development Authority and 2 others 1999 CLC 26 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Enforcement of contract could not be ordered through constitutional petition--- Where an alternate and efficacious remedy was available, constitutional petition was not maintainable.

Imran Shafique for Petitioner.

Ms. Shahina Akbar for Respondent.

2015 M L D 1615

[Islamabad]

Before Muhammad Anwar Khan Kasi, C J

OMV MAURICE ENERGY LIMITED through General Manager/authorized Representative---Petitioner

versus

OCEAN PAKISTAN LIMITED through Chief Executive Officer and another---Respondents

C.S. No.249 of 2011, decided on 30th December, 2013.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Arbitration Act (X of 1940), Ss.4 & 20---Arbitration---Application for grant of temporary injunction---Element of irreparable loss in fiscal matters---Principles---Plaintiff, a petroleum company, being successor of previous company, filed application, along with suit, for grant of temporary injunction claiming that applicant being operator had issued cash calls to defendants for payment of their share of costs and expenses regarding exploration and development as approved under Joint Operation Agreement, which the defendants had failed to pay, and sought deposit of shares of defendants in escrow account, to be set up by order of court, till final adjudication of the suit---Contention raised by plaintiff was that due to default on part of defendants in paying cash calls, he had right to make deductions from petroleum sale proceeds---Plea taken by defendants was that present application was not maintainable as the matter was already pending adjudication before Trial Court---Validity---Under Joint Operation Agreement, only operator or non-operator parties to the agreement were entitled to make deduction from petroleum sale proceeds to make good expenses incurred due to default in cash calls---Present application could not be allowed before decision as to legal status of plaintiff as successor of previous company, being de jure operator and majority working interest owner---Element of irreparable loss for grant of temporary injunction was not available to plaintiff, as matter involved was of fiscal nature---Application was dismissed in circumstance.

Ali Raza for Petitioner.

Syed Naeem Bukhari for Respondent/Defendant No.1

Jawad Hassan for Respondent/Defendant No.2.

Date of hearing 30th December, 2013.

2015 M L D 1646

[Islamabad]

Before Athar Minallah, J

ABID ASSOCIATED AGENCIES INTERNATIONAL (PVT.) LTD. and others---Plaintiffs

versus

AREVA and others---Defendants

C.S. No.33 of 2011, decided on 23rd June, 2015.

Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011)---

----S.4---Arbitration Act (X of 1940), S.34---Contract of agency---Stay of proceedings---Pursuant to Agreement in question, arbitration proceedings under International Chambers of Commerce Rules were initiated and admittedly the same culminated in rendering of a partial award of the Tribunal, consisting of three Arbitrators---Plaintiffs fully participated in proceedings of their chosen forum but at some stage they decided not to proceed further---Award rendered by Tribunal was also not challenged by plaintiffs---Suit was instituted in year, 2011 i.e. after more than eleven years from the date of termination of the Agreement---After termination, plaintiffs themselves invoked arbitration clause and participated in arbitration proceedings under International Chambers of Commerce Rules---Effect---Article of the Agreement was a valid 'arbitration agreement', dispute raised in the suit read with relief sought were covered under the 'arbitration agreement'---Plaintiffs did not assert that the 'arbitration agreement' was null and void, inoperative or incapable of being performed---Agreement was capable of performance for the purposes of S. 4 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011, and High Court stayed the proceedings---Application was allowed in circumstances.

PLD 2006 Kar. 664; 2009 YLR 334; 2013 CLD 291; 1997 SCMR 988; PLD 2013 SC 641; International Chamber of Commerce Arbitration, 3rd Edition by W. Laurance Craig, William V. Park and Jan Paulsson Pages 74 to 80 and Sulamerica CIA Nacional De Seguro S.A v. Ensea Engenharia S.A [2012] EWCA Civ 638 ref.

Ch. Mushtaq Ahmed Khan for Plaintiff No.1.

Basharat Qadir for Defendants Nos. 1 and 2.

Arshad Zaman Kayani for Defendant No.3.

Syed Hassan Ali Raza for Defendants Nos. 7, 8, 9 and 11.

Waqas Malik for Defendant No.10.

2015 M L D 1714

[Islamabad]

Before Aamer Farooq, J

ROMAN CATHOLIC DIOCESE OF ISLAMABAD/RAWALPINDI through Bishop and another---Petitioners

versus

FEDERATION through Secretary Ministry of Interior, Islamabad and 6 others---Respondents

Writ Petition No.2084 of 2015, decided on 24th June, 2015.

Foreigners Act (XXXI of 1946)---

----S. 3---Security of Pakistan Act (XXXV of 1952), S. 6(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Locus standi---Visa, non-issuance of---Petitioner was aggrieved of refusal to grant visa to three foreign missionary workers for their entry into and stay in Pakistan---Validity---Leave granted to foreigners to stay in Pakistan was in the nature of concession / privilege and could not be termed as a right to remain in the country---Since leave to stay in the country by a foreigner was not as of right, therefore, enforceability could not be sought by means of constitutional petition---Central government was empowered to provide for prohibiting regulating or restricting entry of foreigners into Pakistan or their departure therefrom or their continued presence therein---Power exercised by the official concerned in such behalf was within his authority and was not colourable exercise or misuse of authority---Petitioner alleged mala fide on the part of authorities and allegations made in the petition involved questions of facts which could not be determined or adjudicated in constitutional petition---High Court declined to interfere in the matter---Petition was dismissed in circumstances.

PLD 1969 SC 223; PLD 1976 Lah. 834; PLD 1974 Kar. 81; PLD 1993 Kar. 234 and PLD 1988 SC 416 ref.

Said Mohammad Khan v. Registration Officer, CID PLD 1962 West Pakistan Karachi 595; Jean Charles Groosen v. The State of Pakistan PLD 1980 Pesh. 275; Wang Lilly v. Ministryof Interior, Islamabad 1997 MLD 1594; Mohammad Ali and another v. Government of Sindh 1986 CLC 1123; Dr. Imran Khattak and another v. Ms. Sofia Waqar Khan, PSO to CJ and others 2014 SCMR 122; Hafiz Hamdullah v. Saif Ullah and others PLD 2007 SC 52 and N.-W.F.P. Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848 rel.

Rana Abid Nazir Khan for Petitioners.

2015 M L D 1740

[Islamabad]

Before Aamer Farooq, J

GHULAM ABBAS---Petitioner

versus

ADDITIONAL SESSIONS JUDGE (WEST), ISLAMABAD and 2 others---Respondents

Writ Petition No.1217 of 2015, decided on 4th August, 2015.

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

----S. 17(2) ---- Eviction of tenant --- Reconstruction of building and personal bona fide need of landlord--- Effect --- Under S. 17(2) of Islamabad Rent Restriction Ordinance, 2001 seeking property on ground of reconstruction was an independent ground and was not linked with personal bona fide need of landlord---Under S.17(7) of Islamabad Rent Restriction Ordinance, 2001 where a landlord had obtained possession of a building in pursuance of order under Cl. (v) of S. 17(2) of Islamabad Rent Restriction Ordinance, 2001 and did not have the property demolished within four months of taking over possession or did not reconstruct the same, landlord would be punished with imprisonment which may extend to six months or with fine or both.

Muhammad Ajmal Khan v. Rashid Shafique 2012 SCMR 854 rel.

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

----S.17(2)(ii)(b) --- Eviction of tenant --- Expiry of lease --- Violation of terms and conditions of agreement --- Scope --- Under Islamabad Rent Restriction Ordinance, 2001, expiry of lease was not a specific ground for eviction, however, under S. 17(2)(ii)(b) of Islamabad Rent Restriction Ordinance, 2001 violation of terms and conditions of agreement was one of the grounds for seeking eviction of tenant and where the lease agreement, provided for expiry of lease and despite the same, tenant failed to hand over the possession, then tenant would have violated terms and conditions of said agreement.

2009 SCMR 846 ref.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of facts by lower fora---Scope---High Court in exercise of jurisdiction under Art. 199 of the Constitution would not interfere with concurrent findings of courts below unless the same suffered from jurisdictional or legal infirmity.

Mir Aurangzeb for Petitioner.

Muhammad Sajjad Abbasi for Respondent.

Date of hearing: 4th August, 2015.

2015 M L D 1821

[Islamabad]

Before Athar Minallah, J

OIL AND GAS DEVELOPMENT COMPANY LTD.---Appellant

Versus

AGHA MUHAMMAD AND BROTHERS and others---Respondents

F.A.O. No.52 of 2015, decided on 9th July, 2015.

Arbitration Act (X of 1940)---

----S. 20---Limitation Act (IX of 1908), Art. 181---Arbitration agreement---Arbitrator, appointment of---Referring question of limitation to the arbitrator---Scope---Jurisdiction of arbitrator---Sufficient cause---Determination of---Trial Court referred the question of limitation for determination to the arbitrator---Validity---Right to apply under S. 20 of Arbitration Act, 1940 would accrue when a difference or dispute had arisen between the parties---Question of limitation was to be decided by the Trial Court before granting the application under S. 20 of Arbitration Act, 1940---Leaving the question to be determined by the arbitrator was neither envisaged under S. 20 of Arbitration Act, 1940 nor could the court delegate its power to the arbitrator under S. 20 of Arbitration Act, 1940---If Trial Court had come to the conclusion that application under S. 20 of Arbitration Act, 1940 was barred by time then such application could not be granted nor could the matter be referred to the arbitrator---Trial Court before passing the impugned order was required to decide whether application under S. 20 of Arbitration Act, 1940 had been filed within time stipulated under Art. 181 of Limitation Act, 1908---Question whether the claim made by either party was barred by time or not or whether it was barred by any contractual term would fall within the scope of jurisdiction of arbitrator---Application filed under S. 20 of Arbitration Act, 1940 whether in time or not had to be decided by the court itself before allowing the said application---Jurisdiction of arbitrator was circumscribed by the arbitration agreement---Question whether application under S. 20 of Arbitration Act, 1940 was to be allowed or not was a statutory obligation of court and same could not be delegated to the arbitrator---Trial Court was required to determine the point of time at which the right to apply under S. 20 of Arbitration Act, 1940 had accrued---Trial Court was bound to determine as to when the differences had arisen between the parties i.e. when they did not agree on any particular question covered by the arbitration agreement---Trial Court while passing the impugned order had not taken into consideration the expression "sufficient cause" used in S.20 of Arbitration Act, 1940---Trial Court was bound to order that the arbitration agreement be filed and then to refer the matter to the arbitrator if sufficient cause could not be shown for not filing the said agreement and making a reference to the arbitrator---Court had to be satisfied that 'sufficient cause' could not be shown before deciding the application and making an order of reference to the arbitrator---Question whether application under S. 20 of Arbitration Act, 1940 was not within time was a 'sufficient cause' and same had to be decided by the court and not the arbitrator---Allowing application under S.20 of Arbitration Act, 1940 and referring the question as to whether it was filed within the prescribed time would tantamount to delegate to the arbitrator the authority to decide whether 'sufficient cause' existed or not---Whether 'sufficient cause' existed or not was within the exclusive domain of the court and a determination with such regard thereto was a pre-condition for making a reference to the arbitrator---Question whether claim was made in time would fall within the domain of arbitrator---Trial Court had failed to advert to the question as to whether 'sufficient cause' had been raised by the petitioner for refusing to make a reference to the arbitrator---Impugned order was set aside---Application filed under S. 20 of Arbitration Act, 1940 would be deemed to be pending before the Trial Court---Question whether application under S. 20 of Arbitration Act, 1940 was filed within time should be determined and decided in view of facts and circumstances of the case---Appeal was accepted.

Rehmatullah and another v. Salehan and others 2007 SCMR 729 and Syed Abbas Taqi Mehndi v. Syeda Sbahat and another 2010 SCMR 1840 ref.

M. Inam-ud-Din Janjua v. The Thal Development Authority through the Chairman T.D.A. Jauharabad PLD 1972 SC 123; Pakistan Insulations (Pvt.) Ltd. v. Messrs Ranhill Engineers and Constructors DDFC Group of Companies through General Pakistan Operations Manager and 2 others 2009 CLD 1077; Messrs Abdul Rauf Muhammad Hanif (Pvt.) Ltd. through Chief Executive v. WAPDA through Chairman and another PLD 2007 Lah. 335; Messrs Acsys Limited v. Associated Press of Pakistan Corporation 2004 CLC 1262 and Oil and Natural Gas Commission Ltd. v. Messrs Dilip Construction AIR 2000 Cal 140 rel.

Barrister Umair Majeed Malik for Appellant.

Raja Abid Hussain for Respondents.

Date of hearing: 18th June, 2015.

2015 M L D 1

[Sindh]

Before Nadeem Akhtar and Sadiq Hussain Bhatti, JJ

Miss AISHA QAYYUM and another---Appellants

Versus

BABY MEHAK alias SAKEENA and 3 others---Respondents

High Court Appeal No.230 of 2006, decided on 8th September, 2014.

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

----S. 1---Limitation Act (IX of 1908), Art.151 & S.5---Civil Procedure Code (V of 1908), O. XXXII, Rr. 1, 2, & 3, O. VII, R. 1(d) & O. XIV, R.1---Suit for recovery of compensation amount---Appeal against the decree/order of High Court passed in original jurisdiction---Limitation---Guardian ad litem, appointment of---Procedure---Issue, framing of---Scope---Suit for recovery of compensation amount was decreed ex-parte---Contention of defendant was that she was minor at the time of institution of suit which was filed without appointment of guardian ad litem and no issue was framed therein---Validity---Father of plaintiffs expired due to fatal injuries when he was hit by the trailer owned by the defendant---Driver of trailer was booked for the offence of rash and negligent driving resulting into the death of father of plaintiffs---Ground which could be set up by the defendant was to allege and prove contributory negligence of deceased---Defendant remained away from the proceedings before the Trial Court---Trial Court was left with no alternative but to decree the suit on the basis of averments made in the plaint as well as in affidavit filed in evidence---Plaintiffs were minors at the time of filing of plaint which was mentioned in the title of suit and suit was filed by their next friend---Plaintiffs were not aware of the age of defendant---Present suit was filed on the basis of information obtained from Excise and Taxation Department where no date of birth of defendant was mentioned---Plaintiffs had not concealed the age of defendant who was bound to inform the court about the same---Court should appoint a proper person to be guardian for the suit if defendant was minor but such appointment might be obtained upon application in the name and on behalf of minor or by the plaintiff---If plaintiff was not aware of the age of defendant or had not mentioned that she was minor then an application could be filed on behalf of minor for appointment of guardian ad litem---Only plaintiff was not bound to make such an application but same could also be moved on behalf of minor which was not done by the defendants---Plaintiffs could not be held responsible for concealing facts with regard to age of minor---Trailer was registered in the name of minor---Father of minor who purchased the said trailer in her name and was party in the suit should contest the said suit on his own behalf as well as on behalf of minor as their interests were common---Father of minor was served on the address given by him to the Excise and Taxation Department which was same as the address of minor---Father and minor were living under the same roof but proceedings were not joined or court was not informed with regard to minority of owner of trailer---Father should have informed the court with regard to minority of owner of trailer but he kept away from the suit proceedings---Father and minor came forward after passing of judgment and decree in the suit---Plaintiffs could not be penalized for no fault on their part---No provision of O. VII, R. 1(d) or O.XXXII, R. 3, C.P.C. had been violated in the present case---Father of minor was watching proceedings to delay the matter further---If a material proposition of fact or law was affirmed by one party and was denied by the other then an issue should be framed---Deceased who was aged 27 years was earning Rs. 6,000 per month at the time of his death---Facts alleged by the plaintiffs remained un-rebutted which had not been challenged by the defendants---No error was committed by the Trial Court while accepting the version of plaintiffs with regard to accident which caused death of deceased and his income---Trial Court was justified in passing the impugned judgment and decree without framing of issue---Appeal from a decree or order of a High Court passed in exercise of its original jurisdiction could be filed within

20 days from the date of decree or order---Present High Court appeal was barred by nine days---Defendant was bound to file an application for condonation of delay but no such application was moved---Appeal was dismissed on the grounds of limitation and merits.

Baghi Gul and others v. Ali Waz Khan and others 2003 CLC 1147; Yar Muhammad v. Mst. Amnat and others 1998 CLC 1355(sic); Allah Ditta and others v. Malik Ahmed Bakhsh and others PLD 1975 Lah. 403 and Ram Chandra Arya v. Man Singh and others AIR 1968 SC 954 ref.

Allah Ditta and others v. Malik Ahmed Bakhsh and others PLD 1975 Lah. 403 distinguished.

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

----Art. 151 & S. 5---Appeal against the decree/order of High Court passed in original jurisdiction---Limitation---An appeal from a decree or order of a High Court passed in exercise of its original jurisdiction could be filed within 20 days from the date of decree or order.

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

----O. XIV, R. 1---Issue, framing of---Scope---Framing of issue would arise when a material proposition of fact or law was affirmed by one party and denied by the other party.

K.B. Bhutto for Appellants.

Nemo for Respondents.

Date of hearing: 5th August, 2014.

2015 M L D 24

[Sindh]

Before Muhammad Ali Mazhar, J

PAKISTAN NATIONAL SHIPPING CORPORATION through Secretary---Applicant

Versus

Messrs SEAWARD SURVEYORS---Respondent

Civil Revision Application No.174 of 2010, decided on 6th August, 2014.

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

----O. IX, R. 9 & O. XLI, Rr. 19, 17 & 11---Appeal, restoration of---Sufficient cause---Scope---Application for restoration of appeal, in the present case, had been filed under O. IX, R. 9, C.P.C. whereas proper procedure for the same had been provided under O. XLI, R. 19, C.P.C.---Applicant could apply for re-admission of appeal in case it was proved that he was prevented by any sufficient cause from appearing when appeal was called for hearing---Court might re-admit the appeal on such terms as it deemed fit---Filing of an application under wrong provision of law or with wrong nomenclature did not mean to dismiss the same or discard it without lawful consideration but applicant was required to show sufficient cause for non-appearance when appeal was dismissed in default---Nobody appeared on behalf of applicant for five dates of hearing which had showed a callous or reckless behaviour on his part---No medical certificate was produced to substantiate the ground of illness of applicant's counsel---Court was not bound to call upon the counsel to submit medical certificate---Counsel for the applicant was bound to prove sufficient cause of his illness---No illegality or material irregularity had been pointed out in the impugned order passed by the court below---Law would help the vigilant and not the indolent---No sufficient cause had been shown for non-appearance by the applicant or his counsel---Revision was dismissed in limine.

Muhammad Faisal v. Muhammad Iqbal 2003 MLD 488; Muhammad Bashir and another v. Province of Punjab and others 2003 SCMR 83 and Anwar Khan v. Fazal Manan 2010 SCMR 973 ref.

Muhammad Bashir and another v. Province of Punjab and others 2003 SCMR 83 rel.

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

----S. 115---Revision---Scope---Powers of court exercising revisional jurisdiction were very limited and narrow to correct errors of jurisdiction committed by the courts below---Revision would lie only where the impugned order passed by the court below was not an appealable order---Revision was competent when there was allegation of jurisdictional error---High Court could interfere with the decision of court below when said court had committed illegality or material irregularity---Finding of facts could not be attacked while exercising revisional jurisdiction.

Waqar Muhammad Khan for Applicant.

Muhammad Imran for Respondent.

Date of hearing: 6th August, 2014.

2015 M L D 49

[Sindh]

Before Nadeem Akhtar, J

Syed MUHAMMAD WAQAR UD DIN---Plaintiff

Versus

OWAIS AHMED IDREES---Defendant

Suit No.1276 of 2013, decided on 22nd April, 2014.

Specific Relief Act (I of 1877)---

----Ss. 8, 12, 42 & 54---Suit for possession of immovable property, specific performance of agreement to sell, declaration and permanent injunction---Failure to deposit balance consideration amount---Effect---Interim injunction was granted by Trial Court to plaintiff, subject to deposit balance consideration amount---Plaintiff could not deposit balance consideration amount, despite seeking additional time---Validity---In suit for specific performance, it was obligatory upon plaintiff to demonstrate in unequivocal terms in his pleadings as well as by his conduct throughout the proceedings that he had always been and was still ready and willing to perform his agreed part of contract---Such readiness and willingness of plaintiff was essence of and condition precedent for seeking specific performance of contract---In absence of such willingness, equitable and discretionary relief of specific performance could not be granted---Conduct of plaintiff and reluctance on his part to deposit balance sale consideration amount despite order of Trial Court reflected his deliberate and intentional unwillingness to perform his agreed part of contract---Presumption was that plaintiff was not serious in performing his agreed part of contract or in pursuing his remedy of specific performance, as plaintiff did not deposit balance sale consideration amount as directed by Trial Court by specific date or within 60 days sought by him more for such purpose---Suit was dismissed in circumstances with cost.

Bashir Ahmed v. Muhammad Yousaf through Legal Heirs 1993 SCMR 183; Mushtaq Ahmad and others v. Muhammad Saeed and others 2004 SCMR 530 and Syed Ahmed through Special Attorney v. Syed Muzaffar Hussain through L.Rs. 2008 CLC 175 ref.

Allah Ditta v. Bashir Ahmad 1997 SCMR 181 and Haji Abdul Hameed Khan v. Ghulam Rabbani 2003 SCMR 953 rel.

Syed Abdul Waheed for Plaintiff.

Khursheed Ahmed Qureshi for Defendant.

Date of hearing: 22nd April, 2014.

2015 M L D 61

[Sindh]

Before Nazar Akbar, J

ABDUL REHMAN---Plaintiff

Versus

CHAIRMAN M/S MARI GAS CO. LTD. and 2 others---Defendants

Suit No.923 of 2010, decided on 2nd April, 2014.

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

----Art. 22 & S. 3---Suit for damages---Plaintiff sought damages and compensation for mental torture and harassment caused by the change in medical policy of its employer / defendant---Contention of defendant was that plaintiff retired in the year 2004, and enjoyed medical benefits till 2006, whereafter the medical policy was changed and having filed the suit in 2010, the same was barred by limitation under Art. 22 of the Schedule to the Limitation Act, 1908---Held, that new medical policy was made effective in November, 2006, but the same was declared illegal by the High Court in its constitutional jurisdiction, in the year 2010, and the present suit was filed three months after order of High Court in the said constitutional Petition---Cause of action was therefore continuing and limitation period for filing suit started running from date of order of High Court in constitutional petition---Suit was, therefore, within time and maintainable.

(b) Tort---

----Agony and mental torture---Suit for damages and compensation---Quantum of damages, determination of---Rule of thumb, application of---Obligation of court to determine damages once it was established that plaintiff suffered mental torture---Scope---Once the Trial Court had come to the conclusion that the plaintiff suffered mental torture and agony for which defendant was responsible, the Trial Court had to grant damages as compensation---Such damages were obviously general damages and discretion was to be exercised in justifying the quantum of compensation to plaintiff---Such quantum of damages was to be determined by following the "rule of thumb", and any accurate and definite answer to the question of quantum of damages was not possible---While sufferings of human beings can be appreciated, but the magnitude / impact of mental torture could not be; and therefore, it was humanly impossible to assess a fair compensation to the satisfaction of a person who had complained of injury---Trial Court, even in absence of any method to determine a fair assessment of damage, was still under an obligation to decide an amount of money as compensation keeping in view facts and circumstances placed on record by the injured/plaintiff, to show how tortuous the conduct of the aggressor was and for how long the plaintiff remained under mental stress---While applying the "rule of thumb":, the conscious of the court should be satisfied that the damages to be awarded, if not completely, then satisfactorily compensate the plaintiff.

Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737 and Malik Gul Muhammad Awan v. Federation of Pakistan through Secretary M/o Finance and others 2013 SCMR 507 rel.

Plaintiff in person.

Khaleeq Ahmed for Defendants.

Date of hearing: 11th October, 2013.

2015 M L D 87

[Sindh]

Before Irfan Saadat Khan and Nadeem Akhtar, JJ

ROSHAN ALI KHAN---Petitioner

Versus

AIRPORT MANAGER, JINNAH INTERNATIONAL AIRPORT KARACHI and 3 others---Respondents

Constitution Petition No. 2239 C.M.As. Nos. 10900, 10422 and 10423 of 2014, decided on 5th May, 2014.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Specific Relief Act (I of 1877), Ss.42 & 56---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for declaration---Rejection of plaint---Scope---Suit property was allotted to the plaintiff on temporary basis and he was bound to vacate the same as and when required by the defendants---Plaintiff did not have any legal character or right in the property in question---Present suit was barred under S.42 of Specific Relief Act, 1877 and consequential relief of injunction could also not be granted under S.56 of the said Act---Findings recorded by the revisional court were based on correct interpretation of law and appreciation of material available on record---Impugned order did not suffer from any illegality or infirmity---Constitutional petition was dismissed in limine.

Muhammad Rafiq for Petitioner.

2015 M L D 124

[Sindh]

Before Ahmed Ali M. Shaikh and Syed Muhammad Farooq Shah, JJ

Syed MASOOD HUSSAIN SHAH---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry---Respondent

Constitution Petition No. 5268 of 2013, decided on 8th May, 2014.

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

----S.2(3)---Constitution of Pakistan, Art.199---Constitutional petition---Exit Control List---Petitioner was aggrieved of placing his name on Exit Control List by authorities---Validity---Authorities could not place name of a person on Exit Control List which amounted to restrict freedom of his movement in mechanical manner, without applying their own mind and without issuing any reason---Name of petitioner was placed on Exit Control List by authorities in an arbitrary and purely mechanical manner without applying their own mind---Order passed by authorities was not a speaking order without showing/disclosing basis of its intention of exercising powers under S. 2(3) of Exit from Pakistan (Control) Ordinance, 1981---Action of authorities violated valuable Fundamental Rights of petitioner as guaranteed by the Constitution and could not be sustained---Federal Board of Revenue or Inland Revenue department did not recommend for placing name of petitioner on Exit Control List and all liabilities against petitioner were pending before High Court---Action of authorities in placing name of petitioner on Exit Control List was without any valid reason and in violation of Fundamental Rights---High Court directed the authorities to remove/delete name of petitioner from Exit Control List---Petition was allowed in circumstances.

Government of Pakistan v. Dada Amir Haider Khan, PLD 1987 SC 504; Habibullah Niazi v. Federation of Pakistan through Federal Secretary, Ministry of Interior, and 2 others, PLD 2009 Kar. 243; Mir Khalid Langov v. Secretary, Ministry of Interior, Government of Pakistan, Islamabad, PLD 2007 Quetta 41; Wajid Shamas-ul-Hassan v. Federation of Pakistan, PLD 1997 Lah. 617; Mian Ayaz Anwar v. Federation of Pakistan, PLD 2010 Lah. 230; Rafi Ahmed and another v. Special Judge, Central, Lahore, and another PLD 2010 Lah. 693 and a recent judgment of this Court in the case of Wasatullah Jaffery v. Ministry of Interior and others PLD 2014 Sindh 28 ref.

Abdul Sattar Prizada for Petitioner.

Waleed Ansari, D.A.G. and Noor Muhammad Dayo, D.P.G. NAB for Respondent.

Dates of hearing: 28th April and 8th May, 2014.

2015 M L D 147

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD SHAHEED KHAN---Petitioner

Versus

PIYA DHARANI and another---Respondents

Constitutional Petition No.S-1094 of 2011, Review Application No.29 of 2013 and C.M.As. Nos.506 and 6687 of 2014, decided on 20th May, 2014.

Constitution of Pakistan---

----Art.199---Civil Procedure Code (V of 1908), S.114, O.XLVII, Rr.1 & 7---Constitutional petition---Review---Principle---Interim order---Custody of minor---Applicant sought review of order passed by High Court whereby interim arrangement was made for custody of minor---Validity---Review could not be granted on the ground that a party was not satisfied from the order / judgment or a different view of matter was also possible or a different interpretation of law could be made---Court had power and was in fact obliged to review order which suffered from patent error floating on surface of record and court could correct itself if it was wrong but error or wrong was to be substantial and speaking---Court had to meet ends of justice and carry out purpose of all contemporary laws according to due appreciation of law and facts---High Court observed that contentions and views of parties were to be considered compassionately, more particularly when welfare and betterment of a ward was involved---High Court declined to review its order passed earlier---Application was dismissed in circumstances.

Mujahid Hussain Naqvi v. Azad Government and others PLD 2007 SC (AJ&K) 92; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1, Muhammad Sharif and 3 others v. Suleman and 4 others PLD 1981 Lah. 321; Mazhar-ul-Haq alias Mazhar Abbas v. Ghulam Muhammad and 2 others 2005 CLC 1169; Jawad Mir Muhammadi and others v. Haroon Mirza and others PLD 2007 SC 472; Muhammad Din v. Abdul Ghani and another 2012 SCMR 1004; Mst. Hafeeza Barohi v. Guardian Judge/Family Judge and another 1987 CLC 1630; Shazia Akbar v. Maqsood Ahmed and another 2012 YLR 2266; Muhammad Ramzan v. Senior Civil Judge and others NLR 2012 UC 82; Shaikh Mehdi Hassan v. Province of Punjab 2007 SCMR 755; PLD 1981 SC 94; Muhammad Ramzan v. Lahore Development Authority, Lahore 2002 SCMR 1336; Mst. Maqsoodan Bibi v. Mst. Bhano PLD 1963 Lah. 523; Mst. Zainub Khatoon v. Mian Ghulam Shabbir and another PLD 1965 SC 55; Saghir Ahmed v. Mst. Rukhsana Tabassum and 2 others 1999 YLR 882; Tanya Knitwear (Pvt.) Ltd. and others v. First Women Bank Ltd. PLD 2008 Kar. 29; Mst. Lal Khatoon and 8 others v. Mst. Sahati and 2 others PLD 2005 Kar. 327; Muhammad Hanif v. Malik Ijaz Hussain, Additional Settlement Commissioner 1989 ALD 101(1) and Muhammad Asim Tiwana v. Syed Shaukat Hussain Rizvi and 6 others 1999 CLC 1177 ref.

Choudhry Muhammad Iqbal for Petitioner.

Abdul Qadir Khan for Respondent No.1 along with Respondent No.1 in person.

2015 M L D 161

[Sindh]

Before Hasan Feroz, J

ARIF REHMAT---Applicant

Versus

The STATE and 3 others---Respondents

Criminal Miscellaneous Application No.183 of 2013, decided on 18th February, 2014.

Criminal Procedure Code (V of 1898)---

----Ss.173 & 561-A---Penal Code (XLV of 1860), S. 365-B---Abducting woman for compelling her to marry against her will or to force or seduce her to illicit intercourse---Cancellation of case---Grievance of complainant/applicant was that police submitted investigation report wherein case was recommended for closure and Magistrate while concurring with the report of police ordered the said closure---Validity---Alleged abductee was shown in F.I.R. to have taken away jewelry and other articles---During investigation abductee, with her free will, got recorded her statement under S. 164, Cr.P.C. as sui juris which statement was contrary to version of F.I.R. and had shaken credibility of F.I.R.---Magistrate was empowered to pass order under S. 173, Cr.P.C. in such spectrum as alleged abductee contracted marriage without compulsion or any inducement and her statement to such effect under S. 164, Cr.P.C. supported case of accused persons---Aggrieved party was free to institute complaint on the same subject and same Magistrate had not, even after passing of such order, rendered himself functus officio---High Court declined to interfere in order passed by Magistrate---Application was dismissed in circumstances.

2010 PCr.LJ 961; PLD 1985 SC 62; PLD 1994 SC 281; 2010 PCr.LJ 182 and 2005 YLR 1939 ref.

PLD 1985 SC 62 rel.

Shahbaz Sahto for Applicant.

Akbar Awan for Respondents Nos. 2 and 3.

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

Date of hearing: 28th January, 2014.

2015 M L D 183

[Sindh]

Before Salahuddin Panhwar, J

MEHBOOB ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.S-163 and S-156 of 2013, decided on 6th January, 2014.

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

----Ss. 426 & 497---Application for suspension of sentence and bail application---Scope for suspension of sentence under S.426, Cr.P.C., was narrow and not wider than the parameters of S.497, Cr.P.C.---Deeper appreciation of evidence, while deciding bail application or application for suspension of sentence, was not permissible under the law; and only tentative assessment was allowed---Question of further inquiry in matter of S.497, Cr.P.C. was to be seen while in matter of S.426, Cr.P.C., the patent illegality in the judgment, was to be noticed---Provision of S.426, Cr.P.C., did not permit to consider the manner of trial, but required the appellate court to consider the material, available on record in shape of evidence.

Suo Motu case No.16 of 2011 along with CMAs 2013 PLD SC 443 ref.

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

----S. 426---Sindh Public Property (Removal of Encroachment) Act (XVIII of 2010), S.3---Encroachment---Application for suspension of sentence---Applicants had never challenged the jurisdiction or authority of Lower Court in conducting the trial of the case---Trial Court had examined the witnesses, who were not cross-examined by applicants; and even the Trial Court allowed the application under S.540, Cr.P.C., but applicants did not challenge the statements of the witnesses---Counsel for applicants, had failed to point out any material illegality in the impugned judgment---Application for suspension of sentence, being devoid of merits, was dismissed; with direction to prepare paper book within 15 days and thereafter fix it for regular hearing, according to roster.

Zakir Hussain Bughio, Mehboob Ali Abro and Sikandar Ali for Appellants (in Crminal Appeal No.S-163 of 2013).

Farhad Ali Abro for Appellants (in Crminal Appeal No.S-156 of 2013).

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

2015 M L D 196

[Sindh]

Before Farooq Ali Channa, J

NOMAN HAFEEZ SHEIKH---Appellant

Versus

NAJEEB ASHRAF and another---Respondents

Criminal Acquittal Appeal No.532 of 2011, decided on 31st January, 2014.

Penal Code (XLV of 1860)---

----S.489-F---Criminal Procedure Code (V of 1898), Ss.249-A, 345 & 417(2-A)---Dishonestly issuing a cheque---Appeal against acquittal---Compounding of offence---Re-opening of case---Criminal case was closed on the basis of compromise between parties and accused was acquitted by Trial Court in exercise of powers under S.249-A, Cr.P.C.---Complainant sought reopening of criminal case on the plea that accused had violated terms and conditions of compromise---Validity---Once compromise between parties, in compoundable offence had been effected, the same could not be withdrawn---Violation of terms and conditions of compromise was not a valid ground for re-opening the disposed of criminal proceedings---If any party had resiled from terms and conditions, aggrieved party was at liberty to seek remedy provided under law through competent court for enforcement and specific performance of terms and conditions of the compromise---Trial Court was justified in acquitting accused and such order was neither perverse nor suffering from any infirmity or illegality and did not require interference of High Court---Appeal was dismissed in circumstances.

Sardar M. Yousuf for Appellant.

Irfan Ali for Respondent No.1.

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

2015 M L D 204

[Sindh]

Before Naimatullah Phulpoto and Salahuddin Panhwar, JJ

Miss PIRYA---Petitioner

Versus

SHAHEED MOHTARMA BENAZIR BHUTTO MEDICAL UNIVERSITY through Vice Chancellor and 7 others---Respondents

Constitution Petitions Nos.D-1268, D-958, D-1104, D-1124, D-1194, and D-1327 and M.As. Nos. 5385 and 4526 of 2013, decided on 28th May, 2014.

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

----S.11---Constitution of Pakistan, Art.199---Constitutional petition---Educational institution---Medical colleges, evening shift in---Petitioners got admission in medical college in evening session and after one year of education authorities suspended evening shift of classes---Validity---Petitioners applied for morning course in same academic year but they did not qualify test of morning classes, thereafter in their second attempt they availed opportunity of evening classes announced by University---Pursuance to that, petitioners were admitted by University having such knowledge that the admission was for evening classes only---Petitioners attended their classes in first academic year of their course for a week only, therefore, their claim for admission in morning classes would affect academic carrier of regular students---Factually there was limited allocation of seats to every institution by Pakistan Medical and Dental Council and no college could exceed such limit thus claim of petitioners had no legal strength---Petition was dismissed in circumstances.

Chairman, Selection Committee v. Wasif Zamir Ahmad 1997 SCMR 15 and Imdad Hussain v. Province of Sindh PLD 2007 Kar. 116 ref.

Pakistan Medical and Dental Council v. Ziauddin Medical University PLD 2007 SC 323 distinguished.

Asif Ali Abdul Razak Soomro for Petitioners (in Constitution Petition No.D-958 of 2013).

Safdar Ali Ghouri for Petitioner (in Constitution Petition No.D-1104, 1268 and 1327 of 2013).

Inayatullah G. Morio for Petitioner (in Constitution Petition No.D-1124 of 2013).

Akeel Ahmad Bhutto for Petitioners (in Constitution Petition No.1124 and 1194 of 2013).

Faiz Muhammad Larik for Respondents Nos. 1 and 2.

M. Sohail H. Rana and Riaz Ahmed Soomro for PM&DC.

Habibullah G. Ghouri for Principal, Chandka Medical College, Larkana.

Jai Jai Veshnu Mange Ram, Deputy Attorney General.

Naimatullah Bhurgri, State Counsel.

2015 M L D 216

[Sindh]

Before Abdul Rasool Memon, J

SHARAFAT and another---Petitioners

Versus

UMER HAYAT and another---Respondents

Constitution Petition No.S-296 of 2012, decided on 11th September, 2013.

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

----S. 15(2)(vi), (3) & (4)---Constitution of Pakistan, Art.199---Constitutional petition---Application for ejectment---Property/building required by landlord for re-construction---Claim of tenant for induction in other property of landlord---Scope---Respondent/landlord filed application before the Rent Controller for vacation of demised property for reconstruction---Rent Controller allowed the application of landlord, appeal filed by tenant was also dismissed---Contention of the petitioners/tenants was that landlord be directed to deliver possession of a vacant shop in the said plot in lieu of demised premises till finalization of reconstruction over the plot in question---Validity---For availing the benefit of clause (vi) of section 15(2) of the Sindh Rented Premises Ordinance, 1979, the satisfaction of the Rent Controller was required only to the extent that landlord required such building for reconstruction and had obtained necessary sanction for reconstruction or erection of new building at the site from the competent authority at the relevant time---Respondent/landlord in ejectment application had specifically pleaded that the demised premises was required bonafidely for reconstruction and the proposed building plan for reconstruction of building had been approved and such approval had been obtained from the competent authority---Respondent/landlord had complied with the requirements for seeking eviction of the petitioners/tenants from demised shops and there was nothing on record to establish mala fide on their part---Claim of tenants/petitioners that they may be accommodated by the respondent/landlord by putting them in possession of another shop owned by him before vacating the demised premises was untenable---Constitutional petition was dismissed.

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

----S. 15(2)(vi), (3) & (4)---Constitution of Pakistan, Art.199---Constitutional petition---Application for ejectment---Property/building required for re-construction---Re-induction of tenant in demised property, rights/privileges---Scope---Where the landlord reconstructed the new building at site, a tenant had been provided right of re-induction in the building---Tenant could not claim his induction in another shop in lieu of the demised premises, thus, to establish this right tenant was required to first surrender the demised premises and then wait till the completion of new building for making prayer before the Rent Controller.

Mrs. Zareen and another v. Muhammad Nawab and others 1992 MLD 1690 and Wahid Khan and others v. Abdul Majeed Khan 1999 YLR 2451 ref.

M. Shafique Khan Panhwar for Petitioners.

Faheem Hussain Panhwar for Respondents Nos. 1 and 2.

Kamran Ali for other Respondents.

Date of hearing: 12th August, 2013.

2015 M L D 255

[Sindh]

Before Aftab Ahmed Gorar, J

ALI MUHAMMAD THAHIM---Applicant

Versus

DISTRICT AND SESSIONS JUDGE, THATTA and another---Respondents

Criminal Revision Application No.S-15 of 2013, decided on 15th April, 2013.

Criminal Procedure Code (V of 1898)---

----S. 514---Bail bond, forfeiture of---Deposit of surety amount in easy instalments---Scope---No fault on part of surety---Surety being a person of old age---Effect---Accused and co-accused were granted bail and applicant stood surety for them in the sum of Rs. 100,000 each---Both accused and co-accused regularly attended Trial Court---On the day of pronouncement of judgment, accused and co-accused were present in the Trial Court and before the judgment was pronounced, accused slipped away from the court---Bail bonds of applicant were forfeited and he was directed to pay surety amount worth Rs. 200,000 within ten days, and in case of failure direction was given to recover the same as land revenue---Plea of applicant that he was eighty years of age and stood surety for accused and co-accused on humanitarian grounds and not on monetary grounds---Validity---No fault existed on part of the applicant---Accused and co-accused regularly attended court up to final arguments of the case---Trial Court had wrongly directed applicant to deposit Rs. 200,000 as surety amount---Keeping in view old age of applicant and the fact that there was no fault on his part, High Court directed him to deposit surety amount of Rs. 100,000 in three easy instalments---Revision application was disposed of accordingly.

Khadim Hussain Thahim for Applicant.

Abdullah Rajput, APG. for the State.

2015 M L D 265

[Sindh]

Before Abdul Rasool Memon, J

SHAHID ALI GIL---Petitioner

Versus

Mst. RUQAYYA BANO and 4 others---Respondents

Constitution Petition No.S-189 of 2012, decided on 16th October, 2012.

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

----S. 5, Sched., Ss.17-A & 14---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance---Application for fixation of interim maintenance---Competence---Wife filed suit for recovery of maintenance allowance wherein an application for fixation of interim maintenance was moved which was accepted by the Family Court---Validity---Family Court could pass interim order with regard to maintenance---Such order had been passed with jurisdiction which would merge in the final decision and would be appealable---Constitutional petition was dismissed.

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

----S. 14---Appeal---Interim order---Legislature had prohibited filing of appeal against interim order.

(c) Constitution of Pakistan---

----Art. 199---West Pakistan Family Courts Act (XXXV of 1964), S. 5, Sched. & S.17-A---Constitutional petition---Maintainability---Interim order---Constitutional petition against interim order was not maintainable.

PLD 2012 Lah. 420 and Syed Mohsin Shah v. Mst. Mommal Aftab and another Constitution Petition No.S-870 of 2012 rel.

M. Azhar Mehmood and Faisal Aziz for Petitioner.

Iftikhar A. Gohar for Respondents.

Date of hearing: 2nd October, 2012.

2015 M L D 289

[Sindh]

Before Sadiq Hussain Bhatti, J

Messrs AMAN ASSOCIATES through Sole Proprietor---Applicant

Versus

GOVERNMENT OF SINDH through Secretary Excise and Taxation and 2 others---Respondents

Civil Revision Application No.56 of 2011, decided on 21st August, 2013.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Specific Relief Act (I of 1877), S.42---Suit for declaration---Rejection of plaint---Cause of action, absence of---Issuance of show-cause notice only---Plaintiff filed suit on the basis of show-cause notice issued by authorities---Plaint was concurrently rejected by Trial Court and Lower Appellate Court for absence of cause of action---Validity---Show-cause notice was issued by Director General, who was competent authority and plaintiff was called upon to reply the same within 14 days---Plaintiff did not face proceedings before competent authority, and only after final order so passed against him could have given any cause of action and plaintiff would have been well within his right to have approached court of competent jurisdiction---At the time of filing of suit, there was no cause of action available to plaintiff to file suit and Trial Court had rightly dismissed the same under O. VII, R. 11 C.P.C.---Concurrent findings were given against plaintiff and there was no cause of action accrued to him to file the suit, therefore, both the courts below were right in dismissing the suit and appeal filed by plaintiff---Revision was dismissed in circumstances.

Jamil Ahmed Rajpar for Applicant.

Muhammad Waseem Samo, Assistant Advocate General for Respondent.

Date of hearing: 15th August, 2013.

2015 M L D 304

[Sindh]

Before Munib Akhtar, J

SHAHEEN CONSTRUCTION COMPANY through Chief Executive---Plaintiff

Versus

FAUJI FERTILIZER BIN QASIM LTD. through Managing Director---Defendant

Suit No.318 of 2013, decided on 24th February, 2014.

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

-----S.54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for permanent injunction and damages---Interim injunction, grant of---Plaintiff contractor completed a housing project of defendant but due to dispute over construction cost declined to hand over the possession---Validity---Balance of convenience was in favour of defendant and against plaintiff and it was the party that would suffer irreparable loss and injury rather than plaintiff---Defendant was being deprived of the use of its property by continued occupation and possession of plaintiff---Projects involved work done for defendant for its ongoing business and commercial activities---Defendant could suffer loss and injury on account of continued presence of plaintiff on site in such circumstances---Neither the law nor facts were in favour of plaintiff and there was no warrant for any interim injunctive relief being granted to plaintiff---Application was dismissed in circumstances.

Umer v. S.A. Rana and others PLD 1957 Kar. 760 ref.

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

----Ss.18 & 34---Arbitration---Principle---Prima facie dispute existed with regard to amounts being claimed by plaintiff---Such was enough to refer the matter to arbitration.

Pakistan International Airlines Corporation v. Pak Saaf Dry Cleaners PLD 1981 SC 553; Uzin Export and Import Enterprises for Foreign Trade v. M. Iftikhar and Co. 1993 SCMR 866 and Samina Sohail v. Humaid Naseer Al-Owais and others 1989 CLC 1949 ref.

Shahenshah Hussain and Syed Arshad Ali for Plaintiff.

Anwar Mansoor Khan, Asim Mansoor, Bashir Ahmed Khan, Muhammad Ishaq and Iqbal Hashmi for Defendant.

Dates of hearing: 12th November and 6th December, 2013.

2015 M L D 321

[Sindh]

Before Amer Raza Naqvi, J

QAMAR ALI SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1081 of 2014, decided on 17th July, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 403---Penal Code (XLV of 1860), Ss.379 & 34---Constitution of Pakistan, Arts.10 & 13---Punishment for theft, acts done by several persons in furtherance of common intention---Bail, grant of---Registration of two F.I.Rs.---Protection against double punishment---No one was nominated in the first F.I.R. and alleged theft was in respect of pipes and not in respect of Sui Gas---Sufficient evidence was not available against accused who could not be kept in custody on the basis of technicalities---Second F.I.R. was reproduction of contents of the first one---Courts were guardian of the liberty of people---No specific allegations were made in any of the F.I.Rs.---Accused was admitted to bail in both F.I.Rs.

Arbab Ahmed for Applicant.

Ashfaq Rafiq Janjua, Standing Counsel.

2015 M L D 339

[Sindh]

Before Abdul Rasool Memon, J

NISAR AHMED and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.111 of 2013, decided on 30th May, 2014.

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

----Ss. 324 & 354---Attempt to commit qatl-i-amd, assault or criminal force to woman with intent to outrage her modesty---Appreciation of evidence---Benefit of doubt---Accused were convicted under S.324, P.P.C., despite no charge under said section was framed---None of the alleged injured witnesses stated that accused persons had made murderous assault upon them, nor any sort of question relating to that charge was put to accused persons in their statements under S.342, Cr.P.C.---Both parties were not on good terms; their evidence being interested, was to be scrutinized with care and caution---Complainant had already been disbelieved by the Trial Court to the extent of injuries allegedly sustained by her, holding that charge under S.324, P.P.C., could not be established by the prosecution---Complainant party and State counsel, having not challenged said findings of the Trial Court, same had attained finality---Evidence of injured witnesses carried major contradictions, which had shaken the reliability of the eye-witnesses, and had created serious doubts in the prosecution case---Evidence of said witnesses could not be relied upon---Large number of accused were involved in the case and enmity existed between the parties---Independent corroboration to the prosecution version was necessary, which was lacking in the case as independent witnesses were not cited/examined---Prosecution case being not free from doubt, convictions and sentences awarded to accused persons by the Trial Court, were set aside, and they were acquitted giving them the benefit of doubt---Accused being on bail their bail bond stood cancelled, and surety was discharged, in circumstances.

Munir Ahmed alias Munir v. The State 2001 SCMR 56; Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644 and Muhammad Irshad and another v. The State 1999 SCMR 1030 ref.

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

----Ss. 221 & 222---Framing of charge---Scope---Charge must contain all material particulars, as to time, place as well specific name of the alleged offences, the manner in which the offence was committed; and the particulars of accused; so as to afford accused an opportunity to explain the matter, with which he was charged---Purpose behind giving such particulars, was that accused should prepare his case accordingly, and could not be misled in preparing his defence.

Sudhamchand for Appellant.

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

Ghulam Shabir Dayo for the Complainant.

2015 M L D 356

[Sindh]

Before Sadiq Hussain Bhatti , J

KHAMISO KHAN and 6 others---Applicants

Versus

JAMALUDDIN---Respondent

Civil Revisions Nos.S-58 and 59 of 2011, decided on 21st March, 2014.

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

----S. 42---Civil Procedure Code (V of 1898), O.XLI, R.31---Sindh Revenue Jurisdiction Act (X of 1876), S.11---Suit for declaration---Concurrent findings---Judgment of appellate court---Plaintiff contended that appellate court was required to decide every point of determination---Validity---Appellate court had dismissed appeal holding firstly, that plaintiff could not prove ownership of the disputed land, and secondly, no appeal was preferred by him against the order and mutation entry in favour of defendants---Plaintiff had failed to produce any official witness to prove the genuineness of enquiry report on which he based his claim---Once main contention of plaintiff vis-à-vis ownership of disputed land was found to be incorrect, such finding was sufficient to decide the fate of the appeal---Appellate court concurred with the Trial Court's finding that plaintiff having failed to comply with the mandatory requirement of filing appeal before Revenue Department under S.11 of the Sindh Revenue Jurisdiction Act, 1876---Suit was not competent---Appellate court was not required to discuss further issues---Revision was dismissed.

Muhammad Bakhsh v. Elahi Bakhsh 2003 SCMR 286; Imam Dino v. Nawaz Ali Shah 2003 CLC 1889; Saif Ullah v. Waqarul Haq 2012 CLC 899; Muhammad Ameer v. Mst. Fajjan 2012 CLC 1663; Alamgir Khan v. Haji Abdul Sittar Khan 2009 SCMR 54; Bashir Ahmed through L.Rs. and another v. Muhammad All through L.Rs. 2007 SCMR 1047; Muhammad Bux v. Muhammad Ali 1984 SCMR 504 and Hawaldar Sarwar Khan through Attorney v. Government of Sindh, Revenue Department, through Depurty Commissioner, Shikarpur 1998 CLC 382 ref.

Muhammad Shah v. Sher Khan PLD 1994 SC 294 rel.

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

----O. XLI, R.31---Judgment of appellate court---Duty of the court---Once main contention of plaintiff (or defendant) was found to be incorrect, such finding was sufficient to decide the fate of the appeal and court was not required to proceed any further.

Muhammad Iftikhar v. Nazakat Ali 2010 SCMR 1868 rel.

(c) Sindh Revenue Jurisdiction Act (X of 1876)---

----S. 11---Scope---Requirement of filing appeal before Revenue Department/authorities prior to filing of civil suit was mandatory---Civil suit was not competent where such mandatory requirement was not complied with.

Hawaldar Sarwar Khan through Attorney v. Government of Sindh, Revenue Department, through Deputy Commissioner, Shikarpur 1998 CLC Kar. 382 rel.

Ahmed Ali Shahani for Applicants.

Rabait Ali Bhanbhro for Respondent.

2015 M L D 369

[Sindh]

Before Farooq Ali Channa, J

Mrs. FARAHAT LIAQUAT DAIRKEE---Appellant

Versus

Miss AYESHA ASAD---Respondent

F.R.A. No.14 of 2013, decided on 31st March, 2014.

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

----S. 17(8)(9)---Constitution of Pakistan, Arts.10-A & 199---Ejectment petition---Right to fair trial---Non-compliance of order for payment of rent---Striking off defence of tenant---Proceedings under Cantonments Rent Restriction Act, 1963---Scope---Rented property being situated in Cantonment limits, controversy could only be resolved under provisions of Cantonments Rent Restriction Act, 1963---Vires of provisions of Cantonments Rent Restriction Act, 1963 after enactment of Art.10-A of the Constitution could not be challenged in rent proceedings bypassing the remedy under Art.199 of the Constitution---Rent Controller was not required to record evidence for passing an order under S.17(8) of the Cantonments Rent Restriction Act, 1963---Rent Controller was competent to pass rent (payment) order on the basis of material available on record---Non-payment of rent, in the present case, was admitted---Rent Controller had no option but to strike off the defence of tenant under S.17(9) of the Cantonments Rent Restriction Act, 1963---Appeal was dismissed.

Muhammad Aqil for Appellant.

Iftikhar Javaid Qazi for Respondent No.1.

Date of hearing: 31st March, 2014.

2015 M L D 383

[Sindh]

Before Abdul Maalik Gaddi, J

ABDUL AZIZ---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-35 and M.A. No.225 of 2013, decided on 13th December, 2013.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Penal Code (XLV of 1860), Ss. 324 & 353---Possession of narcotic, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty---Bail, refusal of---Foisting of large quantity of narcotic by police not explained---Enmity/mala fides of police not established---Effect---Police recovered 70 kilograms of charas from a tractor being driven by accused and co-accused persons---Accused and co-accused persons also allegedly fired at the police party---Admittedly accused was present at the spot and huge quantity of charas was recovered from his possession---Accused was named in the F.I.R. and failed to submit any evidence to substantiate that he had been involved in the offence due to enmity or mala fide of police---Report of chemical examiner was positive---Accused also failed to explain as to how due to alleged enmity with police such huge quantity of narcotic could be foisted upon accused---Case of co-accused who had been granted bail was on a different footing to that of accused, therefore, rule of consistency was not applicable in the present case---Alleged offence also fell within the prohibitory clause of S. 497(1), Cr.P.C.---Bail application of accused was dismissed in circumstances.

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

---S. 25---Criminal Procedure Code (V of 1898), S. 103---Recovery proceedings in narcotic cases----Non-association of private witnesses---Scope---Evidence of police officials---Scope---During recovery proceedings in narcotic cases it was not necessary that private persons should be associated---Evidence of a police official was as good as that of a private person, unless there existed enmity of police, with accused.

Sarfraz Khan Jatoi for Applicant.

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

2015 M L D 397

[Sindh]

Before Farooq Ali Channa, J

MUHAMMAD IQBAL through L.Rs. and another---Petitioners

Versus

Mst. FATIMA BAI and others---Respondents

Constitution Petition No.S-463 and C.M.A. No.2026 of 2011, decided on 27th January, 2014.

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

----Ss. 8 & 21(3)---Constitution of Pakistan, Art.25 & 199---Constitutional petition---Discrimination---Rate of rent being charged by landlord not equal to the shops in the same building---Application for fixation of fair rent of demised shop---Enhancement of rent by Rent Controller---Rent was further enhanced on appeal by the appellate court---Fair rent of demised shop, determination of---Factor of rent of similar shops situated in the similar circumstances in the same or adjoining locality elaborated---Scope---If any instance of rent in similar premises situated in the same building was present, as it was available in the present case, it would be the best circumstance or factor which may be given due consideration for fixing the fair rent of disputed demised premises---Constitutional petition was allowed in circumstances and the order of Rent Controller was restored.

M. Ibrahim Azmi for Petitioners.

Abdul Shakoor for Respondent.

2015 M L D 411

[Sindh]

Before Salahuddin Panhwar, J

NISAR AHMED---Plaintiff

Versus

Syed ARSHAD HUSSAIN---Defendant

Suit No.1034 of 2014, decided on 10th September, 2014.

Specific Relief Act (I of 1877)---

----S. 55---Suit for mandatory injunction---Settlement of accounts---Preliminary decree---Delivery of possession by Nazir to a party against the order of court---Effect---Contention of defendant was that Nazir had handed over the possession of suit property to the plaintiff beyond the mandate given by the court---Validity---Plaintiff was not holding the possession of suit property at the time of filing of present suit---No order for putting the plaintiff in the disputed shop was passed by the court---Plaintiff stood placed in possession of the shop in question due to misunderstanding or wrong assumption on the part of Nazir who was solely authorized for taking accounts by breaking open the lock of said shop---Court had every power, jurisdiction and authority not only to enforce its legal order but also to bring things back within legal frame if any excess was noticed/found---No one should suffer or prejudice for act or omission of the court---Agent was legally authorized to do what the principal had permitted him/her to do and had no authority which the principal never vested him/her---Wrong assumption or interpretation would never vest a right---Plea of plaintiff with regard to bonafide had no legal value to claim continuity of such possession---No one could claim any protection or legalization even on the plea of bonafide as illegality would continue to be illegality---Nazir of the court was directed to take the possession of shop in dispute under an inventory showing what he had delivered and received and maintain the accounts in presence of representative of each party.

NLR 1981 UC 90; PLD 1962 (W.P.) Kar. 209; 1989 MLD 4819; 1979 SCMR 481 and AIR 1956 Allahabad 709 ref.

Faisal thorugh L.Rs. v. Mrs. Khalida Bano and others 2012 CLC 667; Mian Muhammad Talha Adil v. Mian Muhammad Lutfi 2005 SCMR 720; Ghulam Rasool and another v. Said Ahmed and others 2012 CLC 1655;Dr. Muhammad Bashir v. Additional District Judge, Vehari and others 2012 CLC 347 and 2013 CLC 792 rel.

Raqhib Ibrahim for Plaintiff.

K.A. Wahab for Defendant.

Date of hearing: 2nd September, 2014.

2015 M L D 424

[Sindh]

Before Aqeel Ahmed Abbasi and Aftab Ahmed Gorar, JJ

NASEEB GUL PATHAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-88 of 2010, decided on 20th March, 2014.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---No material discrepancy was pointed out by the defence counsel---One of the prosecution witnesses, who was Assistant Excise and Taxation Officer, fully supported the version of F.I.R. and recovery of charas and opium from possession of accused---Other prosecution witness, who was Excise constable, corroborated the evidence of witness and though lengthy cross-examination was conducted at the trial, but no material contradiction was pointed out in the statement of both the witnesses, so as to create a dent in the prosecution case---No enmity ill-will or grudge had been alleged or proved against the prosecution witnesses to falsely implicate accused, despite lengthy cross-examination---Prosecution had been successful to bring home the guilt of accused to the hilt by placing ocular account, recovery of narcotics material, the Chemical Examiner's report---Defence having failed to make any dent in the prosecution case or any material contradiction fatal to prosecution case, appeal filed by accused was dismissed, in circumstances---Accused and his family, were extremely poor people, and his family members were virtually starving due to confinement of accused in jail---As per jail roll, accused had served sentence of 14 years, 4 months and 4 days, including remissions---Accused was first offender and had no previous criminal record/history to his credit---Sentence of life imprisonment, was reduced to one already undergone, and fine was also remitted.

Tariq Pervez v. The State 1995 SCMR 1345; Minhaj v. The State 2004 PCr.LJ 1992; Iqbal Khan v. The State 2012 PCr.LJ 1524 and Behram Khan v. The State 2013 YLR 1147 ref.

Abdul Baqi Jan Kakar for Appellant.

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

Date of hearing: 6th March, 2014.

2015 M L D 439

[Sindh]

Before Syed Saeeduddin Nasir, J

Ms. NUDRAT REHMATULLAH MALIK and another---Plaintiffs

Versus

ZIAULLAH SHEIKH and 6 others---Defendants

Suit No.622, C.M.A. Nos.5013 and 8664 of 2014, decided on 24th October, 2014.

Specific Relief Act (I of 1877)---

---S. 39---Limitation Act (IX of 1908), Art. 91---Suit for cancellation of document---Limitation---Limitation for filing a suit for cancellation of document was three years from the date when the facts entitling the plaintiff to have the instrument cancelled or set aside became known to him.

Ravi Rajkhumar Pinjani for Plaintiffs.

Muhammad Qutub-u-Zaman for Defendant No.1.

Syed Iftikhar-ul-Hassan for Defendant No.6.

Choudhry Atif Rafiq for Defendant No.7.

Date of hearing: 22nd October, 2014.

2015 M L D 454

[Sindh]

Before Shahab Sarki, J

JAWWAD JAN---Applicant

Versus

The STATE---Respondent

Bail Application No.711 of 2014, decided on 12th June, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 147, 148 & 149---Attempt to qatl-i-amd and rioting armed with deadly weapons---Bail, grant of---Principle of consistency---Case of further inquiry---Accused was in custody and his co-accused had been granted bail by court---Effect---When in F.I.R. a similar role of general nature had been assigned to all accused then grant of bail was an entitlement of all accused and not just co-accused---Being, difficult at bail stage to distinguish case of accused from his co-accused persons, therefore, present case was a case of further inquiry---Bail was allowed in circumstances.

1979 SCMR 9; 1996 SCMR 978 and 2014 PCr.LJ 261 ref.

Syed Lal Hussain Shah for Applicant.

Shahzado Saleem, A.P.G. and SIP Rafiq Ahmed of Police Station Eidgah for the State.

2015 M L D 466

[Sindh]

Before Abdul Maalik Gaddi, J

IRSHAD ALI and another---Applicants

Versus

The STATE---Respondent

Bail Application No.S-713 of 2014, decided on 15th August, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Sindh Arms Act (V of 2013), Ss.23 (i) & 27---Recovery of arms---Bail, grant of---Case of further inquiry---Arms dealer---Investigating officer as complainant---Effect---Accused were arrested for keeping unlicensed arms and ammunition---Plea raised by accused was that they were licence holders to sell arms and ammunition---Validity---Alleged offence took place in thickly populated area and police had advance information about availability of accused persons as well as alleged weapons in shop in question---Police did not associate with them any independent person of locality to witness arrest or recovery---Police officials were good witnesses as others but where entire prosecution case depended upon sole evidence of police officials, their evidence required deep scrutiny at trial---Two co-accused persons were available inside the shop at the time of incident but their names were placed in column No.2 of challan without assigning any cogent reason, therefore, on such ground case of accused required further inquiry---No criminal history of accused had been brought on record in respect of their conduct that they were ever involved in such type of cases prior to the incident---Accused had been behind the bars since 19-6-2014, challan against them had been submitted and they were no more required for investigation---All witnesses were police officials, therefore, no question could arise for tampering with evidence---Complainant who was eye witness of incident had also conducted investigation, therefore, tentatively on such ground also false implication of accused persons at bail stage could not be ruled out---Bail was allowed in circumstances.

Shahzeb v. The State, Criminal Bail Application No.S-615/ 2013; Atif v. The State, Criminal Bail Application No.S-974/2013; Nazeer Ahmed v. The State Criminal Bail Application No.S-1134/2013 and Zahid Ali Shah v. The State, Criminal Bail Application No.S-320/ 2014 ref.

Abdul Sattar Kazi for Applicants.

Mushtaque Ahmed Abbasi, D.D.P.P. for the State.

2015 M L D 473

[Sindh]

Before Aqeel Ahmed Abbasi and Aftab Ahmed Gorar, JJ

ALI DINO KHAROSE---Appellant

Versus

GHULAMULLAH KHAROSE and others---Respondents

Criminal Acquittal Appeal No.D-9 of 2011, decided on 29th January, 2014.

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

----Ss. 302, 148 & 149---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd, rioting, common object---Appeal against acquittal---Benefit of doubt---Previous enmity between the parties had been admitted by the complainant party---No active role in the commission of alleged offence was assigned, particularly to accused persons; whereas one accused was attributed role of making pistol shot at the deceased, which hit him on his arm---No crime weapon was recovered from possession of said accused to prove such allegation---Said accused person, was found innocent during course of investigation, and his name was placed in Column No.II of the challan sheet---No other incriminating material, or evidence had been produced by the prosecution against accused persons, which could directly connect them with the alleged offence, for which co-accused had already been convicted, though impugned judgment and appeal against such conviction was pending disposal before the Single Judge of High Court---Accused persons had already suffered the agony of the trial and the pendency of present appeal---No irregularity and infirmity had been pointed out in the impugned judgment, so far accused persons were concerned---Trial Court had rightly extended benefit of doubt in favour of accused persons---Judgment of Trial Court, did not require any interference by High Court in appeal---Appeal against acquittal was dismissed, in circumstances.

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

----S. 417(2-A)---Appeal against acquittal---Scope---"Appeal against conviction" and "appeal against acquittal"---Distinction---Accused who had been acquitted in crime, could claim double innocence, one at the pre-trial stage, and the other he could earn on the basis of judgment of acquittal in his favour from the court of competent jurisdiction.

Safdar Ali Ghouri for Appellant.

Zia Ahmed Jalbani for Respondents Nos. 1 to 4.

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

Date of hearing: 29th January, 2014.

2015 M L D 488

[Sindh]

Before Shahnawaz Tariq, J

ABDUL HUSSAIN DARUGAR and another---Applicants

Versus

GUL MUHAMMAD and 3 others---Respondents

Civil Revision Application No.29 of 2010, decided on 13th October, 2014.

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

----S. 14---Civil Procedure Code (V of 1908), O. VII, R. 11---Oral award---Scope----Issuance of notice by the arbitrators---Object---Both the parties had entered into an agreement to refer to the arbitrator disputes with regard to business transaction---Parties referred the matter to the arbitrators with regard to dispute arising out shares of property etc.---Arbitrators announced oral award without giving notice in writing to the parties for making and signing the same and no copy of award was supplied to the parties---Validity---During the period of oral award and supply of its written copy one of the contesting party died---Applicant was co-sharer in the disputed properties but there was nothing on record that she ever appeared before the arbitrators or signed any document pertaining to the arbitration proceedings till her death---Nothing was on record that deceased had appointed any of the arbitrators to conduct the arbitration proceedings with regard to the dispute arisen between the parties---No letter was issued by the applicants mentioning the details of the dispute to be decided by the arbitrators---Arbitrators had failed to mention the diaries of proceedings or minutes of the meetings allegedly convened by them during the process of arbitration nor any written material was on record showing the details of the dates when and where such arbitration proceedings were conducted---Issuance of notice to the parties by the arbitrators was mandatory in nature and its non-compliance was fatal to the making and signing the award---Arbitration proceedings were quasi-judicial in nature and in absence of service of notice the award would not be binding on the parties---Object of such notice was to inform the parties of making and completion of award by the arbitrators or umpires and to enable them to approach the court instantly to proceed further for making the same rule of the court---Award must be announced in presence of the contesting parties or their authorized agent---Arbitrators had not issued notice in writing when award was made and signed to the parties of making and signing thereof---Arbitrators had committed gross illegality and utter violation of S. 14 of Arbitration Act, 1940---Impugned award was doubtful as certain essential requirements were not fulfilled when arbitration proceedings were commenced---Award issued, in the present case, had become void and same could not be made the rule of the court---Law did not recognize an award which was oral---Oral award was not capable of enforcement as same would lack reasons which needed to be furnished by the arbitrators while making award in order to avoid ambiguity---Oral award could not be registered under the Registration Act, 1908, consequently the oral award was null, void and ultra vires---Impugned judgment passed by the Appellate Court was set aside---Revision was accepted in circumstances.

O.P. Verma, v. Lala Gehrilal and another, AIR 1962 Rajasthan 231 (V 49 C 53); Noor Nabuwaat v. Muhammad Noor Ali Khan 1999 CLC 1685; Messrs Shahnawaz Ltd. v. Government of N.W.F.P. PLD 1991 Pesh. 136; Messrs Dawood Builders v. Mrs. P. Hameedullah, 1984 MLD 1175 and Messrs Mechanised Contractors of Pakistan Ltd. v. Airport Development Authoirty Karachi 2000 CLC 1239 rel.

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

----S. 14---Award, signing of---Issuance of notice to the parties---Object---Object of notice to be issued to the parties was to inform them of making and completion of award by the arbitrators or umpires and to enable them to approach the court instantly to proceed further for making rule of the court.

Syed Hassan Imam for Applicants.

K.B. Bhutto for Respondents.

Date of hearing: 28th August, 2014.

2015 M L D 515

[Sindh]

Before Shahab Sarki, J

SAQIB RAZA---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.919 of 2014, decided on 18th June, 2014.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324, 353 & 392---Attempt to commit Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty and robbery---Bail, grant of---Delay in trial---Effect---Accused was arrested on 15-8-2012, at the spot and since then he had been behind the bars---Effect---Expeditious and fair trial was a fundamental right of accused---Delay in disposal of case and imparting justice could reduce confidence of public in judicial system and would cause frustration and anguish---Object of criminal law was to bring accused to justice as speedily as possible and if they were found guilty, they could be punished and if they were innocent they should be acquitted from the case---Object of criminal prosecution was not to punish an undertrial prisoner for alleged offence and accused could not be detained for an indefinite period without remedy of trial---Accused was not in any way responsible for delay in conclusion of trial and neither accused nor any person acting on his behalf had been shown to be the cause of delay---Bail was allowed in circumstances.

1999 SCMR 2147; 1997 SCMR 436; 2003 MLD 19; 2009 YLR 2139; 2010 MLD 318; PLD 2012 Sindh 147 and 2014 MLD 633 rel.

Shamraiz Khan Tanoli for Applicant.

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

Date of hearing: 13th June, 2014.

2015 M L D 537

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD UMER and 5 others---Applicants

Versus

TAYYAB and 5 others---Respondents

Civil Revision Application No.169 of 2006, decided on 21st March, 2014.

Civil Procedure Code (V of 1908)---

----O.VII, R. 11 & O. II, R. 2---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Rejection of plaint---Scope---Plaint could be rejected only if same did not disclose cause of action or was barred by any law---Court should look into the contents of plaint only and examine the same on its face value in order to invoke the provisions of O. VII, R. 11, C.P.C.---Court should reject the plaint if same by itself had indicated any infirmity enumerated in O. VII, R. 11, C.P.C. as fruitless litigation was required to be buried at its inception to avoid wastage of time of courts and unnecessary harassment of the opposite party---Defence set up and documents annexed with the written statement could not be looked into for rejection of plaint---Both the parties had exhausted their legal efficacious adequate remedy available to them by initiating proceedings before the revenue department---Revenue department had conflicted views with regard to the entries made in the record-of-rights---Genuineness of said entries could not be determined without adducing evidence---Object behind legal formalities was to safeguard the interest of justice---Impugned order passed by the Appellate Court was not sustainable in law, which was set aside---Trial Court was directed to proceed with the matter on its own merits---Revision was disposed of accordingly.

2005 SCMR 969 ref.

Haji Allah Bukhsh v. Abdul Rehman and others 1995 SCMR 459; Kashiparsad v. Bhanshidar AIR 2001 Maddhya Pradesh 185; Lachman Das v. Servanand 1995 SCMR 435 and Province of Punjab v. Abdul Majeed 1997 SCMR 1692 rel.

Noor Ahmed Memon for Applicants.

Deedar Hussain Baloch for Respondents.

Ashfaque Nabi Kazi, Assistant A.G. for the State.

Date of hearing: 17th February, 2014.

2015 M L D 559

[Sindh]

Before Naimatullah Phulpoto and Sajjad Ali Shah, JJ

MUHAMMAD QASIM alias UMAIR---Appellant

versus

The STATE---Respondent

Special Anti-Terrorism Appeal No.37 to 39 and Confirmation Case No.5 of 2008, decided on 11th April, 2013.

Penal Code (XLV of 1860)---

----Ss. 302, 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, kidnapping for ransom, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Boy of 12/13 years was kidnapped by accused persons for ransom and was done to death---Reliable and cogent evidence had established case against accused persons---Nothing substantial was found in the statements of accused persons recorded under S.342, Cr.P.C. to discredit such confidence inspiring evidence---One of accused persons who was arrested from his house, had admitted that he along with co-accused had kidnapped the deceased, committed his murder, and threw his dead body in Nala---Prosecution witness had also seen accused persons while throwing dead body into the Nala---Defence plea that death of the deceased was accidental, was rightly discarded by the Trial Court---Prosecution witnesses had no motive to implicate accused persons falsely in such heinous crime---Trial Court had properly appreciated evidence on record and rightly come to the conclusion that prosecution had proved its case against accused persons beyond any reasonable doubt---Accused persons were aged about 18 to 20 years at the time of incident, and it was a ground for conversion of their sentence from death to imprisonment for life---Death sentence imposed upon accused persons under S.302, P.P.C., was converted to imprisonment for life---Benefit of S.382-B, Cr.P.C., was also extended to them, in circumstances.

Amin Ali and another v. The State 2011 SCMR 323; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Hamid Nadeem v. The State 2011 SCMR 1233; Naseem Akhtar and another v. State 1999 SCMR 1744 and Abdul Samad v. State PLD 1964 SC 167 ref.

Nazir Shehzad and another v. The State 2009 SCMR 1440; Naseem Akhtar's case 1999 SCMR 1744; Solat Ali Khan v. The State 2002 SCMR 820 and Kamran Ahmad Farooqui and another v. The State SBLR 2013 SC 18 rel.

Asif Rauf for Appellant No.1.

Habib Ahmed for Appellants Nos. 2 and 3

Khadim Hussain Khuharo, Deputy Prosecutor General for the State.

A.Q. Halepota for the Complainant.

Date of hearing: 19th, 28th February and 7th March, 2013.

2015 M L D 595

[Sindh]

Before Sajjad Ali Shah and Irfan Saadat Khan, JJ

Dr. ZAFAR SAIED SAIFY and another---Petitioners

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Science and Technology and 7 others---Respondents

Constitutional Petition No.D-3318 of 2011, decided on 6th December, 2012.

Sindh Public Property (Removal of Encroachment) Act (XVIII of 2010)---

----Ss. 3(1) 4 & 8(1)---Constitution of Pakistan, Art.199---Constitutional petition---Quashment of FIR---Encroachment on public property---Registration of FIRs for illegally occupying the Government land---Procedure and power---Issuance of notice for removal of encroachment and filing of review petition under Ss. 3 and 4 of the Sindh Public Property (Removal of Encroachment) Act, 2010---Requirement and scope---Petitioners purchased the government land for cultivation of plants to be used for extracting anti-malaria agent---Prosecution after investigating both the criminal cases recommended the disposal in 'A' Class---Authorities subsequently admitted that the petitioners were not encroachers---Contention of the petitioners was that before registration of criminal cases, the requirements of S. 8(1) of the Sindh Public Property (Removal of Encroachment) Act, 2010 had not been fulfilled---Validity---FIR under S. 8(1) of the Sindh Public Property (Removal of Encroachment) Act, 2010 could only be registered against those encroachers who despite issuance of an order directing removal of encroachment as contemplated in S. 3(1) of the Sindh Public Property (Removal of Encroachment) Act, 2010 and without preferring any review or after dismissal of their review petition failed to remove the encroachment---Legislature in order to prevent the misuse of penal provisions had required the enforcer of law to first issue an eviction order/notice and thereafter had provided a review against that order with an opportunity of being heard in order to ensure that no unnecessary harassment was caused to the genuine owners/occupants of the government land---Respondents (officials) with mala fide intention and ulterior motive had lodged FIRs under the provisions of S. 8(1) of the Sindh Public Property (Removal of Encroachment) Act, 2010 by misusing their authority---High Court while quashing the FIRs directed the Authorities to initiate departmental proceedings against the respondents---Constitutional petition was allowed in circumstances.

Farmanullah Khan for Petitioner.

Sher Muhammad K. Sheikh, Addl. Advocate General.

Shahid Ahmed Shaikh, Assistant Prosecutor General.

Muhammad Ahmed Pirzada, for Respondents Nos. 2 to 6.

SSP Irfan Bahadur and Inspector Khursheed Ahmed Rind of Anti-Encroachment Cell are present in person.

2015 M L D 624

[Sindh]

Before Hasan Feroz, J

ATIF ALI---Appellant

versus

The STATE---Respondent

Criminal Jail Appeal No.78 of 2014, decided on 8th July, 2014.

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

----S. 392---Robbery---Appreciation of evidence---Benefit of doubt---Error of mentioning wrong section of law---Effect---Appeal, in the present case, had been preferred against the judgment of the Trial Court in the matter of conviction of five years against which appeal could be preferred under S.408, Cr.P.C., instead of S.410, Cr.P.C.---Such error of mentioning of wrong section, would not come in the way of dispensation of justice---Contents of the charge described snatching on the force of weapon, whereas the deposition of the complainant was vague about pointing of pistol upon him, though he explicitly stated to have resisted---In order to constitute offence under S.392, P.P.C., it was to be seen that the offender for that end, voluntarily caused or attempted to cause any person death or hurt or wrongful restraint---Hurt caused by offender be with the express object of facilitating the committing of the offence in carrying away the property---By pointing the pistol, accused persons had put the complainant under fear of threat of death, but that threat departed when the complainant spoke that he resisted when accused persons had snatched his mobile and the cash---Trial Court had not taken into consideration the glaring improvements and contradictions arriving between each of the witnesses---Evidence, did not show that pistol had been pointed upon the complainant by accused---Case of prosecution was full of contradictions on various points, particularly the manner in which the incident was witnessed by the prosecution witnesses---Trial Court had to look into every piece of evidence forming part of transaction to constitute offence while delivering judgment of conviction, whereas in presence of contradictions and disjunction in the evidence on record, whereby the offence under S.392, P.P.C. had not been proved beyond shadow of doubt on the scale of available evidence, judgment of Trial Court, was set aside, and accused was acquitted extending him benefit of doubt and he was released, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Scope---Conviction must be based on unimpeachable evidence and certainty of guilt; and any doubt arising out in the prosecution case, was to be resolved in favour of accused---Even slightest possible doubt created in the case of prosecution, must go in favour of accused.

2013 YLR 543; 2009 YLR 1598 and 2009 PCr.LJ 1119 ref.

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

----S. 342---Statement of accused---Scope---When prosecution failed to establish the case against accused, then for dispensation of justice, statement of accused recorded under S.342, Cr.P.C., was to be looked into; and to be believed in totality.

Appellant in person (present in custody).

Mutazir S. Mehdi, A.P.G. for the State.

Date of hearing: 19th June, 2014.

2015 M L D 648

[Sindh]

Before Abdul Maalik Gaddi, J

Mst. SHAHNAZ KOUSAR---Applicant

versus

ADDITIONAL SESSIONS JUDGE and another---Respondents

Criminal Miscellaneous Application No.S-539 of 2014, decided on 17th July, 2014.

Criminal Procedure Code (V of 1898)---

----Ss.22-A, 22-B, 154 & 561-A---Ex-officio Justice of Peace---Jurisdiction---Matrimonial dispute---Effect---Petitioner was aggrieved of order passed by Ex-officio Justice of Peace, whereby her application for registration of FIR was dismissed---Validity---If there was a dispute over matrimonial issues between parties, in spite of that, Station House Officer was legally bound to register FIR in case a cognizable offence was made out---Petitioner had categorically stated that proposed accused on the force of weapons entered in her father's house and made direct firing upon them and it was their sheer luck that they had saved their lives but in spite of such facts, application of petitioner for registration of FIR was declined, which was not proper---High Court directed Station House Officer to record statement of petitioner and register FIR in case cognizable offence was made---Petition was allowed in circumstances.

Muhammad Bashir v. Station House Officer Okara Cantt. and others PLD 2007 SC 539 ref.

Abdul Sattar Soomro for Applicant along with applicant Mst. Shahnawaz Kousar.

Muhammad Daud K. Kubar for proposed Accused.

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

2015 M L D 662

[Sindh]

Before Zafar Ahmed Rajput, J

JAWED IQBAL---Plaintiff

versus

PROVINCE OF SINDH through Secretary Transport/Chairman, Provincial Transport Authority and 4 others---Defendants

Suit No.448 of 2014, decided on 22nd September, 2014.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 20 & O. VII, R.10---Suit for declaration and injunction---Return of suit---Territorial jurisdiction---Absence of cause of action against defendant---Plaintiff was a transporter who was aggrieved of time schedule prepared by defendant authorities for vehicles plying on different routes---Defendant authorities were having offices at place "H" and "M" but plaintiff instituted the suit at place "K"---Validity---Cause of action for filing suit had arose to plaintiff at places "H" and "M" districts but it could be instituted at place "K" if defendants were residing or carrying on their business or personally worked for gain within civil district of place "K"---Province (defendant) could neither be said to reside nor to carry on business nor work for gain within the jurisdiction of court at place "K", as such qualification applied to only natural person---Plaintiff impleaded Secretary to Provincial government as one of the defendants but he had not been pleaded against and, therefore, no cause of action had accrued to plaintiff against him---Such defendant was added deceptively in the suit solely to create an impression of jurisdiction of court at place "K" in the matter, which it did not otherwise possessed---Court at place "K" declined to interfere as it had no jurisdiction in the matter---Plaint was returned in circumstances.

West Pakistan Industrial Development Corporation v. Messrs Fateh Textile Mills Ltd. PLD 1964 (W.P.) Kar. 11 distinguished.

Master Mehboob Ali Soomro and another v. Sindh Road Transport Corporation through Chairman and 2 others 1999 CLC 1722 rel.

Mehmood Habibullah for Plaintiff.

Ziauddin Junejo, A.A.-G. for the State.

Z.K. Jatoi and Moula Bux Khoso for Applicants/Interveners.

Date of hearing: 30th May, 2014.

2015 M L D 674

[Sindh]

Before Faisal Arab, J

Mst. LUBNA FARAH---Petitioner

versus

RAYMOND JAL HAP BYRAMJI and another---Respondents

Constitutional Petition No.S-870 of 2011, decided on 24th October, 2014.

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

----Ss. 8 & 15---Constitution of Pakistan, Art. 199---Constitutional petition---Application for fair rent---Enhancement of rent---Effective date for such enhancement---Landlord's application for enhancement of rent was allowed by Appellate Court and such enhancement was made effective from date of filing fair rent application by the landlord before the Rent Controller----Contention of tenant/petitioner was that such enhancement should have been made effective from date of order of Appellate Court---Held, that the law gave the Rent Controller discretion to fix fair rent from date of institution of application or from date of such order or any time in between said two events, keeping in view the facts and circumstances of each case---Where discretion was to be exercised by a court, the same should not be arbitrary but should be based on sound reasoning---Rights of parties to a litigation were to be determined on the facts and circumstances of the case obtaining on the date of institution of such legal proceedings---No fact suggested that Rent Controller ought to have fixed effective date other than date of institution of "fair rent application" and no fact warranting the same was pointed out by the tenant---Constitutional petition was dismissed, accordingly.

Messrs Victor Restaurant v. State Life Insurance Corporation of Pakistan and others 2010 SCMR 745 rel.

PLD 1994 SC 725; PLD 2007 Kar. 485 and 2010 CLC 1064 ref.

(b) Discretion---

----Exercise of---Where discretion was to be exercised by a court, the same should not be arbitrary but should be based on sound reasoning.

Umer Lakhani and Muhammad Munir Khan for Petitioners.

Irshad Ahmed Panhwer for Respondent No.1.

2015 M L D 679

[Sindh]

Before Amer Raza Naqvi, J

MUHAMMAD JAWAID KHAN---Petitioner

versus

Mst. ZOHRA and 3 others---Respondents

Constitutional Petition No.S-843 of 2014, decided on 4th July, 2014.

Constitution of Pakistan---

----Art.199---Constitutional petition---Habeas corpus---Maintainability---Family dispute---Matter in issue was dispute between family of alleged detenue where on one hand there were sons and daughters of detenu from one wife (petitioner) and on the other side there were sons and daughters from other wife of alleged detenu---Contention of petitioner was that, only purpose of filing of petition was to get proper medical treatment of alleged detenue---Validity---Petition was not maintainable under Art. 199 of the Constitution which was dismissed in circumstances.

Kamran Shehzad Siddiqui for Petitioner.

Ms. Marzia Begum, A.A.-G., Sindh for the State.

2015 M L D 701

[Sindh]

Before Shahab Sarki, J

MUMTAZ ALI and 3 others---Applicants

versus

IQBAL AHMED through L.Rs. and 11 others---Respondents

Civil Revision No.S-72 of 2012, decided on 8th September, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Plaint, rejection of---Present litigation as well as earlier litigation were between the same party and on the same property---No fresh cause of action was available to initiate second round of litigation---Impugned orders were lawful---Revision was dismissed in circumstances.

2002 YLR 1473; 2002 SCMR 338; 2010 SCMR 984; 2000 SCMR 1647 and PLD 2008 SC 155 ref.

Ashok Kumar for Applicants.

Manoj Kumar for Respondent No.7.

2015 M L D 716

[Sindh]

Before Muhammad Iqbal Kalhoro, J

SHABBIR AHMAD---Applicant

versus

HASHIM and others---Respondents

Civil Revision No.103 of 2000, decided on 25th September, 2014.

(a) Islamic law---

----Pre-emption---Talbs, performance of---Conditions---Evidence of pre-emptor and his witnesses was not confidence inspiring---Pre-emptor and his witnesses had made improvements in their depositions with regard to facts of the case---Major discrepancies in the evidence of pre-emptor existed on record---Evidence of pre-emptor was unbelievable and untrustworthy---No evidence was produced by the pre-emptor to establish his ownership of other land alleged to be abutting with the suit land---Party could not claim to be Shafi-i-Jar or Shafi-i-Khalit to enforce right of pre-emption merely on the basis of unsupported assertions with regard to ownership of some land presumed to be lying next to a sold out piece of land---Certain conditions should stand fulfilled before a person could claim his entitlement to the right of pre-emption---Person should either be a co-sharer in the property (Shafi-Sharik), or a participator in the immunities and appendages such as to use the same way or right to discharge water (Shafi-i-Khalit) and/or he must be the owner of the adjoining immovable property (Shafi-i-Jar) to claim such right---Evidence beyond pleadings could not be looked into---Plaintiff was bound to prove not only on the date of sale but also at the time of instituting proceedings to claim right of pre-emption and up to the time the decree was passed by Trial Court he had the superior right of pre-emption being the owner of adjoining land---Plaintiff had failed to maintain his right of pre-emption to the suit land up to the time the decree in his case was passed---No piece of material brought on record had been excluded out of the consideration by the courts below---Appellate Court had given findings on all the points the parties were at odds with each other by discussing issues framed by the Trial Court---No prejudice had been occasioned to the pre-emptor with regard to non-framing of points for determination by the Appellate Court---Appellate Court had given its judgment in accordance with the provisions of O. XLI, R. 31, C.P.C. as every disputed point had been dealt and findings were supported by reasoning---Technicalities should not be allowed to impede the way of justice---If compliance of the provisions of O. XLI, R. 31, C.P.C. was lacking in the judgment of Appellate Court then such irregularity could be condoned if substantial justice had been rendered---Pre-emptor had failed to establish his right of pre-emption through confidence inspiring evidence---Appellate Court had dismissed appeal after thorough discussion and a proper appreciation of evidence---No illegality, non-reading or mis-reading of evidence or any error in the exercise of jurisdiction by the Appellate Court had been pointed out---Revision was dismissed in circumstances.

1996 SCMR 336; 2002 SCMR 236; 2012 CLC 899 and 912; 2013 MLD 1845; PLD 2008 SC 155 and 1994 CLC 2020 ref.

Muhammad Law; Dariya Khan and others v. Saleh Khan and 3 others 2004 CLC 1843 and Muhammad Siddique v. Azizuddin 2004 MLD 251 rel.

(b) Islamic law---

----Pre-emption---Preferential right---Object---Object behind the preferential right of pre-emption was to check the descending of the strangers into one's neighborhood and to preserve the family heritage and honour.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court to interfere with the concurrent findings of facts was limited---High Court could interfere with the findings recorded by the courts below while exercising revisional jurisdiction when the conclusion drawn by the said courts had been based on insufficient evidence, misreading of evidence, non-consideration of material evidence or same were result of an erroneous assumption of facts, patent error of law or due to consideration of inadmissible evidence or there was an excess or abuse of jurisdiction or when a view taken was not in conjunction with the evidence available on record.

A.M. Mobeen Khan for Applicant.

Abdul Haque Kambho for Respondents.

Date of hearing: 8th September, 2014.

2015 M L D 742

[Sindh]

Before Hasan Feroz, J

NISAR AHMED---Appellant

versus

The STATE---Respondent

Criminal Appeal No.103 of 2014, decided on 8th July, 2014.

(a) Sindh Arms Act ( V of 2013)---

----S. 23-A(1)---Constitution of Pakistan, Art.10-A---Qanun-e-Shahadat (10 of 1984), Art.133---Possessing unlicensed arms---Appreciation of evidence---Fair trial---Failure to provide opportunity of cross-examination of prosecution witnesses---Trial Court had not provided the opportunity for cross-examination of prosecution witnesses to accused---Effect---Right to fair trial was the essence of criminal justice, whereby each and every party was equal before the court and should be provided fullest opportunity to advance its case and such right having been enshrined under Fundamental Rights under Art.10-A of the Constitution, which postulated fair opportunity of trial, court, while proceeding with a matter, had to keep in mind that no one should be deprived of previous right of defence, or to be condemned unheard/audi alteram partem, which lacked in the case of accused---Trial Court had taken down the prosecution evidence of two witnesses in stereo typed manner in one day, without being cross-examined by adversary---Essence of Qanun-e-Shahdat, 1984, as required under its Chapt. X, had not been adhered to in its letter and spirit---Trial was conducted in haste by ignoring the principles of fair trial, and due process as had been guaranteed under the Constitution---Judgment of the Trial Court, was not sustainable---Conviction and sentence of accused were set aside and case was remanded to the Trial Court with directions to allow cross-examination of the witnesses; and by providing full and fair opportunity to accused, and after hearing both the parties, decide the matter afresh accordingly.

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

----S.340---Sindh Arms Act (V of 2013), S.23-A(1)---Possessing unlicensed arms---Right of accused to be defended and his competency to be a witness---In the criminal administration of justice, the court aught to provide fair opportunity---Accused under S.340, Cr.P.C. was to be defended by lawyer of his choice, whereas in the present case the counsel was absent and unable to appear on each date---That aspect was required to be justifiably taken into consideration by the Trial Court before the closing the side of accused with "No cross".

Muhammad Arshad Tariq for Appellant.

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

Date of hearing: 17th June, 2014.

2015 M L D 756

[Sindh]

Before Nadeem Akhtar and Muhammad Iqbal Khalhoro, JJ

Mrs. RUBAB through Attorney---Appellant

versus

AFTAB AHMED and 7 others---Respondents

H.C.A. No.147 of 2014, decided on 21st January, 2015.

Civil Procedure Code (V of 1908)---

----S.12(2)---Application under S.12(2), C.P.C.---Requirements---Consent order, setting aside of---Fraud and misrepresentation---Scope---Mere bald and wild assertions would not provide a cogent ground to reverse the consent findings---No substantial evidence had been pointed out to establish the factum or element of fraud and misrepresentation in obtaining the impugned order---Full particulars of fraud and misrepresentation in obtaining the impugned order---Full particulars of fraud and mispresentation were required to be given in the application with supporting evidence to establish ex facie the plea of fraud and misrepresentation---Court could examine such application if it was alleged that during proceedings in the court fraud or misrepresentation had been practised---Provisions of S.12(2), C.P.C. would not be attracted when fraud or misrepresentation was not alleged in connection with the pending proceedings---Consent order assented by the parties or their counsel could not be interfered with unless the same was brought through reliable evidence that the order was obtained by practising fraud and misrepresentation---Necessary and requisite details of fraud and mispresentation had not been given in the present application---No fraud or misrepresentation had been committed in the present case---Impugned order was passed with the consent of the parties---No illegality had been pointed out in the impugned order---High Court appeal was dismissed in circumstances.

Nawab Mirza for Appellant.

Nemo for Respondents.

Date of hearing: 21st January, 2015.

2015 M L D 787

[Sindh]

Before Syed Saeeduddin Nasir, J

Mrs. KHURSHID JALAL---Plaintiff

versus

PROVINCE OF SINDH through Secretary Cooperative Housing Societies and 6 others---Defendants

Suit No.459 of 2008, decided on 14th November, 2014.

Co-operative Societies Act (VII of 1925)---

----Ss. 70-A & 56---Specific Relief Act (I of 1877), S. 42---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for declaration---Bar of jurisdiction---Application of rejection of plaint---Scope---Award given by the Registrar of Co-operative Societies (nominee for arbitration) had attained finality---Registrar Co-operative Societies, in circumstances, had wrongly assumed jurisdiction to adjudicate upon the appeal---Entire exercise undertaken by the Registrar by entertaining time-barred appeal and adjudicating upon the same and pronouncing the decision thereon was mala fide---Plaint could not be rejected in circumstances---Application for rejection of plaint was dismissed.

Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC 3; Mst. Aqila Begum and another v. Pakistan Employees Cooperative Housing Society Ltd., and others, PLD 2004 Kar. 1; Pir Illahi Bux Co-operative Housing Society Ltd. v. K.B. Sanaullah and others, PLD 1968 Kar. 680; Syed Sultan Ali v. Sahibzada Frogh Najam Najmi and 2 others, 2003 TLR 2216; Amir Ali Hussain Shalwani v. Ismaili Maslawala 2001 YLR 2537; Abdul Ghaffar Mahenti and 2 others v. Kathiawar Cooperative Housing Society Limited and another, 2003 YLR 2635; Karachi Parsi Cooperative Housing Society Ltd. v. Mrs. Dina S. Hazari and others, 2004 YLR 2071; Haji Shamsur Rehman and another v. Nadar Khan and 6 others, 2005 CLC 215; M. Wahidullah Ansari through Legal heirs v. Zubeda Isharif and another PLD 2002 Kar. 414; Muhammad Khan and others v. Province of Punjab and others, 2007 SCMR 1169; Siddiqua Faiz and 2 others v. Deputy Registrar, Co-operative Housing Society, Karachi, 2005 YLR 252 and Tanveen Afzal Khan v. Federation of Pakistan through Secretary, Ministry of Works, Government of Pakistan, Islamabad and 6 others, 2007 CLC 864 ref.

Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Hafiz Muhammad Ghaus and 5 others PLD 1997 SC 3 rel.

Khawaja Shams-ul-Islam for Plaintiff.

Muhammad Saleem Iqbal for Defendant No.3.

Asim Aziz Khan for Defendant No.4.

Date of hearing: 14th November, 2014.

2015 M L D 804

[Sindh]

Before Syed Saeeduddin Nasir, J

BILQEES and 15 others---Plaintiffs

versus

PROVINCE OF SINDH and 6 others---Respondents

Suit No.657 of 2010, decided on 30th October, 2014.

Civil Procedure Code (V of 1908)---

----O.XXIII, R. 3 & S.151---Compromise between parties---Withdrawal of suit---Retracting from compromise---Past and closed transaction, principle of---Applicability---Parties filed application to withdraw the suit on the basis of compromise but subsequently new incumbent representing defendant Provincial government filed application to withdraw earlier application to withdraw the said suit---Validity---Earlier application was executed and signed by parties including Secretary to the Provincial government by putting his signature and affixing seal of his office thereon, who was then incumbent of that office---Matter in question was past and closed transaction made by government functionaries in their official capacity and the same was binding on all successive incumbents of that office---Defendant government was unable to satisfy High Court as to how and under what law the successor incumbents in the office concerned could retract compromise application signed and filed by his predecessor in office, which was further authenticated by him by putting seal of office thereon---High Court dismissed application filed by the defendant government as it was nothing more than an arm twisting tactic of newly appointed incumbent in the office of Provincial government for ulterior motives and mala fide intentions to pester plaintiff into submission of his demands---Application, to withdraw the suit on the basis of compromise, was filed and signed by plaintiffs and concerned official of Provincial government had affixed seal of his office with his signatures---High Court granted application under O. XXIII, R. 3, C.P.C. in accordance with the terms and conditions contemplated therein---Suit was dismissed as compromised in circumstances.

Khawaja Shamsul Islam and Khalid Iqbal for Plaintiffs.

G.N. Qureshi for Defendant No.2.

Qazi Majid Ali, Additional Advocate General for Defendants Nos. 1, 3, 5 and 7.

2015 M L D 828

[Sindh]

Before Abdul Rasool Memon, J

SAIDAL and another---Appellants

versus

The STATE---Respondent

Criminal Jail Appeal No.51 of 2009, decided on 14th April, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 34, 324, 452, 147 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, rioting, common object---Appreciation of evidence---Fatal injuries caused to accused were attributed to absconded accused persons, whereas accused was simply alleged to have been present on the spot with gun and had made ariel firing---Mere presence of accused would not be sufficient to attract the provisions of S.34, P.P.C., but there must be proof of some overt act on the part of each accused alone in furtherance of the common intention---No overt act had been assigned to accused, nor there was any sort of evidence to have implicated him in sharing common intention with absconded accused persons---Accused, in circumstances, was entitled to the benefit of doubt---Conviction and sentence awarded to accused being not sustainable, were set aside and he was acquitted and set at liberty, in circumstances---Co-accused as per FIR, had allegedly caused lathi injuries to complainant and his mother---Complainant had fully implicated co-accused, and his such evidence had not been shattered---Medical evidence was also coincided with version of the complainant, who also sustained grievous/simple injuries---Nowhere in the evidence, either complainant or any of the witnesses had deposed that said co-accused had facilitated absconded accused persons, while causing the death of the deceased---Said co-accused, in circumstances, was responsible for the act attributed to him---Prosecution having failed to make out the case of sharing common intention by co-accused with absconded accused person for causing death of the deceased, conviction and sentence awarded to said co-accused under Ss.302 and 34, P.P.C., was set aside---Rest of the conviction awarded to co-accused by the Trial Court under Ss.324 and 452, P.P.C. having been proved, he was rightly convicted and sentenced for the offence falling under said provisions in circumstances.

Hasan v. State 1969 SCMR 455; Hasan Din v. Muhammad Mushtaq 1978 SCMR 49 and Taj Muhammad v. The State PLD 1963 (W.P.) Kar. 118 ref.

Ammanullah G. Malak for Appellant.

Rehmatullah Mangnejo for the Complainant.

Abdul Rehman Kolachi, APG for the State.

Date of hearing: 14th April, 2014.

2015 M L D 840

[Sindh]

Before Irfan Saadat Khan, J

SHAH AMEER MUJTABA---Petitioner

versus

XX CIVIL AND FAMILY JUDGE, KARACHI (EAST) and 3 others---Respondents

Constitutional Petition No.1394 of 2012, decided on 6th May, 2013.

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

----S. 5, Sched, Ss.17-A & 14---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Interim maintenance for minor, fixation of---Requirements---Interlocutory order---Purpose and scope---Family Court had jurisdiction to fix interim maintenance by looking at financial condition of father---Family Court was bound to look into the earning capacity of father for fixing interim maintenance in a fair and reasonable manner---Purpose and object of interlocutory order was to give a temporary relief to a party to redress financial constraint faced by the minors---Interlocutory orders passed by the Family Court were not appealable---Such order should not be perverse or based upon conjectures and surmises---Family Court should exercise such power in a rational manner to fix interim maintenance---Question with regard to fixation of maintenance allowance was a factual controversy which could not be resolved while exercising constitutional jurisdiction---Family Court had exclusive jurisdiction to assess the maintenance allowance which had been rightly exercised in the present case---Constitutional petition was not maintainable which was dismissed in circumstances.

Saghir Ahmad Naqvi v. Province of Sindh 1996 SCMR 1165; Abrar Hussain v. Mehwish Rana PLD 2012 Lah. 420; 2009 MLD 791; Aamer Mehmood Hussain v. Naeha Aamer Sayed 2011 MLD 1105; Muhammad Irfan v. Judge, Family Court, Sargodha 2008 CLC 585; K.M. Asaf v. Abdullah PLD 1976 Lah. 158; Muhammad Ali v. Judge Family Court, Depalpur 2010 YLR 520; Ch. Muhammad Bashir v. Mst. Ansarun Nisa 2012 MLD 1394; Yaqoob Ahmed v. Mst. Shaista 2008 CLC 654; Faisal Hanif v. Baby Mahnoor 2002 CLC 1754; Muhammad Arif Butt v. Deputy Commissioner/Collector, Gujranwala 2005 YLR 1604; Zafar Hussain v. Begum Farzana Nazli, and others PLD 2004 Lah. 439 and M. Saleem Ahmad Siddiqui v. Sabira Begum 2001 YLR 2329 ref.

Shahjehan and others v. Syed Amjad Ali Hawaldar 2000 SCMR 88 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Factual controversy could not be resolved by High Court while exercising constitutional jurisdiction.

Mustafa Safvi for Applicant.

Ch. Atif Rafiq for Respondents.

Date of hearing: 30th April, 2013.

2015 M L D 857

[Sindh]

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

BILAL RASHID---Petitioner

versus

IVTH SENIOR CIVIL JUDGE, KARACHI (EAST) and 3 others---Respondents

Constitutional Petition No.D-794 of 2011, decided on 8th August, 2014.

Civil Procedure Code (V of 1908)---

---O. XXI, R. 58---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Attachment of property---Execution proceedings---Sale of attached property---Objections---Scope---Judgment debtor failed to pay decretal amount and sale proclamation was directed to be issued---Petitioner moved an application that property in question was owned by him but same was dismissed by the Executing Court---Validity---Order with regard to attachment of property had attained finality---Application filed by the petitioner to become party in the execution proceedings was rightly dismissed; he had not challenged any of the orders before the forum provided under the law---Petitioner had deposited the decretal amount when executing court was about to issue proclamation and thereafter challenged the order of deposit which was voluntarily made by him before the Executing Court---No good cause for interference with the order of executing court, by High Court had been made out---Petitioner had failed to give any plausible explanation for skipping the forum to challenge such orders and directly approaching the High Court---Constitutional petition was dismissed in circumstances.

Saadat Yar Khan for Petitioner.

Qamar-ul-Islam for Respondent No.2.

Mustafa Maheser, A.A.-G. the State.

Iqbal Ahmed Soomro, State Counsel.

2015 M L D 881

[Sindh]

Before Abdul Rasool Memon, J

RAHOO alias BHURO---Applicant

versus

The STATE---Respondent

Criminal Revision Application No.S-39 of 2009, decided on 15th May, 2014.

Pakistan Arms Ordinance (XX of 1965)---

----S. 13(d)---Possessing unlicensed arms---Appreciation of evidence---Both complainant and prosecution witness, had fully supported the recovery of weapon from accused; their statements were consistent and reliable, and there was no reason to discard their testimony---Counsel for accused remained unable to show any background of bitterness or ill will between accused and the Police, so as to prompt the Police to falsely involve accused in the case---Police Officials were as good witnesses as any other citizens, unless any mala fide was established against them---Deposition of such witnesses could not be brushed aside simply on the bald allegation that they belong to the Police Department---Generally, persons of locality hesitate to become witness in such like cases---Mere fact that no independent and disinterested witness from public had been associated with the proceedings, by itself, could not be considered sufficient to render the recovery of arm doubtful---In absence of any illegality or infirmity in the impugned order, conviction and sentence recorded by court below, were maintained.

Abdul Ghaffar Korai for Applicant.

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

2015 M L D 886

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD SHAKEEL---Applicant

versus

The STATE---Respondent

Bail Application No.423 of 2014, decided on 31st March, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.395 & 34---Dacoity, common intention---Bail, refusal of---F.I.R., though was delayed approximately by 12 hours, but the complainant had furnished cogent reason in that respect---Accused, should not be benefited of the delay due to non-mentioning of the name of any of the culprits of the crime by the complainant---Accused had not produced any documentary proof in respect of his claim that he was running iron scrap shop having business relations with the complainant as complainant was not dealing with the business of iron scrap---Accused having been arrested on the pointation of the complainant, no necessity had arisen to arrange his identification test through the complainant---No private person of the area come forward to become witness, due to risk of life at the hands of the culprits---Accused having failed to make out a case for grant of bail, his bail application was dismissed.

2005 PCr.LJ 531; 2006 YLR 3167 and 2012 MLD 707 distinguished.

Arshad Khan for Applicant.

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

Date of hearing: 31st March, 2014.

2015 M L D 907

[Sindh]

Before Salahuddin Panhwar, J

MARVI through her father---Petitioner

versus

1ST CIVIL JUDGE AND JUDICIAL MAGISTRATE, DADU and 3 others---Respondents

Constitutional Petition No.S-526 of 2014, decided on 24th July, 2014.

Dissolution of Muslim Marriages Act (VIII of 1939)---

----S.2---Muslim Family Laws Ordinance (VIII of 1961), S.13---Constitution of Pakistan, Art.199---Constitutional petition---Age of marriage of girl---Petitioner girl assailed raid conducted by authorities whereby her marriage ceremony was stopped on the ground that she was of minor age---Validity---Event of marriage is always an event of honour of family particularly, when it is being solemnized without an attempt to keep it secret, therefore, all authorities, otherwise, are entitled to question validity thereof, should strictly act keeping this aspect in mind and should not act in a manner prejudicial to the honour of such family or girl---Authorities should try to first satisfy itself about genuineness of information and then to decide whether to proceed or otherwise because if at the end of the day information is found false or causeless there would be nothing to compensate the loss, sustained by the family complained against---Police officials acted in blind manner by directly causing a 'raid' to stop marriage---Even Magistrate fell in error while not making inquiry towards puberty of petitioner and even not got medical opinion in that respect when girl was claiming to be the age of 15 / 16 years and a consenting party to marriage which was the requirement---Petition was allowed accordingly.

Hafiz Abdul Waheed v. Asma Jehangir PLD 2004 SC 219; PLD 1983 FSC 9; Mulla's Principles of Muhammadan Law and Mauj Ali v. Syed Safder Hussain 1970 SCMR 437 rel.

Miss Parveen Chachar for Petitioner along with Petitioner.

Shahid Shaikh, A.P.G. for the State along with S.H.O., Ghulam Hyder, Police Station Drigh Bala.

2015 M L D 925

[Sindh]

Before Abdul Maalik Gaddi, J

MUHAMMAD RAMZAN and another---Applicants

versus

The STATE---Respondent

Miscellaneous Application No.1668 of 2014 in Criminal Appeal No.S-24 of 2014, decided on 17th July, 2014.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), Ss. 395 & 452---Dacoity and house trespass---Sentence, suspension of---Consent of complainant---Accused persons were convicted under Ss. 395 & 452, P.P.C. for imprisonment for seven years and five years respectively---Validity---Deeper appreciation of evidence could not be undertaken at such stage---Complainant and eyewitnesses who were present in Court extended their no objection in shape of affidavits to suspension of sentences awarded to accused persons and their release on bail---Sentences were suspended in circumstances.

Ghulam Nabi and others v. The State 1995 PCr.LJ 1606; Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and 2 others 1998 SCMR 466 and Siraj and 2 others v. The State 2013 PCr.LJ 398 ref.

Bakhshan Khan Mahar for Applicants.

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

2015 M L D 951

[Sindh]

Before Syed Saeeduddin Nasir, J

Mst. SAADIA ABDUL SHAKOOR---Plaintiff

versus

Miss. NADIA CHOUDHRY---Defendant

Civil Suit No.385 of 2011, decided on 5th December, 2014.

Specific Relief Act (I of 1877)---

----Ss. 42, 39, 54 & 56---Suit for declaration, cancellation and perpetual injunction---Neither husband of plaintiff was owner of suit property nor he was competent to make any pronouncement with regard to such property---Plaintiff had no legal character to maintain the present suit as no cause of action ever accrued to her for filing of the same---Present suit was barred by Sections 42, 54 and 56 of Specific Relief Act, 1877---Suit was dismissed and plaintiff was directed to hand over all the original documents of suit property for delivery of the same to the defendant.

Raza Muhammad Raza for Plaintiff.

None for Defendant.

Date of hearing: 5th December, 2014.

2015 M L D 965

[Sindh]

Before Salahuddin Panhwar, J

Dr. DILNAWAZ RAFI SHAIKH and 3 others---Plaintiffs

versus

RIYAZ UR RAHIM and 3 others---Defendants

Suit No.607 of 2012, decided on 8th September, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11, O. VI, Rr. 14 & 15 & O. III, R. 2---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Plaint, rejection of---Scope---"Term barred by law "occurring in O.VII, R.11(d), C.P.C.---Scope---Defective plaint---Rectification---Scope---Contention of defendants was that plaint had neither been signed nor verified by the authorized person---Validity---Procedural formality or requirement could be allowed to be rectified if same were not restricted by law or had created certain legal rights in claim of rival party---Clause (b) and (c) of O. VII, R. 11, C.P.C. were with regard to procedural requirements---Plaint should not be rejected due to such situation unless plaintiff had failed to make compliance despite specific direction---Plaint failing to spell out a cause of action or being barred by law should be rejected under Cl. (a) or (d) of O. VII, R. 11, C.P.C.---Term 'barred by law' should not be available where there was a technical error, defect or irregularity which even if allowed to be corrected would not cause prejudice to other side rather same would make things straight for proper adjudication---Provisions of O.VI, Rr. 14 & 15, C.P.C. were directory in nature as no penal consequences in the event of failure to make compliance of such provisions had been provided---Object of such provisions was to make clear for the other party as to what was based on personal information of person, signing and verifying or what he had believed to be true---Procedural provision which carried no penal consequence could not result into considering the same as 'incurable'---Omission to verify or defective verification was a mere irregularity not affecting the merits which could be cured at subsequent stage---Curable irregularity should not be confused with the term 'barred by law'---Defective plaint with regard to power of attorney could be rectified by the principal---Plaintiff had placed on record the copy of power of attorney and he had rectified and reaffirmed the status of the person who had signed and verified the pleadings; defect if any, which had caused no prejudice to the defendants stood complied with---Mere irregularity with regard to compliance of O. VI, Rr. 14 & 15, C.P.C. would not bring a case within meaning of Cl. (d) of O. VII, R. 11, C.P.C.---Application for rejection of plaint was dismissed in circumstances.

2009 MLD 538; 2005 CLC 269; 1997 CLC 795; 1987 CLC 1366; PLD 1987 Lah. 392; 1995 CLC 896; PLD 1984 AJ&K 1; 2004 CLC 389; PLD 2000 Lahore 168; 2001 MLD 988; PLD 1999 Kar. 260; 2005 CLC 610; 2007 MLD 54; PLD 1985 SC 341; PLD 2003 Pesh. 40; 1989 CLC 310; 1995 CLC 1541; PLD 2005 SC 705; NLR 2005 Civil 556; 1994 CLC 2413; 2007 CLC 404 SC (AJ&K); PLD 1989 Pesh. 185; PLD 1969 Kar. 210; 1999 MLD 2202; PLD 1975 SC 678; PLD 2010 Kar. 158; 1982 CLC 1275 and PLD 1973 Lah. 33 ref.

PLD 2010 Kar. 158; Ismail v. Razia Begum 1981 SCMR 687 and Rajab Ali v. Messrs Gujrat Bus Service Karachi PLD 1961 Kar. 486 rel.

Saleemuz-Zaman and Muhammad Ali Jan for Plaintiff.

Farooq Hashim for Defendants Nos. 1 ad 2.

Saleemuz-Zaman for Defendants Nos. 3 and 4.

Date of hearing: 26th August, 2014.

2015 M L D 992

[Sindh]

Before Salahuddin Panhwar, J

ZAHEER AHMED---Applicant

versus

The STATE---Respondent

Criminal Bail Application No.S-491 of 2013, decided on 22nd July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-Amd---Bail, grant of---Opinion of police---Second investigation---Deeper appreciation of evidence---Record showed that deceased received only one injury but allegation of firing against accused was also there---Plea of alibi and claim of presence of one witness to be at police station (not at place of incident) had been brought on record through course of second investigation---Validity---Second investigating officer attempted to create smoke screen in order to hide some facts in favour of accused---Such opinion of police was not of binding nature nor it was proper to examine legality of such document as it would amount to deeper appreciation of evidence, which was not permissible under law---Sufficient material, prima facie, was available linking accused with commission of offence with which he stood charged---Bail was refused in circumstances.

1980 SCMR 784; 1997 SCMR 251; 2009 YLR 472; PLD 2014 SC 458 and 2004 SCMR 864 ref.

Amjad Ali Sahito for Applicant.

Shahid Shaikh, A.P.G. for the State along with I.O./S.I.P. Muhammad Saleem Arain.

Date of hearing: 22nd July, 2014.

2015 M L D 1077

[Sindh]

Before Salahuddin Panhwar, J

ABDUL WAHAB---Petitioner

versus

MUHAMMAD NAFEEZ through L.Rs. and 2 others---Respondents

Constitutional Petition No.S-33 of 2014, decided on 29th September, 2014.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Conditions---Personal bona fide need of landlord---Default in payment of rent---Good faith---Scope---Tenancy agreement between the parties for a period of 11 months was on record---Tenant was paying rent amount to the landlord without renewal of such agreement---Tenant continued to deposit the rent amount in the court after dispute---Landlord could seek eviction where default or breach was on the part of tenant---Burden was upon the owner of the premises to establish/prove such breach or default---Tenant was bound to disprove such breach or default which had come forward by placing undeniable material/fact---Landlord could not rent out the premises to some other on high rent or choice after getting eviction of tenant---Good faith would continue till the one from his/her conduct and attitude had proved otherwise---Nothing was on record to dislodge the stand of landlord with regard to his personal bona fide need---Owner of premises could not be kept out of his/her right to use his own property for his/her personal use in good faith---Appellate Court had allowed the eviction petition while assigning the reasons and directed the tenant to hand over peaceful possession of premises to the landlord within 60 days---Claim of landlord that premises was required for personal use had not been disproved by the tenant---No illegality had been pointed out in the impugned judgment passed by the Appellate Court---Tenant might apply for possession of demised premises if landlord did not use the same for his personal use after getting the possession or rented out the said premises to some other person---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art.199---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court in matters under Sindh Rented Premises Ordinance, 1979 was limited and High Court could not sit as a court of appeal or revision on the question of findings of facts---High Court, while exercising constitutional jurisdiction could only interfere when a wrong or illegal conclusion had been drawn by the courts below.

Haji Muhammad Saeed v. Mst. Bano begum 2012 CLC 1195; Muhammad Arshad v. Syed Ali Hussain Rizvi and 2 others 2013 CLC 1129 and Messrs Victoria Furniture Mart v. State Life Insurance Corporation 2013 CLC 1541 rel.

Noor Ahmad Memon for Petitioner.

Riazuddin Qureshi for Respondents.

Ashfaque Nabi Qazi Assistant A.G.

Date of hearing: 29th September, 2014.

2015 M L D 1117

[Sindh]

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

MUMTAZ alias LALOO---Appellant

versus

The STATE---Respondent

Criminal Jail Appeal No.D-55 of 2011, decided on 24th May, 2013.

Penal Code (XLV of 1860)---

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Pakistan Arms Ordinance (XX of 1965), S. 13-D---Act of terrorism, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duty, common intention and possession of unlicensed arms---Appreciation of evidence---Allegation against the accused was that he along with co-accused fired upon the complainant party (police) with intention to kill them---Trial Court convicted the accused and the co-accused were acquitted----Other case was decided by the Trial Court wherein the accused persons were acquitted from the charge of abduction of abductee who was recovered during the incident of the present case as the abductee had not supported the prosecution version and he had not identified the accused persons before the Trial Court during trial and abductee had not been examined by the prosecution---None from either party received injury nor any bullet hit to the vehicle or recovered car from which abductee was recovered---Prosecution had failed to prove its case and Assistant Prosecutor General conceded the facts that the recovered weapon had not been proved against the accused and ingredients of S. 324, P.P.C. were missing in the present case and when two main offences were not proved by the prosecution, the evidence on the remaining offences became doubtful---Prosecution did not prove the charge against the accused beyond any shadow of reasonable doubt---Present case became doubtful as no evidence was brought against the accused in the abduction case and prosecution had failed to prove charge against the accused regarding attempt to commit murder of the complainant party (police) and deterring them in discharge of their duties---Prosecution had failed to prove the recovery of crime weapon from the possession of the accused which had not been sent to the ballistic expert in order to ascertain its working condition, so failed to prove terror or sense of fear in the society---Reasonable doubt had been created in the prosecution case and benefit of doubt went in favour of the accused as matter of right---Appeal was allowed and impugned judgment was set aside and accused was acquitted from the charge.

Ayaz Husain Tunio for Appellant.

Shahid Ahmed Shaikh, Assistant Prosecutor General for the State.

Date of hearing: 21st May, 2013.

2015 M L D 1133

[Sindh]

Before Nazar Akbar, J

MUHAMMAD ASHFAQ ARAIN---Plaintiff

versus

MUHAMMAD ISHAQUE KHAN---Defendant

Suit No.1575 of 2010, decided on 12th January, 2015.

Specific Relief Act (I of 1877)---

---Ss. 42 & 8---Suit for declaration, possession and damages---Present suit was filed to obtain a conflicting judgment with regard to same property between the same parties---Plaintiff had deliberately over-valued the suit property and included a frivolous claim of damages which he did not try to prove even at ex parte trial---Plaintiff could not establish his claim by cogent and convincing evidence---Proof of ownership of plot was not enough to prove ownership of building standing thereon as other occupant was none other than his own brother---Defendant was in possession on suit property---Present suit had been filed after the lapse of 25 years of legal notice when plaintiff was requested for recovery of half portion of suit property---Defendant had already filed his claim---Plaintiff had obtained ex parte orders against the defendant by manipulation---Plaintiff had withheld the best evidence available with him and he had suppressed the facts---Issue of ownership was already subjudiced before competent court in a suit prior in time---Plaintiff had attempted to obtain ex parte order on the same issue---Suit was dismissed with cost.

Muhammad Qutubuzzaman for Plaintiff.

Defendant in person.

Date of hearing: 17th October, 2014.

2015 M L D 1156

[Sindh]

Before Aqeel Ahmad Abbasi and Abdul Maalik Gaddi, JJ

Hafiz MUHAMMAD ASLAM---Petitioner

versus

PROVINCE OF SINDH through Secretary Government and 16 others---Respondents

Constitution Petition No.D-2589 of 2011, decided on 21st July, 2014.

Constitution of Pakistan---

----Art. 199---General Clauses Act (X of 1897), S. 24-A---Specific Relief Act (I of 1877), S. 39---Constitutional petition---Lease of land---Cancellation---Requirements---Contention of petitioner was that lease was granted in his favour for 30 years but same had been cancelled and land had been resumed by the Government---Validity---Lease for 30 years was granted in favour of petitioner by the Government and he took possession of land in question after making payment of requisite charges by complying all the codal formalities---Neither any show-cause notice was issued or served upon the petitioner nor any opportunity of hearing was provided by the respondent-Government to enable the petitioner to explain his position with regard to the allegations of having violated the terms and conditions of lease---Neither the alleged report was prepared in presence of petitioner nor he had been confronted with such adverse report---Impugned order was false and baseless which was not sustainable in the eyes of law---Leasehold rights of a lessee who had not violated the terms of lease or grant could not be cancelled unless requirements of S. 39 of Specific Relief Act, 1877 were fulfilled or declaration for cancellation of such document of lease was sought from competent court of jurisdiction---Impugned order was illegal which had been issued in violation of principles of natural justice as no opportunity of hearing had been provided to the petitioner before passing the said order---Said order did not contain any valid reason and same was violative of provisions of S.24-A of General Clauses Act, 1897 and was not sustainable which was set aside---Petitioner would be entitled to enjoy the benefit of lease till its expiry, however Revenue Authorities were directed to refund the amount which was paid by the private respondents within a reasonable period or compensate by alternate allotment of land on lease---Constitutional petition was disposed of accordingly.

Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others PLD 2002 SC 303; Messrs Siddiq Textiles Ltd. v. Board of Revenue, Punjab 1989 MLD 3485; Bakhtawar v. Amin 1980 SCMR 89; Syed Iqbal Ahmad Gilani v. Government of Punjab 2001 YLR 1716; Muhammad Amin v. Allana PLD 1988 Rev. 29; Government of the Punjab v. Hudabia Textiles Mills, Faislabad 2001 SCMR 209; Abdul Majeed v. Muhammad Subhan 1999 SCMR 1245; Kaley Khan v. Member Board of Revenue (Colonies), and others 1989 MLD 2187; Dewan Petroleum (Pvt.) and others v. Government of Pakistan and others 2010 CLD 988; Engro Fertilizers Limited v. Islamic Republic of Pakistan and Federation of Pakistan, Islamabad and others PLD 2012 Sindh 50; Haji Haroon Mandrah and another v. Abdul Rahim and others 2001 CLC 1312; Manther and others v. Member (Relief and Settlement) Board of Revenue Sindh, and others 1986 MLD 694; Rehmat Khan, and others v. MBR (Colonies), and others 1992 CLC 1536; Saifur Rehman v. Muhammad Ayub NLR 2000 Civil 333 and Messrs Airport Support Services v. The Airport Manager, Quid-e-Azam International, Airport, Karachi 1998 SCMR 2268 ref.

Mst. Hamida Begum v. Mst. Murad Begum PLD 1975 SC 624; The Majlis-i-Intizamia, Jamia Masjid v. The Secretary to Government of Pakistan PLD 1975 SC 355 and Mrs. Zaibunnisa v. KDA and others PLD 1998 Kar. 348 rel.

Khawaja Shams-ul-Islam for Petitioner.

Yawar Farooqi and Irfan Memon for Respondents Nos. 7 and 15.

Aamir Mansoob Qureshi for Respondent No.16.

Ahmad Pirzada for Board of Revenue.

Saifullah, A.A.G.

Date of hearing: 21st May, 2015.

2015 M L D 1191

[Sindh]

Before Nazar Akbar, J

Malik MUHAMMAD RIAZ and another---Plaintiffs

versus

Mrs. FARHAT IMRANA and another---Defendants

Suit No.1709 of 2014, decided on 9th January, 2015.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 56 (a) & (b)---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Cantonments Rent Restriction Act (XI of 1963), S.17(2)---Suit for declaration and permanent injunction---Tenancy agreement---Temporary injunction, grant of---Scope---Plaintiff had sought restraining orders against the defendant from claiming any rent of suit property from him and restraining of relevant proceedings pending in the other court---Validity---Plaintiff was bound by the terms and conditions of tenancy agreement---Plaintiff would become illegal occupant of the premises if he denied rent of the same---Illegal occupant of immovable property could not restrain the owner from recovery of possession of said property by application of law---Plaintiff had no prima facie case to maintain injunction against the proceedings of Rent Controller in accordance with law---Application for grant of temporary injunction was dismissed in circumstances.

Ismail Brothers v. Keval Ram PLD 1981 SC 545; Ghulam Rasul and others v. Hajan Bakhtawar and another 1981 SCMR 193 and Mst. Popalzai v. The District and Sessions Judge, Karachi 1984 CLC 630 ref.

Ismail Brothers v. Keval Ram PLD 1981 SC 545; Ghulam Rasul and others v. Hajan Bakhtawar and another 1981 SCMR 193 and Mst. Popalzai v. The District and Sessions Judge, Karachi 1984 CLC 630 distinguished.

Plaintiff No.1 in person.

Muhammad Ali Waris Lari for Plaintiff No.2.

Sabir Shah holding brief Salahuddin Khan Ganda Pur for Defendant No.1.

Muhammad Aslam Choudry (absent) for Defendant No.2.

Date of hearing: 6th January, 2015.

2015 M L D 1197

[Sindh]

Before Zafar Ahmed Rajput, J

MUBASHIR PESH IMAM---Plaintiff

versus

FEDERATION OF PAKISTAN through Secretary and 2 others---Defendants

Suit No.174 of 2004, decided on 19th September, 2014.

(a) Customs Act (IV of 1969)---

----S. 217---Protection against any legal proceedings---Pre-conditions---Protection provided by S. 217 of Customs Act, 1969, is conditional upon their having acted in good faith---Mala fide act is not protected under S. 217 of Customs Act, 1969---Ouster of jurisdiction can be claimed when action in question is focused to be within four corners of statute under which it is taken.

Federation of Pakistan v. Saman Diplomatic Bonded Warehouse 2004 PTD 1189 rel.

(b) Customs Act (IV of 1969)---

----S. 156 (1)(89)---Specific Relief Act (I of 1877), Ss. 10, 42 & 54---Suit for recovery of specific movable property, declaration, injunction and damages---Show-cause notice, assailing of---Confiscation of goods---Plaintiff was aggrieved of ceasing of betel nuts owned by him and had also assailed show cause notice issued by customs authorities intending to confiscate the nuts under S. 156(1)(89) of Customs Act, 1969---Validity---Plaintiff had successfully proved his case that he had legally purchased 42260 kilograms of betel nuts, which were lawfully imported and Sales tax was also duly paid thereon but customs authorities illegally and unlawfully seized the same---Plaintiff had also claimed an amount against authorities severally and / or jointly, by way of damages for causing serious mental torture and bad name to him from the date of filing of suit till satisfaction of decree---Suit was decreed accordingly.

(c) Damages---

----Special and general---Proof---Person claiming special damages has to prove each item of loss with reference to evidence brought on record---For general damages relating to mental torture, anguish, distress and defamation, those are to be assessed following the Rule of Thumb---Such exercise falls in discretionary jurisdiction of Court which has to decide same in facts and circumstances of each case.

Abdul Majid Khan v. Towseen Abdul Haleem and others 2012 CLD 6 and Malik Gul Muhammad Awan v. Federation of Pakistan through Secretary Finance and others 2013 SCMR 507 rel.

Basil Nabi Malik for Plaintiff.

Nemo for Defendants.

Date of hearing: 5th August, 2014.

2015 M L D 1238

[Sindh]

Before Syed Muhammad Farooq Shah, J

MOHAN MENGHWAR---Appellant

versus

The STATE---Respondent

Cr. Jail Appeal No.S-429 of 2010, decided on 18th December, 2012.

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

----Ss.392 & 394---Robbery, voluntarily causing hurt in committing robbery---Appreciation of evidence---Neither prosecution witness had been examined, nor Medico-legal Officer appeared to produce the Medico-legal certificate---Motive set up by the prosecution in the case was not such that it could necessarily be viewed alone in favour of prosecution---Prosecution could not use the motive part of the story to corroborate the ocular account---Background of enmity between the parties had been suppressed---Accused had served almost more than half of the awarded sentence, though no sufficient corroboratory evidence was brought by the prosecution on record to award him conviction---Trial Court had not only misread the evidence, but also incorrectly exercised its jurisdiction by placing undue reliance on some extraneous considerations and had pronounced judgment in a haphazard manner---Trial Court was supposed to be aware of the legal implications of the case while awarding conviction to a person who had been behind the bars for more than three years, excluding remissions---Judgment in question suffered from legal infirmities and lacunae---Prosecution had failed in bringing on record sufficient evidence, whereby guilt of accused and his active participation in the commission of offence was established---Conviction of accused could not be recorded merely on probabilities and presumption, and prosecution had to prove its case beyond any shadow of doubt, which it had failed to do---Conviction and sentence awarded to accused were set aside and was directed to be released, in circumstances.

Sohail Amjad v. The State 1986 SCMR 1482 ref.

(b) Criminal trial---

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

(c) Criminal trial---

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

Miss Nasira Shaikh for Appellant.

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

Date of hearing: 18th December, 2012.

2015 M L D 1251

[Sindh]

Before Mushir Alam, C.J. and Sadiq Hussain Bhatti, J

DEWAN MUSHTAQ MOTOR CO. (PVT.) LTD.---Appellant

versus

UMAIR BIN ZAHID and 7 others---Respondents

H.C.A. No.53 of 2010, decided on 2nd April, 2014.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance---Interim relief, grant of---Scope---Whether relief granted to plaintiff in a suit for specific performance was interim or final relief---Booking agreement dated 14-4-2008 between plaintiffs and defendant-company for purchase of a vehicle---Under the said agreement defendant-company was to deliver the vehicle to plaintiffs within 90 to 120 days ("Period of delivery")---Customs duty on vehicle in question was increased on 2-9-2008---Defendant-company refused to deliver the vehicle unless plaintiffs paid the increase in price of vehicle on account of increase in customs duty---Plaintiffs refused to pay the newly imposed duty and filed a suit for specific performance contending that they were not bound to pay the increased duty as according to the agreement vehicle ought to have been delivered within the "period of delivery" (i.e. on or before 20-8-2008), therefore they were not liable to pay the newly imposed duty on 2-9-2008---Defendant-company contended that after vehicle had been booked, plaintiffs changed their selection of model for the vehicle on 6-6-2008, thus period of delivery was to be counted from 6-6-2008---Single Judge of High Court by way of interim relief directed defendant-company to hand over possession of vehicle to the plaintiffs---Plea of defendant-company was that direction to hand over vehicle to plaintiffs amounted to final relief---Validity---Questions to be decided in the suit after recording of evidence were as to what model of vehicle was initially booked; whether booking was made on 14-4-2008 or at any other date, and whether plaintiffs were liable to pay the increase in price of vehicle on account of increase in customs duty---Direction by Single Judge of High Court to hand over delivery of vehicle to plaintiffs was not final relief as the main relief claimed by plaintiffs was that they were not liable to pay the increased customs duty as the same was increased after the "period of delivery"---Main relief with regard to increase in price of vehicle due to increased customs duty was yet to be decided, therefore, impugned order of Single Judge of High Court did not call for any interference---Intra-Court appeal was dismissed accordingly.

Zeeshan Adhi for Appellant.

Kh. Shamsul Islam for Respondents Nos. 1 and 2.

Hussain Bohra for Respondent No.3.

Asad Rizvi for Respondents Nos. 7 and 8.

Date of hearing: 22nd March, 2013.

2015 M L D 1259

[Sindh]

Before Riazat Ali Sahar and Zafar Ahmed Rajput, JJ

SADARUDDIN alias SADORO and others---Appellants

versus

The STATE---Respondent

Cr. Appeal No.D-17, Crl. Jail Appeals Nos. 19 and 20 of 2013, decided on 12th September, 2013.

Penal Code (XLV of 1860)---

----Ss. 324, 353, 399, 402, 148 & 149---Pakistan Arms Ordinance (XX of 1965), S.13---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, making preparation to commit dacoity, assembling for purpose of committing dacoity, rioting---Possessing unlicensed arms, act of terrorism---Appreciation of evidence---Prosecution had not been able to prove its case against accused---Trial Court had not appraised the evidence while drawing the impugned conclusion---Alleged encounter between accused persons and Police party continued for half an hour, but none of the Policemen or accused was hurt in the encounter---Even Police Mobile parked there was also not hit by any bullet---No recovery of crime weapon was effected from the possession of accused persons---Prosecution witnesses had stated that they saw accused persons on the head light of Police mobile, but certainly the identification on the head light of the Police mobile was weak type of evidence requiring strong corroboration, but the same was badly lacking---Alleged recovered weapon being never sent to the Ballistic Expert, alleged recovery was of no consequence, and without ascertaining the nature of weapon, punishment could not be awarded under S.13 of Pakistan Arms Ordinance, 1965 and it was the Ballistic Expert who could ascertain the nature of weapon, and its condition being functional or not---Impugned judgment was lacking the ingredients of a judicial verdict for want of sound and valid reasons for arriving at the conclusion---Despite the absence of convincing positive evidence, accused were convicted, which in no circumstances could be sustained---Guilt against accused must rest surely and firmly on the evidence produced in the case, and plain inference of the guilt could irresistibly be drawn from the evidence---Prosecution had failed to bring the guilt home against accused up to the hilt---Conviction of accused persons being not warranted by law, judgment of conviction, was set aside, in circumstances.

Rahim Bux v. State 2010 PCr.LJ 642; Abdul Sattar and others v. The State 2002 PCr.LJ 51; Nazar Hussain v. The State PLD 2010 SC 1021; Shah Hussain v. The State PLD 2009 SC 460 rel.

Umrah Khan Yousufzai and Nisar Ahmed Bhanbhro for Appellants.

Sardar Ali Shah, APG for the State.

Date of hearing: 12th September, 2013.

2015 M L D 1269

[Sindh]

Before Aziz-ur-Rehman, J

TRADING CORPORATION OF PAKISTAN (PVT.) LTD.---Plaintiff

versus

NAVEED HASAN SHAH---Defendant

Suit No.459 of 1997, decided on 26th March, 2014.

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

----O. IX, R. 13, O.V, R. 20, Ss. 12(2) & 151---Sindh Chief Court Rules (O.S.) Rr. 129 & 140---Constitution of Pakistan, Art. 10-A---Application for setting aside of ex parte decree---Substituted service---Scope---Suit for rendition of accounts and recovery of amount, was decreed ex parte against defendant---Contention of defendant was, inter alia, that defendant at no stage had knowledge of the suit and was never served with a summons for the suit---Validity---Substituted service was not the ordinary way of service on a defendant and court had to be satisfied that there was reason to believe that the defendant was keeping out of the way for the purpose of avoiding service and that for any other reason, the summons could not be served in the ordinary way----Plaint of the plaintiff was initially struck off, and prior to its striking off, the plaintiff had failed and / or avoided to pay cost / process fee for issuing of summons and notices---Plaintiff did not take any steps to provide fresh address of defendant, though it was available, for effecting service and therefore, it could not be said that the defendant had deliberately avoided service , and for this reason the plaint was struck off---Subsequently after four and a half years, plaintiff filed application for setting aside of order whereby its plaint was struck off---After restoration of plaint, summons either was not issued to defendant or remained un-served---Publication was not issued as cost was not paid by the plaintiff----In application for substituted service under O. V, R. 20, C.P.C. plaintiff nowhere stated that defendant was keeping out of the way for avoiding service or that for any other reason, summons could not be served in the ordinary way----Article 10-A of the Constitution mandated that civil rights and obligations be adjudicated upon through a fair trial and due process of law---High Court set aside ex parte judgment and decree against defendant, and directed defendant to file written statement within a period of thirty days---Application was allowed, accordingly.

Muhammad Anwar, Advocate v. Shaikh Abdul Haq 1985 SCMR 1228; Messrs National and Grindlays Bank Ltd v. Arshad Ali Khalid Qureshi and another PLD 1990 Kar 436; Muhammad Tahir v. Emirates Bank International PJCC and another 1996 SCMR 1703; Shabir Ahmed v. Kiran Khursheed and others 2012 CLC 1236; Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235 and Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 rel.

Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062 and Muhammad Tufail and 3 others v. Ghulam Mustafa and 8 others 2001 MLD 436 distinguished.

Messrs China Beijing Corporation v. Ahmad Bakhsh Construction Co., and others 2011 SCMR 1745 and Mst. Aliya Masood v. Mrs. Mussarat Musaver and others PLD 1993 Kar. 676 ref.

(b) Administration of Justice---

----Things, under principles of jurisprudence, were required to be done strictly in accordance with law---Rules and regulations were meant to streamline the procedure and administer the course of justice---Courts of law should always prefer a decision on merits and discourage technical knockouts---Main purpose behind all legal formalities was to safeguard the paramount interest of justice, and not to thwart the same.

Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 rel.

(c) Constitution of Pakistan---

----Art. 10-A---"Fair trial" and "due process of Law"---Article 10-A of the Constitution mandated that civil rights and obligations be adjudicated upon through a "fair trial" and "due process" of law---Fair Trial and due process besides being fundamental rights, covered both sustentative and procedural due process.

Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235 and Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 rel.

Syed Ashfaq Hussain Rizvi for Plaintiff.

H.A. Rahmani for Defendant.

Date of hearing: 5th March, 2014.

2015 M L D 1313

[Sindh]

Before Aqeel Ahmed Abbasi, J

NASEERUDDIN and another---Petitioners

versus

Syed DAULAT ALI and 3 others---Respondents

Constitutional Petition No. S-575 of 2008, decided on 10th July, 2014.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Default in payment of rent---Subletting of tenement---Pagri, payment of---Good-will agreement---Scope---Contention of landlord was that tenant had sublet the premises in question without his consent and he had defaulted in payment of rent---Ejectment petition was dismissed by the Rent Controller but same was accepted by the Appellate Court---Validity---Petitioners had no privity of contract with landlord and they had claimed their entitlement and possession over the demised premises due to a subsequent good-will agreement executed between them and original tenant---Said good-will agreement did not refer to previous good-will agreement which was initially executed between landlord and tenant---Demised premises was sublet to the petitioners by the tenant without any authorization---Concept of sub-letting of a tenement without consent of landlord by the tenant to some other person was alien to the provisions of Sindh Rented Premises Ordinance, 1979---Title of an immovable property or the right of possession, other than of a recognized tenant if disputed, had to be decided by the civil court whereas Sindh Rented Premises Ordinance, 1979 would cater only to the disputes arising between the landlord and tenant with regard to rented premises---Default in payment of rent was on record---High Court could not dilate upon the validity of purported good-will agreement---Amount of pagri had no legal effect and same had no bearing on rent proceedings---Parties would be at liberty to seek resolution of such dispute by filing appropriate proceedings before proper court of civil jurisdiction in accordance with law---Original tenant had not challenged the impugned judgment passed by the Appellate Court---Petitioners were directed to hand over the vacant and peaceful possession of the demised premises within specified time---Constitutional petition was dismissed in circumstances.

Dip Narian Singh v. Nageshar Prasad and others AIR 1930 All 1; Babasaheb Rahimsaheb v. Raja Ram Raghunat Alpe AIR 1931 Bom. 264; Muhammad Khalilur Rehman Khan v. Mohammad Muzammilullah Khan AIR 1933 All 468; Haji Dawood v. Mst. Rahima Bai and another PLD 1980 Kar. 126; Mrs. Zehra Begum v. Pakistan Burmah-Shell Ltd. PLD 1984 SC 38; M.K. Muhammad v. Muhammad Aboobakar 1991 MLD 801; Nadeem Ahmed Mirza v. Mrs. Shah Sultana Begum and another PLD 1994 Kar. 177; Muhammad Ilyas v. Mst. Khursheed Begum 1989 CLC 506; Syed Mehmood Ali Shah v. Zulfiqar Ali PLD 2013 SC 364; Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99; Muhammad Aslam v. Hanif Abdullah and Brothers 2003 SCMR 1667; Raees Ahmed Pasha v. Kamaluddin 2004 MLD 587; Azizur Rehman v. Pervaiz Shah 1997 SCMR 1819; Almas Khan v. Mrs. Bano PLD 2009 Kar. 268 and The Hub Power Co. Ltd (HUBCO) v. Pakistan WAPDA PLD 2000 SC 814 ref.

Muhammad Aslam v. Hanif Abdullah and Brothers 2003 SCMR 1667; Azizur Rehman v. Pervaiz Shah 1997 SCMR 1819; Messrs M. Qasim v. Sharbat Khan 1992 MLD 1225; M.K. Muhammad and another v. Muhammad Abu Bakaar 1993 SCMR 200 and Saeed Muhammad v. Mehrullah and another PLD 1996 Quetta 48 rel.

Imran Ahmed, Advocate for Petitioners.

Muhammad Haseeb Jamali, Raheem Shah and Rasheed Ashraf, for Respondents.

Date of hearing: 17th February, 2014.

2015 M L D 1332

[Sindh]

Before Irfan Saadat Khan and Nadeem Akhtar, JJ

CHIEF ENGINEER, BUILDING AND ROAD DEPARTMENT, QUETTA---Appellant

versus

Messrs UMAR KHAN through Managing Partner---Respondent

High Court Appeal No.235 of 2010, decided on 21st May, 2014.

Arbitration Act (X of 1940)---

----Ss.19, 31 (4) & 39---Limitation Act (IX of 1908), S.5---High Court appeal---Award making rule of the Court---Condonation of delay---Principle---Matter between the parties was referred to sole arbitrator and Trial Court made the award as rule of Court---Appeal filed by authorities was barred by limitation and application for condonation of delay was filed---Validity---To seek concession of condonation and discretion of High Court in such behalf, appellant was duty-bound to explain delay of each and every day---Only explanation given by appellant was that matter was reserved for judgment by Judge in Chambers of High Court when no order was passed or announced in presence of law officer---Later on when law officer came to know that order had been passed, he applied for certified copy and filed appeal along with his personal affidavit stating therein that order in question was not passed in his presence---High Court had inherent power to exercise its discretion for condoning the delay, provided merits of the case so demanded---Delay could be condoned only when sufficient and strong cause was shown to the Court explaining delay of each and every day---For exercising such discretion, the Court was required to look into the facts and circumstances of each case, which could vary in each case---Government and public functionaries/agencies were not entitled to any preferential treatment in the matter of condonation of delay and they were to be treated on equal footing with ordinary litigant---With passage of time, valuable rights accrued in favour of opposite party should not be disturbed and destroyed---High Court declined to condone the delay caused in filing of appeal---Intra court appeal was dismissed in circumstances.

Government of Balochistan through Secretary Member, Board of Revenue and another v. Ghulam Muhammad and 4 others, 2001 SCMR 19 distinguished.

Project Director and another v. Nawab Brothers Ltd. 1982 CLC 1147; Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587; Muhammad Bashir and another v. Province of Punjab 2003 SCMR 83; Imtiaz Ali v. Atta Muhammad and another, PLD 2008 SC 462; Lahore Development Authority v. Messer Sea Hawk International (Pvt.) Ltd., Lahore, 2003 CLC 269 and Pakistan Handicrafts, Sindh Small Industries Corporation, Government of Sindh v. Pakistan Industrial Development Corporation (Pvt.) Ltd. and 2 others, 2010 CLC 323 ref.

Zahoor Ahmed Baloch, Additional Advocate General, Balochistan for Appellant.

Abdul Hafeez Lakho for Respondent.

Date of hearing: 21st May, 2014.

2015 M L D 1360

[Sindh]

Before Salahuddin Panhwar, J

SHAKEEL AIJAZ---Plaintiff

versus

Mst. SHAKEELA NASEEM and 8 others---Defendants

Civil Suit No.640 of 2009, decided on 23rd September, 2014.

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

----O.XXXIX, R.10---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Allegation that defendants had fraudulently sold the house of plaintiff's deceased father---Scope and object of O.XXXIX, R.10, C.P.C.---Words 'subject matter' in O.XXXIX, R.10, C.P.C.---Scope---Deposit of money etc. in court---Principle---Plaintiff filed application for direction to one of the defendants to deposit sale consideration of house in question to the extent of his share of inheritance from the property of his deceased father in the court---Validity---No 'admission' from defendants that they were holding money as trustee or that it belonged to the party---In absence of such admission, High Court declined to direct defendants for deposit of money---Application was dismissed in circumstances.

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

----O.XXXIX, Rr.1 & 2---Interim injunction---Prima facie case---Scope---First and prime condition of relief of interim injunction is 'prima facie case' which in its wider sense touches maintainability of suit---Term 'prima facie' is not complete unless the case does not appear to be entitled for a decree from its totality.

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

----Ss. 42 & 54---Partition Act (IV of 1893 ), S.4---Civil Procedure Code (V of 1908), O. VII, R.11 & O.XX, R.13---Suit for declaration, injunction, partition and administration---Interim injunction, grant of---Rejection of plaint---Administration of property---Plaintiff claimed that suit properties were owned by his deceased father and defendants had fraudulently sold the same---Validity---Scope of 'administration suit' was widened even to probe into title but such was made subject to the condition that it should revolve round 'sharer' only---Such was with the object to avoid multiplicity of lis but confining the scope to the extent of 'sharer' was sufficient to establish that nature and character of 'administration suit' was different from that of an ordinary civil suit (governed by Specific Relief Act 1877)---In an 'administration suit' final decree was to follow the result of inquiry within the meaning of O.XX, R. 13, C.P.C. while in an ordinary suit determination of rights and status was dependent upon a full-fledged 'trial'---Relief sought involved stranger and would cause effect upon registered document in favour of stranger, therefore, suit filed by plaintiff was out of the scope of 'administration suit' and even reliefs were governed under Specific Relief Act, 1877, it was proper and fair not only for plaintiff but also for defendants to establish their respective claims and entitlements through separate proceedings---Plaint was rejected in circumstances.

PLD 1975 SC 624; PLD 2011 Kar. 83; 2005 SCMR 471; 2004 YLR 3296; 2004 CLJ 742; 1996 CLC 1588, PLD 1989 Pesh. 67; PLD 2001 Lah. 390; PLD 1975 Kar. 978; PLD 2007 Lah. 518; 1989 MLD 4314; 1999 YLR 2209; PLD 2008 Kar. 540; PLD 1987 Lah. 654; Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others PLD 1962 SC 291 and PLD 2011 Kar. 281 ref.

Munir-ur-Rehman for Plaintiff.

Khawaja Shamsul-Islam for Defendants Nos. 1, 3, 5, 6 and 7.

Muhammad Iddrees Alvi for Defendant No.9.

Date of hearing: 26th August, 2014.

2015 M L D 1401

[Sindh]

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

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

versus

NUMAIR AHMED and 2 others---Respondents

High Court Appeals Nos.21 and 22 of 2000, decided on 9th March, 2015.

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

----S. 1---Suit for recovery of compensation amount---Fatal accident---Burden of proof---Maxim "Res Ipsa Loquitur"---Applicability---Scope---Damages, assessment of---Criteria---Initial burden to prove the circumstances of fatal accident which would identify the carelessness on the part of defendant (driver) lay on the plaintiff---Presumption of negligence in driving the vehicle would be against the driver once accident was admitted by him to have happened---No discrepancy, in the present case, was pointed out in the evidence of plaintiffs disentitling them to get the benefit of the decree which had already stood satisfied---Plaintiffs had supported the averments made in the plaint through their evidence---Occurrence of the incident had not been denied by the defendants in their written statement---Death of the deceased in the accident had not been denied by the defendants---Burden of proof in fatal accident cases would immediately shift from the plaintiff to the defendant where he had expounded his own version of accident---Occurrence of accident in which two persons had lost their lives had been admitted by the defendants in their written statement---Duty of the driver driving heavy vehicle had to be construed proportionately higher than the person who was either pedestrian walking on the road or a cyclist or motorcyclist going on his own side---Responsibility of the driver of the heavy vehicle to drive the vehicle with due care and diligence was heavier than the obligation of a cyclist or motorcyclist---Maxim "Res Ipsa Loquitur" was applicable in accident cases---When an accident had occurred and loss had suffered at the scene then same would bring out negligence of the defendant (driver)---Simple fact of accident causing loss of lives could be construed prima facie an evidence of negligence on the part of the defendant (driver) as against the pedestrian or a cyclist or motorcyclist---Plaintiff was to prove that death of the deceased had occurred due to an accident involving the vehicle which was being driven by the defendant---Nature and mode of the accident needed examination to determine that the accident had not occurred due to negligence or rashness of the driver---Plaintiffs had discharged their initial burden of proving the happening of the fatal accident causing death of the deceased by the driver at the relevant time---No hard and fast rule could be laid down nor a definite formula could be applied to assess the damages under Fatal Accidents Act, 1855---Simply guesswork to be undertaken with regard to expectancy of life of the deceased who had died in an accident and the resultant pecuniary loss suffered by his legal heirs---No infirmity or illegality had been pointed out in the impugned judgment---Appeal was dismissed in circumstances.

Pakistan Steel Mills Corporation Ltd. and another v. Malik Abdul Habib and another 1993 SCMR 848 rel.

(b) Maxim---

----"Res Ipsa Loquitur"---Meaning---Things speak for themselves.

Muhammad Aslam Butt, Deputy Attorney General for Pakistan (DAG) for Appellants.

Farrukh Usman and Aamir Maqsood for Respondents.

Date of hearing: 28th November, 2014.

2015 M L D 1415

[Sindh]

Before Nazar Akbar, J

Messrs NATIONAL MOTORS LTD.---Plaintiff

versus

GOVERNMENT OF PAKISTAN through Director General Defence Purchase, M/o Defence---Defendant

Suit No.637 of 1983, decided on 10th February, 2015.

Arbitration Act (X of 1940)---

----Ss. 30 & 33---Contract for supply of vehicles---Arbitration award in favour of defendant was remitted by the court with directions to the arbitrator to state reasons for the award, which direction was not complied with by the arbitrator---Defendant, during pendency of said arbitration proceedings, appropriated an amount lying with it, which amount was in consideration for another later contract between the parties---Plaintiff's present suit for recovery sought recovery of the said amount---Held, that the defendant's act of appropriation of amount in respect of the earlier contract from amount lying with the defendant under a contract was not justified nor lawful---Failure of defendant to pursue legal remedy for recovery of said amount once arbitration award was set aside by the court rendered the defendant liable to refund the said amount forthwith---Suit was decreed accordingly.

Syed Iqbal Ahmad for Plaintiff.

Ms. Tabassum Ghazanfar, Standing Counsel for Defendant.

Date of hearing: 10th December, 2014.

2015 M L D 1430

[Sindh]

Before Naimatullah Phulpoto and Gulam Sarwar Korai, JJ

SARFRAZ ALI SANGI---Appellant

versus

The STATE---Respondent

Criminal Appeal No.D-106 of 2012, decided on 11th October, 2013.

Penal Code (XLV of 1860)---

----Ss. 409, 468, 471 & 477-A---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by Public Servant or by banker, forgery for purpose of cheating, using genuine a forged document, falsification of accounts, corruption---Appreciation of evidence---Prosecution had proved its case against accused as the same was based upon documentary evidence---Despite lengthy cross-examination of the prosecution witnesses, nothing favourable to accused came on record---Complainant, who was Manager of Bank and other prosecution witnesses who were serving with accused at the time of alleged fraud, had also fully supported the case of the prosecution---Said witnesses had no motive to falsely implicate accused in the case---Mere plea of alleged political victimization raised by accused, was not substantiated by some cogent evidence, except the words of accused under S.342, Cr.P.C.---Accused absconded after registration of case---Handwriting/signatures of accused on deposit slips produced before the Trial Court, had shown that accused received cash from Account Holders---Accused having received embezzled amount as Bank employee, could not escape his liability---Handwriting expert had clearly mentioned that questioned signature on cheques/counterfoils were similar in characteristics with the corresponding previous routine signatures of accused---Evidence of the prosecution was trustworthy and confidence inspiring for which there was no reason to disbelieve---Prosecution having succeeded to establish its case against accused, findings recorded by the Trial Court, required no interference---Conviction of accused, was maintained, in circumstances.

Abdul Latif v. Inspector General of Police and others 1999 PCr.LJ 1357; Syed Qasim Shah v. The State 2009 SCMR 790; Riaz Ahmed v. The State 2010 SCMR 846 and Naimatullah Khan v. The State through Anti-Narcotics Force, Sindh 2012 YLR 251 ref.

Ghulam Mustafa and another v. The State 1986 PCr.LJ 1635 rel.

Muhammad Rafi for Appellant.

Muhammad Ashraf Mughal, D.A.G. for Respondent.

Date of hearing: 1st October, 2013.

2015 M L D 1461

[Sindh]

Before Hasan Feroze, J

ROSHNI TELEVISION, Messrs Direct Media Corporation (Pvt.) Ltd.---Appellant

versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman and others---Respondents

M.A. No. 52 of 2010 and C.M.A. No.2426 of 2014, decided on 30th May, 2014.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002), Ss.19 & 30-A---Issuance of license---Judgment and decree, setting aside of---Object and scope---Appeal filed by respondent was disposed on the offer made by Pakistan Electronic Media Regulatory Authority (PEMRA) to restore approval of television channel subject to deposit of Rs.5.7 million, however Authorities in application under S.12(2) C.P.C., assailed the order---Validity---Justice required that every cause once tried and finally adjudicated upon by competent forum must be deemed to be conclusive and binding on litigants and parties deriving title from them---Proceeding under S.12(2) C.P.C. was in the nature of declaratory suit, seeking declaration to the effect that decree passed by civil Court was result of fraud and misrepresentation and it was duty of Court to see whether same had been obtained by misrepresentation or fraud---Both the parties were agitating their respective claims as respondent claimed to have been deprived of his lawful and constitutional rights to acquire licence on the other hand PEMRA was asserting on technicalities more specifically on raising of its objection on audit report---Adjudication of main appeal challenging order of PEMRA could bring the controversy to its logical end---High Court directed appeal in question to come up for hearing on its original position---Application was allowed in circumstances.

AIR 1978 All. 313; 2001 SCMR 1984; 1999 SCMR 1714; 2006 YLR 641; 2001 SCMR 46; 2000 SCMR 296 and 1999 SCMR 1696 ref.

2004 CLC 1427; 1969 SCMR 306; 1998 SCMR 1462 and PLD 1973 SC 236 rel.

Appellant in person.

Kashif Hanif for Respondent No.1.

Date of hearing: 23rd May, 2014.

2015 M L D 1478

[Sindh]

Before Syed Muhammad Farooq Shah, J

GHULAM HYDER MANGI---Applicant

versus

SESSIONS JUDGE, BADIN and 2 others---Respondents

Cr. Rev. Appl. No.S-167 of 2013, decided on 21st January, 2014.

Criminal Procedure Code (V of 1898)---

----S. 540---Calling prosecution witnesses for further cross-examination---Scope---Section 540, Cr.P.C., had empowered the Trial Court to call or recall the witness at any stage of trial, if his testimony was considered relevant and necessary to reach at the just conclusion---Power to recall the witness under S.540, Cr.P.C., could not be exercised as a matter of routine, unless grave illegality or irregularity was shown to have been taken place---Trial Court, in the present case, while discussing all the pros and cons, reached at the conclusion that all the witnesses were cross-examined at length by the previous advocate for accused; and no sufficient ground had been shown for re-cross-examination of the witnesses; and the application for calling prosecution witnesses for further cross-examination, had only been made to fill up the lacunas, and to cause delay in trial of the case---Facts and circumstances of the case had revealed that by granting permission to re-cross-examine the witnesses, would amount to putting the witnesses on lengthy trial, and who had already suffered a lot due to murder of wife of the complainant---Application for calling the witnesses for re-cross-examination was dismissed in circumstances.

1992 PCr.LJ 1230 and 2000 PCr.LJ 372 ref.

PLJ 2004 SC 642 and 2001 PCr.LJ 370 distinguished.

Ghulam Sarwar Channdio for Applicant.

M. Sachal R. Awan for Complainant.

Syed Meeral Shah, D.P.G.

2015 M L D 1494

[Sindh]

Before Syed Saeed-ud-Din Nasir, J

UMER FAROOQ---Plaintiff

Versus

ATTOCK PETROLEUM LTD. through C.E.O. and 3 others----Defendants

Suit No.1459 of 2013, decided on 16th July, 2014.

Contract Act (IX of 1872)---

----S. 202---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Termination of agency---Grant of temporary injunction---Plaintiff had successfully participated in submitting tender for lease of land for Petrol and CNG Station and in anticipation of getting dealership for grant of lease he had paid earnest money---Lease Deed was executed for construction of Petrol Pump-cum-CNG station and dealership was promised to the plaintiff for the same---Plaintiff had acquired interest in the subject matter of suit which was the said land in terms of S.202 of Contract Act, 1872---Plaintiff must have put financial and other resources in order to obtain requisite "NOC" from different Government departments---Dealership was offered to the plaintiff subject to successful bidding of land in question---Plaintiff had succeeded in getting the bid approved of the land on which proposed filling station was to be constructed and he had paid heavy amount to procure the said lease---Proposed dealership had been withdrawn with immediate effect and without affording any opportunity to the plaintiff of being heard when he was in the process of obtaining requisite "NOC" for establishment and operation of a Petrol Pump-cum-CNG station---Defendants were restrained by High Court from issuing dealership, explosive certificate as well as approval for construction of building plan in favour of any third party and from creating third party interest with regard to dealership to plaintiff for establishment of Petrol Pump-cum-CNG station at the land which had already been leased out---Application for grant of temporary injunction was allowed in circumstances.

Muhammad Aref Effendi v. Egypt Air 1980 SCMR 588; Zubair Ahmed v. Pakistan State Oil Co. Ltd. PLD 1979 Kar. 112; Karachi Catholic Coop. Housing Society Ltd. v. Jawad Baig PLD 1994 Kar. 194; 2003 SCMR 50; PLD 2004 SC 860 and PLD 1958 West Pakistan (Lahore) 63 ref.

2003 SCMR 50; PLD 2004 SC 860 and PLD 1958 West Pakistan (Lahore) 63 distinguished.

Mushtaq Ahmed Memon and Irfan Aziz for Plaintiff.

Muhammad Umer Lakhani and Ayyan Mustafa Memon for Defendants Nos.1 and 2.

Date of hearing: 7th July, 2014.

2015 M L D 1525

[Sindh]

Before Nazar Akbar, J

PROVINCE OF SINDH through Collector and another---Appellants

versus

JAN MUHAMMAD through L.Rs. and another---Respondents

1st Civil Appeal No. 61 of 2010, decided on 17th September 2014.

Land Acquisition Act (I of 1894)---

----S. 18---Civil Procedure Code (V of 1908), O. XXVI, R. 9---Land acquisition---Reference to court---Appeal---Local commission, appointment of---Jurisdiction of High Court---Scope---High Court had no jurisdiction to entertain an application for appointment of commission for verification of land under Land Acquisition Act, 1894---Reference Court while exercising power under Section 18 of Land Acquisition Act, 1894 had been equated with an Executing Court and said court was not authorized to go behind the reference---Court hearing an appeal against the order of an Executing Court (Reference Court) could not go behind the decree (Reference) and enter into a dispute which should have been raised and decided before the final determination of compensation by the Collector---Application for appointment of local commission was dismissed in circumstances.

Government of West Pakistan v. Ahmed Ali Jan and others PLD 1981 SC 516; Government of West Pakistan (now N.W.F.P) and 2 others v. Mst. Asmatun Nisa and 6 others PLD 1983 SC 109 and State v. Zia-ur-Rehman PLD 1973 SC 49 rel.

Hamayoon Khan, Standing Counsel for Appellants.

Ashfaque Nabi Qazi, Asstt. A.G. for Respondent No.2.

Imran Qureshi for Respondent No.1.

2015 M L D 1546

[Sindh]

Before Ahmed Ali M. Shaikh and Salahuddin Panhwar, JJ

ABDUL HAKEEM MALAH---Appellant

versus

The STATE---Respondent

Cr. Jail Appeal No.D-42 and Confirmation Case No.3 of 2002, decided on 9th April, 2013.

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

----Ss. 302(b), 324, 34 & 337-F(v)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Pakistan Arms Ordinance (XX of 1965), S.13(e)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, causing Hashimah, act of terrorism, Haraabah, possessing unlicensed arms---Appreciation of evidence---Sentence, reduction in---Prosecution witness/complainant, who was real brother of deceased, having also received injury during the incident at the hands of accused persons, his presence at the spot at relevant time could not be disbelieved, but his veracity and truthfulness, had to be adjudged---Statement of sole eye-witness, inspiring confidence, even in a murder case, if found sufficient, could hold conviction---Deposition of complainant that he had seen the culprits while he was in senses during incident despite being injured, was also shouldered by other witnesses, who reached at the spot---Complainant had specifically picked accused during the course of identification parade---Substitution by blood relations at the cost of real culprit, was hard to be believed, more particularly, where it was a case of single accused and other witnesses had also identified accused in identification parade as well as in the court---Evidence of complainant to the extent of happening of the incident, injuries on the person of injured and on deceased stood corroborated by two other eye-witnesses of the incident---Defence had failed in bringing any thing on record which could least suggest that the witnesses were partisan or inimical towards accused, or they had motive or cause of their own to fit accused in place of real murderer of their own blood relations---Certain contradictions, in the present case, were not grave in nature and could safely be ignored---Judicial Magistrate, in recording judicial confession of accused, had taken all precautionary steps to ensure that said confession was recorded voluntarily and free from any threat, coercion or inducement---Such judicial confession, which was truly and voluntarily made, could be relied upon---Ocular account was supported by medical evidence---All pieces of evidence i.e. ocular, medical and recovery, were in one line and made out a chain of unbroken links---Conviction of accused was maintained, but in view of mitigating circumstances, sentence of death awarded to accused by the Trial Court, was altered into imprisonment for life, in circumstances.

Ghulam Rasool and others v. The State 1988 SCMR 557; Mehmood Ahmed and another v. The State 1995 SCMR 127; Kirir v. The State PLD 1996 Kar 246; The State v. Sobharo 1993 SCMR 585; Khuram Mushtaque and others v. The State 2006 PCr.LJ 728; Muhammad Farooq and another v. The State 2006 SCMR 1707; Khalid Javed and another v. The State 2003 SCMR 141; Hidayatullah and another v. The State 1983 PCr.LJ 447; Israr Ali v. The State 2007 SCMR 525; Muhammad Parvez and another v. The State 2007 SCMR 670; Ch. Mohammad Yakoob and others v. The State 1992 SCMR 1983; Mir Muhammad v. The State 1995 SCMR 614; Sheraz Khan v. The State 2010 SCMR 1772; Mahboob Ali v. The State 2000 SCMR 152; Mushtaq Ahmed v. The State PLD 2001 SC 107; State through Advocate General Sindh v. Muhammad Shafique alias Pappu and another 2002 SCMR 620; Manjeet Singh v. The State PLD 2006 SC 30; Dr.Javaid Akhter v. The State PLD 2007 SC 249 and Niaz-u-uddin and another v. The State and another 2011 SCMR 725 ref.

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

----Art. 22---Identification parade, responsibility to hold---Procedure and evidentiary value---Value of the identification parade was only corroborative in nature---Investigating authority, was legally obliged to ensure holding of identification parade properly and within lines and limitation prescribed by the law---If there was any irregularity on the part of Investigating authority in completing such process, same could not be used against the complainant, unless and until it was established and proved that witness was allowed to have an opportunity of seeing accused before identification parade---Irregularity on the part of Investigating authority would not cause prejudice to the outcome of identification parade, unless it was shown or proved that the witness had seen accused before identification parade---Delay in conducting identification parade alone, was not to be considered as fatal to identification parade, because it was the prosecution which arranged identification parade, and not the witnesses themselves, unless it was shown or established that such delay was deliberate and tainted with malice.

Muhammad Akram Rahi and others v The State and others 2011 SCMR 877; Ansar Mahmood v Abdul Khaliq and another 2011 SCMR 713; Muhammad Ilyas and others v The State 2011 SCMR 460 and Anwar Shamim and another v. The State 2010 SCMR 1791 rel.

(c) Criminal trial---

----Interested witness---Definition---Interested witness was defined as the witness who was partisan, or inimical towards accused, or had a motive, or cause of his own to falsely implicate accused in the crime.

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

----Art. 40---Recovery at the pointation of accused---Association of two persons---Necessity---Recovery at the pointation of accused, did not necessarily require association of two persons, but same had to be proved per Art.40 of the Qanun-e-Shahadat, 1984---Where the prosecution established its case through direct, natural and confidence inspiring evidence, the need of corroborative pieces of evidence, was not of much significance.

(e) Words and phrases---

----Words 'mitigating circumstance'---Dictionary meaning, explained.

Black's Law Dictionary rel.

(f) Criminal trial---

----Mitigating circumstances---Scope---Applicability of mitigating circumstance, would not mean to doubt about guilt of accused, but it would allow legal justification for anything arrived on record, which did not disturb the guilt, yet demanded inflicting lesser punishment against proven guilty person---Mitigating circumstance would allow benefit of such a doubt or circumstance, which though did not help accused in getting acquittal, but would justify consideration whereof as mitigating circumstance---Existence of two pleas, therefore, was not always meant to disbelieve the prosecution.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Qatl-i-amd, act of terrorism---Appreciation of evidence---Benefit of doubt---Sentence, reduction in---Mitigating circumstances---Complainant had attempted to improve his version, by attributing both shots to accused, but since prosecution, otherwise had proved guilt against accused in commission of offence, such improvement by complainant alone was not sufficient to bring principle of benefit of doubt, but did demand its consideration as mitigating circumstance---Record had further shown that accused, per mashirnama of his arrest and recovery, was of a young age, he had been in continuous incarceration since 12-1/2 years and had no criminal record, which indicated that accused had not been previously involved in such like cases, or any other criminal cases---Benefit of mitigating circumstance to accused was justified in circumstances---While maintaining the conviction of accused under S.302(b), P.P.C. and S.17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, sentence of death awarded to accused was altered to imprisonment for life---Benefit of S.382-B, Cr.P.C. was also extended to accused, in circumstances.

Muhammad Yakoob v The State 2008 SCMR 1082 rel.

Maqbool Ahmed Awan and Mahfooz Awan for Appellants.

Mushtaque Hussain Shah and Miss Rizwana Jabeen Siddiqui for the Complainant.

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

Date of hearing: 14th February, 2013.

2015 M L D 1568

[Sindh]

Before Aftab Ahmed Gorar, J

KHUDA BAKHSH---Appellant

versus

The STATE and 7 others---Respondents

Criminal Acq. Appeal No.71 of 2010, decided on 3rd July, 2013.

Penal Code (XLV of 1860)---

----Ss. 379, 337-H(2), 427 & 34---Criminal Procedure Code (V of 1898), Ss. 417(2-A) & 245---Theft, causing hurt by rash and negligent act, mischief causing damage, common intention---Appeal against acquittal---Scope---Appreciation of evidence---Civil and criminal cases were pending between the parties before registration of present case---Material contradictions and admissions in the statements of the prosecution witnesses, had made the case against accused doubtful---As to how and why Investigating Officer, received the investigation prior to lodging of FIR---Bullet was alleged to have been secured from the place of incident, but same was not produced before the court---Most of the witnesses were either related to the complainant, or were his workers, their evidence could not be relied upon, unless they were corroborated by independent evidence---Approach for dealing with appeal against the acquittal, would be different and distinguishable from that of appeal against conviction, because, in the case of acquittal presumption of double innocence of accused was attached to the order of acquittal---Order of acquittal, could only be interfered with, if same, on the face of it, appeared to be perverse, arbitrary, illegal, wholly illogical or unreasonable, or in case the reasons assigned by the Trial Court for acquittal, were speculative, and of artificial nature, or the findings were based on no evidence.

1995 SCMR 127; 2007 MLD 1115; 1998 PCr.LJ 1250; 1994 PCr.LJ 1874; 1998 SCMR 25; PLD 1985 SC 11; 1995 SCMR 1345; 2009 SCMR 230; 2008 SCMR 1549; 2007 SCMR 1390 and 2008 SCMR 1285 and 329 ref.

1989 PCr.LJ 1213 and 1998 PCr.LJ 1250 rel.

Raja Mir Muhammad for Appellant.

Muhammad Nawaz Abbasi and Khalid Ahmed Abbasi for Respondents Nos.2 to 8.

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

Date of hearing: 30th May, 2013.

2015 M L D 1577

[Sindh]

Before Abdul Maalik Gaddi, J

Dr. MASUMA HASAN---Petitioner.

versus

MUHAMMAD HAFEEZ and 2 others---Respondents

Constitutional Petition No.S-1286 of 2011, decided on 24th February, 2014.

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

----S. 15---Constitution of Pakistan, Arts.199 & 23---Constitutional petition---Eviction petition by co-owner of the premises---Bona fide personal need of landlord---Scope---Landlord being co-owner with other co-owners of the property rented out the same to the tenant---Copy of lease agreement was annexed with the ejectment petition---Demised premises was required by the landlord for his own accommodation and his such assertion could not be shaken by the tenant---Tenant did not appear before Rent Controller for the purpose of cross-examination and her written statement could not be treated as evidence---Co-sharer of the property was entitled to file ejectment petition without impleading the other owners---No circumstances existed to show that desire of landlord to use his 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 be accepted by giving due weight---Need of landlord was bona fide and same could not be dislodged in absence of any 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---Findings of both the courts below with regard to personal need of landlord were justified and in accordance with law---Tenant had failed to point out any illegality or infirmity in the impugned order---Tenant was directed to vacate the premises within a period of 30 days---Constitutional petition was dismissed in circumstances.

Hafiz Ferozeuddin and 2 others v. Arshad Begum and 6 others 2010 CLC 365; Mst. Sarwari Begum v. Ata-ur-Rehman 1997 CLC 1500; Muhammad Farrukh Siddiqui v. Riaz Ahmed Khan and another 2000 SCMR 1356; Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613; Muhammad Arif v. Mrs. Anwar Jehan 2000 SCMR 1960; Jehangir Rustam Kakalia through legal heirs v. Messrs Hashwani Sales and Services (Pvt.) Limited 2002 SCMR 241; Mst. Sas Bano and 3 others v. Mst. Mahmooda Sabir 2002 SCMR 412; Mst. Fehmida Alam v. Mst. Zaibun Nisa Shaikh and 6 others 2002 SCMR 333; Mst. Jehan Ara through Attorney v. Raja Zafarullah Janjua PLD 2003 SC 277 and Nafisuddin and another v. Saghir Ahmed and another PLD 2003 SC 280 ref.

Muhammad Bashir and others v. Mst. Latifa Bibi 2010 SCMR 1915; Muhammad Bashir and others v. Iftikhar Ali and others PLD 2004 SC 465; Barkat Ali v. Muhammad Nawaz PLD 2004 SC 489; Abdul Ghani v. Abrar Hussain 1999 SCMR 348 and Saifullah and others v. Ch. Ghulam Ghous 2000 CLC 1841 rel.

Hafiz Ferozeuddin and 2 others v. Arshad Begum and 6 others 2010 CLC 365 distinguished.

Ijaz Ahmed for Petitioner.

Sardar Muhammad Yousuf for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 19th February, 2014.

2015 M L D 1593

[Sindh]

Before Aqeel Ahmed Abbasi, J

BILAL HUSSAIN---Applicant

versus

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

Cr. Trf. Appln. No.S-106 of 2012, decided on 8th April, 2013.

Criminal Procedure Code (V of 1898)---

----S.526---Penal Code (XLV 1860), Ss.324/147/148/149/506---Transfer of case---Bias in Judge---Presiding Officer ordered for handcuffing the applicant and co-accused and sending them to judicial lock up---Applicant and co-accused were present on bail and sought adjournment on the ground that their counsel was busy before the High Court---Possibility that the Judge might have developed bias against the applicant and co-accused could not be ruled out---Transfer application was allowed and case was transferred.

Ashfauqe Ali Khaskheli for Applicant.

Muhammad Iqbal Kalhoro, Additional Prosecutor General Sindh for the State.

Agha Kashif Hussain for the Complainant.

2015 M L D 1598

[Sindh]

Before Nazar Akbar, J

Syed ZAFAR ABBBAS JAFRI---Petitioner

versus

Syeda ABIDA SULTANA and others---Respondents

C.P. No.S-1275 of 2011, decided on 30th April, 2015.

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

----S. 14 (3) & 15---Civil Procedure Code (V of 1908), O. I, R. 10----Constitution of Pakistan, Art. 199---Eviction petition---Parties to suit---Impleading of necessary party in ejectment proceedings---Intervener mala fides of---Petitioner, in post-remand proceedings, filed application under O. 1, R. 10, C.P.C. in ejectment proceedings on ground that as tenancy agreement was executed between respondents/landlord and tenant through the petitioner being attorney of the landlord, he had interest in ejectment proceedings and being intervener was to be impleaded as proper and necessary party in the proceedings for effectual and complete adjudication of ejectment petition---Landlord had revoked said power of attorney due to misuse of powers by petitioner---Trial court dismissed said application holding that Intervener/petitioner had no right or interest in the matter and the application was filed only to linger on the matter to harass landlord and to waste time of the court---Appellate court upheld the order of the Rent Controller---Ejectment application was accepted both by Rent Controller and appellate court---Contention raised by petitioner was that he had obtained possession of rented property from tenant and was still in possession---Validity---Petitioner had been unlawfully and illegally interfering in affairs of rented property, and caused prolonged delay in ejectment of tenant despite court ejectment orders---Petitioner, in the previously filed petitions, had specifically been declared not to be owner of rented property, but through the present petition he had frustrated the ejectment orders of courts below by obtaining injunctive order against concurrent findings of courts below on pretext of dismissal of his application under O. I, R. 10, C.P.C.---Petitioner had malafidely caused more than six years delay in execution of ejectment order by abuse of process of court---Such was mala fide and illegal interference of a stranger into rented property in ejectment proceedings---Petitioner had neither claimed possession of rented property nor had he the right to obtain the same from tenant---Landlord was entitled to the fruits of ejectment orders and whosoever was in possession of rented property was to be removed---High Court dismissing the present petition ordered that possession of rented property to be handed over to the landlord---Constitutional petition was dismissed with cost.

2008 YLR 1900 ref.

Sabir Hussain for Petitioner.

Ahmer Javed and Zain Athar for Respondents Nos.1 and 2.

Date of hearing: 23rd April, 2015.

2015 M L D 1618

[Sindh]

Before Aftab Ahmed Gorar, J

ROSHAN ALI alias IQRAR---Appellant

versus

The STATE---Respondent

Criminal Appeal No.S-132 of 2009, decided on 13th November, 2014.

Pakistan Arms Ordinance (XX of 1965)---

----S. 13(d)---Possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Prosecution had failed to prove its case against accused as two cases, were registered against accused and his co-accused under one mashirnama---Both the cases were tried and decided by the same court and two judgments were delivered on the same very day---Accused was acquitted, in one case, while in case under S.13(d) of Pakistan Arms Ordinance, 1965 he was convicted---Trial Court, disbelieved the prosecution evidence in one case, and more or less on the same evidence of prosecution witnesses, convicted accused without assigning sound reasons---Kalashnikov allegedly recovered from accused, having neither been sealed at the spot, nor sent to Ballistic Expert along with empties for examination and report, prosecution case was highly doubtful, in circumstances---Sealing of weapons was essential, particularly in cases, when it was alleged that weapon was used in the commission of crime, and empties were secured from the place of wardat---No doubt Police Officials as citizens, were as good witnesses in the court proceedings, as any other person, yet some amount of care was needed when they were only eye-witnesses in the case---Court, in the exercise of appreciation of evidence, was to see whether witness in question, was not an overzealous witness---Testimony of witnesses, in the case, appeared to be unnatural and untrustworthy, which had created doubt in the prosecution case---All these factors, had created doubt in the prosecution case---Prosecution had to prove its case against accused beyond reasonable doubt, but in the present case, there were several circumstances which had created doubt in the prosecution case---Prosecution case being full of doubts, its benefit must be extended to accused---Conviction and sentence awarded to accused, were set aside, he was acquitted of the charge---Accused being on bail, his bail bond, and surety were discharged.

Ghulam Murtaza Korai for Appellant.

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

2015 M L D 1638

[Sindh]

Before Irfan Saadat Khan and Shahab Sarki, JJ

BAKHSH ALI LAKHO---Petitioner

versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), KHAIRPUR and 3 others---Respondents

C.P. No.D-1151 of 2012, decided on 9th December, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Donation of plot by landlord to the Education Department for educational purpose---Petitioner had donated plot to the Education Department whereupon school was constructed---Plea of petitioner was that, as a matter of policy, one of his nominee was to be appointed on a menial post (chowkidar) and for such purpose he had nominated "X" to be appointed but education department appointed another person---Validity---No such condition existed in the policy that nominee should be either real son or daughter of the plot, donor rather he could appoint his real son/daughter or any other person---Petitioner had nominated "X" as his nominee who was authorized and competent to hold such position---Constitutional petition was disposed of by the High Court with directions to the Education Department for compliance.

(b) Words and phrases---

----Nominee---Meaning.

Black's Law Dictionary; Law Dictionary by A.R. Biswas and Chamber's 21 Dictionary rel.

Bhajandas Tejwani for Petitioner.

Shaharyar Awan, Assistant Advocate General for Respondents.

Date of hearing: 2nd December, 2014.

2015 M L D 1661

[Sindh]

Before Naimatullah Phulpoto, J

AKHTAR ALI GHOWADA ---Applicant

versus

The STATE---Respondent

Cr. Bail Application No. 1139 of 2014, decided on 12th August, 2014.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.392---Qanun-e-Shahadat (10 of 1984), Art.164---Dacoity---Bail, grant of---Case of further inquiry---Close Circuit Television (CCTV) footage---Identification parade, absence of---No recovery---Accused was arrested on the basis of CCTV footage for committing dacoity---Validity---Prosecution had to establish its case regarding application of S. 395, P.P.C. at trial---Nothing belonging to complainant was recovered from the possession of accused during investigation---Evidence procured through modern device like CCTV was made admissible under Art. 164 of Qanun-e-Shahadat, 1984, but at bail stage tentative assessment of entire evidence was to be made by court---Evidence of CCTV would be taken into consideration by Trial Court in accordance with law---Name of accused and his description was not mentioned in FIR as well as in statement under S. 161, Cr.P.C. of prosecution witness---Reasonable grounds, apparently existed to believe that accused was not guilty of offence with which he was charged---Bail could not be refused on the ground of seriousness of offence---After arrest of accused no identification parade was held through eyewitnesses---Prima facie a case against accused required further inquiry as contemplated under S.497(2), Cr.P.C.---Bail was allowed in circumstances.

Irshad Ahmad Shahid v. The State 1998 PCr.LJ 1990; Walayat v. The State PLD 2008 Lahore 470; Mahmood v. The State 1986 PCr.LJ 714 and Adeel-ur-Rehman v. The State 2004 YLR 1105 ref.

Shamsher Abbass for Applicant.

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

Date of hearing: 8th August, 2014.

2015 M L D 1669

[Sindh]

Before Abdul Rasool Memon, J

HOUT KHAN---Applicant

versus

SHMAN ALI alias SHAMSUDDIN and 4 others---Respondents

Civil Revision No.S-47 of 2010, decided on 7th April, 2014.

Civil Procedure Code (V of 1908)---

----O.VII, R.11 & O. III, R.2---Pre-emption suit---Rejection of plaint---Validity---Power of attorney annexed to plaint did not authorize attorney to file suit for pre-emption---Plaintiff did not apply for correction of said mistake in power of attorney before Trial Court; correction could not be allowed at revision stage when limitation had run out---Said General power of attorney, however, had authorised attorney to initiate all sorts of proceedings in respect of mortgage, sale, gift, exchange of immovable property but did not give specific authority to file pre-emption suit---Where suit was not competent, court was duty bound to reject the plaint---Revision was dismissed.

Gultaj Begum v. Lal Hussain Iqbal Hussain PLD 1980 SC (AJ&K) 60 and Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190 rel.

Mujeeb-ur-Rehman Soomro for Applicant.

Date of hearing: 7th April, 2014.

2015 M L D 1688

[Sindh]

Before Muhammad Shafi Siddiqui, J

AFTAB HUSSAIN through Attorney---Plaintiff

versus

GOVERNMENT OF SINDH through Chief Secretary and 2 others---Defendants

Suit No.873 of 2013, decided on 24th February, 2014.

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

----O. VII, R. 11---Specific Relief Act (I of 1877), Ss. 42 & 56---Lease agreement---Scope---Suit for permanent injunction , recovery of amount incurred on the maintenance and renovation of suit property and security deposited for the same---Rejection of plaint---Scope---Contention of plaintiff was that defendant had assured that he would not be evicted from the suit property and licence would be extended for another three years and he had incurred amount on the maintenance and renovation of premises and security for the same was also paid to the defendant---Validity---Neither declaration to the effect that plaintiff was a lessee was made nor he could maintain the present suit as a licensee---Expenses incurred on the renovation of premises would not give any cause of action to the plaintiff as agreement was silent with regard to construction or renovation work---Claim of damages was maintainable only in case the defendant had withheld the permission to use the premises without notice which was not the matter in the present case---Alleged claim of compensation/damages was not maintainable as plaintiff was given notice not to enter into the suit property---Plaintiff had no cause of action and no injunction could be granted of any nature---Present suit was hit by Ss. 42 & 56 (f) of Specific Relief Act, 1877---Application for rejection of plaint was accepted and plaint was rejected in circumstances.

M.A. Naseer v. Chairman Pakistan Eastern Railways PLD 1965 SC 83; Messrs Zaidi's Enterprises v. Civil Aviation Authority PLD 1999 Kar. 181; Hyderabad Electronic Industries v. Sony Corporation 1999 MLD 850; Messrs Sign Source v. Road Trip Advertisers 2005 CLC 1982 and Gulistan Khan (Mehmand) v. Federation of Pakistan 2009 MLD 322 ref.

(b) Words and phrases---

----"Lease" and "licence"---Distinction---Lease was transfer of interest in property whereas in a licence such element was excluded; exclusive right of possession was granted to the lessee and the lessor was totally excluded from such right; right granted to the lessee was assignable and transferable while in a licence it was not so; licence was a personal right which was purely permissible right; notwithstanding the permission, the grantor would retain control over the property.

Faisal Siyal for Plaintiff.

Muhammad Ali Hakro for Defendant No.3.

Date of hearing: 19th February, 2014.

2015 M L D 1701

[Sindh]

Before Syed Saeeduddin Nasir, J

Mrs. MUMTAZ BANO and another---Plaintiffs

versus

MUHAMMAD BASHIR QURESHI and 6 others---Defendants

Suit No.330 of 2008, decided on 22nd October, 2014.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of contract---Plaintiff had discharged the onus with regard to proving the issues---Defendants had failed to lead evidence---Written statement filed by the defendants was discarded---Evidence led by the plaintiff was un-rebutted---Suit of the plaintiff was maintainable---Plaintiff was entitled to the relief prayed for in the prayer clauses of the plaint---Suit of plaintiff was decreed in circumstances.

Faqir Muhammad v. Abdul Moin PLD 2003 SC 594 and Muhammad Bashir v. Iftikhar Ali PLD 2004 SC 465 rel.

Muhammad Najeeb Jamali for Plaintiffs.

M.A. Khan for Defendants.

Date of hearing: 22nd October,2014.

2015 M L D 1721

[Sindh]

Before Nazar Akbar, J

MUHAMMAD FAROOQ---Petitioner

versus

MUHAMMAD AZAM and 2 others---Respondents

C.P. No.S-203 of 2004, decided on 30th September, 2014.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Default in payment of rent---Denial of relationship of landlord and tenant by the tenant---Plea of entering into sale agreement by tenant with landlord---Ejectment petition was accepted by the Rent Controller but same was dismissed by the Appellate Court on the ground that relationship of landlord and tenant was not established---Validity---Sale agreement in favour of tenant had not conferred any right even to be enforced in future---Conclusion drawn by the Appellate Court was erroneous and far-fetched---Appellate Court had failed to appreciate the legal status of agreement of sale---Sale agreement had no consequences---Landlord had registered sale deed in his favour with regard to demised premises whereas tenant had mere agreement of sale for the same---Findings recorded by the Appellate Court were contrary to law and were not sustainable on the point of jurisdiction of Rent Controller---Tenant was directed to hand over vacant possession of the tenement to the landlord within a specified period---Constitutional petition was accepted in circumstances.

Iqbal and 6 others v. Rabia Bibi PLD 1991 SC 242; 2000 SCMR 1604 and 2011 SCMR 320 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Factual controversy could not be examined in constitutional petition---High Court could interfere in the findings of courts below if same were result of mis-reading of evidence or omission to consider the material or failure to apply the rule of law.

Saeeduddin Siddiqui for Petitioner.

Muhammad Yousif Leghari for Respondent No.1.

Date of hearing: 2nd September, 2014.

2015 M L D 1749

[Sindh]

Before Nazar Akbar, J

ANJUM REHMAT and another---Plaintiffs

versus

Squadron Leader (Rtd.) Sheikh GHULAM SADIQ and 4 others---Defendants

Suit No.76 of 2010, decided on 4th August, 2014.

Specific Relief Act (I of 1877)---

----Ss.39, 42, 12 & 54---Transfer of Property Act (IV of 1882), S.54---Suit for cancellation of document, declaration, specific performance of agreement and injunction---Maintain-ability---Filing of second suit---Plaintiff in year, 1979, sought specific performance of agreement to sell dated 22-5-1979---During pendency of earlier suit plaintiffs filed another suit seeking declaration regarding certain documents including subsequent agreement to sell in favour of defendant, pertaining to same property---Validity---Interest of plaintiffs was already sub judice in earlier suit and their apprehension about documents in question had no basis, as plaintiffs were not party to subsequent sale agreement---Executant of subsequent sale agreement was already party in suit filed by plaintiffs in year, 1979---Agreement to sell immovable property by itself could not create any interest in or charge on such property---Provision of S. 54 of Transfer of Property Act, 1882, was complete answer to uncalled for fears of plaintiffs with reference to documents in question---Subsequent agreement to sell did not confer any right, title or interest in suit property in favour of defendant adverse to interest of plaintiffs---Document which by itself had no legal consequence was neither required to be declared so nor to be cancelled---Plaintiffs were neither aggrieved by documents in question nor they had any cause of action for filing subsequent suit to seek relief of cancellation of documents in question---Suit was dismissed in circumstances.

Khalid Latif for Plaintiffs Nos.1 and 2.

Defendant No.1 (Ex parte).

Defendant No.2 (Ex parte).

Defendant No.3 (Ex parte).

Ghulam Shabbir Baloch for Defendant No.4 (Absent).

Khawaja Naveed Ahmed for Defendant No.5 (Absent).

Mansoor-ul-Arfin for Official Assignee.

Date of hearing: 14th March, 2014.

2015 M L D 1771

[Sindh]

Before Nadeem Akhtar, J

Mirza IMTIAZ BAIG---Plaintiff

versus

Messrs PAKISTAN HOCKEY FEDERATION and another---Defendants

Suit No.570 of 2009, decided on 28th August, 2014.

Civil Procedure Code (V of 1908)---

----S.114 & O. XLVII, R.1---Limitation Act (IX of 1908), Art. 162---Suit for recovery of money and damages---Review of ex parte order---Limitation---Defendant sought review of order dated 28-10-2013 by an application dated 26-11-2014---Validity---Provision of Art. 162 of Limitation Act, 1908, were made applicable specifically to cases where review was sought before High Court in its original civil jurisdiction, and it was not only made applicable to judgment/decree but also to an order passed by High Court---Application filed by defendant was barred by time as the same was not filed within the limitation of 20 days prescribed in Art. 162 of Limitation Act, 1908, and no application for condonation of delay had been filed---Review was dismissed in circumstances.

Riyaz Qasim v. Messrs AMA (Pvt.) Ltd., 1999 CLC 445; Sardar Ali and 3 others v. Tehsil Municipal Administration through Tehsil Nazim, 2012 YLR 1686; Natasha Hussain v. Shabbir Hussain and 2 others, PLD 2013 Lahore 257; Amjad Jan and others v. Qazi Azizul Haq and others, 2009 SCMR 1022 and Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462 ref.

Usman Tufail Shaikh for Plaintiff.

Ikram Ahmed Ansari for Defendant No.2.

Dates of hearing: 31st March and 12th August, 2014.

2015 M L D 1790

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

MAQBOOL ASSOCIATES (PVT.) LTD.---Petitioner

Versus

PAKISTAN POWER PARK MANAGEMENT COMPANY LTD. and others---Respondents

C.P. No.D-3463 of 2014, decided on 29th November, 2014.

Public Procurement Rules, 2004---

----Rr.31, 35 & 41---Constitution of Pakistan, Art.199---Constitutional petition---Lowest bid---Determination---Petitioner claimed to be the lowest bidder and asserted that bid of respondent was in violation of Public Procurement Rules, 2004---Validity---Bid offered by petitioner was not the lowest bid, rather almost twice the amount offered by respondent---Petitioner was not entitled for relief being sought from High Court under Art. 199 of the Constitution, which being discretionary in nature could not be exercised in favour of petitioner who had otherwise failed to convince High Court for grant of any indulgence at such stage of proceedings which were still to be finalized---Petition filed by petitioner being premature and mis-conceived in the facts and law, was dismissed.

Messrs KSB Pumps Company Ltd. v. Government of Sindh and others 2011 MLD 1876; Saeed Ismail Burero v. Province of Sindh through Secretary Education, Government of Sindh and another 2014 YLR 825; Messrs Iqbal and Sons v. City District Government and others (SBLR 2011 Sindh 1249/1261 and Khalid Mahmood v. Collector of Customs 1999 SCMR 1881 ref.

Arshad Tayebaly for Petitioner.

Badar Alam for Respondents Nos.1 and 2.

Dilawar Hussain for Respondent No.3.

Date of hearing: 26th November, 2014.

2015 M L D 1815

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD IMRAN MOTLANI---Appellant

Versus

MUHAMMAD ASHRAF and 5 others---Respondents

IInd Appeal No.107 of 2012, decided on 4th June, 2013.

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

----Art. 133---Statement made in examination-in-chief by witness regarding particular fact in dispute---Non-putting suggestion to such witness in cross-examination by opposite party regarding his such statement to be false---Effect---Such statement of witness for being un-rebutted would be accepted as true and correct---Illustration.

Sami Ahsan for Appellant.

Abdul Khalique for Respondent No.1.

Date of hearing: 3rd April, 2013.

2015 M L D 1830

[Sindh]

Before Abdul Rasool Memon, J

MUHAMMAD RAFIQ---Petitioner

Versus

Dr. NAJMA BEGUM and another---Respondents

C.P. No.S-524 of 2012, 24th November, 2014.

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

----Ss. 14, 15 & 21---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Personal bona fide need of landlady---Converting of ejectment application from under S. 14 to S.15 of Sindh Rented Premises Ordinance, 1979---Requirements---Rent Controller dismissed the eviction application being not maintainable but the same was allowed by the Appellate Court by converting the same from under S. 14 to S. 15 of Sindh Rented Premises Ordinance, 1979---Validity---Reasonings recorded by the Appellate Court were in accordance with the evidence on record and as per law---Application filed under S. 14 could be converted into under S.15 of Sindh Rented Premises Ordinance, 1979 provided proper adequate opportunity had been provided to the tenant to defend himself---Essential ingredient for such conversion of provisions was good faith---Even such conversion of provisions could be made at appellate stage if necessary conditions were in existence---Tenant, in the present case, was given a full opportunity to file written statement, cross examine the landlady and put himself in the witness box thereby an adequate opportunity had been given to him to defend his case under S. 15 of Sindh Rented Premises Ordinance, 1979---No prejudice had been caused to the tenant by converting rent application from under S. 14 to S. 15 of Sindh Rented Premises Ordinance, 1979---Landlady had fully proved her case that demised premises was required by her for personal bona fide need---Constitutional petition was dismissed in circumstances.

Syed Fazilat ul Hoda v. Bashir Muhammad 1997 CLC 992; Salim Ahmad Khan v. Mst. Jamil Latif 1990 SCMR 1117; Amin Akhtar Jami v. Jahangir Alam 1993 MLD 1530; Nawab Begum v. Muhammad Haleem Alvi and others 1983 CLC 85 and Shan Illahi v. Mst. Mahmooda Begum 1984 CLC 931 ref.

Syed Fazilat ul Hoda v. Bashir Muhammad 1997 CLC 992 and Salim Ahmad Khan v. Mst. Jamil Latif 1990 SCMR 1117 distinguished.

Amin Akhtar Jami v. Jahangir Alam 1993 MLD 1530 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could not reappraise the evidence on record in exercise of its constitutional jurisdiction.

Khalid Daudpota for Petitioner.

Muhammad Naseeruddin for Respondent No.1.

Date of hearing: 3rd September, 2014.

2015 M L D 11

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

KHALID BASHIR---Petitioner

Versus

Mst. SHAMAS-UN-NISA and others---Respondents

Writ Petition No.3266 of 2010, decided on 28th November, 2012.

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

----S. 20---Constitution of Pakistan, Art.199---Constitutional petition---Maintenance for child---Obligation of father---Mother was capable of earning---Father was extremely poor and was not in a position to pay maintenance allowance to the child---Effect---To maintain his child was obligation of the father and his responsibility could not be absolved merely on the basis that the mother was an earning-hand---Neither the father was stated to be poor nor incapable of earning.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Grant of maintenance allowance for children---Intent and purport---Quantum of maintenance allowance---Determination.

Intent and purport of maintenance allowance to a minor child is to enable her/him to continue living at least, in the same state of affairs as the child was used to live prior to separation/divorce amongst the parents and it would be quite unjust and against the norms of propriety if due to separation amongst the parents the child has to relegate to a lower level of living standard or he/she is declined the level or standard of education which was achieved by him/her prior to such happening i.e. separation of parents. At the same time, there is no escape from the fact that financial status of the father is also to be taken into consideration while awarding maintenance.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Maintenance for children---Annual enhancement in maintenance allowance---Trial Court granted annual enhancement in maintenance allowance at the rate of 30%---Petitioner challenged annual enhancement being against statutory provisions---Validity---Keeping in view the increase in day to day needs of the minor vis-à-vis inflationary trend in the country there existed strong factual basis for grant of annual increase in the maintenance of the child.

Khadiija Bibi and others v. Abdul Raheem and others 2012 SCMR 671 distinguished.

Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760 rel.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of dowry articles---Trial Court decreed the claim in favour of wife---Appellate Court allowed the appeal and prayer of recovery of dowry articles was declined---Non-exhibition of list of dowry articles---Effect---Petitioner/husband in his written statement had not categorically denied factum of delivery of dowry articles and simply stated that no articles were shifted to his house---Stance of the petitioner was not acceptable as from the evidence of the parties it was established that after marriage the wife resided in his house---Dowry articles given to her by her parents in natural course would have been shifted to petitioner's house---Ground urged regarding non-exhibition of list of dowry articles could not be made basis for non-suiting the wife for recovery of dowry articles particularly when the factum of delivery of dowry articles was not categorically denied by the husband---Family Court, after due appreciation of the evidence available on the record found on the issue of dowry articles, which had illegally been disturbed by the lower Appellate Court---Findings of the lower Appellate Court was set aside by High Court.

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

----S.5, Sched.---"Maintenance"---Meaning---Expression "maintenance" had not been defined in the West Pakistan Family Courts Act, 1964---Dictionary meaning of maintenance was financial support given by one person to another, usually paid as a result of legal separation or divorce; especially alimony.

Malik Qamar Afzal for Petitioner.

Muhammad Ilyas Sh. for Respondents Nos. 1 and 2.

2015 M L D 30

[Lahore]

Before Abid Aziz Sheikh, J

AL-MANARA COLLEGE OF PHARMACY through managing Director---Petitioner

Versus

CENTRAL PHARMACY COUNCIL OF PAKISTAN through Secretary and 2 others---Respondents

Writ Petition No.5048 and C.M. No.9494 of 2013, heard on 18th December, 2013.

(a) Pharmacy Act (XI of 1967)---

----Ss.17, 18 & 19---Pharmacy Council of Pakistan (Examination for Registration in Register "B"), Regln. 11---Constitution of Pakistan, Art.199---Constitutional petition---Pharmacy education---Central Pharmacy Council of Pakistan---Role, powers and duties---Petitioner was a private college running Pharmacy Technician Programme but due to inadequate facilities, Central Pharmacy Council of Pakistan did not permit petitioner to run the programme---Validity---Power to approve examination, approve courses, prescribe conditions for admission, to recognize degree and diploma, inspection of institution and requirement of facility by Central Pharmacy Council of Pakistan would entail, approval and recognition of institutions which were imparting education of pharmacy by Central Pharmacy Council of Pakistan---Central Pharmacy Council of Pakistan was a statutory expert regulatory authority to carry out physical inspection of institution to ensure that institution had adequate facilities to impart education of pharmacy---High Court could not substitute or replace function of statutory regulatory authority and declined to interfere in the decision of the Council---Petition was dismissed in circumstances.

Pakistan Medical and Dental Council v. Zia-ud-Din Medical University and others PLD 2007 SC 323; Muhammad Ismail v. Abdul Rashid and 2 others 1983 SCMR 168; S.K. Masood and 3 others v. Special Committee through Member, Board of Revenue (Settlement and Rehabilitation) and Secretary to Punjab Government and others 1990 CLC 1174; Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Muhammad Yamin and others v. Sara Bai and others 2004 MLD 328; Capt. S.M. Aslam and others v. Karachi Building Control Authority through Chief Executive Nasim-e-Aala and others 2005 CLC 759; Rehmat Ullah and others v. Mst. Hameeda Begum and others 1986 SCMR 1561; Asadullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445; Absar Ahmad and others v. Government of Sindh and others 2012 CLC 876; Sanchit Bansal and another v. Joint Admission Board (JAB) and others 2012 SCMR 1841 and Messrs Ghani Herbal Pharma Laboratories v. Secretary and others PLD 2005 Lah. 93 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Factual controversies---Scope---Such controversies cannot be embarked upon by High Court, while sitting in its constitutional jurisdiction.

Ch. Saghir Ahmad and Muhammad Javaid Iqbal Adum for Petitioners.

Sheikh Jamshed Hayat for Respondents Nos. 1 and 2 along with Nazir-ud-Din Ahsan, Secretary, Pharmacy Council of Pakistan.

Shaukat Bilal Khan Bangash, Standing Council for Pakistan.

Date of hearing: 18th December, 2013.

2015 M L D 54

[Lahore]

Before Muhammad Tariq Abbasi, J

MUHAMMAD AKRAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.51 of 2014, decided on 10th February, 2014.

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

----Art. 78---Penal Code (XLV of 1860), Ss.302, 324, 148, 149 & 109---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, common object, abetment---Recording of secondary evidence---Petitioner had challenged order of the Trial Court whereby Head Constable was called for recording his statement as secondary evidence---During trial of the case, it was revealed that Investigating Officer in the case was found accused in other criminal case registered against him under S.302, P.P.C. and he was not available to record his statement---Trial Court on the basis of application moved by the complainant, directed Head Constable, who remained associated with said Investigating Officer, and was acquainted with handwriting and signature of Investigating Officer, to be summoned to give secondary evidence---Contention of counsel for the petitioner was that no provision existed in law for calling and examining a person for secondary evidence---Contention was repelled as Art.78 of Qanun-e-Shahadat, 1984, dealt with that procedure---Said Head Constable, who remained posted with Investigating Officer, being acquainted with handwriting and signatures of Investigating Officer, was very much relevant to adduce secondary evidence about the proceedings---If the Head Constable, had already been recorded as a prosecution witness, there was no bar for his appearing again in the court for recording secondary evidence.

Mian Tahir Iqbal for Petitioner.

Hassan Mahmood Khan Tareen, D.P.G. on Court's call.

2015 M L D 69

[Lahore]

Before Amin-ud-Din Khan, J

Mst. GHULAM BIVI and others---Petitioners

Versus

MUHAMMAD ASLAM and others---Respondents

Civil Revision No.752 of 2003, heard on 20th June, 2013.

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

----S.42---Suit for declaration---Limitation---Inheritance---Arbitration proceedings---Rule of Court---Scope---Contention of plaintiffs was that they were legal heirs of deceased and mother of one of the defendants had wrongly given share to him---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Inheritance mutation was got entered by son of the deceased on 15-11-1977 and his mother received her share who transferred suit land in favour of defendants---Mother of deceased entered into arbitration proceedings which were made rule of court---Mutation was attested on the basis of said rule of court---Transferees were in possession of suit land and before that vendor was in possession of the same---Suit had been filed on 9-8-1995 after more than 22 years of death of father of plaintiffs which was time-barred---Decree could be challenged in a suit in which the plaintiff prayed for declaration of his title---Vendor was owner of much more land than she transferred and if there was any claim of plaintiffs, such could be satisfied from her ownership---Suit was result of connivance between the parties---Plaintiffs had failed to prove the case pleaded by them and Trial Court had recorded findings by ignoring the pleadings as well as documentary evidence available on record---Findings recorded by the First Appellate Court were in accordance with law and no case for interference had been made out---Revision was dismissed.

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

----S.12(2)---Application under S.12(2), C.P.C. to challenge decree---Requirements---Object---Applicant was required to established his character for challenging the decree and same could be challenged in a suit in which applicant was praying for declaration of his title---Object of S.12(2), C.P.C., was to cut short the litigation and that the parties be saved from multiplicity of the same.

Mushtaq Ahmad Mohal for Petitioners.

Raja Ghulam Hussain Khan for Respondents.

Date of hearing: 20th June, 2013.

2015 M L D 89

[Lahore]

Before Rauf Ahmad Sheikh, J

Malik HASHIM AMIR KHAN---Petitioner

Versus

Mst. SAADIA TABASSUM and another---Respondents

Writ Petition No.2705 of 2012, heard on 21st January, 2013.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of gold ornaments by wife---Contention of plaintiff was that gold ornaments weighing 21 tolas were given to her at the time of her marriage which had been kept by the defendant (husband)---Defendant contended that earlier a suit filed for the recovery of the gold ornaments was withdrawn and another suit for recovery of articles of dowry and bridal gifts was decreed and present suit was not maintainable---Suit was dismissed by the Trial Court but the same was decreed by the Appellate Court---Validity---First suit filed for recovery of the gold ornaments weighing 21 tolas was withdrawn by the counsel for plaintiff-respondent with a statement that there was no need to pursue the suit---Neither any compromise was entered into nor that was so mentioned in the statement by the counsel for the plaintiff-respondent---Wakalatnama in favour of counsel included the power to make the statement on behalf of the party executing the same---Again in the suit for recovery of articles of dowry, the gifts worth Rs.3,95,000 were also claimed and that suit was also decided on merit---Had there been any other ornament or personal belonging of plaintiff-respondent in possession of the defendant-petitioner, the same should have been claimed in the said suit---Appellate Court ignored the dismissal of first suit in view of the statement of the counsel for plaintiff-respondent and decision of the second suit on merits and erred in reversing the well reasoned judgment of the Trial Court and failed to perform his duties in accordance with law---Impugned judgment and decree of the Appellate Court were not sustainable in the eyes of law---Constitutional petition was accepted and impugned judgment and decree passed by the Appellate Court were set aside and that of the Trial Court were restored.

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

----Preamble---Civil Procedure Code (V of 1908), O. XXIII, R. 1(3) & O.II, R.2---Withdrawal of suit---Suit to include whole claim---Applicability---Provisions of O. XXIII, R. 1(3) and O. II, R. 2, C.P.C. were not specifically applicable on the proceedings before the Family Court but the principles underlying the provisions of the Code of Civil Procedure, 1908, if not inconsistent with the provisions of the Family Courts Act, 1964 and Rules made thereunder might be followed by the Family Court.

Jamil Asghar Butt for Petitioner.

Ms. Aneela Attique for Respondent No.1.

Date of hearing: 21st January, 2013.

2015 M L D 105

[Lahore]

Before M. Sohail Iqbal Bhatti, J

FATEH MUHAMMAD---Petitioner

Versus

GHULAM HASSAN and another---Respondents

Civil Revision No.438 of 2005, heard on 3rd February, 2014.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 35, 13 & 6---Pre-emption suit---Revival of---Limitation---Zaroorat and Zarrar---Requirements---Contention of defendants was that initially suit and appeal were dismissed but no application for revival was filed---Suit was dismissed concurrently---Validity---Suit dismissed between the period mentioned in S. 35 of Punjab Pre-emption Act, 1991 could only be revived through the procedure provided in the said section---Present suit was dismissed on 7-2-1989 while appeal was also dismissed on 27-4-1989---Appeal could be the continuation of suit but same principle was not applicable to the revision---Non-filing of application under S. 35 of Punjab Pre-emption Act, 1991 was fatal to the suit of plaintiff---Such application could be filed within 60 days but same was not filed which would be violation of statutory provisions of law---Provisions of mentioning Zaroorat and avoidance of Zarrar in the plaint had been declared repugnant to the Injunctions of Islam but same was the part of Statute till 31-12-1993---Plaint filed prior to 31-12-1993 must have mentioned the factum of avoidance of Zarrar and Zaroorat---Plaintiff was bound to incorporate Zaroorat and avoidance of Zarrar in his plaint and prove the same till the time it was declared repugnant to the Injunctions of Islam---Plaintiffs were bound to specifically plead Zaroorat and to avoid Zarrar in the cases which were filed between 1-8-1986 to 28-3-1990---Plaintiff had not pleaded Zaroorat or to avoid Zarrar in the plaint of the present case which was filed on 11-1-1989 and same was mandatory prior to 31-12-1993---Plaint filed by the plaintiff did not fulfil such mandatory statutory requirements which would come within the mischief of S. 6(2) of Punjab Pre-emption Act, 1991---Statements of witnesses of plaintiff with regard to performance of talbs were not only contradictory but same were also not confidence inspiring---Plaintiff was present at the time of sale but he did not perform jumping demand at the same time which was sufficient to deny his claim of pre-emption---Plaintiff had failed to prove notice of Talb-i-Ishhad as he did not went to the vendees to offer sale price of suit land---No misreading or non-reading of evidence or any material irregularity had been pointed out in the impugned judgments and decrees---Revision was dismissed in circumstances.

PLD 1994 SC 1; Muhammad Farooq v. Muhammad Hussain 2013 SCMR 225; Muhammad Aslam v. Jameel Ahmad 2005 YLR 2347; Muhammad Mushtaq Ahmad v. Ali Muhammad 2003 YLR 2985, Chaudhry Abdul Majeed v. Anayat Ali PLD 2001 Lah. 194 and Sardar Ali v. Muhammad Siddique 2000 MLD 616 rel.

Zeeshan Munir Paracha for Petitioner.

Malik M. Kabir for Respondents.

Date of hearing: 3rd February, 2014.

2015 M L D 130

[Lahore]

Before Atir Mahmood, J

SALMAN ASGHAR and others---Petitioners

Versus

SPECIAL JUDGE RENT CONTROLLER, LAHORE and others---Respondents

Writ Petition No.3652 of 2014, heard on 5th March, 2014.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 97, 98, 99, 100 & 101 & S. 144---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Restoration of possession---Scope---Contention of applicants was that status quo order was passed by the Supreme Court and Rent Controller was bound to issue notice before passing order with regard to door breaking and lock breaking---Application for restoration of possession of rented property was dismissed by the Rent Controller---Validity---Status quo order was passed by the Supreme Court in Civil Petition which was dismissed in default but same was restored later on---Rent Controller issued warrants of possession during the interregnum from dismissal in default to its restoration and possession of disputed property was handed over to the landlords---Decree holder might make an application to the court with regard to resistance or obstruction from taking over possession of property---If any person other than judgment debtor was dispossessed from immovable property by a holder of a decree for possession of such property then an application could be made on his behalf with regard to such dispossession---Order with regard to restoration of possession could be passed if court was satisfied that applicant was in possession of the property on his own account or on account of some other person other than judgment debtor---Applicants were claiming right on the basis of sub-tenancy from original judgment debtors and provisions of O. XXI, Rr.97 to 101, C.P.C. were not attracted in the present case---Applicants were not entitled for restoration of possession as they were enjoying prior to restoration of status quo order---Status quo order was passed by the Supreme Court but position of same was not ordered to be as it was on dismissal of Civil Petition in default---Possession of a property could be restored if decree was varied, reversed or set aside---Ejectment decree was passed by the Rent Controller against original lessee which stood upheld uptill High Court---Possession of rented premises was handed over to the decree holder through process of law---Applicants were not dispossessed from the property in an illegal manner---No illegality had been pointed out in the impugned order---Present application was not maintainable before the Executing Court which was rightly dismissed---Constitutional petition was dismissed in circumstances.

Mst. Khurshid Begum and others v. Mr. Ghulam Kubra and others 1982 SCMR 90; Muhammad Saeed alias Pulla v. The State PLD 1987 Pesh. 31; S.M. Mohsan Zaidi v. Syed Gauhar Ali 1985 SCMR 344; Province of Punjab and others v. Abdul Ghafoor and others 2001 MLD 1621; Haji Abdul Wali Khan and another v. Muhammad Hanif and another 1991 SCMR 2357; Mst. Sahib un Nissa and others v. Mst. Mahmooda Begum PLD 1959 W.P. Lah. 511; Mst. Ghulam Fatima v. Muhammad Shafi and another 2006 YLR 1280; Ghulam Mujtaba v. Mst. Naeema Khanum 1984 CLC 1458; Muhammad Iqbal and others v. Khurshid Ahmad 1984 SCMR 1324; Muhammad Sarwar v. Muhammad Shafi 1986 SCMR 1638; Shafqatullah and others v. Distrcit and Sessions Judge, Nowshera 2001 SCMR 274; Sri Lakshmi Narayan and others v. Sri Surath Lal Chakraborti and others PLD 1964 Dacca 177 and Nirmal Chandra Choudhry v. Nikunja Behari Biswas and others PLD 1956 Dacca 148 ref.

Mst. Khurshid Begum and others v. Mr. Ghulam Kubra and others 1982 SCMR 90; Muhammad Saeed alias Pulla v. The State PLD 1987 Pesh. 31; S.M. Mohsan Zaidi v. Syed Gauhar Ali 1985 SCMR 344; Province of Punjab and others v. Abdul Ghafoor and others 2001 MLD 1621; Haji Abdul Wali Khan and another v. Muhammad Hanif and another 1991 SCMR 2357; Mst. Sahib un Nissa and others v. Mst. Mahmooda Begum PLD 1959 W.P. Lah. 511 and Mst. Ghulam Fatima v. Muhammad Shafi and another 2006 YLR 1280 distinguished.

Mian Asif Mumtaz for Petitioners.

Mian Muhammad Hussain Chotya for Respondents.

Date of hearing: 5th March, 2014.

2015 M L D 152

[Lahore]

Before Amin-ud-Din Khan, J

ABDUL SATTAR and 2 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, KASUR and 2 others---Respondents

Writ Petition No.24692 of 2012, heard on 6th December, 2012.

Civil Procedure Code (V of 1908)---

----O.XVIII, Rr. 1, 2 & 3---Qanun-e-Shahadat (10 of 1984), Art. 130---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan, Art.199--Constitution petition---Suit for specific performance of agreement to sell immovable property---Hearing of suit and examination of witnesses---Order of production and examination of witnesses---Plaintiff's application for permission to produce evidence in the shape of witnesses, after the close of the defendants' evidence, was dismissed concurrently---Plaintiffs had sought permission to produce new evidence on the issue, the onus of which was upon them at the time of rebuttal evidence of the defendants---Contention of plaintiffs was that even after the close of evidence of defendants, it was the right of the plaintiffs to produce rebuttal evidence upon all issues---Validity---Onus of the issue was on the plaintiffs and they could not be allowed to produce affirmative evidence after the close of the defendants evidence, that is, at the time of their right to produce rebuttal evidence---Right to begin production of evidence was with the plaintiff who was bound to lead evidence on the issues, the onus of which was upon plaintiffs and plaintiffs could reserve only the right to produce evidence with regard to the issues, which onus was upon the other side---Orders of courts below were correct---Constitutional petition being without merit, was dismissed, in circumstances.

Fazal Muhammad and others v. Mst. Zainab Bibi and others 2001 MLD 2012 and Smt. Jaswant Kaur and another v. Devinder Singh and others AIR Punjab and Haryana 210 ref.

Murid Hussain v. Muhammad Lal 1987 CLC 101; Alhaj Khalil Ahmad v. The Australasia Bank Ltd. Lahore and another 1979 CLC 491 and Naseer Ahmed v. District Judge, Multan and 4 others PLD 1992 Lah. 92 rel.

Ch. Muhammad Rafique Warraich for Petitioners.

Ch. Muhammad Yaseen for Respondents.

Date of hearing: 6th December, 2012.

2015 M L D 165

[Lahore]

Before Shahid Hameed Dar, J

AFTAB AHMED BUTT and others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous. No.8331-B of 2013, decided on 17th July, 2013.

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

----S.498---Penal Code (XLV of 1860), Ss.324, 337-A(i), 148 & 149---Attempt to commit Qatl-i-amd, Shajjah-i-Khafifa and rioting armed with deadly weapons---Pre-arrest bail, grant of---Fire-shots, determination of---F.I.R. revealed that it was not less than a mob which committed alleged occurrence and a number of accused were declared innocent during the course of investigation and many others were held guilty only to the extent of being present at the spot, empty handed without doing anything at all---Complainant categorically alleged that his maternal nephews, when they had already been deflated to the ground in injured condition, were fired at by all accused 26/27 in number and they caused injuries to both of them---Validity---Number of injuries as described in Medico-legal Reports did not commensurate with number of accused and in such eventuality it could not be said as to whose fire shot hit the injured and whose did not---None of accused persons present before High Court had been assigned any specific role regarding the injured, hence every probability existed to believe that they all might have been falsely involved in case due to malice or ulterior motives of complainant---Allegations against accused persons were of generalized and collective nature which ingrained an element of suspicion regarding their participation in occurrence alleged---Pre-arrest bail was confirmed in circumstances.

Shahid Imran's case 2011 SCMR 1614 and Muhammad Ashraf and another v. The State 1982 PCr.LJ 1286 rel.

(b) Criminal Trial---

----Innocent person, punishing of---Principle---Held, it was better to leave hundred guilty persons instead of confining / punishing an innocent man.

Ch. Sabir Ali Padyar for Petitioners.

Nasir Mahmood Sial, Deputy District Public Prosecutor for the State.

Ch. Ahmad Khan Gondal for the Complainant.

Bahu Khan S.I. with record.

2015 M L D 171

[Lahore]

Before Shahid Jamil Khan, J

Mst. NASIRA AFRIDI---Appellant

Versus

MUHAMMAD AKBAR---Respondent

F.A.Os. No.51 and 52 of 2011, decided on 20th June, 2014.

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

----S. 17---Qanun-e-Shahadat (10 of 1984), Art. 117---Ejectment petition---Maintainability---Denial of relationship of landlord and tenant by tenant---Burden of proof---Default in payment of rent---Ancestral property---Rent Controller, jurisdiction of---Payment of rent---Scope---Contention of landlord was that tenants had committed default in payment of rent whereas tenants had denied the relationship of landlord and tenant between the parties---Ejectment petition was accepted by the Rent Controller---Validity---Alleged rented premises was occupied by the tenants in lieu of vacating ancestral property as co-sharer and same was not taken into possession as tenant---No evidence to prove the relationship of landlord and tenant was discussed in the impugned order---Burden of proof to establish the relationship of landlord and tenant was on the landlord---Issue with regard to relationship of landlord and tenant was framed without placing/noting burden of proof which was improper exercise of jurisdiction---Findings that tenants could not prove the relationship of landlord and tenant were against the principle of law of evidence and were not sustainable in the eye of law---Relationship of landlord and tenant did not exist between the parties---Landlord had failed to prove that tenants paid rent as a consideration for possession or occupation of the premises---Present application for eviction was not maintainable and Rent Controller had no jurisdiction in the matter---Eviction could not be sought before the Rent Controller without establishing the relationship of landlord and tenant---Payment of rent was sine qua non for the relationship of landlord and tenant---Findings recorded by the Rent Controller were reversed and impugned order was set aside---Eviction petition filed by the landlord was dismissed---Appeal was accepted in circumstances.

Abdul Haque v. The State PLD 1996 SC 1 rel.

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

----S. 2 (g)---"Landlord"---Meaning---Person entitled to receive rent in respect of any building whether on his own account or for the benefit of another person for the time being deriving title from the landlord could be termed as "landlord".

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

----S. 2 (j)---"Tenant"---Meaning---Person who had undertaken or was bound to pay rent as consideration for possession or occupation of a building by him or by any other person on his behalf could be termed as "tenant".

Syed Zulfiqar Abbas Naqvi for Appellant.

Muhammad Irshad Rana for Respondent.

2015 M L D 188

[Lahore]

Before Rauf Ahmad Sheikh, J

Mst. GHULAM SAKINA---Petitioner

Versus

PROVINCE OF PUNJAB through District Officer (Rev.) and 15 others---Respondents

Civil Revision No.482 of 2004, decided on 18th April, 2013.

(a) Administration of justice---

----Case should be decided on merits rather than technicalities.

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

----S.42---Civil Procedure Code (V of 1908), O.IX, R.8 & O.XVII, R.3---Suit for declaration was dismissed by closing evidence of the plaintiff---Appellate Court upheld the judgment of Trial Court---Failure to produce evidence on the date of hearing---Matter pertaining to hereditary rights of females---Plaintiff was not duly represented on the date of hearing before the Trial Court---When the plaintiff was not duly represented on the date of hearing, the Trial Court in the given circumstance could have only proceeded under O. IX, R. 8, C.P.C. instead of closing the evidence and dismissing the suit---Matter pertained to the hereditary rights of the plaintiff, who claimed that she was sole daughter of the deceased and the respondents were his residuaries being collaterals so were entitled to ½ shares only---High Court observed that hereditary suit by females should be decided after affording them reasonable opportunities to produce evidence to enable them to substantiate their contentions---Trial Court committed material irregularity causing gross miscarriage of justice in applying the provisions of O. XVII, R. 3, C.P.C. in haste---Suit was remanded to the Trial Court for decision afresh after providing sufficient opportunity to the plaintiff to lead the evidence.

Malik Ali Muhammad for Petitioner.

Mumtaz Ali Khan for Respondents.

Saif-ur-Rehman, A.A.-G. for the State.

2015 M L D 210

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

SHAZIA SAMAD---Petitioner

Versus

Malik TARIQ MEHMOOD AKHTAR and another---Respondents

Writ Petition No.710 of 2014, decided on 24th March, 2014.

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

---S. 5, Sched & S.14---Constitution of Pakistan, Art. 199---Constitutional petition---Dissolution of marriage on the basis of Khula "in lieu of dower"---Forum of appeal to challenge such condition---Scope---Wife could challenge the condition attached with the decree for dissolution of marriage by filing an appeal under S. 14 of West Pakistan Family Courts Act, 1964 if so advised---Constitutional petition was disposed of accordingly.

Naila Azmat v. Judge Family Court and others 1999 MLD 3090; Farzana Shaheen v. Malik Muhammad Iqbal 1989 MLD 3888 and Bashira Bibi v. Muhammad Rafiq and 2 others 1982 CLC 1200 rel.

Majeeb-ur-Rehman Kiani for Petitioner.

2015 M L D 222

[Lahore]

Before Mahmood Ahmad Bhatti, J

NAZIR AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, MUZAFFARGARH and 2 others---Respondents

Writ Petition No.6251of 2014, decided on 13th May, 2014.

Civil Procedure Code (V of 1908)---

----S. 75 & O. XXVI, Rr. 9 & 10---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for specific performance of contract---Local commission, appointment of---Scope---Plaintiff, after recording of his oral evidence moved an application for appointment of local commission which was dismissed concurrently---Validity---Plaintiff had neither averred in the plaint nor deposed in his deposition that he had made any construction on the suit land---No party could be allowed either to make a departure from its pleadings or improve the case set up by it therein---Plaintiff was bound to prove his own case in conformity with the assertions made by him in the plaint---Party had to stand on his own legs and he could not be allowed to build his case upon the weakness of the case of other party---Party could not be allowed to collect evidence through a local commission---If application of plaintiff was allowed then local commission would also have to be examined as one of the witnesses and same would provide another opportunity to the plaintiff to fill in the lacuna left in his case---Plaintiff could not be allowed to turn around after concluding his oral evidence and make another attempt to produce evidence to bolster up his case---No illegality or infirmity or material irregularity was pointed out in the impugned orders passed by the courts below---Constitutional petition was dismissed in limine.

Muhammad Bakhsh v. Nizam Din PLD 1978 Lah. 31 rel.

Ch. Muhammad Sana ul Haque for Petitioner.

2015 M L D 229

[Lahore]

Before Mamoon Rashid Sheikh and Shahid Jamil Khan, JJ

AMNA SHARIF and another---Petitioners

Versus

POF BOARD through Director Industrial and Commercial Relations (DICR) and others---Respondents

Writ Petition No.475 of 2014, decided on 28th May, 2014.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Admission in medical college---Criteria, non-fulfilment of---Petitioners were studying in MBBS first year and their admissions were cancelled on the ground that their results were not accepted by Pakistan Medical and Dental Council and University of Health Sciences---Validity---Petitioners were required to take Medical Colleges Admission Test (MCAT) conducted by NTS, instead the petitioners took National Aptitude Test (NAT-IM) conducted by NTS---NAT-IM Test was not recognized by Pakistan Medical and Dental Council as it was a monthly test and was not geared for gaining admission to medical/dental educational institutions---Petitioners had not met the basic eligibility criteria for gaining admission in medical college as laid down by authorities---Petitioners were only granted 'provisional' admission subject to verification of their antecedents and registration with authorities, therefore, petitioners could not claim to have acquired a vested right to continue with their studies in medical college---Petitioners failed to point out any jurisdictional error nor it had been shown that decision of authorities was perverse or arbitrary---High Court declined to interfere in the matter---Petition was dismissed in circumstances.

1997 SCMR 15 Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others 2004 SCMR 1864; Neelam Khan and others v. University of Health Sciences, Lahore through vice-Chancellor/Registrar and others 2013 MLD 701; Ammaris Mehtab Chaudhry v. Vice-Chancellor, Sargodha University and others 2013 CLC 1080; The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207; Nadir Khan and others v. Principal, Khyber Medical College, Peshawar and others 1995 SCMR 421; Aqib Rasheed and 3 others v. Government of the Punjab through Secretary Health and 4 others PLD 2011 Lah. 1; Zubair Azam v. Pakistan Medical and Dental Council through Chairman and another 2005 YLR 1462; Junaid Intizar v. UHS and others 2009 MLD 684 and Memoona Noureen v. Vice-Chancellor, Fatima Jinnah Women University Rawalpindi 2011 CLC 230 ref.

Muhammad Abdullah Riaz v. University of Health Sciences (UHS). Lahore and another PLD 2011 Lah. 555; Sahiba Dost v. Chairman Admission Board/Vice-Chancellor, UHS, Lahore PLD 2011 Lah. 605 and Usman Tariq v. Punjab Public Service Commission and others 2013 PLC (C.S.) 1183 ref.

(b) Educational institutions---

----Prospectus---Scope---Educational institutions are bound by policy laid down in their prospectus.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction--- Scope--- Educational institution---Admission---High Court in exercise of its constitutional jurisdiction does not interfere in matters of examinations and/or admissions to educational institutions---Authorities concerned are sole judges of criteria laid down by institutions in their prospectus and/or calendar unless an ex-facie case of jurisdictional error is pointed out.

Muhammad Owais for Petitioners.

Nemo for Respondent No. 1 and 2.

Nemo for Respondent No.3.

Amjad Hussain Ghauri for Respondent No.4.

2015 M L D 236

[Lahore]

Before Sikandar Zulqarnain Saleem, J

KHALIL AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2860-B of 2014, decided on 23rd June, 2014.

Criminal Procedure Code (V of 1898)-

----S.497(2)---Penal Code (XLV of 1860), S.394---Dacoity---Bail, grant of---Further inquiry---Test identification parade, absence of---Accused was not nominated in F.I.R. and was arraigned on the strength of supplementary statement recorded by complainant wherein he did not disclose source of information regarding involvement of accused in alleged occurrence-Validity-Accused had been behind the bars for the past more than two months without any progress in trial---Accused was not subjected to any test identification parade though in such like cases accused were not known to victims who were often implicated in cases of dacoity through supplementary statement by victims afterwards having some knowledge and information from reliable sources and through collection of evidence at their own or on asking of police who in order to make case convenient for themselves---Case against accused fell within the domain of further inquiry and reasonable grounds existed to believe that accused did not commit alleged offence---Bail was allowed in circumstances.

Walayat v. The State PLD 2008 Lah. 470 rel.

Jam Azhar Hussain Laar for Petitioner.

Ch. Muhammad Akbar, D.P.G. with Sibtul Hasan, S.I. for the State.

2015 M L D 242

[Lahore]

Before Shahid Hameed Dar and Sardar Muhammad Shamim Khan, JJ

MUHAMMAD ASLAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 6491-B of 2014, decided on 3rd June, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, refusal of---Self-implicating statement. of accused against co-accused--- Relevance---Accused was involved in barbarous occurrence in which five persons were done to death---More than seven hundred crime empties were recovered from the scene---Omission to assigning-specific role to accused was of no significance in such cases---Post-mortem report showed dozens of firearm injuries on the bodies of deceased-- Injured persons also received firearm injuries---Accused absconded from the scene and did not raise plea of alibi in his first version recorded by Investigating Officer---Accused persons had admitted during investigation that they had murdered the deceased on account of previous enmity---Self-implicating statement of accused against co-accused might be relevant factor during investigation as well as trial--- Accused did not produce any documentary evidence to establish the plea of alibi which was raised belatedly---Promptly lodged F.I.R., specific role, corroboratory medical evidence, consistent eye-witness account, barbarous nature of crime and other incriminating circumstances together suggested that accused's case was not within scope of further inquiry under S.497(2), Cr.P.C.---Bail application was dismissed.

Muhammad Din v. The State 1998 SCMR 1; Muhammad Afzzal v. The State 2012 SCMR 707 and Muhammad Hussain alias Muhammada v. The State 1994 SCMR 999 ref.

Raja Muhammad Irshad v. Muhammad Bashir Goraya 2006 SCMR 1292; Naseem Malik v. The State 2004 SCMR 283 and Ghulam Ahmed Chishti's case 2013 SCMR 385 rel.

Ch. Ghulam Sarwar Nehang for Petitioner.

Tariq Javed, District Public Prosecutor for the State with M. Sarwar S.I..

Abdul Razzaq Younas for the Complainant.

2015 M L D 247

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Ch. SAIFULLAH---Appellant

Versus

ALI SALEEM and another---Respondents

R.S.As. Nos.108 and 109 of 2010, heard on 14th May, 2014.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Civil Procedure Code (V of 1908), S.100 & O.XVIII R.17---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Suits for possession through pre-emption---Non-appearance of the appellant (plaintiff) as his own witness---Effect---Performance of Talb-e-Muwathibat by the attorney---Principles---Appellant filed two independent suits, which were dismissed, whereafter the appellant filed two separate appeals and the same met the same fate---Contention of the appellant was that the Trial Court committed gross illegality by not following the provisions of O. XVIII, R. 17, C.P.C. and recorded the evidence in one case and copied the same in verbatim in the other case---Plea of the respondent (defendant) was that the appellant did not appear himself before the Trial Court and elected to be represented through his attorney through a special power of attorney, which had been executed on 9-12-2005, meaning thereby that the appellant could not be represented through the said attorney at the time when the requisite Talb-e-Muwathibat had allegedly been performed on 26-4-2002, therefore, the said attorney was not even authorized as a witness on behalf of pre-emptor with regard to performance of Talb-e-Muwathibat---Validity---Pre-emptor could be represented through an attorney, but the powers should have been delegated prior to the performance of requisite demands so that he could perform the same and then depose in the court about the performance thereof on behalf of the attorney on the strength of his power of attorney---Best evidence with regard to performance of Talb-e-Muwathibat was the person who had made such demands, but in the present case, such piece of evidence in spite of availability was withheld for the reasons best known to the appellant and under Art. 129(g) of the Qanun-e-Shahadat, 1984, both the courts below had rightly drawn inference against the appellant, who himself had damaged his case by not appearing before the Trial Court as his own witness---Contention by the appellant/plaintiff that evidence recorded in one case was copied in verbatim in the other file in the peculiar facts and circumstances of the present case could not be declared fatal and the appellant/plaintiff could have objected the mode of recording of evidence before the trial court, if he was prejudiced in any manner, but he having failed to do so, could not raise objection at the belated stage before the third forum---Appellant had not been able to point out that as to how the appellant was prejudiced by the alleged mode adopted by the Trial Court in recording the evidence of the parties and how the evidence of one case had damaged the stance of the appellant in the other case and how the same were different from each other---Appellant had not stated that there were different sets of witnesses in both the cases and separate witnesses were to be examined, whose mind set would vary from each other---Substance could be found in the argument of the appellant that the evidence of a witness recorded in one case was copied in verbatim in the other case of a different witness on the similar issue---Appellant had been non-suited on his own omissions and commissions made during the proceedings of the cases, but he was not aggrieved of any procedural defect on the part of the Trial Court in losing the cases on merits, therefore, after the lapse of about 12 years, the High Court did not find any good ground to throw the parties in another round of litigation in a suit for pre-emption, which was a feeble right---Appellant had remained unable to urge any good ground provided under S. 100 of C.P.C. to warrant interference by this court in the present appeals---Findings rendered by both the courts below against the appellant had not been found by the High Court to be either excessive or offensive---Both the appeals were dismissed in the circumstances.

PLD 2014 SC 39; PLD 2003 SC 184; 2012 CLC 841; 2014 CLC 112; 2008 YLR 326 and 1990 MLD 588 ref.

2007 CLC 1887; 2012 SCMR 1106; 2007 SCMR 957; 2012 MLD 242; 2012 CLC 651; 2011 YLR 1488; Fateh Muhammad through L.Rs. and others v. Fida Hussain Shah through L.Rs. 2007 CLC 1885; Noor and others v. Mst. Sattan through Legal Representatives and others PLD 2013 Lah. 30; Mst. Sardar Begum and 5 others v. Muhammad Ilyas and another 2013 CLC 1013; Muhammad Asghar v. Hussain Ahmad and others PLD 2014 SC 89; Bahadar Ali v. Syed Ghulam Shabir Gilani 1990 MLD 588; Muhammad Ramzan v. Muhammad Jahangir and another 2012 CLC 844; Muhammad Sharif v. Muhammad Yousaf 2008 MLD 307; Khushi Muhammad v. Muhammad Yousaf 2008 YLR 362 and Salehon Muhammad and another v. Allah Yar 1989 SCMR 540 rel.

M. Baleegh-uz-Zaman Chaudhary for Appellant.

Muhammad Mehmood Chaudhary for Respondents.

Date of hearing: 14th May, 2014.

2015 M L D 263

[Lahore]

Before Manzoor Ahmad Malik, J

PERVAIZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 10458-B of 2014, decided on 24th September, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Non-attribution of firearm injury---Non-recovery of weapon---Accused along with co-accused was alleged to have entered complainant's house, whereafter the co-accused fired at and killed the deceased---No allegation of causing firearm injury on anyone including the deceased was made against the accused---Allegation of causing firearm injury to deceased was confined to the extent of co-accused---During investigation no weapon was recovered at the instance of accused---Accused was no more required for purpose of investigation---Case against accused was one of further inquiry---Accused was allowed bail accordingly.

Malik Rab Nawaz for Petitioner.

Nisar Ahmad Virk, Deputy District Public Prosecutor and Umar Hayat, A.S.-I. for the State.

Ch. Asghar Ali for the Complainant.

2015 M L D 272

[Lahore]

Before Amin-ud-Din Khan, J

ALLAH WASAYA and 13 others---Petitioners

Versus

YAR MUHAMMAD and others---Respondents

C.R. No.73-D of 1997, heard on 27th March, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiffs filed suit seeking declaration to the effect that they were owners of suit property and inheritance mutation was against the law---Suit was decreed concurrently---Validity---Evidence with regard to existence of fact that at the time of death of the deceased, the only survivor was her brother (predecessor of plaintiffs) and predecessor of defendants died in her life time, was in shape of oral evidence and oral evidence had been produced from both the sides---Documentary evidence was required in support of claim of plaintiffs and documentary evidence regarding death entries produced by the plaintiffs had been produced in additional evidence and that too had been got exhibited in the statement of counsel of the plaintiffs-respondents---Certified copies of the same were not per se admissible in evidence as the same had been issued by the Secretary, Union Council and those did not qualify to be the certified copies of the record issued in accordance with the Qanun-e-Shahadat, 1984---Production and attaching evidentiary value to such evidence, the summoning of original record as well as the Record Keeper was necessary and such documentary evidence had little value---When defence witness appeared and made statement with regard to the death entries of the deceased, his evidence was sufficient to find that those documents did not match with the original record available in the Union Council---Certificate of death entry was bogus and the Appellate Court disbelieved the same---Copies of mutations were not direct evidence with regard to determination of date of death of deceased---Findings recorded by both the courts below that deceased died after the death of predecessor of defendants-petitioners were based upon no evidence and the same were not sustainable under the law---Revision was accepted and impugned judgments and decrees passed by both the courts below were set aside.

Muhammad Naveed Hashmi for Petitioners.

Muhammad Anwar Pervaiz for Respondents.

Date of hearing: 27th March, 2013.

2015 M L D 280

[Lahore]

Before Atir Mahmood, J

GOVERNMENT EMPLOYEES' COOPERATIVE HOUSING SOCIETY LTD. and others---Petitioners

Versus

SECRETARY COOPERATIVE SOCIETIES and others---Respondents

Writ Petitions Nos.4961 of 2012 and 5088 of 2009, decided on 20th January, 2014.

Co-operative Societies Act (VII of 1925)---

----Ss. 54, 56 & 59---Constitution of Pakistan, Arts. 199 & 25---Constitutional petition---Scope---Laches, principles of---Applicability---Allotment of plot to the employee in the Government Employees Co-operative Housing Society by the Assistant Registrar of Co-operative Societies---Implementation of allotment order---Appeal---Limitation---Implementation of allotment order of plot by the High Court---Factual controversy---Contention of petitioner was that he was allotted plot in the housing society by the Assistant Registrar of Co-operative Societies but said order had not been implemented whereas society had contended that said order was to be executed through civil court---Validity---Number of persons who became members of the society later than the petitioner were given plots without any draw---Some plots were available with the society but petitioner who was member of the society was not given any plot without any plausible reasons---All citizens of the country were equal before law and were entitled to equal protection of law and there should be no discrimination between them---Assistant Registrar of Co-operative Societies had rightly found that allotment of plots to new members by the society ignoring the old members was unfair and unjust and petitioner being old member of the society was entitled to plot---High Court in its constitutional jurisdiction could not go into factual controversy requiring recording of evidence---Person aggrieved by any order of a competent authority must approach the appellate authority/court within the time stipulated by the statute---Society assailed the order of Assistant Registrar by filing appeal but same was barred by time by more than five months---Question of limitation was not a mere technicality but a mixed question of law and fact---Vested right would create in favour of person holding order of any competent authority---Each and every day of delay in filing the appeal was required to be explained by the society but no plausible reason for delay of more than five months was offered---Society did not agitate the order with regard to dismissal of its appeal till filing of present constitutional petition for a period of more than two years and four months before any competent court of law within reasonable time---Law would favour the vigilant but not the indolent---Constitutional petition filed by the society was liable to be dismissed on the score of laches---Order passed by the Registrar or a liquidator was like a decree of civil court and same was required to be executed in the same manner as a decree of the court---Such order was not to be executed necessarily by the civil court and not by the court or the authority who passed the same nor same could not be executed by the High Court---Clause (c) of sub-Article (1) of Article 199 of the Constitution empowered the High Court subject to its satisfaction to issue any direction on an application by an aggrieved person or authority including any Government for the enforcement of any of the fundamental rights---High Court had jurisdiction to issue direction to the society to implement order for allotment of plot to the petitioner---Registrar of the Co-operative Societies or any other officer subordinate to him duly authorized was deemed to be a civil court who had power to implement his orders in case of non-compliance of the same---Society was directed by the Deputy Registrar Co-operative Societies to implement the order for allotment of plot but same was not complied with---Decree of Registrar Co-operative Societies or his nominee or arbitrator would be executed by such court itself and there was no need to approach the civil court for execution of the same---High Court had power to issue direction to the judgment debtor for compliance/ implementation of such order/decree---No illegality, irregularity or jurisdictional defect in the impugned order had been pointed out which was based on sound reasons---Constitutional petition filed by the petitioner was accepted whereas that of society was dismissed in circumstances.

Messrs Firdous Trading Corporation v. Registrar Co-operative Societies, Hyderabad Division, Hyderabad and another 1972 SCMR 91; Sheikh Haider v. Registrar, Co-operative Societies, Karachi and others PLD 1966 (W.P.) Kar. 177; Province of Sindh through Chief Secretary Sindh, Karachi and 4 others v. Gul Muhammad Hajano 2003 SCMR 325 and Khalid Mehmood Inspector Police v. Inspector General of Police Punjab, Lahore and another 1998 Lah. 1606 ref.

Malik Muhammad Aslam and Farooq Haider Malik for Petitioners.

Nadeem Iqbal Chaudhry and Muhammad Amar Niaz Bhadera for Respondents Nos. 4(i) to (vi).

Date of hearing: 17th September, 2013.

2015 M L D 299

[Lahore]

Before Shahid Waheed, J

WAPDA through Chairman and 3 others---Petitioners

Versus

ADVISORY BOARD, PUNJAB, through Chairman and 2 others---Respondents

Writ Petition No.11832 of 2008, heard on 3rd September, 2014.

(a) Electricity Act (IX of 1910)---

----S. 26(6)---Electric Inspector, powers of---Defect in metering equipment---Slowness of electricity meter---Detection bill---Detection bill sent to consumer due to defect in metering equipment could be challenged before the Electric Inspector---However, where the consumer completely by-passed the metering equipment and used a device to supply energy by dishonest extraction of electricity, and question relating to correctness of the metering equipment was not involved, the charge made to consumer under S. 26A of Electricity Act, 1910, was not referable to the Electric Inspector in terms of S. 26(6) or any other provision of the Electricity Act, 1910.

Colon Textile Mills Ltd. through Factory Manager v. Chief Executive Multan Electricity Power Company Ltd. (MEPO) and 2 others 2004 SCMR 1679; Multan Electric Power Ltd. v. Muhammad Ashiq and others PLD 2006 SC 328 and Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others PLD 2012 SC 371 rel.

(b) Electricity Act (IX of 1910)---

----Ss. 26(6) & 36(3)---Constitution of Pakistan, Art. 199---Electric Inspector and Provincial Advisory Board, conclusions of---Conclusions based on reasons---Such conclusions could not be interfered with by the High Court under Art. 199 of the Constitution.

Water and Power Development Authority and 2 others v. Messrs Crown Steel Industries and 2 others 2002 YLR 2876 and WAPDA through its Chairman and 2 others v. Nazir Cotton Mills Ltd. 2002 YLR 3395 rel.

Mian Muhammad Javed for Petitioners.

Muhammad Younas for Respondents.

Date of hearing: 3rd September, 2014.

2015 M L D 320

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD USMAN ARSHAD---Petitioner

Versus

VICE-CHANCELLOR B.Z.U., MULTAN and others---Respondents

Writ Petition No.3696 of 2013, decided on 11th March, 2014.

Constitution of Pakistan---

----Arts. 25 & 199---Educational institution---Discrimination in respect of previous and subsequent grading system for calculation of Cumulative Grade Point Average (CGPA) to MBA students of Bahauddin Zakariya University---Validity---Petitioners, at the time of admission, was fully aware of such grading system and on completion of his course of MBA had accepted the result without raising any objection or reservation---Discrimination could always be pleaded in between similarly placed persons, but in petitioner's case no one had been given any extra benefit from prevailing grading system and it was the previous and subsequent sessions for which the rules were revised---Plea of discrimination was not available to the petitioner in circumstances---Neither any substantive right of the petitioner had been infringed, nor any jurisdictional defect had been pointed out---Petition was dismissed.

Muhammad Mudassir Hassan Samra for Petitioner.

Malik Muhammad Tariq Rajwana for Respondents.

2015 M L D 335

[Lahore]

Before Amin-ud-Din Khan, J

Mst. BUSHRA BIBI and others---Petitioners

Versus

Mst. NASIM BIBI and others---Respondents

Civil Revision No.1857 of 2001, decided on 3rd June, 2013.

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

----S. 12---Suit for specific performance---Oral agreement to sell---Requirements---Discretion of court---Plaintiff filed suit for specific performance of agreement to sell which was decreed concurrently---Validity---When a person came to the court to prove an oral assertion made in the plaint, he was required to specifically plead the same with full details---No document was in existence, in the present case---Grant of decree for specific performance was discretionary relief which would be granted if courts were satisfied that there was an agreement and plaintiff had to prove the same without shadow of doubt---No receipt of payment was in existence and no name of witness had been mentioned in the plaint---Where no date, place and time of agreement was pleaded in the case of oral agreement and no name of the witness had been mentioned in the plaint, decree in such like cases was exceptional---Statements of the plaintiff and her witnesses were contradictory with regard to payment of consideration and agreement arrived at between the parties---Payment in a suit for specific performance was most important ingredient of the contract and upon such point the evidence was sketchy and contradictory---Courts below fell in error while ignoring contradictory evidence available on record and findings recorded by them were not sustainable under the law---Both the courts below while recording concurrent findings had ignored the law---Revision was accepted and impugned judgments and decrees were set aside and suit was dismissed with costs throughout.

Mst. Bakho Mai and 3 others v. Sohrab and another 2006 YLR 1260; Rana Abdul Rasheed v. Iqbal Hussain 2008 CLC 1 and Hazara and others v. Muhammad Yar and others 2011 SCMR 758 distinguished.

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

----S. 12---Decree for specific performance of agreement to sell---Discretionary relief---Grant of decree for specific performance was discretionary relief which would be granted if court was satisfied that there was an agreement between the parties.

(c) Pleadings---

----Requirements---When a person came to the court to prove an oral assertion made in the plaint, he was required to specifically plead the same with full details---Where no date, place and time of an agreement was pleaded in case of oral agreement and no name of the witness had been mentioned in the plaint, decree in such like cases was exceptional.

Zafar Iqbal Chohan for Petitioners.

Ch. Shahzad Sohail for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 3rd June, 2013.

2015 M L D 353

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

ASGHAR ALI---Appellant

Versus

ADDITIONAL SESSIONS JUDGE, KASUR and others---Respondents

E.F.A. No.607 of 2012, heard on 5th June, 2013.

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

----S. 47, O. XXXVII, R. 1 & 2, O.XXIII, R.3 & O. XXI, R. 2(2)---Suit for recovery of money---Compromise---Suit was decreed in terms of compromise---Execution petition was filed wherein objection petition was submitted which was dismissed---Validity---Objection petition had been dismissed merely on technical ground that applicant had failed to inform the court about adjustment of the decretal amount out of court---Executing Court framed the issues but did not provide opportunity to the parties to adduce their evidence---Applicant had claimed payment of the decretal amount and execution of deed of payment whereas respondent had denied such payment and execution of deed---Deed of payment was sent to the Handwriting Expert whose report had been placed on the record---Executing Court should have recorded evidence and then decide the matter---Said court had failed to adjudicate upon the matter in accordance with law which had resulted in miscarriage of justice---Execution petition should be deemed to be pending before the Executing Court which should decide the same afresh after recording of evidence---Impugned orders were set aside and appeal was accepted in circumstances.

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

----O.XXI, R.2(2)---Payment out of court---Requirement---Scope---To inform the court about settlement/adjustment of the decretal amount out of the court by the judgment debtor was not mandatory requirement of law---Provision of Order XXI, Rule 2(2), C.P.C. was directory in nature and non-fulfilment of the same did not entail any penal consequences.

Muhammad Tariq v. Mst. Fazeelat alias Fareelat Bibi PLD 1997 Lah. 728 rel.

Ejaz Majeed Bhatti for Appellant.

Javaid Kasuri for Respondent.

Date of hearing: 5th June, 2013.

2015 M L D 365

[Lahore]

Before Amin-ud-Din Khan, J

Mst. WAZIRAN MAI through L.Rs. and others---Petitioners

Versus

RAB NAWAZ through L.Rs. and 2 others---Respondents

Civil Revision No.1464 of 2012, decided on 13th November, 2012.

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

----S.115---Reappraisal of evidence by High Court in revisional jurisdiction---Not permissible under law---Exceptions stated.

The reappraisal of evidence is not required herein and is also not permissible under the law except when any party to the proceedings is able to show any fatal blunder by the courts below while recording the findings and ignoring the valuable evidence of the parties.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar PLD 1990 SC 1; Mst. Mumtaz v. Afsar Khan and another 1991 SCMR 1779; Muhammad Amir and others v. Mst. Beevi and others 2007 SCMR 614; Asif Raza Mir v. Muhammad Khurshid Khan 2011 SCMR 1917 and Allah Dad and 3 others v. Dhuman Khan and 10 others 2005 SCMR 564 ref.

(b) Administration of justice---

----Party must come to court with clean hands.

Sh. Naveed Sharyar for Petitioner.

Malik Noor Muhammad Awan, Faiz Muhammad Bilal, Najam Iqbal Bilal and Zafar Iqbal Chauhan for Respondents.

Dates of hearing: 6th and 13th November, 2012.

2015 M L D 378

[Lahore]

Before Rauf Ahmad Sheikh, J

SULTAN SAMUNDAR alias SAMUNDAR KHAN through Legal heirs---Petitioner

Versus

MUHAMMAD BASHIR and 4 others---Respondents

Civil Revision No.345-D of 2004, heard on 11th February, 2013.

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

----Art.95---Power-of-attorney---Presumption as to authentication---Presumption about execution and authentication is attached to the power of attorney duly authenticated by the Notary Public or any court, magistrate or the government officer authorized in this behalf.

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

----S.42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Contract Act (IX of 1872), S.197---Suit for declaration---Implied ratification of the acts of attorney---Mutation executed by attorney was challenged by the plaintiff---Plaintiff did not disown the acts of his attorney and kept quiet for a period of almost 2-1/2 decades---Plaintiff had withheld the first power-of-attorney and after failure of his brother in the pre-emption suit, opted to file suit for declaration---Even if there was any mistake as to place, where the land was situated by keeping silent for a period of more than 24 years, plaintiff had impliedly ratified the acts of his attorney---Plaintiff could have not been allowed to say that the sale was made without express authority---Mutation was not void.

(c) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Specific Relief Act (I of 1877), S. 42---Mutation, sanction of---Plaintiff asserted that mutation was void as the same was not signed by the attorney himself---Validity---Contention of the plaintiff was repelled as the signatures of the attorney were not required on the mutation.

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

----S.42, proviso---Suit for declaration without prayer for possession---Such suit was hit by the proviso to S.42 of Specific Relief Act, 1877.

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

----S.115---Revision---Concurrent findings---Interference by High Court---Concurrent findings could be set at naught under S.115, C.P.C. provided the same were result of misreading and non-reading of evidence or found to be perverse and against the law---In the present case, findings recorded by the two courts of competent jurisdiction were based on proper appraisal of evidence and correct appreciation of questions of law involved, High Court declined to interfer in exercise of its revisional jurisdiction.

Pirzada Noor Ali Shakoori for Petitioner.

Muhammad Amir Butt and Sh. Istadamat Ali for Respondents.

Date of hearing: 11th February, 2013.

2015 M L D 389

[Lahore]

Before Shezada Mazhar, J

Mst. AAMNA SAJID---Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE through Chairman---Respondent

Writ Petition No.29887 of 2013, decided on 13th December, 2013.

Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)---

----Ss. 20 & 21---University Calendar, Part-II, R. 49---Constitution of Pakistan, Art. 199---Constitutional petition---Educational Institution---National of Pakistan having Canadian Citizenship, selecting "Pakistani Culture" as an alternative subject to "Compulsory Urdu" in Intermediate Examination---Education Board had imposed condition for prior approval for appearing in Intermediate Examination with "Pakistani Culture" as subject in lieu of "Compulsory Urdu"---Scope---Contention of petitioner was that condition of prior permission/ approval was not enforced when she obtained admission in the college and same could not be applied retrospectively whereas Education Board contended that such facility was available to the candidates who had passed their O-Level/Equivalent Examination from abroad---Validity---Petitioner had passed her O-Level Examination with distinction and she applied for admission in college which was allowed---Candidate had opted for "Pakistani Culture" subject as an alternative of "Compulsory Urdu" which was allowed by the college administration---Petitioner was later on informed that Education Board had changed the policy and she would be required prior permission from the Board for selecting "Pakistani Culture" as subject instead of Urdu---Candidate applied for such permission which was refused by the Board---No opportunity was available to the petitioner to study Urdu during her education when she returned to Pakistan from Canada---Candidate also did not study Urdu as first language for her O-Level Examination and opted for Urdu as second language---Petitioner was entitled to opt for Pakistani Culture instead of Compulsory Urdu---Impugned notification by the Education Board could not be applied retrospectively which was liable to be set aside---Condition with regard to admission of candidate could not be inconsistent with the Act and Regulations---Rule 49 of University Calendar was in field and same was neither deleted nor modified/ amended when impugned notification was issued---Such rule was statutory in nature and had the force of law which could not be overruled by a notification issued by the Officers of the Board---Impugned notification was issued by the Deputy Controller of Examinations who was not empowered/authorized to make such decision as only Controller of Examinations was competent to make such decision---Impugned notification by the Deputy Controller of Examinations was set aside and petitioner was allowed to take "Pakistani Culture" as an alternative subject to "Compulsory Urdu" in her Intermediate Examination---Constitutional petition was accepted, in circumstances.

Ghulam Sarwar v. Board of Intermediate and Secondary Education, Bahawalpur through its Chairman and another 1985 CLC 2459 and Hashaam Saeed and another v. National University of Computer and Emerging Sciences (NU-FAST) through Director and another PLD 2011 Isl. 10 rel.

Ch. Ali Muhammad for Petitioner.

Mehboob Azhar Sheikh, Legal Advisor for Respondent.

2015 M L D 408

[Lahore]

Before Muhammad Qasim Khan, J

ABDUL KARIM FIRDOUS and another---Petitioners

Versus

The STATE and 7 others---Respondents

Writ Petition No.239 of 2014, decided on 16th January, 2014.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 7---Constitution of Pakistan, Art.199---Constitutional petition---Scope and applicability of Illegal Dispossession Act, 2005---Basic ingredients to invoke the provisions of Illegal Dispossession Act, 2005, would be that accused must enter into or upon any property without having any lawful authority to do so, and with intention of dispossession of or grabbing, controlling or occupying the property from the owner or occupier thereof---Respondents, in the present case did not forcibly enter into the disputed property, rather possession of said property was handed over to the respondents by the petitioners themselves voluntarily---To bring a case into the pail of Illegal Dispossession Act, 2005, all the ingredients must co-exist---In the presence of specific consent of the petitioners in handing over possession of the disputed property, the petitioners, to get the said property vacated, should adopt procedure provided for ejectment or vacation of the property under other relevant laws, but not through proceedings under Illegal Dispossession Act, 2005---Trial Court, in circumstances, had committed no illegality, irregularity or jurisdictional defect in dismissing the complaint of the petitioners---Constitutional petition was dismissed.

Muhammad Ihsan Alvi and Syed Waheed Raza Bokhari for Petitioners.

Malik Muhammad Bashir Lakheser, Assistant Advocate General.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

2015 M L D 420

[Lahore]

Before Atir Mahmood, J

MUHAMMAD AFZAL---Petitioner

Versus

MUHAMMAD HAFEEZ-UR-REHMAN through Legal Heirs and others---Respondents

Civil Revision No.2360 of 2011, heard on 13th December, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Insurance policy---Tarka---Scope---Contention of plaintiffs was that they being parents of deceased were entitled to get the share from the insurance amount whereas defendants contended that insurance claim was not a legacy of the deceased as terms and conditions of the insurance policy were that the insurance claim would be given to the survivor---Suit was decreed by the Trial Court which was upheld by the Appellate Court with certain modifications---Validity---Plaintiffs were entitled to have their shares in the claim of insurance policy of the deceased in accordance with their shares---No illegality or irregularity was committed by the courts below while passing the impugned judgments and decrees---No mis-reading or non-reading of evidence or any jurisdictional defect had been pointed out by the defendant---Revision was dismissed in circumstances.

PLD 1991 SC 731 ref.

Mst. Amreen Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512 rel.

Abdul Waheed Chadda for Petitioner.

Mian Asad Saeed for Respondents Nos. 1 and 2.

Date of hearing: 13th December, 2013.

2015 M L D 431

[Lahore]

Before Abdul Sami Khan, J

ARSHAD HUSSAIN alias ARSHI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.303 of 2007 and Criminal Revision No.198 of 2008, heard on 7th November, 2013.

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

----S.302 (b)---Qatl-i-amd---Appreciation of evidence---Interested and chance witnesses---Benefit of doubt---Three persons were sent to face trial, accused was convicted by Trial Court and sentenced to imprisonment for life, whereas on the evidence of same set of witnesses two co-accused were acquitted---Validity---Investigating officer verified occurrence from shopkeepers running shops around place of occurrence but he did not record statement under S. 161, Cr.P.C., of any such shopkeeper---Both eyewitnesses could not be called as natural witnesses rather both of them were chance witnesses and their presence at place of occurrence at relevant time was not substantiated or supported through any independent source---Both eye-witnesses were related and interested witnesses and such fact was admitted by complainant---Credibility, reliability and truthfulness of such eyewitnesses were not above board to put a worthy reliance upon the same---Presence of both eye-witnesses at spot was doubtful and they had been rightly disbelieved by Trial Court---On same set of evidence, Trial Court acquitted two co-accused and on the basis of same set of evidence accused could not be convicted by Trial Court---High Court extended benefit of doubt to accused and set aside conviction and sentence awarded to him by Trial Court, resultantly he was acquitted of the charge---Appeal was allowed in circumstances.

1991 SCMR 643 and Muhammad Sharif and another v. The State 1997 SCMR 866 ref.

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

----S.302---Qatl-i-amd---Appreciation of evidence---Recovery of weapon---Effect---No empty of crime weapon was collected by Investigating Officer from place of occurrence that was the reason that no report of Forensic Science Laboratory was available on record---Alleged recovery of weapon of offence along with eight live bullets was of no avail to prosecution in circumstances.

(c) Criminal trial---

----Investigating officer---Opinion---Scope---Investigating Officer is only to collect evidence and he has got no authority to declare someone guilty or innocent rather sole prerogative in such regard lies with courts of law.

2010 SCMR 1791 and PLD 2011 SC 350 rel.

Malik Muhammad Saleem for Appellant (in Criminal Appeal No.303 of 2007) and for Respondent No.1 (in Criminal Revision No.198 of 2008).

Muhammad Abdul Wadood, Deputy Prosecutor General for the State.

Ch. Sagheer Ahmad for the Complainant (in Criminal Appeal No.303 of 2007) and for Petitioner (in Criminal Revision No.198 of 2008).

Date of hearing: 7th November, 2013.

2015 M L D 450

[Lahore]

Before Atir Mahmood, J

Mirza MUHAMMAD ASHRAF BAIG through Legal heirs and others---Petitioners

Versus

SALEEM ULLAH BAIG and others---Respondents

C.R. No.2724 of 2013, decided on 5th December, 2013.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), S.115---Qanun-e-Shahadat (10 of 1984), Art.100---Suit for specific performance---Revision---Concurrent findings---Trial Court dismissed the suit---Appellate Court dismissed appeal---Plaintiff contended that agreement to sell being a thirty years old document supported by possession of land, presumption of genuineness was attached to such document---Validity---Plaintiffs failed to prove their case---Concurrent findings were immune to interference except where gross illegality or irregularity was floating on the surface of judgments---Revision was dismissed.

Zar Wali Shah v. Yousaf Ali Shah and others 1992 SCMR 1773 and Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189 ref.

Allah Dad and 3 others v. Dhuman Khan and 10 others 2005 SCMR 564 rel.

Mirza Aziz-ur-Rehman for Petitioner.

2015 M L D 463

[Lahore]

Before Muhammad Tariq Abbasi, J

MUHAMMAD AMIN---Petitioner

Versus

JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, SAHIWAL and 7 others---Respondents

Writ Petition No.14868 of 2012, decided on 13th February, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B, 154, 155 & 157---Registration of criminal case---Withdrawal of earlier order---Petitioner had challenged earlier order passed by Justice of Peace, whereby direction was given to S.H.O. for recording version of the petitioner---On application of respondent, Justice of Peace had recalled/withdrawn earlier order---Earlier order was not baseless, but conditional, that if commission of a cognizable offence was found to be made out; then a criminal case should be registered---Said earlier order had been withdrawn through impugned order on the ground that commission of any cognizable offence was not made out---Said reason was not sufficient for withdrawal of the earlier order---Once an order permissible under the law had been passed by the Justice of Peace, then without any reason, cause or justification, its review or withdrawal, was not permissible---Commission of a non-cognizable offence, was no ground, not to carry on any proceedings---Even for commission of non-cognizable offence, due proceedings had been prescribed under S.155, Cr.P.C.---Order of Justice of Peace whereby the earlier order had been recalled/reviewed, could not be termed to be justified, and was not acceptable in the eye of law---Impugned order was set aside.

Aurangzeb Khan v. District Police Officer and 4 others 2009 YLR 83 ref.

Malik Muhammad Zafar Iqbal for Petitioner.

Mazhar Jamil Qureshi, A.A.-G. for Respondents Nos. 1 to 4.

Nemo for other Respondents.

2015 M L D 477

[Lahore]

Before Shahid Jamil Khan, J

Haji Raja MUHAMMAD AKRAM and others---Petitioners

Versus

RIAZ AHMAD and others---Respondents

C.R. No.693 of 2011, decided on 3rd June, 2014.

Civil Procedure Code (V of 1908)---

----S. 148---Specific Relief Act (I of 1877), S. 8---Suit for possession of immovable property---Appeal---Non-payment of court-fee---Enlargement of time---Scope---Conduct of party---Effect---Appeal was dismissed for non-payment of court-fee on the date specified by the Appellate Court---Contention of appellants was that direction was not communicated to them for payment of court-fee---Validity---Impugned decree was for Rs. 6,50,000 and same was in the knowledge of appellants---Appellants were required to affix court-fee of Rs. 15,000 with the memo of appeal---Appellants were bound to know about the orders of court in their absence---Contumaciousness and mala fide was on record on the part of appellants as they neither supplied court-fee on the date given nor they appeared even to request for extension of time---Appellants had flouted the direction of Appellate Court to pay court-fee despite giving opportunity to them---No material irregularity or illegality was committed by the Appellate Court while exercising jurisdiction and dismissal of appeal was justified---Revision was dismissed in circumstances.

Provincial Government through Additional Chief Secretary (Development) Government of Balochistan, Quetta and another v. Abdullah Jan and others 2009 SCMR 1378 and Mst. Jindo Mai v. Muhammad Bakhsh 2010 SCMR 48 ref.

Provincial Government through Additional Chief Secretary (Development) Government of Balochistan, Quetta and another v. Abdullah Jan and others 2009 SCMR 1378 and Mst. Jindo Mai v. Muhammad Bakhsh 2010 SCMR 48 distinguished.

Riffat Iqbal v. Mst. Fatima Bibi 2007 SCMR 494 and Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289 rel.

Muhammad Nasrullah Malik for Petitioners.

Muhammad Siddique Awan for Respondents.

2015 M L D 502

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD ARSHAD KHARAL---Petitioner

Versus

JUSTICE OF PEACE and others---Respondents

Writ Petition No.7223 of 2013, decided on 18th April, 2014.

Criminal Procedure Code (V of 1898)---

----Ss.22-A & 22-B---Constitution of Pakistan, Art.199---Constitutional petition---Cross version or second F.I.R.---Principle---Ex-officio Justice of Peace directed Station House Officer to register second F.I.R. as the occurrence was alleged to be a fake police encounter---Validity---Judicial inquiry was conducted, in which it was observed that deceased was killed by shots of police and none was injured from police side---Record of police did not show that he was a top class absconder, therefore, cross version in police encounter was not enough for the reason that F.I.R. earlier registered would be seen in its juxtaposition---Second F.I.R. was rightly ordered to be registered particularly when different eye-witnesses had accounted for the occurrence---No Constitutional defect was noticed in order passed by Ex-officio Justice of Peace and the same was well reasoned and legal---Petition was dismissed in circumstances.

Mushtaq Hussain and another v. The State 2011 SCMR 45; Muhammad Aslam v. S.H.O. and others PLJ 1997 Lah. 1453; Mst. Ghazala Aziz v. S.H.O. and others 1999 YLR 1388; Mumtaz Hussain v. Deputy Inspector General, Faisalabad and 7 others PLD 2002 Lah. 78; Noor Ahmad v. D.I.G., Police, D.G. Khan and 7 others 2005 YLR 1545; Muhammad Asif v. Umar Farooq Khan, Inspector Police and 5 others 2010 MLD 128; Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556; Musthaq Hussain and another v. The State 2011 SCMR 45; Muhammad Ali v. D.P.O. Writ Petition No.2795/2014 and Babra Sultana v. R.P.O., and others Writ Petition No.2795/2014 rel.

Muhammad Ahsan Bhoon for Petitioner.

Barrister Qasim Ali Chohan, Assistant Advocate General for Respondents Nos.1 and 2 on Court's Call.

Ch. Umer Hayat Kamran Rajoka and Ghulam Shabbir Shahid for Respondent No.3.

Date of hearing: 4th April, 2014.

2015 M L D 512

[Lahore]

Before Shah Khawar, J

MUHAMMAD TAHIR JAVED---Petitioner

Versus

DCO, CHINIOT and others---Respondents

Writ Petition No.19902 of 2014, decided on 9th July, 2014.

Constitution of Pakistan---

----Arts. 9, 18 & 199---Constitutional petition---Fundamental rights of citizens---Duties of State functionaries---Respondent/DCO postponed decision on petitioner's application for permission to hold circus shows citing deteriorating law and order and month of Ramzan---Validity---State functionaries had to act fairly and justly to ensure that no one was denied the right to earn livelihood---Under Art.199 of the Constitution, High Court was custodian of Fundamental Rights of citizens---Fundamental Rights of citizens could not be denied on account of fanciful and arbitrary ideas of State functionaries---Under Art.9 of the Constitution, protection of life of citizens was constitutional obligation of the State---Fundamental Rights of individuals could not be denied by action of executive on the pretext of security problems and law and orders---Summary/noting approved by respondent DCO was not tenable, same was set aside---Constitutional petition was accepted and respondent DCO was directed to facilitate petitioner in holding circus shows.

Shaukat Ali v. Government of Pakistan and others PLD 1997 SC 342 rel.

Asad Mehmood Ahmad Khan and Ms. Samina Asad Khan for Petitioners.

Muhammad Nasir Chauhan, A.A.-G. for the State.

Muhammad Zafar Ullah Khan, S.I. Police Station City Chiniot.

Faisal Hayat, Head Clerk, DCO office Chiniot.

2015 M L D 525

[Lahore]

Before Manzoor Ahmad Malik, J

MAQBOOL alias QOOLI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.214-J and Criminal Revision No.504 of 2010, heard on 3rd June, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---No time of occurrence was mentioned in the relevant column of F.I.R.---Prosecution story, was doubtful and highly improbable---Very reason for presence of both the witnesses to witness the alleged fight between accused and the deceased, was not free from doubt and could not be proved by the prosecution---None of the witnesses had claimed that he had witnessed the accused while killing deceased---Evidence of said witnesses, at the most could be termed as evidence of last seen, and same could not be believed without there being any independent and strong corroboration, which was not available in the case---Story of fight between accused and deceased, was negated---Prosecution witnesses, did not state that accused was armed with any weapon at the time of alleged fight with deceased---Time of death of the deceased as claimed by complainant and prosecution witnesses, did not coincide with the time of death opined by the Doctor---Prosecution had failed to prove the motive behind the occurrence---Material contradictions existed in the statements of prosecution witnesses---Prosecution case being doubtful in nature, accused was entitled to the benefit of doubt, not as a matter of grace, but as of right---Conviction and sentence awarded to accused by the Trial Court, were set aside; he was acquitted of the charge and was released, in circumstances.

Ayub Masih v. The State PLD 2002 SC 1048 ref.

Ali Ameer Joiya, Defence Counsel for Appellant at State expense.

Nisar Ahmad Virk, Deputy District Public Prosecutor for the State.

Rana Muhammad Saeed Khan Jammun for the Complainant.

Date of hearing: 3rd June, 2014.

2015 M L D 543

[Lahore]

Before Altaf Ibrahim Qureshi and Shahid Bilal Hassan, JJ

KHADIM HUSSAIN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.360/BWP and 353/BWP of 2004, decided on 16th May, 2013.

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

----Ss. 302(c) & 337-F(v)---Qatl-i-amd, causing Hashimah---Appreciation of evidence---Sentnece, reduction in---Time, place and occurrence as well as the presence of accused person was admitted---Bricks lying at the place of occurrence, were petted by the parties on each other, which divulged that it was not a pre-planned and pre-meditated occurrence, rather it occurred at the spur of the moment; and accused party was not having any intention to commit qatl-i-amd of the deceased---Free fight took place inter se the parties---Conflict was noticed in the contents of the F.I.R. and the medical evidence, as well as depositions of prosecution witnesses regarding causing of injuries on the head of the deceased with hatchet---Both the witnesses had improved their versions---In spite of conflict between the ocular account and medical evidence regarding number of injuries, the seat of injury, (head), remained the same---Prosecution had suppressed the injuries sustained by accused and one female during the occurrence, which had shown mala fide and ill-will---Recovery of weapon had allegedly been effected after about two months and nine days of the occurrence, which in the eye of law had no credence; as one could not keep the weapon of offence for such a long period in order to get the same recovered for using the same as supportive evidence to pass conviction against him---Recovery witnesses, who were closely related to the complainant and the deceased, had failed to establish their purpose of presence at the time of disclosure of accused; their testimony, in circumstances, coupled with lapse of long period, could not be relied upon---Motive as alleged by the prosecution, stood admitted and proved---Life imprisonment awarded to accused, was harsh, in view of mitigating circumstances, such as suppression of injuries received by accused side, occurrence being result of free fight without premeditation and belated recovery---While taking lenient view, conviction of accused was upheld, but in view of mitigating circumstances sentence awarded to accused was reduced from imprisonment for life to 14 years---Accused had served out sentence of eleven years, two months and 9 days---Co-accused had already undergone 10 months of sentence awarded to him; and had he been behind the gallows the remittance granted by the government from time to time would have affected his sentence and he had been released from jail after serving out his sentence---Co-accused had faced the agony of trial by appearing before High Court after release on bail pursuant to suspension of sentence awarded to him---Taking lenient view, the sentence already undergone by him was considered as sufficient---Co-accused was set at liberty, in circumstances.

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

----S. 417(2-A)---Penal Code (XLV of 1860), Ss.302(c) & 337-F(v)---Qatl-i-amd, causing Hashimah---Appeal against acquittal---Findings of the Trial Court regarding acquittal of co-accused, was based on plausible and cogent reasoning---Co-accused had played no active role during the occurrence, and no injury was attributed to the deceased at their hands---Credence would be accorded to the findings of the Trial Court, whereby co-accused had been exonerated from the charge of commission of the crime---Once a judgment of acquittal was recorded, accused would earn double presumption of innocence---Such judgment could not be interfered with, unless and until strong and exceptional circumstances would exist, warranting interference by High Court---Trial Court, in circumstances, had rightly acquitted co-accused, as such, acquittal was neither perverse nor based upon misreading and non-reading of evidence.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Haji Amanullah v. Munir Ahmad and others 2010 SCMR 222 rel.

Mumtaz Hussain Bazmi for Appellants Nos. 2 to 13 (Respondents in Criminal Appeal No.353 of 2004).

Muhammad Latif, Deputy Prosecutor General the State.

Malik Sadiq Mahmud Khurram and Muhammad Nawaz for the Complainant (Appellant in Criminal Appeal No.353 of 2004).

Date of hearing: 16th May, 2013.

2015 M L D 553

[Lahore]

Before Muhammad Tariq Abbasi, J

AMEEN KHAN and another---Appellants

versus

The STATE---Respondent

Criminal Appeal No.357 of 2010, heard on 28th May, 2014.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---No direct evidence was available on record and prosecution case rested upon the circumstantial evidence---Complainant, who had not seen the alleged occurrence, had not narrated any motive, and contended that the cause of the occurrence was unknown, but in the court he had narrated the motive, which could be treated as an afterthought/improvement, which was not only discarded, but that had created serious doubt about his credibility---Ocular account of one of the prosecution witnesses, had not helped the prosecution---Conduct of other prosecution witness, had cast serious doubt about his veracity and credibility---Blood-stained clothes, which during the alleged occurrence were being worn by accused, were recovered and taken into possession, but nothing was available on the record to suggest that blood on the clothes was that of the deceased---Said recovery, did not benefit the prosecution---Confession/admission allegedly made by accused before the Police, was not admissible/acceptable under the law---Prosecution had failed to establish its case, and charge against accused was not proved beyond any doubt---Trial Court was not justified in convicting accused through impugned judgment which was set aside---Accused were acquitted extending them the benefit of doubt, in circumstances.

Muhammad Wasif Khan and others v. The State and others 2011 PCr.LJ 470; Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825; Muhammad Ashraf and another v. The State 2011 YLR 767; Qazi alias Dost Muhammad and another v. The State 2014 PCr.LJ 611; The State through Deputy Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayum 2001 SCMR 14 and Salim Javed Durrani v. State through Dy. Attorney General, N.-W.F.P., Peshawar and 4 others 2005 PCr.LJ 22 rel.

(b) Criminal trial---

----Evidence---Circumstantial evidence---Scope---Each and every circumstance should be unified in such a manner that a continuous chain should be made, one end of which should touch the dead-body, whereas the other end should be around the neck of accused---If chain link was missing, then its benefit must go to the accused.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State and 2 others 1996 SCMR 188; Asadullah and another v. State and another 1999 SCMR 1034; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

Qazi Muhammad Amin for Appellants.

Sh. Najaf Hanif for the Complainant.

Qaisar Mushtaq, ADPP for the State.

2015 M L D 593

[Lahore]

Before Mahmood Ahmad Bhatti, J

BABAR ALI---Petitioner

versus

The STATE and another---Respondents

Criminal Miscellaneous No.10115-B of 2014, decided on 7th August, 2014.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S. 376---Rape---Bail, refusal of---Delay in FIR---Accused was arrested for committing rape and he raised plea that there was delay of ten days in lodging of FIR---Validity---Medical evidence was per se consistent with allegation made against accused---Accused did not offer any tenable explanation as to why he had been singled out to implicate him falsely in the case---FIR was lodged some ten days after alleged occurrence but the delay had been satisfactorily explained---Parents of minor victim at the relevant time were not at home and they had gone to another district for earning their livelihood, leaving the victim in the custody of any other person---Offence with which accused was charged carried penalty of twenty five years' imprisonment and it fell within the prohibitory clause of S.497(1), Cr.P.C. disentitling him to grant of bail, especially when accused had failed to make out a case of further inquiry---Bail was declined in circumstances.

Qazi Iftikhar Ahmed Toor for Petitioner.

Rai Azhar Javaid Kharal for the Complainant.

Muhammad Akhlaq, D.P.G. and Nazir S.I. for the State.

2015 M L D 610

[Lahore]

Before Sadaqat Ali Khan and James Joseph, JJ

MUHAMMAD MUNIR---Appellant

versus

The STATE and others---Respondents

Criminal Appeal No.440 of 2010 and Murder Reference No.18 of 2011, heard on 9th June, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Mitigating circumstances---Sentence, reduction in---FIR, being prompt, had excluded the possibility of substitution of accused and any chance of entering into deliberation and consultation with others to involve accused wrongfully---All the material details of the occurrence had been elaborately explained in the FIR---Eye-witnesses were cross-examined at length, but their evidence could not be shaken during the process of cross-examination; they corroborated each other on all material aspects of the case and their evidence was quite natural, trustworthy and confidence inspiring, which had been fully supported by the medical evidence---Complainant was real brother of the deceased---Case was that of single accused and only single injury on the person of deceased was attributed to accused---Highly improbable that complainant would let off the real culprits and would falsely implicate accused---Substitution in such like cases was a rare phenomenon---No litigation was pending between the parties regarding the disputed wall, and no enmity existed previously between the parties---Motive as alleged by the prosecution, was not proved---Possibility of the manufacturing of the crime empties before their dispatch to Laboratory, could not be ruled out of consideration---Defence plea of accused was nothing but the denial---Prosecution had proved its case against accused through the evidence of eye-witnesses supported by medical evidence---Prosecution had proved its case against accused beyond the shadow of any doubt---Some mitigating circumstances were in favour of accused; firstly, court had disbelieved recovery of gun and two crime cartridges, not recovered on pointation of accused; secondly, it was a case of single fire, and there was no allegation of repetition of any fire-arm injury against accused; thirdly, court had disbelieved the motive story of the prosecution and fourthly, at the time of demolishing the disputed wall by deceased, some hot words would have been uttered due to which both parties grappled with each other in result of which deceased died---Father of accused, had also received injuries in the occurrence---Accused, at the time of occurrence was a young man of 23/24 years of age, who acted under influence of his father/co-accused, who was acquitted---Prosecution case was found to be false qua two co-accused, who were finally acquitted---Death sentence awarded to accused, was quite harsh, in circumstances---Maintaining conviction of accused, his sentence was altered from death to imprisonment for life, with benefit of S.382-B, Cr.P.C.

Masood Aslam alias Shada v. The State 2002 PCr.LJ 1603 and Muhammad Imran alias Asif v. The State 2013 SCMR 782 rel.

Muhammad Umair Mohsin for Appellants.

Muhammad Naeem Bhatti for the Complainant.

Ch. Asghar Ali Gill, D.P.G. for the State.

Date of hearing: 9th June, 2014.

2015 M L D 642

[Lahore]

Before Faisal Zaman Khan, J

Sh. MUHAMMAD RAFIQUE---Petitioner

versus

Sh. MUHAMMAD JAMEEL---Respondent

C.R. No.1348 of 2014, decided on 22nd July, 2014.

(a) Benami transaction---

----Ingredients---Proof---Record/payment of property tax---Probative value---Person who claimed to be real owner of the property against benamidar, had to prove the source of consideration, custody of original title deed/document, possession of the property and motive of benami transaction---Title documents were admittedly in possession of plaintiff who had produced the original sale deed in Trial Court---Defendant had to produce the vendor from whom he got the sale deed executed after payment, in the name of plaintiff---Defendant could not prove as to how he had earned consideration amount and how the same was handed over to plaintiff or the vendor---Sale deed showed that sale consideration was Rs.7000 but defendant alleged to have paid Rs.10000 to plaintiff---Had sale agreement been arrived at between vendor and defendant, defendant would have been aware of sale price---Defendant neither produced marginal witnesses or the identifier of the sale deed nor proved motive of benami transaction---Except possession, no other necessary ingredient of benami transaction was proved---Record of property tax was not conclusive proof of ownership---No perversity or jurisdictional error had been pointed out in orders of the courts below---Revision was dismissed.

Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 and Nabi Bakhsh v. Fazal Hussain 2008 SCMR 1454 ref.

Mst. Asia Bibi v. Dr. Asif Ali Khan and others PLD 2011 SC 829; Wasi-ud-Din v. Fakhar Akhtar and 4 others 2011 SCMR 1550; Muhammad Nawaz Minhas and others v. Mst.Surriya Sabir Minhas and others 2009 SCMR 124; Muhammad Siddiqi through attorney v. T.J. Ibrahim and Company and others 2001 SCMR 1443; Sharifan Bibi v. Abdul Majeed Rauf PLD 2012 Lah. 141; Muhammad Zaman v. Sheikh Abdul Hameed 2002 CLC 1209; Qurib Ali alias Muhammad Kabir v. Dr.Shah Nawaz 2001 CLC 1599; Syed Habib Mahmood v. Mrs.Balqees Fatima 1998 MLD 390 and Shaikh Muhammad Afzal v. Virbai through Legal heirs 1993 CLC Kar. 1702 rel.

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

----S. 115---Revisional jurisdiction---Scope---Concurrent findings---Interference could be made in revisional jurisdiction in cases of concurrent findings of courts below where such findings suffered from misreading or ignorance of material piece of evidence or jurisdictional error.

Muhammad Bux v. Muhammad Ali 1984 SCMR 504; Haji Muhammad Zaman v. Zafar Ali Khan PLD 1986 SC 89; Abdul Hameed v. Ghulam Muhammad and others 1987 SCMR 1005; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Dilmir v. Ghulam Muhammad and 2 others PLD 2002 SC 403; Haji Hussain Haji Dawood through Legal Heirs and others v. M.Y. Kherati 2002 SCMR 343; Brig.(R) Sher Afghan v. Mst. Sheeren Tahira and 6 others 2010 SCMR 786 and Noor Muhammad v. Mst. Azmat-E-Bibi 2012 SCMR 1373 rel.

Imtiaz Hussain Khan Baloch for Petitioner.

2015 M L D 659

[Lahore]

Before Sikandar Zulqarnain Saleem, J

Mst. KANIZ FATIMA---Petitioner

versus

SESSIONS JUDGE, MUZAFFARGARH and 3 others---Respondents

Writ Petition No.8489 of 2014, decided on 19th June, 2014.

Penal Code (XLV of 1860)---

----S.361---Criminal Procedure Code (V of 1898), S.491---Constitution of Pakistan, Art.199---Constitutional petition---Habeas corpus proceedings---Kidnapping from lawful guardianship---Custody of mother---Quashing of habeas corpus proceedings---Sessions Judge, on application filed by father initiated proceedings under section 491, Cr.P.C. against mother for custody of her own son who was 4 years old---Validity---Mother of child was always a natural guardian along with father---Mother could never be ascribed or attributed offence of kidnapping her own child---Exceptions posted with S. 361 P.P.C. had even gone to the extent of reliving a person from criminal liability even if he/she believed himself/herself to be mother/father of an illegitimate child or who in good faith had believed to be entitled to lawful custody of such child---Child of 4 years needed love, affection and care from mother---Offence of kidnapping from lawful guardian by mother was not made out and Sessions Judge did not examine relevant material on record---High Court set aside the order passed by Sessions Judge, and quashed proceedings under S. 491, Cr.P.C., as continuation of same would amount to abuse of process of law---Petition was allowed in circumstances.

Tahir Mehmood for Petitioner.

Malik Muhammad Bashir Lakhesir for Respondent.

2015 M L D 666

[Lahore]

Before Amin-ud-Din Khan, J

ALLAH DITTA---Petitioner

versus

MUHAMMAD HANIF and others---Respondents

C.R. No.3162 of 2011, decided on 6th May, 2014.

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

----S. 42---Suit for declaration---Scope---Defendant was wife of plaintiff at the time of attestation of impugned mutation in her favour which was attested in due course of law---Revenue authorities entered and attested the impugned mutation---Pleadings of plaintiff were not clear with regard to payment of consideration amount---Case and evidence of plaintiff were self-contradictory with regard to payment of earnest money---No written agreement was produced and best evidence had been withheld which would go against the plaintiff---Present was not a case of shifting of onus of proof upon the beneficiary---Plaintiff was not a party in the proceedings of sale mutation but was a third party challenging the same---Plaintiff was required to plead specific case with regard to detail event of oral agreement to sell specifying the names of witnesses, date and place where said agreement was arrived at but no such detail was available in the plaint---Plaintiff was required to prove his ownership and then he was required to prove that attestation of mutation was against the law and a clog on his ownership was liable to be declared not binding upon his rights---Pre-existing right could be declared through a declaratory decree and new rights could not be created through such decree---Plaintiff had prayed that a right be created in his favour in the suit property through a declaratory decree in the present case---Suit property was never transferred in favour of plaintiff by the original owners rather same was transferred in favour of defendant through impugned mutation---Plaintiff had failed to prove the agreement to sell in his favour---Plaintiff was required to file a suit for specific performance if there was any agreement in his favour---Plaintiff might have a case of Benami transaction if at the time of attestation of mutation his wife had paid money and property was transferred in her favour---Plaintiff was required to prove pre-existing right in his favour for declaratory decree---No right of ownership of suit property was transferred in favour of plaintiff---Form of present suit was incorrect---Findings recorded by the Appellate Court were exhaustive and every bit of evidence had been considered by the said court---Revision was dismissed with costs in circumstances.

Khan Muhammad v. Muhammad Din through L.Rs. 2010 SCMR 1351; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Mst. Zeenat Bibi v. Muhammad Younas and others 2011 YLR 1789; Tooti Gul and 2 others v. Irfanuddin 1996 SCMR 1386; Laloo and another v. Ghulaman 2000 SCMR 1058; Amirzada Khan and another v. Itbar Khan and others 2001 SCMR 609; Ghulam Hussain and others v. Imam Bakhsh and 9 others 1995 MLD 1165; Mst. Jaina v. Mst. Zohra Bibi and 12 others 1999 MLD 2302; Zulfiqar and 11 others v. Fateh Sher and 4 others 2011 YLR 2725; Muhammad Iqbal and 9 others v. Muhammad Rafique 2002 YLR 1320; Niaz Rasool through Muhammad Bilal v. Mst. Parveen Ikram and others 2013 SCMR 397; Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151; Waris Ali and 2 others v. Ghulam Rasool and another 1979 CLC 533; Muhammad Siddique v. Muhammad Sharif and others 2005 SCMR 1231; Shakoor v. Province of Punjab through Collector and others PLD 2013 Lah. 17; Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs. 2008 SCMR 855; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Sardara and 4 others v. Muhammad Khan PLD 1998 SC 1509; Muhammad Aslam v. Khuda Dad 1982 SCMR 511; Abdul Rashid and another v. Suleman and 4 others 2001 CLC 60; Late Mst. Majeedan through Legal Heirs and another v. Late Muhammad Naseem through Legal Heirs and another 2001 SCMR 345 and Canal View Cooperative Housing Society v. Javed Iqbal and another PLD 2004 SC 20 ref.

Khan Muhammad v. Muhammad Din through L.Rs. 2010 SCMR 1351; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Mst. Zeenat Bibi v. Muhammad Younas and others 2011 YLR 1789; Tooti Gul and 2 others v. Irfanuddin 1996 SCMR 1386; Laloo and another v. Ghulaman 2000 SCMR 1058; Amirzada Khan and another v. Itbar Khan and others 2001 SCMR 609; Ghulam Hussain and others v. Imam Bakhsh and 9 others 1995 MLD 1165; Mst. Jaina v. Mst. Zohra Bibi and 12 others 1999 MLD 2302; Zulfiqar and 11 others v. Fateh Sher and 4 others 2011 YLR 2725; Muhammad Iqbal and 9 others v. Muhammad Rafique 2002 YLR 1320 distinguished.

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

----O.XLI, R.27 & O.VII, R.14---Additional evidence, production of---Scope---Additional evidence could be permitted by the court if same was helpful for the court to decide the matter in issue.

Ch. Muhammad Anwar Bhinder and Mian Zafar Iqbal Kalanauri for Petitioners.

Ahmad Waheed Khan and Adnan Tariq for Respondents.

Date of hearing: 5th, 6th May of 2014.

2015 M L D 677

[Lahore]

Before Sikandar Zulqarnain Saleem, J

MUHAMMAD ISMAIL alias ALLAH DITTA---Petitioner

versus

The STATE and another---Respondents

Criminal Miscellaneous No.1089-B of 2014, decided on 8th April, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 392, 395 & 411---Qatl-i-amd, robbery, dacoity, dishonestly receiving stolen property---Bail, refusal of---Accused could not point out any motive for false implication on the part of complainant---Complainant and prosecution witness had recognized the accused in identification parade---Trial had commenced; witnesses had been examined---Bail application was dismissed.

Sardar Mehboob for Petitioner.

Ch. M. Akbar, DPG and Ijaz Hussain, S.I. for the State.

Aftab Hussain Malik for the Complainant.

2015 M L D 684

[Lahore]

Before Muhammad Qasim Khan, J

ISHAQ AHMAD---Petitioner

versus

DISTRICT COORDINATION OFFICER, MULTAN and 4 others---Respondents

Writ Petition No.2557 of 2013, decided on 21st March, 2013.

(a) Constitution of Pakistan---

----Art.199 & Ch. 1, Part. II---Constitutional petition---Maintainability---Fundamental Rights---Scope---Right of liberty, security, dignity and freedom of a person has been fully protected and safeguarded by provision of Chapter-1, Part-II of the Constitution---Under Charter of Human Rights, High Court has constitutional obligation to jealously safeguard such Fundamental Rights against any invasion.

Dr. Muhammad Shoaib Suddle v. Province of Sindh and others 1999 PCr.LJ 747 rel.

(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1961)---

----Ss.3 & 5---Constitution of Pakistan, Art.199---Constitutional petition---Detention order---Pre-conditions---District Coordination Officer, duty of---Scope---Petitioners were aggrieved of detention orders passed by authorities against them on the allegations of having relations with proscribed organizations---Validity---Detention order amounted to curtailing fundamentally guaranteed right of liberty of a person and it was for such reason such powers were vested with District Coordination Officers, who were expected to be unbiased, as compared to police agency---District Coordination Officers were not supposed to act on the reports of police agency until and unless they had satisfied themselves that such reports were correct and were also supported by tangible material---Detention order passed against petitioners were passed by District Coordination Officers without judicious application of mind about alleged activities of detenus, therefore, they had deviated from their one of the sacred duty by taking off liberty of persons---All grounds of detention enumerated in detention orders passed by authorities were vague, based upon presumption and speculations and detaining authorities did not apply their mind to satisfy themselves for issuance of detention orders of detenus---High Court in exercise of constitutional jurisdiction set aside detention orders passed by authorities and petitioners were set at liberty---Petition was allowed in circumstances.

PLD 2003 SC 442 fol.

Hafiz Muhammad Saeed and 3 others v. Government of the Punjab, Home Department through Secretary, Lahore and 2 others 2009 YLR 2475; Mst. Misbah Tabassum and 2 others v. Government of Punjab through Secretary, Home Department, Lahore and 3 others 2007 PCr.LJ 1776; Sheikh Rashid Ahmad v. D.M. Rawalpindi and others PLJ 2004 Lah. 1221; Muhammad Mushtaq v. District Magistrate, Sheikhupura and another 1997 MLD 1658 and Iffat Razi v. Government of Punjab and others PLD 2002 Lah. 194 ref.

Mehmood Khan Ghouri for Petitioners (in Writ Petitions Nos.2557, 2558, 2613, 2614, 2616/2013 and 2712 of 2013.

Muhammad Basir Khan Lakhani for Petitioners (in Writ Petitions Nos.2911 and 2538 of 2013).

Mian Gohar Mehmood Paracha for Petitioner in (Writ Petition No.2463 of 2013).

Mubashir Latif Gill, Assistant Advocate General with DPO, Muhammad Razzaq Rana DSP (Legal), Abdul Qayum Inspector, Muhammad Ajmal Inspector, Allah Bachaya Sub-Inspector, Muhammad Hanif, Sub-Inspector, Asif Zia (GAR), DCO Office, Multan, Muhammad Aslam Sub-Inspector, Abdul Kamran Inspector and Muhammad Anwar Junior Clerk, DCO Office, Multan, Asghar Sub-Inspector and Anwar Junior Clerk, DCO Office, Multan, Nadir Hameed Head Clerk and Muhammad Shafiq Sub-Inspector for Respondents.

2015 M L D 698

[Lahore]

Before Arshad Mahmood Tabassum, J

Mst. SHAZIA ZAHOOR and another---Petitioners

versus

ARSHAD SULTAN and 2 others---Respondents

Writ Petition No.1646 of 2012, decided on 7th July, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance for minor---Father was capable to pay more than the amount decreed by the Family Court towards the maintenance allowance---Amount of Rs.3,000 was insufficient to cater for the future needs of minor---Impugned judgment passed by the Appellate Court was result of misreading and non-reading of evidence available on record---High Court fixed past maintenance allowance of minor at Rs.2,000 per month while the future maintenance allowance was fixed at the rate of Rs. 5,000 per month with 10% annual increase---Constitutional petition was accepted in circumstances.

Muhammad Imtiaz Abbasi for Petitioners.

Sabir Hussain Janjua for Respondent No.1.

Date of hearing: 7th July, 2014.

2015 M L D 711

[Lahore]

Before Muhammad Anwaarul Haq and Abdus Sattar Asghar, JJ

MUHAMMAD NAWAZ---Petitioner

versus

The STATE and 8 others---Respondents

Writ Petition No.19251 of 2014, heard on 8th July, 2014.

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

----Ss. 2(n), 7(e) & 23---Penal Code (XLV of 1860), Ss.365 & 365-A---Criminal Procedure Code (V of 1898), S. 154---Constitution of Pakistan, Art.199---Constitutional petition---Kidnapping and kidnapping for ransom---Act of terrorism---Determination---FIR, object of---Anti-Terrorism Court after completion of trial came to the conclusion that offence of terrorism was not made out, therefore, challan was returned to prosecution for presenting it before Court of competent jurisdiction---Validity---Purpose of lodging FIR was merely to initiate process of law---During course of investigation, after recording statement of alleged abductee and relevant prosecution witnesses, prosecution built up its case that accused had been claiming ransom from abductee and concerned prosecution witnesses during period of his illegal detention---Alleged offence attracted provisions of S.2(n) of Anti-Terrorism Act, 1997, which was exclusively triable by Anti-Terrorism Court as provided in Third Schedule of Anti-Terrorism Act, 1997---Anti-Terrorism Court was misconceived while declining to exercise jurisdiction with reference to absence of any act or attempt to spread harassment or terrorism---High Court directed Anti-Terrorism Court to decide case in accordance with law---Petition was allowed in circumstances.

Rai Haider Ali Khan Kharal for Petitioner.

Rai Muhammad Usman Khan for Respondents Nos. 4 to 9.

Ms. Salma Malik, Assistant Advocate General for the State.

Date of hearing: 8th July, 2014.

2015 M L D 728

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Ali Baqar Najafi, JJ

MAZHAR IQBAL---Appellant

versus

The STATE---Respondent

Criminal Appeal No.186 of 2007, heard on 12th June, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 392 & 398---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, attempt to commit robbery or dacoity when armed with deadly weapon---Appreciation of evidence---Delay of more than two hours in reporting the matter to the Police, had not been properly explained---Such delay spoke volumes, especially when the complainant claimed that he had witnessed the occurrence, and was not having any handicap to furnish information to the Police---Accused was not nominated in the FIR, and only his body features and age were mentioned therein---Prosecution witnesses mentioned in the FIR, claiming to have seen the occurrence, had not joined identification parade---Complainant who joined identification parade, had not appeared during the course of trial---Other witness introduced by the prosecution for test identification parade, was not mentioned in the crime report---Identification parade was not carried out in pursuance of the settled law, and also in sheer violation to the instructions enunciated in the High Court Rules and Orders---Two prosecution witnesses, who were real brothers of one of the deceased, were residents of place, which was at a distance of 160-Kms from the place of occurrence---Complainant, was not produced by the prosecution for the reasons best known to it---Other injured prosecution witness had not supported the prosecution version---Said witness had stated before the Trial Court that accused was not assailant, who inflicted injuries on his person---Statements of the prosecution witnesses, did not meet the required standard to be taken into consideration in the case involving capital punishment---Prosecution witnesses, who failed to establish their presence at the time of occurrence, at the most were chance witnesses; evidence of such a witness required strong/independent corroboration, which was missing in the case---Prosecution, had failed to establish its case on ocular account and medical evidence---Investigating Officer had admitted that the memo of pointation was prepared by him, without recovery of any article---Said memo carried no evidentiary value as same was hit by Arts.39/40 of Qanun-e-Shahadat, 1984---Recovery of pistol, which was not straightforward and did not inspire confidence---No allegation of commission of robbery was mentioned by the complainant, while lodging the crime report, and subsequently no evidence was produced to supplement the same during the course of trial---No recovery was effected in order to saddle accused with offence attracting the provisions of S.398, P.P.C.---Trial Court, in circumstances, was not justified in recording conviction against accused on that count---Prosecution having failed to bring home guilt of accused to the hilt through leading cogent, confidence inspiring evidence, Trial Court was not justified in convicting the accused---Conviction and sentence of accused recorded by the Trial Court, were set at naught and accused was acquitted and was ordered to be released, in circumstances.

Mehmood Ahmed and 2 others v. State 1995 SCMR 127; Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949; Abid Ali and 2 others v. The State 2011 SCMR 208; Muhammad Ashraf v. The State 2012 SCMR 419; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Ali Sher and others v. The State 2008 SCMR 707 and Muhammad Farooq and another v. The State 2006 SCMR 1707 rel.

Amer Sohail Sheikh for Appellant.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General for the State.

Nemo for the Complainant.

Date of hearing: 12th June, 2013.

2015 M L D 751

[Lahore]

Before Shahid Jamil Khan, J

MUHAMMAD EJAZ---Petitioner

versus

Mst. SHAH JAHAN and others---Respondents

Writ Petition No.2205 of 2014, decided on 29th September, 2014.

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

----Ss. 15 & 28---Constitution of Pakistan, Art. 199---Constitutional jurisdiction, invocation of---Jurisdictional defect---Ejectment of tenant---Appeal---Court fee, affixation of---Scope---Contention of tenant was that court fee was not affixed with memorandum of appeal and order of Appellate Court was not enforceable---Validity---No misreading, non-reading or misconception of evidence was evident from the impugned order---Findings of Appellate Court were found cogent and well-reasoned---Tenant was estopped to raise the objection which had been abandoned before the Appellate Court---Appellate Court should have provided an opportunity for making up the deficiency after determining the court fee leviable---Penal action of returning or dismissing appeal was jurisdictional defect and constitutional jurisdiction could be invoked---Appellate Court was directed by High Court to determine the leviable court fee and landlord to affix/deposit the same before the said court---Impugned order would be executable on deposit/affixation of leviable court fee---Constitutional petition was dismissed in circumstances.

Subedar (Retd.) Noor Abdullah v. Muhammad Nawaz 2003 MLD 376 ref.

Habib Ismail Bajwa v. Khawaja Ghulam Mohy-ud-Din PLD 1970 Lah. 428; Ata Muhammad v. Abdul Aziz and other 1988 SCMR 759 and Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289 ref.

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

----Ss. 26, 27 & 31---Court Fees Act (VII of 1870), Art. 1 of Sched 1---Rent Tribunal, final order of---Appeal---Court fee, affixation of---Final order passed by the Rent Tribunal under S. 27 of Punjab Rented Premises Act, 2009 was required to be treated as decree of civil court and ad valorem court fee was leviable---Rent Tribunal being executing court would exercise powers of civil court while executing such order.

Malik Inayat Ali Khan for Petitioner.

Muhammad Arshad Baig for Respondent No.1.

2015 M L D 763

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD JAFFAR KHAN and others---Petitioners

versus

MUHAMMAD ALI TARIQ and others---Respondents

C.R. No.2299 of 2005, heard on 16th April, 2014.

(a) Punjab Tenancy Act (XVI of 1887)---

----Ss.77 & 114---West Pakistan Land Revenue Act (XVII of 1967), S.3---Punjab Tenancy (Amendment) Act (VII of 1952), Preamble---Civil Procedure Code (V of 1908), O.II, R.2 & O.XXIII, R.1---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Jurisdiction of revenue court and civil court in revenue matters---Change in revenue entry---Validity---Present case was not related to declaration of rights of occupancy tenancy; civil court had jurisdiction to decide the same---Record showed that the suit property had been excluded in "Shamlaat Deh" in accordance with share of "Khewat Daran"---Persons who were in possession as "abadkar" since 1862 to 1893 were to remain recorded under the Government---Persons who were "abadkars" and were not shareholders in "shamlaat" would remain in possession as abadkars and their land would be excluded from the process of partition---Predecessors of plaintiffs were admittedly "abadkars" and not shareholders in "shamlaat" so suit land was excluded from distribution of "Shamlaat Deh" in shareholders---Status and rights of plaintiffs as "abadkars" were recorded in revenue record---Plaintiffs who were "abadkars" had become owner by operation of law; suit filed by them for declaration of title was competent---Previous incompetent suit would not bar filing of a proper and competent suit (subsequently)---Bar (to subsequent suit) under O.XXIII, R.1, C.P.C. and O.II, R.2, C.P.C. would be applicable where previous suit had been filed competently---Earlier suit, filed by plaintiffs was not competent---Plaintiffs were in possession of suit property; they had rightly filed suit to challenge adverse entry in revenue record---Suit was filed within limitation---Where any entry in revenue record was changed without backing of law or order of competent forum, such entry would not create or confer any right on the person in whose favour such entry had been made---Manipulated entry was mismatched by other entries and was not sustainable under the law---Revision was dismissed.

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

----O.XXIII, R.1 & O.II, R.2---Bar to subsequent suit---Order XXIII, R.1 & O.II, R.2---Applicability---Scope---Bar (to subsequent suit) under O.XXIII, R.1 and O.II, R.2 would be applicable where previous suit was competent.

Malik Noor Muhammad Awan for Petitioners.

Ch. Muhammad Zafar Iqbal for Respondents.

Date of hearing: 16th April, 2014.

2015 M L D 778

[Lahore]

Before Sh. Najam ul Hasan and Syed Muhammad Kazim Raza Shamsi, JJ

ISHFAQ MASIH---Appellant

versus

The STATE---Respondent

Criminal Appeal No.119-J of 2007, heard on 3rd October, 2012.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Grave and sudden provocation---Mitigating circumstances---Triple murder---Quantum of sentence---Accused was convicted by Trial Court for committing murder of three persons and he was sentenced to death on three counts---Validity---Occurrence took place in house of accused and he got recovered iron rod duly stained with human blood---Medical evidence corroborated ocular account and doctor observed that one of the deceased was young girl of sixteen years of age but her hymen was found old torn, which showed that she was girl of easy virtue and of loose character---Suspicion of inter se illicit relations of deceased further aggravated from the circumstance that all three deceased i.e. two young boys and sister of accused were present in cattle-shed, involved in such activity as such voluntary involvement of sister of accused could easily be presumed by a man of ordinary prudence---Finding opportunity to teach lesson to deceased, accused committed murders---No one could be given licence to kill his own young sister and two young unarmed boys in such brutal way---Prosecution had proved its case against accused as far as murder of three persons was concerned and he was rightly convicted by Trial Court under S.302(b), P.P.C.---Presence of two deceased boys residents of village situated at considerable distance from place of occurrence, in cattle shed of accused along with his sister in objectionable condition was a circumstance which showed that deceased had themselves invited trouble and contributed to circumstances leading to the occurrence and had provided opportunity to accused to commit murder---High Court converted sentence of death into imprisonment for life on three counts---Appeal was allowed accordingly.

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

----S.302 (b)---Qatl-i-amd not liable to Qisas---Penalty---Scope---Two sentences are provided under S. 302(b), P.P.C. for the offence of qatl-i-amd---Normal penalty for qatl-i-amd is death but when there are extenuating circumstances leading to commit murder of deceased then courts are reluctant to award normal penalty and rather have inclined to award life imprisonment.

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

----S.302---Qatl-i-amd---Sentence, quantum of---Mitigating circumstances---Scope---If circumstances of case indicate that occurrence took place in the manner when a person of ordinary prudence can lose self-control and is not expected to act in rational way then such a circumstance may provide reason for mitigation in awarding lesser sentence.

Miss Talha Rasheed Malik, Defence Counsel appointed at State expense for Appellant.

Shahid Bashir Chaudhary, D.P.G. for the State.

Ch. Mushtaq Ahmad for the Complainant.

Date of hearing: 3rd October, 2012.

2015 M L D 795

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Syed Muhammad Kazim Raza Shamsi, JJ

ZAMAN SHAH---Appellant

versus

The STATE---Respondent

Criminal Appeal No.138-J of 2013 and Murder Reference No.101 of 2010, heard on 28th April, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b), 338-B & 338-C---Qatl-i-amd, Isqat-i-Janain---Appreciation of evidence---Scope and applicability of S.338-C, P.P.C.---Prosecution was consistent that at the time of death, deceased lady was pregnant by 28 weeks, which fact was also corroborated by the statement of Lady Doctor, who had conducted postmortem examination upon the dead body of the deceased lady---While framing the charge, the factum of consequence of death of the unborn baby of 28 weeks, remained unattended by the Trial Court---Trial Court had convicted accused under S.302(b), P.P.C. for the death of deceased lady, but to the extent of death of unborn child of 28 weeks Trial Court had convicted accused under S.338-C, P.P.C.---Present case, did not attract the provisions of S.338-B, P.P.C., which defined 'Isqat-i-Janain', because as per medical jurisprudence, heart beat starts after 2 months, while after 180 days (six months), the child matures and it could be ascertained that 'fetus' having remained more than 6 months in the womb of his mother, would fall within the definition of 'child'---Islamic concepts established that after 120 days, Allah (Almighty) blows soul into the fetus---During the occurrence, not only deceased lady lost her life, but a male child of 7 months, also met unnatural death, and his death in the above scenario, was beyond the provisions of S.338-C, P.P.C.---Conviction/sentence recorded by the Trial Court under S.338-C, P.P.C., was not maintainable in the eyes of law---Case was remanded to the Trial Court for recording evidence of the relevant prosecution witnesses afresh; and also provide opportunity to the defence for cross-examination; and then re-write judgment with regard to the applicability of provisions of relevant provisions of Penal Code, qua the death of unborn 7 months' child---Trial Court was directed to decide the case within three months of the receipt of judgment---Co-accused, though were nominated in the crime report with their specific role, but in the course of trial while extending them the benefit of doubt, Trial Court acquitted them of the charge---Appeal against acquittal of co-accused filed by the complainant, having been withdrawn, which attained finality---Matter to the extent of co-accused, would be deemed to be as a closed transaction, in circumstances.

Sahih Al-Bukhari, Volume 4, Book 55 at number 549 and Hakim Ali v. The State 2013 YLR 2169 ref.

Ch. Shahid Tabussam for Appellant.

Mirza Abid Majeed, Deputy Prosecutor General for the State.

Ch. Javed Bashir for the Complainant.

Date of hearing: 28th April, 2014.

2015 M L D 818

[Lahore]

Before Mahmood Ahmad Bhatti and Ibad-ur-Rehman Lodhi, JJ

ARSLAN ALI---Petitioner

versus

UNIVERSITY OF HEALTH SCIENCES through Vice-Chancellor and others---Respondents

Writ Petition No.13935 of 2013, decided on 12th December, 2013.

(a) Prospectus for Government Medical and Dental Institutions of Punjab for the Session 2013-14---

----R. II, Cls. b, c & f---Constitution of Pakistan, Art. 199---Constitutional petition---Educational Institution---Admission in M.B.B.S. programme against reserved seats for disabled students---Criteria---Ineligibility of candidate for disability seats due to findings of Medical Board constituted by the Chairman Admission Board---Scope---Aggregate of petitioner was 81.0762% and his name was not included in the list of selected candidates against the seats reserved for disabled candidates---Petitioner was shown at serial No. 12 of the list showing the candidates not found eligible for disability seats---Petitioner was not found a disabled person in view of Medical Board constituted by the Chairman Admission Board and twenty other candidates were found eligible for admission on the basis of medical examination conducted by a Board constituted by the Chairman Admission Board---Student placed at serial No. 1 of the list of successful candidates had obtained aggregate of 88.0260% whereas last one placed at serial No. 20 of the said list obtained the aggregate of 68.6662%---Petitioner should have been placed after serial No. 7 in the said list but he was ignored in the merits and his name was included in the list of candidates not eligible for disability seats on the findings of Medical Board constituted by the Chairman Admission Board which did not find the petitioner having suffered from any disability---Petitioner provided a certificate issued by Social Welfare Woman Development and Bait-ul-Maal (Provincial Council for the Rehabilitation of Disabled Persons) in Government of Punjab wherein he was assessed by the Board constituted to adjudge the disability---Disability of petitioner shown in the said certificate was "Left Ankylosed Elbow" which was permanent in nature---Clauses b & c of Rule II of Prospectus for Government Medical and Dental Institutions of Punjab for the Session 2013-14 were inter-contradictory as clause-b provided that the candidate was required to attach a certificate from a government certified specialist about his disability which only would make him eligible to apply against the reserved seat whereas clause-c had provided that a Medical Board constituted by the Chairman Admission Board would make final decision about the eligibility against the said seats---Candidates were required only to submit a certificate issued by a specialist working in Government Hospital when applications were invited from them and role of Medical Board was restricted only to the extent that it should verify such disability---Re-assessment of disability or nature thereof had no where been provided within the competence of Medical Board constituted by the Chairman Admission Board---Once the Board in the Government Hospital had (already) assessed the type of disability and nature thereof, the same should have been considered sufficient compliance of the required criteria---No final opinion of the Medical Board constituted by the Chairman Medical Board with regard to permanent disability of the petitioner had been disclosed---Petitioner, in circumstances, was entitled to be given admission in M.B.B.S. programme in Public Sector Medical Institutions for the session 2013-14---Respondent-University was directed to arrange admission of the petitioner against the seats reserved for disabled students forthwith however it was clarified that students already admitted should not be disturbed or dislodged---Constitutional petition was accepted in circumstances.

(b) Prospectus for Government Medical and Dental Institutions of Punjab for the Session 2013-14---

---R. II, Cl. f---"Disability"---Meaning---"Disability" was a physical impairment that had a substantial and permanent adverse effect on candidate's ability to carry out normal day-to-day activities and put him at disadvantage as compared to a normal person for acquiring education before entering a medical institution.

(c) Prospectus for Government Medical and Dental Institutions of Punjab for the Session 2013-14---

----R.II, Cl. f---"Disability" 'substantial' and 'permanent'---Meaning---Substantial disability was neither minor nor trivial whereas permanent disability was such which would affect permanently the rest of life of the person's life.

(d) Prospectus for Government Medical and Dental Institutions of Punjab for the Session 2013-14---

----R. II, Cl. f---"Normal day to day activities"---Meaning---"Normal day to day activities" would include the mobility and manual dexterity.

(e) Constitution of Pakistan---

----Art. 37 (a) & (c)---Promotion of social justice and eradication of social evils---Scope---Every organ and Authority of the State and each person performing functions were bound to act in accordance with the Principles of Policy---State was bound to promote special care, the educational and economic interests of backward classes and areas and to make technical and professional education equally accessible to all on the basis of merit.

Ahmed Nadeem Khan Chandia for Petitioner.

M.A. Hayat Haraj for Respondents Nos.1 to 3.

2015 M L D 833

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

SAIMA NOREEN---Petitioner

versus

The STATE and others---Respondents

Criminal Miscellaneous. No.1163-H of 2014, decided on 12th September, 2014.

Criminal Procedure Code (V of 1898)---

----S.491---Habeas corpus petition---Recovery of minor daughter aged about one year---Petitioner, mother of minor daughter, aged about one year, sought recovery of minor, from father of the minor---Pendency of proceedings for custody of minor before Guardian Judge, keeping in view the age and welfare of the minor, would not create any jurisdictional bar for High Court, which court could interfere in such like cases---Agreement between the parties regarding the custody of the minor girl, in which she was handed over to father was against the welfare of the minor and would come under coercion; and undue influence of the elders of the family and was not to be allowed to override the consideration of the welfare of the minor because it was an undeniable right of the minor girl of such an age to be blessed with the lap of the mother---Minor, in circumstances, was handed over to the petitioner, mother---Mother was directed to facilitate father of minor for his periodic meeting with his daughter---Parties would be at liberty to pursue the matter of custody of the minor before the Guardian Judge who would decide the same expeditiously in accordance with law.

Mst. Zenia v. Ahmed Jawad Sarwar PLD 1994 Lah. 577; Hiroku Muhammad v. Muhammad Latif 1994 MLD 1682; Syed Ahmed Ali v. Station House Officer and 2 others 2013 MLD 1625; Mst. Raffiat Tariq v. D.P.O. Sanghar and 2 others 2009 PCr.LJ 118; Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 and Mst. Shehnaz Bibi v. Muhammad Akram and others 1995 PCr.LJ 307 ref.

Burhan Ijaz for Petitioner.

Muhammad Arshad Farooqi, Deputy District Public Prosecutor and Ehsan Ullah S.I. for Respondents.

Ghulam Hussain Malik for Respondent No.4.

2015 M L D 850

[Lahore]

Before Abdul Sami Khan, J

WAQAS AKHTER---Appellant

versus

The STATE and another---Respondents

Criminal Appeal No.682 of 2010, heard on 16th April, 2014.

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

----Ss. 376 & 496-A---Rape, enticing or taking away or detaining with criminal intent a woman---Appreciation of evidence---Benefit of doubt---Delay of five days in registration of FIR had not been explained, which had shown that matter had been reported to the Police after due deliberation and consultation---Complainant had taken divergent stands at different stages, which had made the story of the prosecution doubtful---Alleged abductee, after her recovery, in her statement under S.161, Cr.P.C., before Investigating Officer, had not levelled allegation of zina against accused, but in her statement before the Trial Court she had levelled allegation of committing zina against accused---Both witnesses of recovery of alleged abductee, were not produced before the Trial Court to prove recovery proceedings---Even the old lady from whose house alleged abductee was recovered, was also not produced before the Trial Court---Adverse inference, in circumstances, could be drawn that had they been produced by the prosecution they would not have supported the recovery proceedings---Withholding of such evidence, had shown that story had been carved by prosecution to falsely involve accused in the case---Victim who was star witness in the case, her sole statement was very much important, but she too did not stick to single stance, and she tried to improve the prosecution story set forth in the FIR---Two co-accused had already been acquitted disbelieving the same set of evidence, same set of evidence could not be relied upon for conviction of the extent of accused---Shabby evidence furnished by the complainant and the victim did not inspire confidence---Lady Doctor who examined the victim, had stated that she had not observed any mark of violence on the body of the victim---Three swabs taken by the Lady Doctor were sent to Chemical Examiner for semen grouping, but neither any report of Chemical Examiner in that regard was available nor any report regarding DNA test was available, so as to prove the factum of commission of zina by accused with the victim---Medical evidence remained unable to prove any corroboration to the allegation of commission of zina by accused---Prosecution having failed to prove its case against accused beyond any reasonable shadow of doubt---Accused was acquitted extending him benefit of doubt, and he being on bail his bail bonds were cancelled and surety discharged from his liability.

(b) Criminal trial---

----Benefit of doubt---Scope---Not many circumstances creating doubt in the prosecution story were required, but only one circumstance creating doubt in the prosecution story was enough to acquit accused---Better to acquit ten guilty persons, rather than convicting an innocent person.

Malik Shaukat Hayat for Appellant.

Muhammad Usman, Deputy Prosecutor General for the State.

Date of hearing: 16th April, 2014.

2015 M L D 878

[Lahore]

Before Muhammad Khalid Mahmood Khan and Ibad-ur-Rehman Lodhi, JJ

Sh. MUHAMMAD MAHMOOD and 2 others---Appellants

versus

KALEEM-UD-DIN and 6 others---Respondents

Regular First Appeals Nos.540 and 556 of 2006, heard on 29th May, 2014.

Partition Act (IV of 1893)---

----S. 4---Suit for partition---Properties mentioned in the plaint were joint between the parties to the suit---Preliminary decree passed by the Trial Court determining the shares of parties and identifying the joint properties was in accordance with law which was maintained---Local commission would see the partiability or otherwise of the joint properties according to shares of legal heirs of the deceased---Appeal was dismissed in circumstances.

Waqar-ul-Hassan Butt for Appellants.

Agha Nayyar Latif for Respondent.

Date of hearing: 29th May, 2014.

2015 M L D 884

[Lahore]

Before Shahid Hameed Dar, J

SHAHID NAZIR---Petitioner

versus

The STATE and another---Respondents

Criminal Miscellaneous No.5200-B of 2014, decided on 4th June, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, grant of---Further inquiry---Story narrated in FIR was not convincing---Medical report showed that deceased might not have died as alleged by prosecution---Guilt (or innocence) of the accused would be determined during trial---Case of accused called for further inquiry under S.497(2), Cr.P.C.---Bail was granted.

Jabbar Qadir for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General and Tariq S.I. for the State.

Ch. Muhammad Jehangir Wahla for the Complainant.

2015 M L D 890

[Lahore]

Before Amin-ud-Din Khan and Faisal Zaman Khan, JJ

Syed ZAWAR HUSSAIN---Appellant

versus

Syed RIAZUL ABBAS SHERAZI---Respondent

R.F.A. No.476 of 2014, heard on 10 June, 2014.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3 & O. XX, R. 5---Negotiable Instruments Act (XXVI of 1881), S. 118---Institution of summary suit on the basis of cheque---Oral agreement---Requirements---Negotiable instruments---Presumption---Remand---Scope---Plaintiff filed suit for recovery of money on the basis of cheque which was decreed by the Trial Court---Contention of defendant was that impugned cheque was stolen with the connivance of his driver---Validity---Trial Court was bound to decide the matter issue-wise but same had not been decided in the said manner---When normal procedure was deviated then there was a chance of wrong decision by the court---Case should not be remanded only for re-writing of judgment issue-wise when evidence was available---Plaintiff was required to plead the detail of oral agreement to sell/transaction of sale i.e. date, place and time of agreement as well as witnesses before whom the transaction was arrived for proving an oral transaction of sale or agreement to sell as well as detail of property and payment under agreement---Plaintiff had not given the detail of property and amount received by defendant---Complete case should be before the court as well as before the other party of a person who had come for pressing his right on the basis of an oral agreement so that other party might be able to defend the same---Pleading and evidence of plaintiff were not up to mark and payment of consideration could not be determined---Plaintiff had failed to plead the agreement to sell or transaction of sale and payment of consideration amount to the defendant---No question for handing over the cheque for re-payment of amount would arise---Presumption was attached with the negotiable instrument but same was rebuttable---Cheque in question was not with regard to the re-payment of amount received by the defendant---Signatures upon the cheque did not mean the issuance of cheque---Litigation between the parties was on record before filing the present suit---Presumption attached with the cheque had validly been rebutted by the defendant---False suit had been filed against the defendant who would be at liberty to press for damages in the litigation---Impugned judgment and decree passed by the Trial Court were set aside with cost throughout---Appeal was accepted in circumstances.

Zubair Ahmad and another v. Shahid Mirza and 2 others 2004 MLD 1010; Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan LTD., Karachi 1999 SCMR 1326; Tasam Ali Bukhari v. Ghulam Mustafa and 4 others 2014 CLC 244; Syed Aijaz Hussain v. Syed Abdul Azeem 2008 CLC 41; Col. (Retd) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832; Irfan Fazal v. Zahid Iqbal 2004 CLC 384; S.K. Abdul Aziz v. Mahmoodul Hassan and others 2000 CLC 1967; Shell Pakistan Ltd., through Attorney v. Aero Asia International (Pvt.) Ltd. through Chief Executive and another 2008 CLD 996; Muhammad Sabir v. Khalil-ur-Rehman 2002 CLD 1545; Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778 and Mian Aziz A. Sheikh v. The Commissioner of Income Tax Investigation, Lahore PLD 1989 SC 613 ref.

Zubair Ahmad and another v. Shahid Mirza and 2 others 2004 MLD 1010; Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan LTD., Karachi 1999 SCMR 1326; Tasam Bukhari v. Ghulam Mustafa and 4 others 2014 CLC 244; Syed Aijaz Hussain v. Syed Abdul Azeem 2008 CLC 41; Col. (Retd) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832; Irfan Fazal v. Zahid Iqbal 2004 CLC 384; S.K. Abdul Aziz v. Mahmoodul Hassan and others 2000 CLC 1967; Shell Pakistan Ltd., through Attorney v. Aero Asia International (Pvt.) Ltd. through Chief Executive and another 2008 CLD 996; Muhammad Sabir v. Khalil-ur-Rehman 2002 CLD 1545; Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778 and Mian Aziz A. Sheikh v. The Commissioner of Income Tax Investigation, Lahore PLD 1989 SC 613 distinguished.

Ali Muhammad v. Muhammad Hayat and others 1982 SCMR 816; Asif Ali and 6 others v. Saeed Muhammad 2009 CLD 1301; Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316; Muhammad Sabir v. Muhammad Akram 2006 CLD 863; Muhammad Amin v. Ghulam Muhammad PLD 1993 Lah. 569; Altaf Sarwar v. Shamas Din 2005 YLR 2614 and Sardar Khan v. Abdul Ghani 1989 MLD 3656 rel.

Imran Muhammad Sarwar for Appellant.

Muhammad Ramzan Chaudhary for Respondent.

Date of hearing: 10th June, 2014.

2015 M L D 905

[Lahore]

Before Arshad Mahmood Tabassum, J

MUHAMMAD SOHAIL SARWAR---Petitioner

versus

ADDITIONAL DISTRICT COLLECTOR, KHANEWAL and others---Respondents

Writ Petition No.10808 of 2012, heard on 24th December, 2013.

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

----Ss. 9(1)(2) & 16---Constitution of Pakistan, Art.199---Constitutional petition---Revision before Collector---Limitation---Arbitration Council granted maintenance allowance to wife---Assistant Collector dismissed revision filed by husband---Validity---Limitation for filing revision under S.9(2) of the Muslim Family Laws Ordinance, 1961 was 30 days---Husband filed revision after limitation without application for condonation of delay explaining reasons for delay---Assistant Collector rightly dismissed the revision---Pendency of proceedings before Arbitration Council was within knowledge of husband but he did not file revision within period of limitation---Constitutional petition was dismissed.

Muhammad Sadiq Chughtai for Petitioner.

Arab Hassan for Respondent No.3.

Date of hearing: 24th December, 2013.

2015 M L D 921

[Lahore]

Before Shahid Hameed Dar, J

SARWAR KHAN alias LALA---Petitioner

versus

The STATE and another---Respondents

Criminal Miscellaneous No. 755-B of 2014, decided on 9th July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, grant of---Further inquiry---Abscondence---Complainant did not disclose the source through which he came to know about the occurrence---Eye-witnesses did not offer any explanation for not informing the complainant about occurrence despite the fact that they were residents of the same village---Wajtakkar evidence was not consistent with postmortem examination report---Even otherwise, evidence of Wajtakkar was a weak incriminating circumstance, which could easily be manoeuvred by prosecution---False implication could not be ruled out---Case of accused called for further probe into his guilt within scope of S.497(2), Cr.P.C.---Mere abscondence was not sufficient for denying bail to accused---Bail was granted.

Ehsan Ullah v. The State 2015 SCMR 1137; Ikram-ul-Haq v. Raja Naveed Sabir and others 2012 SCMR 1273 rel.

Mubaris Khan Alizai for Petitioner.

Naveed Ahmad Warraich, Assistant District Public Prosecutor for the State.

Sh. Ahsan-ud-Din for the Complainant.

Mudassar A.S.-I. with record.

2015 M L D 938

[Lahore]

Before Mazhar Iqbal Sidhu, J

KHALID HUSSAIN---Appellants

versus

The STATE---Respondent

Criminal Appeal No.173-J of 2010, heard on 10th April, 2013.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-i-amd---Appreciation of evidence---Dying declaration---Prosecution witnesses, though were related to the deceased, but no aforethought or malice had been found in existence by them against accused to become a false witness---Delay in reporting the matter to the Police was of minor significance in the circumstances of the case---Prosecution had proved its case through the statement of the deceased, when alive, recorded by the examining Doctor, through the testimony of the Doctor which was relevant and admissible by virtue of Art.46 of Qanun-e-Shahadat, 1984---Statement of the deceased before the Doctor was relatable to cause of her death; she had stated that she was subjected to torture by accused---At the time of medical examination of the deceased, then injured and in complete senses, she without being prompted by any body, recorded statement, which was regarded as Dying Declaration---No need existed to ask for independent corroboration in support of dying declaration of deceased lady, which rang true and on account of its intrinsic value, duly supported by medical evidence was worth reliance, and the court believed it and relied---Prosecution had succeeded in proving the case against accused and in bringing home the charge against accused beyond shadow of reasonable doubt---Judgment of the Trial Court did not suffer from any illegality or irregularity, incorrectness and impropriety, but same was legal and just---Trial Court had judiciously applied its mind while handing down impugned judgment---Judgment of the Trial Court, was upheld and appeal filed against said judgment being devoid of any force, was dismissed, in circumstances.

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

----Art. 46---Dying declaration---Conditions for reliance upon dying declaration enumerated.

In order that a dying declaration is relied upon it must be established that:--

(i) the maker of the statement is dead;

(ii) that the dying declaration is relevant whether or not its maker was under expectation of death;

(iii) that the maker of declaration was a competent witness;

(iv) that the declaration may be oral or in writing or even by way of meaningful gestures;

(v) if it is available in written form then the identity of the scribe and the circumstances under which it was written or dictated may be proved. It may be true that a person under apprehension of death may not be mendacious because he has to meet his Creator soon but the witness who recorded or listened to those words may not be conscious of his legal or moral obligation. The testimonies of a living person about the pronouncement made by a dead person have to be accepted with due care and caution in the given circumstances of the case.

(vi) The declaration relates in fact to the cause of his death or any of the circumstances resulting in his death;

(vii) It is otherwise believable like the testimony of any other witness. The entire object of this exercise is to ascertain the whole truth possible under the prevailing circumstances and

(viii) that the statement was not made several days before the occurrence.

A dying declaration may not only incriminate its maker but such a statement would be admissible against all those persons who are allegedly involved in the episode which ultimately resulted in the unnatural death of the maker. This aspect is covered by the term "in cases in which the cause of that person's death comes into question" as mentioned in Clause (1) of Article 46 of Qanun-e-Shahadat Order, 1984. A dying declaration may not be refused on the sole ground that there was delay in recording the same. Was the injured person in a position to give a statement? What was his orientation to the time, place and persons at the time the statement was recorded? Even gestures, which convey the message clearly, can be acted upon in given circumstances. A dying declaration is proved, at the trial, by the evidence of a witness who heard it being made by the deceased or by the evidence of a person who recorded it. In case it is recorded the scribe must appear and be available for cross-examination.

Imran Ashraf v. State 2002 YLR 325 rel.

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

----Art. 46---Dying declaration---Essential conditions for believing dying declaration and convicting a person on its basis---For believing a dying declaration and convicting a person on its basis, essential conditions must be established by the prosecution to the effect that dying man was in full senses, conscious and alert to the surrounding; was fully oriented in space, time and was able to make a coherent speech; that the dying declaration, otherwise rang true, and was sound in substance to be relied upon; that it was free from promptness given by the outside quarter; and that Doctor present at the occasion must give a fitness certificate about the condition of the dying person.

Shahrukh v. State 2013 PCr.LJ 237 and Smt. Devi v. State (NCT of Delhi) 2001 IIIad Delhi 584, 90 (2001) DLT 626 rel.

Shehzad Suleman Warriach for Appellants.

Muhammad Akhlaq, D.P.G. for the State.

Date of hearing: 10th April, 2014.

2015 M L D 960

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD ABU BAKAR MUFTI---Petitioner

versus

Mst. SHAHEEN MUFTI and others---Respondents

Civil Revision No.1192 of 2004, heard on 22nd May, 2013.

Islamic Law---

----Inheritance---Shares of other brothers and sisters in one of properties left by their father sold by one sister after obtaining power of attorney from them---Effect---Sister having sold such shares of other brothers and sisters would not stand disinherited from other properties left by her father, rather her brothers and sisters could claim from her proceeds of sold property.

Hamid Ali Mirza for Petitioner.

Khawaja Abdul Qayyum for Respondents Nos.1, 3, 5, 12 to 15, 2-A to 2-E and Legal Heirs of Mst. Mahmooda Begum.

Muhammad Asim for Respondents Nos. 9, 10 and 11.

Ch. Abdul Razzaq Kamboh for Respondent No.4.

Riaz Karim Qureshi for L.Rs. of Respondent No.8.

Tahir Ahmad Khawaja for L.Rs. Respondent No.5.

Zulfiqar Ali Mughal for Respondents Nos. 4 and 5.

Date of hearing: 22nd May, 2013.

2015 M L D 976

[Lahore]

Before Amin-ud-Din Khan, J

JAWAD HUSSAIN---Petitioner

versus

ISLAH HIGH SCHOOL, CHINIOT---Respondent

Civil Revision No.916 of 2001, heard on 8th November, 2012.

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

----O. VI, R. 2---Exemption---Procedure---When any exemption is claimed, that must be specifically pleaded and proved, as a person is asking the court to believe his version against general principles or against presumptions.

(b) Punjab Pre-emption Act (I of 1913)---

----S.15---Superior right---Stages to prove---Pre-emptor has to prove a superior right of pre-emption at three stages i.e. at the time of sale, at the time of filing of suit and at the time of decree.

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

----O.XIV, R.5(2)---Issue, striking of---Stage---Applicant sought striking of issue on the plea that the same had been framed against the remand order passed by the Supreme Court---Validity---At the stage, when matter had been agitated and decision was given on the issue in question by both the courts below, application for striking of such issue was not sustainable.

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

----O.XVIII, R.2---Evidence, recording of---Plaintiff not appearing as his own witness in affirmative---Effect---When plaintiff himself does not appear as his own witness in affirmative evidence, his statement recorded after close of evidence of defendant cannot be read in his affirmative evidence.

Jaleb Khan and 9 others v. Mst. Subhani and another 1999 SCMR 2502 and Khuda Bakhsh v. Habib Ullah 1999 SCMR 1800 rel.

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

----O.I, R.10---Necessary party---Non-impleading of---Suit property was of registered Anjuman (society), therefore, non-impleading the Anjuman was a fatal defect on the part of plaintiff.

(f) Punjab Pre-emption Act (I of 1913)---

----Ss.7, 16, 17 & 21---Suit for pre-emption---Superior right of pre-emption---Proof---Urban immovable property---Pre-emptor filed suit for possession of urban immovable property on the basis of superior right of pre-emption as compared to the right of vendee---Suit and appeal filed by pre-emptor were dismissed by Trial Court and Lower Appellate Court respectively---Validity---Pre-emptor was bound to prove suit property pre-emptable and with regard to right of pre-emptor to be superior from vendee and two issues for relief were co-related---When there were findings that property was not pre-emptable, as it had not been proved that suit land to be agricultural land whereas it was situated within municipal limits, therefore, findings on relevant issue recorded by both the courts below were not sustainable under the law---No part of decree was passed against vendee, therefore, even without filing cross objections, High Court could scrutinize the findings---Right of pre-emption claimed by pre-emptor in the suit could not be proved by pre-emptor without his statement in affirmative evidence when the right had been claimed on the basis of being collateral of vendor---High Court declined to interfere in concurrent judgments and decrees passed by two courts below---Revision was dismissed in circumstances.

Jameel Ahmed v. Saifuddin PLD 1994 SC 501; Muhammad Hussain v. Muhammad through Legal Heirs and others PLD 2010 SC 803; Ismail through his L.Rs. and another v. Muhammad Aslam and 2 others PLD 1980 Lah. 104; Fazal Hussain v. Musharaf Sultana 1991 SCMR 487; Ch. Muhammad Siddique and others v. Mst. Faiz Mai and others PLD 2012 SC 211 and The Evacuee Trust Property Board, Lahore v. Mst. Farkhanda Akhtar and others 1989 SCMR 1589 ref.

Mehdi Khan Chohan for Petitioner.

Shahid Mubeen, Addl: Advocate General for Respondent.

Date of hearing: 8th November, 2012.

2015 M L D 987

[Lahore]

Before Shahid Karim, J

SHAFAQ AQEEL---Petitioner

versus

SHAFQAT ALI AMJAD and others---Respondents

Writ Petition No.1440 of 2012, decided on 30th January, 2015.

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

----S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Eviction of tenant---Personal bona fide need of landlady---Default in payment of rent---Denial of relationship of landlord and tenant by the tenant---Scope---Contention of tenant was that he was a bona fide purchaser of demised premises---Eviction petition was dismissed concurrently---Validity---Landlady was owner of demised premises by virtue of a registered sale deed---Tenant was in possession of the premises on the basis of oral agreement to sell---Agreement to sell did not confer any right on a person which was subject to adjudication before the civil court---Tenant was bound to prove that he was not tenant of landlord and if he was not tenant, he was in illegal occupation of the property in question---Rent Tribunal, in the present case, had not considered the evidence of landlady in its true perspective and committed error while dismissing the eviction petition---Appellate Court had failed to apply its independent mind while passing the impugned order---Both the courts below had misread the evidence available on record---Impugned orders passed by the courts below were set aside and tenant was directed to vacate the premises in question and hand over the vacant possession of property to the landlady within a specified time---Constitutional petition was accepted in circumstances.

Abbas Ali Khan v. Mst. Farhat Iqbal and 2 others 2009 SCMR 1077; Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242; Shajar Islam v. Muhammad Siddique and 2 others PLD 2008 SC 45; Dilawar Jan v. Gul Rehman and 5 othres PLD 2001 SC 149 and Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338 rel.

Ahmad Yar for Petitioner.

Muhammad Muzammil Qureshi for Respondents.

2015 M L D 995

[Lahore]

Before Shahid Karim, J

NATIONAL SILK AND RAYON MILLS---Petitioner

versus

FEDERATION OF PAKISTAN and 4 others---Respondents

Writ Petition No.26415 of 2014, decided on 4th December, 2014.

(a) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S.4(1)---Constitution of Pakistan, Art.199---Constitutional petition---Meeting of Authority---Quorum, necessity of---Object, scope and purpose---Petitioner company assailed decision in question on the plea that it was made by Chairman Oil and Gas Regulatory Authority and one Member which did not constitute quorum to decide a matter---Validity---Oil and Gas Regulatory Authority could not continue to function without quorum---When there existed a vacancy in the Authority, in such case, the Authority could only act or take decisions but with a quorum---Provision of section 4 (1) of Oil and Gas Regulatory Authority Ordinance, 2002, related to constituting the Authority and not to observance of quorum---Provision of section 4 (1) of Oil and Gas Regulatory Authority Ordinance, 2002, was enacted so that a vacancy should not invalidate day to day administrative functions of the Authority but it did not have a purpose of handing a licence to take decisions of far reaching consequences by disregarding the quorum or on flawed premise that the Authority could continue to take decisions even though vacancies occurred which rendered the Authority incomplete otherwise---High Court set aside order in question and remanded the matter to Oil and Gas Regulatory Authority for decision afresh by observing requirement of quorum---Petition was allowed accordingly.

SNGPL v. OGRA and others PLD 2014 Lah. 167; Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Hd. 1971 AC 850, 879; Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others PLD 1992 Lah. 178; Rab Nawaz Dhadwana, Advocate and others v. Rana Muhammad Akram, Advocate and others PLD 2014 Lah. 591 and M.I. Sanitary Store through Proprietor and another v. Federation of Pakistan through Secretary Commerce and 2 others PLD 2014 Lah. 583 ref.

Writ Petition No.9570 of 2013 rel.

(b) Administration of justice---

----Rule of law---Scope---Basis of rule of law is preserving fundamental rights of individual against form of elective despotism.

Rule of Law---Tim Bingham rel.

Muhammad Shahzad Shaukat for Petitioner.

Barrister Haroon Dugal for Respondents.

Umar Sharif for SNGPL.

Date of hearing: 21st December, 2014.

2015 M L D 1004

[Lahore]

Before Shahid Karim, J

FAISALABAD ELECTRIC SUPPLY COMPANY LIMITED through HR and Admin Director---Petitioner

versus

NATIONAL ELECTRIC POWER REGULATORY AUTHORITY through Vice-Chairman---Respondent

Writ Petition No.28681 of 2014, decided on 15th December, 2014.

(a) National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998---

----R. 16(6)---Constitution of Pakistan, Art. 199---Constitutional petition---Motion for leave for review---Interpretation of Rule 16(6) of the National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998---Term "full strength" occurring in R.16(6), meaning and scope of---Petitioner impugned order passed by National Electric Power Regulatory Authority ("Authority") on its motion for leave for review on the ground that under Rule 16(6) of the National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998 the hearing for such motion for leave for review was to be carried out by the "full strength" of the Authority; whereas impugned order was passed after hearing only three out of five members of the Authority---Held, that under Rule 16(6) of the National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998; the law mandated that a motion for leave for review; was to be heard by the "full strength" of the Authority; and the term "full strength" was not a complicated issue of construction for the said rule; and meant that said proceedings shall be undertaken and decided by all members of the Authority sitting together and deciding on the review---While the law in the present case did not refer to the quorum, however it, without equivocation, required that hearing be carried out by the "full strength" of the Authority---Object and purpose behind hearing of review by the "full strength" of the Authority was that such review was in nature of an appeal and therefore hearing should be carried out by the complete strength of the members of the Authority and the same would also lend due process to the entire procedure---Impugned order was set aside and matter was remanded to the Authority for decision afresh---Constitutional petition was allowed, accordingly.

Oxford Advanced Learner's Dictionary, 8th Edition rel.

(b) Interpretation of statutes---

----Intent of the Legislature must be clearly gleaned and must be given effect to without demur.

(c) National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998---

----R.16(6)---"Full strength"---"Full" meant, "complete with nothing missing"; and "strength" meant "the number of people in a group, a team or an organization".

Oxford Advanced Learner's Dictionary, 8th Edition rel.

Sh. Muhammad Ali, Barrister Haris Ramzan and Ms. Mubashra Khalid for Petitioners.

M. Shafique and Syed Safeer Hussain, Registrar, NEPRA for Respondents.

Date of hearing: 3rd December, 2014.

2015 M L D 1014

[Lahore]

Before Shahid Karim, J

Mrs. SALMA MUAZZAM---Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY through Director General and 30 others---Respondents

Writ Petition No.11780 of 2003, decided on 29th December, 2014.

Land Acquisition Act (I of 1894)---

----Ss. 4, 6 & 17 (4)---Constitution of Pakistan, Art.199---Constitutional petition---Acquisition of land---"Public purpose"---Housing scheme for government servants---Petitioner assailed notification of acquisition of land for a housing scheme to be established for government servants on the plea that such acquisition was not for public purpose---Validity---Held, that there was no benefit to a private individual or a small coterie of individuals but land was being acquired for setting up of a housing scheme for government servants---No discrimination in such regard was made by government and all government servants were entitled to be benefitted by scheme in question---Jurisdiction at such stage for High Court to interfere was limited and circumscribed---High Court was only to ascertain if element of public purpose was woefully lacking in any acquisition being done---Purpose seemed to be well within the term 'public purpose' and any challenge to the scheme on such basis must fall on barren ground---Acquisition of land for the scheme was for a "public purpose" and attack of petitioner on such ground must fall---High Court declined to interfere in the notification issued by authorities---Petition was dismissed in circumstances.

Federal Government Employees Housing Foundation through Director, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad PLD 2002 SC 1079; Muhammad Akbar (through legal representatives) and 7 others v. The Commissioner, Rawalpindi Division and 2 others PLD 1976 Lah. 747; Muhammad Ishaq and another v. Collector, Lahore District, Lahore and others 2000 YLR 1074; Suo Motu Case No.13 of 2007 PLD 2009 SC 217; Pakistan through Ministry of Works Government of Pakistan, Karachi and another v. Muhammad Ali and others PLD 1960 SC 60; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 and Federation of Pakistan through G.M. Telegraph and Telephone Department, Lahore Telephone Region, Lahore v. Province of Punjab through Land Acquisition Collector/Assistant Commissioner, Headquarters, Lahore and 2 others 1993 SCMR 1673 ref.

Muhammad Ahmad Qayyum for Petitioner.

Waqar A. Sheikh for Respondents.

Dates of hearing: 22nd and 23rd December, 2014.

2015 M L D 1029

[Lahore]

Before Shahid Karim, J

SUI NORTHERN GAS PIPELINE LTD. through Authorized Attorney---Petitioner

versus

WAFAQI MOHTASIB and 3 others---Respondents

Writ Petition No.19826 of 2013, decided on 12th December, 2014.

(a) Interpretation of statutes---

----Purposive interpretation---Special and general laws---Scope---Purposive interpretation rests on straightforward premise that law is enacted to fulfil a purpose---Controversy has to be analyzed on the basis of purposive interpretation, conflict between special and general laws and that the two laws must be reconciled---Competing non obstante clauses in laws do not have unholy effect of completely ousting or rendering ineffective the other and have to be reconciled and can be made to operate in their respective spheres.

(b) Interpretation of statutes---

----Non obstante clause---Scope---Significance of a non obstante clause or an overriding provision becomes all too apparent in the context of special and general laws---In the setting of a special law, a non obstante clause represents indubitably the will of the Legislature and its parliamentary intent.

AIR 2012 SC 11; Morgan Securities and Credit (Pvt.) Ltd. v. Modi Rubber Ltd. AIR 2007 SC 683; Messrs Maruti Udyog Ltd. v. Ram Lal and others (2005) 2 SCC 638; Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. and others (2001) 3 SCC 71; State of Bihar v Bihar Rajya AIR 2005 SC 1605; Sarwan Singh v Kasturi Lal AIR 1977 SC 265; Muhammad Mohsin Ghuman and others v. Govt. of Punjab through Home Secretary, Lahore and others 2013 SCMR 85 and Packages Limited through General Manager and others v. Muhammad Maqbool and others PLD 1991 SC 258 rel.

(c) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)---

----Arts. 2(2) & 9---Ombudsman---Powers, functions and duties---Ombudsman is generally concerned with the subject of maladministration in any Agency---Term 'Agency' is so broad as to include all ministries, departments, divisions, statutory bodies, etc of Federal Government with a few exceptions of superior courts---Definition of "maladministration" too is all pervasive to include any decision, etc which offends the criteria so broadly explicated in S. 2(2) of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983---Complaint before Ombudsman is a public law remedy---Ombudsman legislation has clearly defined characteristics---Person who makes a complaint can do so directly to Ombudsman's office; the office is independent; the jurisdiction of Ombudsman is widely defined; attempts are made to redress complaints quickly---Generally speaking, the office of Ombudsman is a positive weapon in citizens' armoury against arbitrary administrative action.

(d) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)---

----Art.9---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), S.43---Regulation of Generation, Transmission and Distribution of Electric Powers Act (XL of 1997), S. 45---Constitution of Pakistan, Art.199---Constitutional petition---Ombudsman, jurisdiction of---Maladministration---Special laws---Non obstante clause---Scope---Petitioners were electricity and gas supply companies and were aggrieved of decisions by Ombudsman in the matters between them and their customers---Validity---In case of all those laws on the subject requiring specialists to perform certain functions, it became more imperative to give effect to the purpose of that law---Courts should interpret those laws in such a way that the purpose was served---Present was an era of specialization and it was best to leave such questions of intricate and technical nature to specialists---Ombudsman did not have the authority and power under Art. 9 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, in matters covered by special laws and powers of Ombudsman were excluded to that extent---Proceedings pending before Ombudsman with regard to petitioner companies were without lawful authority and of no legal effect---Proceedings for alleged maladministration could only be undertaken in limited circumstances---Petition was allowed, in circumstances.

Sheikh Khalid Mehmood v. Banking Tribunal, N.W.F.P., Peshawar and another 1997 CLC 1812; WAPDA and another v. Muhammad Arshad Qureshi 1986 SCMR 18; Writ Petition No.26925 of 2013 decided on 3-2-2014; Multan Electric Power Company Ltd. through Chief Executive and another v. Muhammad Ashiq and others PLD 2006 SC 328; Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others PLD 2012 SC 371; Brig. Sher Ali Baz and another v. The Secretary, Establishment Division and others PLD 1991 SC 143; Capital Development Authority through Chairman and another v. Zahid Iqbal and another PLD 2004 SC 99; Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142; Allied Bank of Pakistan Ltd. v. The Wafaqi Mohtasib (Ombudsman) and others PLD 2001 Kar. 203; Rahat Hussain v. Collector of Customs (Prev.), Customs House, Karachi and 2 others 2003 CLC 1860; The Prince Glass Works Ltd. v. National Beverages Ltd. and another PLD 1987 Kar. 49; Samina Anwaar Ullah Khan v. General Manager, SNGPL, Lahore PLD 2012 Lah. 554; Secretary Wafaqi Mohtasib and 6 others v. Capital Steel Re-Rolling Mills through Partner and 2 others PLD 2012 Lah. 493; American Constitution Law; Reading Law -- The Interpretation of Legal Texts; Foreword to Harvard Law Review 2002; Pepper v. Hart, (1993) 1 All ER 42, 50; Gadoon Textile Mills v. WAPDA 1997 SCMR 641; Anderson v. Ryan (1985) 2 All ER 355, 359; College of Physicians and Surgeons Pakistan v. Wafaqi Mohtasib and others PLD 2003 Kar. 667; Tariq Majeed Chaudhry v. Lahore Stock Exchange (Guarantee) Ltd. through President and 3 others PLD 1995 Lah. 572; Sindh Industrial Trading Estate Ltd. v. Provincial Ombudsman and others 1993 SCMR 948; Maxwell on Interpretation; Regulating public Utilities and Pakistan Water and Power Development Authority through Executive Engineer MEPCO Ltd. v. Messrs Husnain Industries (Pvt.) Ltd. through Managing Director Amir Azwar Khan and 3 others 2005 MLD 1979 ref.

Umer Sharif for SNGPL & LESCO.

Muhammad Ilyas Khan for LESCO.

Rana Rashid Akram Khan, Muhammad Shahzad Shaukat, Junaid Jabbar Khan Advocate and Rana Maqsood ul Haq for private Petitioners.

Hafiz Ahsan Ahmad Khokhar and Muhammad Nadeem Tasawar for Respondents Nos.1 and 2.

Shehzad Shaukat for Respondent No.3.

M. Zikriya Sh., D.A.G.

Date of hearing: 26th November, 2014.

2015 M L D 1061

[Lahore]

Before Abdul Sami Khan and Syed Shahbaz Ali Rizvi, JJ

SHAHBAZ---Appellant

versus

The STATE---Respondent

Criminal Appeals Nos. 1935 of 2011 and 1787 of 2006, and Murder Reference No.185 of 2007, heard on 22nd July, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 34 & 109---Qatl-i-amd, acts done by several persons in furtherance of common intention, punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment---Appreciation of evidence---Benefit of doubt---Motive--- Significance--- Dishonest improvements--- Effect--- Medical evidence---Scope---FIR was lodged by delay of 2 hours and 40 minutes though Police Station was at a distance of 5 kilometers from place of occurrence---Unexplained delay of 16 hours in post-mortem examination showed that FIR was not registered at the time mentioned therein and same was registered after due deliberations and consultations---Complainant got recorded his supplementary statement wherein he changed the role (of firing at deceased) to accused---Complainant took three divergent stands on the three different occasions to falsely entangle the accused in the case---Conduct of complainant was sufficient to disbelieve his evidence and conclusively determine that neither he was present at the scene of crime at relevant time nor had he seen the occurrence---Evidence of a witness who made dishonest improvements in order to bring his testimony in line with ocular account lost its credibility---Medical evidence did not support ocular account---Trial Court could not hold the accused responsible for murder of deceased while acquitting co-accused on the basis of same set of evidence especially when co-accused were attributed the role of causing firearm injuries on vital parts of deceased---Evidence of witnesses of abetment did not appeal to prudent mind as accused were not likely to hatch conspiracy to murder by speaking aloud in open place---Medical evidence would be used only for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence, etc. but medical evidence itself would not constitute any corroboration for proving culpability of accused persons---No independent witness was produced to prove motive---Motive was a double edged weapon---Motive to commit offence could also be reason for complainant and witnesses to falsely implicate the accused---Delay of several months in sending crime empty and weapon of offence to Forensic Science Laboratory remained unexplained---No evidence was available to show as to when, where and in whose presence accused had allegedly received Rs.4000 for murder of deceased---Allegation of murder of deceased by accused for Rs.4000 did not appeal to prudent mind---Recovery of Rs.4000 was of no consequence as same was introduced to strengthen prosecution case---Prosecution failed to prove its case beyond shadow of doubt---Single circumstance creating doubt was sufficient to extend benefit of doubt to accused not as a matter of grace but of right---Acquitting ten guilty persons was better than convicting single innocent person---Accused were acquitted---In view of divergent stances of complainant against co-accused acquitted by Trial Court, appeals against their acquittal were dismissed---Double presumption of innocence was attached to the findings/judgment of acquittal and very strong and exceptional evidence was required to convert acquittal into conviction.

Irshad Ahmed v. The State 2011 SCMR 1190; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Amin Ali and another v. The State 2011 SCMR 323; Muhammad Sharif and another v. The State 1997 SCMR 866; Allah Bakhsh and Muhammad Nawaz v. The State PLD 1978 SC 171; Sher Bahadur and another v. The State 1972 SCMR 651; Arif Hussain and another v. The State 1983 SCMR 428; Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 320 rel.

Mazhar Ali Ghallu for Appellant.

Mian Muhammad Awais, Deputy Prosecutor General for the State.

Muhammad Ahsan Bhoon for the Complainant and for Appellant (in Criminal Appeal No.1787 of 2006).

Fayyaz Ahmad Ranjha for Respondents Tahir and Mehdi in person (in Criminal Appeal No.1787 of 2006).

Date of hearing: 22nd July, 2014.

2015 M L D 1081

[Lahore]

Before Shezada Mazhar, J

Hafiz MUHAMMAD SHARAF-UD-DIN---Petitioner

versus

DISTRICT JUDGE, KHUSHAB and others---Respondents

Writ Petition No.19091 of 2009, decided on 25th September, 2014.

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

----Ss. 5, Sched. & 17-A---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Laches, doctrine of---Failure to deposit decreed maintenance allowance for minor by father---Effect---Appellate Court directed the father to deposit decretal amount of maintenance allowance for minor son but he failed and appeal was dismissed for non-deposit of decretal amount---Validity---Appeal was continuation of suit---Order passed by the Appellate Court modifying Family Court's judgment directed the father to deposit maintenance allowance of minor by the next date of hearing and his failure to comply with the said order called for strict action against him---Appeal was dismissed solely on the ground that defendant-father had failed to deposit maintenance of minor as per direction of court---Condition for deposit of maintenance allowance of minor was not against the provision of law---Family Court had power to pass an order for interim maintenance---Defendant being real father of the minor was legally and morally bound to maintain him as per injunctions of Islam---Maintenance allowance fixed by the Family Court could not be termed as exorbitant keeping in view the expenses of minor son on education, clothing, medicines as well as to meet other routine expenses---Appellate Court had rightly modified the judgment and decree of Family Court to the extent of maintenance allowance of plaintiffs---Appellate Court had rightly dismissed appeal---Impugned order was neither illegal nor void---Injustice was also not caused due to said order to the father---No misreading or non-reading of evidence had been pointed out in the impugned judgment and decree passed by the Appellate Court---Judgments and decrees passed by the courts below were in accordance with law and facts of matter---Constitutional petition was hit by the doctrine of laches and was not maintainable---Constitutional petition was dismissed in circumstances.

Umar Farooq v. Mehnaz Iftikhar and others 2006 MLD 555, Mst. Allah Rakhi v. Tanvir Iqbal and others 2004 SCMR 1739; Muhammad Akram v. Mst. Hajra Bibi and 2 others PLD 2007 Lah. 515 and Abdullah v. Mst. Zubaida Begum and others 1998 CLC 1631 ref.

Abdullah v. Mst. Zubaida Begum and others 1998 CLC 1631 distinguished.

(b) Constitution of Pakistan---

---Art. 199---Constitutional petition---One constitutional petition against different causes of action---Maintainability---High Court, in constitutional jurisdiction, could have recourse to Civil Procedure Code, 1908 as an enabling tool---Joinder of parties as well as cause of action had been allowed under Civil Procedure Code, 1908 for convenience of the parties---Different causes of action could be joined in one constitutional petition.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 and Alam Khan and 3 others v. Pir Ghulam Nabi Shah and Company 1992 SCMR 2375 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches, principle of---Scope---Laches per se was not a bar to the invoking of constitutional jurisdiction---Question of delay in filing of constitutional petition would have to be examined with reference to the facts of each case---Lapse of time had to be examined on equitable principles in case of laches---One should not be restricted by time factor as the jurisdiction under Article 199 of the Constitution was a discretionary and extraordinary relief---Such jurisdiction was not to be exercised in favour of a party who was guilty of gross negligence and of laches---Delay in filing constitutional petition should be condoned if order impugned was patently illegal or void or grave injustice to any party would be caused by such order.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Scope of constitutional petition was limited in case of concurrent findings recorded by the courts below.

Syed Arif Ali v. Abdul Samad thorugh L.Rs. and 2 others 2008 YLR 2309 and Sadruddin v. Aslam Madad Ali and others PLD 2008 Kar. 2005 rel.

Malik Muhammad Akram Khan for Petitioner.

Nemo for Respondent.

Date of hearing: 17th September, 2014.

2015 M L D 1090

[Lahore]

Before Muhammad Khalid Mehmood Khan and Shujaat Ali Khan, JJ

MUHAMMAD ANWAR KHAN and another---Petitioner

versus

KHALID MAHMOOD and others---Respondents

Writ Petition No.15689 of 2010, heard on 28th January, 2013.

(a) Constitution of Pakistan---

----Art.199(1)(a)(ii)---Constitutional petition---Maintainability---Scope---Election to Provincial Assembly---Educational qualification of candidate---Production of fake, bogus and forged degree by the candidate---Factual controversy---Allegation required factual inquiry and High Court in its constitutional jurisdiction could not hold factual inquiry---Where, however, the facts were admitted and clear, High Court under Art.199 of the Constitution had the jurisdiction to take the cognizance and resolve the dispute.

(b) Constitution of Pakistan---

----Arts. 62, 63 & 199(1)(b)(ii)---Constitutional petition---Qualification of graduation for Membership of Parliament/Provincial Assembly no longer existed after the amendment in law---Effect---Member of Provincial Assembly who was not a graduate and as such he submitted false information on oath while contesting the election of Member of Provincial Assembly and succeeded to defraud the voters of the constituency, his election as Member of Provincial Assembly was declared as fraudulent and of no legal effect.

Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islam Abad and others PLD 2010 SC 817; Mian Muhammad Shahbaz Sharif v. Ch. Muhammad Altaf Hussain, Governor of Punjab, Lahore and 2 others PLD 1995 Lah. 541; Haji Nasir Mehmood v. Mian Imran Masood and others PLD 2010 SC 1089; Mudassar Qayum Nahra v. Ch. Billal Ijaz and others 2011 SCMR 80; Sardar Asmatullah Khan v. Maulvi Muhammad Sarwar and others 2011 SCMR 107; Mian Najeeb ud Din Owaisi v. Aamir Yar and 7 others 2011 SCMR 180; Khalifa Muhammad Munawar Butt and another v. Hafiz Muhammad Jamil Nasir and others 2008 SCMR 504; Dr. Mubashar Hussain and others v. Federation of Pakistan and others PLD 2010 SC 265; Malik Saleh Muhammad Junjial v. Kamran Elahi Bandial 2008 SCMR 1; Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2007 SC 369; Khalid Rashid v. Kamaran Lashari, Chairman C.D.A., Islamabad and others 2010 SCMR 594; Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97; Mian Rauf ud Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1971 SC 252; Hassan and others v. Fancy Foundation PLD 1975 SC 1; Imtiaz Ahmad Lali v. Returning Officer and 3 others PLD 2008 SC 355; Ch. Muhammad Arif Hussain v. Rao Sikandar Iqbal and 10 others PLD 2008 SC 429; Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49, Islamabad and others PLD 2008 SC 487; Ardeshir Cowasjee and others v. Karachi Building Control Authority and others PLD 2004 SC 70; Muhammad Aslam Bhotani v. Election Tribunal and 2 others PLD 2003 Quetta 94; Messrs Ansari Sugar Mills Ltd. v. Commissioner of Income Tax, Karachi 2010 PTD 755; Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and 4 others PLD 1985 SC 376; Boora and 2 others v. Divisional Canal Officer and another 1984 CLC 364; Karachi Watch v. Imran Fasihi and another 2008 CLC 222; Hakim Ali Zardari v. The State and another PLD 1998 SC 1; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Jannat ul Haq and 2 others v. Abbas Khan and 8 others 2001 SCMR 1073; Muhammad Arif and another v. The State and another 1993 SCMR 1589; Taza Khan and others v Ahmad Khan and others 1992 SCMR 1371; Government of Punjab through Secretary Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602; Shahid Nabi Malik and another v. Chief Election Commissioner Islamabad and 7 others PLD 1997 SC 32; Pakistan Lawyers Forum through General Secretary v. Federation of Pakistan, Ministry of Law and Justice Parliamentary Affairs and Human Rights, Islamabad and another PLD 2011 Lah. 382; Zaheer ul Hassan and another v. Pakistan Postal Office through Post Master General, Lahore and 2 other 2004 PLC (CS) 369; Dr.Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42; Mst. Kaniz Fatima through legal heirs v. Muhammad Salim and 27 others 2001 SCMR 1493; Muhammad Safdar Abbasi v. Aamir Yar Malik and 3 others 2004 SCMR 1602; Shamas ul Haq v. Returning Officer/Additional District Judge and 9 others 2004 MLD 1365; Election Commission of Pakistan through Secretary v. Javaid Hashmi and others PLD 1989 SC 396; Raja Muhammad Nasir v. Chairman 2009 CLR 327; Makhdoom Ghulam Ali Shah v. Election Commission of Pakistan, Islamabad thorugh Secretary and 4 others 2008 CLC 738; Muhammad Liaquat Munir Rao v. Shams ud Din and others 2004 PLC (CS) 1328; Province of Punjab through Chief Secretary and 5 others v. Malik Ibrahim and sons and another 2000 SCMR 1172; Shah Wali and others v. Ferozuddin and others 2000 SCMR 718; Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary Department of Agriculture, Government of West Pakistan Lahore PLD 1970 SC 98; Dr. Mujahid Ali Mansoori and others v. University the Punjab and others 2005 PLC (CS) 694; M A. Jabbar and 3 others v. Federation of Pakistan through Secretary Establishment Division, Government of Pakistan Islamabad and 5 others 1999 PLC (CS) 686; P.L Lakhanpal v. Ajit Nath Ray Chief Justice of India, New Dehli and others AIR 1975 Dehli 66; Sardar Asseeff Ahmed Ali v. Mr. Muhammad Khan Juneju and others PLD 1986 Lah. 310; Dr. Azim ur Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Federation Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166 and M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228 ref.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1054 rel.

Shahzib Masud and Moeez Tariq for Petitioner.

Tahir Munir Malik and Ghulam Farid Sanotra for Respondents.

Mobeen ud Din Qazi for Respondent No.5.

Muhammad Shahzad Shaukat for Punjab University.

Date of hearing: 28th January, 2013.

2015 M L D 1127

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MEHMOOD AKHTAR MAQBOOL---Petitioner

versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.19648 of 2010, decided on 20th October, 2014.

Punjab Rented Premises Ordinance (XXI of 2007)---

----Ss. 15, 21 (1) & 22 (6)---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Application for leave to contest---Limitation---Tenant moved petition for leave to contest after prescribed period of ten days which was dismissed being beyond statutory period of limitation---Contention of tenant was that no notice in terms of S.21(1) of Punjab Rented Premises Ordinance, 2007 was issued, and that notice should not only be in prescribed form but also accompanied by the copy of application and documents annexed with the same enabling the tenant to file application for leave to contest within 10 days---Eviction petition was accepted concurrently---Validity---Rent Tribunal declined application for leave to defend being beyond the statutory period of limitation---Tenant neither challenged the said order at the relevant time nor when the final order was passed against him---Tenant had not raised any objection with regard to his non-service in the appeal in accordance with the provisions of S.21(1) of Punjab Rented Premises Ordinance, 2007---Tenant could not be allowed to raise such plea for the first time in constitutional petition---Tenant was barred to raise such objection after lapse of more than four years and nine months of passing the final eviction order---Rent Tribunal was bound to pass final order in case of non-filing of application for leave to defend by the tenant and was justified in passing of impugned order for eviction which had rightly been maintained by the Appellate Court---No illegality or irregularity had been pointed out in the impugned orders---Constitutional petition was dismissed in circumstances.

Ijaz Ahmad v. Suriva Akhtar and others PLD 2011 Lah. 42; Muhammad Amir Habib v. Zaheer Ahmad and 2 others PLD 2012 Lah. 107; Younis Siddique v. Mst. Tahira Jabeen PLD 2009 Lah. 469 and Sharafat Kaleem v. Additional District Judge, Bahawalnagar and 11 others 2013 CLC 185 ref.

Malik Abdul Aziz Awan and another v. Rana Maqbool Ahmad Khan and others 2012 SCMR 91 rel.

Kh. Muhammad Ashraf Jan for Petitioner.

Zahoor Ali Khan Rana for Respondents.

2015 M L D 1131

[Lahore]

Before Muhammad Qasim Khan, J

Mst. BASHIRAN BIBI---Petitioner

versus

BASHIR AHMAD and 3 others---Respondents

Crl. Misc. No.17-T of 2013, decided on 18th June, 2013.

Criminal Procedure Code (V of 1898)---

----S.526---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Transfer of case---Lack of confidence in court---Complainant sought transfer of case from Trial Court on the plea that he had lost confidence upon the court as pre-arrest bail to accused was confirmed through a police tout---Validity---Bail order passed by Trial Court was fully justified and complainant did not assail the same before any court, nor even name of the tout who purportedly ensured confirmation of bail to accused was disclosed---With such simple and bald allegation, just on the account of apprehension or fear that complainant would not get justice from Trial Court, without there being any proof in such regard, case could not be transferred---Judicial officers were expected and presumed to be performing their duties with all honesty and dedication by knowing that they had been bestowed with sacred obligation to deliver justice beyond any worldly temptation---Interference by High Court in working of Trial Court, on fallacious grounds would give rise to sense of insecurity amongst Judicial Officers and in such eventuality Judicial Officers might not be able to work with required vigor---High Court asserted that motivated attempts of parties for their personal gains, levelling false allegations against Judicial Officer, should be curbed---Transfer of case from Trial Court was declined---Application was dismissed in circumstances.

Ahmad Raza for Petitioner.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Mehroz Aziz Khan Niazi for Respondents.

2015 M L D 1145

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD ANWAR UJALI and 4 others---Petitioners

versus

ASGHAR ALI---Respondent

Crl. R. No.1257 of 2011, decided on 27th May, 2013.

Criminal Procedure Code (V of 1898)---

----S.200---Penal Code (XLV of 1860), Ss.452, 109, 302, 324 & 34---House trespass after preparation for hurt, assault or wrongful restraint, abetment, qatl-i-amd, attempt to commit qatl-i-amd, common intention---Summoning of complainant in a private complaint by the respondent---Petitioner/complainant party got a case registered against accused persons for the murder of son of complainant---During investigation, cross version introduced by accused party did not succeed---Private complaint was filed by the respondent at a belated stage with delay of 18 months which was dismissed by the Trial Court, primarily holding that it was a malicious device by the respondent to frustrate the proceedings of murder case---Said order of the Trial Court was set aside by High Court in revisional jurisdiction, and case was remanded to the Trial Court for rehearing the argument of the respondent and rewriting of order in the complaint case---Trial Court, on remand of the case, summoned the petitioners---Validity---View taken earlier by the Trial Court, whereby private complaint filed by the respondent was dismissed, was not perverse or illegal and unlawful---After the acceptance of revision petition filed by the respondent, no material change was brought on record, or any further evidence was introduced by the respondent to strengthen its complaint case---Delay in filing the private complaint by the respondent, by itself was one of the major factors to notice the dubiousness or bona fide of the private complaint---Revision petition was allowed and impugned order by which Trial Court summoned the petitioner, was set aside, in circumstances.

Muhammad Salim and others v. Fazal Mahmood and others 2001 SCMR 1738; Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105 and Zafar and others v. Umer Hayat and others 2010 SCMR 1816 ref.

Muhammad Salim and 4 others v. Fazal Muhammad and another 2001 SCMR 1738; Zafar and others v. Umar Hayat and others 2010 SCMR 1816 and Muhammad Faiz Khan v. Ajmer Khan and another 2010 SCMR 105 rel.

Muhammad Iqbal Bhatti for Petitioners.

Tariq Iqbal for Respondent No.1.

M. Akhlaq, D.P.G.

Sher Afghan Asadi in C.M.

2015 M L D 1169

[Lahore]

Before Shahid Waheed, J

GHULAM FATIMA---Petitioner

versus

DUR MUHAMMAD and others---Respondents

C.M No.451-C of 2012 in C.R. No.372-D of 1996, decided on 11th September, 2014.

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

----Ss. 12(2) & 115 & O. XXII---Application under S.12(2), C.P.C.---Judgment/order, setting aside of---Misrepresentation---Death of one of the revision petitioners during pendency of revision---Non-impleading of legal heirs of deceased revision petitioner---Effect---Revisional jurisdiction of High Court---Applicability of Order XXII, C.P.C.---Scope---Contention of applicants was that one of the revision petitioners had died during the pendency of revision and to his extent power of attorney had lost its validity and without impleading the applicants/legal heirs as party misrepresentation had been committed---Validity---Applicants had neither averred in the application nor pleaded during arguments that facts pleaded by the counsel were contrary to the record---No untrue statement of fact or incorrect or false representation on behalf of other revision petitioners was made---Present case was not a case of misrepresentation of facts---Deceased revision petitioner and other defendants filed revision in his life time---Interest of all revision petitioners/defendants was common and other revision petitioners had contested the revision petition---No prejudice was caused to other revision petitioners and present applicants---Applicants had not alleged that their (revision petitioners) brothers had colluded with the plaintiffs/respondents of revision petition and there was no occasion to misrepresent the facts/case before the High Court at the time of final arguments of revision---Other revision petitioners who were sons of deceased were bound to bring on record the left over legal heirs of deceased revision petitioner who were the applicants---Applicants were bound to come forward and become a party in the revision petition---Impugned judgment/order could not be said to have been passed without impleading the legal heirs of deceased revision petitioner---Provisions of Order XXII, C.P.C. were not applicable to the revisional jurisdiction of High Court and if any of the revision petitioner died, same would not abate the revision petition---Impugned order could be passed in the present case without impleading the legal heirs of deceased revision petitioner---Revisional proceedings were always considered as proceedings between a higher court and a lower court---Revision petition was dismissed after examining the record of the case---No misreading or non-reading of evidence had been alleged by the applicants---Death of one of the revision petitioner and invalidity of his power of attorney was not fatal for the disposal of revision petition---Application for setting aside judgment/order was dismissed in circumstances.

Khan Sahib Khan Muhammad Saadat Ali Khan v. The Administrator Corporation of City of Lahore PLD 1949 Lah. 541; Perdil and others v. Barkat and others PLD 1953 Pesh. 14; Muhammad Sadiq v. Muhammad Sakhi PLD 1989 SC 755 and Bashir Ahmad through L.Rs. v. Muhammad Hussain and others 2010 SCMR 822 rel.

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

----S. 115 & O. XXII---Revisional jurisdiction of High Court---Applicability of Order XXII, C.P.C.---Scope---Provisions of Order XXII, C.P.C. were not applicable to the revisional jurisdiction of High Court and if any of the revision petitioner died, same would not abate the revision petition.

(c) Words and phrases---

----"Misrepresentation"---Meaning.

Black's Law Dictionary rel.

Waseem Mumtaz for Petitioner.

Mian Muhammad Jamal for Respondents Nos. 1, 3 and 4.

Ch. Abdul Sami for Respondents Nos. 6, 7 to 9.

2015 M L D 1188

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

TARIQ HAMEED and 2 others---Petitioner

versus

ADDITIONAL SESSIONS JUDGE and 5 others---Respondents

W. P. No.789 of 2012, decided on 2nd July, 2013.

(a) Interpretation of statutes---

----Special law has overriding effect over general law.

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

----Ss.380 & 406---Criminal Procedure Code (V of 1898), S.22-A---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 7(b)---Constitution of Pakistan, Art.199---Constitutional petition---Special law---Banking offence---Registration of case---Petitioner availed finance facility from respondent bank and also pledged bags of rice---Bank alleged that petitioner had misappropriated or stolen the rice bags and sought direction from Ex-officio Justice of Peace for registration of FIR---Validity---Financial Institutions (Recovery of Finances) Ordinance, 2001, was a special law and had overriding effect over the provisions of Penal Code, 1860---When Financial Institutions (Recovery of Finances) Ordinance, 2001, itself provided procedure for dealing with matters of civil as well as criminal nature, only Banking Court constituted under Financial Institutions (Recovery of Finances) Ordinance, 2001, had jurisdiction to take action upon criminal acts performed by parties---Provision of S. 7(b) of Financial Institutions (Recovery of Finances) Ordinance, 2001, created a prohibition in respect of lodging of criminal case under the provisions of Penal Code, 1860---Ex-Officio Justice of Peace was not within his jurisdiction when he ordered for registration of case against petitioners under the provisions of Penal Code, 1860---Bank had no authority to file application under S. 22-A, Cr.P.C., nor Ex-Officio Justice of Peace had any jurisdiction, in presence of Banking Court, to order for registration of case against petitioners---High Court set aside the order passed by Ex-Officio Justice of Peace---Petition was allowed in circumstances.

Murshid Ali and 4 others v. S.H.O, Police Station Saddar, Khanewal and another 2011 PCr.LJ 1763; Mian Asim Farid and another v. Industrial Development Bank of Pakistan and 4 others 2005 PCr.LJ 766 and and Malik Tariq Mehmood v. Messrs Askari Leasing Ltd. PLD 2009 Lah. 629 ref.

Shaukat Ali and others v. The State and others 2012 CLD 1 and Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 SCMR 483 distinguished.

Ch. Muhammad Abdul Qayyum for Petitioners.

Wali Muhammad Khan, A.A.-G. for Respondents.

Hassan Iqbal Warraich for Respondent No.5.

2015 M L D 1194

[Lahore]

Before Miss Aalia Neelum, J

Babu AMEER ALI and another---Petitioners

versus

The STATE and another---Respondents

Criminal Miscellaneous No.5536-B of 2013, decided on 30th May, 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---Accused persons were marginal witnesses of a sale deed, which was executed and registered on the basis of an allegedly forged agreement to sell prepared in favour of co-accused---Accused persons had not been assigned any role in preparation of the forged agreement to sell in favour of co-accused---Accused persons were only signatories to the sale deed as marginal witnesses and were not beneficiaries of the said document---Litigation regarding the matter in dispute was pending before a civil court---Co-accused filed a suit for specific performance of the allegedly forged agreement to sell on 7-6-2003, whereupon the complainant filed a suit for cancellation of the said agreement to sell, and both suits were consolidated by the Trial Court, but now after 11 years complainant with mala fide intention and ulterior motives registered the present FIR---Allegedly forged agreement to sell had been produced before the civil court by the co-accused, and the court itself could take cognizance of the offence under S.195(1)(c), Cr.P.C.---Said agreement to sell was not available on record---Investigating officer did not collect any material evidence against accused persons and nothing was to be recovered from them, therefore, their arrest in the present case would bring undue humiliation for them in the public---None of the offences alleged fell within the prohibitory clause of S. 497(1), Cr.P.C---Pre-arrest bail already granted to accused persons was confirmed in circumstances.

Abdul Jabbar Awan for Petitioners.

Muhammad Nawaz Shahid, DDPP for the State.

Muhammad Ajmal Adil for the Complainant.

Shabbir Ahmad, A.S.I. with record.

2015 M L D 1212

[Lahore]

Before Amin-ud-Din Khan, J

RAJA KHAN through L.Rs.---Appellant

versus

MURAD SHAH through L.Rs. and others---Respondents

R.S.A. No.212 of 1982, heard on 26th June, 2014.

(a) Punjab Pre-emption Act (I of 1913)---

----S. 15---Superior right of pre-emption, proof of---Requirements---Plaintiff was required to prove his superior right at the time of sale, at the time of filing of suit and at the time of decree---Pre-emptor was not owner of the estate at the time of attestation of impugned mutation---Pre-emptor did not appear as his own witness at the time of affirmative evidence and his counsel made a statement accepting the consideration price and produced documents only---Statement recorded by the plaintiff after recording evidence of defendants could not be read as his affirmative evidence---No superior right of plaintiff had been proved in the present case---Findings recorded by the courts below were against law---Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed---Second appeal was accepted in circumstances.

Asad Ali Alvi v. Nazir PLD 1982 Lah. 358; Ali Nawaz v. Mst. Saira Bibi and 2 others 1999 SCMR 1909; Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC 59 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 ref.

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

----S. 100---Second appeal---Scope---High Court could interfere with the findings recorded by the courts below when same were against law.

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

----S. 42---Decree for declaration---Scope---Decree passed in a suit for declaration did not create or confer a new right but same would declare a pre-existing right and would be implementable in the revenue record.

Basharat Ali Gill for Appellant.

Naveed Shehryar Sheikh for Respondent Nos. 2 to 7.

Date of hearing: 26th June, 2014.

2015 M L D 1225

[Lahore]

Before Ali Akbar Qureshi, J

GUL MUHAMMAD and 5 others---Petitioners

versus

GHULAM QADIR and 2 others---Respondents

C.R. No.588-D of 1997, heard on 20th January, 2015.

Islamic Law---

----Inheritance---Right of daughter, uterine brothers and sisters in inheritance---Gift/donation of inherited share, proof as to---Mother donated/gifted her share, which she had inherited from husband, in favour of her daughter, a minor at the relevant time---Mutation was directly sanctioned in name of the daughter on basis of said gift---Daughter died issueless and inheritance mutation was sanctioned in names of her (daughter's) mother and husband---Uterine brothers and sisters of the daughter filed suit for declaration claiming that all said mutations were illegal and unlawful as their mother had not donated/gifted her share to the daughter---Trial Court after recording evidence and hearing parties dismissed the suit---Appellate Court decreed the same on ground that no fraud was committed and gift mutation in favour of the daughter was rightly entered; however uterine brothers and sisters as such, along with their mother, were entitled to their respective shares out of remainder of legacy left by the daughter as her husband was entitled only to 1/2 share in legacy---Validity---Daughter being minor at the time the gift was made to her was unable to manage to get share of her mother by way of donation and entry in the inheritance mutation in connivance with anyone---Mother had not challenged said gift mutation in her life time---No fraud was alleged---Mother and husband of daughter were entitled to their respective legal share and remainder of legacy of the daughter was to be distributed among uterine brothers and sisters---Gift mutation was rightly entered in the name of the daughter in revenue record---Trial Court committed serious jurisdictional error by not attending said aspects of case and wrongly interpreted available record---Appellate Court rightly appreciated the record and reached fair conclusion---High Court dismissed petition and affirmed judgment and decree passed by appellate Court.

Mian Waseem Alam Ansari for Petitioners.

Malik Muhammad Latif Khokhar for Respondents.

Date of hearing: 20th January, 2015.

2015 M L D 1233

[Lahore]

Before M. Sohail Iqbal Bhatti, J

MUHAMMAD RAFIQUE and 3 others---Petitioners

versus

MUKHTAR AHMAD and 3 others---Respondents

C.R. No.185 of 2006, heard on 12th June, 2014.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talbs, performance of---Requirements---Pre-emption was a feeble right and formalities for its exercise and enforcement must be observed---Plaintiff had not made jumping demand which was sine qua non of Talb-i-Muwathibat---Notice of Talb-i-Ishhad did not bear the signatures and thumb impression of its attesting witnesses---Witness of notice of Talb-i-Ishhad was not aware of the contents of said notice who had signed the blank document which was not read over to him---Said witness was not an attesting witness of notice of Talb-i-Ishhad---Mandatory requirement of S. 13(3) of Punjab Pre-emption Act, 1991 was not complied with which was fatal to claim of pre-emption---Notice of Talb-i-Ishhad should be served on the addressee to apprise him about the intention to pre-empt the suit land---Mere sending of notice of Talb-i-Ishhad was not enough and pre-emptor was bound to prove the service of said notice---Ingredients to prove Notice of Talb-i-Ishhad were missing in the present case which was mandatory to establish the right of pre-emption---Revision was dismissed in circumstances.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Allah Ditta through L.Rs., and others v. Muhammad Anar 2013 SCMR 866; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762 and Abdul Khan v. Ramzano Bibi PLD 2013 SC 193 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Findings of question of law and facts could not be interfered with by the High Court in exercise of its revisional jurisdiction unless such findings were suffering from jurisdictional defect, illegality or material irregularity.

Ch. Abdul Ghani for Petitioners.

Ghulam Murtaza Malik and Muhammad Tahir Hameed for Respondent No.1.

Date of hearing: 12th June, 2014.

2015 M L D 1244

[Lahore]

Before Syed Iftikhar Hussain Shah, J

MUZAFFAR HUSSAIN---Appellant

versus

The STATE and another---Respondents

Crl. Appeal No.844 of 2013, heard on 30th May, 2014.

Penal Code (XLV of 1860)---

----Ss. 302 & 109---Qatl-i-amd, abetment---Appreciation of evidence---Benefit of doubt---Principles---Accused was a Halqa Patwari and was charged with abetting the main accused by informing said main accused through mobile phone about arrival and presence of the deceased to the office of accused and sentenced to imprisonment for life with payment of compensation---No documentary proof of telephonic calls had been placed on record---Investigating Officer did not take into possession the mobile phone or the sim card of the accused---Accused did not make call to main accused during stay of complainant and deceased in his office but made a call to main accused---Single circumstance causing reasonable doubt in the mind of the court entitled the accused to the benefit of doubt not as a matter of grace but as a matter of right---Accused must always be presumed to be innocent---Onus to prove guilt was on prosecution---Proof of a case against accused must depend not upon the absence or want of explanation on the part of the accused but upon the positive and affirmative evidence of guilt led by prosecution to substantiate the accusation---Where facts had been proved and no hypothesis consistent with the innocence of accused could be suggested, conviction must be upheld, however, where facts could be reconciled with any reasonable hypothesis compatible with the innocence of the accused, case had to be treated as one of 'no evidence' and conviction and sentence had to be quashed---Prosecution had failed to prove its case beyond reasonable doubt---Accused was acquitted.

Rehmatullah v. The State 2006 PCr.LJ 358; Hafiz Tanveer v. The State and another PLD 2010 Lah. 156; Akhtar Ali and others v. The State 2008 SCMR 6 and Mudassar Shahzad v. The State 2004 PCr.LJ 332 ref.

Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Luqman v. The State PLD 1970 SC 10 rel.

Irfan Mehmood Ranjha for Appellant.

Kashif Bashir for the Complainant.

Ch. Muhammad Akram Tahir, Deputy District Public Prosecutor for the State.

Date of hearing: 30th May, 2014.

2015 M L D 1256

[Lahore]

Before Shah Khawar, J

MUHAMMAD JAVAID---Petitioner

versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

W.P. No.5227 of 2014, decided on 21st April, 2014.

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

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Arts.189, 190 & 199---Constitutional petition---Registration of case---Petitioner challenged order of Ex-officio Justice of Peace whereby S.H.O. was directed to proceed under S.154, Cr.P.C. contending that parawise comments of Investigating Officer that the allegations were false were not taken into account by Justice of Peace---Validity---Where information disclosed a cognizable offence, S.H.O. was duty bound to record FIR without going into veracity of information---Constitutional petition was dismissed in circumstances.

Khizar Hayat and another v. Inspector-General of Police, Lahore and others PLD 2005 Lah. 470 ref.

Muhammad Bashir v. Station House Officer, Okara Cantt and others PLD 2007 SC 539 and Human Rights Case No.19526-G of 2013, 2014 SCMR 83 rel.

(b) Constitution of Pakistan---

----Art. 189---Decision of Supreme Court---Binding---Scope---Any decision of the Supreme Court to the extent that it decided a question of law or was based upon or enunciated a principle of law, was binding on all other courts in Pakistan.

(c) Constitution of Pakistan---

----Art. 190---Scope of Art.190 of the Constitution---All executive and judicial authorities throughout Pakistan would act in aid of Supreme Court.

Muhammad Sarwar Awan for Petitioner.

2015 M L D 1266

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

Syed MUBASHAR ALI---Petitioner

versus

The STATE and others---Respondents

Criminal Miscellaneous No.12323/B of 2014, decided on 23rd September, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail, grant of---"Pre-arrest bail" and "post-arrest bail"---Distinction---Accused though was nominated in the crime report, but High Court had to see from the facts and circumstances as to whether ingredients of pre-arrest bail were made out or not---Marked distinction existed between "pre-arrest bail" and "post-arrest bail" and considerations for both were on different footing---Scope of "pre-arrest bail" was wide---In the present case, delay of six months occurred in lodging of the crime report, for which no plausible explanation had been rendered---Cheque in question was filled in with different handwriting, and difference was in between the filling of entries and the signatures of accused---Cheque in question, having been issued during business transactions, civil litigation had been culminated into criminal liability---Culpability of accused, would be determined by the Trial Court during trial after recording of evidence---Punishment of offence, alleged to have been committed by accused, was three years, which did not fall within the prohibition contained in S.497(1), Cr.P.C.---Grant of bail in such like case, was a rule, and refusal an exception---Liberty of person was precious right, which could not be denied, only on the basis of bald allegation---Sending accused behind the bars, would serve no useful purpose---Ad interim pre-arrest bail, already granted to accused, was confirmed, in circumstances.

Meeran Bux v. The State and another PLD 1989 SC 347 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Iftikhar Ahmad Qureshi for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General with Ramzan, A.S.-I. for the State.

Complainant in person.

2015 M L D 1300

[Lahore]

Before Shahid Karim, J

GHULAM SARWAR and others---Petitioners

versus

HABIB BUKHSH and others---Respondents

C.R. No.330-D of 2005, decided on 15th April, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 114---Suit for declaration---Estoppel, principle of---Applicability---Mutation of inheritance attested on 7-5-1925 was assailed by plaintiffs on 28-10-1993, on the plea that they were deprived of their lawful share---Suit was concurrently decreed in favour of plaintiffs by both the courts below---Validity---By judgments passed by both the courts below mutation effected in year, 1925 was upset while much water had flowed under the bridge---Plaintiffs were estopped by their words and conduct to file suit and claim inheritance in year, 1993, while admitting that their predecessor-in-interest had not challenged mutation in question when he was alive knowing fully well regarding the mutation and having participated in proceedings for consolidation---High Court in exercise of revisional jurisdiction set aside findings of both the courts below resultantly dismissed the suit filed by plaintiffs---Revision was allowed in circumstances.

Noor Salam and others v. Gul Badshah and others PLD 2002 SC 622; Mehrban and 3 others v. Mst. Sahib Jan 2005 SCMR 1832; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Juma Khan and others v. Mst. Bibi Zenaba and others PLD 2002 SC 823 and Bashir Ahmed v. Abdul Aziz and others 2009 SCMR 1014 ref.

Abdul Haq and another v. Mst. Surayya Begum 2002 SCMR 1330 and Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299 rel.

Shahibzada Mehboob Ali Khan for Petitioners.

Najam-ul-Saqib for Respondents.

Date of hearing: 8th April, 2015.

2015 M L D 1307

[Lahore]

Before Mirza Viqas Rauf, J

FSCO through Chief Executive Officer and 3 others---Petitioners

versus

AL-MURTAZA COTTON FACTORY, through Director and 2 others---Respondents

Writ Petition No.4257 of 2013, heard on 17th February, 2015.

(a) Electricity Act ( IX of 1910)---

----Ss. 24(2) & 26(6)---Constitution of Pakistan, Art. 199---Constitutional Petition---Detection Bill---Powers of Electric Inspector---Scope---Section 26 (6) of Electricity Act, 1910, mandates that Electric Inspector is to decide the matter relating to detection bill within the period of ninety days and if the same is not done within the stipulated period, the matter will be referred to Provincial Government for decision---Electric Inspector, in such eventuality would become functus officio---Where the Electric Inspector had failed to decide the matter within stipulated period, order of Electric Inspector and that of Advisory Board were set aside by High Court being illegal, void ab initio and coram non judice and matter was referred to Provincial Government to decide the same in accordance with law---Constitutional petition was allowed.

WAPDA through Chairman, and 5 others v. Muhammad Amir Malik and 2 others 2006 YLR 2612 rel.

(b) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----Ss. 38 & 45---Electricity Act ( IX of 1910 ), S. 26(6)---Scope and applicability of S.26(6) of the Electricity Act, 1910 and S. 45 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Section 45 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 enumerates that the provisions of said Act are in addition to the already existing laws---If anything in the said Act is contrary or inconsistent with any other law, the same shall have no effect and the present Act will prevail to that extent---Neither any of the sections of Electricity Act, 1910 were repealed after the promulgation of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 nor S. 26(6) of the Electricity Act, 1910 offends any of the provisions of the said Act.

Saeed Ahmad Bhatti-I for Petitioners.

A.D. Bhatti for Respondent No.1.

Khawaja Salman Mehmood, Assistant Advocate General for Respondents Nos. 2 and 3.

Date of hearing: 17th February, 2015.

2015 M L D 1327

[Lahore]

Before Arshad Mahmood Tabbasum, J

MUHAMMAD AMIN and others---Petitioners

versus

WAPDA through Chairman and others---Respondents

C.R. No.2385 of 2005, heard on 22nd September, 2014.

Land Acquisition Act (I of 1894)---

----S.48---Specific Relief Act (I of 1877), S. 55---Civil Procedure Code (V of 1908), S.11 & O. XVII, R. 3---Land acquisition---Suit for mandatory injunction---Res judicata, principle of---Applicability---Scope---Contentions of plaintiffs were that land acquired for the purpose was not utilized for said purpose which was liable to be restored to them and their earlier suit was dismissed for non-prosecution and for want of evidence which could not operate as res judicata---Suit was dismissed concurrently---Validity---Government (defendants) had become absolute owner of suit land on acquisition of the same and could utilize such land according to its requirements---Government could either put the land in question to auction or as a matter of grace restore the same to its previous owner---Government could not be compelled to restore the land in question to its previous owner---Earlier suit filed by the plaintiffs was dismissed for non-prosecution and for want of evidence---Decision under O. XVII, R. 3, C.P.C. would operate as res judicata---Lis between the parties stood decided in the previous suit and plaintiffs were left with no cause of action to maintain a subsequent suit---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Hafiz Noor Muhammad and others v. Ghulam Rasul and others 1999 SCM 705; Mobin Rafique and another v. Rashid Ahmad and 2 others PLD 2012 Sindh 449 and Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474 ref.

Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474 and Province of Punjab through Collector, Lahore and another v. Saeed Ahmad and 4 others PLD 1993 SC 455 ref.

Taffazul H. Rizvi for Petitioners.

Aurang Zaib Mirza and Umar Sharif for Respondent.

Date of hearing: 22nd September, 2014.

2015 M L D 1358

[Lahore]

Before Amin-ud-Din Khan and Mahmood Ahmad Bhatti, JJ

ALI MANSOOR RAZA---Appellant

versus

EJAZ HUSSAIN and others---Respondents

R.F.A. No.168 of 2010, heard on 6th April, 2015.

Punjab Pre-emption Act (IX of 1991)---

----S.13---Civil Procedure Code (V of 1908), O.XIII, R.4---Talbs, performance of---Documentary evidence---Exhibits, non-marking of---Pre-emptor was aggrieved of judgment and decree passed by Trial Court, whereby suit was dismissed---Validity---Record showed that all receipts were available but the same did not have endorsement with exhibit numbers and no mark of exhibition was available on the receipts---Such material irregularity was committed by Trial Court, while recording evidence and court while deciding the suit had referred the documents as exhibited ones despite the fact that no mark of exhibit was available on envelops of registered letters allegedly sent to vendees as well as receipts of post office issued for registered letters---Such defect was fatal, therefore, Trial Court ignoring such defect had decided the case by referring those documents as exhibits, which actually did not contain exhibit mark---High Court set aside judgment and decree passed by Trial Court and remanded the case to Trial Court for decision afresh as valuable rights of parties were involved---Appeal was allowed accordingly.

Muhammad Javed Akhtar Wains for Appellant.

Malik Muhammad Tariq Rajwana, Syed Izhar-ul-Haq Gillani and Syed Ikram-ul-Haq Gillani for Respondents.

Date of hearing: 6th April, 2015.

2015 M L D 1379

[Lahore]

Before Shahid Karim, J

Haji IJAZ AHMAD---Petitioner

versus

MEMBER, BOARD OF REVENUE and others---Respondents

W.P. No.6937 of 2010, decided on 18th March, 2015.

(a) Jurisdiction---

----Exercise of powers---Principle---For a forum to exercise its powers, certain jurisdictional facts must exist to enable that forum to exercise its powers.

(b) Review---

----Exercise of right of review---Scope---Right of review is a statutory right and is a creature of statute---Such right must be conferred specifically by law as is the case with a right of appeal and cannot be inferred or presumed to exist.

Muzaffar Ali v. Muhammad Shafi PLD 1987 SC 1994 rel.

(c) West Pakistan Board of Revenue Act (XI of 1957)---

----S.8---West Pakistan Land Revenue Rules, 1968, R.17---Constitution of Pakistan, Art.199---Constitutional petition---Lambardar, appointment of---Second review by Board of Revenue---Scope---Petitioner was a candidate for the post of Lamberdar on the plea that his father and his elder brother remained Lamberdar during their lifetime---Petitioner was aggrieved of decision made by Board of Revenue passed in second review---Validity---Held, it was the power of review which was exercised by Board of Revenue while passing the order in first review---Further review of order passed in review could not have been done by Board of Revenue in the absence of any such power to vest in the Board by law---Board of Revenue exceeded its jurisdiction by passing order in question in ostensible exercise of the power of review to vest in it---No power to review an order passed on a review petition by Board of Revenue was available---No power of second review being available under law, exercise of any such jurisdiction was without lawful authority and non est---High Court set aside the order passed by Board of Revenue in second review---Petition was allowed in circumstances.

Ghulam Muhammad v. Member, (Judicial-III), Board of Revenue Punjab, Lahore 2005 CLC 1512; Khan Muhammad Khan through Legal Heirs v. Member (Judicial-I), Board of Revenue Punjab, Lahore and 5 others PLD 2006 Lah. 322; Muhammad Amin and 7 others v. Member (Consultation) Board of Revenue Punjab and 3 others 1992 CLC 2338 and Allah Wasaya v. Member (Colonies) Board of Revenue, Punjab; Lahore 2006 YLR 2084 ref.

Mehr Muhammad Rafiq Mulana for Petitioner.

Mehr Ahmad Raza for Respondent No.5.

Rana Muhammad Hussain, A.A.-G. for Respondents Nos. 1 to 4.

2015 M L D 1386

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

GHULAM SARWAR KHAN---Petitioner

versus

CHAIRMAN PUNJAB BOARD OF TECHNICAL EDUCATION and others---Respondents

Writ Petition No.30777 of 2012, decided on 4th December, 2013.

Constitution of Pakistan---

----Arts. 199 & 10-A---Civil Procedure Code (V of 1908), O.VI, R.17---General Clauses Act (X of 1897), S. 21---Constitutional petition---Cancellation of Diploma of Associate Engineer issued to the petitioner by Board of Technical Education---Application for amendment of constitutional petition---Scope---Recalling of order of cancellation of diploma by the Authority---Contention of petitioner was that he was not associated during proceedings by the Board of Technical Education while passing impugned order and was condemned unheard---Validity---Amendments suggested in the prayer clause of application would not affect the constitutional petition and relief sought for therein---Court might allow application for amendment at any time---Petitioner had gone through three years' Programme of Instructions in Mechanical Technology in the session 1973-75---Probe committee was constituted after thirty years---Matriculation Certificate and Bachelor's Degree issued to the petitioner were not disputed and only result of 4th and 6th Semesters of said Diploma had been questioned by the Board---Original gazette and tabulation registers were summoned and examined by the High Court but no cutting/over-writing was observed---Proceedings against the petitioner were recommended to be dropped in the previous inquiry conducted by the Anti-Corruption Department---Prima facie de novo inquiry could be termed as some sort of political victimization---Under S.21 of General Clauses Act, 1897 Authority passing an order was competent to rescind/recall the same, however such was not absolute but subject to certain limitations---Once an institution had declared any result, it could not recall the same having become functus officio---Neither petitioner was served with any show-cause notice nor he was afforded proper opportunity of hearing before passing of impugned order which was against the principles of audi alteram partem---Genuineness of result of 4th and 6th Semesters of said Diploma required recording of evidence which could not be done while exercising constitutional jurisdiction---Proceedings conducted by Board of Technical Education were in negation of Fundamental Rights as envisaged in Article 10-A of the Constitution---Application for amendment of constitutional petition was accepted and impugned order was set aside---Constitutional petition was accepted in circumstances.

Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518; Miss Afshan Amjad v. Vice-Chancellor, University of the Punjab, Lahore and another 1996 CLC 877; Khan Zaib and another v. Government of Balochistan, through Chief Secretary and 2 others 2011 PLC (C.S.) 852; Mir Ghulam Abid Khan v. Pakistan through Secretary and another 2000 CLC 443 and Pakistan and others v. Public at Large and others PLD 1987 SC 304 rel.

Salman Akram Raja and Tanveer Iqbal for Petitioner.

Muhammad Mustafa Ramday, Advocate General Punjab.

Khawar Ikram Bhatti, Additional Advocate General.

Muhammad Nasir Joyia, Legal Advisor, Islamia University, Bahawalpur.

Mehboob Azhar Sheikh for Chairman Punjab Board of Technical Education, Lahore.

Muhammad Ali Wallana, Registrar, Islamia University Bahawalpur.

Imtiaz Sukhera, Controller of Examination, Islamia University, Bahawalpur.

Hassan Raza Khan, Deputy Director (Investigation), Anti-Corruption Establishment, Lahore, with record.

Dates of hearing: 22nd 29th November, 2013.

2015 M L D 1422

[Lahore]

Before Sadaqat Ali Khan, J

Haji MUHAMMAD HUSSAIN and others---Petitioners

versus

Mst. LAL KHATOON---Respondent

C.R. No.259-D of 2005/BWP, heard on 17th June, 2014.

(a) Gift---

----Mutation---Proof---Pardanasheen lady---Scope---Contention of plaintiff, a pardanasheen lady, was that she had been deprived of her share and impugned mutations were fake, forged and result of forgery and same were ineffective upon her rights---Suit was decreed concurrently---Validity---Plaintiff was sister of defendants and she obtained suit property through the inheritance of her father---Defendants being beneficiaries of impugned mutation were bound to prove the same by producing evidence in terms of Qanun-e-Shahadat, 1984 otherwise said mutation would not create any title---Plaintiff had been deprived of her inheritance---Defendants did not produce Revenue Officer to prove the disputed mutations---Original mutation was not produced in the trial by the defendants---No request was made to the Trial Court for sending thumb impressions of donor to Fingerprint Expert for comparison of the same---Where Pardanasheen lady was a party to a transaction affecting her right and interest in an immovable property, the person claiming such right and interest had to prove such transaction through affirmative evidence---Factum of gift had not been proved by the defendants who were bound to prove the same through solid evidence being beneficiaries of the same---Plaintiff on having knowledge of mutations in question immediately filed present suit which was within time---Trial Court had rightly decreed the suit which was maintained by the Appellate Court as plaintiff was an illiterate and Pardanasheen lady---No illegality or mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below---Findings recorded by the courts below were based on proper appreciation of evidence---Revision was dismissed in circumstances.

Taj Muhammad Khan through L.Rs. and another v. Mst. Munawar Jan and 2 others 2009 SCMR 598; Aish Muhammad alias Ashiq Muhammad Khan v. Mst. Jamila Khatoon and others PLD 2006 Lah. 87;, Ghulam Ghous v. Muhammad Yasin and another 2009 SCMR 70 and Haji Abdul Ghani and another v. Muhammad Arjumand Malik 1988 CLC 606 ref.

Taj Muhammad Khan through L.Rs. and another v. Mst. Munawar Jan and 2 others 2009 SCMR 598, Aish Muhammad alias Ashiq Muhammad Khan v. Mst. Jamila Khatoon and others PLD 2006 Lah. 87, Ghulam Ghous v. Muhammad Yasin and another 2009 SCMR 70 and Haji Abdul Ghani and another v. Muhammad Arjumand Malik 1988 CLC 606 distinguished.

Allah Rakha through legal heirs v. Nasir Khan and 4 others 2007 CLC 154 and Allah Ditta v. Amina Bibi 2011 SCMR 1483 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could not reappraise and re-evaluate the merits of evidence in absence of any illegality and non-reading/mis-reading of evidence in its revisional jurisdiction.

Hazara and others v. Muhammad Yar and others 2011 SCMR 758 and Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 rel.

Gulzar Ahmad Khan Durrani for Petitioners.

Ch. Muhammad Shafi Meo for Respondent.

Date of hearing: 17th June, 2014.

2015 M L D 1443

[Lahore]

Before Abid Aziz Sheikh, J

MUHAMMAD ASLAM---Petitioner

versus

MUHAMMAD TAHIR---Respondent

C.R. No.21 of 2001, decided on 13th May, 2013.

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

----S. 12 (2) & O. XXXVII, Rr. 4, 1, 2---Limitation Act (IX of 1908), Art. 164 & S. 5---Suit for recovery of money on the basis of cheque---Application for setting aside ex parte decree---Limitation---Condonation of delay---Scope---Contention of applicant was that he was not served properly---Suit for recovery of money on the basis of cheque was filed on 27-7-2000 and summons was issued on 28-7-2000 for filing petition for leave to appear within ten days---Applicant received summons on 29-7-2000 and after receipt of the same, he was required to file petition for leave to appear but neither same was filed nor applicant appeared before the Trial Court and he was lawfully proceeded ex-parte---Mere mentioning of wrong provision of law would not preclude the court from granting relief of which party was otherwise entitled under the law---No reason was given as to why after the service applicant did not file petition for leave to appear within ten days---Applicant had not alleged that his signatures on the summons were forged or someone had signed the same on his behalf---Signatures of applicant on summons and application under S. 12(2), C.P.C. were identical---Applicant applied for certified copies of the decree dated 29-8-2000 on the same day which was supplied to him on 31-8-2000 whereas present application was filed on 16-10-2000---Applicant had neither given any exact date of knowledge of decree nor delay of each and every day had been satisfactorily explained for the same in the application for condonation of delay---If application under S. 12(2), C.P.C. was treated under Order XXXVII, Rule 4, C.P.C., the same being beyond 30 days from date of knowledge of the decree was time-barred---Impugned order was not perverse or arbitrary and was immune from further scrutiny in revisional jurisdiction---Revision was dismissed.

Muhammad Zahid Pervaiz v. Muhammad Shafqat Iqbal PLD 2007 Lah. 377; Divisional Forest Officer, Larkana and 3 others v. Ghulam Haider and others PLD 2007 Kar. 392; Habib Bank Limited v. Mussarat Ali Khan PLD 1987 Kar. 86 and Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 rel.

(b) Administration of justice---

----Mere mentioning of wrong provision of law would not preclude the court from granting relief of which party was otherwise entitled under the law.

Muhammad Zahid Pervaiz v. Muhammad Shafqat Iqbal PLD 2007 Lah. 377; Divisional Forest Officer, Larkana and 3 others v. Ghulam Haider and others PLD 2007 Kar. 392 and Habib Bank Limited v. Mussarat Ali Khan PLD 1987 Kar. 85 rel.

Muhammad Suleman Bhatti for Petitioner.

Respondent in person.

2015 M L D 1459

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

Khawaja BASHIR AHMED AND SONS (PVT.) LTD., MULTAN---Petitioner

versus

Messrs MARTRADE SHIPPING AND TRANSPORT, GmbH through Brokers/Local Agents and another---Respondents

C.R. No.260 of 2007, heard on 11th March, 2014.

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

----O.I., R.10 & O.XXIII, Rr.1(2) & 2(b)---Pending suit for permanent injunction, an application was moved with two distinct prayers i.e. one for deletion of one of the defendants from the array of defendants and the other for withdrawal of the suit with permission to file a fresh suit---Trial Court acceded to the request of applicant/petitioner for deletion of the said defendant from the array of the parties to the suit, but dismissed the application seeking permission to withdraw the suit with further permission to file a fresh one---Relief claimed for in the application could not be considered as one and indivisible---Application moved for withdrawal of suit with permission to file fresh one was completely silent as to any justification, reason or formal defect which ought to be removed by filing a fresh suit and which were not possible to be introduced by way of amendment in already pending plaint---Under O.XXIII, R. 2(b), C.P.C., the existence of sufficient grounds is condition precedent for allowing the plaintiff to institute a fresh suit and the application did not disclose any justification for extending permission to the petitioner to file a fresh suit on the subject matter---Order of the Trial Court was declared unexceptionable---Civil Revision was dismissed in the circumstances.

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

----O.XXIII, R.2(b)---Withdrawal of suit with permission to file fresh suit---Condition precedent---Existence of sufficient grounds is condition precedent for allowing the plaintiff to institute a fresh suit.

Malik Muhammad Tariq Rajwana for Petitioner.

Muhammad Khalid Farooq for Respondents.

Date of hearing: 11th March, 2014.

2015 M L D 1473

[Lahore]

Before Malik Shahzad Ahmad Khan, J

Mst. GOHAR FATIMA and others---Petitioners.

versus

FAROOQ AHMED LODHI and 3 others---Respondents

Writ Petition No.2899 of 2013, heard on 12th February, 2014.

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

----S.25---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minor---Father of minor had died and mother had contracted second marriage---Minor was in custody of maternal grand parents---Application for custody of minor filed by paternal grand-parents was accepted on the ground that evidence of respondents (paternal grand parents) was not subjected to cross examination---Validity---First application for custody of minor was dismissed on merits and it was held that welfare of the minor was with the mother---Welfare of minor had been held with the paternal grand-parents in the second application for custody of minor while accepting the same---Examination-in-chief of the witnesses of paternal grand-parents was recorded and their affidavits were also exhibited in evidence on the same day but without providing any opportunity to cross examine the said witnesses impugned order was passed---Nothing was on record that any opportunity to cross examine the witnesses of paternal grand-parents was provided to the mother and she refused to cross examine the said witnesses---Right to cross examine the said witnesses had illegally been closed by the Guardian Court---Right to cross examine the witnesses could not be closed on the day when there was neither any examination-in-chief of the witnesses nor their affidavits were exhibited in evidence---Impugned orders/judgments passed by the courts below were set aside---Case was remanded by the High Court with the direction to provide opportunity to the mother to cross examine the witnesses of applicants and also produce evidence in rebuttal---Constitutional petition was accepted in circumstances.

Muhammad Umar Awan for Petitioners.

Basharat Ullah Khan for Respondents.

Date of hearing: 12th February, 2014.

2015 M L D 1487

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

CHAIRMAN, FESCO, and others---Petitioners

versus

Haji GULZAR AHMAD through Abdul Aziz Ahmed---Respondent

C.R. No.2093 of 2014, decided on 12tn June, 2014.

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

----Ss. 9 & 115 & O.VII, R. 11, O. VIII, R. 1, O. XIV, R. 5 & O. XLI, R.1(2)---Belated objection regarding jurisdiction of civil court---Objection regarding jurisdiction raised for the first time before the High Court---Effect---Defendant while filing written statement neither raised any objection regarding jurisdiction of civil court nor made any application for rejection of plaint or striking of issue regarding jurisdiction of civil court---Objection qua jurisdiction was also not raised in memorandum of appeal filed before lower appellate court---Objection regarding jurisdiction was raised for the first time in the revision petition filed before the High Court---Such objection could not be allowed before the High Court for the first time---Revision petition was dismissed accordingly.

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

----S. 42---Suit for declaration---Disputed bill sent by Electric Supply Company to consumer---Correction/cancellation of disputed bill--- Disputed bill based on audit/investigation report of Electric Supply Company---Non-sending of notice to consumer---Consumer not joined in audit/investigation proceedings---Effect---Record showed that Electric Supply Company had neither given any notice to the consumer before the issuance of disputed bill nor the consumer was joined in any audit proceedings---Disputed bill was sent to consumer without providing him an opportunity to be heard---Electric Supply Company had allegedly constituted a committee to inquire into less billing to certain consumers, however none of the members of the said committee were produced before the Trial Court---Officials of the Electric Supply Company who allegedly acted in connivance with the consumer, were discharged from the FIR registered against them---Electric Supply Company had not moved any complaint against the consumer before the Federal Investigating Agency---Burden to prove the investigation/ audit report on basis of which consumer was sent the disputed bill was not discharged by the Electric Supply Company---Material which formed basis of the said report was also not produced---Trial Court had rightly decreed the declaratory suit filed by the consumer against the Electric Supply Company---Revision petition was dismissed accordingly.

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

----Art. 129(g)---Withholding of best evidence at trial---Inference---Inference under Art. 129(g) of the Qanun-e-Shahadat, 1984 had to be drawn against the party which withheld its best evidence.

2004 CLC 1; 1996 SCMR 137; 2007 MLD 1554 and 2009 YLR 1113 rel.

(d) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 21(2)(b)(ii)---Electric Supply Company---Disputed bill sent to consumer---Disputed bill based on audit/investigation report of Electric Supply Company---No amount could be recovered from consumer on basis of such audit report as audit affair was between Water And Power Development Authority (WAPDA) and its audit department---No audit report could in any manner make the consumer liable for any amount---Audit report could not be said to bring about any agreement between WAPDA and the consumer making the latter liable on the basis of such report.

Water and Power Development authority and others v. Umaid Khan 1988 CLC 501 and Wapda through Chairman and 3 others v. Fazal Karim and 5 others 2008 YLR 308 rel.

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

----S. 115---Revisional jurisdiction of the High Court---Scope---Scope of revisional jurisdiction of the High Court was narrow and restricted only to correct errors of law committed by subordinate courts.

Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236 and Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762 rel.

Syed Murtaza Ali Zaidi for Petitioners.

2015 M L D 1514

[Lahore]

Before Mirza Viqas Rauf, J

Messrs MEHRAN FILLING STATION through Proprietor---Petitioner

versus

OIL AND GAS REGULATORY AUTHORITY (OGRA) and 3 others---Respondents

Writ Petition No.1894 of 2015, decided on 2nd April, 2015.

(a) Petroleum Rules, 1937----

----R. 115----Compressed Natural Gas (CNG) (Production and Marketing) Rules, 1992, R.6---General Clauses Act (X of 1897), S.21---Constitution of Pakistan, Art. 199---Constitutional petition---"No Objection Certificate" for installation of CNG station---Withdrawal of "No Objection Certificate"---Validity---Locus poenitentiae, principle of---Applicability---Role of Local Government---Petitioner obtained "No Objection Certificate" from Local Government, and after fulfilment of all codal formalities, Local Government Authorities issued licence to petitioner to establish station for supply of compressed natural gas (CNG) and petrol---Fire broke out on premises of petitioner and Local Government authorities, respondent after report of Enquiry Committee sealed the premises---Enquiry Committee recommended cancellation of "No Objection Certificate" and initiation of criminal proceedings against petitioner holding that said "No Objection Certificate" had been forged, CNG Station was constructed in residential area and eruption of fire was due to negligence of management of petitioner---Local Government, on basis of said recommendation withdrew the "No Objection Certificate"---Petitioner, after issuance of "No Objection Certificate" and licence in pursuance thereof, had vested right to operate its business and Local Government authorities were precluded to recall the same on basis of principle of locus poenitentiae---Validity---Role of Local Government authorities was limited to the extent of issuance of "No Objection Certificate", which related to activity prior to issuance of licence under Petroleum Rules, 1937 and Compressed Natural Gas (CNG) (Production and Marketing) Rules, 1992---Local Government having issued "No Objection Certificate" had become functus officio to withdraw the same---Local Government was not vested with authority to withdraw "No Objection Certificate" also because the area of CNG Station was admittedly of commercial character---In case of any contravention of the law or condition of licence, it was either Chief Inspector under Petroleum Rules, 1937, or Authority established under Oil and Gas Regulatory Authority Ordinance, 2002 which could proceed against licensee---Business of petitioner could only be regulated by authorities specified in Petroleum Rules, 1937 or Compressed Natural Gas (CNG) (Production and Marketing) Rules, 1992 and it was in exclusive domain of those authorities to revoke or cancel the licence, if in their opinion petitioner had offended any of the provisions of the law or condition of license---Petitioner's case fell under R. 115(9) of Petroleum Rules, 1937, which provided that for installation of CNG station at any existing petrol station, no additional "No Objection Certificate" would be required except permission for construction and installation and license for its operation, from department of Explosives---Impugned order of District Co-ordination Officer was being coram non-judice and illegal was set aside---Constitutional petition was allowed in circumstance.

(b) Compressed Natural Gas (CNG) (Production and Marketing) Rules, 1992----

----Oil and Gas Regulatory Authority Ordinance (XVII of 2002), Preamble---Object and scope of Compressed Natural Gas (CNG) (Production and Marketing) Rules, 1992 and Oil and Gas Regulatory Authority Ordinance, 2002---Compressed Natural Gas (CNG) (Production and Marketing) Rules, 1992 regulates activity of storing, filling or distribution of compressed Natural Gas---Oil and Gas Regulatory Authority under Oil and Gas Regulatory Authority Ordinance, 2002 is vested with powers to grant licence for compression of natural gas for purpose of storing, filling or distribution of CNG and to specify in licence such terms and conditions which are to be imposed on the licence.

Burmah Shell Oil Storage and Distributing Co. Pakistan Ltd. and another v. The Deputy Commissioner (District Magistrate), Karachi Law notes 1969 SC 25; Muhammad Arshad Mehmood v. Government of Pakistan, Ministry of Industries, Lahore through Inspector of Explosive and 4 others PLD 2009 Lah. 608; Constitution Petition No.127 of 2012; (H.R.C. No.40927-S of 2012; Civil Miscellaneous Appeal No.176/2012 in Constitution Petition No.Nil of 2012 and Begum Nusrat Ali Gonda v. Federation of Pakistan and others PLD 2013 SC 829 rel.

Mansoor Usman Awan for Petitioner.

Khawar Ikram Bhatti, Additional Advocate General, Muhammad Almas, Standing Counsel and Umar Sharif, Advocate/Legal Advisor for Respondents.

Date of hearing: 2nd April, 2015.

2015 M L D 1531

[Lahore]

Before Abdul Sami Khan and Syed Shahbaz Ali Rizvi, JJ

YASIR HUSSAIN and others---Appellants

versus

The STATE---Respondent

Criminal Appeal No.2020 and Murder Reference No.517 of 2009, heard on 26th May, 2014.

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

----Ss. 302(b), 34 & 109---Qatl-i-amd, common intention, abetment---Accused persons, were not named in the FIR and no specific role to any of the accused person had been attributed therein by the complainant---Both the prosecution witnesses, were not only related inter se, but also with the deceased---Complainant, had made certain improvements in his examination-in-chief---Unnatural conduct shown by complainant and prosecution witness had raised considerable suspicion about their presence at the spot at the time of occurrence---Both said witnesses were resident of village situated at a distance of three kilometers from the place of occurrence---Said witnesses being not present at the place and time of occurrence, it was an unseen murder committed by some unknown culprits---Testimony of said witnesses, did not inspire confidence---Witnesses, who had furnished evidence of Wajtakar, could not prove their claim that they had confronted with accused person just after fifteen minutes of the occurrence---Both the alleged eye-witnesses, having specifically admitted that they had identified accused persons on the night of occurrence, identification parade had got no value in the eyes of law; and that could not be used against accused persons as a corroborative piece of evidence---Both eye-witnesses failed to attribute any role played by accused persons during occurrence---Identification of accused by prosecution witnesses without attributing role, was of no value---Crime empties, having been received in the office of Forensic Science Laboratory, after sixteen days of the arrest of accused persons, possibility could not be ruled out that the crime empties were later on planted---Recovery of alleged weapons of offence from accused persons, did not provide any help to the case of prosecution, and had become inconsequential---No motive had been alleged by the prosecution in the FIR---Introduction of motive through supplementary statement of the complainant, was an afterthought to involve accused in the case---Case to the extent of accused person being of doubtful nature, conviction and sentences of accused persons on the basis of such type of shaky and unreliable evidence, could not be maintained---Prosecution having failed to prove its case against accused persons beyond any shadow of doubt, accused were acquitted of the charge and were released, in circumstances.

PLD 2011 SC 796; 2013 SCMR 383; Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949; Siraj-ul-Haq and another v. The State 2008 SCMR 302; Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 and Muhammad Fayyaz v. The State 2012 SCMR 522 rel.

(b) Criminal trial---

----Medical evidence---Scope---Medical evidence, was merely supportive piece of evidence, which only indicated the number and seat of injuries, and the kind of weapon used, but it would not disclose the real culprit of the occurrence---In absence of trustworthy or reliable ocular account the medical evidence, could not be allowed to support the prosecution case.

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

----Arts. 30 & 31---Admission---Scope---Mere admission on the part of accused, was not sufficient to fasten rope around his neck, as well as the necks of his co-accused---Onus to prove the guilt of accused lay with the prosecution which was to be proved through cogent, reliable and confidence inspiring evidence---Prosecution was required to prove its case against accused beyond any shadow of doubt, and the defence version was to be taken into consideration after evaluating the prosecution evidence to find out whether the same inspired confidence or not.

Ashiq Hussain v. The State PLD 1994 SC 879 and 2013 SCMR 383 rel.

(d) Criminal trial---

----Benefit of doubt---Scope---Benefit of doubt must go to accused, not as a matter of grace, but of right---Prosecution was obliged to prove its case against accused beyond any reasonable doubt; and if it would fail to do so accused was entitled to the benefit of doubt---If there was an element of doubt as to the guilt of accused, the benefit of that doubt must be extended to him---Rule of benefit of doubt, which was described as the golden rule, was essentially a rule of prudence, which could not be ignored while dispensing justice in accordance with law.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Ahsan Bhoon for Appellants Nos.1 and 4.

Rana Ehsan-ur-Rehman for Appellant No.2.

Abdul Rauf Naul for Appellant No.3.

Ghulam Mustafa Chaudhary, Deputy Prosecutor General for the State.

Muhammad Irfan Malik for the Complainant.

Date of hearing: 26th May 2014.

2015 M L D 1560

[Lahore]

Before Qazi Muhammad Amin Ahmed, J

MEHMOOD ALI and 3 others---Appellants

versus

The STATE---Respondent

Criminal Appeals Nos.318 and 326 of 2007, heard on 30th April, 2015.

(a) Administration of justice---

----Criminal justice---System---Scope---System of administration of criminal justice in Pakistan is adversarial in nature and prosecution cannot be allowed an undue advantage to the detriment of accused---Court has power to examine a witness as court witness, only when it is essential to the just decision of the case---Power of such amplitude is to be exercised with circumspection in aid of justice and not in aid of prosecution.

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

----S. 295---Offences relating to religion---Duty of court---Such charges are mostly based upon verbal accusations and are capable of bald denial in the event of contest---Court, in such like cases, must insist for evidence with high standard of integrity and from an unimpeachable source---Ordinarily a believer is not expected to offer contempt to his own beliefs and convictions---Verbal denial by accused should be preferred over verbal accusations of prosecution.

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

----Ss. 295-B, 295-C, 419 & 420---Defiling of the Holy Quran, use of derogatory remarks in respect of the Holy Prophet and cheating---Appreciation of evidence---Complainant alleged that accused persons defiled the Holy Quran, used derogatory remarks in respect of the Holy Prophet and committed cheating---Trial Court convicted all the accused on the charge of cheating and sentenced to imprisonment for ten years---Validity---Doubts existing were neither illusory nor imaginary rather rooted into the stated position of prosecution---Accused were rightly acquitted from the charge of blasphemy---Once prosecution failed on main charges against accused persons, their conviction under Ss. 419 & 420 P.P.C. was not sustainable as prosecution witnesses were found by Trial Court to have capacity of mischief to make false imputations of nature mentioned by complainant, therefore, there was no occasion to return a guilty verdict under Ss. 419 & 420, P.P.C.---High Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge---Appeal was allowed in circumstances.

Bashir Ahmad Khan and Wasim Abbas for Appellants.

Malik Riaz Ahmad Saghla, Deputy Prosecutor General for the State.

Rana Muhammad Nazir Saeed for the Complainant.

Date of hearing: 30th April, 2015.

2015 M L D 1575

[Lahore]

Before Amin-ud-Din Khan, J

ABDUL RAZZAQ---Appellant

versus

BAGH ALI---Respondent

R.F.A. No.166 of 2005, heard on 3rd April, 2015.

Negotiable Instruments Act (XXVI of 1881)---

----S. 118---Limitation Act (IX of 1908), S. 72---Suit on basis of promissory note---When case of defendant was of total denial then he could not further challenge contents of promissory note which had been duly proved by plaintiff---When date was fixed for repayment and plaintiff demanded the same, suit filed on non-fulfilment of obligation by defendant was in accordance with S. 72, Limitation Act, 1908 and same was within time----Defendant was required to rebut presumptions mentioned under S.118 of Negotiable Instruments Act, 1881 which were attached with negotiable instrument, but he failed to do so---Appeal was dismissed, in circumstances.

Mian Muhammad Akram for Appellant.

Abdul Khaliq Dogar for Respondent.

Date of hearing: 3rd April, 2015.

2015 M L D 1583

[Lahore]

Before Shahid Waheed and Khalid Mahmood Malik, JJ

GHULAM HUSSAIN and another---Appellants

versus

MUHAMMAD RAFIQUE and 6 others---Respondents

R.F.A. No.67 of 2006, heard on 21st January, 2015.

(a) Tort---

----Malicious prosecution----Ingredients---Nature and scope---Malicious prosecution was the malicious institution of unsuccessful criminal proceedings against another without reasonable or probable cause---Said tort balanced the competing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons---Malicious prosecution was an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge---In an action of malicious prosecution the plaintiff must prove that he was prosecuted by the defendant, that the prosecution ended in plaintiff's favour; that the defendant acted without reasonable and probable cause; that the defendant was actuated by malice and that the proceedings had interfered with plaintiff's liberty and had also affected his reputation and, the plaintiff had suffered damage.

(b) Words and phrases

----"Reasonable and Probable cause"----Meaning---"Reasonable and probable cause" meant an honest belief in the guilt of the accused based on full conviction founded upon reasonable grounds, of the existence of circumstances, which when assuming the same to be true, would reasonably lead any ordinary prudent and cautious man placed in the position of the accuser would conclude that such person charged was probably guilty of the crime imputed.

Nur Khan v. Jiwandas AIR 1927 Lah.120; Gobind Ram v. Kaju Ram AIR 1939 Lah. 504; Abdul Rauf v. Abdul Razzaq and another PLD 1994 SC 476; Subedar (Retd) Fazle Rahim v. Rab Nawaz 1999 SCMR 700 and Hicks v. Faulkner (1878) 8 QBD 167 rel.

Muhammad Sadiq Chughtai for Appellants.

Bashir Ahmad Chaudhry and Muhammad Faisal Bashir Chaudhry for Respondents.

Date of hearing: 21st January, 2015.

2015 M L D 1605

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD FAZIL through L.Rs.---Appellant

versus

Ch. ABDUL MAJEED and others---Respondents

R.S.A. No.180 of 2005, heard on 2nd April, 2014.

(a) Defamation---

----Suit for damages---Second appeal---Maintainability---Principles---Accusation, withdrawal of---Concurrent findings of facts---Suit filed by plaintiff was concurrently decreed in favour of plaintiff and against defendant by Trial Court and Lower Appellate Court---Plea raised by defendant was that accusation was subsequently withdrawn by counsel for defendant before High Court---Validity---Once false allegations were levelled, its subsequent withdrawal did not restore honour/respect of affected party and absolve defendant from consequences thereof---Defendant himself repeated same allegations by filing petition before Supreme Court---Lower Appellate Court rightly maintained findings of Trial Court to the extent of defendant.

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

----S. 100---Second appeal---Second appeal to High Court was maintainable against any decree passed in appeal by Lower Appellate Court/subordinate to High Court on the grounds provided in S.100, C.P.C. and the right was restricted and limited to such grounds---While dealing with second appeal High Court could not enter into reappraisal of evidence stretching down concurrent findings of facts---High Court declined to interfere in judgment and decree passed by Lower Appellate Court as appeal did not fall within any of the exceptions provided under S. 100, C.P.C.---Second appeal was dismissed in circumstances.

Abdul Rauf v. Abdul Razzak and another PLD 1994 SC 476; United Bank Limited and 5 others v. Raja Ghulam Hussain and 4 others 1999 SCMR 734; Khawaja Muhammad Naseem v. Shafiqur Rehman 1996 CLC 1460; Azeem Food Industries Ltd. and 4 others v. Industrial Development Bank of Pakistan through Managing Director/Principal Officer 1999 CLC 1915; Naila Junaid v. Additional District Judge and 2 others 2005 MLD 834; Abdul Majeed Khan v. Tawseen Abdul Haleem and others PLD 2012 SC 80; Abdul Wahab Abbasi v. Gul Muhammad Pajano PLD 2008 Kar. 558; Haji Syed Iqbal Ahmed v. Sahibzada Syed Liaquat Ali PLD 2013 Sindh 494; Muhammad Rafiq Memon v. Hakim Ali 2010 CLC 1957; Abdul Rasheed v. State Bank of Pakistan PLD 1970 Kar. 344; Ex.Hav. Mirza Mushtaq Baig v. General Court Martial 1994 SCMR 1948; Hassan Akhtar and others v. Azhar Hameed and others PLD 2010 SC 657; Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; PLD 1957 Lah. 283; Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCMR 4; Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 and Abdul Karim v. Haji Noor Badshah 2012 SCMR 212 ref.

Rana Rashid Akram Khan for Appellant.

Ch. Sharafat Ali Sidhu for Respondents.

Date of hearing: 2nd April, 2014.

2015 M L D 1633

[Lahore]

Before Mahmood Ahmed Bhatti, J

MUHAMMAD IQBAL---Petitioner

versus

PUNJAB EDUCATION FOUNDATION through Chairman and 3 others---Respondents

W.P. No.8720 of 2013, decided on 2nd May, 2014.

Punjab Education Foundation Act (XII of 2004)---

----S. 4---Constitution of Pakistan, Art.199---Constitutional petition---Factual controversy---Financial assistance---Petitioner was running private school and his grievance was that authorities denied financial assistance to his school from Punjab Education Foundation---Authorities raised allegations against petitioner---Validity---Facts in question called for full-fledged inquiry into the allegations and counter allegations---Such inquiry did not fall within the domain of High Court in exercise of its constitutional jurisdiction and could only be made by a Civil Court after holding full-fledged trial---High Court could not order the authorities to disburse public funds to petitioner just on his asking---Petitioner might be pursuing a noble cause and his objectives could be altruistic but unless he had satisfied standards and parameters laid down by authorities, he and his associates could not be declared eligible for support under Public-Private Partnership Scheme of Education launched by Punjab Government through Punjab Education Foundation---Serious allegations were levelled against petitioner and it was apprehension of authorities that if public funds were provided to him he would stash them away, thereby misappropriating and defalcating the funds which could be utilized to fulfil the needs of other eligible partners---High Court declined to interfere in the matter as there was factual controversies involved---Petition was dismissed in circumstances.

Altaf Mahmood Qureshi for Petitioner.

Muhammad Javed Saeed, A.A.-G. for the State.

Ms. Uzma Saeed, Advocate/Additional Director Legal, Punjab Education Foundation.

2015 M L D 1655

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Mst. RESHAM BIBI (deceased) through L.Rs. and others---Petitioners

versus

MUHAMMAD MUNIR (deceased) and others---Respondents

C.R. No.1505 of 2000, heard on 3rd April, 2015.

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

----S. 2-A---Prior decree of court---Amendment made in S. 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Effect---Past and closed transaction---Possession of gifted property was transferred to the donees in the year 1928---Gift announced by the donor in the year 1928 was set aside to the extent of 17/20 shares in the suit filed by the adopted son of donor---All beneficiaries under the said decree were settled and they had taken possession of their respective shares---Legal heirs of donor were transferred their shares in the suit property---Gift in question would be deemed to be a "past and closed transaction"---Transaction was finalized in the year 1931 and last appeal was decided in the year 1958---No litigation remained pending after that and parties had taken possession of their respective shares---Appellate Court had rightly set aside judgment of Trial Court as transaction of gift on the part of donor was saved under provision of S.2-A (c) of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Revision was dismissed in circumstances.

S.M. Mohsin Zaidi for Petitioners.

Muhammad Arif Rana and Moiz Tariq for Respondents.

Date of hearing: 3rd April, 2015.

2015 M L D 1667

[Lahore]

Before Syed Iftikhar Hussain Shah, J

INTIZAR HUSSAIN---Petitioner

versus

The STATE and another---Respondents

Crl. Misc. No.10931-B of 2014, decided on 18th August, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497 (2)---Penal Code (XLV of 1860), Ss. 395 & 412---Qanun-e-Shahadat (10 of 1984), Art. 40---Dacoity and receiving robbed property---Bail, grant of---Recovery on pointation of accused in custody---Proof---Nothing was available in recovery memo to the effect as to from where alleged amount came and produced by accused before police as share of his robbed amount, which was taken into possession vide recovery memo---Effect---Only those recoveries were admissible in evidence which were effected on pointation of accused---Record did not show as to how amount in question came to the accused in lockup to produce before police, therefore, case was one of further inquiry---Bail was allowed in circumstances.

Muhammad Hussain Khan Kharal for Petitioner.

Muhammad Akram Tahir, DDPP and Zulfiqar Ali, A.S.-I. for the State.

Complainant Muhammad Ishaq in person.

2015 M L D 1683

[Lahore]

Before Atir Mahmood, J

ROBIN DAVID JOHN---Petitioner

versus

Mst. HUMA SAMUEL and others---Respondents

Writ Petition No.23322 of 2010, heard on 27th May, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dowry articles---Plaintiff-wife and her witnesses were consistent on the point that she was given dowry articles as claimed by her in the plaint---Nothing could be brought out from the said witnesses despite lengthy cross-examination which could support the version of defendant-husband or even weaken the stance of plaintiff-wife---Parents of plaintiff-wife were having reasonable financial status enough to give dowry articles to their daughter---Mere non-production of purchase receipts or non-signing of list of dowry articles by the plaintiff-wife was not sufficient to disentitle her from recovery of her dowry articles---Appellate Court had rightly enhanced the alternate price of dowry articles keeping in view the financial status of parents, wear and tear coupled with the fact that plaintiff-lady was able to give details of dowry articles given to her at the time of marriage---Findings recorded by the Appellate Court were in accordance with law---No illegality, irregularity or non-reading of evidence was pointed out in the impugned judgment and decree passed by the Appellate Court---Constitutional petition was dismissed in circumstances.

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

----Ss. 14(2)(b) & 5, Sched.---Appeal---Scope---Decree for dowry articles---No appeal would lie against a decree passed for dower or dowry articles not exceeding Rs. 30,000 however an appeal would lie against the decree for less than Rs. 30,000 and even against dismissal of such suit---Embargo of S. 14(2)(b) of West Pakistan Family Courts Act, 1964 had been placed on the defendant only and not on the plaintiff.

Ijaz Farhat for Petitioner.

Rana Muhammad Rafique for Respondent.

Date of hearing: 27th May, 2014.

2015 M L D 1727

[Lahore]

Before Sh. Najam ul Hasan and Mehmood Maqbool Bajwa, JJ

MUSHTAQ MASIH and others---Appellants

versus

The STATE---Respondent

Cr. A. No.289 and Murder Reference No.491 of 2007, decided on 27th February, 2013.

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

----Ss. 302(b), 324, 337-D & 34---Qatl-i-amd, attempt to commit qatl-i-amd, Jaifah, common intention---Appreciation of evidence---Benefit of doubt---Motive stood established in the case---Chaukidar of factory of the complainant, who was an independent person, was not produced without any justifiable reason---Adverse inference could be drawn under Art.129(g) of Qanun-e-Shahadat, 1984, in circumstances---Incident was an unseen occurrence and both the witnesses did not view the same---No justifiable reasons were given for delay of approximately 12 hours in conducting postmortem of the deceased---Presence of both the witnesses at the spot being under serious doubt, no implicit reliance could be placed upon it---Reliance upon medical evidence by the prosecution would not advance the plea for two reasons; firstly, medical evidence could not disclose identity of assailants, and could only be used to prove the locale of injuries, and nature of weapon of offence used; secondly, the complainant himself was not sure about the locale of injuries---Factum of recovery of weapons of offence at the instance of accused person; and positive report of Firearm Expert, would also not prove the case of prosecution in view of delay in sending empties, and that too without any justification---Factum of recovery, by itself would not be sufficient to record conviction in the absence of ocular account---Co-accused, since acquitted, recorded statement under S.342, Cr.P.C., in which while admitting his presence at the spot along with accused person, holding them responsible for commission of occurrence; and causing him injury, would not prove prosecution case by itself for the reasons that in the absence of convincing ocular account, which prosecution failed to adduce, no implicit reliance could be placed upon it, despite the fact that his presence at the spot being injured, could not be disputed---Stance taken by said acquitted accused implicating accused at the stage where it was made, could not be considered "evidence" in view of his denial to the charge, and cross-examining the witnesses of the prosecution---Argument that there was no reason for the complainant and witness to implicate accused falsely, by itself would not be sufficient to prove prosecution case---Suspicion, however, strong could not take the place of 'proof'---While extending benefit of doubt, judgment of conviction and sentence of Trial Court passed against accused, was set aside and they were acquitted and released, in circumstances.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Noor Muhammad v. The State and another 2010 SCMR 97 and Yasin alias Ghulam Mustafa v. The State 2008 SCMR 336 rel.

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

----Art. 43---Confession of co-accused---Confession of co-accused could be taken into consideration against an accused as circumstantial evidence, subject to fulfilment of conditions that there was joint trial of more than one person; that joint trial in the case was permissible by the law; and that joint trial was for the same offence, or for its abetment or attempt.

(c) Criminal trial---

----Benefit of doubt, grant of---In order to extend benefit of doubt, a single circumstance creating reasonable doubt, would be sufficient to grant premium, not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Akhtar Ali and others v. The State 2008 SCMR 6 and Allah Bachaya and another v. The State PLD 2008 SC 349 rel.

Prince Rehan Iftikhar for Appellants.

Munir Ahmad Sail, D.P.G. for the State.

Date of hearing: 27th February, 2013.

2015 M L D 1745

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD TUFAIL---Petitioner

versus

ADMINISTRATOR, TMA, MURREE and 2 others---Respondents

Writ Petition No.871 of 2014, decided on 8th April, 2014.

Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 141, 142, 143, 145 & Sixth Sched. Serial No.72---Constitution of Pakistan, Art. 199---Constitutional petition---Insanitation of seepage and disposal of water from the sewarage line of the petitioner's Guest House---Sealing of premises---Notice, service of---Scope---Tehsil Municipal Administration sealed the premises of petitioner on account of insanitation of seepage and disposal of water from the sewerage line of the same---Validity---Notice requiring owner or occupier of any building to proceed in view of the requirement raised by Municipal Administration was sine qua non for initiation of any action---Sealing of premises had nowhere been provided as a competent act to be taken by local government---No power had been provided to the local government to take any step in case of failure on the part of owner or occupier of a building to comply with the directions contained in Serial No. 72(1)(a)(b) & (c) of Sixth Schedule to Punjab Local Government Ordinance, 2001---Sealing of premises had nowhere been provided either by way of punishment or by way of any remedial step in consequence of alleged nuisance constituted by the owner or occupier of a building---No material was on record to establish that notice was served upon the petitioner---Action of sealing of premises had been taken without issuance of notice to the petitioner which was result of business rivalry---Impugned act was without lawful authority having no legal effect---Constitutional petition was accepted in circumstances---Municipal authorities were directed to de-seal the premises of petitioner forthwith.

Tariq Mehmood Mirza for Petitioner.

Masood Ahmad Abbasi, Legal Advisor for Respondents.

Sami-Ullah, Town Officer (Regulation), Murree with Shaukat Abbasi Clerk.

2015 M L D 1767

[Lahore]

Before Shoaib Saeed, J

SHAFQAT ALI---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, D.G. KHAN and 2 others---Respondents

W.P. No.8641 of 2012, decided on 8th September, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suits for recovery of maintenance allowance, dowry articles and dower---Maintenance allowance fixed by the courts below was reasonable under the circumstances---Husband was bound to prove the factum of Talaq as asserted by him---Both the courts below had rightly found that wife was entitled for maintenance allowance for previous one year from institution of suit till Iddat period---Wife and her mother had corroborated the list of dowry articles as mentioned in the plaint---Both the courts below had rightly decided the matter of dowry articles---Amount of dower was fixed as Rs. 2,500 and 5-marla of plot in the Nikah Nama---Husband had made evasive reply to the assertions made by the wife in the plaint with regard to dower and had failed to bring on record any documentary evidence nor proved the payment of Rs.2,500 or 5-marla of plot for which no documentary evidence with regard to transfer of said plot was brought on the court file---Courts below had rightly fixed Rs. 200,000 as value of the plot and wife was entitled for the same---No illegality or irregularity was pointed out in the impugned orders passed by the courts below---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Concurrent findings of facts could not be interfered in constitutional jurisdiction unless illegalities in the impugned judgments and decrees were pointed out.

Sardar Tariq Sher Khan for Petitioner.

Malik Muhammad Tariq Rajwana for Respondent No.3.

2015 M L D 1782

[Lahore]

Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ

MUHAMMAD RAMZAN---Appellant

versus

HABIB AHMAD and 19 others---Respondents

I.C.A. No.228 of 2010 in W.P. No.21 of 2009, decided on 30th September, 2013.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Law Reforms Ordinance (XII of 1972), S. 3---Intra-court appeal---Complainant filed constitutional petition against order of acquittal passed by the Trial Court in a complaint which was dismissed---Validity---Present case was of encroachment or demarcation---Complainant and accused were joint owners in the adjacent Khasra---Documentary evidence did not show that Ehata in question was in existence---Witnesses produced by the complainant were not specific about the existence of the same at the land exclusively owned by him---Complainant had failed to show any defect in the factual findings recorded by two courts below---No allegation was on record that accused belonged to "Qabza Group"---Constitutional jurisdiction or appellate jurisdiction by the High Court could not be exercised in a routine---No infirmity or illegality was found in the impugned order---No case for interference had been made out---Intra-court appeal was dismissed in circumstances.

Habibullah and others v. Abdul Manan and others 2012 SCMR 1533 rel.

Abdul Rashid Sheikh for Appellant.

Malik Muhammad Naeem Iqbal and Zafarullah Khan Khakwani, A.A.-G. for Respondents.

Date of hearing: 30th September, 2013.

2015 M L D 1784

[Lahore]

Before Ijaz ul Ahsan, J

Mst. MOMNA MEHMOOD---Petitioner

Versus

VICE-CHANCELLOR UNIVERSITY OF HEALTH SCIENCES, LAHORE and others---Respondents

W.P. No.24879 of 2014, decided on 13th March, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Admission to Dental College---Vested right---Petitioner did not make merit in three merit lists, where after authorities displayed an up-gradation list in which 7 candidates were nominated for admission but out of said 7 candidates, 4 candidates did not deposit their dues---Plea raised by petitioner was that she was next on the merit and she should have been granted admission in place of said 4 candidates---Validity---No right to admission accrued in favour of petitioner when final up-gradation took place on 28-3-2014, because she was not offered admission on the basis of said list and she could not be granted admission---No provision for a further up-graded list was available after the final merit list had been prepared---Academic session 2013-2014 already stood completed, annual examination of the session had also taken place and admission to the academic session 2014-2015 was also complete---Was not possible to issue direction to the effect that petitioner be granted admission in academic session 2013-2014---Petitioner was not discriminated against in so far as she was not on the same footing as the students who were offered admission pursuant to final up-graded list dated 28-3-2014---Petition was dismissed in circumstances.

Sardar Khurram Latif Khan Khosa for Petitioner.

Muhammad Azeem Malik, Additional Advocate General.

Ch. Muhammad Atique for Respondent No.1/University.

2015 M L D 1804

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD SHARIF---Petitioner

Versus

ROZE DEEN and 4 others---Respondents

Civil Revision No.225 of 2009, heard on 10th June, 2014.

Arbitration Act (X of 1940)---

----Ss. 14 & 17---Award---Misconduct---Application for making award as rule of court---Contention of respondent was that arbitrators had committed misconduct---Application for making award as rule of court was dismissed concurrently---Validity---Two arbitrators were appointed by each party and fifth by both the parties---Applicant had not produced the two arbitrators appointed by him---Alleged award did not contain signatures of arbitrators appointed by the respondent---Arbitrators had not acted honestly in accordance with the reference---Alleged award had been filed in the Trial Court which was result of misconduct by the arbitrators---Said award was unanimous and against the facts as out of five arbitrators two had not joined the proceedings and writing in the same---Award announced by the arbitrators beyond the scope of reference or by misconduct could not be made rule of court---Findings recorded by the courts below were based upon the evidence available on the file---Revision was dismissed in circumstances.

Dhooli Atchayya and another v. Dhooli Peddenti and others AIR 1928 Madras 983; Chhaganlal Asaram v. Jeevanlal Gangabisan and others AIR 1954 Nagpur 263; J. Kuppuswami Chetty v. B.V. Anantharamier and another AIR (35) 1948 Madras 40; Ghulam Muhammad v. Ghulam Abbas and 2 others 2007 YLR 1608 and Abdullah and 5 others v. Abdur Rehman and 9 others 2004 YLR 295 rel.

Mian Javed Iqbal Arain for Petitioner.

Hafeez Saeed Akhtar for Respondent No.1.

Hafiz Asmat Ullah for Respondents Nos. 4 and 5.

Date of hearing: 10th June, 2014.

2015 M L D 1827

[Lahore]

Before Amin-ud-Din Khan, J

Mst. JAMEELA BIBI---Appellant

Versus

GHULAM NABI---Respondent

F.A.O. No.35 of 2013, decided on 13th February, 2013.

Limitation Act (IX of 1908)---

----S.14---Exclusion of time of proceeding in a court without jurisdiction with bona fide intention---Condonation of delay---Principle---Party has to explain delay of each day and delay could not be condoned without explanation.

Mian Tariq Ahmad for Appellant.

Ali Raza Khan for Respondent.

2015 M L D 1840

[Lahore]

Before Mazhar Iqbal Sidhu and Aalia Neelum, JJ

The STATE---Appellant

Versus

MUKHTAR AHMAD and 5 others---Respondents

Criminal Appeal No.1764 of 2003, heard on 14th October, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 336, 395, 460, 148 & 149---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, attempt to commit qatl-i-amd, Itlaf-i-Salahiyyat-i-Udw, dacoity, lurking house-trespass by night, rioting, common object---Appeal against acquittal---Reappraisal of evidence---Delay in reporting the matter to the Police, was not plausibly explained, and name of informer was also not disclosed by the prosecution---Incident had taken place inside the house of the complainant at 12.00 (midnight), and no source of light was mentioned in the statement of the complainant---Identification parade was conducted with delay of six days after arrest of accused, who remained in the Police Station before identification parade---Complainant, nominated two accused persons prior to proceedings of identification parade---Prosecution case entirely depended upon identification parade and recoveries effected from accused persons, proceedings of identification parade had to be seen with care and caution---Complainant and alleged eye-witnesses had not mentioned the description, age and complexion of accused persons, who took part in the incident and were present there---Recoveries of the alleged robbed articles from accused persons, were highly doubtful---Alleged recovered articles, were not sealed in the parcel---Recoveries of gun 12 bore and pistol 30 bore from accused persons, were of no concern, as no crime empty was secured from the place of occurrence---Complainant, had introduced entirely different story before the court---Complainant's statement, supplementary statement of prosecution witness and deposition before the court, were all together different; and with variation of time, the complainant changed his stance, which made prosecution story highly doubtful---Grounds taken by the Trial Court for acquittal of accused persons, did not find any illegality in the impugned judgment---Appeal against acquittal had distinctive features and the approach to deal with the appeal against conviction---Presumption of double innocence was attached in the latter case---Order of acquittal, could only be interfered with, if it was found on its face to be capricious, perverse or arbitrary---Acquittal recorded by the Trial Court in favour of accused persons, being based on sound reasoning, no infirmity or illegality was noticed in the acquittal order passed by the Trial Court---Appeal against acquittal was dismissed.

Munir Ahmad Sial, Deputy Prosecutor General Punjab for Appellant/the State.

Nemo for Respondents.

Date of hearing: 14th October, 2014.

2015 M L D 18

[Peshawar]

Before Malik Manzoor Hussain, J

Haji MUHAMMAD INAM---Petitioner

Versus

AMANULLAH---Respondent

Civil Revision No.1002 of 2011, decided on 7th June, 2013.

(a) Khyber Pakhtunkhaw Pre-emption Act (X of 1987)---

---S. 13---Talbs, performance of---Statements of witnesses were consistent with the statement of plaintiff---Record keeper of Post Office was produced to prove the receipt regarding sending of notice of Talb-i-Ishhad---Patwari halqa was produced to establish that plaintiff was co-owner and had superior right of pre-emption---Plaintiff then and there had performed Talb-i-Muwathibat in presence of witnesses when he got information---Minor discrepancies or omission in the statements of witnesses could not mar to the case of plaintiff---Plaintiff, in circumstances, had established his right of pre-emption and law did not favour that he would be thrown away just for technicalities---Courts below had wrongly interpreted the provision of S. 13(3) of Khyber Pakhtunkhaw Pre-emption Act, 1987 and acted in disregard of law---Revision was accepted and suit was decreed and plaintiff was directed to deposit market value within a period of 40 days.

Yar Muhammad v. Bashir Ahmad PLD 2003 Pesh. 179; Fazal Rehman v. Mst.Zavedi Jan 2005 CLC 1415; Hayat Muhammad v. Mazhar Hussain 2006 SCMR 1410 and Abdul Latif v. Dil Mir 2010 SCMR 1087 rel.

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

----S. 115---Revisional jurisdiction---Scope---Revisional court could interfere in the findings of courts below if said courts had not legally and properly exercised their jurisdiction.

Abdul Latif Afridi for Appellant.

Qazi Muhammad Aqil for Respondent.

Date of hearing: 7th June, 2013.

2015 M L D 42

[Peshawar]

Before Shah Jehan Khan Akhundzada, J

GHULAM ABBAS and others---Petitioners

Versus

SHER MUHAMMAD and others---Respondents

Civil Revision No.896 of 2010, decided on 25th March, 2013.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court, in exercise of its revisional jurisdiction was competent to set at naught the concurrent findings of facts of two courts below if it was satisfied that the findings were based on misreading or non-reading of evidence---If the courts below had committed an error in the mode which called for interference by the High Court in exercise of its jurisdiction, then High Court had the power to interfere under S. 115, C.P.C.---Trial Court was under legal obligation to see the factual controversy involved in the matter but, in the present case, no efforts were put to resolve such controversy by the Trial Court---Appellate Court should have exercised the jurisdiction vested in it but the Appellate Court had simply upheld the judgment of the Trial Court without going into the merits of the case and had not uttered even a single word on the point of limitation---Revision petition was accepted and judgments and decrees of the courts below, having not been based on proper appreciation of evidence and the suit being time barred, were set aside.

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

----Ss. 3 & 9---Partition Act (IV of 1893), S. 4---Suit for possession through partition---Withdrawl of earlier suit---Limitation for filing fresh suit---Contention of plaintiffs-respondents was that they being legal heirs were entitled in the legacy of deceased---Defendants-petitioners contested the suit on the ground that they had purchased the suit property from the predecessor-in-interest of the plaintiffs-respondents---Earlier suit of the plaintiffs-respondents was dismissed being barred by time---Fresh suit was filed with permission of the Appellate Court whereby the earlier suit was withdrawn with permission to file a fresh one---Validity---After withdrawl of first suit limitation was to be reckoned from the date of filing of earlier proceedings---Once limitation started on some cause of action, then it did not stop---Earlier suit was dismissed being barred by time, the fresh suit was liable to be dismissed.

Muhammad Iqbal Khan Khalil and Abdul Zakir Tareen for Petitioners.

Abdul Mabood Khattak and Mukamil Shah Taskeen for Respondents.

Date of hearing: 25th March, 2013.

2015 M L D 57

[Peshawar]

Before Nisar Hussain Khan and Malik Manzoor Hussain, JJ

BARKAT SHAH and 2 others---Petitioners

Versus

SHAMS UR REHMAN and 38 others---Respondents

Writ Petition No.1194 of 2011, decided on 16th April, 2013.

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

----S. 42---Civil Procedure Code (V of 1908), S.12(2)---Suit for declaration---Maintainability---Plaintiffs-petitioners brought suit for declaration of title on the principle of prescription on the ground that the defendants-respondents had failed to get the suit land re-deemed within the prescribed period of 60 years---Trial Court decreed the suit ex parte and that decree was challenged through an application filed under S. 12(2), C.P.C. by the defendants-respondents---Trial Court accepted the said application without recording evidence of the parties, set aside the decree and suit was dismissed concurrently being against law---Validity---Cases where decree was challenged on the basis of misrepresentation, fraud or any order without jurisdiction, the court had firstly to see whether the suit was maintainable under the law and then to see whether any fraud or misrepresentation was made out from available record---Suit was brought on the principle of prescription on the date when the said provision did not exist on the statute book---When the suit itself was against the provisions of law, same should not have been entertained by the Trial Court and so being the decree passed would have been of no sanctity in the eye of law.

Maqbool Ahmad's case 1991 SCMR 2063; Durranai and 35 others v. Hamidullah Khan and 15 others 2007 SCMR 480; Munawar Shah's case 2007 SCMR 597 and Muhammad Hussain's case 2004 SCMR 1137 rel.

(b) Administration of Justice---

----Court was obliged to kill frivolous lis in its very inception and same should not be allowed for a single breath, so that confidence of the public in the system should strengthen.

(c) Constitution of Pakistan---

----Arts.199, 189 & 201---Specific Relief Act (I of 1877), S. 42---Constitutional petition---Subordinate courts were obliged to show respect to the judgments of superior courts and to give true and full effect to the judgments of Supreme Court as well as of the High Court while deciding the matters before them---Petitioners-plaintiffs had not come to the High Court with clean hands to invoke extraordinary constitutional jurisdiction---Judgments of both the courts below were in accordance with law and no misreading, non-reading of material evidence which required the interference of the High Court in its constitutional jurisdiction had been pointed out by the counsel for the petitioners-plaintiffs---Constitutional petition was dismissed.

S.M. Attiqe Shah for Petitioners.

Imdad Anjum Durrani and Muhammad Hashim for Respondents.

Date of hearing: 16th April, 2013.

2015 M L D 73

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

SHAH DARAZ KHAN---Petitioner

Versus

Mst. NAILA and 3 others---Respondents

Writ Petition No.439-B of 2011, decided on 25th June, 2013.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for dissolution of marriage, recovery of maintenance allowance, dowry articles, dower and jewellery---Contention of husband was that entire dower of wife was 6 tolas gold ornaments which had already been paid to her---Trial Court decreed suit of wife partially which was maintained by the Appellate Court with certain modifications---Validity---Signature of husband on dower deed and fixation of the dower as 30 tolas gold ornaments had been proved---After compromise of earlier suit 6 tolas gold ornaments were delivered to the wife---Husband had failed to prove delivery of dower more than 6 tolas gold ornaments---Wife had proved "Iqrarnama" wherein 30 tolas gold ornaments had been fixed as her entire dower out of which

10 tolas gold ornaments was prompt dower while 20 tolas gold ornaments was deferred dower---Twenty four tolas gold ornaments were outstanding against the husband---Defendant-husband had not paid any maintenance to the wife-plaintiff and his minor son for which he was bound to pay---Marriage could be dissolved on the basis of cruelty on the part of husband---Family Court was justified to dissolve marriage of the parties, in circumstances---Payment of dower was an essential obligation on the part of husband and such was a right of wife---Cruelty had been established on the part of husband---Trial Court had rightly granted decree for payment of prompt as well as deferred dower---Wife was entitled for remaining dower of 24 tolas gold ornaments after dissolution of her marriage---Claim of wife with regard to dowry articles had been conceded by the husband in the earlier suit which was compromised---Courts below had rightly appreciated the entire evidence available on record and rightly fixed maintenance allowance of the minor with 10 % annual increase---No illegality or irregularity or violation of any law had been pointed out by the defendant---Constitutional petition was dismissed in circumstances.

Mst. Saadia Usman and another v. Muhammad Usman Iqbal Jandoon and another 2009 SCMR 1458; Dr. M.Sohail Karim Hashmi v. Federation of Pakistan through Secretary Ministry of Health Government of Pakistan Islamabad and another 2009 SCMR 1472; Tauqeer Ahmad Qureshi v. Additional District Judge Lahore and 2 others PLD 2009 SC 760 and Muhammad Shakil v. The State PLD 1990 SC 686 rel.

(b) Islamic Law---

----Dower---"Prompt" and "deferred dower"---Object and scope---"Sunni" and "Shia" Fiqah---Dower was divisible into two parts i.e. prompt dower and deferred dower---Prompt dower was realizable by the wife at any time before or after consummation on her demand while deferred dower was payable on divorce or death of the husband---Husband should pay immediately the entire amount of dower whether prompt or deferred if he had contracted second marriage without prior permission of wife and if same was not paid, then such would be recoverable as arrears of land revenue---Classification of dower as prompt and deferred had been made for convenience of the parties---Normally women did not demand payment of full dower at the time of Nikah and only a portion of dower was paid before consummation of marriage and remaining dower was deferred to be paid later which did not mean that either same was waived or was to be treated as deferred till dissolution of marriage---Deferred dower was a sort of guarantee of a woman against ill-treatment, non-maintenance, desertion or any other abnormality in the matrimonial life including rash and arbitrary divorce---When at the time of marriage it was not settled whether dower was to be prompt or deferred then according to Shia Law whole dower would be treated as prompt and according to Sunni Law part of dower would be prompt and part as deferred---Prompt dower was payable during subsistence of marriage but where no time was stipulated deferred dower did not become prompt merely because wife had demanded the same rather same would be payable in the eventuality of dissolution of marriage either by death or divorce.

Sardar Naeem Khan for Petitioner.

Amanullah Jan Khattak for Respondents.

Date of hearing: 25th June, 2013.

2015 M L D 98

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

ABDUL GHAFFAR BABAR---Petitioner

Versus

WAQAR AYUB---Respondent

Criminal Miscellaneous No.388 of 2012, decided on 10th December, 2013.

Civil Procedure Code (V of 1908)---

----S.114 & O.XLVII, R.1---Review---Principles and scope---Provisions enumerating the powers of court to review its orders were subject to certain conditions and the same were not meant to correct wrong decisions rather invoked mainly for correcting errors---Order based on erroneous assumption of facts or overlooking something obvious or important or without adverting to the provisions of law or departing from undisputed construction of law and Constitution may be reviewed---Petitioner, in the present case, was unable to point out any infirmity or perversity in the impugned order, review petition was dismissed.

Saleemullah Khan Ranazai for Petitioner.

Sanaullah Shamim, A.A.-G. for Respondent.

Date of hearing: 10th December, 2013.

2015 M L D 111

[Peshawar]

Before Ikramullah Khan, J

WAHAB ALI---Appellant

Versus

FRONTIER PHARMACEUTICAL (PVT.) LTD. through Chief Executive---Respondent

R.F.A. No.284 of 2010, decided on 25th October, 2013.

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

----S. 19---Limitation Act (IX of 1908), S.18, Arts.22 & 36---Qanun-e-Shahadat (10 of 1984), Art.119---Suit for compensation---Negligence---Plaintiff was injured and lost his hand while working in the factory of defendant company when another employee switched on the machine---Plaintiff's service was terminated for one year and two months after the incident---Trial Court dismissed the suit holding that suit was time-barred and that said other employee, and not company/defendant, was personally responsible---Plaintiff contended that limitation would run from the date of termination of service instead of date of injury---Validity---Limitation for seeking compensation for injury caused to the person of an individual was one year under Art.22 of the Limitation Act, 1908 whereas limitation for compensation for malfeasance, non-feasance or misfeasance independent of contract and not specifically provided for, was two years under Art.36 of Limitation Act, 1908---Defendant was under legal obligation to install foolproof system to guard against accidents---Negligence of defendant fell under Art.36 of Limitation Act, 1908, for purpose of limitation---Fraud on the part of defendant could not be ruled out in terms of S.18 of the Limitation Act, 1908 in view of defendant's admission as to employment of plaintiff till date of termination---Limitation would run from the time when fraud became known to the plaintiff for the first time---No one could be given premium for an act or omission meant to defraud or deprive a person from obtaining legal rights---Defendant having admitted the accident, onus to prove had shifted to him---Onus to prove shifted to the party who raised a plea different from the one alleged in the pleadings of the first party---Principle/rule of onus probandi postulate that where no evidence was adduced by one who asserted a proposition, (such person/party) must fail---Defendant having failed to prove that the accident resulted due to negligence of plaintiff, assertion put forward by plaintiff would stand admitted---Defendant company was responsible for all acts and omissions of its duly appointed employees committed during the course of duty---Defendant company could not be absolved of its contractual and legal obligation on the ground that defendant could not bring on record the precaution taken to avoid such incidents.

Muhammad Yousaf and 4 others v. Mst. Zenab Bibi 2006 YLR 490 rel.

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

----Arts. 22 & 36---Application of Arts.22 & 36, Limitation Act, 1908---Scope---Limitation for seeking compensation for injury caused to the person of an individual was one year under Art.22 of the Limitation Act, 1908 whereas limitation seeking compensation for malfeasance, misfeasance or non-feasance independent of contract and not specifically provided for, was two years under Art.36 of the Limitation Act, 1908.

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

----S. 18---Fraud---Limitation---In case of fraud envisaged by S.18 of the Limitation Act, 1908, limitation would run from the time when fraud became known to plaintiff for the first time.

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

----Onus probandi---Nature/scope/effect/application---Onus to prove shifted to the party who raised a plea different from the one alleged in the pleading of the first party---Principle of onus probandi postulated that where no evidence was adduced by one who arrested a proposition, (such person/party) must fail.

New Jubilee Insurance Company v. Messrs Lelakis Shipping and 3 others 1990 ALD 367(1) and Sanawar Jan v. Temash Khan PLD 1991 Pesh. 101 rel.

Ijaz Anwar for Appellant.

Musarat Hussain for Respondent.

Date of hearing: 25th October, 2013.

2015 M L D 140

[Peshawar]

Before Nisar Hussain Khan and Ikramullah Khan, JJ

ARIFULLAH KHAN---Petitioner

Versus

MUHAMMAD FAISAL KHAN and 14 others---Respondents

Writ Petition No.1083 of 2011, decided on 29th October, 2013.

Constitution of Pakistan---

----Art.199---West Pakistan Land Revenue Act (XVII of 1967), S.135---Constitutional petition---Competency---Interim order passed by the Member Board of Revenue---Partition of joint property by the revenue officer---Scope---Contention of petitioner was that no opportunity of hearing was afforded to him---Validity---Any order passed on the back of a party depriving him of its legal right of audience was against natural justice and same could not be legalized on any ground---Impugned review order was also passed without notice to the petitioner---Impugned order passed by the Member Board of Revenue could not be challenged through constitutional petition being interim in nature and no prejudice had been caused to the petitioner by such order---Every party had legal right against other to be heard before any adverse order was passed which might deprive such party from valuable right in immovable property---No jurisdictional infirmity had been pointed out in the impugned orders---Constitutional petition was dismissed in circumstances.

Muhammad Ilyas Khan v. Muhammad and others 1986 SCMR 251 rel.

Abdul Sattar Khan for Petitioner.

Gul Sadbar for Respondents.

Date of hearing: 29th October, 2013.

2015 M L D 157

[Peshawar]

Before Rooh-ul-Amin Khan, J

ACCOUNTANT GENERAL, KHYBER PAKHTUNKHWA---Petitioner

Versus

ABDUL ALI---Respondent

Civil Revision No.747 of 2011, decided on 20th January, 2014.

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

----Art.164---Civil Procedure Code (V of 1908), O.IX, R.13---Ex parte decree, setting aside of---Limitation---Scope---Application for setting aside ex parte decree was required to be filed within a period of thirty days.

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

----O.IX, R.13---Limitation Act (IX of 1908), S.5---Ex parte decree, setting aside of---Limitation---Natural justice, principles of---Scope---Application for setting aside ex-parte decree was dismissed being time barred---Appellate Court upheld the order of Trial Court---Validity---Cases should be decided on merits, after hearing both the sides, and nobody should be condemned unheard, as maxim "Audi alteram partem", was very jealously and consistently followed by the courts, which was a principle of natural justice but at the same time keeping in view the conduct of the petitioner as manifest on the face of record showing his full knowledge about the proceedings and indicating his purposeful silence, the golden maxim that "law aids vigilant and not the indolent" could not be oversighted---Revision petition was dismissed.

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

----S.5---Limitation---Government functionaries---Condonation of delay---Scope---Government could not be treated differently than the private individuals on the question of limitation---Limitation once having started to run, could not be stopped by any subsequent act.

Government of Punjab through Secretary Services and General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396 rel.

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

----S.5---Limitation---Condonation---Principles and scope---Limitation is not a mere technicality rather is a mandatory statutory provision and treating it as a formality or triviality would tantamount to making the entire Limitation Act, 1908 redundant and superfluous despite the fact that redundancy should not be attributed to statute---Object of law of limitation is to help the vigilant and not the indolent---Helping hand could not be extended to a litigant having gone into deep slumber, on having become forgetful of his rights---Law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts---Person must come to the court and take recourse to legal remedies with due diligence---Invoking remedy by some aggrieved person beyond the period of limitation prescribed for redressal of grievance, creates a valuable right in favour of the opposite party---In such a case, delay of each day has to be explained by the defaulting party to the satisfaction of the court, which could not be condoned lightly or as of routine, as such arbitrary exercise of discretion would cause serious prejudice to the opposite party.

Cantonment Board Rawalpindi v. Muhammad Sharif through Legal heirs PLD 1995 SC 472 rel.

Muhammad Sohail A.G. for Petitioner.

Sadiq Ali Mohmend for Respondent.

Date of hearing: 20th January, 2014.

2015 M L D 168

[Peshawar]

Before Mrs. Irshad Qaiser, J

RAZA MUHAMMAD and 2 others---Petitioners

Versus

JAVED KHAN and 2 others---Respondents

Civil Revision No.144-A of 2011, decided on 21st February, 2014.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession of immovable property---Encroachment over suit property---Appointment of local commission---Demarcation of suit property through revenue officer---Scope---Trial Court dismissed the suit but same was remanded by the Appellate Court with the direction to find out encroachment over suit property through revenue officer---Validity---During pendency of suit local commission was appointed for spot inspection who submitted his report but same was rejected by the Trial Court---Dispute between the parties was with regard to demarcation of suit property and same could be resolved through revenue officer by determination of encroachment---Trial Court was required to appoint another local commission to confirm encroachment over the disputed property---Trial Court had failed to exercise its jurisdiction properly and had wrongly and illegally dismissed the suit without any just and reasonable cause---Suit for possession on behalf of one co-heir/co-sharer was considered to be for or on behalf of other co-heirs/co-sharers---No error had been committed by the Appellate Court while remanding the present case as demarcation of suit property was necessary through revenue officer for adjudication on merits---Revision was dismissed in circumstances.

1991 CLC 1197 rel.

Haji Sabir Hussain Tanoli for Petitioners.

Sardar Muhammad Asif and Yasir Zahoor Abbasi for Respondents.

Date of hearing: 21st February, 2014.

2015 M L D 181

[Peshawar]

Before Lal Jan Khattak, J

MUHAMMAD UMAR and another---Petitioners

Versus

The STATE through Additional Advocate-General and another---Respondents

Criminal Miscellaneous No.140-M of 2014, decided on 20th June, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 147, 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Prosecution failing to comply with direction of High Court regarding conclusion of trial within a certain time period---Few prosecution witnesses remaining to be examined---Effect---Earlier bail application of accused was refused by the High Court with a direction to prosecution to conclude trial within two months, however trial did not conclude within such time period---All prosecution witnesses had been examined except two whose evidence was to be recorded within a couple of days---When two or three witnesses were left to be examined, in such an eventuality court should neither grant nor cancel bail to an accused---Although prosecution had not concluded the trial within the time given by the High Court but the defence side too was equally responsible for non-conclusion of trial as it also got the case adjourned on two or three occasions---Accused was refused bail in circumstances with a direction to Trial Court to conclude the trial within one month.

2011 SCMR 1332 rel.

Muhammad Raziq and Aziz Muhammad for Petitioners.

Umar Zaman Khan for the Complainant. and M. Javed, A.A.-G. for the State.

Date of hearing: 20th June, 2014.

2015 M L D 191

[Peshawar]

Before Waqar Ahmad Seth, J

NADIR KHAN---Petitioner

Versus

MUHAMMAD ASHRAF---Respondent

Civil Revision No.56 of 2009, decided on 14th May, 2014.

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

----S.42---Punjab Land Revenue Act (XVII of 1887), S.24(7)---West Pakistan Land Revenue Act (XVII of 1967), Ss. 42(7) & 184---Suit for declaration without consequential relief---Scope---Concurrent findings of facts by two courts below---Petitioner challenged thirty years old mutation---Non-presence or signature of vendor at the time of attestation of mutation---Effect---Mutation was attested in the year 1924 and at that time Punjab Land Revenue Act, 1877 was in field and under S. 24(7) of the said Act, it was not the requirement to obtain signature/thumb impression of vendor on the mutation or to procure the attendance of vendor at the time of attestation of mutation---On promulgation of West Pakistan Land Revenue Act, 1967 the said requirement had been made mandatory and the things done under the Punjab Land Revenue Act, 1887 had been given protection by saving clause of the West Pakistan Land Revenue Act, 1967---Respondent was not in physical possession nor had claimed any dispossession---Effect---Respondent could not seek a mere declaration of title without asking for possession as consequential relief---Judgments and decrees of two courts below were not tenable due to suffering from misreading and non-reading of evidence and by reversing the judgments and decrees of courts below, the suit of the respondent was dismissed by High Court.

Khawaja Muhammad Naeem and others v. Tasleem Jan and others 1980 CLC 1483 rel.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Arts.90, 100 & 129---Limitation Act (IX of 1908), Art. 142---Suit for declaration---Limitation---Scope---Instead of six years time for declaratory suit, every fresh jamabandi and incorrect entry would create fresh cause of action, but subject to possession of the claimant---In the present case declaratory suit was hit by limitation, as plaintiff did not have possession----Presumption of correctness of 30 years' old document---Validity---Petitioner failed to establish his possessory right and in absence of any existing right to the suit property, suit was not maintainable within the ambit of S. 42 of the Specific Relief Act, 1877---Thirty years old document had the protection of Article 100 of the Qanun-e-Shahadat, 1984---Revision petition was allowed and the judgments and decrees of both the courts below were set aside.

Mehandia v. Juma 2011 MLD 1081; Muhammad Sher and another v. Ali Muhammad and 6 others 2011 CLC 1906 and Mst. Naseem Akhtar and 3 others v. Nasir Javed and 7 others 2005 CLC 658 rel.

Faisal Saeed Khan for Petitioner.

Sardar Aman Khan for Respondent.

Date of hearing: 14th May, 2014.

2015 M L D 213

[Peshawar]

Before Muhammad Daud Khan, J

ASLAM KHAN and others---Petitioners

Versus

KHUSHDIL KHAN and others---Respondents

Civil Revision No.133-B of 2013, decided on 26th May, 2014.

(a) Khyber Pakhtunkhwa Pre-emption Act (XIV of 1950)---

----Ss. 6 & 25---Civil Procedure Code (V of 1908), O.XLI, R.31---Suit for pre-emption---Determination of market value of property---Obligation of court---Appellate Court did not give its findings on the issues of price and market value of suit property---Validity---Appeal was continuation of suit---Under O.XLI, R.31, C.P.C. appellate court was under legal obligation to render its findings after determination of important points on each and every issue involved in the suit---Under S.25 of the Khyber Pakhtunkhwa Pre-emption Act, 1950 court was under obligation to determine the price and market value of the suit property---Supreme Court of Pakistan, in the present case, had remanded the case to the appellate court to meet the reasoning of the Trial Court on points of market value but appellate court did not give its findings on the same---High Court, in circumstances, remanded the case to appellate court with direction to determine the price and market value of suit property---Revision was accepted.

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

----O. XLI, R.31---Judgment in appeal---Duties of appellate court---Under O.XLI, R.31, C.P.C. appellate court was under legal obligation to render its findings after determination of important points on each and every issue involved in the suit.

Syed Iftikhar-ud-Din Haider Gardezi and 9 others v. Central Bank of India Ltd., Lahore and 2 others 1996 SCMR 669 and Umar Din v. Ghazanfar Ali and others 1990 SCMR 1816 rel.

Haji Zafar Iqbal and Waris Faheem for Petitioners.

Abdur Rasheed Khan Marwat for Respondents.

Date of hearing: 26th May, 2014.

2015 M L D 226

[Peshawar]

Before Assadullah Khan Chamkani, J

GUL MAST---Petitioner

Versus

KHASITA GUL and another---Respondents

Criminal Miscellaneous No. 1287-P of 2014, decided on 15th September, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, grant of---Neither any allegation of altercation or grappling between accused and the deceased prior to the incident, nor any that of thrashing of the deceased by accused with any blunt weapon---Complainant had charged accused along with his co-accused for firing at the deceased, whereas according to autopsy report of the deceased, he died due to blunt trauma and no firearm injury had been found on his person---Glaring conflict was noticed between the ocular and medical evidence, which made the case of accused debatable for the purpose of bail---Complete challan had been drawn and trial was to commence shortly---Accused, was admitted to bail, in circumstances.

Syed Abdul Baqi Shah v. The State 1997 SCMR 32; Saeed Khan v. The State and others 2011 SCMR 1392; 2008 PCr.LJ 1332; 2010 PCr.LJ 537; 2011 YLR 956; 2010 PCr.LJ 83; 2013 PCr.LJ 856; 1999 PCr.LJ 1464; 1994 PCr.LJ 540 and 1996 PCr.LJ 1165 ref.

Syed Abdul Baqi Shah v. The State 1997 SCMR 32; Saeed Khan v. the State and others 2011 SCMR 1392 and Nisar Ahmad v. The State and others 2014 SCMR 27 rel.

M. Iqbal Mohmand for Petitioner.

Gohar Ali Khan for the Complainant.

Gul Daraz Khan, A.A.-G. for the State.

Date of hearing: 15th September, 2014.

2015 M L D 258

[Peshawar]

Before Yahya Afridi, J

SIYAR KHAN and another---Petitioners

Versus

IBRAHIM---Respondent

C.R. No.1030 with C.Ms. 1090 and 1771 of 2010, decided on 18th November, 2013.

Limitation Act (IX of 1908)---

----Arts. 44 & 120 & S. 3---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Attestation of mutation during the period of minority---Limitation---Scope---Contention of plaintiff was that he was minor at the time of attestation of mutation and same was liable to be set aside---Suit was decreed concurrently---Validity---Plaintiff became major on 5-1-1989 and he was bound to file suit within three years on attaining the age of majority i.e. 18 years---Suit should have been filed on or before 4-1-1992 but same was filed with a delay of 13 years 8 months and 9 days---Both the courts below did not record correct findings on the issue of limitation---Suit of plaintiff was barred by time and same should have been dismissed on the issue of limitation---Fresh cause of action on incorrect entry in the Jamabandi would be for such a person who was in possession of the property as an owner---Defendants were in possession of suit property---Trial Court was bound to first decide the issue of limitation and if suit was within time then to proceed to adjudicate the same on merits---Claim of plaintiff was not supported by the evidence on record---Judgments and decrees of both the courts below were illegal which were not sustainable in the eye of law---High Court had revisional jurisdiction to rectify the error committed by the courts below---Impugned judgments and decrees passed by both the courts below were set aside and suit was dismissed---Revision was accepted in circumstances.

Pir Wali Khan's case 2013 MLD 1106; Muhammad Hanif's case 2003 MLD 568; Buland Khan's case PLD 1979 Lah. 237; Abdul Waheed's case 2013 CLC 1737 and Wali's case 1995 SCMR 284 rel.

Abdul Zakir Tareen and Muhammad Taif Khan for Petitioners.

Yousaf Ali for Respondent.

Date of hearing: 18th November, 2013.

2015 M L D 296

[Peshawar]

Before Malik Manzoor Hussain, J

MUHAMMAD AMIN---Petitioner

Versus

Mst. SHAISTA and 30 others---Respondents

Civil Revision No.1213-P of 2012, decided on 27th June, 2014.

Islamic law---

----Gift---Delivery of possession---Exemption---Scope---Unregistered gift deed---Effect/validity---In case of gift from parents to minors, or husband to wife or from father in law to daughter-in-law, requirement of delivery of possession could be dispensed with---Gift in question was neither challenged by the donor nor his widow but by a third party---Valid gift could be effected even orally and through an unregistered instrument---Under Islamic law, written instrument (for gift) was not the requirement of law---Gift deed was not compulsorily registerable document---Written instrument in any case would not create a gift but was merely evidence of the gift and as such would not require registration---Impugned judgments did not suffer any illegality---Revision was dismissed.

Umar Bibi v. Bashir Ahmad 1977 SCMR 154 rel.

Hamid Hussain for Petitioner.

Shaukat Ali and Daar-us-Salam Khan for Respondents.

Date of hearing: 27th June, 2014.

2015 M L D 324

[Peshawar]

Before Waqar Ahmed Seth, J

RIZWAN SHAH---Petitioner

Versus

Mst. KALSOOM---Respondent

C.R. No.225 of 2008, decided on 22nd September, 2014.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Scope---Names of witnesses of notice of Talb-i-Ishhad and Talb-i-Muwathibat were missing in the plaint which was fatal to the right of pre-emption---Plaintiff was not owner/co-sharer or adjacent owner when she performed Talb-i-Muwathibat and Talb-i-Ishhad---All the talbs were made prior to mutation of co-ownership attested in favour of plaintiff---Jumping demand was missing in the present case---Plaintiff had failed to prove the notice of Talb-i-Ishhad by producing postman in the witness box---Number of material discrepancies in the statements of witnesses of plaintiff were on record which could not be termed as 'minor' for the purpose of right of pre-emption---Misreading and non-reading of evidence was on record---Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed---Revision was accepted in circumstances.

Muhammad Mal Khan v. Allah Yar Akhan 2002 SCMR 235; Munawar Hussain and others v. Afaq Ahmed 2013 SCMR 721; Samandar Khan v. Khan Hakim 2011 CLC 899; Amir Muhammad v. Muhammad Ashraf 2001 MLD 1716; 2013 YLR 2566; 2007 SCMR 1105; 2009 MLD 549, 2013 YLR 947; 2013 YLR 2530; Allah Ditta v. Muhammad Anar 2013 SCMR 866 and Said ul Haq v. Janas Khan 2013 MLD 350 rel.

Bakht Jamal Khan for Petitioner.

Sardar Nasir Aslam Khan for Respondent.

Date for hearing: 22nd September, 2014.

2015 M L D 343

[Peshawar]

Before Ikramullah Khan, J

TARIQ JAMIL BANGASH and another---Appellants

Versus

ATTAULLAH KHAN KHATTAK---Respondent

R.F.A. No.267 of 2013, decided on 22nd January, 2014.

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

----O.IX, Rr.6 & 13, & O.XXXVII, Rr.2 & 4---Ex parte decree, setting aside of---Principle---Decree passed in suit instituted under the provisions of O. XXXVII, R. 2, C.P.C., on any grounds mentioned therein, cannot be treated like decree passed ex parte in ordinary suit in pursuance of O. IX, R. 6, C.P.C. and such decree cannot be set aside in the manner, mode or grounds envisaged under general provisions contained in O. IX, R. 13, C.P.C.---Decree passed under O. XXXVII, R. 2, C.P.C. can only be set aside under O. XXXVII, R. 4, C.P.C.

National Bank of Pakistan v. Tradewell (Pakistan) Corporation and 2 others 1991 CLC 1243 rel.

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

----O.XXXVII, Rr.2, 4, O.XLIII, Ss.104 & 151---Decree, setting aside of---Principle---Convertion of proceedings---Trial Court granted leave to defend the suit on condition of furnishing indemnity bonds---Defendants applied for permission to send the bonds to court of their home district for verification of bonds, as guarantors hailed from there---Case was fixed for hearing on that application, when defendants made default in their appearance and case was decreed against defendants---Validity---Default of defendants on the date fixed for hearing on miscellaneous application could not be treated as "default" within the meaning of O. XXXVII, R. 2, C.P.C.---No appeal was provided under the provisions contained in S. 104 or O. XLIII, C.P.C. against order rejecting an application preferred under O.XXXVII, R. 4, C.P.C.---High Court, in exercise of its inherent jurisdiction under section 151 C.P.C., converted appeal into revision, set aside decree and judgment and remanded the case to Trial Court for decision afresh---Revision was allowed accordingly.

Haji Ali Khan and Company, Abbottabad v. Messrs Allied Bank of Pakistan, Limited Abbottabad PLD 1995 SC 362 and Habib Bank Ltd. v. Mussarat Ali Khan PLD 1987 Kar. 86 ref.

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

----O.XXXVII, R.4---Limitation Act (IX of 1908), Art. 181---Decree, setting aside of---Limitation---Scope---No period of limitation has been provided under any provision of Limitation Act, 1908, for application under O. XXXVII, R. 4 C.P.C.---Residuary provision contained in Art. 181 of Limitation Act, 1908, is applicable to such cases and period of limitation is 3 years after gaining knowledge.

Tahir. A. Khan v. Messrs United Air Travels Ltd. 2004 YLR 416 and Mst Tahira Taj v. Hakeem Shah 2011 CLC 950 rel.

Shahab Khattak for Appellants.

Abdul Qayyum for Respondent.

Date of hearing: 22nd January, 2014.

2015 M L D 363

[Peshawar]

Before Malik Manzoor Hussain and Musarrat Hilali, JJ

AHMAD JAMIL QURESHI---Applicant/Appellant

Versus

CHERAT CEMENT COMPANY LTD.---Respondent

C.M. No.412-P and R.F.A. No.321-P of 2013, decided on 9th December, 2013.

Limitation Act (IX of 1908)---

----S. 5---Appeal---Objections by the office to such appeal---Re-submitting of said appeal after removal of objections---Condonation of delay---Scope---Appellant was given date for re-submission of appeal by the office but same was not re-submitted within the stipulated period---Ground taken in the application for condonation of delay was not sufficient to condone the same---Application for condonation of delay was not supported by an affidavit---Law would favour the vigilant but not the indolent---Appellant was bound to re-submit the appeal after removal of objections within time prescribed by the office---Appeal was to be dismissed in case of failure to re-submit the same within stipulated period---No case for condonation of delay had been made out by the appellant---Appellant had failed to satisfy as to why appeal was re-submitted after nine months---Application for condonation of delay was dismissed in circumstances.

Collector Land Acquisition, Abbottabad and others v. Fazal Rehman and others 2009 SCMR 767 and Mrs. Akram Yaseen and others v. Aasif Yaseen and others 2013 SCMR 1099 rel.

Nemo for Applicant/Appellant.

Ishaq Ali Qazi for Respondent.

2015 M L D 373

[Peshawar]

Before Abdul Latif Khan, J

UMAR DAD---Petitioner

Versus

MUHAMMAD WAHID and 3 others---Respondents

Civil Revision Petition No.494-M of 2011, decided on 6th August, 2014.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13, 31 & 2 (d)---Pre-emption suit---Limitation---Talbs, performance of---Requirements---Proof---Limitation for filing suit for possession through pre-emption was 120 days which would start from the date of attestation of registered deed, mutation, induction of vendee into possession of property and through other document in case transaction had taken place otherwise---Pre-emptor was not bound to wait for registration of deed or for the attestation of mutation---Sale could be even oral and if it had come to the knowledge of pre-emptor then right of pre-emption could be exercised by performing Talb-i-Muwathibat---Pre-emptor was bound to prove the date of performance of Talb-i-Muwathibat, time and place in accordance with law---Pre-emptor was not bound to produce specific number of witnesses to prove "Talb-i-Muwathibat" but once it was alleged by him that Talb-i-Muwathibat was performed in presence of such and such witnesses then he was bound to produce all such witnesses---Plaintiff and his witnesses were bound to prove and give details of date, time and place with regard to performance of Talb-i-Muwathibat---Witnesses of plaintiff had not supported the stance of plaintiff with regard to the information as to the date, time and place mentioned in the plaint---Plaintiff was bound by the deposition made in the plaint about his witnesses---Informer of sale, in the present case, had not deposed that plaintiff performed Talb-i-Muwathibat which was sufficient to non-suit the pre-emptor---Statements of witnesses of plaintiff were contrary to each other---Plaintiff could not be exonerated from the statements made by his witnesses---Departure from pleadings was not permissible under the law---Vital contradictions between the statements of plaintiff and his witnesses were on record which were fatal to the case---Evidence produced by the plaintiff was not confidence inspiring to prove the incident of Talb-i-Muwathibat---Subsequent improvements made by the pre-emptor would amount to contradictions which would be fatal to the case---Both the courts below had decided the matter with conscious and application of independent mind and rightly non-suited the plaintiff for want of proof of "Talbs"---Revision was dismissed in circumstances.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 31---Suit for possession through pre-emption---Limitation---Limitation for filing suit for possession through pre-emption was 120 days.

Amir Gulab Khan for Petitioner.

Asghar Ali for Respondents.

Date of hearing: 6th August, 2014.

2015 M L D 386

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

SHERIN ZADA and 8 others---Petitioners

Versus

The STATE and 4 others---Respondents

Writ Petition No.357-M of 2014, decided on 4th September, 2014.

Criminal Procedure Code (V of 1898)---

----Ss.22-A, 154 & 157---Constitution of Pakistan, Art. 199---Constitutional petition---Registration of criminal case---Justice of Peace, powers of---Duty of Police under S.154, Cr.P.C., to register case whenever commission of a cognizable offence was reported---Justice of Peace could issue appropriate directions under S.22-A(6)(1), Cr.P.C. to the concerned Police authorities to register a case, even without seeking report from the S.H.O. concerned; to know the reasons as to why the Police had not registered case in respect of complainant's allegations where a report was asked by the Justice of Peace from S.H.O. in order to discover the real facts, the same was not to be ignored---When Justice of Peace, did not agree with the report, he should assign reasons for that---Justice of Peace was not to allow application under S.22-A, Cr.P.C. in routine but apply its mind, as to whether, the petitioner had come with clean hands---In the present case, Justice of Peace, had asked comments/report from the S.H.O. concerned, but failed to assign any reasons for the same---Order of Justice of Peace, being not sustainable in the eyes of law, was set aside---Proceedings, if any, against the petitioners on the basis of the order of the Justice of Peace were quashed.

Hafiz Ashfaq Alam for Petitioners.

Hamayoon Khan and Sabir Shah, A.A.-G. for Respondents.

Date of hearing: 4th September, 2014.

2015 M L D 405

[Peshawar]

Before Malik Manzoor Hussain, J

PARVEZ AKHTAR---Petitioner

Versus

Dr. SAEED-UR-REHMAN and others---Respondents

Civil Revision No.691-P of 2013, decided on 20th January, 2014.

Limitation Act (IX of 1908)---

----S. 14---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Appeal---Condonation of delay---Wrong advice by the counsel---Return of appeal for presentation of the same before proper forum---Filing of fresh Appeal---Limitation---Public document---Scope---Appeal was filed before the High Court which was returned for want of pecuniary jurisdiction---Plaintiff filed fresh drafted appeal before the Appellate Court instead of submitting the appeal which was returned to him for presentation before the proper forum---Wrong or ill advice of the counsel was no ground for condonation of delay---Plaintiff was bound to be vigilant and protect his right in the proper forum---Plaintiff was bound to file the same appeal which was returned to him for presentation before the proper forum as same was a public document and part of record of the court---Appeal which was returned to the plaintiff did not become his private property and he was bound to present the same in its original condition---Plaintiff could not file afresh or amended appeal and he had violated the provision of return of appeal---Appeal filed by the plaintiff would be treated as fresh appeal and limitation had to run as provided for filing of fresh appeal---Appeal filed by the plaintiff was rightly dismissed by the Appellate Court---Revision was dismissed in circumstances.

Raj Muhammad v. Mst. Chand Bibi and others 1984 SCMR 1058; Mian Azad Bakhsh v. Sheikh Muhammad Afzal 1985 SCMR 1003; Islam Din v. Allah Nawaz 1988 SCMR 2; Municipal Committee Tank and another v. Waris Khan and 2 others 2005 CLC 154; Zafar Iqbal Khan v. Pakistan Agricultural Research Council, Islamabad and others 2003 SCMR 1471; Sardaraz Khan and 36 others v. Amirullah Khan and 34 others PLD 1995 Pesh. 86 and Mst. Khalida Begum and 2 others v. Mst. Yasmeen and 4 others 2000 CLC 1290 rel.

Zia ur Rehman Khan for Petitioner.

Muhammad Tariq Afridi for Respondent.

Date of hearing: 20th January, 2014.

2015 M L D 427

[Peshawar]

Before Rooh-ul-Amin Khan, J

MUHAMMAD IBRAHIM---Petitioner

Versus

MUHAMMAD ZARIF and others---Respondents

Civil Revision No.32-B of 2008, decided on 28th October, 2013.

Islamic Law---

----Inheritance---Scope---Contention of plaintiff was that he had share in the property in dispute on the basis of inheritance---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Father of the parties was still alive whose property was in dispute---Share in the property could be claimed by way of inheritance on the occasion of demise---Suit of the plaintiff was not maintainable having no cause of action---Plaintiff was also son but he had been deprived in the impugned mutations---Assets and wealth of a person could be distributed after accruing his physical death---Courts below and revenue authorities had ignored such fact while transferring the land of an alive person to his legal heirs as "inheritance"---Impugned mutations being illegal were liable to be cancelled which were set aside---Property in question would devolve upon its original owner who was still alive---Revision was disposed of with the direction to the revenue authorities to enter the property in the revenue record in the name of original owner who was alive.

Ayat No.4:7 Surrah An Nisa rel.

Amanullah Khan Khattak for Petitioner.

M. Ishaq Khattak for Respondents.

Date of hearing: 28th October, 2013.

2015 M L D 441

[Peshawar]

Before Malik Manzoor Hussain, J

GUL BAD SHAH---Petitioner

Versus

FAZAL ELAHI---Respondent

Civil Revision No.732 of 2008, decided on 21s February, 2014.

Khyber Pakhtunkhawa Pre-emption Act (X of 1987)---

----S.13---Talb-e-muwathibat---Pre-requisites---Pre-emption suit filed by the petitioner was decreed---Appellate court accepted the appeal of the respondent and dismissed the suit filed by pre-emptor on account of failure to meet the pre-requisites of Talb-e-muwathibat---Validity---Pre-emptor/petitioner had failed to mention the name of informer, the exact place where he received the information from the informer and also such fact did not appear in the notice issued by him---Pre-emptor/petitioner had failed to examine the informer so as to absolve himself of the responsibility of production of in the court---Pre-emptor/petitioner neither mentioned the name of informer in the plaint nor in the list of witnesses and also failed to produce the required witness in Trial Court and no application in this respect was filed before trial or appellate court---Pre-emptor/petitioner for the first time made application before revisional court in such respect---At the revisional stage, the petitioner could not be allowed to fill the lacuna or to defeat the right of other party which had accrued by the act and omission of the petitioner---Revision petition was dismissed.

Zia-ur-Rehman for Appellant.

Khalid Mahmood for Respondent.

Date of hearing: 21st February, 2014.

2015 M L D 456

[Peshawar]

Before Abdul Latif Khan, J

ALAM KHAN---Petitioner

Versus

SHAH NAWAZ and 8 others---Respondents

C.R. Nos.422 of 2011 and 131-D of 2013, decided on 16th December, 2013.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of contract---Subsequent sale of suit property---Requirements---Lis pendence, principle of---Applicability---Alternative relief---Trial Court dismissed the suit but same was decreed to the extent of recovery of sale price by the Appellate Court---Validity---Plaintiff had succeeded to prove the execution of agreement to sell and no contradictions were found in the statements of his witnesses---Stamp vendor was not necessary to be examined as his production would be necessary if stamp papers were purchased from the place other than where the property was situated---Defendant had refused the execution of agreement to sell but he had not deposed about transfer of suit land in favour of subsequent purchasers---Defendant used to sell the lands and then denied the same---Subsequent purchasers had acquired suit land during pendency of suit and same was hit by the doctrine of lis pendence---Subsequent purchasers could not claim to be bona fide as requirements for the same were not fulfilled---Agreement to sell had been proved and subsequent sale of suit property would not create title in favour of subsequent purchasers---Main prayer had to be taken into consideration and not the alternative---Appellate Court had wrongly ignored the main relief and focused on the alternative relief---Suit of plaintiff was decreed subject to payment of remaining sale consideration within a period of thirty days---Revision was accepted in circumstances.

S. Aabid Hussain Bokhari for Petitioner.

Muhammad Ghazanfar Ali and Jahanzeb Ahmed Chughtai for Respondents.

Date of hearing: 16th December, 2013.

2015 M L D 480

[Peshawar]

Before Malik Manzoor Hussain, J

SHAH MIRAN---Petitioner

Versus

M. TAUFIQ KHAN and others---Respondents

C.R. No.1954 of 2010, decided on 7th November, 2013.

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

----O.VI, R.17---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Improvement in pleadings---Scope---Defendant failed to mention the document which made him owner of the suit land; he built his case on the basis of unregistered deed but in cross-examination revealed that he had purchased suit land from another person who had purchased the property from plaintiff---Improvement in case originally set up in pleadings was not permissible---Maxim "Secundum allegata et probata", which meant that a fact had to be alleged by a party before it is allowed to be proved, was applicable to the facts of the case---Plea of transfer of property in his favour was not taken by the defendant either in plaint or in present revision, same could not be taken during arguments in revision---Neither scribe, executant or marginal witnesses nor second deed was produced and proved---Defendant was bound to prove the agreement to sell---Having not produced the best available evidence, inference would be drawn against the defendant---High Court, in revision, could not interfere in the finding of fact and law by court of competent jurisdiction unless such findings suffered from jurisdictional defects, illegality or material irregularity---Revision was dismissed in circumstances.

Messrs Choudhary Brothers Ltd, Sialkot v. The Jaranwala Central Cooperative Bank Ltd and others 1968 SCMR 804; Pakistan v. Abdul Ghani PLD 1964 SC 68; Qabil Shah and others v. Shaday PLD 1992 Pesh. 144; Muslim Commercial Bank Ltd., v. Syed Ahmad Saeed Kirmani 1991 CLC 140; Abdul Hakim v. Habib Ullah 1997 SCMR 1139; Iltaf Hussain v. Abdul Hameed through L.Rs. and another 2000 SCMR 314; Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293; Shafi Muhammad and others v. Khanzad Gul and others 2000 SCMR 368; Malik Muhammad Ishaq's case PLD 1977 SC 109; Noor Khan's case PLD 1973 SC 469 and Shah Nawaz's case PLD 1976 SC 767 rel.

(b) Maxim---

----Secundum allegata et probata meant that "a fact had to be alleged by a party before it was allowed to be proved". [p. ] C

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

----O. VI, R.17---Pleadings---Improvement in case originally set up in pleadings was not permissible.

Muhammad Taif Khan for Petitioner.

Ghulam Jan Niazi for Respondents.

Date of hearing: 7th November, 2013.

2015 M L D 507

[Peshawar]

Before Rooh-ul-Amin Khan and Ikram Ullah Khan, JJ

AHMAD GUL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.789 of 2010, decided on 11th April, 2013.

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

----S.6---Word "possess"---Connotation---Word "possess" connotes some type of knowledge about the thing possessed by a person and it is the duty of prosecution to prove that accused was knowingly in control of narcotic substance.

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

----S.29---Recovery of narcotic substance---Presumption---If case is of possession of narcotic drug, then prosecution is under obligation to prove that narcotic drug had been recovered from conscious possession of accused.

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

----S.9(c) & 29---Recovery of narcotic substance---Appreciation of evidence---Conscious possession---Proof---Charas weighing 336 kilograms was recovered from secret compartments of truck in which accused was sitting on the seat next to driver---Trial Court convicted accused and sentenced him to imprisonment for life---Plea raised by accused was that he boarded truck on the way and did not know about presence of narcotic substances in secret compartments of truck---Validity---Knowledge of accused was not proved by prosecution through any cogent evidence either oral or documentary---Prosecution simply proved his presence in truck with co-accused and mere presence of accused in vehicle was not sufficient to saddle him with recovery of huge quantity of narcotics---Prosecution failed to prove guilt of accused by proving his connectivity or any nexus with his co-accused or his conscious knowledge about concealed contraband narcotics---Such important aspect of case escaped notice of Trial Court and thereby reached to wrong conclusion by convicting the accused---Findings of Trial Court regarding conviction and sentence of accused were set aside and he was acquitted of the charge---Appeal was allowed in circumstances.

Muhammad Noor and others v. The State 2010 SCMR 927 and Mst. Jameela and another v. The State PLD 2012 SC 369 ref.

Miss Farhana (Marwat) for Appellant.

Hassan Shinwari for the State.

Date of hearing: 11th April, 2014.

2015 M L D 518

[Peshawar]

Before Yahya Afridi and Ikramullah Khan, JJ

AMAN UL HAQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.194-P of 2013, decided on 13th June, 2013.

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

----Ss.9(c) & 35---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.3---Possession of narcotics---Government Analyst---Qualification---Substance weighing 15 kilograms recovered from secret compartment of car driven by accused was alleged to be narcotics---Trial Court convicted the accused and sentenced him to imprisonment for life---Validity---Narcotics substance was brought under processing from Forensic Science Laboratory report on 4-3-2009, while concerned officer was declared as Government Analyst on 5-8-2009 but with retrospective effect---Concerned declared Government Analyst lacked the required qualification as envisaged under S. 35 of Control of Narcotic Substances Act, 1997, read with Rule 3 of Control of Narcotic Substances (Government Analysts) Rules, 2001---Most crucial issue of forensic verification of narcotics was not carried out in accordance with prescribed manner as provided there, under the provisions of Control of Narcotic Substances Act, 1997---High Court set aside conviction and sentence recorded by Trial Court and remanded the case to Trial Court for decision afresh---Appeal was allowed accordingly.

Muzzamil Hussain v. The State, Criminal Appeal No.401 of 2001 and Israr v. The State 2011 PCr.LJ 1203 rel.

Noor Alam Khan for Appellant.

Jawad Khan and Muhammad Zaib, Amicus Curiae for Respondents.

Date of hearing: 13th June, 2013.

2015 M L D 582

[Peshawar]

Before Yahya Afridi, J

SHAD MUHAMMAD through L.Rs. and others---Petitioners

versus

Mst. SARWARA---Respondent

C.R. No.233 of 2005, decided on 23rd December, 2013.

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

----Art. 126---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Ownership, proof of---"Preponderance of evidence"---Scope---Person, who had claimed a fact, had to prove the same himself by producing cogent and reliable evidence and he could not seek refuge behind the weaknesses of the other side, however court had to weigh the evidence produced by the rival parties when there were contesting claims backed by supporting evidence and to see on whose side the "preponderance of evidence" would rest---Issue of "preponderance of evidence" would come into play when evidence produced by the parties were evenly balanced and court was unable to decide the matter on available evidence---"Preponderance of evidence" was in favour of defendants and against the plaintiffs in the present case---Legacy would open on the death of a person and share of each legal heir was to devolve in accordance with shariah---Non-recording of said transfer in the revenue record would not defeat the said rights---Long standing entries in the revenue record were in favour of defendants---Plaintiffs were bound to prove their own claim through cogent and reliable evidence---Brother of propositus of defendants died issueless having no sharer while plaintiffs were his residuary being male descendant of his Remote Grand Father---Defendants were distant kindred of brother of their propositus being female descendant of Remote Grand Father---Legacy of brother of propositus of defendants would devolve upon the residuary as there was no sharer---Particulars of actual due share of brother of propositus of defendants had not been proved and disputed mutation had not been produced in evidence---Vague pleadings coupled with no supporting documentary was fatal to the claim of plaintiffs---Plaintiffs had no locus standi to seek the legacy of propositus of defendants as they claimed the same through brother of their propositus who during his life time never agitated the said claim---Both the courts below had correctly applied and interpreted the applicable law according to facts of the case---Findings recorded by the courts below were neither arbitrary nor capricious---Revision was dismissed in circumstances.

Mst. Qaiser Khatoon v. Molvi Khaliq PLD 1971 SC 334; Muhammadan Law ; Ghulam Ali's case PLD 1990 SC 1; Abdul Haq's case 2002 SCMR 1330; Ghulam Haider's case 2008 SCMR 1425 and Muhammad Idrees v. Muhammad Parvez 2010 SCMR 5 rel.

Abdul Sattar Khan for Petitioner.

Mohib Jan for Respondent.

Date of hearing: 23rd December, 2013.

2015 M L D 601

[Peshawar ]

Before Waqar Ahmed Seth, J

ANWARZEB---Appellant

versus

MUSHTAQ AHMED---Respondent

R.F.A. No.50-A of 2008, decided on 23rd June, 2014.

(a) Malicious prosecution---

---Damages---Assessment---Principles---Plaintiff filed suit for damages on the ground that defendant lodged an application to District Police Officer by levelling frivolous and baseless allegations---Trial Court dismissed the suit due to non-mentioning and proving the quantum of damages---Validity---Plaintiff had 28 years of unblemished uniformed service and carried good reputation in the village---Defendant had locked plaintiff in civil litigation due to his property in the village and he was disgraced/insulted due to allegations and raid of police---Trial Court had decided each and every issue and circumstances in favour of plaintiff besides holding that element of malice had been proved---Plaintiff was non-suited due to non-mentioning and proving the quantum of damages which was not requirement of law and due to the same suit could not be dismissed---Essentials of malicious prosecution were proved beyond shadow of doubts as defendant levelled criminal charges but nothing was proved after police raid---Malice was previous civil litigation which was without reasonable and probable cause and raid by police had affected the reputation of plaintiff---Every person in the society had a right to set in motion Government and Judicial machinery for protection of his rights but said person should not infringe the corresponding rights of others by instituting improper legal proceedings in order to harass by unjustifiable litigation---Plaintiff had not specified the damages and general damages were to be assessed---Loss arising out of injury to reputation of a person could not be compensated in terms of money but for said reason alone courts should not decline to grant compensation---Just, fair and reasonable compensation was to be assessed in such cases and same was to be granted to the victim(s)---No yardstick or definite principle for assessing damages existed in such cases and assessment of fair compensation was difficult---Court had discretion in such cases which would depend on facts of each case and how far society would deem a fair sum determining the amount to be awarded to a person who had suffered such damages---General damages would not be needed to be proved by strict evidence as same would arise by inference of law even though no actual pecuniary loss had been or could be shown---Impugned judgment was not based on correct appreciation of evidence and same could not be maintained---Damages/compensation of Rs. 3,00,000 was fixed by the High Court keeping in view the narrated principles and nature of allegation with reference to society plus status of plaintiff---Impugned judgment and decree passed by the Trial Court were set aside and suit was decreed to the extent of Rs. 3,00,000--Appeal was allowed accordingly.

Muhammad Akram v. Farman Bibi PLD 1990 SC 28 rel.

(b) Words and phrases---

---"General damages"---Meaning---"General damages" were those which law would imply in every violation of a legal right.

T.H. Lughmani for Appellant.

Shah Nawaz Asim for Respondent.

Date of hearing: 23rd June, 2014.

2015 M L D 635

[Peshawar]

Before Nisar Hussain Khan and Malik Manzoor Hussain, JJ

SARHAD HYDEL DEVELOPMENT ORGANIZATION (SHYDO) through Managing Director---Appellant

versus

Messrs HEAVY MECHANICAL COMPLEX (PVT.) LTD., TAXILA (HMC) through Abdul Qudoos---Respondent

Regular First Appeal No.44 of 2011, decided on 6th June, 2013.

Arbitration Act (X of 1940)---

----S. 20---Arbitrator, appointment of---Arbitration agreement---Arbitration clause---Scope---Matter in dispute was referred to arbitrator to conduct arbitration and submit award---Validity---When parties had agreed to decide their dispute in a particular manner then they must surrender themselves to the forum voluntary chosen by them---Arbitration agreement was on record wherein it had been provided that parties should resolve their dispute through arbitrator---Trial Court was left with no option but to allow the application to resolve the dispute through arbitration clause---No plausible objection had been raised with regard to the legality of impugned order nor regarding integrity, veracity or competency of the arbitrator appointed by the Trial Court---No final award had been submitted in the court and it would be premature to make any observation with such regard---Appeal was dismissed in circumstances.

Shakeel Azam Awan for Appellant.

Nisar Khan and Bilal A. Khawaja for Respondent.

Date of hearing: 6th June, 2013.

2015 M L D 652

[Peshawar]

Before Mrs. Irshad Qaiser, J

Mst. AQSA SABIR and another---Petitioners

versus

Dr. SAJJAD HUSSAIN and others---Respondents

C.R. No.90-A of 2014, decided on 22nd July, 2014.

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

---S. 4---Civil Procedure Code (V of 1908), O.VII, R.11---Succession---Rejection of plaint---Trial Court rejected the plaint being barred by law but Appellate Court remanded the case for decision on merits---Validity---Succession would depend on the fiction that if "Y" was alive at the time of death of "X", (his mother), "Y" would inherit 1/2 share of his mother in such event along with his brother (defendant) but he could pass on such share of his estate to his daughters as was permissible under the Islamic Law of inheritance---Defendants being surviving children could not get more than 2/3rd of the estate of "Y" as he had no son but only daughter and remaining 1/3rd must revert to the collateral( plaintiff)---Defendants could inherit only to the extent of Islamic share in the estate of their father "Y" notionally assessing that he was alive at the time of death of his mother (propositus) and death of "Y" occurred only subsequent to the death of his mother---Findings of Appellate Court were neither illegal nor suffered from any irregularity or jurisdictional defect---Case was rightly remanded by the Appellate Court---Revision was dismissed in circumstances.

Mst. Aarina Jan v. Mst. Akbar Jan PLD 1975 Pesh. 252; Ata Ullah Khan and others v. Mst. Surraya Parveen 2006 SCMR 1637; Mst. Saabran Bibi and 9 others v. Muhammad Ibrahim and 12 others 2005 CLC 1160; Qutab-ud-Din v. Mst. Zubaida Khatoon and others 2009 CLC 1273; Saifur Rehman and another v. Sher Muhammad through L.Rs. 2007 SCMR 387; Haji Muhammad Hanif v. Muhammad Ibrahim and others 2005 MLD 1; Jamroz Khan v. Aamir Khan and others 2013 CLC 542; Rehman Ghani and others v. Shahzad Khan and others 2010 CLC 610; Hoshang and others v. Dr. Eddie P. Bharucha and others PLD 1973 SC 206; Kamal Khan alias Kamla v. Mst.Zainab PLD 1983 Lah. 546; Mst. Zainab v. Kamal Khan alias Kamala PLD 1990 SC 1051; Muhammad Yousaf and others v. Mst. Bilqees Begum and others 2006 YLR 889; Mst. Fatima Begum and another v. Khush Naseeb Khan and others PLD 2005 Lah. 641; Mst. Rashida Begum and 5 others v. Mst. Rehana Nasreen and 4 others 2004 MLD 1304; Mst. Qabal Jan v. Mst. Habab Jan and 9 others 1992 SCMR 935 and Mst. Saira Yousaf and another v. Sher Muhammad 2012 CLC 1593 ref.

Mst. Aarina Jan v. Mst. Akbar Jan PLD 1975 Pesh. 252; Ata Ullah Khan and others v. Mst. Surraya Parveen 2006 SCMR 1637; Mst. Saabran Bibi and 9 others v. Muhammad Ibrahim and 12 others 2005 CLC 1160; Qutab-ud-Din v. Mst. Zubaida Khatoon and others 2009 CLC 1273; Saifur Rehman and another v. Sher Muhammad through L.Rs. 2007 SCMR 387; Haji Muhammad Hanif v. Muhammad Ibrahim and others 2005 MLD 1; Jamroz Khan v. Aamir Khan and others 2013 CLC 542; Rehman Ghani and others v. Shahzad Khan and others 2010 CLC 610 and Hoshang and others v. Dr. Eddie P. Bharucha and others PLD 1973 SC 206 distinguished.

Kamal Khan alias Kamal v. Mst. Zainab PLD 1983 Lah. 546; Mst. Zainab v. Kamal Khan alias Kamala PLD 1990 SC 1051; Bhaggay Bibi and others v. Mst. Razia Bibi and others 2005 SCMR 1595; Qazi Fazal Ahmed through Legal Heirs v. Riaz-ur-Rahim and others PLD 2004 SC 77; Mukhtar Ahmed v. Mst. Rasheeda Bibi and another 2003 SCMR 1664 and Mst. Tabassam Bibi v. Abdur Rashid Khan and 2 others 1999 CLC 1216 rel.

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

----S. 4---Succession---Object---Succession provided for in S. 4 of Muslim Family Laws Ordinance, 1961 was for the benefit of orphan sons and daughters of predeceased parent---Such succession had been provided to remedy the discrimination which was believed to exist against grand-children whose parents had died before the succession was opened---Parents of such grand-children would be deemed to be alive for the purpose of succession---Said provision of S. 4 of Muslim Family Laws Ordinance, 1961 was not introduced to give a share to the grand-child more than what would have been his/her due share if the parents were alive when succession was opened.

Muhammad Rafique Yousaf for Appellant.

Naeem Anwar for Respondent No.1.

Date of hearing: 22nd July, 2014.

2015 M L D 681

[Peshawar]

Before Malik Manzoor Hussain, J

Mst. NASEEM SAJJAD through Legal Heirs---Petitioners

versus

Mst. ANWAR SULTAN through Representatives---Respondents

Civil Revision No.541-P of 2014, decided on 16th July, 2014.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Closure of evidence---Remedy against order passed under O. XVII, R. 3, C.P.C.---Scope---Application for restoration of suit---Maintainability---Suit was pending since 2007 wherein issues were framed on 10-4-2007---Plaintiffs were given last opportunity with notice under O. XVII, R. 3, C.P.C. to produce complete evidence but they failed---Court had no other option but to dismiss the suit by invoking the provision of O. XVII, R. 3, C.P.C.---Impugned order was passed due to failure of plaintiffs to produce their evidence---Trial Court could dismiss the suit forthwith in such circumstances---Impugned order was appealable and remedy against the same was not the application for setting aside the said order---Plaintiffs wrongly preferred application for setting aside the impugned order whereagainst the proper remedy was the appeal---Trial Court had rightly dismissed the application for restoration of suit---Appeal filed before the Appellate Court was not only time barred but same was having no force of law---Order dismissing the suit under O. XVII, R. 3, C.P.C. would be deemed to be a judgment on merits---Both the courts below had rightly non-suited the plaintiffs---Revision was dismissed in limine.

Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474 rel.

Shah Faisal Utmankhel for Petitioner.

Nemo for Respondent.

Date of hearing: 16th July, 2014.

2015 M L D 690

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

MUHAMMAD NAWAZ KHAN---Appellant

versus

The STATE and another---Respondents

Jail Criminal Appeal No.834 of 2010, decided on 9th May, 2010.

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

----Art. 46---Dying declaration---Scope---Dying declaration was accepted on the theory that person on death bed would speak the truth---Where the accused had no occasion of cross-examination, the court should insist that dying declaration should be of such a nature as to inspire full confidence of court in its truthfulness and correctness.

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

----Art. 46---Dying declaration---Admissibility---Scope---Scribe of the report and dying declaration was not produced before the court being dead---Nothing was on record to establish that prior to death of the deceased, he was examined---As to why dying declaration was not recorded in presence of doctor was not explained---No certificate was on record as to whether the dying man was in conscious, semi-conscious, oriented in space and time and was able to make rational talking---What prevented the prosecution for not obtaining fitness certificate was not on record---Dying declaration of the deceased, in circumstances, was not worth reliance.

Farman Ullah v. Qadeem Khan 2001 SCMR 1474; Shahrukh v. The State 2013 PCr.LJ 237 and Sajan Nadeem v. The State 2012 YLR 636 rel.

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

----Ss. 302 & 96---Qanun-e-Shahadat (10 of 1984), Art. 46---Criminal Procedure Code (V of 1898), S. 145---Qatl-i-amd---Self defence---Scope---Appreciation of evidence---Dying declaration---Time was not mentioned in the report of doctor when he examined the deceased---Statement of deceased recorded in presence of his relative was not worthy of credence---Material contradictions were found ocular account, site plan and dying declaration---Presence of eye-witness on the spot had not been established---Statement of eye-witness was recorded by the police after seventeen (17) days from the occurrence which could not be relied upon in a case involving capital punishment---Eye-witness made improvements in his court statement---Statement of eye-witness was not in line with the contents of dying declaration---Eye-witness was brother of the deceased and his presence on the spot was doubtful---Testimony of eye-witness appeared to be as afterthought---Nothing was on record to disbelieve the confession---Self-defence could only be considered when a person was threatened with danger but did not exceed the limit fixed---Prosecution had failed to prove its case beyond any shadow of doubt---Case of accused would fall under the ambit of self-defence---Abscondence alone could not be made basis for recording conviction---Appeal was accepted and accused was acquitted from the charge.

Nazim Khan and 2 others v. The State 1984 SCMR 1092; Muhammad Sadiq's case PLD 1960 SC 223; 1984 SCMR 930; 1993 SCMR 550; 1998 SCMR 570; 2008 SCMR 1221 and Rahat Ali's case 2010 SCMR 584 rel.

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

----Art. 42---Confessional statement---Scope---Confessional statement which was recorded after fulfilling all the formalities even if retracted, but found to be voluntary and true and supported by corroborative material could solely be made the basis for conviction---When two interpretations from the evidence were possible, one favouring the accused and other to the prosecution, then interpretation favourable to the accused was required to be taken into consideration---If conviction was based solely on the confessional statement of the accused in absence of prosecution evidence then said statement was to be taken as a whole and from that statement, if any offence was made out then the accused could be convicted.

Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others 2001 SCMR 988 and Allah Nawaz v. The State 2009 SCMR 736 rel.

Aurangzeb for Appellant.

Amir G. Khan and Muhammad Javed Khan, DAG for Respondents.

Date of hearing: 9th May, 2013.

2015 M L D 708

[Peshawar]

Before Muhammad Daud Khan, J

Mst. SHABANA BEGUM and 2 others---Applicants

versus

NAEEM-U-DIN---Respondent

Transfer Application No. 11-B of 2014, decided on 12th August, 2014.

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

----S. 25-A---Transfer of case---Convenience of female and children---Scope---Both wife and husband instituted suits at different places---Wife filed an application for transfer of case of husband at the place where her suit was pending---Validity---Husband had filed suit at place "X" prior to the institution of suit of wife at place "Y"---Court should see the convenience of female and children while deciding transfer application---Wife was Parda observing lady having two children who had to look after both of them---Husband could undergo hardship but lady and suckling baby could not bear the same---Distance between two places was so far that wife along with her babies could not travel and appear before the court at place "X" easily---Family cases should be tried by one and the same court at the place where wife was residing to avoid any conflicting judgment---Suit filed by husband was withdrawn and entrusted to the Family Court at place "X" for adjudication in accordance with law---Application for transfer of case was accepted in circumstances.

Muhammad Nisar Khan Sokari for Applicants.

Syed Umar Ali Shah for Respondent.

2015 M L D 769

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

SAIL KHAN---Appellant

versus

MUZAFAR KHAN and another---Respondents

Criminal Appeal No.129-B of 2011, decided on 10th June, 2013.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Prosecution witnesses and the injured complainant, had close relationship with each other, and also with the deceased; keeping in view their blood relation inter se, their status could not be excluded from the category of interested witnesses---FIR had been lodged after preliminary inquiry and consultation, which had lost its evidentiary value---FIR, which was not recorded at Police Station, would suffer from inherent doubts---Eye-witnesses had made certain dishonest improvements just to fill up the lacuna left in the prosecution case, and to bring in conformity the prosecution story with other evidence collected during investigation---Such improvements, once found to be deliberate and dishonest, cast serious doubt on the veracity of the witnesses, making their testimony unreliable---Site plan had negated the version of prosecution witness---Witnesses, who had furnished the ocular account, were not consistent with each other on material aspects of the case---Contradictions inter se were noticed in the statements of the witnesses, right from the moment of incident till their arrival in the hospital and lodging report---Story furnished by both the prosecution witnesses, ran contrary to each other, which being doubtful would be fatal for the prosecution case---Conviction must be based on unimpeachable evidence; and any doubt that would arise in the prosecution case, must be resolved in favour of accused---No doubt, substitution of innocent person, where single accused was named in a murder case, was a rare phenomenon, however, that would depend from case to case---In the present case, occurrence had not taken place in the mode and manner as narrated by the complainant---Eye-witness account, was not in consonance with FIR and statement of the complainant, who had not given number of fire shots made by accused---Complainant, no doubt, had sustained firearm injury, but injuries on the person of an eye-witness, would not raise any presumption that whatever he was telling, was the truth---Evidence, in the shape of recovery of crime empties from the place of accused, in absence of any matching report would not be helpful to the prosecution---Abscondence of accused alone, was not sufficient to convict him, when ocular testimony stood already discarded---Medical evidence, being not a corroborative piece of evidence, but only supporting evidence, would not be sufficient for conviction of accused in capital charge---Trial Court, in circumstances, had reached to a wrong conclusion by convicting and sentencing accused---Conviction and sentence recorded by the Trial Court against accused, were set aside, in circumstances.

Iftikhar Hussain and others v. Muhammad Fazil 2004 SCMR 1185; Allah Bachaya and another v. The State PLD 2008 SC 349; Muhammad Saleem v. Muhammad Azan 2011 SCMR 474; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Hakim Ali v. The State 1971 SCMR 432; Muhammad Farooq v. The State 2006 SCMR 1707; Abdul Khaliq v. The State 2006 SCMR 1886; Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 and Muhammad Yaqoob v. Manzoor Hussain 2008 SCMR 1549 rel.

(b) Criminal trial---

----Witness---Interested witness---Evidence of interested witness---Rule of corroboration---Rule of corroboration in the case of interested witness, was not an inflexible rule---Such rule could be dispensed with in appropriate cases---In order to bring the case out of the scope of general rule, the evidence of an interested witness, was to be scrutinized very carefully---Firstly, truthfulness of such witness, was to be tested on the touchstone of the inherent merit of his statement; and secondly, if his statement was found reasonable, probable or plausible, and reliable, then same could be accepted and relied upon without corroboration.

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

----S. 154---FIR, significance of---FIR had a very significant role to play being a corner-stone of the prosecution case to establish guilt of accused, involved in the crime---Any doubt in lodging of the FIR and commencement of investigation would give rise to a benefit in favour of accused.

(d) Criminal trial---

----Medical evidence---Such evidence, being not a corroborative piece of evidence, but only supporting evidence, would not be sufficient for conviction of accused in capital charge.

Nasrullah v. The State 1987 SCMR 914 rel.

Khawaja Muhammad Khan (Gara) for Appellant.

Ahmed Farooq Khattak, Additional Advocate-General for the State and Sakhi Janan for Respondent.

Date of hearing: 10th June, 2013.

2015 M L D 824

[Peshawar]

Before Abdul Latif Khan, J

MUHAMMAD AMJAD WALI---Petitioner

versus

HAKEEM KHAN---Respondent

C.Rs. Nos.454 and 515of 2011, decided on 4th November, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 28---West Pakistan Land Revenue Rules, 1968, R.34---Suit for pre-emption---Notice of Talb-e-Ishhad---Proof---Courts below decreed the suit---Defendants could not discharge the burden to prove that plaintiff had prior knowledge of the sale---Entry in Roznamcha Waqiati did not show receipt of Fard by plaintiff and such entry having been made in violation of R.34 of the West Pakistan Land Revenue Rules, 1968, presumption of truth was not attached to such entry---Patwari could not depose to show obtaining of Fard by plaintiff, instead, he had to depose as custodian of record, without comments under provisions of Qanun-e-Shahadat, 1984---Even otherwise, an admission made by witness against fact would not be binding on the party and such admission had no conclusive effect---Fee obtained for issuing Fard had to be entered in Register Ujrat but that register was not produced in support of Roznamcha Waqiati---Defendants colluded with Patwari to show that plaintiff had prior knowledge of sale---Findings of courts below were maintained---Revisions were dismissed.

Muhammad Ishaq Khan for Petitioner.

Muhammad Sajid Awan for Respondent.

Date of hearing: 4th November, 2013.

2015 M L D 860

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khatak, JJ

JAVED IQBAL---Petitioner

versus

Mst. MARYAM and another---Respondents

Writ Petition No.606-M of 2012, decided on 19th March, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dower and maintenance allowance---Contention of husband was that wife had waived off her dower through Iqrarnama---Suit was decreed concurrently---Validity---Dower was fixed as ten (10) tolas of gold which had not been disputed by the husband---Only one marginal witnesses of Iqrarnama was produced in the court---Scribe of Iqrarnama was not produced and witnesses of the same were contradictory on material points---Nobody was present on behalf of wife at the time of execution of Iqrarnama---Findings of both the courts below with regard to non-consideration of deed (Iqrarnama) were in accordance with law---Issue of maintenance was rightly decided by the courts below keeping in view the financial status of husband---No illegality or irregularity had been committed by the courts below---Constitutional petition was dismissed in circumstances.

Muhammad Iqbal for Petitioner.

Khawaja Salahuddin for Respondents.

Date of hearing: 19-3-2014.

2015 M L D 927

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

FARID ULLAH and others---Appellants

versus

The STATE and others---Respondents

Criminal Appeal No.89-B of 2012, decided on 26th June, 2013.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, quantum of---Mitigating circumstance---FIR had been reported with promptitude with all the necessary details of the incident, eliminating the possibility of concoction or deliberations on behalf of the prosecution---Parties were co-villagers inter se and were known to each other prior to the occurrence---Substitution of accused persons for the actual assailants was unbelievable, as one could not expect from father of deceased of advance age, to substitute the real culprits with that of accused persons, which was otherwise a rare phenomenon---Blood stained earth, secured from the place of occurrence, and last worn blood stained garments of the deceased taken into possession, were sent to Forensic Science Laboratory for Serologist opinion---Analyst report affirmed that it was human blood, and of the same group; which had proved that the deceased was done to death on the same place as alleged by the complainant in his report---Crime spot, in circumstances, had been fully established from said material pieces of circumstantial evidence---Autopsy report of the deceased had established that deceased had been done to death with firearms---Role of effective firing was assigned to accused persons---Complainant who was solitary eye-witness of the incident, had furnished the ocular account; he had been subjected to lengthy cross-examination, but he stood firm to his stance and successfully passed the test of cross-examination---No material contradiction, or any dent could be made by the defence testimony---Place of occurrence and other particulars of the incident, were further supplemented through cross-examination of said solitary eye-witness---No doubt complainant was the real father of the deceased, but his mere close relation, would not discard his testimony on the sole ground of his relationship---Straightforward and confidence inspiring statement of complainant, was corroborated by circumstantial evidence and medical evidence---Minor discrepancies, in the statement of complainant, would not be fatal for the prosecution case, as he was examined after a long period of seven years---No enmity existed between the parties which could prompt the complainant to falsely implicate accused persons---Three accused, were charged in the present case for murder of single deceased---Deceased had sustained multiple firearm injuries on his person; and it was not discernable from the available evidence, as to shot of which of the three accused proved fatal, which could be a mitigating circumstance, in the prosecution case---Condign punishment provided for the offence, would not be a step justified in law, in circumstances---Trial Court, was justified in sentencing accused to imprisonment for life---Counsel for the complainant had failed to make out a case of enhancement of sentence, in circumstances---Trial Court, in circumstances, had properly appreciated the evidence available on record, and was justified in convicting accused persons and in sentencing accused to imprisonment for life.

Mawas Khan v. The State PLD 2004 SC 330; Saeed Akhtar v. The State 2000 SCMR 383; Muhammad Iqbal v. The State PLD 2001 SC 222; Zulfiqar Ahmad and others v. The State 2011 SCMR 492; Mali v. The State 1969 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR 530; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659 Muhammad Mansha v. The State 2001 SCMR 199 and Farooq Khan v. State 2008 SCMR 917 rel.

(b) Criminal trial---

----Witness---Interested relative witness---Conviction could be based on statement of a witness, who was closely related to the deceased, provided same was confidence inspiring; and intrinsic worth of the same rang true, and satisfied conscience of the court---Merely on the ground of inter se relation, the statement of a witness could not be brushed aside.

Iqbal alias Bala v. The State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmad's case 1976 SCMR 161 and Zulfiqar Ahmad and others v. The State 2011 SCMR 492 rel.

(c) Criminal trial---

----Witness---Contradictions in the prosecution evidence---Said contradictions, in the prosecution evidence, were to be considered as fatal, which would totally negate the prosecution case---Mere superficial discrepancies, occurring in the statements of the prosecution witnesses, which otherwise were natural, would not be considered as fatal---Such like discrepancies in the statements of the prosecution witnesses, were inherent proof of their truthfulness that they had come forward with natural account of the events.

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

----S. 302(b)---Qatl-i-amd---Conviction---Conviction, in murder case, could be based on the testimony of a single witness, if the court was satisfied that the witness was reliable---Emphasis was on quality of evidence, and not on its quantity.

(e) Criminal trial---

----Witness---Minor discrepancies in the evidence of witness---Effect---Court was not supposed to decide the matter in a mechanical manner by taking minor discrepancies as a tool to dislodge a genuine case---Court was to go in depth of the evidence and assess it at the touchstone of natural course of events; and human conduct in normal pursuit of the society by scrutinizing its intrinsic worth, and if would come to the conclusion on its own assessment that such an occurrence had in fact taken place, it would become an obligation to redress the grievance of aggrieved party.

(f) Criminal trial---

----Motive---Non-proving of motive---Effect---Requirement of law was not to prove the motive by all means; and accused were not entitled to acquittal merely for non-proving the motive, if otherwise, guilt of accused was established through cogent, coherent, trustworthy and confidence inspiring evidence of unimpeachable character---Prosecution was not duty bound to establish a motive as to why the offence had been committed by accused---Where there was a clear proof of motive for the crime, that would lend additional support to prosecution case.

Muhammad Ilyas v. The State PLD 2001 SC 333; Mirza Khan and another v. The State 2005 SCMR 1110; Waris Khan v. The State 2001 SCMR 387; Talib Hussain v. The State 1995 SCMR 1776; State v. Sobharo 1993 SCMR 585 and Mushtaq Ahmad v. Muhammad Siddique PLD 1975 SC 160 rel.

(g) Criminal trial---

----Recovery of crime weapon---Evidentiary value---Recovery of crime weapon or empties, was not a mandatory requirement of law, but was a circumstantial piece of evidence, which would tend to corroborate the other pieces of evidence, i.e. ocular account, motive, medical evidence, and any other circumstances which could deem relevant---Absence of such corroborative evidence would not be fatal in the direct credible evidence.

(h) Criminal Trial---

----Site plan---Evidentiary value---Site plan was not a substantive document to be used to contradict the ocular account, and could not be given preference over the direct evidence of truthful eye-witness of the occurrence.

Abdur Rauf v. The State 2003 SCMR 522 and Jafar Ali v. The State 1998 SCMR 2669 rel.

(i) Criminal trial---

----Conviction---Court to keep in view all the facts and circumstances of the case, and if, its judicial mind was satisfied, it should record the conviction, though there might have been some technical lapses on the part of the Investigating Agency or prosecution.

(j) Criminal trial---

----Medical evidence---Evidentiary value---Medical evidence was just a corroborative piece of evidence, which did not identify the assailant, nor could it overweigh the straightforward and confidence inspiring ocular account furnished by eye-witness.

Zakir Hussain v. The State 2008 SCMR 222 and Saeedullah Khan v. The State 1986 SCMR 1027 rel.

Khawaja Muhammad Khan (Gara) for Appellants.

Faridullah Khan, DAG and Iftikhar Ahmad Durani for Respondents.

Date of hearing: 26th June, 2013.

2015 M L D 1022

[Peshawar]

Before Mazhar Alam Khan Miankhel and Assadullah Khan Chamkani, J

YAR MUHAMMAD---Appellant

versus

The STATE and another---Respondents

Criminal Appeal No.687 of 2010, decided on 28th February, 2013.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Complainant himself had not seen accused while firing at the deceased---Complainant had not mentioned the name of a female as eye-witness of the occurrence in his first report, which had created doubt regarding the presence of said female on the spot---Report regarding the occurrence was lodged on the spot where the dead body of the deceased was placed for about three hours till the arrival of Police to the spot---Complainant had admitted that Police was not informed regarding the occurrence---Had the complainant been present on the spot he could have shifted the dead body of the deceased, either to Police Station or Civil Hospital and made report regarding the occurrence, but said non-shifting had suggested that either they had not seen the assailants due to darkness, or the occurrence had not taken place in the manner and mode as advanced by the prosecution---Contradictions existed in the statements of eye-witnesses and the Investigating Officer---Abnormal delay of about three hours in lodging report; it could safely be held, in circumstances, that time was consumed in deliberations and consultations, particularly, when the deceased was lying for three hours in the house---Neither external nor internal examination of the dead body of the deceased was conducted, and such failure had made the case of prosecution dubious, because, it could not be ascertained as to whether the deceased died due to fire arm injury or otherwise---No empty had been recovered from the spot and prosecution had failed to establish alleged motive---Occurrence was unseen and ocular testimonies of interested witnesses, were not corroborated by independent evidence---Prosecution having failed to prove the guilt of accused through unimpeachable ocular testimony, capital punishment could not be maintained on such like evidence---Conviction and sentence awarded to accused, were set aside and he was acquitted of the charges levelled against him and he was set free, in circumstances.

(b) Criminal trial---

----Motive---Motive was a double edged weapon, which would cut both ways---If it could be a reason for aggression, equally it could be a reason for false implication of accused in an unseen occurrence.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Awarding of capital punishment---Strict principle of criminal justice was that to award a person capital punishment, participation of each accused in the commission of the crime had to be established in a reasonable manner by the prosecution, otherwise, on mere bald statement of one or two witnesses, convicting and awarding such capital punishment, could not be justified under any circumstance.

(d) Criminal trial---

----Appreciation of evidence---Prosecution was always bound to prove its case beyond any shadow of doubt---General rule of appreciation of evidence in criminal jurisprudence, is that want of interest or absence of enmity does not stamp the statement of a particular witness with presumption of truth and that much depended on the intrinsic value of the statement of a witness---Real test is as to whether the statement of a witness is in consonance with the probabilities; whether it fits in with the other evidence, and whether it inspires confidence in the mind---To disbelieve a witness, it is not necessary that there should be numerous infirmities---If there is one which impeached the credibility of the witness, that can make the entire statement doubtful.

Muhammad Iqbal v. The State 1984 SCMR 930; Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639 and Haroon alias Harooni v. The State and another 1995 SCMR 1627 rel.

(e) Criminal trial---

----Conviction, basis of---Conviction must be based on unimpeachable evidence, and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of accused.

Muhammad Khan and another v. The State 1999 SCMR 1220 rel.

(f) Islamic jurisprudence---

----Crime and punishment---Conviction, basis of---Basic principle of Sharia/Law was that conviction must be based on evidence beyond any shadow of doubt, because the damage resulting from erroneous sentence, was irreversible; and the principle that it was better to acquit guilty person than to punish an innocent one.

Qazi Zaki-ud-din for Appellant.

Abdul Qayyum for the Complainant.

Muhammad Javed Khan (DAG) for the State.

Date of hearing: 28th February, 2013.

2015 M L D 1122

[Peshawar]

Before Abdul Latif Khan, J

FAZAL FAQIR---Petitioner

versus

SAID HAROON KHAN and 3 others---Respondents

C.R. No.654 of 2007, decided on 1st April, 2014.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987) ---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 74---Talb-i-Ishhad, performance of---Scope---Non-sending of original notice of Talb-i-Ishhad to the vendee---Effect---Contention of plaintiff was that copy of notice of Talb-i-Ishhad carried original signatures and thumb impression of the executant and marginal witnesses and same could be considered as original one---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court on the ground that original notice of Talb-i-Ishhad was not sent to the vendee---Validity---Pre-emptor after making Talb-i-Muwathibat was required to send notice of Talb-i-Ishhad not later than two weeks from date of sale or knowledge whichever may be earlier attested by two truthful witnesses confirming his intention to exercise his right of pre-emption---Notice of Talb-i-Ishhad had to be sent in the mode and manner as prescribed under S.13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987 and copy of the same could not be sent to the vendee---Plaintiff had not sent notice to the vendee rather he opted to send copy of the same which could not be treated as original---Copy of document could not be a primary evidence but same was a secondary evidence---One notice of Talb-i-Ishhad was scribed in the names of three vendees which was against the provisions of S.13 of Khyber Pakhtunkhwa Pre-emption Act, 1987 as serving notice of Talb-i-Ishhad on each of the vendee separately was necessary---Plaintiff had not mentioned the date of sending notice of Talb-i-Ishhad in the plaint and he had failed to comply with the provisions of S.13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Plaintiff was rightly non-suited by the Appellate Court---Revision was dismissed in circumstances.

Shoukat Hayat's case 2005 YLR 60 and Hikmat Ali shah v. Mst. Mira 2000 CLC 336 ref.

Rooh-ul-Qadoos v. Muhammad Rafique and 2 others 2002 CLC 379; Azam Khan v. Shafi Ullah Khan 2011 MLD 1966; Shoukat Hayat v. Liaqat 2005 YLR 60 and Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559 rel.

Mazaullah Barkandi for Petitioner.

Muhammad Amin Khan for Respondents.

Date of hearing: 1st April, 2014.

2015 M L D 1140

[Peshawar]

Before Malik Manzoor Hussain and Mrs. Irshad Qaiser, JJ

CHANZEB and another---Petitioners

versus

Mst. YASMEEN BIBI and others---Respondents

Writ Petition No.515-A of 2009, decided on 10th June, 2014.

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

----Ss. 14 & 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Dissolution of marriage on the basis of Khula---Scope---Appeal---Competency---Wife filed suit for dissolution of marriage which was decreed on the basis of khula---Contention of wife was that plea of cruelty was not only alleged in the plaint but same had been proved through cogent evidence---Validity---Wife had claimed dissolution of marriage on the basis of cruelty and second marriage of husband etc.---Such pleas were specifically taken in the plaint and issue was also framed---Serious allegations were levelled against the husband in the statement recorded by the wife but husband had failed to record his statement and controvert the said allegations rather his attorney appeared for deposing on his behalf---Spouse could depose with regard to material relations in family cases and no one could be a better substitute---Husband had contracted second marriage which by itself was sufficient ground to dissolve marriage---Decision given or decree passed by Family Court was appealable---Logic behind non-provision of appeal in the dissolution case was to protect wife from costly and prolonged litigation---Wife could file an appeal against judgment or decision of Family Court where her suit was not decreed on the basis of cruelty or other grounds recognized under Family Laws even if marriage was dissolved on the basis of khula---Appeal filed by the wife was competent as she had challenged the condition through appeal---If claim for dower was refused then same was appealable---Family Court had committed wrong while dissolving marriage on the ground of khula despite of availability of grounds alleged by wife---Where decree for dissolution of marriage was passed on the basis of cruelty and court had come to the conclusion that due to husband's machismo attitude and displaying his masculine aggressiveness had compelled the wife to ask for dissolution of marriage even on the ground of khula then court should refuse the return of dower amount or dowered property to husband or relieve him from payment of outstanding dower---Appellate Court had rightly held that wife was entitled to the dowered house while dissolving the marriage on the basis of cruelty---Constitutional petition was dismissed in circumstances.

Muhammad Ilyas Khan for Petitioners.

Syed Amjad Ali Shah for Respondents.

Date of hearing: 10th June, 2014.

2015 M L D 1173

[Peshawar]

Before Abdul Latif Khan, J

Dr. ABDUL WAHEED---Appellant

versus

AHMAD SAEED---Respondent

R.F.As. Nos.28 of 2009 and 5 of 2010, decided on 27th May, 2013.

Malicious Prosecution---

----Factors to be considered for grant of decree for suit for damages were that plaintiff was prosecuted by defendant; that prosecution ended in plaintiff's favour; that defendant acted with reasonable and probable cause; that the offence was actuated by malice; that the proceedings had interfered with plaintiff's liberty and also affected his/her reputation and that plaintiff had suffered damages---No evidence of loss in business and expenses on litigation in the present case was brought on record---Evidence was not available to show the status of plaintiff and humiliation suffered by him---Plaintiff did not remain in judicial or Police lock-up and was exonerated under S.169, Cr.P.C.---Aggrieved party, for grant of special damages, had to prove each item of loss on strength of evidence whereas special damages could be awarded by the court exercising its discretion in view of attending circumstances---Trial Court could not award damages without any break-up of relevant heads under which damages were sought by plaintiff---Appeal of defendant was accepted while suit of plaintiff was dismissed.

Salahuddin Khan Gandapur for Appellant.

Muhammad Yousaf Khan Kundi for Respondent.

Date of hearing: 27th May, 2015.

2015 M L D 1210

[Peshawar]

Before Waqar Ahmad Seth, J

Mst. MUMTAZ BIBI---Petitioner

versus

MUHAMMAD SAIN---Respondent

C.R. No.57 of 2008, decided on 1st November, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Talbs, performance of---Pardanasheen lady---Performance of demands of talbs by attorney---Effect---Plaintiff was co-owner in the suit property whereas vendee had no such qualification---Plaintiff made jumping demand in presence of informer and her son and sent notices of Talb-i-Ishhad---Pre-emptor had produced evidence in line with the plaint and proved her superior right of pre-emption beyond any shadow of doubt against the vendee---Factum of gaining of knowledge by the plaintiff and performance of requisite talbs stood admitted by the defendants---Pre-emptor being Pardanasheen lady executed special power of attorney who did not go to any public place/office and special attorney arranged everything---Pardanasheen lady could not be compelled to come out of her private place and by not doing so she would not lose her legal and constitutional rights---Trial Court passed well-reasoned judgment whereas Appellate Court had failed to appreciate the legal proposition in its true spirit---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was accepted in circumstances.

2012 SCMR 1106 and 2011 CLC 578 ref.

2012 SCMR 1106 and 2011 CLC 578 distinguished.

Sultan Ahmed for Petitioner.

Qazi Ghulam Rauf for Respondent.

Date of hearing: 1st November, 2013.

2015 M L D 1228

[Peshawar]

Before Mrs. Irshad Qaiser, J

SAADULLAH KHAN---Petitioner

versus

SABIR KHAN---Respondent

C.R. No.123-A of 2013, decided on 21st March, 2014.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-i-Muwathibat, performance of---Requirements---Right of pre-emption could not be exercised unless and until pre-emptor had performed Talb-i-Muwathibat immediately after hearing about the sale in the same meeting---Delay in performing such Talb was fatal to the right of pre-emption---Right of pre-emption would extinguish if such Talb was not performed instantly on coming to know the sale and even short delay would not be excused---Pre-emptor was required to perform and fulfil the requirements of Talb-i-Muwathibat meticulously and any failure with such regard would deprive him of success in getting a pre-emption decree---Plaintiff, in the present case, had not made immediate demand in the same meeting on receipt of information with regard to sale of suit land---Both the courts below had rightly held that pre-emptor had failed to fulfil the requirement of Talbs---Pre-emptor could not substantiate his claim by producing convincing, cogent, reliable and confidence inspiring evidence to prove Talbs in accordance with law---Both the courts below had legally and correctly appreciated evidence produced by the parties and rightly rejected the claim of the plaintiff---No misreading and non-reading of evidence or jurisdictional error had been pointed out by the plaintiff---Revision was dismissed in circumstances.

1997 MLD 2945; Kitab-Al-Shufa of Fatawa-Alamgiri and Fatawa-i-Kazee Khan; Saying of Holly Prophet (PBUH); 2000 CLC 1127; 1996 CLC 902; 2000 CLC 1853; 2011 MLD 974; Naimat Ali v. Abdul Ghaffar 2000 CLC 1067 and PLD 2007 SC 302 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---"Talb-i-Muwathibat"---Meaning---"Talb-i-Muwathibat" was an act of prospective pre-emptor, coming to know the factum of a sale emanating from sitting or meeting i.e. Majlis, declaring intention to exercise right of pre-emption immediately on gaining knowledge of such sale.

Hashmat Shaiq for Petitioner.

Malik Rab Nawaz and Javed Habib for Respondent.

Date of hearing: 21st March, 2014.

2015 M L D 1295

[Peshawar]

Before Malik Manzoor Hussain and Haider Ali Khan, JJ

SHAKEEL---Petitioner

versus

UNIVERSITY OF MALAKAND through Vice-Chancellor and 5 others---Respondents

Writ Petition No.402-M of 2014, decided on 13th February, 2015.

Constitution of Pakistan---

----Art. 199---Bye Laws for conduct of examination of University of Malakand 2003, R. 28---Constitutional Petition---Educational Institution---Gold medal, entitlement to---Passing of examination in first attempt---Make-up Examination---Status---Petitioner was student of B.Sc. (Honours) and he had passed all the semesters with distinction---Gold medal was awarded to respondent who had been absent in paper of Organic Chemistry in 2nd semester allegedly due to flood in their area---Petitioner, however, appeared in the said paper and passed examination with distinction---Respondent alongwith other absent students later appeared in make-up examination and moved an application to consider make-up examination as final examination---Controller of Examination advised against said application---Petitioner approached university officials to assert his right but University nominated respondent as deserving candidate for Gold Medal---Validity---Passing of examination in first attempt was condition precedent for award/eligibility of Gold Medal and nomination of respondent for gold medal was illegal and without lawful authority---High Court allowed writ petition and directed the authorities to award the medal to the petitioner in case he was on merit according to the Bye-Laws.

Ramiza Tahir v. University of Punjab through Vice-Chairman and 2 others 2005 YLR 737 rel.

Murad Akmal Mir Khel for Petitioner.

Muhammad Yar Mulezai for Respondents.

Date of hearing: 13th February, 2015.

2015 M L D 1324

[Peshawar]

Before Yahya Afridi and Muhammad Daud Khan, JJ

SHUJAT ALI---Appellant

versus

The STATE through Advocate General, Khyber Pukhtunkhwa---Respondent

Cr. A. No.603-P of 2012, decided on 25th March, 2015.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Huge quantity of 147 Kgs. charas and 1 Kg. opium, were recovered from the secret cavities of the vehicle in question---Little quantity of charas from each packet (recovered) was obtained, mixed, and from mixture, 3/3 samples each 10/10 grams was separated while three samples each weighing 10 grams of opium was also separated---Investigating Officer had sent one sample of charas and opium each for chemical analysis---Prosecution was under legal obligation to have first weighed every packet, and then separate a small quantity from each packet, properly sealed and send them for chemical analysis---Such legal requirement had not been complied with in the present case---Sample sent to Forensic Science Laboratory for analysis could not be said to be representative sample in circumstances---Quantum of sentence awarded to accused, was not sustainable in the eyes of law because one sample of 10 grams of amalgamated charas and one sample of 10 grams of opium, were sent for chemical analysis, report whereof was received as positive---Accused, in circumstances, was liable to be held responsible for having or only 1 Kg. of charas and 1 Kg. of opium---Conviction of accsed under S.9(c) of Control of Narcotic Substances Act, 1997, was maintained, but his sentence was reduced from imprisonment for life to seven years' R.I., while the fine imposed upon accused was ordered to remain intact.

Ameer Zeb v. The State PLD 2012 SC 380 and Mst. Nasreen Bibi v. The State 2014 SCMR 1603 ref.

Malik Amjad Inayat for Appellant.

Safdar Khan Standing Counsel for the State.

Date of hearing: 25th March, 2015.

2015 M L D 1342

[Peshawar]

Before Rooh-ul-Amin Khan, J

Dr. MUHAMMAD SAFDAR---Appellant

versus

Mst. SHAISTA AMJAD---Respondent

F.A.O. No.48-A of 2013, decided on 20th February, 2015.

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

----S. 17(8)(9)---'Wilful default'---Striking off defence---Tentative rent order, non-compliance of---Default of few days in deposit of tentative rent---Rent Controller passed tentative rent order and directed the tenant to deposit the same within specified period---Tenant deposited rent with delay of few days every month---Rent Controller rejected ejectment petition of landlord---Validity---When tenant failed to deposit the amount of rent before specified date or before 5th of each month, under S.17 (9) of Cantonments Rent Restriction Act, 1963 his defence would be struck off---Even one day's delay making the deposit would be 'default' within the meaning of S.17(9) of Cantonments Rent Restriction Act, 1963-­-When default was established Rent Controller had to struck off right to defend and put landlord in possession of suit premises---Appeal was allowed in circumstances by setting aside order of Rent Controller.

M.H. Musaddaq v. Muhammad Zafar Iqbal and another 2004 SCMR 1453; Safeer Travels (Pvt.) Ltd., v. Muhammad Shafi through Legal Heirs PLD 2007 SC 504; Muhammad Jan v. Khadim Hussain 1973 SCMR 243; Ghulam Ahmad Pirzada v. Additional District Judge, Lahore and 2 others 1982 SCMR 616; Abdul Qayyum Paracha v. Ghulam Hussain and others 1985 SCMR 580; Fazal-ur -Rehman v. Mst. Sarweari Begum and others 1986 SCMR 1156; Province of Punjab and others v. Muhammad Jalil-ur-Rehman 1986 SCMR 1705; Muhammad Yousaf v. Muhammad Bashir and others 1990 SCMR 557; Muhammad Amin v. Ghulam Nabi and 2 others PLD 1990 SC 1201 and Messrs AGFA Colour Services (Pvt.) Ltd., v. Muhammad Asad 2006 SCMR 1537 ref.

Malik Waseem Fazal for Appellant.

Muhammad Shoaib Khan for Respondent.

Date of hearing: 20th February, 2015.

2015 M L D 1384

[Peshawar]

Before Lal Jan Khattak, J

MUHAMMAD ZAMIN MIAN and 4 others---Petitioners

versus

SHAMSHAD and 16 others---Respondents

C.R. No.948-M of 2012, decided on 17th June, 2014.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Appeal---Disposal of appeal pending miscellaneous application---Scope---Appellate Court decided the appeal sans a decision on miscellaneous applications---Court was required to decide miscellaneous application filed by any of the parties either prior to disposal of the lis or along with the same but same should not be left undecided---Appellate Court had failed to exercise the jurisdiction vested in the same by law---Impugned judgment and decree passed by the Appellate Court were set aside and case was remanded for disposal of appeal afresh along with miscellaneous applications within a specified period---Revision was accepted in circumstances.

Abdul Jalal for Petitioners.

Muhammad Haleem Khan for Respondents.

Date of hearing: 17th June, 2014.

2015 M L D 1408

[Peshawar]

Before Malik Manzoor Hussain, J

Sayed DILAWAR JAN and 2 others---Petitioners

versus

MEFTAH UDDIN and 3 others---Respondents

C.R. No.152 of 2011, decided on 25th November, 2014.

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

----O.VII, R.11 & S.11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Plaint, rejection of---Scope---Res judicata, principle of---Applicability---Dispute with regard to suit property had already been decided between the parties---Plaintiffs were well within knowledge of all the decisions taken and compromise effected with regard to suit property---Plaintiffs never challenged the judgment passed in favour of defendants---Principle of res judicata was based on the wisdom that finality would be attached to the decision announced by the court of competent jurisdiction---Individual should not be vexed twice---Decision pronounced by a court of competent jurisdiction in between the parties or their successors unless the same was reversed or annulled, would remain in field for all time to come---Once it was proved that with regard to the suit property the matter was finally resolved by a court of competent jurisdiction, it was incumbent upon the Trial Court to invoke the provisions of O. VII, R. 11, C.P.C. in order to put an end to the litigation at the very initial stage---Suit of plaintiffs on the face of record was barred by law and there was no need for recording of evidence or full-fledged trial---Appellate Court had rightly appreciated the matter and rejected the plaint by invoking the provisions of O. VII, R. 11, C.P.C.---Revision was dismissed in circumstances.

Noor Din and another v. Additional District Judge, Lahore 2014 SCMR 513 ref.

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

----S. 11---Res judicata---Scope---Res judicata would be applicable where matter directly and substantially in issue in the subsequent suit had been directly and substantially in issue in-between the same parties or between parties under whom they or any of them had claimed, with the exception that court trying the former suit had been a court of competent jurisdiction to try subsequent suit.

Farid Ullah Khan for Petitioners.

Hussan-ul-Manab for Respondents.

Date of hearing: 25th November, 2014.

2015 M L D 1438

[Peshawar]

Before Malik Manzoor Hussain and Haider Ali Khan, JJ

GHANI-UR-REHMAN---Appellant

versus

The STATE through Additional Advocate-General and another---Respondent

Criminal Appeal No.251-M of 2014, decided on 11th March, 2015.

Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 23(3) & 23-A---Illegal dealing with exchange of foreign currency---Appreciation of evidence---Federal Investigation Agency (complainant) raided shop of accused without obtaining any search warrant, either from the Tribunal/Sessions Judge, or from the concerned Magistrate---Despite the fact that the raid was conducted on the basis of prior information, the Investigating Officer, neither associated independent witnesses with the search and seizure process, nor the local Police, within whose jurisdiction the raid was carried out---Such act of the FIA Officials cast serious doubt on the recovery itself---Sessions Judge, did not conduct the proceedings in question in the capacity of Tribunal as envisaged in S.23-A of the Foreign Exchange Regulation Act, 1947---Even charge was framed, not as a Tribunal, but as Sessions Judge---Section 23(3) of Foreign Exchange Regulation Act, 1947, postulated that the Tribunal would not take cognizance of any offence punishable under said S.23(3), except upon complaint in writing by the authorized person in that behalf by the Central Government or the State Bank---Foreign Exchange Regulation Act, 1947, though, had been extended to Swat and Malakand, but no mechanism for the enquiry and investigation had been provided under that Act and the cognizance of the offence was taken without obtaining permission from authorized person---Search and seizure/recovery, were made in the case, in gross disregard of the law and rules on the subject---Impugned judgment of conviction of accused, was set aside and accused was acquitted of the charge, levelled against him---Appellant being on bail, his sureties were discharged from the liability of bail bonds---Case property, if any, be returned to accused after expiry of period of appeal/revision.

Ghulam Sarwar v. The State 2013 PCr.LJ 12 rel.

Akhtar Munir Khan for Appellant.

Rafiq Ahmad, Assistant Advocate General for Respondent.

Date of hearing: 10th March, 2015.

2015 M L D 1481

[Peshawar]

Before Abdul Latif Khan, J

RAZA KHAN through his son and Attorney---Petitioner

Versus

Mst. BAKHT MEENA and others---Respondents

C.R. No.647-P of 2005, decided on 15th September, 2014.

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

----S. 42---Limitation Act (IX of 1908), Art. 120---Qanun-e-Shahadat (10 of 1984), Art. 100---Suit for declaration---Limitation---Document more than thirty years old---Proof---If witness of a document was not produced, the same could not be relied for claim as the same had not been proved---Document more than thirty years old could not be taken as gospel truth and the same had to be proved---Oral evidence produced by the plaintiff, in the present case, was not sufficient with regard to the proof of document---Plaintiff could not be given benefit under Art.100 of Qanun-e-Shahadat, 1984 being 30 years old document---Present suit was time barred, as period prescribed for filing of declaratory suit under Art.120 of the limitation Act, 1908 was six years---Revenue record had presumption of truth; cogent and confidence inspiring evidence was required to rebut the same---Courts below had decided the lis pending before them with conscious application of independent mind---Revision was dismissed, in circumstances.

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

----S. 42---Limitation Act (IX of 1908), Art.120---Suit for declaration---Limitation---Period prescribed for filing of declaratory suit was six (6) years.

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

----Art. 100---Document more than thirty years old---Admissibility---Scope---Document more than thirty years old could not be taken as gospel truth and the same had to be proved.

Shams-ul -Hadi for Petitioner.

Sher Muhammad Khan for Respondents.

Date of hearing: 15th September, 2014.

2015 M L D 1508

[Peshawar]

Before Muhammad Daud Khan, J

HAMAYUN KHAN---Petitioner

versus

Haji MUHAMMAD IQBAL KHAN---Respondent

C.R. No.210-B of 2013, decided on 24th July, 2014.

Specific Relief Act (I of 1877)---

----Ss. 12 & 54---Qanun-e-Shahadat (10 of 1984) Art. 113---Suit for specific performance with perpetual injunction---Multiple agreements to sell---Subsequent claimant---Status---Admitted facts, proof---Examination of witness---Positive suggestion---Written statement---Status---Plaintiff instituted a suit for specific performance of agreement to sell against defendant and alleged partial payment of sale consideration---Plaintiff contended that defendant was bound to receive remaining amount and transfer the suit property in his name---Another party filed a separate suit regarding specific performance of agreement to sell against the suit property---Both suits were consolidated being of same property and against one defendant---Subsequent claimant was also arrayed as one of defendants---Trial Court dismissed claims of both plaintiff and subsequent claimant---Parties preferred appeals which were allowed to the extent of claim of plaintiff but dismissed the claim of defendant and subsequent claimant---Validity---Testimony deposed by witnesses of plaintiff could not be shattered and positive suggestions made by subsequent claimant were also confirmed in examination of witnesses of plaintiff---Defendant neither produced his evidence nor had he recorded his own statement and requested Trial Court to rely on evidence of plaintiff---Written statement by defendant could not be treated as evidence---Plaintiff's evidence, in circumstances, was deemed to be correct and admitted on part of defendant requiring no further proof---Scribe was produced as evidence by subsequent claimant in support of his claim---During cross examination the scribe admitted that subsequent claimant was aware of pendency of suit between plaintiff and defendant; transaction was not made, nor the consideration was paid in his presence---Contents of agreement and entry in relevant register also did not match which was also admitted by scribe---Case of subsequent claimant was held to be counter suit based on connivance with defendant to defeat case of plaintiff---Appellate court rightly passed the judgment and decree---High Court dismissed revision petition.

Ms. Khair un Nisa and 6 others v. Malik Muhammad Isha'aq and 2 others PLD 1972 SC 25; Faqir Muhammad and 8 others v. Abdul Momin and 2 others PLD 2003 SC 594; Muhammad Bashir and others v. Iftikhar Ali and others PLD 2004 SC 465; Muhammad Akhtar v. Mst Minna and 3 others 2001 SCMR 1700 and Haji Din Muhammad v. Mst Hajra Bibi PLD 2002 Pesh. 21 rel.

Fazal-e-Hadi for Appellant.

Umer Qayum Khan for Respondent.

Date of hearing: 24th July, 2014.

2015 M L D 1558

[Peshawar]

Before Syed Afsar Shah, J

AMANULLAH---Petitioner

versus

The STATE and 2 others---Respondents

Cr. Misc. B.C.A. No.230-D of 2014, decided on 21st October, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Petition for cancellation of bail---Case of further enquiry---Investigation in the case was complete, and case was ready for trial---None of the accused persons, were required by police for further investigation---Nothing was on record which could show that accused persons after their release on bail, had misused or abused the concession of bail granted to them by the lower forum---Grounds for cancellation of bail were altogether different from that of grant of bail and once bail was granted by a court of competent jurisdiction, it was rarely interfered with, unless impugned order was palpably illegal, arbitrary and perverse, or against the record---No such infirmity having been pointed out in the present case, petition for cancellation of bail was dismissed, in circumstances.

Muhammad Ismail Khan Alizai for Petitioner.

Sanaullah Khan Shamim, AAG for the State.

Saifur Rehman Khan for the Complainant.

Date of hearing: 21st October, 2014.

2015 M L D 1565

[Peshawar]

Before Assadullah Khan Chamkani, J

DILAWAR KHAN---Petitioner.

versus

The STATE and another---Respondents

Criminal Miscellaneous B.A. No.206/B of 2014, decided on 29th August, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324---Attempt to commit qatl-i-amd---Bail, grant of---Further inquiry---Complainant had sustained two simple injuries on non-vital parts of his body---Intention of accused and application of S.324, P.P.C., in case of accused, were matters of further inquiry, which were yet to be determined by the Trial Court, after recording the evidence---Non-recovery of blood, the crime empty and motorbike of the complainant, was another circumstance, which made the case of accused arguable for the purpose of bail---Investigation in the case was complete, and accused was no more required for further investigation---Keeping accused behind the bars, in circumstances, would serve no useful purpose; because bail could not be withheld as a punishment----Bail, granted to the accused in circumstances.

Umar Hayat v. The State and others 2008 SCMR 1621; Muhammad Altaf Khan and 2 others v. The State 2011 PCr.LJ 1635 and Khan Zada v. The State 2012 PCr.LJ 1883 rel.

Ahmed Farooq Khattak for Petitioner.

Qudratullah A.A.-G. for the State.

Malik Akhtar Nawaz for Respondent.

Date of hearing: 29th August, 2014.

2015 M L D 1589

[Peshawar]

Before Qaiser Rashid Khan, J

Colonol ANWAR HUSSAIN through L.Rs.---Petitioners

versus

TASLEEM BIBI---Respondent

C.R. No.252 of 2011, decided on 13th March, 2012.

Khyber Pukhtunkhwa Pre-emption Act (X of 1987)----

----Ss. 5 & 13----Preemption right---Nature---Predecessor of plaintiffs filed suit for pre-emption, and had died during pendency of said suit before recording of evidence---Suit was on the ground that right of pre-emption was not inheritable---Defendant took plea that legal heirs/plaintiffs, having no right on the date of sale, were not entitled to decree for pre-emption---Validity---Right of pre-emption being not inheritable right had extinguished with death of pre-emptor and sale was not pre-emptible---Plaintiffs who had no right on date of sale could not improve their right after sale by inheritance as cause of action had already come into existence and qualification by inheritance could not vest legal heirs with superior status after accrual of cause of action---Right of pre-emption was personal right in terms of S. 5 of Khyber Pukhtunkhwa Pre-emption Act, 1987---Legal heirs of deceased pre-emptor could not continue with prosecution of pre-emption suit initiated by their late father---Revision petition was dismissed in circumstance.

Aziz-ur-Rehman and others v. Muhammad Nawaz PLD 1988 SC 384; Muhammad Younas v. Khushal 1989 SCMR 69; Muhammad Ishaq v. Muhammad Sadiq 2007 SCMR 1478; Malik Ghulam Nabi and others v. MBR-III, Board of Revenue and 5 others PLD 1990 SC 1043 and Nazir Hussain and others v. Mushtaq Ahmad (deceased) through legal heirs and others PLD 2010 SC 1048 rel.

Muhammad Waheed Anjum for Petitioner.

Abdullah Khan Gandapur for Respondent.

Date of hearing: 13th March, 2012.

2015 M L D 1595

[Peshawar]

Before Haider Ali Khan, J

PROVINCIAL GOVERNMENT through Chief Secretary Khyber Pakhtunkhwa and 4 others---Petitioners

versus

AKHTAR HUSSAIN and 5 others---Respondents

C.R. No.491-M of 2014, decided on 11th March, 2015.

Land Acquisition Act (I of 1894)---

----S. 4---Specific Relief Act (I of 1877), S. 42---Acquisition of land---Nature of land, determination of---Plaintiff filed suit for declaration that suit property was in his ownership and was irrigated through 'Ghair Mumkin Tangy' and authorities had no right to enter the same as 'bari' in revenue record---Plaintiff also sought correction in revenue record---Suit was decreed and appeal preferred against judgment/decree was also dismissed---Authorities took plea of first settlement of District when suit property was recorded as 'bari' and pleaded ground of limitation as a bar to suit alleging the suit to be based on mala fide since it was instituted when Government issued the notification under S.4 of Land Acquisition Act, 1894---Plaintiff contested revision petition by referring to compromise deed regarding distribution of water between their predecessors in interest and other evidence brought before Trial court---Validity---Presence of water channel established by evidence of Patwari and Tehsildar in property owned by plaintiff determined nature of land as 'aabi' as opposed to 'bari' and it was to be mentioned in first settlement as such---Limitation and cause of action only accrued when notification under S. 4 of Land Acquisition Act, 1894 was issued and status of land was recorded as 'bari'---Trial court and Appellate Court below had rightly passed the orders which suffered with no illegality, misreading or non-reading of evidence---Revision was dismissed.

Mazloom Hussain v. Abid Hussain and 4 others PLD (sic) SC 571; Nawab Khan and others v. Said Karim Khan and others 1997 SCMR 1840; Amir Ali Shah v. Sher Azeem and others 2010 CLC 1246; Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another 2006 SCMR 783 and Government of N.W.F.P. through Secretary Forest Department, Peshawar and 2 others v. Zain Khan PLD 1993 Pesh. 131 ref.

Sabir Shah, A.A.-G. for Petitioner.

Barrister Dr. Adnan Khan for Respondents.

Date of hearing: 10th March, 2015.

2015 M L D 1623

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

Mst. SHAHANA BIBI---Petitioner

versus

NADEEM SHAH and 3 others---Respondents

Writ Petition No.1963-P of 2013, decided on 25th March, 2015.

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

----Ss. 14 & 5, Sched.---Constitution of Pakistan, Art.199---Dissolution of Muslim Marriages Act (VIII of 1939) S. 2 (ii) (viii)---Constitutional petition---Appeal against decision of Family Court---Maintainability---Scope---Cruelty as ground of dissolution of marriage---Scope---Maintenance, reduction in---Plaintiff (wife) filed suit for recovery of dower, maintenance and dissolution of marriage on ground of cruelty and maltreatment---Another suit for recovery of dowry articles was filed by wife---Husband contested suits and Family Court decreed the suits vide consolidated judgment which was assailed before Appellate Court---Appellate Court partially allowed appeal, passed a decree for dissolution of marriage on basis of 'Khula' whereby petitioner/wife had to withdraw from her claim of unpaid dower while maintenance allowance was reduced to Rupees 1500 per month as against Rupees 2000 fixed by Family Court---Validity---Cruelty was not limited to physical beating rather same can be either mental or even by conduct---Record had established that husband had failed to maintain wife for more than two and a half years---Dissolution of Muslim Marriages Act, 1939 entitled the wife to seek dissolution of marriage on cruelty when she was not being maintained by husband---Section 14 of West Pakistan Family Courts Act, 1964 contemplated that appeal against decision of Family Court was competent before District Judge but with a bar that no appeal lie from decree passed by Family Court dissolving marriage on any other grounds or grounds specified therein except on the ground mentioned in S.2(viii)(d) of Dissolution of Muslim Marriages Act, 1939 which related to disposal of property of wife preventing her from exercising legal right over it---Appeal would not be competent when marriage was dissolved on any other ground---Appellate Court had illegally reduced maintenance allowance from Rupees 2000 to Rupees 1500 without assigning any reason therefor and contrary to evidence recorded---Constitutional petition was allowed in circumstances.

M. Amin Khattak Lachi for Petitioner.

Hassan UK Afridi for Respondents.

Date of hearing: 25th March, 2015.

2015 M L D 1642

[Peshawar]

Before Abdul Latif Khan and Musarrat Hilali, JJ

ABDUL SAMAD KHAN and 5 others---Petitioners

versus

JAMSHED and 7 others---Respondents

W.P. No.1634 of 2008, decided on 13th November, 2014.

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

----S. 13---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Default in payment of rent---Personal bona fide need of landlord---Denial of relationship of landlord and tenant by the tenant---Landlords filed eviction petition on the grounds of default in payment of rent, personal bona fide need and reconstruction---Eviction petition was accepted by the Rent Controller but same was dismissed by the Appellate Court---Validity---Tenants had purchased 10 marlas of land by dint of Mutation No. 924 on 30-11-1986 in Khasra No. 656 which was situated adjacent to Khasra No. 647---Both Khasra numbers were situated in one khata wherein flour machine had been constructed which was in the possession of tenants since long---Landlords had never objected nor demanded rent at any stage from the tenants during last more than 20 years---No agreement was on record to the effect that rent had been fixed and paid by the tenants to the landlords---Landlords had failed to prove that suit premises possessed by the tenants was owned by them---Landlords were bound to prove relationship of landlord and tenant between the parties---No cogent evidence had been brought on record to prove the relationship of landlord and tenant between the parties---No proof of demarcation with regard to both the Khasra numbers of both the properties had been produced---Partition of both the Khasra numbers had not been effected---Dispute between the parties was with regard to title and demarcation of land in occupation of owners of both the Khasra numbers which could only be resolved through civil court---Dispute with regard to identity of property qua title was involved which did not fall within the jurisdiction of Rent Controller and same could only be resolved by the civil court---Issue of jurisdiction should be determined first in case of denial of relationship of landlord and tenant---Mere bald allegation with regard to existence of relationship of landlord and tenant would not be sufficient---Relationship of landlord and tenant should have been proved through direct and convincing evidence both documentary or trustworthy, cogent and convincing oral evidence---Mere entry made in the record of Excise or Taxation or other alike documents did not create relationship of landlord and tenant rather same had to be proved through rent deed and receipts of payment of rent forwarded through proper custody---Rent Controller being persona designata was left with no option but to direct landlord to get the title established from competent civil court in case of his/her failure to prove such relationship---Landlords could approach civil court for redressal of their grievances and seek ejectment after getting title established by the competent court---Appellate Court had decided the lis with reasons and application of independent mind---Constitutional petition was dismissed in circumstances.

Afzal Ahmad Qureshi v. Mursaleen 2001 SCMR 1434 rel.

Muhammad Shaib Khan for Petitioners.

Khalid Mehmood for Respondents.

Date of hearing: 13th November, 2014.

2015 M L D 1664

[Peshawar]

Before Qalandar Ali Khan, J

REHMAT ALI---Petitioner

versus

The STATE---Respondent

Cr. M. B. A. No. 2101-P of 2014, decided on 29th December, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Foreign Exchange Regulation Act (VII of 1947), Ss.4 & 23---Dealing in foreign currency un-authorizedly---Bail, grant of---Further inquiry---Accused had been charged with an offence, which carried the maximum penalty of imprisonment for two years or with fine or with both---Offence against accused not only fell outside the ambit of prohibitory clause, contained in S.497, Cr.P.C., but accused, would also be entitled to the concession of bail as of right; as in the case of imposition of penalty of fine on culmination of trial against accused, refusal of bail to him at that stage, and retaining him behind the bars, pending trial against him, would amount to double jeopardy---Non-compliance with mandatory provisions of law, would make case of accused that of further inquiry---Order of the Trial Court, refusing bail to accused in similar circumstances, while extending concession of bail to other accused earlier; and even on the same day, had left much to be desired---Accused, was admitted to bail, in circumstances.

2000 MLD 357; PLD 1993 Pesh. 104; 2000 PCr.LJ 1914; 2012 PCr.LJ 1858 and 2013 PCr.LJ 1865 ref.

Shakir Ullah Afridi and Muhammad Ibrahim Khan for Petitioner.

Abdul Latif Khan for the State.

2015 M L D 1679

[Peshawar]

Before Ikaramullah Khan, J

Haji KABEER KHAN---Petitioner

versus

RABNAWAZ---Respondent

C.R. No.58-D of 2012, decided on 5th November, 2014.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Right of pre-emption, exercise of---Mode---Talb-i-Muwathibat, performance of---Requirements---Provisions of S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987 were mandatory and prohibitory---Non-performance of talbs necessary for establishment of right of pre-emption would expose the pre-emptor to be non-suited---No particular mode or manner for expression of intention of pre-emptor had been prescribed in the provisions of S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987 but some words still had to be uttered by him/her which would support and indicate the intention of pre-emptor to exercise the right of pre-emption---Queries, inquiry and investigation with regard to the sale from any person/informer without expressing his intention by words could not be substituted for the first express demand---Any such detailed inquiry and investigation with regard to the measurement, kind, location and price of property sold, after acquiring knowledge of sale, without expressing intention in unequivocal terms to exercise right of pre-emption was against the mandate of S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Pre-emptor had not stated even a single word with regard to his intention to exercise right of pre-emption but had expressed his right of pre-emption on 22-12-2004 while he had acquired knowledge of the sale of suit property on 15-12-2004---Pre-emptor had waived his right of pre-emption in circumstances---Some specific words to be expressed was not the mandate of law to indicate intention to exercise the right of pre-emption but it was mandatory to express any word to indicate intention to exercise the right of pre-emption---Without indication of intention to exercise the right of pre-emption through any word, it could not be construed that Talb-i-Muwathibat had been performed and established in accordance with the provisions of S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Incomplete, infructuous and erroneous kind of inquiry, with regard to sale transaction, could not be treated as "jumping demand"---Both the courts below had properly appreciated and construed the law through the impugned judgments---No legal infirmity could be pointed out in the concurrent findings recorded by the courts below---Revision was dismissed in circumstances.

Saleem Nawaz Awan for Petitioner.

Muhammad Aslam Khan for Respondent.

Date of hearing: 5th November, 2014.

2015 M L D 1697

[Peshawar]

Before Ikramullah Khan and Muhammad Younis Thaheem, JJ

Malik KHANZADA KHAN---Petitioner

versus

GOVERNMENT OF PAKISTAN through Secretary State and 10 others---Respondents

W.P. No.7-B of 2009, decided on 11th March, 2015.

Constitution of Pakistan---

----Arts. 199 & 247-A---Constitutional petition---Maliki allowance---Enhancement of---Validity---Scope---Fundamental right---Award of Maliki allowance was to be granted by the Governor of the Province to those who had either inherited this Lungi (honour) or was awarded to those from whose role society had been benefited (to the satisfaction of Federal Government)---Said grant was not a vested right and could not be claimed as such---Federal Government or its representative Head of the Province i.e. Governor was not expected to discriminate or do injustice to anyone who deserved it---Government primarily was responsible to safeguard the Fundamental Rights of the people under the law---Petitioner had failed to point out discrimination caused to him---Petitioner could not be similarly placed to one Ex-Federal Minister/Senator who had voluntarily rendered his service to keep peace in the area and was martyred by anti peace elements/miscreants---Enhancement of allowance of the respondent did not seem to be discriminatory in circumstances---High Court was barred to take cognizance of the matter in view of Art. 247-A of the Constitution---Petitioner might invoke jurisdiction of competent forum---Constitutional petition was dismissed being against law.

Anwarul Haq for Petitioner.

Saif ur Rehman Khattak, Addl A.G. for Respondent.

Bahlol Khattak, Deputy Attorney General for the State.

Date of haring: 11th March, 2015.

2015 M L D 1709

[Peshawar]

Before Abdul Latif Khan and Musarrat Hilali, JJ

IJAZ AHMED and 13 others---Appellants

versus

GOVERNMENT OF N.-W.F.P. through District Collector, District Bunair and 4 others---Respondents

R.F.A. No.139 of 2005, decided on 20th November, 2014.

Land Acquisition Act (I of 1894)---

----Ss.18, 31 (2), 23 & 4---Compensation, determination of---Criteria---Reference to court---Factors to be considered for determination of compensation---Person who had received the amount otherwise than "under protest" was not entitled to make any application under S. 18 of Land Acquisition Act, 1894---No bar existed for appointment of local commissioner by the Referee Judge for determination of market value---Referee Judge, in the present case, appointed local commissioner who assessed the value of land as Rs. 60,000 to Rs. 70,000 per kanal---Potential value of the property was higher than the assessed amount in the award---Referee Judge despite confirmation of report of local commissioner had dismissed the reference which was not in line with law---District Collector had assessed the value of property at the rate of Rs. 19952 per kanal but no evidence had been produced as to how and on what criteria such amount was assessed---No document was on record in support of assessment made by the District Collector---Assessment of price in the light of evidence available had not been made by the Referee Judge---Criteria of one year average prices was not of any help for determination of market value of the acquired land---Classification and nature of land had to be taken into consideration for assessment of market value---Referee Judge had wrongly observed that hike in prices during 10 years was due to the project of the department---Prices of land had jumped high in near past and owners/objectors could not be deprived of such natural phenomenon---Referee Judge had neither properly assessed the evidence available on the file nor the remand order of the court had been complied with---Future prospect of the land acquired should be taken into consideration for determination of compensation---Market value of the land had to be taken as existed on publication of notification under S. 4 of Land Acquisition Act, 1894, and price of the similar land situated in the vicinity during preceding one year as well as from the spot inspection---Compensation fixed by the Collector could not be termed as fair value and the same would require enhancement in the light of prevailing circumstances---Land under reference comprised of different kind of properties having different potential value---Potentiality, future prospect and 'Ausat Yaksala' of the acquired land should also be taken into consideration alongwith other factors for determination of compensation---Findings of Referee Judge were misplaced---Compensation for all kind of agriculture land was assessed Rs. 50,000 per kanal whereas Rs. 1,00,000 per kanal was fixed for land which would come within the ambit of residential property---Impugned order was set aside and compensation amount was enhanced by accepting the reference petition---Appeal was accepted, in circumstances.

Mukhtiar Ahmad Khan for Appellant.

Shakirullah Afridi and Rabnawaz Khan, A.A.-G. for Respondents.

Date of hearing: 20th November, 2014.

2015 M L D 1736

[Peshawar]

Before Abdul Latif Khan, J

ZAHIR SHAH---Petitioner

versus

Mst. FATEHOON and 9 others---Respondents

Civil Revision No.1277 of 2006, decided on 24th June, 2014.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Mutation---Nature and scope---Copy of impugned mutation was not brought on record by defendant---Attesting witnesses i.e. Patwari Halqa and Attesting Officer/Revenue Officer were not produced by defendant to prove the mutation---Beneficiary of mutation had to produce Halqa Patwari and Tehsildar in support of valid attestation---Mutation was not a title document, same was entered for fiscal purposes---No presumption of truth was attached to mutation---Mutation stood at a lower pedestal in comparison to a decree passed by the court, especially when such decree was passed prior to attestation of mutation---Deputy Commissioner was bound to refer the matter to Jirga where parties were at issue but in the present case compromise had been effected so nothing was left to be referred to the Jirga for decision---Compromise arrived at between the parties culminated into decree by the court of competent jurisdiction---Question of non-framing of any particular issue could not be raised at belated stage---No case of interference in the concurrent findings of courts below was made out---Revision was dismissed.

PLD 2003 SC 688; Muhammad Akram alias Raja v. Muhammad Ishaque 2004 SCMR 1130 and Malik Safdar Ali Khan and another v. Pubic at large and others 2004 SCMR 1219 rel.

Mujahid Farooq for Petitioner.

Aamir Gulab Khan for Respondents.

Date of hearing: 24th June, 2014.

2015 M L D 1757

[Peshawar]

Before Ikramullah Khan, J

MUHAMMAD NAWAZ and others---Petitioners

versus

AKRAM KHAN---Respondent

C.R. No.115-B of 2011, decided on 13th April, 2015(sic).

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13(3)---Talb-e-Ishhad, proformance of---Essentials---Pre-emptor claimed that he had sent a notice to vendee through registered cover with A/D Card but failed to prove the same---Validity---Facts alleged in pleadings should be proved---According to S. 13(3) of KPK Pre-emption Act, 1987 it was mandatory upon pre-emptor that required notice should be sent to vendee through registered cover with A/D---Where vendee denied factum of receiving any notice, it became obligatory upon vendor to prove sending of notice under S. 13(3) of KPK Pre-emption Act, 1987 and it was essential for pre-emptor to produce postman who had delivered registered cover containing notice of Talb-e-Ishhad---Held, that pre-emptor had failed to bring on record acknowledgment due nor any postal official to confirm that registered cover was received by vendee---Requirements of Talb-e-Ishhad had not been fulfilled and Talb-e-Ishhad had become defective on account of non-production of A/D card and non-examination of postman---Revision was accepted and judgments of both courts below were set aside, accordingly.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Section 13(1) of KPK Pre-emption Act, 1987 provided that if pre-emptor failed to make demand of pre-emption, he would be disentitled from award of decree for possession through pre-emption by court.

Shahib Khan Bangash for Petitioners.

Fazul ur Rehman for Respondent.

Date of hearing: 4th May, 2015(sic).

2015 M L D 1776

[Peshawar]

Before Waqar Ahmad Seth, J

IFTIKHAR HUSSAIN---Petitioner

versus

SADIQ and others---Respondents

C.R. No.385 of 2007, decided on 20th October, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Money suit---Execution of "iqrarnama"---Plaintiff had produced marginal witnesses of Iqrarnama---Son of deceased Petition Writer was also produced who verified the signatures on Iqrarnama and entries made in his record as secondary evidence without any objection from the other side---Defendant was given chance to cross-examine the witnesses of plaintiff but he could not shatter the same on material aspects of the case---Notary Public was also produced by the plaintiff who had supported the execution of Iqrarnama---Execution of Iqrarnama had been proved on record and Trial Court had rightly decreed the suit---Appellate Court had wrongly and illegally set aside the well reasoned judgment of Trial Court---Impugned judgment and decree passed by the Appellate Court were set aside and that of Trial Court were maintained---Revision was accepted in circumstances.

Yasir Zahoor Abbasi for Petitioner.

Shafique Awan for Respondent.

Date of hearing: 20th October, 2014.

2015 M L D 1799

[Peshawar]

Before Qalandar Ali Khan, J

JAMIL-UR-REHMAN---Petitioner

Versus

The STATE and another---Respondents

Cr. M. No.73-A of 2015, decided on 23rd February, 2015.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 324 & 109---Attempt to commit qatl-i-amd---Bail, refusal of---Accused was nominated in FIR by injured complainant for attempting at his life and lives of worshippers who tried to prevail upon him to abandon hostile attitude towards "Pesh-Imam" of Mosque---Blood and weapon of offence was recovered---Allegation of attempt by accused at complainant was supported by medical report, statements of injured and other eye-witnesses---Alleged reckless act of opening unprovoked indiscriminate firing on other worshippers outside mosque only because of accused's declared aversion against "Pesh-Imam" had amply demonstrated his desperate attitude---Confessional statement of accused that it was he who was attacked by supporters of "Pesh-Imam" outside his house but recovery of blood from outside mosque told a different story---Accused could not be held entitled to concession of bail with such an unruly disposition, with no remorse or repentence as appeared from his confessional statement---Bail application was dismissed, in circumstances.

Khan Zada v. The State and another 2012 PCr.LJ 1883; Isfandyar v. The State through Additional Advocate General and another 2012 YLR 2853; Rehan v. The State 2009 SCMR 181; Umar Hayat v. The State and others 2008 SCMR 1621; Faisal Nawaz v. The State and another 2010 PCr.LJ 1644; Mir Muhammad alias Miroo v. The State 2008 YLR 1851 and Shahzeb Khan v. The State and another 2013 PCr.LJ 907 distinguished.

Syed Shah Faisal for Petitioner.

Raja Zubair D.A.G. for the State.

Complainant in person.

Date of hearing: 23rd February, 2015.

2015 M L D 46

[Balochistan]

Before Shakeel Ahmed Baloch and Naeem Akhtar Afghan, JJ

IMRAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.95 of 2012, decided on 2nd October, 2014.

Penal Code (XLV of 1860)---

----S.302 & 34---Criminal Procedure Code (V of 1898), S.164(3)---Qatl-i-amd, common intention---Appreciation of evidence---Confession---Failure to comply with mandatory requirements in recording confessional statement of accused---None of five witnesses, produced by the prosecution, had directly or indirectly involved accused with the commission of offence---None of the witnesses was an eye-witness---Confessional statement of accused recorded in the case, could not be made a basis for conviction of accused, as the Judicial Magistrate, who had recorded alleged confessional statement, had failed to observe, and fulfil the requisite formalities under S.164(3), Cr.P.C.---Memorandum at the foot of the confessional statement being not according to the mandatory requirement of S.164(3), Cr.P.C., same had lost its evidentiary value, and could not be relied upon to award conviction to accused; especially, when confessional statement, had not been corroborated by any other evidence---Conviction of accused, merely based on such retracted statement, was not justified on the facts and circumstances of the case---Conviction, could not be recorded on the basis of probabilities, but prosecution had to prove its case beyond any shadow of doubt, which the prosecution had failed to prove in the present case---Accused, was acquitted of the charge under Ss.302(b) & 34, P.P.C., and was ordered to be released, in circumstances.

Baz Muhammad Kakar and Tahir Hussain for Appellant.

Ms. Tayyaba Altaf, Special Prosecutor ATA for the State.

2015 M L D 117

[Balochistan]

Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J

Engineer ZAMRAK KHAN---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and another---Respondents

Constitution Petitions Nos. 218 and 49 of 2014, decided on 28th August, 2014.

Constitution of Pakistan---

----Arts. 120, 122, 123, 124 & 199---Constitutional petition---Annual budget statement, approval of---Allotting funds to the members of legislative bodies---Scope---Contention of petitioner was that Government was allotting funds to the particular members of Assembly against annual budget statement---Statement on behalf of Government that all amounts would be spent through concerned department and no amount would be allotted/sanctioned for use to the members of legislative bodies---Validity---High Court disposed of constitutional petition with the observation that statement made on behalf of Government would be treated as an undertaking given to the court and provisions of Arts. 120(1), 122(2), 123 and/or 124 of the Constitution would be complied with by the Government with regard to annual budget statement and supplementary budget statement.

Action against Distribution of Dept. Funds by Exh.P.M.A Raja Parvez Ashraf PLD 2014 SC 131 ref.

Muhammad Qahir Shah and Agha Hassan Baloch Attorney for Petitioner (in Constitution Petition No.218 of 2014).

Nazimuddin, Advocate-General and Shai Haq, Assistant Advocate-General along with Manzoor Ahmed, Director-General Planning and Development for Respondents (in Constitution Petition No.218 of 2014).

Amanullah Batezai for Petitioner (in Constitution Petition No.49 of 2014).

Nazimuddin, Advocate-General and Shai Haq, Assistant Advocate-General and Manzoor Ahmed Director General Planning and Development for Respondents (in Constitution Petition No.490 of 2014).

Date of hearing: 28th August, 2014.

2015 M L D 176

[Balochistan]

Before Jamal Khan Mandokhail and Muhammad Ejaz Swati, JJ

IMDAD ALI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.13 of 2013, decided on 27th October, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art.40---Qatl-i-amd, common intention---Appreciation of evidence---Discovery of new facts---Benefit of doubt---All those facts mentioned in the F.I.R. were reproduced in the alleged disclosure of accused---Whatever facts were mentioned in the allegedly recorded disclosure of accused, the Police had previously learnt, when the F.I.R., was registered---Such disclosure, could not be considered discovery of new fact within the meaning of Art.40 of the Qanun-e-Shahadat, 1984---Sole testimony of ocular account furnished by prosecution witness, having already been discarded qua the involvement of accused in the crime, abscondence of accused, which was a corroborative piece of evidence, could not be taken into consideration in isolation---Misreading of evidence, in the case, had occasioned failure in the correct appraisal of evidence on record---Prosecution, having failed to prove case against accused beyond any reasonable doubt, benefit of doubt was extended in favour of accused---Accused was acquitted of the charge and was released, in circumstances.

Hassan v. State 1969 SCMR 455; Hassan Din v. Muhammad Mushtaq 1978 SCMR 49; Ghulam Haider v. Muhammad Nadeem Sajid 2006 SCMR 1251; Mst. Askar Jan v. Muhammad Daud 2010 SCMR 1604 and Rohtas Khan v. The State 2010 SCMR 566 ref.

Abdul Karim Yousafzai for Appellant.

Miss Sarwat Hina, Additional Prosecutor General for the State.

Date of hearing: 16th September, 2014.

2015 M L D 267

[Balochistan]

Before Shakeel Ahmed Baloch, J

Messrs SINGER PAKISTAN LTD. through Director Personal and Administration and another---Appellants

Versus

NASIR ALI MEER and another---Respondents

F.A.O. No.61 of 2014, decided on 28th June, 2014.

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

---O.XXI, R. 99 & Ss. 47, 94, 151, 2(2)---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13---Ejectment of tenant---Compromise/settlement---Consent order---"Decree"---Scope---Non-drawing of decree-sheet---Effect---Landlords filed execution petition seeking ejectment of tenant from the demised premises which was dismissed---Contention of tenants was that eviction petition was disposed of in terms of compromise between the parties, that no decree-sheet was drawn and in absence of the same execution application was not maintainable---Validity---Rent Controller disposed of ejectment petition on the basis of settlement/consensus but due to omission/inadvertence did not draw the decree-sheet---Consent order did not fall within the definition of a "decree"---Only decree was executable but not a judgment---Execution petition filed by the landlords for execution of consent order was not maintainable as no decree-sheet was drawn in pursuance of the same---Objection raised by the tenants to the extent of non-maintainability of execution application was sustainable---Executing Court had wrongly rejected/overruled the objection raised by the tenants about maintainability of the execution petition which order was set aside---Rent Controller was directed to draw decree-sheet in pursuance of consent order---Landlords might file execution application afresh and tenants would be at liberty to raise/ file the available objections to the execution petition and if any objection was raised/filed then same should be decided by the Executing Court in accordance with law---Appeal was accepted in circumstances.

Shaukat Ali v. Muhammad Sharif 2013 CLC 1558 rel.

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

---S. 2(2)---"Decree"---Meaning---Decree would amount to formal expression of a decision conclusively determining the rights of the parties with regard to all or any of the matters in controversy.

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

---S. 2(2)---"Decree"---Scope---Consent order did not fall within the definition of a decree--Only the decree was executable and not a judgment.

Ms. Iram Mehmood for Appellants.

Ajmal Khan Kakar for Respondents.

Date of hearing: 31st October, 2014.

2015 M L D 313

[Balochistan]

Before Shakeel Ahmed Baloch and Naeem Akhtar Afghan, JJ

BASHIR AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.80, 87, 93 of 2014 Criminal Jail Appeal No.25 of 2014, decided on 11th December, 2014.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6(e) & 7(e)---Kidnapping for ransom, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused persons being with muffled faces at the time of alleged occurrence, neither complainant nor any body else could identify them---F.I.R., was lodged on the next day of occurrence, despite levies check Post, was nearby the place of alleged occurrence---Statement of complainant had shown that F.I.R. was lodged with consultation and was an afterthought---Such delay in lodging F.I.R., could not be taken lightly, as it cast serious doubt in the case of the prosecution---No explanation was on record with respect to inordinately lodging F.I.R.---Names of accused persons came in picture through the supplementary statements of the complainant for the first time---Neither the Fard-e-Bayan, was reliable nor the supplementary statement was worth credence, as the same had not been filed promptly---False implication of accused persons, could not be ruled out of consideration in circumstances---Prosecution story as narrated by the complainant, did not appeal to logic---Statement of prosecution witness, was not worth credence, and it appeared that said witness had concealed the actual dispute between the parties---All prosecution witnesses were closely related to each other, and one of them was closely related to alleged abductee---Prosecution had failed to produce any independent witness to corroborate the prosecution case---Accused persons could not be assumed to be culprits solely on the statements of witnesses who were interested and were closely related to the alleged abductee---Recovery of abductee was neither effected from possession of accused persons, nor on their pointation---No ransom amount was paid for release of the abductee---Alleged abductee, recorded his statement before the Investigating Officer after considerable delay after his alleged release/recovery without any explanation, which created serious doubt about his abduction by accused persons---Identification parade conducted by the prosecution was also of no avail to the case of prosecution, as the complainant in the supplementary statement, had failed to give the description of accused persons---While conducting the identification parade, the legal formalities, were not complied with and followed by Judicial Magistrate---Statement of witnesses were not free from doubt as same suffered from sufficient infirmities, dishonest improvements and contradictions---Prosecution had failed to prove the charge against accused persons beyond any shadow of doubt---Trial Court while delivering the impugned judgment, had failed to consider evidence available on record---Impugned judgment passed by Special Court, was set aside and accused were acquitted and released extending them benefit of doubt in circumstances.

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

----S. 154---First Information Report---Scope---Main purpose of lodging F.I.R. was to set criminal law in motion; and to bring on record first hand information about the occurrence of a crime, as well as to provide a sound basis for carrying out investigation in the right direction, excluding the possibility of fabrication of any false story.

(c) Criminal trial---

----Benefit of doubt---Prosecution had to stand on its own legs, and any doubt arising out of the case, had to be extended in favour of accused.

Ghulam Azam Qamarani for Appellant (in Criminal Appeal No.80 of 2014).

Asghar Panezai for Appellant (in Criminal Appeal No.87 of 2014).

Adnan Ejaz Sheikh for Appellant (in Criminal Appeal No.93 of 2014).

Muhammad Ashraf Bazai for Appellant (in Criminal Jail Appeal No.25 of 2014).

Atiq Ahmed Khan, Deputy Prosecutor General for the State.

2015 M L D 460

[Balochistan]

Before Ghulam Mustafa Mengal and Muhammad Kamran Mulakhail, JJ

ALLAH DINA and another---Petitioners

Versus

The STATE and another---Respondents

Constitution Petition No.141 of 2012, decided on 24th July, 2014.

National Accountability Ordinance (XVIII of 1999)---

----S. 33-E---Criminal Procedure Code (V of 1898), S.386---Penal Code (XLV of 1860), S.70---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of amount of fine etc. as arrears of land revenue---Scope---Application by National Accountability Bureau under S.33-E National Accountability Ordinance, 1999, read with S.386, Cr.P.C. and S.70, P.P.C., for recovery of fine, against the petitioner/accused as arrears of land revenue was accepted by Accountability Court---Validity---Bureau was legally authorized to recover the fine from the petitioner; and in case of his failure, same could be recovered as arrears of land revenue---Where the quantum of sentence also entailed the levy of fine; and accused who had been convicted for any term of imprisonment followed by payment of fine, though served out the imprisonment in default of payment of fine, still he could not be absolved from payment of fine; because the imprisonment undergone in default, was to be treated as reasonable punishment for non-payment of fine---Impugned order passed by the Accountability Court, was un-exceptional; and would not call for any interference by High Court.

Haji Ghousuddin v. The State PLD 2012 Bal. 104 and Ahmed Ali Siddiqui v. Sargodha Central Cooperative Banking Ltd. 1989 SCMR 824 ref.

Manzar Siddique for Petitioner.

Ameer Zaman Jogizai, Senior Prosecutor NAB for the State.

Date of hearing: 16th July, 2014.

2015 M L D 499

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Kamran Khan Mulakhail, JJ

ABDUL QADEER---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.68 of 2014, decided on 18th September, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 103 & 537---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 21, 22, 23 & 25---Possessing and trafficking of narcotics---Bail, refusal of---Accused being driver of truck from which alleged contraband items were recovered, was incharge of the same, and it was under his control and possession and knowledge---Accused was in conscious possession of the contraband items and same could be attributed to him---No enmity of accused with the Anti-Narcotic Force was established---Section 25 of Control of Narcotic Substances Act, 1997, having excluded applicability of S.103, Cr.P.C., failure to associate any private witness in recovery proceedings, could not be termed as fatal to the prosecution case---Sections 21, 22 & 23 of Control of Narcotic Substances Act, 1997 being directory in nature, non-compliance thereof, would not vitiate the trial, which was a mere irregularity and curable under S.537, Cr.P.C.---Provisions of S.9(c) of Control of Narcotic Substances Act, 1997, though had provided that no Officer below the rank of Sub-Inspector of Police would be authorized to exercise powers under that Act but provision being directory in nature, would not vitiate the trial---Challan of the case having already been submitted before the Trial Court; any observation at that stage could prejudice the case of either side---Contention with regard to rule of consistency, was of no assistance to accused, for the sole reason that evidence against accused was not at par with that of co-accused, who had been admitted to bail---Accused could not be admitted to bail, in circumstances, his bail application was dismissed, in circumstances.

Sherzada v. The State 1993 SCMR 149 rel.

2015 M L D 605

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

ABDUL QAYYUM and 8 others---Appellants

versus

ABDUL GHAFFAR and 2 others---Respondents

F.A.O. No.78 of 2012, decided on 30th April, 2014.

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

----S.13---Ejectment of tenant---Default in payment of rent---Personal bona fide need of landlord---Denial of relationship of landlord and tenant by the tenant---Scope---Where relationship of landlord and tenant was in issue, Rent Controller would not resolve the remaining issues---Title of landlords was shrouded in mystery who were neither in possession nor the recorded owners of shop in question---Both the parties were in litigation with regard to title of the properties---Civil suit was pending before the court of competent jurisdiction and landlords had themselves chosen to take recourse to the civil court for determination of their title---Question of title over shop in question could not be decided before the forum of Rent Controller---Proper course for the landlords was to wait for the final adjudication of civil litigation pending between them---Findings of Rent Controller with regard to relationship of landlord and tenant were well reasoned---No relationship of landlord and tenant existed between the parties---Appeal of landlords was dismissed in circumstances.

Rehmatullah v Ali Muhammad 1983 SCMR 1064; Aadil Nadeem Rizvi v Gohar Siddique 2004 SCMR 738 and Province of Punjab v Mufti Abdul Ghani PLD 1985 SC 1 rel.

Rehmatullah Barrech for Appellants.

Iqbal Ahmed Kasi for Respondent.

Date of hearing: 21st March, 2014.

2015 M L D 972

[Balochistan]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

JAMAL KHAN---Petitioner

versus

SECRETARY HOME DEPARTMENT and 6 others---Respondents

Constitutional Petition No.631 of 2014, decided on 4th February, 2015.

Criminal Procedure Code (V of 1898)---

----S.22-A---Penal Code (XLV of 1860), Ss.419, 420, 467, 468 & 471---Arbitration Act (X of 1940), Ss. 30 & 33---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Cheating and forgery---Justice of peace---FIR, registration of---Scope---Contention of the petitioner was that respondents by preparing a forged arbitration agreement had committed an offence under Ss. 419, 420, 467, 468 & 471, P.P.C.---Application for registration of FIR was dismissed by the Justice of Peace/Sessions Judge---Validity---Civil dispute between the parties with regard to partition of Shamilat property was on record---Petitioner had turned a civil dispute into criminal proceedings just to continue his possession over a piece of land---If a property dispute in arbitration agreement or award on any ground had been raised then a specific remedy under Ss. 30 & 33 of Arbitration Act, 1940 was available to the petitioner---Dispute with regard to property had been referred to the arbitrators---None of the persons except petitioner after 13 years of execution, initiated proceedings for the registration of FIR against respondents---Averments made by the petitioner had not been supported by other executant of such arbitration agreement/award---Petitioner had an alternate and efficacious remedy to seek grievance before the competent court of law---Constitutional petition was not maintainable which was dismissed, in circumstances.

PLD 2007 SC 539 and 2003 YLR 1941 ref.

Mst. Kaniz Fatima v. Muhammad Salim 2001 SCMR 1493 rel.

Manzoor Ahmed Rehmani for Petitioner.

Shai Haq Baloch, Assistant Advocate General for Respondents.

Date of hearing: 8th December, 2014.

2015 M L D 1073

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

HABIBULLAH---Petitioner

versus

IRSHAD AHMED and 2 others---Respondents

Constitutional Petition No.85 of 2015, decided on 19th February, 2015.

Penal Code (XLV of 1860)---

----Ss. 337-A, 337-D, 337-E, 147, 148, 149 & 109---Criminal Procedure Code (V of 1898), S.22-A---Qanun-e-Shahadat (10 of 1984), Arts.85 & 90---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Causing Shajjah, Jaifah, Ghayr-Jaifah, rioting, rioting armed with deadly weapons, common object, abetment---Registration of FIR---Nominated accused lodged FIR with the allegation that respondent along with another launched assault upon his nephews and resultantly they had been seriously injured---Subsequently, said respondent who was nominated accused in the FIR, submitted an application under S.22-A, Cr.P.C., and on production of medical certificate of one who was also nominated accused, another respondent was directed to lodge FIR against the petitioner and others, which order had been impugned in the constitutional petition---When respondent and another injured, were already nominated accused in FIR registered by the petitioner, then recording the version of accused persons, when they claimed that one of them too had been injured during the course of scuffle, then it became necessary to record the version of other side, not as a defence version, but different narration according to their version; and then both the versions would be placed before the court; which after leading the evidence by the respective parties, would be a subject of judicial scrutiny---Recording a counter version of already reported occurrence, was well recognized---When respondent being a nominated accused in FIR registered by the petitioner claimed the injuries, which were caused to one of his companions, the justice required that both the versions of respective parties would necessary be recorded; and thereafter, be placed before the court of competent jurisdiction for its adjudication strictly in accordance with law---Order of the court could not be defeated on the basis of misconceived allegation; and by just filing an affidavit, particularly when a person who had sworn the said affidavit, himself was fugitive from law; and did not surrender his will before the court---Said practice, neither could be allowed, nor could be made a precedent---Constitutional petition, neither on law, nor on merits being maintainable, was dismissed.

Muhammad Mushtaq v. The State Additional Sessions Judge, Lahore and others 2008 YLR 2301; Muhammad Bashir v. Station House Officer, Okara Cantt and others PLD 2007 SC 539; Khizar Hayat's v. Inspector General of Police (Punjab) PLD 2005 Lah. 470 and Muhammad Haneef v. SHO 2014 PCr.LJ 1044 ref.

Abdul Hadi Tareen for Petitioner.

Nemo for Respondent.

Date of hearing: 4th February, 2015.

2015 M L D 1105

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

OBAIDULLAH---Appellant

versus

The STATE---Respondent

Criminal Appeal No.78 of 2014, decided on 27th February, 2015.

Pakistan Arms Ordinance (XX of 1965)---

----S. 13(e)---Possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Weapon allegedly recovered from accused, was not sent to Forensic and Ballistic Expert for opinion, so as to determine the nature and caliber of the weapon; and whether the same was automatic, semi-automatic, or in working condition---Place of arrest of accused was said to be thickly populated and commercial area, but no effort was made by the Police to join any person from the public; or there was nothing on record showing that effort was made, and private persons had refused to join as Mashirs of recovery---Requirement of S.103, Cr.P.C. that two private persons of the locality should be associated as Mashirs to the recovery was mandatory, unless it was shown by the prosecution that it was not possible to have two Mashirs from the locality---Contradictions in the statements of prosecution witnesses with regard recovery of weapon, were enough to create doubt in the prosecution's case---Police Officials, no doubt, as citizen were as good witnesses in the court proceedings as any other person, yet some extra care was needed when they were only eye-witnesses in the case---In the present case, whole proceedings, right from the arrest of accused, the very investigation and submission of challan, were without any lawful authority---Course adopted by the prosecution was in clear violation of law, which being an illegality vitiated the trial---Discrepancies in the case, being not curable, accused was entitled to earn benefit of doubt, not as a matter of grace, but as a matter of right---Prosecution had failed to prove its case against accused---Kalashnikov allegedly recovered from accused, had neither been sealed at the spot nor sent to Ballistic Expert along with empties for examination and report---Prosecution case being highly doubtful, conviction and sentence passed by Trial Court against accused, were set aside, they were acquitted and released extending them benefit of doubt.

Mushtaq Ahmad v. The State PLD 1996 SC 574 and The State v. Bashir PLD 1997 SC 408 ref.

Shah Rasool for Appellant.

Abdul Sattar Durrani, Deputy Prosecutor General for Respondents.

Date of hearing: 27th February, 2013.

2015 M L D 1151

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

SAID MUHAMMAD---Petitioner

versus

STATION HOUSE OFFICER, POLICE STATION, SHALKOT, QUETTA and another---Respondents

C.P. No.979 of 2014, decided on 13th February, 2015.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), Ss.22-A, 22-B & 179---Police Rules, 1934, R.25(4)---Constitution of Pakistan, Art.199---Constitution petition---Dishonestly issuing cheques---Powers and functions of Justice of Peace---Registration of FIR---Jurisdiction of Court---Cheques issued were presented where same were dishonoured---SHO concerned having refused to register FIR against the respondent, petitioner filed application under S.22-A, Cr.P.C. which was dismissed by the Justice of Peace vide impugned order on the sole ground of jurisdiction---Validity---Ingredients of offence under S.489-F, P.P.C., against accused prima facie, being present, it would not be just to stifle the criminal proceedings at the initial stage---When the cheques were dishonoured the offence was completed at the place where cheques were dishonoured---Under provisions of S.179, Cr.P.C., when any person committed any offence, or did some act, and due to that act any consequence ensued, such offence could be inquired into or tried by the court where the act was done, or the consequence ensued---Provision of S.179, Cr.P.C. was totally ignored, or escaped un-noticed from the Trial Court, while passing impugned order---Petitioner could not be made to suffer merely on the ground that he had not initiated criminal proceedings at the place wherefrom the cheques were issued---Exercise carried out by Justice of Peace was beyond the scope of S.22-A, Cr.P.C.---Function of the Justice of Peace, was to check whether the statement of the complainant intimating or informing the commission of any cognizable offence was recorded or not---Justice of Peace could not touch the merits of the case, or to give certain direction, which were beyond the scope of powers and jurisdiction---Justice of Peace could not determine point of jurisdiction, which should have been left opened for SHO concerned to apply his own independent mind---Impugned order passed by Justice of Peace, was set aside---SHO was directed to lodge the FIR as per statement of the petitioners against proposed accused strictly in accordance with law.

Mazhar Hussain v. The State PLD 2010 Lah. 60 ref.

Rehmatullah Barrech for Petitioner.

Respondent No.1 in person.

Date of hearing: 13th February, 2015.

2015 M L D 1220

[Balochistan]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

HAROON AHMED and others---Applicants

versus

SECRETARY COMMUNICATION AND WORKS DEPARTMENT and another---Respondents

C.M.A. No.2341 of 2014 in C.P. No.379 of 2011 and C.M.A. No.2342 of 2014 in C.P. No. 402 of 2011, decided on 2nd March, 2015.

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

----Ss. 151 & 12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Dismissal in default and for non-prosecution---Application for restoration of constitutional petition---Sufficient cause---Due diligence---Inherent powers---Scope---No question of fraud, misrepresentation or want of jurisdiction was involved in the present application---Courts should not be loath/reluctant to exercise inherent powers, provided the party concerned had approached the court with due diligence and sufficient cause had been shown for its non-appearance on the date of hearing---Sufficient cause was sine qua non for exercise of inherent powers---Lis should be prosecuted without fault and default---Prayer to recall order should be backed by cause considered to be sufficient---Restoration of constitutional petition would not serve fruitful purpose---Proceedings should attain finality---Negligence with regard to non-appearance was on record---Applicant had failed to show due diligence and sufficient cause---Application for restoration of constitutional petition was dismissed summarily.

AIR 1977 SC 429 rel.

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

----S. 12---Constitution of Pakistan, Art. 199---Constitutional jurisdiction---Bar to further proceedings---Applicability---Provision of S. 12, C.P.C. was applicable to the proceedings in the constitutional petition.

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

----Ss. 11 & 12, O. II, R. 2, O. IX, R. 9, O. XXII, R. 9 & O. XXIII, R. 1---Bar to further suit---Scope---Provision of Ss. 11 and 12, C.P.C. would prohibit the institution and trial of suits in cases covered by O. II, R. 2, O. IX, Rule 9, O. XXII, R. 9 and O. XXIII, R. 1, C.P.C. as courts possessed powers to set aside their own judgments, decrees or final orders fraudulently or collusively obtained.

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

----S. 151---Inherent powers---Scope---Courts had "inherent powers" to make such orders as might be necessary for the ends of justice or to prevent abuse of process of the court---Courts should not be loath/reluctant to exercise such powers provided party concerned had approached the court with due diligence and sufficient cause had been shown---Sufficient cause was sine qua non for exercise of such powers.

Amanullah Kanrani for Applicants.

Date of hearing: 25th February, 2015.

2015 M L D 1468

[Balochistan]

Before Jamal Khan Mandokhail and Muhammad Ejaz Swati, JJ

RUKHSANA HIDAYATULLAH and 9 others---Appellants

versus

Syed BAHAUDDIN and another---Respondents

R.F.A. No.16 of 2006, decided on 4th June, 2015.

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

----S. 55(1) (a) & (5) (d)---Rights and liabilities of buyer and seller of the property---Scope---Landlord and tenant---Seller of the property was bound to disclose all the encumbrances, charges, dues against a property to the buyer---Buyer had prerogative to purchase the property after having knowledge with or without encumbrances---If buyer had purchased a property with all the liabilities then the encumbrances that were attached to the said property would automatically transfer to the buyer---Tenant, in the present case, had paid 'pagri' to the previous owners---New owner had stepped into the shoes of previous owners after purchase of suit property---New owner was bound by all the deeds and agreements executed between previous owners and tenant after purchase of property---New owner became absolute owner of the property after taking over possession and its charge and payment of entire consideration amount---New owner was entitled for every benefit of the property and at the same time was also responsible for all encumbrances attached to the said property---Ownership of property would pass to the new owner on completion of sale transaction who was bound to pay all the encumbrances attached to the property---Previous owners had no more concern with the property in question nor in any manner were responsible for any of its liability---Tenant was occupying the premises against payment of nominal amount as rent---Liabilities attached to the property was the reason of lesser amount of sale transaction of the same---New owner despite having knowledge of the liabilities attached to the property purchased the same---New owner was beneficiary of eviction of tenant from the shop in question whereas re-payment of amount of 'pagri' was subject to such ejectment---New owner of the property was responsible for payment of the amount of premium received by the previous owners against the shop in question---Had the tenant not been evicted from the premises in question, there would have been no demand of payment of premium---New owner of premises himself opted to get eviction of the tenant---Trial Court had rightly decreed the suit to the extent of payment of amount of pagri to the tenant but responsibility had been wrongly fixed---Impugned judgment and decree passed by the Trial Court were modified---Suit filed by the tenant for recovery of amount of premium was decreed against new owner of the property who should pay the said amount within a specified period---Appeal was accepted partly.

(b) Words and phrases---

----'Encumbrance'---Meaning.

Black's Law Dictionary rel.

Muhammad Qahir Shah for Appellants.

Khushnood Ahmed for Respondent No.1.

Sher Shah Kasi for Respondent No.2.

Date of hearing: 13th April, 2015.

2015 M L D 1572

[Balochistan]

Before Jamal Khan Mandokhail and Muhammad Ejaz Swati, JJ

ABDUL RASHEED---Appellant

versus

The STATE through Deputy Prosecutor-General NAB, Balochistan---Respondent

Criminal Ehtesab Appeal No.14 of 2014, decided on 14th May, 2015.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 18(g), 24(b) & 31-A---Criminal Procedure Code (V of 1898), Ss.87 & 88---Corruption and corrupt practices---Abscondance to avoid service of warrant---Warrant of arrest issued against accused at his official address as well as on his residential address, having remained unserved, Trial Court, after publication in the newspaper, ordered initiation of proceedings under Ss.87 & 88, Cr.P.C.---Trial Court, after such publication ordered to proceed against accused under S.88, Cr.P.C., and on the next day of hearing passed order under S.31-A of National Accountability Ordinance, 1999, whereby accused was convicted and sentenced to suffer imprisonment for three years' R.I.---Validity---If, it was established on the day of execution of warrants of arrest, that accused was not present at his office, the proper course for the prosecution was to repeat the warrants of arrest for some other date, or to confirm from the Head of Department of accused whether accused was on his duty at the relevant time, or he was absent---Statement of accused that he was never absent from his duty at the relevant time, had not been rebutted by the prosecution through any source of evidence---Warrant of arrest having not been repeated, no proper opportunity had been provided to accused, enabling him to appear before the court---Court was duty bound to strictly follow the procedure provided under S.87, Cr.P.C., while proceeding against accused and declaring him absconder---By not doing so, declaring accused as absconder by the Trial Court was absolutely illegal---Impugned orders passed by the Trial Court, being not sustainable, were set aside---Accused who was already facing trial, was directed to regularly appear before the Trial Court on given dates, in circumstances.

Hadi Shakil Ahmed and Muheebullah for Appellant.

Riaz Akhtar Tareen ADPG and Muhammad Afzal Harifal, Special Prosecutor, NAB.

2015 M L D 1627

[Balochistan]

Before Naeem Akhtar Afghan and Shakeel Ahmed Baloch, JJ

JUMA GUL---Appellant

versus

GUL BIBI and others---Respondents

R.F.A. No.51 of 2011, decided on 6th July, 2015.

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

----O. XIV, R. 1---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Issues, framing of---Scope---Parties were bound to point out the framing of necessary issues, Trial Court was equally bound to frame necessary issues for determining the real controversy between the parties---Merely because parties had not pointed out about the issues would not absolve the Trial Court to perform its legal and statutory duty---Trial Court, in the present case, had not properly framed issues of facts as well as law arising out of the pleadings of the parties---Action or inaction on the part of the court could not prejudice a party to litigation---Impugned judgment and decree passed by the Trial Court was set aside---Suit was remanded with the direction to frame all the necessary issues of facts as well as law arising out of pleadings of the parties and decide the same afresh on merits in accordance with law within a specified period---Appeal was accepted in circumstances.

(b) Administration of justice---

----Action or inaction on the part of the court could not prejudice a party to litigation.

Syed Manzoor Shah for Appellant.

Miss Fatima Khilji for Respondents.

Date of hearing: 19th March, 2015.

2015 M L D 1694

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

BABUL alias BABU---Applicant

versus

The STATE---Respondent

Crl. Bail Application No. 4 of 2015, decided on 10th February,2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Accused was not nominated in the FIR in any capacity whatsoever, but his name surfaced in the case for the first time through a supplementary statement made by the brother of the deceased under S.161, Cr.P.C.---Brother of the deceased was not the eye-witness of the occurrence---None other had witnessed the occurrence---No bar existed under law to grant bail at any stage, provided accused had made out a case of further inquiry---Deeper appreciation of evidence being neither permissible, nor warranted at bail stage, tentative assessment of record suggested that, prima facie case against accused, called for further inquiry into his guilt entitling him to be admitted to bail---Accused was admitted to bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585 ref.

Ghulam Azam Qambrani for Applicant.

Miss Sarwat Hina, Additional Prosecutor General for the State.

Date of hearing: 3rd February, 2015.

2015 M L D 1807

[Balochistan]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

Mst. BIBI ZOHRA and 7 others---Appellants

Versus

HABIB-UR-REHMAN and 12 others---Respondents

R.F.A. No.142 of 2014, decided on 16th July, 2015.

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

----S. 42---Limitation Act (IX of 1908), Art.127---Suit for declaration---Inheritance---Limitation---Pleadings---Admission---Estoppel, principle of---Applicability---Plaintiffs had proved that defendants were regularly making payment of their shares---Defendants had not produced any evidence and their pleadings could not be taken as evidence---Admission would exclude the applicability of principle of estoppel on the part of plaintiffs---Present dispute was with regard to enforcement of right of share of legacy and Art. 127 of Limitation Act, 1908 was applicable---Suit was within time---Impugned mutations were result of misrepresentation, forgery and fraud---No limitation would arise against such void transaction---Findings recorded by the Trial Court were well reasoned---Plaintiffs were real daughters of the deceased and after his death they became co-sharers/co-owners to the extent of their respective shares in the legacy of deceased---Appeal was dismissed in circumstances.

2007 SCMR 1446 ref.

Mst. Jannatan and others v. Taggi through L.Rs. PLD 2006 SC 322; Muhammad Zobair and others v. Muhammad Shareef 2005 SCMR 1217 and Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801 rel.

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

---Art. 127---Specific Relief Act (I of 1877), S. 42---Suit for declaration to enforce right to share in the joint property---Limitation---Period of twelve years had been provided from the date of exclusion from joint family property to enforce a right to share therein in the legacy.

(c) Estoppel---

----Admission would exclude the principle of estoppel.

(d) Pleadings---

----Pleadings could not be taken as evidence.

Jahangir Khan for Appellants.

Amanullah Durrani for Respondents Nos. 1 to 5 and 7.

Waseem Khan Jadoon for Private Respondents.

Abdul Latif Kakar, Assistant A.G. for Respondent No.13.

Date of hearing: 3rd June, 2015.

2015 M L D 1853

[Shariat Court (AJ&K)]

Before Azhar Saleem Babar, J

TAHIRA ZAIB---Appellant

Versus

GHAFFAR AHMED and 2 others---Respondents

Family Appeal No.58 of 2015, decided on 26th August, 2015.

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

----S. 25---Custody of minor and guardianship---Welfare of minor---Scope---Welfare of minor was the supreme object which had to be kept into consideration while deciding a case of guardianship and custody of ward---Maintenance of minor was a legal obligation of father---Mother had no means to maintain her minor son---Father as well as minor son were British national---United Kingdom was a welfare State and it could be legally presumed that State was responsible for welfare of its citizens---If father failed to fulfil his responsibility to maintain his minor son then State (UK) was there to fulfil its obligations---Parents of minor had entered into other marriages---Minor who was 8 years of age had a prospectus of getting better education in United Kingdom---Welfare of minor was in guardianship of his father---Guardian Court would be at liberty to get its order implemented---Appeal was dismissed in circumstances.

Raja Raza Ali Khan for Appellant.

Bashir Ahmed Mughal for Respondents.

2015 M L D 330

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

MUHAMMAD ANAYAT KHAN---Appellant

Versus

Sardar MUHAMMAD ILTAF KHAN and another---Respondents

Civil Appeal No.15 of 2011, decided on 2nd July, 2014.

(On appeal from the judgment of the High Court dated 25-3-2011 in Writ Petition No.572 of 2010)

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

----S. 14---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Appeal to Supreme Court---Writ petition before High Court---Competence---Eviction of tenant---Necessary party---Scope---Ejectment petition was accepted concurrently by the Rent Controller and Appellate Court below---High Court dismissed writ petition for not impleading Rent Controller as a party in the line of respondent---Validity---Writ petition without arraying functionary who had passed an order against a party in the line of respondent was not competent---Basic order in the present case had been passed by the Rent Controller who was a necessary party and without arraying him as party in the line of respondents writ petition was not maintainable---Appellate Court had not passed the original order which was passed by the Rent Controller---Rent Controller was necessary party in the present case---No illegality was found in the impugned order passed by the High Court---Tenant was directed to hand over the vacant possession of demised premises to the landlord within specified period and he was also directed to pay rent till eviction of demised premises---Appeal was dismissed in circumstances.

National Bank of Pakistan Circle Head and 2 others v. Labour Appellate Tribunal and another 1996 PLC 411 and Syed Khurram Shah v. Mian Muhammad Shahbaz Sharif and 4 others PLD 2009 Lah. 140 rel.

National Bank of Pakistan Circle Head and 2 others v. Labour Appellate Tribunal and another 1996 PLC 411; Syed Khurram Shah v. Mian Muhammad Shahbaz Sharif and 4 others PLD 2009 Lah. 140; Zahid Mehmood Shah and 24 others v. Azad Government and 14 others 2011 SCR 159; Siraj Din v. Azad Jammu and Kashmir Government through Chief Secretary and 13 others 2012 MLD 1707; Raja Muzaffar Hussain Khan and 9 others v. Board of Revenue through Member Muzaffarabad and 26 others 2014 CLC 758 and Anam Jabbar and 6 others v. Azad Government and 12 others 2013 YLR 169 rel.

Syed Nazir Hussain Shah Kazmi, Advocate for Appellant.

Sadaqat Hussain Raja, Advocate for Respondents.

Date of hearing: 16th May, 2014.

2015 M L D 443

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

Syed NAZIR AHMED SHAH GILLANI---Appellant

Versus

Syeda NAZIA GILLANI---Respondent

Civil Appeal No.16 of 2012, decided on 19th May, 2014.

(On appeal from the judgment and decree of the Shariat Court dated 17-9-2011 in Civil Appeal No.18 of 29 of 2010)

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

---S. 5, Sched---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42---Appeal to Supreme Court---Recovery of dower---Both the Family Court and Shariat Court had concurrently decreed the suit for recovery of dower---Validity---Defendant had signed on the Nikah Nama as surety of dower amount---Out of Rs. 2,00,000 only Rs.31,000 had been paid to the wife at the time of Nikah whereas Rs.1,69,000 were still payable and defendant could not escape from the liability according to commitment made by him at the time of Nikah---Both the courts below had appreciated the record in a legal manner and had rightly come to the conclusion that wife had succeeded to prove that dower amount was fixed as Rs. 2,00,000 which was partly paid to her at the time of Nikah and remaining Rs. 1,69,000 were still payable---Shariat Court had rightly examined the statements of the witnesses produced by the defendant---No misreading or non-reading of evidence had been pointed out---Appeal was dismissed in circumstances.

Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 2000 SCR 70 rel.

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

----S. 42---Appeal before Supreme Court---Scope---Concurrent findings recorded by the courts below not interfered by the Supreme Court.

Mst. Sharifa Begum and 4 others v. Ali Afsar Khan 2006 SCR 19 rel.

(c) Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XIII, R. 4---Appeal before Supreme Court---Requirements---Copy of decree sheet was not a requirement for filing appeal before Supreme Court.

Sadaqat Hussain Raja for Appellant.

Farooq Hussain Kashmiri for Respondent.

Date of hearing: 28th April, 2014.

2015 M L D 864

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD IQBAL---Appellant

versus

AHMED DIN and 8 others---Respondents

Civil Appeal No.48 of 2013, decided on 1st July, 2014.

(On appeal from the judgment and decree of the High Court dated 13-2-2013 in civil appeal No.425/2010).

Specific Relief Act (I of 1877)---

----S. 54---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42---Appeal to Supreme Court---Suit for permanent injunction---Shamilat deh land---Possessory right, transfer of---Scope---Trial Court decreed suit which was remanded by the Appellate Court below for decision afresh---High Court on second appeal set aside the judgment and decree of Appellate Court and restored that of Trial Court---Contention of defendant was that decree of title of undivided Shamilat deh land could not be granted---Validity---Trial Court had granted decree of title with regard to undivided Shamilat deh land---No right of title in Shamilat deh land could be conferred unless same was legally partitioned according to the entitlement of proportionate shares of owners of village---Vendee who had stepped into the shoes of vendor could not claim rights more than that of vendor---If any transaction of Shamilat deh land was made out then same would only transfer the possessory rights and not the title of such land---Sale deed in favour of plaintiff would only confer upon him the possessory rights vested in the vendor and not the title of sold property---Both the parties were co-owners of the village and they were entitled to proportionate share in the Shamilat deh land---Owner in the village who was in possession of a portion of Shamilat deh land was entitled to retain the same unless property was legally partitioned---Courts below fell in error of law, mis-read and non-read the evidence---Assertion of defendant was an admitted fact which had been proved from the evidence of the parties---Both the parties were in possession of the pieces of suit land but exact measurement of land in their possession was not ascertainable---Factual proposition on the basis of available evidence on record could not be resolved---First Appellate Court had rightly accepted the application for appointment of commission to ascertain the on-spot position of the parties---Impugned judgment was set aside and case was remanded to the Trial Court with the direction that a commission should be appointed to ascertain the on-spot position of the parties and thereafter decree for mandatory injunction should be granted to the extent of land proved in the possession of the parties in terms that their possession should not be interfered with illegally till the legal partition of Shamilat deh land by the competent authority---Appeal was disposed of in circumstances.

Abdul Aziz v. Abdul Hameed and 10 others 2004 YLR 2301; Barkat Ali and another v. Sultan Mehmood and 18 others 200 CLC 899 and Fojdar Khan and another v. Azad Government and 4 others 2001 CLC 920 ref.

Fojdar Khan and another v. Azad Government and 4 others 2001 CLC 920 and Barkat Ali and another v. Sultan Mehmood and 18 others 2009 CLC 899 rel.

Muhammad Zubair Raja for Appellant.

Bostan Chaudhry for Respondent No.1.

Date of hearing: 27th June, 2014.

2015 M L D 955

[Supreme Court (AJ&K)]

Before Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

MEHARBAN HUSSAIN---Appellant

versus

ZAHIDA KAUSAR and 6 others---Respondents

Civil Appeal No.91 of 2013, decided on 28th March, 2014.

(On appeal from the judgment of the Shariat Court dated 17-4-2013 in Civil Appeal No.99 of 2012).

Azad Jammu and Kashmir Family Courts Act (XI of 1993)--

----S. 5, Sched---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42---Appeal to Supreme Court---Dissolution of marriage---Khula---Scope---Both the Family Court and Shariat Court had concurrently decreed the suit for dissolution of marriage on the basis of khula---Contention of husband was that suit for dissolution of marriage was filed on the ground that he was impotent and not on the basis of khula---Validity---No law could compel wife to live with husband when she had stated that at every cost she wanted separation and was not willing to live with her husband---Spouses should be separated if it was impossible for them to live together within the limits ordained by Almighty Allah---Although main ground for seeking the decree for dissolution of marriage was that husband was impotent, however, at the same time from the statement of wife it could be conceived that she did not seem to live with the husband as a wife, in such circumstances, it would be immaterial to discuss that whether husband was potent or impotent---Marriage could be dissolved on the basis that court was satisfied that spouses could not live as husband and wife within the limits ordained by Allah and it was not necessary that same could only be dissolved on the basis of khula---Both the courts below had attended the controversy in a legal manner and passed the impugned judgments while assigning the solid reasons---No illegality or irregularity had been pointed out in the impugned judgments---Appeal was dismissed in circumstances.

Mst. Ayesha Shaheen v. Khalid Mehmood and another 2013 SCMR 1049 ref.

Qur'anic verse No.229 of Surah Al-Baqarah; Mst. Naqeeba Begum v. Abdul Khaliq 2004 YLR 1719 and Shakila Bibi v. Muhammad Farooq 1994 CLC 230 rel.

Ch. M. Suleman for Appellant.

Hafiz Fazul-ur-Rehman Dar for Respondents.

Date of hearing: 19th March, 2014.

2015 M L D 1412

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD AZAM and 3 others---Appellants

versus

KHADIM HUSSAIN and 2 others---Respondents

Civil Appeal No.68 of 2013, decided on 14th February, 2015.

(On appeal from the judgment and decree of the High Court dated 30-10-2012 in Civil Appeals Nos.34/05 and 55/06).

(a) Azad Jammu and Kashmir Supreme Court Rules, 1978--

----O. XIII, R. 3---Qanun-e-Shahadat (10 of 1984), Art. 87---Civil petition for leave to appeal---Requirements---Petitioner should lodge at least four copies of the petition for leave to appeal from the judgment and order sought to be appealed from together with grounds of appeal or application before the High Court---Provisions of O. XIII, R. 3 of Azad Jammu and Kashmir Supreme Court Rules, 1978 were mandatory and non-compliance of the same would result into dismissal of the petition for leave to appeal---Photostat copy of memorandum of appeal could not be treated as copy under O. XIII, R. 3 of Azad Jammu and Kashmir Supreme Court Rules, 1978---Petition for leave to appeal had been filed incompetently which was dismissed in circumstances.

Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 2000 SCR 70 rel.

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

----Art. 87---Public document, photostat copy of---Evidentiary value---Photostat copy of public document was not admissible unless it had been certified to be true copy by the officer concerned who had custody of the original document.

Barrister Humayun Nawaz Khan for Appellants.

Syed Nazir Hussain Shah Kazmi for Respondents.

Date of hearing: 4th February, 2015.