MLD 2016 Judgments

2016 M L D 214

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MUHAMMAD NAWAZ---Petitioner

Versus

MUHAMMAD HUSSAIN and others---Respondents

ROR No.522 of 2015, decided on 8th April, 2015.

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

----Ss. 4, 10, 30 & Sched.-II---West Pakistan Land Revenue Act (XVII of 1967), S.164---Criminal Tribe Scheme---Allotment of land under Criminal Tribe Scheme---Acquisition of proprietary rights---Implementation of decree of civil court---Petitioner, claimed that respondent who was allottee of suit land under Criminal Tribe Scheme, sold some land to father of the petitioner through agreement of sale for consideration; that respondent, refused to honour said agreement; that suit filed by the petitioner, was decreed, with the direction to District Officer (Revenue) to issue conveyance deed in favour of the petitioner; that application for implementation of the judgment and decree of the civil court filed before Additional District Collector, was dismissed with the direction to file petition before the civil court and that appeal filed by the petitioner before Additional Commissioner was dismissed---Validity---Petitioner, was claiming relief without observing the mandatory requirements of any three conditions set out in Sched.-II of the Colonization of Government Lands (Punjab) Act, 1912---Impugned order, was quite lawful---Petitioner having failed to point out any lacunae in the impugned order, order passed by Additional Commissioner (Revenue) was upheld, in circumstances.

Mehr Fakhar Raza Malana for Petitioner.

2016 M L D 488

[Board of Revenue, Punjab]

Before Nayyar Mahmood, Member (Judicial-VII)

WARYAM through Legal Heirs and others---Petitioners

Versus

SULTAN AHMAD through Legal Heirs and others---Respondents

R.O.R. No.1190 of 2014, decided on 29th October, 2015.

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

----S. 19-A---West Pakistan Land Revenue Act (XVII of 1967), S.164---Allotment of land under Co-operative Farming Scheme---Death of original allottee---Land in question was allotted to nominee of the original allottee, after death of said nominee, his legal heirs applied for transfer of the land in their favour, contending that land was allotted to their father (nominee), and their application was accepted; and Colony Assistant Collector accorded permission to enter inheritance mutation under S.19-A of Colonization of Government Lands (Punjab) Act, 1912---Later on, upon application of petitioners/legal heirs of original allottee, Colony Assistant Collector vide order held that his predecessor had already accorded permission to enter/sanction inheritance mutation in favour of legal heirs of original allottee in accordance with instructions of Board of Revenue; but while executing the said order, name of nominee of original allottee, was mentioned instead of original allottee, he accordingly ordered that lot, in question, could be devolved upon all legal heirs of the deceased original allottee in accordance with Shariat and under S.19-A of the Colonization of Government Lands (Punjab) Act, 1912 through Sehat Indraj---Additional Commissioner, vide impugned order set aside later order of Colony Assistant Collector---Validity---Additional Commissioner, had wrongly interpreted the later order of Colony Assistant Collector holding that same was without jurisdiction---Additional Commissioner, vide impugned order had committed error in holding that order of Colony Assistant Collector, was passed reviewing the earlier order of his predecessor without obtaining permission from the higher authority---No infirmity existed in order passed by Colony Assistant Collector---Order of Additional Commissioner was not sustainable in the eyes of law, which was set aside---Mutation in favour of legal heirs of nominee of original deceased allottee, was set aside; while mutation sanctioned on the basis of order of Colony Assistant Collector in favour of all legal heirs of original allottee, was upheld, in circumstances.

PLD 1974 SC 185; KLR 1986 Civil Cases 165; Mst. Memooda Fatima and others v. The State/Mst. Khan Bibi and others Review Petition No.653 of 2003 and Muhammad Nawaz (deceased) through widow v. Ghulam Hussain R.O.R. No.2161 of 2002 ref.

Mian Muhammad Siddique Kamiana for Petitioners.

Respondent No.1, in person.

Ch. Muhammad Tanveer Ijaz for Respondents Nos. 1 to 10.

Date of hearing: 25th August and 28th September, 2015.

2016 M L D 709

[Board of Revenue, Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

ASGHAR ALI and others---Petitioners

Versus

The STATE and others---Respondents

R.O.R. No.1724 of 2013, decided on 28th January, 2015.

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

----S.27---Co-operative Societies Rules, 1927, R.21---Punjab Land Revenue Act (XVII of 1967), S.164---Allotment of State land under co-operative farming scheme---Nominee appointed by original allottee---State land was originally allotted to predecessor-in-interest of the parties---Allottee was entitled for said allotment as member of the Society; and his son, the predecessor-in-interest of the petitioners was nominated as nominee---General scrutiny showed that according to eligibility register, original allottee was declared eligible for proprietary rights---Son of the original allottee (deceased) the predecessor-in-interest of the parties submitted application requesting that his nomination could be implemented in the revenue record---District Collector allowed to implement his nomination in the revenue record with mutation---Under provisions of S.27 of Co-operative Societies Act, 1925 nominee was entitled to get total share of his predecessor---Nominee could not deprive the other legal heirs from their legal rights as provided under Islamic law of inheritance---Such right was permanent; and could not be denied due to delay in finalization of the issue---Impugned order being lawful, warranted no interference---Revision petition was dismissed and impugned order, passed by Commissioner, was upheld, in circumstances.

2007 SCMR 1227 ref.

Syed Meenoo Chehr for Petitioners.

Syed Khaleeq-ur-Rehman for Respondents Nos. 3, 4 and 6.

Remaining respondents have been initiated ex parte proceedings on 15-4-2014.

2016 M L D 753

[Board of Revenue, Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MUHAMMAD IQBAL---Petitioner

Versus

LAKHNA and others---Respondents

Review Petition No.86 of 2015 in R.O.R. No.963 of 2014, decided on 25th February, 2015.

Punjab Land Revenue Act (XVII of 1967)---

----Ss. 135, 161, 163 & 164---Punjab Board of Revenue Act (XI of 1957), S.8---Review petition---Partition of land of joint khata---Tehsildar, vide impugned order approved two wandajat---Petitioner fell in a wanda where 32 persons were co-sharers---No other co-sharer had agitated the partition, which was enough to believe that other 31 co-sharers were satisfied with said partition---Contention of the petitioner, that he would suffer heavy loss in consequence of impugned partition, was baseless and without merits as minor adjustments were liable to be ignored while deciding the matter of partition---If the petitioner wanted to get his wanda separated, he could move competent forum for that purpose---When no new ground had been taken, nor any element of mis-reading/non-reading of the facts was involved, review was not competent under relevant provision of law---Review petition was dismissed and impugned order was upheld.

PLD 1950 Punjab (Rev.) 1214 and PLD 1997 SC 865 ref.

Naik Muhammad Khokher for Petitioner.

2016 M L D 1346

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MUHAMMAD BASHIR and others---Petitioners

Versus

MUHAMMAD RAMZAN and others---Respondents

R.O.R. No.1107 of 2003, decided on 15th July, 2015.

Punjab Land Revenue Act (XVII of 1967)---

----Ss. 135 & 164---Partition of land---Tehsildar, on submission of application for partition of land of joint khata, partitioned the land of joint khata; and framed wandajat of the parties accordingly---Aggrieved by that order, the petitioners filed appeal before District Officer (Revenue) with delay of about three years, which was dismissed---Revision petition was also dismissed by Executive District Officer (Revenue)---Main contentions of petitioners, were; that Tehsildar while passing order of partition, had denied opportunity of hearing to the petitioners; that, right of two minors had been jeopardized while passing such order; that area under possession of the petitioners, had been given to the respondents, and more valuable land disproportionate to the entitlement of the respondents, had been given to them through impugned partition and that no opportunity of hearing was given to the petitioners---Validity---Contention regarding opportunity of hearing, had become merely a technical plea as the matter was in litigation before various forums of law for the last 20 years and at each forum, the petitioners had availed the opportunity of hearing and lost their case at each forum---Regarding minors, with the time they had attained the age of majority, but had never assailed the impugned partition, such contention was worthless---Contention of the petitioners that area falling under their possession had been given to the respondents, was quite astonishing, as petitioners, during arguments had themselves admitted that the respondents were not in possession of even an inch of impugned land; and all the impugned land was in the possession of the petitioners---If that contention of the petitioners, was accepted, the respondents would remain landless for all times---Petitioners, being in excess possession than their entitlement were refusing the right of harvesting benefits to the respondents of their entitlement and wanted to continue with such robbery---Plea of petitioners regarding valuable land was explained by site maps and clarified the position that no injustice had been inflicted upon the parties through impugned partition, as every body had been accommodated in proportionate to his entitlement---Impugned partition had already been implemented both, in the revenue record and on ground as well, back in the year 2006; and new owners had entered through purchases---Any change in partition at present stage could cause the parties to be victim of another long, unnecessary and miserable round of litigation, which was not permissible in any circumstances---Impugned orders were upheld in circumstances.

PLD 2015 SC 15 rel.

Rana Rashid Akram for Petitioners.

Ex parte proceedings have been initiated against the respondents on 23.12.2014.

Maqbool Ahmad, Tehsildar, Gojra and Abdul Haq Patwari Halqa.

2016 M L D 1367

[Board of Revenue Punjab]

Before Waheed Akhtar Ansari, Member (Judicial-III)

MUHAMMAD IBRAHIM---Petitioner

Versus

KHAN MUHAMMAD and others---Respondents

R.O.R. No.13 of 2011, decided on 4th December, 2014.

Punjab Consolidation of Holdings Ordinance (VI of 1960)---

----S. 13---Punjab Land Revenue Act (XVII of 1967), S.164---Consolidation of holding---Claim of the petitioner was that, land previously owned and possessed by him, was included in the consolidation scheme of the respondents; that petitioner came to know about that fact when respondents tried to take possession of said land---Petitioner contended that he did not put his signatures on the register of scheme for the reasons that he was never ready to give his land to the respondents---Petitioner, had alleged that he had been deprived of his valuable land, which was against the spirit of law on the subject---Consolidation Scheme of Mauza concerned was confirmed by Consolidation Officer---Petitioner, feeling aggrieved by that order, filed a time barred appeal before Deputy District Officer (Consolidation), which was accepted---Said order was assailed by the respondents before the Additional Commissioner (Consolidation) through appeal; which appeal was accepted---Validity---Collector (Consolidation), sanctioned scheme; and respondents were allotted land measuring 10 Kanal, 12 Marla under such scheme; and that they sold out the same through mutation, while pendency of instant litigation which meant that respondents had accepted the impugned scheme through their conduct---Such act of the respondents had rendered themselves ineligible for the relief they obtained through impugned order of Executive District Officer (Revenue) whereby scheme was sanctioned, by selling the specific numbers allotted to them---Revision petition was accepted, and impugned order passed by Executive District Officer, was set aside.

PLD 1992 Revenue 3 rel.

Muhammad Tufail Alvi for Petitioner.

Malik Hafeez Ahmed for Respondents.

Malik Sajjad Hussain, Consolidation Officer.

Muhammad Ashraf, Patwari Consolidation.

2016 M L D 34

[Gilgit-Baltistan Chief Court]

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

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Defence and 5 others---Appellants

Versus

HASSAN SADPARA---Respondent

C.F.A. No.3 of 2012, decided on 19th August, 2015.

Civil Procedure Code (V of 1908)---

----O.VII, R. 2, Ss. 104, 144, 151, O.XLIII, Rr.1 & 2---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.71---Suit for recovery of amount---Ex parte decree, setting aside of---Restitution/ remission of decretal amount, application for---Dismissal of application---Suit for recovery of amount filed by plaintiff/respondent, having been decreed ex parte; plaintiff, filed execution proceedings in the Executing Court---Decree was satisfied through payment of the decretal amount by the defendants/appellants---Government of Pakistan, having not been made party as defendant in the suit, Government of Pakistan through Secretary Defence, assailed ex parte decree, on the plea of fraud, mis-representation and want of jurisdiction; and ex parte decree, was set aside by the Chief Court---By setting aside ex parte decree, Chief Court had paved the way to the judgment-debtors entitling them to invoke the provisions of S.144, C.P.C.---Judgment-debtors filed application under S.144, C.P.C., for restitution/remission of decreetal amount with compound interest---Trial Court dismissed said application---Validity---Defendants who were parties in the suit paid the decretal amount---Trial Court, though had noticed defect in the application, holding that same had not been filed by proper party, but despite having powers to rectify the defect by including the missing party in the application, did not include such party, rather rejected the application filed under S.144, C.P.C., resulting in miscarriage of justice---Provisions of S.144, C.P.C., were enforced, only by filing an application, provided the applicant fulfilled the conditions vide which it was mandatory that the restitution must be in respect of the decree which had been varied and reversed; that the party applying for restitution, must be entitled to the benefit under the decree reversed; and the person who had applied for restitution, was party in the suit before the Trial Court, which had passed the decree---One of the appellants who was party as defendant in the suit; and had paid the decretal amount, because of the execution proceedings, had rightly filed application for restitution---Trial Court, was required to determine the compound interest as claimed by the appellants/ judgment-debtors---Contention of respondent/decree-holder that matter be kept pending till adjudication of main suit between the parties, was repelled, because in view of ex parte decree, appellants, had been affected by paying the decretal amount, which had been reversed---Judgment-debtors, were entitled to be placed in same position as they were prior to the decree, which had been varied---Basic principle underlying right of restitution, was that a wrong done to a party by an act of court, should be rectified---Plaintiff, if would succeed in his suit pending sub judice, he would be remedied by way of payment in that suit through execution proceedings---Impugned order of the Trial Court, was set aside, and application filed under S.144, C.P.C., was remanded to the same court for adjudication on merits, in circumstances.

Dy. Attorney General for Appellant No.1.

Shafqat Wali for Appellants Nos. 2 to 6.

Amjad Hussain for Respondents.

Date of hearing: 12th August, 2015.

2016 M L D 110

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed and Yar Muhammad, JJ

RAZIULLAH---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.42 of 2012, decided on 6th April, 2015.

Penal Code (XLV of 1860)---

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Whole prosecution case was silent about the mode and manner of arrest of accused, as not a single document was appended with the case file wherefrom it could be ascertained as to how the accused was arrested---Accused was alleged to have surrendered himself before the Police with weapon of offence, but no record was produced in that regard---Inspite of alleged infliction of injuries to the person of the two deceased through stone and axe, said weapons of offence, were not found blood stained---No other blood stained items were presented before the court---Recovered axe and stone allegedly used for commission of offence, were not sent to the Forensic Science Laboratory---Investigating Officer had admitted that he had submitted the complete challan without waiting for any expert report---Prosecution had failed to prove the corroborative pieces of evidence, which were required to be proved beyond any shadow of doubt in the present case of unseen occurrence---In view of such a poor investigation, the Trial Court should not have gone for the conviction; and that too of the sentence of 7 years in a case under S.302, P.P.C.---Benefit of even a slight doubt should have gone to accused---Impugned judgment of the Trial Court was set aside and accused was discharged from the offences levelled against him; and was directed to be released, in circumstances.

2005 YLR 1128; PLD 2009 SC 53; 1993 PCr.LJ 1118; 2005 2005 PCr.LJ 1232, 2010 PCr.LJ (FSC) 1750; 2001 SCMR 424; 2001 PCr.LJ 1766; 2011 PCr.LJ 877; PLD 1975 SC 607 and PLD 2011 Lah. 84 rel.

Amjad Hussain for Appellant.

Malik Haq Nawaz for the Complainant.

Deputy Advocate General for State.

2016 M L D 240

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

MUHAMMAD ASHRAF KHAN---Petitioner

Versus

CHIEF SECRETARY/REVENUE COMMISSIONER, G.B. GILGIT and 8 others---Respondents

Civil Revision No.86 of 2015, decided on 7th September, 2015.

Civil Procedure Code (V of 1908)---

----O. XI, R.14---Production of documents---Petitioner, during pendency of appeal, filed application under O.XI, R.14, C.P.C., for production of certain documents, which was dismissed by Appellate Court---Validity---Remedy sought by the petitioner through application was quite different from the spirit and import of law (O.XI, R.14, C.P.C.)---Said law provided for the remedy at the stage of "discovery and inspection" as was evident from the Heading of O.XI, C.P.C.---Said stage had passed long ago---Remedy sought through the application was vague, as applicant had sought just directions for production of two documents referred therein and nothing else---Mere production of the documents, would not serve any purpose of either of the parties---Impugned order being correct in all respects, petition was not fit to be admitted for regular hearing.

Latif Shah for Petitioner.

Date of hearing: 7th September, 2015.

2016 M L D 288

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Muhammad, JJ

MUHAMMAD JAFFER, SENIOR MINISTER, G.B.---Petitioner

Versus

PROVINCIAL GOVERNMENT through Chief Secretary G.B. and 3 others---Respondents

Writ Petition No.105 of 2014, decided on 21st April, 2015.

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

----Art. 71(2)---Writ petition---Maintainability---Petitioner, who was senior Minister, and had claimed that, he was entitled for the use of Government vehicle and sought payment of Rs.7500 per day as rent of vehicle (car)---Petitioner had further pleaded that authorities had given him a government car, but he did not deem it a proper conveyance and requested the authorities for payment of the monthly rent for vehicle---Authorities declined the claim of the petitioner---Validity---Question raised by the petitioner was purely of civil nature, and a writ petition was not competent---Chief Court observed that for drawing amounts from the Government Exchequer, a very peculiar mechanism was adopted---Remedies sought through the writ petition, were pure questions of fact, and needed to be proved and rebutted through evidence---Authorities had not displayed any patent disparity regarding the provision of Government vehicle to the petitioner; and other members of the cabinet---Petition, being incompetent, was dismissed, in circumstances.

Manzoor Ahmed for Petitioner.

Assistant Advocate General for Respondents.

Date of hearing: 21st April, 2015.

2016 M L D 351

[Gilgit-Baltistan Chief Court]

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

Haji HAMID HUSSAIN AND SONS---Appellants

Versus

PAKISTAN TELEVISION CORPORATION LTD. through Chairman and another---Respondents

C.F.A. No.5 of 2011, decided on 5th May, 2015.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement---Limitation---Plaintiff/contractor, under-took to construct the building of the defendants according to the terms and conditions under the agreement---Plaintiff completed the construction of building in question and handed over to defendants and defendants deducted 25% amount from his bill---Plaintiff had claimed said amount as "escalation amount" in addition to the amounts of bill of actual work---Defendants refused to make the payment of escalation amount, and also to refund the deducted amount---Question of limitation was involved in the matter, but the Trial Court did not frame the issue of limitation at the stage of framing the issues, and instead, framed the same while writing the impugned judgment---Trial Court did not afford chance to the parties for adducing evidence in proof and rebuttal of issue of limitation---Issue of limitation being a mixed question of law and fact, Trial Court must have at least afforded chance to the parties for producing evidence in proof and rebuttal of the same---Case was remanded to the Trial Court with direction to afford chance to the parties for producing evidence in proof and rebuttal of issue of limitation.

Mohammad Isa for Appellants

Manzoor Ahmed for Respondents.

Date of hearing: 5th May, 2015.

2016 M L D 496

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Mohammad, JJ

The STATE---Appellant

Versus

IRFAN KARIM and 4 others---Respondents

Criminal Appeal No.36 of 2014, decided on 9th April, 2015.

Penal Code (XLV of 1860)---

----Ss. 427, 448, 353, 147, 149 & 337-A---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-L---Criminal Procedure Code (V of 1898), S.417(2-A)---Mischief, house-trespass, assault or criminal force to deter public servant from discharge of his duty, rioting, common object, causing Shajjah, Haraabah, act of terrorism, abscondence---Appeal against acquittal---Reappraisal of evidence---Deputy Advocate General, had failed to point out any misreading of evidence by Trial Court that resulted to the impugned order of acquittal---Prosecution had failed to prove the guilt of accused persons and could not produce any evidence, showing any role of accused persons in commission of the offence---No likelihood existed of recording conviction of accused persons, even, if the prosecution evidence collected during investigation, was left un-rebutted---Meritless, baseless and frivolous appeal, was dismissed, in circumstances.

Deputy Advocate General for the Appellant/State.

Raja Zia-ur-Rehman for Respondents.

Date of hearing: 9th April, 2015.

2016 M L D 586

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

YOUSUF---Petitioner

Versus

GHULAM ABBAS---Respondent

C. Rev. No.27 of 2014, decided on 26th August, 2015.

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

----O. XIII, R. 2---Documentary evidence---Production of---Scope---Gift deed---Trial Court decreed the suit against which appeal was filed wherein application was moved for production of documentary evidence by the defendant which was dismissed---Validity---Nothing was on record as to when defendant lost the document required to be produced---Trial Court had framed issues and had afforded chance to the defendant to prove gift deed---Application for production of document was based on mala fide of the defendant---No irregularity was pointed out in the impugned order passed by the Appellate Court---Revision was dismissed in circumstances.

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

----O. XIII, R. 2---Documentary evidence, production of---Object---Object of O. XIII, R. 2, C.P.C. was to afford a chance to the parties to file documentary evidence which was not in their possession at the time of filing of suit or written statement.

Akhond Mohammad Ali and Iqbal Hussain Karimi for Petitioner.

Khadim Hussain for Respondent.

2016 M L D 611

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

GOVERNMENT OF PAKISTAN through Secretary Tourism Islamabad and 4 others---Petitioners

Versus

BEHRAM KHAN---Respondent

C. Rev. No.26 of 2014, decided on 20th August, 2015.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Plaint, rejection of---Scope---Application for rejection of plaint was dismissed by the Trial Court and revision was filed which was returned for presenting the same before Chief Court---Defendants instead of presenting the same petition drafted another petition and presented the same before the Chief Court---Validity---Present petition did not contain any ground showing that defendants went through the proceedings in the District Court---Order passed by the Trial Court could be challenged in the Chief Court as value of suit was beyond the pecuniary jurisdiction of District Court---Question of waiver or otherwise under O. VII, R. 11, C.P.C. must be proved or rebutted through evidence in the trial proceedings of the suit---Revision was dismissed in circumstances---Parties would be free to prove and rebut the question of waiver or otherwise under O. VII, R. 11, C.P.C.

Shoukat Ali for Petitioners.

Mohammad Nazir for Respondent.

2016 M L D 678

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

Syed SHUJAAT ABBAS and another---Petitioners

Versus

SYED ALI and 4 others---Respondents

C.Rev. No.66 of 2013, decided on 20th August, 2015.

Civil Procedure Code (V of 1908)---

----O. XIV, R. 1---Issue, framing of---Scope---Miscellaneous application filed during pendency of the case was dismissed without framing of issues---Validity---Trial Court did not frame issues in the light of application and reply of the same---Trial Court had committed irregularity in the proceedings of the case while hearing the application---Trial Court was directed by the Chief Court to frame issues in the light of miscellaneous application and reply of the same---Order should be passed on the said application after recording evidence of the parties in proof and rebuttal of said issues---Impugned order was set aside and case was remanded to the Trial Court for completing proceedings on the miscellaneous application---Revision was allowed in circumstances.

Mohammad Nazir, Ali Khan and Abdul Rahim for Petitioners.

Syed Mohammad Ali Shah and Iqbal Hussain Karimi for Respondents.

2016 M L D 690

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

Mst. HALIM BI---Petitioner

Versus

MOHAMMAD and 14 others---Respondents

C. Rev. No.10 of 2013, decided on 1st April, 2015.

Civil Procedure Code (V of 1908)---

----S.12(2)---Suit for declaration and permanent injunction---Trial Court passed its judgment and decree---Said judgment and decree was set aside by appellate Court---Application under S.12(2), C.P.C., was moved and accepted by another Additional District Judge---Order passed by the (Additional District Judge), though was not in conflict with the previous order passed by the appellate court (Additional District Judge), but it made no sense to pass multiple orders on the same subject---When impugned order was being passed, order earlier passed by Additional District Judge was in field---Impugned order being result of mistake of court, merited to be set aside; and order earlier passed by Additional District Judge, which was in field, was upheld, in circumstances.

Akhond Mohammad Ali for Petitioner.

Ali Khan and Abdul Rahim for Respondents Nos. 1 to 12.

Khadim Hussain for Respondents Nos. 14 and 15.

Date of hearing: 1st April, 2015.

2016 M L D 740

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

ISMAIL---Petitioner

Versus

The STATE---Respondent

Criminal Misc. No.1 of 2015, decided on 10th April, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, common intention, possessing unlicensed arms---Bail, refusal of---Bail was sought on two grounds; that accused was juvenile and that co-accused having been released on bail, accused was entitled to grant of bail on rule of consistency---Court at bail stage only tentatively assessed the prosecution evidence for considering grant or refusal of bail to accused---Day light occurrence and at least 2 eye-witnesses had seen the incident---School leaving certificate of accused showed his date of birth as 2-2-1997; and at bail stage, court was bound to accept the same as correct---Opinion of Medical Board that age of accused was 14 to 16 years at the relevant time, still needed to be proved through evidence in the trial---Rule of consistency, did not attract in the case of accused as Police had discharged co-accused under S.169, Cr.P.C.; and it was still up to the Trial Court, either to charge said co-accused for the alleged offence or to accept the Police version---Bail could not be granted to accused, in circumstances.

Malik Kifayat-ur-Rehman for Petitioner.

Deputy Advocate General for the State.

Jamsheed Khan for the Complainant.

Date of hearing: 10th April, 2015.

2016 M L D 843

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

FARMAN ALI and 4 others---Petitioner

Versus

MOHAMMAD YASEEN---Respondent

C. Rev. No.1 of 2013, decided on 1st April, 2015.

Gift---

----Burden of proof---Relationship between parties was admitted---Plaintiff filed suit praying for declaration to the effect that he was entitled to the possession of the suit land as son of sister of deceased father of defendants---Defendants had very specifically averred that mother of plaintiff, gifted her share to her brother---Burden of proof shifted to the defendants---Trial court had framed issue regarding gift of suit property by mother of plaintiff in favour of his brother and father of the defendants---Issue of gift, contained a question of fact; and findings of the Trial Court on that issue were against defendants---Findings of two courts below, were concurrent; plaintiff did not challenge judgment/decree of Appellate Court---Findings of two courts below on issue of gift had attained finality---No irregularity etc. was seen in the impugned order---Revision petition was dismissed.

Khadim Hussain for Petitioners.

Sher Ali for Respondent.

Date of hearing: 1st April, 2015.

2016 M L D 865

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

ABDUL KHADI---Petitioner

Versus

The STATE---Respondent

Criminal Misc. No.84 of 2015, decided on 28th July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.379 & 392---Pakistan Arms Ordinance (XX of 1965), S.13---Theft, robbery---Possessing unlicensed arms---Bail, refusal of---After submission of challan in the Trial Court, case was fixed for framing of charge against accused and his co-accused---Trial Court had adjourned the case five times for framing charge from 25-4-2015 to 29-6-2015---Framing of charge, could not be done only because of request of accused or his counsel---Police had recovered Rs.9000, as part of stolen amount; and one of the stolen cell phone---Accused was government employee---Accused persons were using delaying tactics---Bail petition was dismissed, in circumstances.

Tanveer Akhtar Khan for Petitioner.

Deputy Advocate General for the State.

Date of hearing: 28th July, 2015.

2016 M L D 1017

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Mohammad, JJ

Dr. WASAL KHAN---Appellant

Versus

SADIQ SHAH and 3 others---Respondents

C.F.A. No.75 of 2012, decided on 12th March, 2015.

Civil Procedure Code (V of 1908)---

----O. IX, R. 13 & S. 12 (2)---Ex parte decree, setting aside of---Limitation---Filing of application under O. IX, R. 13, C.P.C. after dismissal of petition under S. 12(2), C.P.C.---Effect---Both the parties contested application filed under S. 12(2), C.P.C. for setting aside ex parte decree and thereafter moved an application under O. IX, R. 13, C.P.C. which was dismissed being time barred---Validity---High Court could undo the orders of Trial Court passed in petition under S. 12(2), C.P.C.---Orders of Trial Court having attained finality, petition under O. IX, R. 13, C.P.C. was not competent---Appeal was dismissed in circumstances.

Manzoor Ahmed for Appellant.

Munir Ahmed for Respondents.

Date of hearing: 12th March, 2014.

2016 M L D 1075

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

MIRZA KHAN and 3 others---Petitioners

Versus

MEHTAR JAN---Respondent

Civil Revision No.83 of 2014, decided on 27th April, 2015.

Civil Procedure Code (V of 1908)---

----O. XVII, R.3---Failure of defendants to produce evidence despite availing adjournments---After producing evidence by the plaintiff, case was adjourned for producing evidence of defendants---Defendants, despite availing at least 19 adjournments for producing evidence, failed to produce the same----Trial Court through impugned order struck off the right of defendants, instead of adjourning the case on payment of costs to the plaintiff---Validity---Trial Court had conducted the trial of the case casually and carelessly with regard to recording of the evidence of the defendant---Trial Court had mostly adjourned the case for the evidence of the defendants without imposing any reasonable costs etc.; and that conduct of the Trial Court encouraged the defendants for obtaining meaningless adjournments---Circumstances in which the defendants did not produce evidence, demanded imposition of heavy costs on them---Appellate Court below did not give full attention to said omissions and mistakes of the Trial Court in connection with recording the defence evidence---Both courts below had committed mistakes/omissions in conducting the case, which were irregularities inviting interference of the Chief Court---Petition was allowed; impugned orders of the courts below, were set aside; and case was remanded to the Trial Court with direction to afford opportunity to the defendants for producing evidence, subject to prior deposit of cost of Rs.15,000 payable to the plaintiff.

Munir Alam for Petitioners.

Manzoor Hussain for Respondent.

Date of hearing: 27th April, 2015.

2016 M L D 1151

[Gilgit-Baltistan Chief Court]

Before Yar Muhammad, J

SOFIA NOORBAKHSHIA, SKARDU through Representatives---Petitioners

Versus

SOFIA IMAMIA NOORBAKHSHIA, SKARDU and 2 others---Respondents

C. Rev. 150 of 2015, decided on 7th January, 2016.

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

----Ss.151 & 115---Appellate court suspending concluding para of judgment while exercising powers under S.151, C.P.C.---Revision---Competency---Section 151, C.P.C. was not applicable in the present matter---Appellate Court instead of suspending para of the judgment was required to determine some points between the parties for their compliance---Revision was not maintainable as High Court could not pass order acceptable to both the parties as arrangement for interim period---Revision was dismissed in circumstances.

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

----S.115---Revisional jurisdiction of High Court---Scope---High Court could interfere with the order passed while exercising discretionary jurisdiction if such order was perverse or illegal and had attained finality otherwise revisional jurisdiction of High Court could not be competently invoked.

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

----S.115---Revision, filing of---Requirement---All the documents which were provided to the first appellate court had to be filed with the revision.

(d) Administration of justice---

----When clear provision of law was available for dealing with an issue then discretionary and inherent power of court could not be invoked.

Shafqat Wali and Latif Shah for Petitioners.

Johar Ali for Respondents.

Date of hearing: 7th January, 2016.

2016 M L D 1316

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

GHAYAS and 3 others---Petitioners

Versus

The STATE---Respondent

Cr. Misc. No.28 of 2016, decided on 6th May, 2016.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.392 & 109---Robbery, abetment---Bail, grant of---Further inquiry---Out of four accused persons, three were not nominated in the FIR---Accused were arrested, and after exhausting the remand period, were committed to judicial lock-up---Features of accused persons, having not been given in the FIR, it was mandatory for Investigating Officer to arrange an identification parade to connect them with the crime---Mere recovery of some cash from them would not connect accused persons with alleged crime---Case of accused persons being one of further inquiry, they were admitted to bail in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss.392 & 109---Robbery, abetment---Bail, refusal of---Accused was directly charged in FIR---Accused was master mind of the episode---Sum of Rs.14,000 had been recovered from his possession, which was a further corroboratory piece of evidence---Prima facie, involvement of the accused was evident---Discretion could not be exercised in his favour---Bail was declined, in circumstances.

Sher Alam and Tanveer Akhtar for Petitioners.

Malik Sherbaz, Dy. A.G. for the State.

Date of hearing: 6th May, 2016.

2016 M L D 1370

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SADDAM---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No. 61 of 2016, decided on 29th April, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Pakistan Arms Ordinance (XX of 1965), S.13---Attempt to commit qatl-i-amd, possessing unlicensed arms---Bail, refusal of---Accused was directly charged for opening fire arm shots on the victim in promptly lodged FIR---Injury on person of victim had been declared as grievous by the Medical Officer---One .30 bore pistol had been recovered on the pointation of accused in presence of witnesses of the locality---Victim and accused were cousins inter se; and no valid reason had been shown by the defence for false implication of accused, in the crime---When mind of the court was satisfied, that the manner of occurrence, and the other details collected during investigation coincided with the story put forth by the prosecution and prima facie connected accused with the offence, concession of bail should not be allowed---When a fire-arm was shot targeting on vital part of the body, if the victim luckily survived, accused could not be rewarded concession of bail, only for the reasons that the shot did not prove fatal---Accused having failed to make out a good case for grant of bail, bail was declined.

Burhan Wali and Saddat Ullah for Petitioner.

Malik Sherbaz, Dy. A.G. for the State.

Imtiaz Hussain and Shahzad Iqbal for the Complainant.

Date of hearing: 29th April, 2016.

2016 M L D 1519

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmad and Yar Muhammad, JJ

AJAB KHAN---Appellant

Versus

FAIZ ULLAH and another---Respondents

C.F.A. No.18 of 2010, decided on 25th February, 2016.

Tort---

----Malicious Prosecution---Ingredients of malicious persecution 'Malice'---Meaning and proof---Accused was acquitted on account of mistakes in investigation---Dishonouring and defamation not proved---Police officer not impleaded in suit---Effect---Plaintiff filed suit for damages after his acquittal from the criminal case registered against him for threatening the defendant and his family and attempting to abduct his daughter---Under the tort of malicious prosecution, 'malice' meant the presence of some improper and wrongful motive that was motive other than desire to bring to justice a person whom the prosecutor honestly believed to be guilty----Ingredients of the malicious prosecution were firstly that there must be prosecution; secondly, that the prosecution must be unsuccessful; thirdly, that there must be absence of reasonable cause for the prosecution; and, fourthly, that there must be malice---Plaintiff had failed to prove existence of malice in registration of the criminal cases against him, which was the primary requirement for claiming the damages for malicious prosecution---Plaintiff had contended that the defendant registered the criminal cases against him to avoid the payment of debt, and the trial court had framed a specific issue in that regard; however, the plaintiff, being under the burden to prove said issue, had failed to substantiate said contention---Plaintiff had not examined any other witness, except recording his own statement, in proof of the issues, and even the plaintiff had failed to state his case fully---Plaintiff had never taken any steps for the recovery of alleged loan payable to him by the defendant---Actual difference between the plaintiff and defendant was that the plaintiff had extended threats to the defendants at his house after his refusal to marry his daughter with him---Plaintiff, in presence of the proof available on the record, had been acquitted of the charges because of the mistakes committed in the investigation of the case by the Investigation Officer---Plaintiff, during his statement under S. 342, Cr.P.C, had not pointed out any reason for registration of the criminal cases against him---Plaintiff had also failed to prove his contention that registration of the case had dishonoured him in the society---Plaintiff, having also alleged existence of collusion between the defendant and the police officials, had not impleaded the police officials in the suit, due to which the suit suffered for non-joinder of the necessary party---Appeal was dismissed in circumstances.

Muhammad Hussain Shahzad and Saeed Iqbal for Appellant.

Akhlaque Hussain for Respondent.

Date of hearing: 25th February, 2016.

2016 M L D 1588

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

RESIDENTS OF TASSO through Representives---Petitioners

Versus

ALL RESIDENTS OF VILLAGE STYANG DONG MOZA GODAL through Representives---Respondents

Civil Revision No.30 of 2014, decided on 18th April, 2015.

Civil Procedure Code (V of 1908)---

----O.I, Rr. 1 & 10(2)---Suit for declaration---Necessary parties---Trial Court had found that principle of res judiciata was attracted to the suit which merited dismissal---Plaintiffs/petitioners filed application under O.I, R.10(2) and O.VI, R.17 and S.151, C.P.C., praying for two distinct and separate remedies First remedy was for adding Government and Collector as defendants in the plaint; and second was for amendment in the plaint---Appellate Court, instead of passing distinct and separate orders on both the said two remedies, mingled up the two remedies, and passed the impugned order---Suit of the plaintiffs was based on a compromise, and decree---Both the compromise and decree were regarding government land, but Government and Collector, had not been impleaded to the suit---Once it was admitted that the land, which was subject matter of the suit as well as the previous suit, that entailed to the compromise and decree; both the Government and the Collector, were necessary parties to the case---Amendment of the plaint was an alternate relief---Appellate Court, had not based the impugned order on any genuine ground, but had simply dismissed the same holding that said application was filed just to linger on the litigation---Appellate Court, was legally bound to take up every proposed amendment for discussion---Propriety, or otherwise of the proposed amendment, must have been discussed distinctly, in the light of the law governing amendments---Delay in seeking amendment of pleadings, was very rarely a ground for turning down the proposed amendment, if otherwise same was genuine---Adding the Provincial Government and the Collector to the plaint was necessary---Appellate Court was directed for hearing the parties afresh; and pass appropriate order after hearing parties.

Johar Ali and Sher Baz Ali Khan for Petitioners.

Munir Ahmed for Respondents.

Date of hearing: 18th May, 2015.

2016 M L D 1974

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

AKBAR KHAN through Legal Heirs---Appellants

Versus

HUSSAIN and another---Respondents

C.S.A. No.9 of 2014, decided on 19th May, 2016.

Specific Relief Act (I of 1877)---

----S. 42----Suit for declaration on basis of inheritance---Proof---Endorsement/entry in revenue record---Evidentiary value---Once it was admitted that the parties were the legal heirs of the deceased/their grandfather, then the only question which arose was that as to how the suit property had gone into possession of the defendants, instead of proper partition of the same between the parties---Burden of proof was on the defendants to prove that the grandfather of the parties had correctly transferred the suit property in their names---No evidence was available on the record to show any such transfer in favour of the defendants, except the endorsement in the revenue record, which was not admissible---Plaintiffs had sought their sharai share in the suit property and not beyond that, which had been correctly determined as 1/5th share---Chief Court, therefore, setting aside impugned judgment and decree of the appellate court, maintained that passed by the Trial Court in favour of the plaintiffs---Second appeal was allowed in circumstances.

Ilyas, Attorney for Appellant.

2016 M L D 2027

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

SHER ALI and another---Petitioners

Versus

Dr. SIKANDAR HAYAT and another---Respondents

C. Rev. No.38 of 2014, decided on 18th May, 2016.

Civil Procedure Code (V of 1908)---

----O. XIV---Settlement of issues---Additional issues, framing of---Requirement---Suit decreed without amended written statement and without framing additional issues in view of amended plaint---Material defects in judgment and decree, existence of---Effect---Plaintiff, through the amended plaint, had introduced a different basis of the suit---Trial court had neither framed issues in the light of the amended plaint nor obtained amended written statement from the defendants, nor had the appellate court remanded the case to the Trial Court for framing additional issues---Trial court had declared the plaintiff as permanent tenant of the suit land, but the impugned judgment and decree was silent as to who was the owner of the suit land---Tenancy land had always its owner with a tenant---Trial court, while passing the impugned judgment and decree, had not granted the relief of possession to the plaintiff, although the same had been prayed for in the plaint---Appellate court, while upholding the impugned judgment and decree, had provided that the right of the Provincial Government would not be affected by the impugned judgment and decree regarding some part of the suit land, holding that part as Khalisa/government land, but the appellate court had failed to separately describe that part of the suit land---Defects existing in the impugned judgments and decrees were held to be material defects, warranting interference by the revisional Court---Chief Court, therefore, setting aside the judgments and decrees of both the courts below, remanded the case to the Trial Court for de novo trial from the stage of obtaining amended written statement from the defendants---Revision petition was allowed in circumstances.

Basharat Ali for Petitioners.

2016 M L D 2090

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

The STATE---Petitioner

Versus

SALAHUDDIN---Respondent

Criminal Misc. No.3 of 2016, decided on 6th May, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.324, 337-A, 337-F(v), 353, 147 & 148---Pakistan Arms Ordinance (XX of 1965), S.13---Attempt to commit qatl-i-amd, causing Shajjah, hashimah, assault or criminal force to deter public servant from discharging of his duty, rioting, possessing unlicensed arms---Bail, cancellation of---Documents, though showed that accused was a minor, but, when he was examined in the court, he was found quite a mature person---Person who lodged FIR was a Magistrate and present on the scene of occurrence---Such information could not be disputed---Accused was directly charged for the offences--- Trial Court had granted bail to accused in spite of holding that accused was not entitled to leniency---Grant of bail to accused by the Trial Court was wrong, as there was sufficient prima facie evidence, showing direct involvement of accused in commission of offence---Court was supposed to see, whether prima facie, evidence existed or not connecting accused with the occurrence---Bail granted to accused by the Trial Court was cancelled, in circumstances.

Deputy Advocate General for the State.

2016 M L D 431

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

MUHAMMAD ZAMAN and another---Appellants

Versus

MUHAMMAD KAREEM and 17 others---Respondents

Civil Appeal No.660 of 2009, decided on 30th September, 2015.

(a) Partition---

----Family partition---Scope---Defendant had not alienated the land in excess of his share out of total suit property---Possession of defendant on specific survey number was according to family arrangement---Such family division (arrangement) even if admitted did not extinguish the title of other co-sharers---Possession and sale of specific survey numbers would debar other co-sharers to get back such possession or challenge the instruments of alienation/sale but same would be subject to adjustment at the time of partition---No misreading or non-reading of evidence or any misconstruction of law had been committed by the courts below---Appeal was dismissed.

PLD 1978 SC (AJ&K) 75; 2007 SCR 363 and Mustafa Khan and others v. Muhammad Khan and another PLD 1978 SC (AJ&K) 75 ref.

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

----S. 100---Second appeal---Scope---Concurrent findings of facts could not be gone into until and unless there was some misreading, non-reading of record or some misconstruction of any law.

Raja Khalid Mehmood Khan for Appellants.

Babar Ali Khan for Respondents.

2016 M L D 454

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

Mst. SHAMIM AKHTAR and 4 others---Appellants

Versus

MOHAMMAD ASHRAF and 8 others---Respondents

Civil Appeal No.87 of 2010, decided on 12th August, 2015.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & O. XX, R. 5---Suit for declaration---Plaint, rejection of---Cause of action---Scope---Plaintiff filed suit for declaration wherein she challenged power of attorney, gift deed and sale mutation but plaint was rejected for want of cause of action---Validity---Donees were not in possession on the suit land---Fact of limitation from the date of knowledge coupled with the fact of possession over the suit property were issues of facts---Impugned judgment was against the spirit of O. XX, R. 5, C.P.C.---Issues framed by the Trial Court were subject to evidence---Present suit should have been decided on merits---Trial Court was bound to resolve the controversy after recording evidence of the parties---Impugned judgments and decrees passed by both the courts below were set aside and case was remanded to the Trial Court for decision afresh.

Noor Hussain v. Mohammad Nazim and others 1999 CLC 1146 rel.

Sardar Abdul Khaliq Khan for Appellants.

Respondents Nos.1 and 2 present in person, whereas Respondent No.3 present through (Attorney Muhammad Ashraf respondent No.1 and father of respondent No.3). Respondents Nos.4, 6 and 7 already proceeded ex-parte. Respondent No.5, 8 & 9 (deceased) deleted vide orders dated 19.11.2013, 16.06.2014 and 23.09.2014.

2016 M L D 523

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

MUHAMMAD RASHEED---Petitioner

Versus

Ch. MUNSHI KHAN and 7 others---Respondents

Revision Petition No.58 of 2004, decided on 26th November, 2015.

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

----Ss. 4 & 6---Civil Procedure Code (V of 1908), O. XXII, R. 4(3)---Suit for right of prior purchase---Death of one of the defendants during pendency of suit---Non-impleading representative-in-interest of deceased defendant---Abatement of suit---Scope---Defendant filed application for abatement of suit on the ground that legal heirs of other deceased defendant were not arrayed as party within time---Application for abatement of suit was dismissed concurrently---Validity---Amended provisions of O. XXII, R. 4(3), C.P.C. had retrospective effect---Suit filed by the plaintiff had not been abated due to death of one of the defendants---Revisions was dismissed with costs.

Nizam Din and another v. Custodian and 15 others 2011 SCR 390; Haji through his legal heirs and others v. Khuda Yar through his legal heirs and others PLD 1987 SC 453; Sardar Noor Hussain v. Chief Settlement Commissioner and others PLD 1983 SC 62; Assistant Commissioner and others v. Abdul Ghaffar and others PLD 1994 Pesh. 161; Khan Muhammad Khan and 19 others v. Saif Ali and 22 others 1999 YLR 550; Muhammad Latif Khan and 15 others v. Muhammad Ashraf Khan and 3 others 1989 CLC 2402; Muhammad Yaseen and 9 others v. Mst. Begum Noor and 9 others PLD 1978 SC (AJK) 112 and Pakistan Industrial Development Corporation (PIDC) and another v. M. Iqbal Sole Proprietor of Messrs PEMSECO and 3 others 2015 CLC 1066 ref.

Malick Hussain Shah v. Superintendent of Police Rangers 2014 SCR 1120; Mst. Hameeda Begum and another v. Mazhar Hussain and 40 others PLD 2009 SC (AJK) 1 and Abrar Hussain Shah v. The State 1992 SCR 294 rel.

Sardar Ghulam Mustafa Khan for Petitioner.

Malik Muhammad Mansha Khan for Respondent No.1.

Nemo for Respondents Nos. 2 to 8.

2016 M L D 594

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

MUHAMMAD BASHIR---Appellant

Versus

MUHAMMAD SARWAR and 2 others---Respondents

Civil Appeals Nos.206, 221, 227 of 2008, decided on 3rd May, 2014.

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

----S. 12---Transfer of Property Act (IV of 1882), S.52---Suit for specific performance of agreement to sell---Document, proof of---Procedure---Lis pendens, principle of---Applicability---Gift of mortgage property during pendency of suit---Scope---Gift ingredient of---Suit property was mortgaged in favour of plaintiff by the defendant---Defendant agreed to return the amount till 12-09-1980 and if he could not return the said amount within due date then he would be liable to register a sale deed of suit land---Defendant did not return the amount and gifted the suit property in favour of his sons---Plaintiff filed a suit for specific performance which was dismissed concurrently---Validity---Parties to the contract were bound by the wording and conditions specified in the document---Document should be proved through statement of its author and marginal witnesses---Requirement of proof of document through marginal witnesses had been exhausted in the present case---Mortgaged property could not be sold unless mortgage had been redeemed---Mortgage stood redeemed no sooner than the agreement to sell dated 12-9-1980 was executed by the mortgagor himself---Mortgagor could subsequently enter into an agreement to sell in favour of mortgagee---Defendant who could not fulfil the condition of paying off the borrowed money within prescribed period, was bound to execute sale deed in favour of plaintiff as agreed upon---Gift deed was executed by the defendant during pendency of suit which was not a valid execution---Rule of lis pendens would protect the plaintiff against alienation of suit property during pendency of suit in favour of third party---Such rule would take effect the moment suit was instituted and would remain operative up to the time suit had come to its final end in all aspects without effecting rights of decree holder---Ingredient of gift with regard to delivery of possession had not been fulfilled in the present case---Delivery of possession had not been made to the donees and gift was defective which had no legal effect---Plaintiff was entitled to the decree for specific performance of contract of suit land---Impugned judgments and decrees passed by the courts below were set aside and suit was decreed in circumstances---Defendant was directed to execute a sale deed of suit land within a specified period failing which sale deed should be executed through Nazir of the Court of Sub Registrar---Appeal was allowed in circumstances.

2007 SCR 310; 1999 CLC 828; 2000 MLD 1618 and 1999 CLC 1358 ref.

2004 SCMR 1140; 1987 MLD 394; 1990 CLC 670; PLD 1988 Lah. 717 and 1990 CLC 670 rel.

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

----S. 17---Agreement to sell, registration of---Scope---Agreement to sell was a document which did not require compulsory registration as it did not create, extinguish or assign a right in itself.

PLD 1963 (WP) Pesh. 128; PLD 1964 (WP) Lah. 490 and Muhammad Ishaq v. Erose Theatre and others PLD 1977 SC 109 rel.

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

----S.52---Lis pendens, principle of---Scope---Rule of lis pendens would protect a party against alienation of suit property during pendency of suit in favour of third party---Such rule would take effect the moment suit was instituted and would remain operative up to the time suit had come to its final end in all aspects without affecting rights of decree holder.

1987 MLD 394; 1990 CLC 670; PLD 1988 Lah. 717 and 1990 CLC 670 rel.

(d) Islamic Law---

----Gift---Ingredients---Ingredients of gift were offer by the donor, acceptance by donee and delivery of possession to the donee.

Mirza Zaidullah Khan for Appellant.

Raja Khalid Mehmood for Respondents.

2016 M L D 1144

[High Court (AJ&K)]

Before Chaudhary Jahandad Khan, J

Ch. RIASAT ALI---Petitioner

Versus

IMTIAZ BEGUM and 5 others---Respondents

Revision Petition No.20 of 2014, decided on 5th December, 2015.

(a) Malicious prosecution---

----Suit for damages---Death of a party---Effect---Plaint, rejection of---Maxim "actio personalis moritur cum persona"---Applicability---Plaintiff died during pendency of suit and his legal heirs moved application for their impleadment---Defendant filed application for rejection of plaint---Application for impleadment was accepted and that of rejection of plaint was dismissed---Validity---Damages claimed would fall in the ambit of civil nature due to which plaintiff suffered mental and physical torture, wastage of time and extinguishment of business activities---Such damages would not be rendered to the legal heirs as the alleged suffering was borne by the predecessor-in-interest of plaintiff but not his legal heirs---Application for impleadment of legal heirs of plaintiff was not maintainable in circumstances---If during proceedings of the suit one of the parties died then suit for malicious prosecution would become redundant as right to sue did not survive and same would be deemed to have been died with the dead person---Trial Court had committed illegality while rejecting the application for dismissal of suit after death of plaintiff---Maxim "actio personalis moritur cum persona" was applicable in the present case---Impugned order passed by the Trial Court was set aside and application for rejection of plaint was accepted---Suit sub-judice before the Trial Court stood dismissed for having no cause of action---Application for impleadment of legal heirs was rejected---Revision was allowed in circumstances.

Ghayyur Hussain Shah and another v. Gharib Alam PLD 1990 Lah. 432; Amir Hussain Khan v. Ghulam Akbar Khan 1993 MLD 686; Dost Muhammad v. WAPDA through Chairman 2005 YLR 2520 and Nasir Ali v. The State 2006 YLR 1550 distinguished.

Shamim Barlas v. Al-Habib Cooperative Housing Society through Secretary and another 2008 CLC 55; Shamim Akhtar and 24 others v. Mst. Fatima Bi 2001 YLR 3173; Rustomaji Dorabji v. W.H. Nurse and another AIR 1921 Madras 1 and Mian Rahim Gul Syed Kaka Khel v. District Judge (South), Karachi and others 1994 CLC 94 rel.

(b) Succession Act (XXXIX of 1925)---

----S.306---Suit for defamation---Death of a party---Effect---Suit for defamation, assault and personal injuries did not survive after the death of the either parties.

Mir Shakeelur Rehman and others v. Yahya Bakhtiar and others PLD 2010 SC 612 rel.

(c) Maxim---

----"Actio personalis moritur cum persona"---Scope.

Sardar Mohammad Azam Khan for Petitioner.

Mohammad Riaz Tabbasum for Respondents.

2016 M L D 1382

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

Ch. MUHAMMAD SHOUKAT and 7 others---Petitioners

Versus

CUSTODIAN OF EVACUEE PROPERTY, AZAD JAMMU AND KASHMIR and 4 others---Respondents

Writ Petition No.2477 of 2014, decided on 31st March, 2016.

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

----S.13---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Maintainability---Review petition before Custodian of Evacuee Property---Scope---Limitation---Where the original allottee of land stood by and saw another person dealing with the allotted property in a manner inconsistent with his right (making construction on the land) and allottee made no objection while the act was in progress, in circumstances abandoned he could not make any complaint; and by his conduct had abundant the allotment---Allotment of land, abandonments/ surrender/cancellation of---Powers of the Custodian of Evacuee Property---Scope.

Limitation for filing review petition was although 30 days, but in present case a combined application had been filed before the Custodian and relief had been granted to the respondent under S. 18-B of Pakistan Administration of Evacuee Property Act, 1957, for which no limitation period was prescribed---Since question of limitation did not arise, therefore, the argument that the review petition was time-barred needed no resolution.

Ch. Muhammad Saeed and another v. Custodian and others 2000 YLR 2386 rel.

Petitioner had taken the plea that due to his outside posting during his career and cordial relation with the original allottee, he had not obtained the allotment timely, but land in question had remained in possession of the respondent since 1977, who had constructed a house upon the same along with boundary wall, and neither predecessor-in-interest of the petitioners in his life time nor had the petitioners raised any objection at proper time when the land had been included in the land utilized by the respondent. Where a party having a right stands by and sees another dealing with the property in a manner inconsistent with the right and makes no objection while the act is in progress, then he cannot make complaint. Petitioners, therefore, by their conduct, had abandoned the allotment to the extent of the claimed land.

Wazir Hussain and 7 others v. Ali Shah and 7 others PLD 2011 SC (AJ&K) 25; Hayyat's case 1999 SCR 243 and Haji Mohammad Ashraf and another v. Development Authority Muzaffarabad and another 1995 MLD 1343 rel.

Section 18-B of Pakistan Administration of Evacuee Property Act, 1957 was a special provision which empowered the Custodian to cancel the allotment if that was proved to the satisfaction of the Custodian that the allottee had voluntarily surrendered or abandoned the allotment.

In the present case, Custodian, on having been satisfied on basis of the available record, had come to the conclusion that the predecessor-in-interest of the petitioners had remained associated during the construction of the house and boundary wall and raised no objection; therefore, abandonment of the rights with respect of the land in question had sufficiently been proved before the Custodian.

Wazir Hussain and 7 others v. Ali Shah and 7 others PLD 2011 SC (AJ&K) 25 rel.

Satisfaction of the Custodian could have been challenged on the ground that the deponent of the affidavits produced from both sides had not been examined by the Custodian, but the petitioners themselves had raised objection on the list of witnesses furnished by the respondent before the Custodian for summoning of witnesses and stated that documents might be considered without summoning the deponents.

Wazir Hussain and 7 others v. Ali Shah and 7 others PLD 2011 SC (AJ&K) 25 rel.

Party, who invites the court to adopt a procedure other than contemplated by law at the time of deciding his case, cannot subsequently blame the court for proceeding against him by following such procedure as a result of which the judgment was passed against him.

Custodian is a special tribunal and its findings supported by the record and reasons are immune from challenging in the writ jurisdiction. Custodian, in the present case, having seen the original record and considered the evidence, had rightly come to the conclusion that the allotment to the land in question had been abandoned by the predecessor-in-interest of the petitioners and later by the petitioners. Writ petition was dismissed in circumstances.

Ghulab Khan and others v. Sardar Muhammad Mumtaz Khan and others 1994 SCR 187; Muhammad Aslam and another v. Muhammad Rashid 2006 SCR 11; Muhammad Habib Khan v. Nasiri Khatoon and 11 others 2006 SCR 22; Makhan Jan and 05 others v. Custodian of Evacuee Property Azad Jammu and Kashmir, Muzaffarabad and 02 others, 2001 CLC 1149; Khawaja Ghulam Qadir and another v. The Custodian Evacuee Property and 13 others 2002 SCR 183; Muhammad Khaliq and 10 others v. Custodian of Evacuee Property and 4 others 2015 SCR 1229; Bashir Hussain alias Muhammad Basher v. Custodian of Evacuee Property Azad Jammu and Kashmir Muzaffarabad 2012 YLR 2436; 1996 CLC 254; 1992 CLC 1861; 2010 SCR 426; Zafar Iqbal v. Abdul Aziz and another; Bashir Ahmed Khan v. Custodian and others 1992 SCR 149; Pakcom Ltd. and others v. Federation of Pakistan and others PLD 2011 SC 441; Manzoor Hussain and others v. Mst. Zahoor Fatima and others 1993 SCR 115; Waqar Ahmed and another v. Khawaja Mumtaz Ashmd and 2 others 2013 SCR 1202; Sardar Muhammad Hanif Khan and another v. Raja Altaf Hussain Khan Rathore and another 2000 YLR 2386; Faiz Akbar v. Mst. Naseem Begum and 8 others 2003 YLR 2729; Muhammad Habib Khan v. Nasiri Khatoon and 11 others 2006 SCR 222; Win Pipe Industry (Pvt.) Ltd. v. Azad Govt. and 2 others 2000 MLD 172, 2002 CLC 1186 and 2002 CLC 913; PLD 2015 SC (AJK) 7; 2013 YLR 1605; 2007 SCR 263; 1994 CLC 2041; 2003 SCR 442 and 1999 PLC (C.S.) 93 ref.

(b) Administration of justice---

----Party, who invites the court to adopt a procedure other than contemplated by law at the time of deciding his case, cannot subsequently blame the court for proceeding against him following such procedure as result of which the judgment was passed against him.

Syed Nazir Hussain Shah Kazmi for Petitioners.

Abdul Rasheed Abbasi for Respondent No.2.

Nemo for Respondents.

2016 M L D 139

[Islamabad]

Before Noor ul Haq N. Qureshi and Aamer Farooq, JJ

Messrs SUMMIT BANK LTD.---Appellant

Versus

MOHAMMAD RAMZAN---Respondent

R.F.A. No.109 of 2014, decided on 29th September, 2015.

Suit for damages---

----Malicious prosecution---Award of damages---Suit for damages for allegedly wrongful complaint filed by defendant Bank against plaintiff before Police Authorities on account of dishonoured cheque---Suit was decreed by Trial Court and plaintiff was found entitled to award of damages---Validity---Nothing existed on record to establish any wrongful act committed by the defendant Bank or that on account of acts of the defendant, some loss was occasioned by the plaintiff---Mere filing of complaint before Police Authorities on basis of dishonoured cheque or outstanding finances was not a "legal wrong" and nothing existed on record which showed any loss suffered by the plaintiff entitling him to damages---Present case was therefore neither based on malicious prosecution nor any wrongful act committed by defendant---Decree of Trial Court was set aside and suit was dismissed---Appeal was allowed, accordingly.

Sultan alias Kaloo v. Haji Mohammad Khan 2014 CLD 579; Abdul Rauf v. Abdul Razzaq PLD 1994 SC 476; Aurangzeb v. Mushtaq Ahmad 2015 MLD 601 and Abdul Rehman v. Chairman, Mari Gas Company 2015 MLD 61 ref.

Aalia Tareen v. Aman Ullah Khan PLD 2005 SC 99; Abdul Rauf v. Abdul Razzaq PLD 1994 SC 476 and Sultan alias Kaloo v. Haji Mohammad Khan and another 2014 CLD 579 rel.

Raja Muqsit Nawaz Khan for Appellant.

Malik Qamar Afzal for Respondent.

2016 M L D 473

[Islamabad]

Before Muhammad Anwar Khan Kasi, C.J.

IRSHAD KHAN---Petitioner

Versus

NOUSHEEN AKHTAR and 3 others---Respondents

Writ Petition No.4787 of 2013, decided on 15th December, 2015.

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

----S.5, Sched.---Dower amount and charges for delivery of child---Determination---Husband assailed judgments and decrees passed by courts below whereby maintenance allowance was fixed and he was directed to pay dower amount and medical/delivery expenses of child---Validity---Nikahnama was a registered document and carried presumption of truth with regard to transactions executed thereunder while wife signed the same after reading it---At column No.15 of Nikahnama it was mentioned that four Tola of Gold had been given to her as part of dower consideration while no sufficient evidence to rebuff such presumption was available on record---Wife left abode of her husband at her convenience, therefore, husband's version with regard to dower stood established and he was liable to pay remaining dower amount after deducting value of ornaments at the relevant time---In absence of accurate evidence showing payment of medical expenses, the expenses awarded by Family Court were on higher side particularly when non major-surgical delivery of child was performed while wife had later claimed to have left house of her husband a month prior to birth of minor, therefore, medical checkup expenses prior to delivery were not justified---High Court modified judgment and decree passed by Family Court and reduced medical/delivery expenses from Rs.50,000/- to Rs.30,000/---Constitutional petition was allowed accordingly.

Shah Daraz Khan v. Mst. Naila 2015 MLD 73; Maj. (Rtd.) Ishtiaq Mahmood v. Mst. Zareen Gul and others 2002 CLC 1838; Daud Abdul Khaliq Mehr v. Dr. Sabira Sultana and others 2000 CLC 1823 and Maqsood Ahmad Sohail v. Mst. Abida Hanif and others 1992 MLD 219 ref.

Jameela Jahan Noor Aslam ASC for Petitioner.

Ms. Saira Khalid Rajpoot for Respondents Nos. 1 and 2.

Date of hearing: 22nd October, 2015.

2016 M L D 867

[Islamabad]

Before Miangul Hassan Aurangzeb, J

TAHIR TAJ ABBASI---Petitioner

Versus

FOP, through Secretary M/o Housing and Works and others---Respondents

C.R. No.15 of 2016, decided on 2nd February, 2016.

(a) Accommodation Allocation Rules, 2002---

----Rr. 15 (2), 3, 6 & 2 (g) & (p)---Suit for declaration---Application for rejection of plaint---Government house in possession of plaintiff previously allotted to his father before retirement from service---Plaintiff seeking allotment of such house---Scope---Contention of authorities was that accommodation in question in favour of plaintiff's father had been cancelled and his status was that of "un-authorized occupant"---Plaint was rejected by the courts below---Validity---Plaintiff was appointed on contingency basis who could not call himself a Federal government servant during his period of six months' service---Plaintiff was not eligible for government accommodation during the six months' period after his father's retirement---Benefit of Rule 15(2) of Accommodation Allocation Rules, 2002 could be extended only to serving spouse or children living with Federal government servant who might be allotted the same accommodation if eligible otherwise---Plaintiff had become a trespasser after the expiry of a period of six months from the date of retirement of his father---Plaintiff could not hold on to the government accommodation that had been allotted to his father---Plaintiff should apply for government accommodation and wait for queue/general waiting list---Both the courts below had exercised jurisdiction correctly while rejecting the plaint---No jurisdictional error or material irregularity had been pointed out in the impugned orders passed by the courts below---Revision was dismissed in circumstances.

Adnan Qureshi v. Capital Development Authority 2015 PLC (CS) 1030 rel.

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

----O. VII, R. 11---Rejection of plaint---Factors to be considered---Court could look into the averments contained in the plaint as well as its supporting documents for the purpose of deciding application for rejection of plaint---Pleadings of other side and documents brought on record alongwith the written statement could also be looked into while deciding such application.

S.M. Sham Ahmad Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338; Muhammad Saleem Ullah v. Addl. District Judge, Gujranwala PLD 2005 SC 511; Muhammad Ashraf v. Mst. Kokab Benazir Fatima 2008 CLC 1398; Mst. Mazhar Khanam v. Sheikh Saleem Ali 2004 CLC 799; Mst. Bano alias Gul Bano v. Begum Dilshad Alam 2011 CLC 88 and Muhammad Sharif v. Aziz Bibi 2011 CLC 1319 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court had limited revisional jurisdiction unless and until the judgments of the courts below were outcome of mis-reading or non-reading of evidence---High Court could not interfere with the judgments of courts below when same were in accordance with law.

Sardar Rafiq R. Sanjrani for Petitioner.

Khawaja Imtiaz Ahmad, learned Standing Counsel.

2016 M L D 1121

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD SHAHID FAHIM---Petitioner

Versus

ABDULLAH TAYYAB and 2 others---Respondents

W.P. No.116 of 2016, decided on 29th February, 2016.

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

----S. 17---Ejectment of tenant---Tentative rent, non-deposit of---Defence, striking off---Scope---Rent Controller directed the tenant to deposit tentative rent who failed to deposit the same and right of defence was struck off and eviction petition was accepted---Contention of tenant was that monthly rent was Rs. 8,000/- per month but Rent Controller fixed Rs. 15,000/- per month as the tentative rent---Validity---Tenant could have applied for correction of the incorrect figure of the tentative rent---If incorrect figure of tentative rent was mentioned then there was nothing to prevent the tenant from depositing Rs. 8,000/- before the Rent Controller---Order whereby tentative rent was fixed was unambiguous and tenant was bound to deposit the monthly rent which was Rs. 8,000/---Where tenant had failed to comply with the direction to deposit rent then Rent Controller was left with no option but to strike off the defence and direct to vacate the demised premises---Constitutional petition was dismissed in circumstances.

Muhammad Baqar Qureshi v. Mst. Razia Begum 1981 SCMR 18; Haji Saat Muhammad v. Dr. Muhammad Saleem Qureshi and another PLD 1988 Quetta 42; Tauqeer Shahid v. Additional District Judge and others 1993 CLC 2435; Syed Yaqoob Shah Bokhari v. Sheikh Shah Muhammad and others 2001 YLR 2767; Muhammad Zubair v. Mian Muhammad Zia and 7 others 2004 SCMR 1070; Muhammad Naeem Abbasi v. Mst. Muhammad Jan 2008 MLD 1659; and Mrs. Abida Mehmood and 3 others v. Malik Muhammad Bashir and 2 others 2014 YLR 1525 distinguished.

Mushtaq Admad Kiani v. Bilal Umair 2009 SCMR 1008; Bilal Abid v. District Judge (West) Islamabad 2015 YLR 2405; Shamshad Ali v. Ghulam Muhammad Chaudhry 2009 CLC 52; Hassan Ali Khan v. Additional District Judge Islamabad, 2003 CLC 1819 and Major (R) Shakil-ud-Din Ahmad v. Addl. District Judge Islamabad 2007 CLC 601 rel.

Raja Aleem Khan Abbasi for Petitioner.

Ch. Abdul Rehman Bajwa for Respondent No.1.

Date of hearing: 22nd February, 2016.

2016 M L D 1183

[Islamabad]

Before Miangul Hassan Aurangzeb, J

KHURRAM NASEER---Petitioner

Versus

JUDGE FAMILY COURT (WEST) and others---Respondents

W.P. No.662 of 2016, decided on 3rd March, 2016.

Family Courts Act (XXXV of 1964)---

----Ss.5, Sched. & 10(3), (4)---Dissolution of marriage on the basis of khula---Procedure---Family Court dissolved marriage on the basis of khula and directed the wife to return dower amount---Validity---Family Court was bound to effect compromise or reconciliation between the parties---If no compromise or reconciliation was possible, Family Court could proceed to dissolve the marriage and pass a decree for dissolution of marriage---Statement of wife alone was determinative factor for dissolution of marriage on the basis of khula---Wife had to restore Haq Mehr received by her in consideration of marriage if marriage was dissolved on the basis of khula---Family Court was not bound to establish cruelty or non-payment of maintenance allowance before dissolving a marriage on the basis of khula---Impugned order passed by the Family Court did not suffer from any jurisdictional infirmity---Constitutional petition was dismissed in limine.

Fakkhar ud Din v. Kousar Taqreem PLD 2009 Peshawar 92; Muhammad Faisal Khan v. Sadia PLD 2013 Peshawar 12; Sajid Abbas Rizvi v. Noureen PLD 2013 Sindh 348; Muhammad Ashraf Butt v. Muhammad Asif Bhatti PLD 2011 SC 905 and Muhammad Anwar v. Illyas Begum PLD 2013 SC 255 distinguished.

Sayyid Murtaza Ali Pirzada for Petitioner.

Date of hearing: 29th February, 2016.

2016 M L D 1302

[Islamabad]

Before Miangul Hassan Aurangzeb, J

FARHAD KHAN---Petitioner

Versus

ASAD ZULFIQAR and others---Respondents

W.P. No.873 of 2016, decided on 28th March, 2016.

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

----Ss. 17, 5 & 2 (g)---Eviction of tenant---Default in payment of rent---Expiry of lease period---Tenancy agreement being not registered---Effect---Eviction petition by the attorney---Scope---Tenancy agreement was required to be in writing and registered---Tenancy agreement in question was not reduced into writing and was not registered---Unregistered tenancy agreement did not create any right or interest in favour of tenant in the demised premises---Expiry of lease period could be a ground for filing an eviction petition---When there was no written rent agreement between the parties then landlord would be at liberty to institute eviction petition at any stage---Unregistered rent agreement could not be accepted in evidence to prove relationship of landlord and tenant---Eviction petition could be filed by the duly authorized attorney of landlord---When landlord was reluctant or he refused to accept rent then tenant should lose no time in making an application to the Rent Controller for deposit of rent---Tenant did not make such an application in the present case---Tenant did not deposit enhanced rent in compliance with the order of Rent Controller---Constitutional petition of tenant was dismissed in circumstances.

Sheraz Tufail v. The State 2007 SCMR 518; Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCMR 903; Mst. Jehan Ara through Attorney v. Raja Zafarullah Janjua PLD 2003 SC 277 and Muhammad Iqbal v. Syed Sohail Wajid Gillani 2004 SCMR 1607 ref.

Muhammad Ajmal Khan v. Shahid Rafique 2012 SCMR 854; Mst. Nayyar Naheed v. Malik Zaheer Ullah 2011 YLR 1535; Mehraj Din and another v. MuhamamdYasin and 2 others PLD 1968 Lah. 20; Hakim Ali v. Muhammad Salim and another 1992 SCMR 46; Zhange Guogen v. Mst. Jahanzeba Begum and others 2013 CLC 963; Unair Ali Khan and others v. Faiz Rasool and others PLD 2013 SC 190; Muhammad Imran v. Ghulam Mustafa and 6 others 2015 YLR 2683; Aslam Ali Shah v. Muhammad Azam 2015 CLC 1204; Dr. Abdul Basit v. Additional District Judge-II, Abbotabad and 2 others 2012 CLC 906; Mahesh Kumar Chawala v. Haji Abdul Karim 2011 CLC 1844; Tahir Mehmood v. National Bank of Pakistan 2015 CLC 1247; Pakistan Institute of International Affairs v. Naveed Merchand 2012 SCMR 1498 and Ahmad Jan v. Anjum-e-Islamia 2012 CLC 179 distinguished.

Mushtaq Ahmad Kiani v. Bilal Umair 2009 SCMR 1008; Chief Engineer Irrigation Department, N.-W.F.P. Peshawar and 2 others v. Mazhar Hussain and 2 others PLD 2004 SC 682; Mst. Rukhsana Bhatti v. K & N's Food (Pvt.) Ltd. and others PLD 2013 Lah. 119; M.K. Muhammad v. Muhammad Abu Bakar 1993 SCMR 200; Habib Bank Ltd. v. Dr. Munawar Ali Siddiqui 1991 SCMR 1158; Syed Abdul Rauf v. Abdul Sattar 1998 SCMR 2525 and Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 rel.

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

----S. 5---No written rent agreement---Effect---When there was no written rent agreement between the parties then landlord would be at liberty to institute eviction petition at any stage---Unregistered tenancy agreement did not create any right or interest.

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

----Art.132---When a portion of the statement of witness was not challenged during cross examination then same would be deemed to have been admitted.

Ms. Romana Shabbir Malik for Petitioner.

Raja M. Aleem Khan Abbasi for Respondent No.1.

Date of hearing: 24th March, 2016.

2016 M L D 1403

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Mrs. NAZIA SOHAIL---Appellant

Versus

Mst. IQBAL BEGUM and another---Respondents

F.A.O. No.14 of 2016, decided on 25th March, 2016.

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

----Ss. 12, 54 & 55---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---- Suit for specific performance, recovery of amount, permanent and mandatory injunction---Temporary injunction, grant of---Principles---Record of other suit not consideratble during disposal of application for interim injunction---Execution of the agreement to sell and the amount of consideration, including the amount already paid in advance and the remaining amount, had been admitted, and the parties were blaming each other for not performing the agreement within the stipulated date---Parties were also at variance as to the execution of the 'Continuation Agreement to Sell', which was yet to be determined by the trial court after recording of evidence---Defendant, however, had admitted the fact as to execution of said extension agreement in her suit for permanent injunction---Trial court, while deciding the application for interim injunction, could not take the contents of said suit into consideration because the same was not on the record of the suit---Plaintiff although had filed copies of pay orders for accumulative amount of balance sale consideration, but said amount had not been deposited in the Trial Court to establish his bona fides and/or his readiness, ability and willingness to perform the agreement to sell-Said pay orders had not been made within the period stipulated in the agreement to sell for performance of the agreement---High Court modified the impugned order making the grant of interim injunction subject to payment of the balance sale consideration in the Trial Court, failing which interim relief already granted by the Trial Court would deemed to have been recalled---Appeal was disposed of in circumstances.

Jan Muhammad v. M.A. Sattar 1980 SCMR 682; Abdul Wahid v. Noor Muhammad PLD 1993 Lah. 552; Muhammad Sharif v. Nabi Bukhsh 2012 SCMR 900; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Haji Abdul Qasim v. Builders Incorporated 1990 MLD 712 and Messrs Nusrat Kausar Gillani v. Aftab Ahmad Khan and others R.F.A. No.53 of 2013, decided on 8th March, 2016 rel.

Match Minerals Enterprises v. United Minerals Company 1993 SCMR 2078; Chief Administrator Auqaf Department v. Abdul Rauf 2005 MLD 1219; Muhammad Taj v. Arshad Mehmood 2009 SCMR 114 and Molasses Export Company Ltd. v. Consolidated Sugar Mills 1990 CLC 609 ref.

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

----O. XXXIX, Rr. 1 & 2----Temporary injunction---Findings and observations of court on application for interim injunction---Effect and nature---Findings and observations made by a court including appellate court given while disposing of an application for interim injunction, cannot have any bearing on the court while deciding the main suit; such observations are tentative in nature and cannot be termed as conclusive.

Sardar v. Islamia College Old Boys Cooperative Housing Society Limited 2002 SCMR 1298; Haji Muhammad Umar v. Asad Ali Shah and others 1994 SCMR 506; Dr. Maqbool Ahmed v. Province of the Punjab through Collector, District Rahimyar Khan and others 2001 SCMR 737; Haji Amin v. Navaid Hussain and others 2008 SCMR 133; Safdar Ahmad v. Malik Ahmad Khan 2003 MLD 1337 and Ishtiaq v. Abida Parveen 2006 YLR 20 rel.

Syed Mastan Ali Zaidi for Appellant.

Muhammad Sajjad Ahmed Bangash for Respondent No.1.

Jehangir Jadoon for Respondent No.2.

Date of hearing: 21st March, 2016.

2016 M L D 1432

[Islamabad]

Before Mohsin Akhtar Kayani, J

INSTITUTE OF SPACE TECHNOLOGY (IST)---Petitioner

Versus

HUSNAIN RIAZ and others---Respondents

C.R. No.89 of 2016, heard on 12th April, 2016.

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

----S. 151---Claim---Inherent powers under S.151, C.P.C.---Scope---Defendant (student) was awarded scholarship for completion of studies but he failed to complete the same and educational institution filed suit for recovery of amount of scholarship and penalty thereof---Defendant, during pendency of suit moved an application for release of passport and issuance of NOC which was accepted concurrently---Validity---Relief granted through the impugned order could not be granted under the procedural law---Concept of set-off could only be applied if defendant had raised cross claim---Defendant had not raised any such claim in his written statement---Main suit was for recovery of amount in which defendant could at the most claim set-off only to the extent of his amount if any and other claim i.e. release of passport as well as NOC was beyond the scope of subject matter of lis---Trial Court could not extend such relief while exercising its powers under S. 151, C.P.C. beyond the pleadings---Inherent powers did not mean unlimited powers---When relief claimed in the application had not been put forward in plaint or written statement then opposite party had not been given fair chance to explain the reasons---Inherent powers could only be exercised when powers of courts were not well defined in the procedural law or where the circumstances so warranted in aid to decide the controversial issues within the parameters of law---Subject matter which was not before the court or which had not been agitated before the court through pleadings could not be decided---Trial Court had exercised the jurisdiction not vested in it---Impugned order was set aside and Trial Court was directed to conclude the trial of the case within two months---Defendant would be at liberty to seek his relief of release of passport and issuance of NOC through independent proceedings from the competent court of law---Revision was dismissed in circumstances.

PLD 2011 SC 151 ref.

Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 distinguished.

Government of Khyber Pakhtoonkhwa through Secretary, B.O.R. and 3 others v. Mst. Khaista Jana alias Bilquis Khisro and 2 others PLD 2011 Pesh. 178; Essa Engineering Company Pvt. Ltd. and another v. Pakistan Telecommunication Company 2014 SCMR 922; Muhammad Zaki and another v. Muhammad Taqi PLD 1995 Kar. 416; Messdrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599; PESCO through Chief Executive, WAPDA House, Peshawar and 4 others v. Messrs Tariq Cold Storage through Managing Director and 3 others 2011 CLC 164; Messrs National Bank of Pakistan v. Mst. Perveen Akhtar PLD 1985 Kar. 60; Samat Kumar Mundhra v. Smt. Suman Kabra and another AIR 2005 Gauhati 154; Javaid Iqbal v. Abdul Aziz and another PLD 2006 SC 66 and Muhammad Shafiullah v. Government of Pakistan through Secretary, Parliamentary Affairs Division, Pak Secretariat, Islamabad and 5 others PLD 2002 Pesh. 50 rel.

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

----O. VI, R. 2---Pleadings---Scope---Plea which was not raised in the pleadings could not be allowed at the subsequent stage of evidence---Parties could not be allowed to travel beyond their pleadings.

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

----S. 151---Inherent powers of civil court---Scope---Civil courts had inherent powers to do complete justice between the parties and could mould the relief according to changed circumstances.

Hafiz Arfat Ahmed Ch. and Ms. Kashifa Niaz Awan for Petitioner.

Rashid Hanif for Respondents.

Date of hearing: 12th April, 2016.

2016 M L D 1490

[Islamabad]

Before Aamer Farooq and Miangul Hassan Auranzeb, JJ

ISRAR AHMED AFZAL---Petitioner

Versus

Haji MUHAMMAD AZRAM and another---Respondents

R.F.A. No.73 of 2012, decided on 26th May, 2016.

Civil Procedure Code (V of 1908)---

----O.XVII, R.3---Specific Relief Act (I of 1877), S.42---Suit for declaration---Closure of evidence---Scope---Case was not adjourned on the request of plaintiff for the date when provision of Order XVII, Rule 3, C.P.C. was invoked but because of strike by the Bar---Trial Court instead of simply dismissing the suit ought to have gone through the plaint and written statement and given its findings on merits---Impugned order and decree were set aside and matter was remanded to the Trial Court---Plaintiff was directed to produce his evidence on the date fixed and not to seek any adjournment in the case---Appeal was allowed in circumstances.

Sheikh Khurshid Mehboob Alam v. Mirza Hashim Baig and another 2012 SCMR 631; Muhammad Jameel and others v. Inayat Begum 2012 YLR 2658; Muhammad Sarwar v. Abdul Ghafoor 2007 YLR 65; Abdul Shakoor and others v. Province of Punjab and 4 others 2005 SCMR 163; Sufi Ghulam Mohyuddin v. Khushi Muhammad and 2 others 1997 SCMR 924; Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474; Sardar Muhammad Irshad Khan v. Muhammad Akram and 5 others 2008 CLC 1009; Government of Pakistan v. Messrs Hassan Khan 2003 YLR 1686; Sardar Muhammad v. Muhammad Razman and 7 others 2006 YLR 1858 and Manzoor Hussain v. Zareeda Bi and 7 others 2013 CLC 1186 ref.

Messrs Transtech Ltd. v. Messrs Tabaco Company Ltd., 2004 MLD 1242; Pakistan Telecommunication Company Limited (PTCL) and others v. Mst. Naima Ayub and others 2013 CLC 1191 and Muhammad Aslam's case 2008 SCMR 942 rel.

Sardar Shabbir Hussain for Appellant.

Raja Muhammad Aleem Khan for Respondent No.1.

Date of hearing: 3rd May, 2016.

2016 M L D 1596

[Islamabad]

Before Mohsin Akhtar Kayani, J

Mst. PARVEEN AKHTAR---Petitioner

Versus

SUBASH CHANDAR and others---Respondents

F.A.O. No.5 of 2016, decided on 30th May, 2016.

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

----S. 12---Civil Procedure Code (V of 1908), 0.V, R.19 & O.XLI, R.21---Suit for specific performance of agreement to sell---Substituted service---Procedure-- Recording of evidence---Lower Appellate Court, jurisdiction of---Appellant. assailed ex-parte decree passed by Trial Court against her---Plea raised by appellant was that process could not be issued through substituted service without recording of evidence of process server---Validity---When defendant did not reside on address given in the plaint or party was avoiding service- willfully or to prove concept. of acknowledgement of service, the Court had to frame issue and record evidence to decide application under O. XLI, R. 21, C.P.C., which had imposed duty upon the Court to verify the fact as to whether the service was duly effected or defendant was not appearing for any sufficient cause---High Court set aside the order passed by Lower Appellate Court and remanded the matter for decision afresh after framing issue on the question of due service to appellant and after recording of evidence of both the parties---Appeal was allowed accordingly.

2002 SCMR 664; PLD 1998 (Lahore) 118; 1994 CLC 391; 2003 CLC 737 and 1989 SCMR 1998 rel.

(b) Constitution of Pakistan---

---Art. 10-A---Due process of law---Scope---When disputed facts were alleged by parties which could not be resolved giving opportunity to alleging party to prove their contention through production of evidence, any opinion, order or judgment would be considered illegal and passed in violation of Art. 10-A of the Constitution.

Raja M. Aleem Khan Abbasi for Petitioner.

Muhammad Saliheen Mughal for Respondent No.1.

Malik Talat Hussain for Respondent No.2.

Ex parte for Respondent No.3.

Malik Javed Iqbal Wains for Respondent No.4.

Musharraf Khan for Respondent No.5

Mian Abdul Razzaq for Respondent No.6.

Date of hearing: 30th May, 2016.

2016 M L D 1963

[Islamabad]

Before Athar Minallah, J

SADRUDDIN HASHWANI---Petitioner

Versus

MASCO CONSTRUCTION (PVT.) LTD. and others---Respondents

C.R. No.318 of 2014, decided on 27th May, 2016.

Specific Relief Act (I of 1877)---

---- S. 12--- Civil Procedure Code (V of 1908), O. I, R. 10--- Suit for specific performance--- Necessary party, impleading of--- Three separate suits pertaining to same property were filed by different persons and petitioner was plaintiff in one of such suits--- Application filed by petitioner to be impleaded as party to remaining suits was dismissed by Trial Court--- Validity--- Petitioner denied that respondents had executed agreements to sell with other two claimants--- Petitioner claimed that he had paid a considerable amount as sale consideration--- Interest of petitioner in two suits filed by other two claimants of property was prima facie obvious--- Whether such interest in context of pending suits had any relevance or not was to be determined by Trial Court--- While deciding applications filed under O. I, R. 10, C.P.C., Trial Court did not take into consideration settled principles and law--- High Court directed that petitioner should be impleaded as defendant and his application under O. I, R. 10, C.P.C. was allowed--- Revision was allowed under circumstances.

Central Government and others v. Suleman Khan and others PLD 1992 SC 590; Rauf B. Qadri v. State Bank of Pakistan and another PLD 2002 SC 1111 and Said Alam and another v. Raja Sohrab Khan and 8 others 1970 SCMR 639 rel.

S. Naeem Bokhari, Muhammad Afzal Siddiqui, Jawad Hassan and Omer Azad for Petitioners.

Sana Ullah Zahid, Sajid Mehmood Shad, Ali Raza Kabir, Aijaz Ahmed Chadhar, Daniyal Chadhar and Ch. Riasat Ali Gondal for their respective Respondents.

2016 M L D 2006

[Islamabad]

Before Aamer Farooq, J

MAQBOOL ASSOCIATES (PVT.) LTD. and others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.196 of 2016, decided on 12th May, 2016.

(a) Public Procurement Regulatory Authority Rules, 2004---

----R.48---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Alternate remedy---Bid, rejection of---Scope---Contention of petitioners-contractors was that their bid had been rejected without any reason or justification---Validity---Constitutional petition was only to be entertained as an exception and not a rule when adequate remedy under R.48 of Public Procurement Regulatory Authority Rules, 2004 was available---Remedy provided in law could not be allowed to be abandoned or bypassed on mere whims and desires of an aggrieved party---Constitutional petition was dismissed in circumstances.

Raja Mujahid Muzaffar and others v. Federation of Pakistan and others 2012 SCMR 1651; Messrs Presson Manufacturing Limited and another v. Secretary, Ministry of Petroleum and Natural Resources and 2 others 1995 MLD 15; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Petrosin Gas Pakistan, Pvt. Ltd. v. Pakistan State Oil and another 2010 YLR 2643; Petrosin Corporation Pvt. Ltd. and 2 others v. Oil and Gas Development Company Ltd. through Managing Director 2007 CLD 578; Tariq Aziz ud Din and others; in re Human Rights Cases Nos.8340, 9504-G, 13936-G, 13635-P and 14306-G to 143309-G of 2009; 2010 SCMR 1301; Petrosin Products Pvt. Ltd. v. Federation of Pakistan through Secretary Privatization Commission 2001 CLC 1412; Techno Time Construction Company through Partner v. Punjab Highway Department through Chief Engineer and 2 others 2014 MLD 874; Petrosin Corporation Ltd. v. Oil and Gas Development Company Ltd. through Managing Director 2010 CLD 15; Messrs Michigan Rubber India Ltd. v. State of Karnataka and others 2013 SCMR 526; Ayaz Builders through Partner v. Karachi Water and Sewerage Board through Managing Director and 2 others 2007 CLC 728; Muhammad Irshad and another v. Tehsil Municipal Administration through Tehsil Nazim, Lodhran and 3 others 2006 CLC 1902; Mehboob Ali Malik v. The Province of West Pakistan and 2. The Lahore Municipal Corporation PLD 1963 (W.P.) Lah. 575 and Jamshoro Joint Venture Ltd. and others v. Khawaja Muhammad Asif and others 2014 SCMR 1858 ref.

Messrs M.K. International Local Agent of Messrs Interman Trading FZE v. Sui Southern Gas Company through M.D. and 2 others 2016 CLC 1; Messrs Khalid and Brother through Proprietor and 5 others v. Punjab Province through Secretary Housing Urban Development and Public Health Engineering Department, Punjab, Lahore and 2 others 2014 CLD 1410; Ayaz Builders through Partner v. Karachi Water and Sewerage Board through Managing Director and 2 others 2007 CLC 728; Maqbool Associates Pvt. Ltd. v. Pakistan Power Park Management Company and others 2015 MLD 1790; Messrs Arshad & Company v. Capital Development Authority, Islamabad through Chairman 2000 SCMR 1557; Al-Abbas Sugar Mills Limited v. Managing Director, Karachi Water and Sewerage Board and 2 others 2006 CLD 674; Afzal Motors Company Pvt. Ltd. v. Province of Sindh and others 2009 CLD 798; Raunaq International Ltd. v. I.V.R. Construction Ltd. and others AIR 1999 SC 393; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; 2011 MLD 1876; Institute of Chartered Accountants of Pakistan Karachi and others v. Federation of Pakistan and others 1998 SCMR 2679 and Petrosin Engineers and Contractors PTE Ltd. v. Federation of Pakistan and others 2003 MLD 646 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Disputed question of facts could not be adjudicated while exercising constitutional jurisdiction.

Arshad Nazir Mirza and Asim Shafie for Petitioners.

Wasim Sajjad, Idrees Ashraf, Rizwan Faiz Muhammad, Ahmed Atta ur Rehman and Barrister Mumtaz Ali Khan for Respondents.

2016 M L D 14

[Sindh]

Before Zafar Ahmed Rajput, J

RAISUDDIN through Legal heirs---Applicants

Versus

Mst. RABIA BEGUM and 11 others---Respondents

Civil Revision Application No.S-76 of 2013, decided on 10th November, 2014.

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

----S. 12---Limitation Act (IX of 1908), Art. 113---Qanun-e-Shahadat (10 of 1984), Arts. 79 & 117---Suit for specific performance of contract---Limitation---Period for filing a suit for specific performance of contract was 3 years which would commence from the date fixed for the performance or if no such date was fixed then when plaintiff had notice that performance had been refused---Present suit was filed after lapse of more than 10 years while time fixed for execution of sale deed was within one year from the date of execution of agreement of sale---Plaintiff had failed to explain as to why he did not file suit within three years---Plaintiff should have brought on record through cogent evidence the endeavor taken by him after expiry of one year fixed in the alleged sale agreement and refusal of defendants---Plaintiff had not mentioned as to on which date, month and year he approached to defendants for execution of sale deed---Mere serving a notice upon the defendants did not provide a cause of action to the plaintiff for maintaining suit for specific performance of contract after lapse of 10 years of alleged sale agreement---Suit of plaintiff was time barred---Defendant was not owner of suit property at the time of alleged sale agreement---Plaintiff was bound to prove his case---Alleged agreement of sale was attested by only one attesting witness which should have been attested by two witnesses---Attesting witness of sale agreement was interested witness---Plaintiff had failed to prove payment of alleged sale consideration---Plaintiff had failed to point out any misreading and non-reading of evidence or any misconceiving of fact or commission of any jurisdictional error by the courts below---No material irregularity or exercise of jurisdiction not vested in the courts or failure to exercise jurisdiction vested in it was pointed out in the impugned judgments---Revision was dismissed in limine.

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

----S. 12---Limitation Act (IX of 1908), Art. 113---Suit for specific performance of contract---Limitation---Scope---Period for filing a suit for specific performance of contract was 3 years which would commence from the date fixed for the performance or if no such date was fixed then on the notice to plaintiff that performance had been refused.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court was limited---High Court could not substitute its own view and upset the findings of facts concurrently arrived at by the courts below even if a different view was possible on reappraisal of evidence---Even incorrect decision by the court having jurisdiction and erroneous decision of fact were not revisable except in case where decision was based on no evidence or inadmissible evidence or was so perverse that grave injustice would result therefrom---Findings could only be interfered with if courts below had misread and misconstrued the evidence on record or had committed any jurisdictional error or any material irregularity and illegality in arriving at such findings.

Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88; Muhammad Bux v. Muhammad Ali 1984 SCMR 504; Kanwal Nain and others v. Fateh Khan and others PLD 1984 SC 53 and Abdul Ghaffar v. Jamaluddin 1986 CLC 747 rel.

Ghulam Sarwar Qureshi for Applicant.

Nemo for the Respondents.

2016 M L D 29

[Sindh]

Before Abdul Maalik Gaddi, J

KARAM KHATOON---Applicant

Versus

SENIOR SUPERINTENDENT OF POLICE, DISTRICT KHAIRPUR and 8 others---Respondents

Cr. M.A. No.S-298 of 2015, decided on 22nd June, 2015.

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

----S. 491----Application for restoration of custody of minor---Minor girl aged four years was forcibly removed from mother---Mother's right to restoration of custody---Scope---Mother filed criminal miscellaneous application seeking restoration of custody of four years old minor daughter claiming that she, having been ousted by her husband from his house, was living at her parents' house along with minors, and her husband had forcibly snatched minor daughter---Mother contended that she had preferential right of custody of minor, who was in tender age---Father took plea that he being legal guardian of minor had superior right to retain custody of the minor, and that mother had no sources to provide good education and take care of welfare of minor---Validity---Provisions of S. 491, Cr.P.C provided efficacious and speedy relief for release of persons kept under illegal or improper custody and was to be exercised without prejudice to right of parties to have matters finally adjudicated from guardian judge---Custody of minor, who was aged about four years, with father appeared to be irregular and improper---Minor being of tender age needed constant love, care and affection of her mother and no person was substitute of the mother---Court accepting application, directed father to hand-over custody of minor to her mother, while mother was directed to make minor accessible to father for periodical meetings---Application was accepted accordingly.

Mst. Tayyaba Khan v. Syeda Begum and another PLD 1994 Kar. 204 and Mst. Khalida Parveen v. Mohammad Sultan Mahmood and another PLD 2004 SC 1 rel.

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

----S. 491----Custody of minor, restoration of---Provisions of S. 491, Cr.P.C. provide efficacious and speedy relief for release of persons kept under illegal or improper custody and are to be exercised without prejudice to right of parties to have matters finally adjudicated by guardian judge.

Shabbir Ali Bozdar for Applicant.

Muneer Ahmed Bijarani for Respondents Nos. 5 and 6.

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

Date of hearing: 22nd June, 2015.

2016 M L D 52

[Sindh]

Before Muhammad Iqbal Kalhoro, J

NANIK RAM and others---Applicants

Versus

GHULAM AKBAR and 9 others---Respondents

Civil Revision Application No.S-2 of 2013, decided on 8th September, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11, O. VI, R. 17 & O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Rejection of plaint---Scope---Requirements---Trial Court while hearing arguments on application under Order XXXIX, Rr. 1 & 2, C.P.C. rejected plaint being not maintainable which order was maintained by the Appellate Court---Validity---Court had powers to reject the plaint suo motu without any application by the defendant when it had come to the conclusion that same did not disclose any cause of action---Incomplete suit should be taken off the file at its inception and plaintiff should be allowed to retrace his steps---Plaint could be rejected at any stage even before issuing summons to the defendants or later on at any time---Appellate or Revisional Court could also reject the plaint while hearing the appeal or revision application---Court should examine the plaint to determine the question qua the maintainability of suit at very initial stage when same was presented and if suit was not maintainable then plaint could be rejected without hearing the plaintiff---If court proceeded to issue summons to the defendant after such initial examination then it should lead to an inquiry into the matter irrespective of the facts as to whether during trial the plaintiff would be able to prove the case or not---Plaint should not be rejected summarily without allowing the plaintiff an opportunity of hearing after commencement of trial---Only averments made in the plaint and documents filed with the same were to be examined while rejecting the plaint---Court should examine the plaint minutely to determine its maintainability before issuing summons to the defendants---Filing of an application by the defendant under O.VII, Rule 11, C.P.C. was not a requirement of law and court on its own motion could proceed to reject the plaint, however plaintiff could not be non-suited without being notified about the penal action against him---Court should provide a fair opportunity to the plaintiff to bring forth his point of view or to remedy the defects by making necessary amendment in the plaint if it had determined while hearing an interlocutory application that plaint should be rejected instead of throwing him out in hasty manner---Trial Court, in the present case, while deciding application under O.XXXIX, Rr.1 & 2, C.P.C. had rejected the plaint holding that suit was barred under S.42 of Specific Relief Act, 1877---Plaintiff was not put on notice by the Trial Court to address on the questions with regard to maintainability of the suit before plaint was rejected---Plaintiff was neither afforded an opportunity to make his submissions or point of view nor he was allowed time to bring his suit within the four corners of maintainability by removing defects in the plaint---Such exercise of powers by the Trial Court could neither be considered fair nor proper---Principle of audi alteram partem had been violated by the Trial Court---Trial Court should have invited the plaintiff to make out his case maintainable after removing defects in the plaint---Plaint was examined and admitted whereof summons were issued to the defendants who filed their written statement---Trial Court had acted behind the plaintiff which was unwarranted under the law---Technical knock-out of the parties in the suit had never been looked upon favourably by the Superior Courts---Courts were required to strike balance between "justice hurried is justice buried and justice delayed is justice denied"---Courts below ought to have proceeded to decide that the relief of injunction claimed by the applicant in his suit could not be granted without granting him relief of declaration---Relief of injunction could be separate, distinct and independent of declaration---Both the courts below had passed the impugned orders in excess of jurisdiction which were set aside---Trial Court was directed to provide an opportunity to the plaintiff to satisfy it on the question of maintainability of suit and then proceed to decide the same in accordance with law---Revision was accepted in circumstances.

2003 MLD 109; 2004 MLD 1809; 2005 YLR 2167; 2011 CLC 88; 2003 CLD 335; 2005 CLC 1740; 1994 SCMR 826; 2013 MLD 1845; 2010 CLC 1931; 1996 SCMR 669; 2005 CLC 1740; PLD 1970 SC 180; 2001 MLD 1159; 2000 CLC 1524; PLD 1969 SC 65 and PLD 1991 Kar. 365 ref.

Muhammad Iqbal v. Lahore Development Authority and others 2005 YLR 2161 and Dr. Mohomed Aqeel Khan and another v. Mst. Dr. Shaharyar and 2 others 1987 MLD 2809 rel.

Mukesh Kumar and Sudhamchand for Applicants.

Sarfaraz Ali Akhund for Respondents Nos. 2, 4, 5, 6 and 7.

Shahariyar Imdad Awan, learned A.A.-G. for the State.

Date of hearing: 29th August, 2014.

2016 M L D 65

[Sindh]

Before Muhammad Ali Mazhar and Naimatullah Phulpoto, JJ

GHULAM MUHAMMAD ALI---Petitioner

Versus

PROVINCE OF SINDH through Secretary Home Department and 7 others---Respondents

C.P. No.D-5560 of 2014, decided on 12th November, 2014.

(a) Constitution of Pakistan---

---Art. 199---Constitutional petition---Scope---Dispute with regard to title of land---Factual controversy---Petitioner had already filed a civil suit for resolution of title/dispute of land in question---Disputed questions of facts and or factual controversy could not be entertained in constitutional jurisdiction for which petitioner had already availed proper remedy---Constitutional petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Harassment by the police---Nobody could be harassed and action was to be taken by the Government Functionaries and Police Department against any such person strictly in accordance with law---No harassment should be caused to the petitioner---Petitioner might also approach the concerned Police Station for protection and Station House Officer should provide protection in accordance with law---Father of missing boy might approach the concerned Station House Officer who should record statement and take necessary action for recovery of missing boy and also lodge the FIR---Petitioner would be at liberty to approach concerned Station House Officer if he had any other grievance and said Station House Officer should take action in accordance with law---Constitutional petition was disposed of accordingly.

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

----S.154---Constitution of Pakistan, Art.199---Constitutional petition---Missing person---Lodging of FIR---Father of missing boy might approach the concerned Station House Officer who should record statement and take necessary action for recovery of missing boy and also lodge the FIR.

Abdul Latif Leghari for Petitioner.

Mustafa Mahesar, A.A.-G. for the Respondents.

2016 M L D 70

[Sindh]

Before Salahuddin Panhwar, J

Mst. BHAGUL and 8 others---Appellants

Versus

ABDULLAH and others---Respondents

2nd Civil Appeal No.3 of 2007, decided on 10th November, 2014.

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

----O. XIV, R. 3 & O. XLI, Rr. 24, 25 & 31---Specific Relief Act (I of 1877), S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118---Suit for specific performance of contract---Issue, framing of---Scope---Burden of proof---When plaintiff asserted that defendant had entered a sale agreement with him, burden to prove the same was upon the plaintiff and not on the defendant---Appellate Court had no power to discuss the 'issue' framed by Trial Court by bringing any change thereon and could pass judgment within the spirit of O. XLI, R. 31, C.P.C.---Appellate Court had discretion to 'frame points for determination' but had no power to bring change in the "issues framed" by the Trial Court while discussing the same at appellate stage and could resettle the issue(s) but such resettling of issues at appellate stage could not be equated with discussing the already framed issues by causing change in such issues without notice to the parties or reference to relevant rule---Appellate Court could frame the issues but such course would require the said court to refer the matter to Trial Court for recording of additional evidence and findings thereon---'Issues' would require the parties opportunities of hearing and leading their respective evidence in proof or disproof thereof---Appellate Court, in the present case, had discussed the issue by substituting the words which had materially changed the meaning thereof---Course so adopted by the Appellate Court was not within prescribed procedure---Things should be done as demanded by the procedure and not otherwise---Both the courts below had not exercised the jurisdiction vested in them properly---Case should be remanded for re-framing the issues in accordance with law and to decide the same on merits---Trial Court was directed to decide the matter expeditiously within a specified period---Appeal was disposed of accordingly.

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

----O. XIV, R. 3---Issue, framing of---Scope---Framing of issues was not a mere formality but it was the stage through which court had to bring all the controversies in the shape of questions putting parties onto specific and clear notice of their liabilities to discharge their respective burden---Issues should be framed in such words that it must not only give a complete notice to the parties on whom burden would rest and it should also decide a material question of fact or law.

(c) Administration of justice---

----Things should be done as demanded by the procedure and not otherwise.

Arbab Ali Hakro for Appellants.

Sundardas and Muhammad Mansoor Mir for Respondents.

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

2016 M L D 86

[Sindh]

Before Syed Muhammad Farooq Shah, J

AHSAN ASAD---Petitioner

Versus

Mrs. RUBINA NAEEM and 2 others---Respondents

Constitution Petition No.1740 of 2014, decided on 22nd May, 2015.

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

----Ss. 15 & 16----Constitution of Pakistan, Art. 199---Constitutional petition---Eviction of tenant---Landlord filed application for eviction on ground of wilful default in payment of rent and for personal bona fide need---Arrears of rent---Tentative rent order---Default in payment of rent----Effect---Rent Controller struck off defence of tenant for default in payment of monthly rent ordered under section 16(2), of Sindh Rented Premises Ordinance, 1979 and ordered vacation of rented premises----Tenant took plea that he was not bound to comply with order passed under S. 16(1) of Sindh Rented Premises Ordinance, 1979 for payment of rent in court---Validity---Under S. 16(1) of Sindh Rented Premises Ordinance, 1979, Rent Controller had to make summary enquiry and to pass tentative rent order directing the tenant to deposit arrears of rent along with future rent---Order under Ss. 16(1) & 16(2) of Sindh Rented Premises Ordinance, 1979, in the present case, was passed after affording opportunity of hearing to both sides---Tenant failed to deposit the rent and also to clear utility charges within stipulated period as directed by Rent Controller---Appellate court had correctly observed that in presence of specific stipulation as to payment of rent by Rent Controller, tenant was duty bound to pay rent---No evidence was required to be recorded at time of passing tentative rent order under S. 16(1) of Sindh Rented Premises Ordinance, of 1979---Order passed under S. 16(1) of Sindh Rented Premises Ordinance, 1979 was of binding force on tenant---No illegality or gross irregularity and infirmity in concurrent findings of both courts below having been found, constitutional petition was dismissed with costs accordingly.

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

----S. 16(1)----Tentative rent order---Procedure--- No evidence was required to be recorded at time of passing tentative rent order under S.16(1) of Sindh Rented Premises Ordinance, 1979---Under S. 16(1) of Sindh Rented Premises Ordinance, 1979, Rent Controller had to make summary enquiry and to pass tentative rent order directing tenant to deposit arrears of rent along with future rent.

Lion Paper Industries (Pvt.) Ltd. v. Mrs. Sabiha Rizwan 2001 YLR 3014; Nazar Hussain and another v. Ist Additional District Judge, Karachi (East) and 2 others 2008 CLC 1415; Mrs. Wahida Salahuddin and 2 Others 2009 MLD 186; Syed Hamad Baqar Rizvi v. Nafeesul Hasan Jafri 1999 CLC 2002; Mst. Shagufta Nasir and another v. Abid Hussain and 2 others 2014 MLD 812; Mubashir Hussain Shah v. 1st Additional District and Sessions Judge Karachi-East and 2 others 2010 CLC 346; Mst. Fauzia Irfan v. Mst. Sabeeha Ishrat and 2 others 2008 CLC 1087 and Muhammad Rafique v. Muhammad Rafique and others 2008 CLC 387 rel.

Naveed Ahmed Khan for Petitioner.

Sohail Zafar Bhatti for Respondent No.1.

2016 M L D 99

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD IBRAHIM---Applicant

Versus

Mst. RASHEEDA and another---Respondents

Cr. Misc. A. Nos.377 of 2014 and 35 of 2015, decided on 26th May, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.364, 380, 506, 337-A(i) & 34---Kidnapping or abducting in order to murder, theft in dwelling house, criminal intimidation, causing Shajjah-i-Khafifah, common intention---Applications for cancellation of bail---Statement of the injured, was recorded after 24 days of the incident, and no explanation had been furnished for such delay---Prosecution story was doubtful and there were also other discrepancies therein---Considerations for cancellation of bail were different from the grounds for grant of bail---Bail granted by a court of competent jurisdiction could only be cancelled if the bail granting order had been passed in capricious manner, either without assigning reasons, or on the basis of perverse or invalid reasons; if accused attempted to tamper with the evidence, or hampered the investigation; if accused committed or attempted to commit the same offence; if accused absconded after grant of bail; if the bail granting order was patently illegal, erroneous, factually incorrect, and had resulted in miscarriage of justice---Applicant/complainant, in the present case, could not point out any such legal flaws in the impugned order, or any circumstance, which could justify the cancellation of bail, granted to accused---Mere verbal assertion of the complainant that accused, were misusing the concession of bail and that after release accused persons were extending threats to the complainant party and the witnesses, was not enough, but for establishing such plea, strong and tangible material must be produced by the complainant----Applications for cancellation of bail being without merit, were dismissed, in circumstances.

2004 SCMR 1160; 2004 SCMR 231; 2004 PCr.LJ 1447; 2008 PCr.LJ 1565; 2008 PCr.LJ 514 and 2006 PCr.LJ 252 ref.

Javed Iqbal Malik for the Applicant.

Dur Mohammad for Respondents.

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

Date of hearing: 22nd May, 2015.

2016 M L D 116

[Sindh]

Before Sadiq Hussain Bhatti, J

JIAND RAI---Petitioner

Versus

ARJAN DAS and 3 others---Respondents

Constitution Petition No.S-3186 of 2011, decided on 21st March, 2014.

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

----S.21---Constitution of Pakistan, Art.199---Constitutional petition---Application for ejectment of tenant by landlord after change of ownership from his father---Rent Controller allowed the ejectment application of the landlord on the grounds of default in payment of rent, subletting and personal bona fide need---First appeal filed by the tenant was allowed by the appellate court---Conflicting judgments of the lower courts---Effect---Even if there were not concurrent findings of fact, if the findings of the appellate court did not suffer from any jurisdictional error or any illegality, the appellate order shall not be open to challenge in constitutional petition on the ground that there was no concurrent finding of fact---No illegality, misreading or non-reading of the evidence was found in the judgment of the appellate court---Constitutional petition was dismissed.

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

----S. 18---Default in payment of rent---Notice of change of ownership---No notice under S. 18 of the Sindh Rented Premises Ordinance, 1979 was given by the landlord to the tenant regarding change of ownership---Effect---No such provision existed in the Sindh Rented Premises Ordinance, 1979 which permited a landlord to inform his tenant about change in ownership of the rented premises verbally, therefore, it was required that notice under S. 18 of the Ordinance was given by the landlord to the tenant.

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

----Ss. 10 & 15---Default in payment of rent---Landlord had himself admitted during cross-examination that rent in the first instance was sent to the landlord through money order, but he refused to accept the same---Effect---No default in payment of rent was committed by the tenant in circumstances.

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

----S. 15---Bona fide personal need of landlord---Subletting of demised premises to brother by tenant---Effect---If a brother was working in the shop of his brother then it could not be said that the shop was sublet to him by his brother---To prove bona fide need of the landlord his statement on oath was enough, however, if it was found that the landlord had made some false statement in his statement on oath or that he had suppressed some material facts, then the statement of the landlord was to be minutely considered to decide whether the need of the landlord was bona fide---Choice to select a premises rested with the landlord and the tenant or the Court could not dictate to him as to which property would be best suited for his needs but at the same time it was also necessary that the landlord came to the Court with clean hands and laid full and true facts before the Court.

Ahmed Ali Shahani for Petitioner.

Ashok Kumar K. Jamba for Respondent.

Date of hearing: 5th March, 2014.

2016 M L D 129

[Sindh]

Before Aftab Ahmed Gorar, J

Malik AQEEL AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.237 of 2012, decided on 9th May, 2013.

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

----Ss. 302(b) & 377---Qatl-i-amd and sodomy---Appreciation of evidence---DNA test report---Circumstantial evidence---Scope---Accused was convicted by Trial Court and sentenced to imprisonment for life---Validity---DNA report received by investigating officer confirmed that DNA profile obtained from swab sample of victim matched with DNA profile obtained from sample of accused---Nobody had witnessed the occurrence but strong circumstantial evidence was available which led to the conclusion that it was accused who had committed the crime---No plausible explanation was furnished to establish that complainant had involved accused in commission of alleged offence on account of certain ill-will or enmity or for any ulterior motives---Prosecution had succeeded in proving its case beyond reasonable doubt against accused---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

1993 SCMR 550; PLD 1954 FC 197; 1984 SCMR 42; 1998 SCMR 570; 1968 SCMR 161; PLD 1960 SC 223; PLD 1971 SC 541; 1985 SCMR 410 and 1992 SCMR 2088 ref.

(b) Criminal trial---

----Evidence---Related witness---Scope---Merely because complainant was related to deceased, his testimony could not be discarded.

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

----Ss.302(b) & 377---Qanun-e-Shahadat (10 of 1984), Art.38---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd and sodomy---Appreciation of evidence---Appeal against acquittal---Statement of co-accused---Scope---Trial Court acquitted the accused as only evidence against him was statement of his co-accused---Validity---Not a single witness had deposed against accused and the only piece of evidence against him was the words of co-accused, who during interrogation stated that accused had given money to him for committing murder of deceased boy---Such piece of evidence was not sufficient to convict accused and Trial Court had rightly acquitted him of the charge---Appeal was dismissed in circumstances.

Mohammad Ashraff Kazi for Appellant.

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

Date of hearing: 7th May, 2013.

2016 M L D 148

[Sindh]

Before Muhammad Junaid Ghaffar, J

H.H. GIRLS SCHOOL through Trustee and 10 others---Plaintiffs

Versus

SINDH BUILDING CONTROL AUTHORITY through Administrator and 5 others---Defendants

Suit Nos.894 and 895 of 2014, decided on 27th April, 2015.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Ad interim injunction, vacation of---Ingredients---Metropoliton Corporation could not ask the owner of aplot to leave an open space on his side of plot---Defendants had complied with the conditions of "NOC"---No violation of the approved plan had been committed by the defendants---Plaintiff(s) had to make out a prima facie case and to show that irreparable loss would be caused to them if no such injunctive order was passed in their favour---Neither any prima facie case had been made out nor the balance of convenience was in favour of plaintiffs and no irreparable loss would be caused to the plaintiffs if injunction was refused whereas if injunctive relief was granted and construction was not allowed, irreparable loss would be caused to the defendants---Ad interim orders passed by the court stood vacated/recalled.

Abdul Waheed Butt v. Mrs. Asma and 4 others 1989 CLC 1936; Messrs Khalil Jute Mills Ltd. v. United Bank Limited and 5 others 1994 SCMR 512; Nadir Khan and others v. Principal, Khyber Medical College, Peshawar and others 1995 SCMR 421; Farooq Ahmed and 2 others v. Lahore Development Authority 2006 YLR 1539 and Barkat Ali and another v. Mst. Fatima Bai and 2 others 1995 CLC 1012 ref.

M/S Excel Builders and others v. Ardeshir Cowasfee and others 1999 SCMR 2089 distinguished.

Jawad Mir Muhammadi and others v. Haroon Mirza and others PLD 2007 SC 472; Mrs. Shazadi Baber v. Hina Housing Project (Pvt.) Limited and others 1994 CLC 1601 and Sayyid Yousuf Husain Shirazi v. Pakistan Defence Housing Authority and 2 others 2010 MLD 1267 rel.

Tasawwar Ali Hashmi for Plaintiff.

Ms. Nasreen Sehto for Defendant No.1.

S. Iftikharul Hassan for Defendant No.2.

Usman Shaikh for Defendant No.4.

K.A. Wahab for Builders (in Suit No.894 of 2014).

Abdur Rahman for Builders (in Suit No.895 of 2014).

Date of hearing: 8th April, 2015.

2016 M L D 168

[Sindh]

Beforen Nazar Akbar, J

GHULAM MUSTAFA---Applicant

Versus

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

R.A. No.119 of 2001, decided on 30th September, 2015.

Specific Relief Act (I of 1877)---

----Ss. 8, 12, 42 & 52----Civil Procedure Code (V of 1908), O. XLI, R. 31---Suit for specific performance, declaration, return of articles, mesne profit and injunction---Power of attorney, revocation of---Principles---Judgment in appeal---Plaintiff filed suit claiming that he had obtained possession of suit property after paying substantial part of consideration, but defendant later unlawfully cancelled general power of attorney and illegally took back possession of suit property from tenant of plaintiff and refused to perform his part of sale contract---Both trial court and appellate court decreed the suit on admission of defendant as to execution of sale agreement---Validity---Defendant failed to point out any instance of misreading or non-reading of evidence to show that courts below had come to wrong conclusion---Defendant had admitted execution of contract of sale with plaintiff and handing over possession of suit property on realization of substantial amount and transfer of loan in favour of plaintiff---As suit property was rented out by plaintiff and plaintiff had been paying loan of House Building Finance Corporation, thus there was no justification for defendant to unilaterally cancel power of attorney without notice to plaintiff and fraudulently obtain possession by inducing tenant of respondent---Defendant had not established his defence plea through cogent evidence---Plaintiff, on the other hand, had established by cogent evidence execution of sale agreement and payment of consideration---Power of attorney was not without consideration---Defendant had not made any public notice in newspapers while revoking power of attorney---Defendant failed to prove rescission of sale agreement---Defendant's witnesses were chance witnesses---Tenant of suit property, as witness of defendant, had admitted that he was put in possession of premises by plaintiff---Persons who appeared as witness before Registrar for registration of revocation of power of attorney had not come in witness box---Contents of cancellation deed did not disclose reasons for cancelling power of attorney---Cancellation deed was contrary to terms of power of attorney, which provided that cancellation of same was to be proceeded with no objection certificate from House Building Finance Corporation---Cancellation of power of attorney after receiving entire consideration for executing same was not lawful---Appellate court, while marshalling evidence, had examined all issues framed by trial court and affirmed findings of trial court, which was sufficient compliance of provisions of O. XLI, R. 31 C.P.C.---High Court observed that appellate court was not always required to discuss each issue, unless same was reversed by first appellate court---Defendant had lingered on the matter for last twenty years---Revision petition was dismissed with cost in circumstances.

Muhammad Iftikhar v. Nazakat Ali 2010 SCMR 1868 rel.

Suresh Kumar for Applicant.

Shahzeb Abbasi for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 10th September, 2015.

2016 M L D 179

[Sindh]

Before Abdul Maalik Gaddi, J

CHANDO MAL---Appellant

Versus

OSOO and others---Respondents

Crl. Acq. Appeal No.49 of 2015, decided on 12th August, 2015.

Illegal Dispossession Act (XI of 2005)---

----Ss.3, 4, 6, 7 & 8---Criminal Procedure Code (V of 1898), S.417(2)---Illegal dispossession---Appeal against acquittal---Reappraisal of evidence---Case of appellant/complainant, was that respondents/ accused persons had forcibly occupied the land which was reserved for graveyard of the "Meghwar Community", but Mukhtiarkar, in his report did not confirm said fact---Mukhtiarkar, in his report had mentioned that respondents were residing in the premises in question since many years and that eight other families of "Meghwar Community", were also residing there---Said report of Mukhtiarkar, left no room that respondents had ever dispossessed the complainant party---Private complaint, had been filed after about seven months of the alleged incident, for which absolutely no explanation had been furnished for remaining mum for such a long time---Inference, could be drawn that, the complainant had filed the complaint against the respondents after due deliberation and consultation---If under the said facts and circumstances case was allowed further to proceed, it would amount to abuse of process of the court---Report of Assistant Commissioner, relied upon by the complainant, did not indicate that any incident had taken place on relevant date---Report of Mukhtiarkar, was latest report on the basis of spot inquiry---Appellant, in circumstances, had failed to substantiate his claim as alleged in the complaint---Ingredients/elements of S.3(1) of Illegal Dispossession Act, 2005, were also missing in the case---Trial Court while passing impugned order had appreciated all the points involved in the case---No perversity, illegality and incorrectness, had been found in the impugned order of the Trial Court---Acquittal appeal, being meritless, was dismissed, in circumstances.

Muhammad Younis v. Shahid Cheema and 2 others 2006 PCr.LJ 636; Muhammad lkhlaq and another v. Mst.Hameeda Naqvi and another 2010 MLD 523; Mst.Haseena Begum v. Salam Jawed 2009 YLR 2158 and Muhammad Afzal and another v. Muhammad Ashraf and 5 others 2006 PCr.LJ 1391 distinguished.

Suresh Kumar for Appellant.

Ali Haider Saleem, APG for the State.

Date of hearing: 12th August, 2015.

2016 M L D 190

[Sindh]

Before Shahnawaz Tariq, J

ABDUL RASHEED---Appellant

Versus

ABDUL WAHID---Respondent

II Appeal No.143 of 2010, decided on 27th November, 2014.

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

----S. 8---Easements Act (V of 1882), S. 52---Civil Procedure Code (V of 1908), O. IX, R. 9---Suit for possession and mesne profit---Fresh cause of action---Second suit, filing of---Licence---Licensee---Trial Court dismissed suit holding that after dismissal of restoration application under O. IX, R. 9, C.P.C. plaintiff had no cause of action to file second suit---Validity---Both plaints having different reliefs were filed against different defendants---When right of plaintiff was denied, repudiated and resisted then he would have a fresh cause of action to sue and the same would not be contrary to the scheme of O. IX, R. 9, C.P.C.---Plaintiff being bona fide owner of the suit property could not be deprived of his lawful rights on mere legal technicalities---Defendant being a licensee had no locus standi or vested right in the suit property---Plaintiff would be seriously prejudiced if matter was not decided on merits---Paramount consideration for a court of law was to do justice between the parties and in absence of any express bar merely on technical grounds, court should not hesitate to grant proper relief---Plaintiff permitted defendant to reside in the subject property as his younger brother without any payment of monthly rent---Defendant had no registered title or ownership document in his name and he was enjoying possession with the consent and permission of plaintiff without any consideration---Defendant resided in the suit property as a licensee and plaintiff could not claim mesne profit in lieu of occupation of the portion of said property---Proper procedure for the plaintiff was to revoke the licence of defendant by issuing notice and to institute the suit for declaration of the status of defendant as licensee and recovery of possession from the licensee---Plaintiff by filing his earlier suit for ejectment had revoked the licence of defendant---Findings recorded by the courts below were suffering from illegality and material irregularity which were set aside---Case was remanded to the Trial Court for decision of the same on merits after affording the opportunity of leading the evidence to the parties---Second appeal was disposed of in circumstances.

Habib-ur-Rahman v. Abdul Rahman and 3 others 1987 CLC 195; Numma Khan and others v. Mahmud Khan and others 1973 SCMR 289; Muhammad Sharif and others v. Muhammad Hanif and others 2010 CLC 830; Mobin Rafique and another v. Rashid Ahmed and 2 others PLD 2012 Sindh 449 and Muhammad Chuttal v. Atta Muhammad through L.Rs., 2007 SCMR 373 ref.

Habib-ur-Rahman v. Abdul Rahman and 3 others 1987 CLC 195; Numma Khan and others v. Mahmud Khan and others 1973 SCMR 289; Muhammad Sharif and others v. Muhammad Hanif and others 2010 CLC 830; Mobin Rafique and another v. Rashid Ahmed and 2 others PLD 2012 Sindh 449 and Muhammad Chuttal v. Atta Muhammad through L.Rs., 2007 SCMR 373 rel.

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

----S. 52---"License"---Meaning.

License is a valid right which is created by according permission or conferment of authority by an owner or any person authorized by him to grant such permission, to any person or group of persons to enjoy, use or avail the facility with a specific right or benefit for a specified period or continuous usage in or upon the immovable property. It does not have a proprietary status. License is subject to the will, wish and want of the grantor which can be revoked at any time by the licensor by issuing a notice of the revocation. License is a mere permission by the grantor with regard to the immoveable property and after revocation of such permission, the continuation of such right of the licensee will become illegal and wrongful.

(c) Possession---

---Kinds of.

Law recognizes four kinds of possession.

(a) by way of the registered title of ownership, (b) as tenant under the tenancy agreement, (c) as licensee with the permission and consent of the licensor and

(d) illegal possession.

(d) Administration of justice---

----Paramount consideration for a court of law was to do justice between the parties and in absence of any express bar merely on technical grounds court should not hesitate to grant proper relief.

PLD 1959 Kar. 395 rel.

Amir Saleem Ali for Appellant.

Nemo for Respondent.

Date of hearing: 16th October, 2014.

2016 M L D 206

[Sindh]

Before Shahab Sarki, J

AMEER ALI---Appellant

Versus

KHUDA BUX---Respondent

1st Civil Appeal No.S-03 of 2014, decided on 28th November, 2014.

Civil Procedure Code (V of 1908) ---

----O. XXXVII, Rr.2 & 3---Suit on the basis of negotiable instrument---Application for leave to defend---Limitation---Trial Court dismissed application for leave to defendant being barred by time and decreed the suit---Validity---Defendant appeared before the Trial Court and moved an application that he needed copies of plaint as same had not been supplied---Defendant also sought copies of the pleadings when Vakalatnama was filed by his counsel---Nothing was on record that copies of plaint and annexures were provided to the defendant---Application for leave to defend was filed within 10 days of the time when defendant was provided the copies---Application for leave to defend could not be filed prior to having copies of the plaint---Impugned judgment and decree were set aside and matter was remanded to the Trial Court for decision afresh from the stage of hearing of application for leave to defend within a specified period---Appeal was disposed of accordingly.

Ali Akber v. Gulzar Ali Shah PLD 1984 Kar. 252; Cotton Export Corporation of Pakistan (Pvt.) Ltd. v. Messrs Nagina Cotton Industries Ginning Pressing and Oil Mills and 6 others 1993 CLC 2217 and Mst. Khursheed Begum v. Ahmed Bakhsh and another PLD 1985 SC 405 ref.

Ali Akber v. Gulzar Ali Shah 1993 CLC 2217 rel.

Tariq G. Hanif Mangi for Appellant.

Miss. Lubna Jaffery for Respondent.

Date of hearing: 24th November, 2014.

2016 M L D 230

[Sindh]

Before Naimatullah Phulpoto, J

SHAHID IQBAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.98 of 2014, decided on 29th August, 2014.

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

----S. 23(1)(a)---Possessing unlicensed arms---Appreciation of evidence---Evidence of police officials---Principles---Evidence of Police Officials could not be discarded simply because they belong to the Police force---Court was not to start with any presumption against them---Where the fate of an accused in the case of recovery of unlicensed arms, hinged upon the testimony of Police Officials alone, it was essential to find out if there was any possibility of securing independent person at the time of recovery---Conviction or acquittal of an accused, would depend upon the credibility of the witnesses; as assessed by the court, but where it was possible for the Police Officials to call independent witnesses to act as Mashir, but they deliberately avoided, the court had to be very careful in weighing such evidence---Judicial approach, had to be cautious in dealing such type of evidence.

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

----S. 103---Search proceedings---Provisions of S.103, Cr.P.C. were not attracted to the case of personal search of a person, but, where alleged recovery was made from accused, place of recovery was situated in a thickly populated area, omission to secure independent mashirs from the locality, was significant; and could not be brushed aside lightly.

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

----S.23(1)(a)---Possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Prosecution had failed to prove its case against accused beyond any shadow of doubt for the reasons that despite contention of defence Counsel, arrival and Roznamcha entries, had not been produced in evidence, in order to satisfy the court that Police party had actually left at relevant time for patrolling---Non-production of departure and arrival entries in evidence would cut the roots of prosecution case---No private person of the locality had been examined in the present case---Accused in his statement under S.342, Cr.P.C., had raised plea that recovery had been foisted upon him for the political reasons---Such defence plea was rejected by the Trial Court for no obvious reasons; and dealt with by Trial Court in a very casual manner---Proper mode of appraisal of evidence in the case for the Trial Court, was to consider the reliability of each witness separately, then to examine the case as a whole, and also to examine the credibility of the prosecution witnesses in juxtaposition with each other---Mere fact that mashir of recovery, had no apparent reason to depose falsely against accused, was not sufficient to hold him trustworthy---Mere fact that prosecution witnesses, had no enmity with accused to implicate him falsely, would not render their evidence unanswerable---Truth or falsity of the statements of the prosecution witnesses, would largely depend upon the circumstances to accept the prosecution evidence, non-considering the circumstances, would be totally inconsistent with the safe administration of justice---Rubbed number pistol, recovered from the possession of accused, was sent to the Fire Arm Expert after 16 days of its recovery; and said inordinate delay had not been explained by the prosecution---Possibility could not be ruled out that it was foisted upon accused by the Police---Several circumstances existed which created serious doubt in the prosecution case---Conviction and sentence recorded against accused were set aside, extending him benefit of doubt and he was released, in circumstances.

(d) Criminal trial---

----Benefit of doubt---Benefit of all favourable circumstances in the prosecution evidence, must go to accused, regardless of whether he had taken any such plea or not.

Muhammad Nawaz and another v. The State and others PLD 2005 SC 40 rel.

Shah Imroz Khan for Appellant.

Abrar Ali Khichi, Assistant Prosecutor General Sindh for Respondent.

Date of hearing: 26th August, 2014.

2016 M L D 253

[Sindh]

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

MUHAMMAD SAMIULLAH---Petitioner

Versus

KARACHI PORT TRUST through Manager Human Resources and 8 others---Respondents

Constitutional Petition No.D-783 of 2012, decided on 14th November, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction, invocation of---Criteria---Educational Institution---Advertisement for admission in Apprenticeship Training Program---Basic qualification being Matriculation either in the Science or Technical Group only---Petitioner having Matriculation in the General Group---Scope---Assertions made by the petitioner were without any substance or convincing proof in support thereof---High Court while exercising constitutional jurisdiction could look into only settled facts which were discernable on the face of the record---If facts were settled, recognizable, noticeable, transparent, obvious, palpable and floating on the face of record, might be disputed ordinarily by the other party, High Court could act upon such facts and if same were uncertain then High Court would not embark upon the same---Allegations made by the petitioner required a process recording of evidence and its deep probe was compulsory which could not be embarked upon in exercise of constitutional jurisdiction---Petitioner had failed to pinpoint any material irregularity or lack of transparency in the selection procedure adopted by the Department for admitting the candidates for the program---Petitioner had neither collected any material nor applied to seek any information in black and white leading towards alleged wrongdoings of the department before questioning the validity of whole process---Petitioner had not provided the requisite information with regard to references of two respectable persons (Not related to the applicant)---Petitioner had not submitted complete form in all respect and did not meet eligibility requirements---No Fundamental Right of the petitioner had been violated---Petitioner could pursue his remedy before the proper forum in accordance with law---Constitutional petition was dismissed in circumstances.

Ashiq Muhammad for Petitioner.

Obaidur Rehman for Respondents Nos. 1, 3 and 8.

Date of hearing: 28th October, 2014.

2016 M L D 266

[Sindh]

Before Muhammad Shafi Siddiqui, J

Syed SHABI-UL-HASSAN KHUSRO---Plaintiff

Versus

ASAD MUSTAFA and 6 others---Defendants

Suit No.1108 of 2014, decided on 16th October, 2014.

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

----S.4---Civil Procedure Code (V of 1908), O.VII, R.11---Succession---Son of predeceased sister of deceased---Inheritance, right of---Scope---Categories of legal heirs---Plaint, rejection of---Provisions of S. 4 of Muslim Family Laws Ordinance, 1961 were applicable to a specific category of class of legal heirs i. e. sons and daughters of deceased which could not be applied to the son of predeceased sister of deceased---Sons and daughters of predeceased sister would come in the third category of legal heirs i.e. distant kindred---Shares out of assets at first were to be consumed by the sharers and left over to be consumed by the residuaries and if there were no residuaries then same had to revert back to the sharers---If sharers and residuaries were available then distant kindred were not entitled to share under Islamic Law---Both the sharers and residuaries were available in the present case and there was no question of inheritance by distant kindred---Plaintiff being in the third category of legal heirs was not entitled to inherit share from the assets left by the deceased in presence of sharers and residuaries---Plaint could not be rejected in piecemeal---Application for rejection of plaint was dismissed in circumstances.

Barkat Bibi Ghuman Bibi's case 2005 MLD 280 ref.

2007 MLD 800 rel.

(b) Islamic law---

----Inheritance---Categories of legal heirs---Categories of legal heirs were sharer, residuaries and distant kindred.

Yousuf Iqbal for Plaintiff.

Agha Zafar and Hummal Zuberi for Defendants.

Date of hearing: 16th October, 2014.

2016 M L D 278

[Sindh]

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

Messrs TRUST INVESTMENT BANK LTD. through Authorized Officer---Petitioner

Versus

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

C.P. No.D-3589 of 2013, decided on 9th September, 2015., (a) Penal Code (XLV of 1860)---

----Ss. 489-F & 420---Criminal Procedure Code (V of 1898), Ss. 87, 88, 249-A, 265-K & 561-A---Constitution of Pakistan, Art. 199---Constitutional petition---Dishonestly issuing cheque, cheating and dishonestly inducing delivery of property---Quashment of FIR---Dishonest intention, determination of---Civil proceedings vis-a-vis criminal proceedings---Principles as to their concurrent initiation, continuation and disposal---FIR availing two remedies consecutively sought to be quashed ---Complainant, a government department, had invested certain amount in a Bank, which Bank could not return the amount with profit on maturity of investment---Complainant lodged FIRs against officers of Bank, present accused, for dishonor of cheques issued for payments regarding said investment amount---Contention raised by accused was that respondent had already settled matter of said payment with the Bank by way of written agreement before registration of FIRs, on basis of which investigation officer had recommended disposal of case in "A" class, but instead, Magistrate had declared them absconders in violation of prescribed procedure and that suit on same subject matter was already pending before Banking Court---Validity---Under S. 489-F, P.P.C., offence had been made punishable on issuance of cheque dishonestly towards payment of loan or fulfillment of an obligation which was dishonoured on presentation---Word "whoever dishonestly issues a cheque" were of immense significance and meant that offence had been constituted when cheque was dishonestly issued---Police opinion was not binding on Magistrate, who had to apply his judicial mind while passing order---Pendency of civil proceedings in relation to same transaction was not legal bar to maintainability of criminal proceedings---Whether relevant cheques had been issued by accused as officers of Bank with dishonest intention and whether respondent had violated settlement agreement were matters of further inquiry, which could not be undertaken by High Court---Accused could not invoke constitutional jurisdiction as he had adequate remedy available to him before Trial Court under S.249-A or 265-K, Cr.P.C. for seeking his premature acquittal---Accused had already filed criminal miscellaneous application before High Court regarding one of FIRs in question seeking same relief which was still pending adjudication---Accused had attempted to seek identical reliefs from two different proceedings, which was not permissible---Constitutional petition was dismissed in circumstances.

Seema Fareed v. State 2008 SCMR 839 Shah Sadiq v. Muhammad Ashiq 2006 SCMR 276 rel.

(b) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), Ss. 249-A & 265-K---Constitutional petition----Adequate remedy, availability of---Bar on quashment of FIR under constitutional jurisdiction---Accused could not invoke constitutional jurisdiction as he had adequate remedy available to him before Trial Court under S.249-A or S.265-K, Cr.P.C. for seeking his premature acquittal.

(c) Administration of justice---

----Civil proceedings vis-a-vis criminal proceedings---Principles as to simultaneous initiation, continuation and disposal---Pendency of civil proceedings in relation to same transaction was not legal bar to maintainability of criminal proceedings---Both proceedings could continue concurrently as conviction for criminal offence was completely different matter from civil litigation---Civil proceedings, being separate remedy under law, criminal proceedings could be initiated side by side.

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

----S. 173----Police opinion---Police opinion is not binding on Magistrate, who has to apply his judicial mind while passing order.

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

----S. 489-F----Scope---Under S. 489-F, P.P.C., offence has been made punishable on issuance of cheque dishonestly towards payment of loan or fulfilment of an obligation of which cheque is dishonoured on presentation---Words "whoever dishonestly issues a cheque" are of immense significance and mean that offence is constituted when cheque is dishonestly issued.

Sohail Hayat Khan Rana and Arshad H. Lodhi for Petitioners.

Abdul Jabbar Qureshi, A.A.-G. and Jam Habibullah for Respondent No.1.

Munawar Malik for Respondents Nos.2 and 6.

Date of hearing: 7th September, 2015.

2016 M L D 291

[Sindh]

Before Aftab Ahmed Gorar and Amer Raza Naqvi, JJ

BASHIR AHMED DETHO---Appellant

Versus

The STATE---Respondent

Crl. Appeal No.D-88 of 2011, decided on 20th February, 2015.

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

----S.6---"Possession" of narcotic---Scope---Accused fled away by dropping charas and his bicycle containing charas---Held, that even if it was admitted that police found charas at the place mentioned in the charge, there was no sufficient evidence available that accused was the same person who left charas at the time and place mentioned in the charge---Recovery, in circumstances, was not made from the exclusive possession of accused.

(b) Criminal trial---

----Benefit of doubt---Scope---Identification of accused---Evidence of prosecution was silent as to how the accused was identified by the complainant---Case of prosecution was not free from doubt in circumstances.

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

----S.29---Recovery of narcotic substance---Appreciation of evidence---Complainant submitted that two pattis, 500 gms. each, charas was sent to the Laboratory and was sealed separately under memo of recovery---Investigation Officer, on the other hand stated that property handed over to him consisted of two parcels each containing 500 gms of charas, one for sending to Chemical Examiner at place "R" and the other at place "K" and one packet contained the remaining material---Such fact was not mentioned in complainant's statement and it was necessary for prosecution to examine the Police Constable, who according to complainant, prepared the memo of recovery---Investigation Officer further submitted that he had not himself inspected the place of alleged recovery---Contrary to Investigation Officer, complainant stated that he (the investigation officer) visited the alleged place of incident upon his pointation---Material contradictions existed in the case of prosecution in respect of alleged recovery---Accused was not directly connected with offence through sufficient evidence produced against him before Trial Court---Witnesses relied on a police constable who was not cross examined in the court---Accused was acquitted in circumstances.

Imtiaz Ahmed Shahani for Appellant.

Khadim Hussain Khoonharo, D.P.G. for Respondent.

Date of hearing: 18th February, 2015.

2016 M L D 302

[Sindh]

Before Syed Hasan Azhar Rizvi, J

AHMED KHAN---Applicant

Versus

S.S.P. DISTRICT WEST, KARACHI and 4 others---Respondents

Cr. Misc. Appl. No.148 of 2013, decided on 17th July, 2013.

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

----S. 561-A---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Quashing of proceedings---Powers of High Court---Scope---High Court, no doubt had the powers under S.561-A, Cr.P.C. to quash any proceedings pending before any subordinate court, but that could be done only to prevent an abuse of the process of court, or to secure the ends of justice, when there was no other alternate remedy available---High Court, in exercise of such powers, could take into consideration the material, which was available on the record---Powers under S.561-A, Cr.P.C. were to be exercised sparingly and in extraordinary circumstances and could not be utilized to divert the ordinary course of criminal procedure and the provisions were not meant to stifle the prosecution case, so as to interrupt or divert course of criminal procedure as laid down in the procedural statutes---In the present case, accused was arrested at the instance of informer on suspicion; and one of alleged accused was absconder---F.I.R., in the case was lodged against unknown persons---No material was available on record that there was some enmity between the deceased and accused---No incriminating articles had been recovered from the possession of accused during Police custody; and accused had not given any confessional statement---Present case was fit where extraordinary relief under S.561-A, Cr.P.C. should be allowed to accused by quashing the proceedings against him before the Trial Court; and setting aside the impugned order, as no material was available on record to connect accused with commission of offence, particularly, when the complainant himself sworn affidavit before the High Court that he had no objection, if accused be acquitted, or proceedings against him were quashed---Impugned order was set aside and proceedings pending against accused before the Trial Court, were quashed.

Mairaj Khan v. Gul Ahmed 2000 SCMR 122; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 and Bashir Ahmed v. Zafar-ul-Islam PLD 2004 SC 298 ref.

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

----S. 265-K---Acquittal of accused, application for---Application under S.265-K, Cr.P.C. for acquittal of accused, could be moved at any stage of proceedings, but such application, had to be dealt with strictly on merits in the light of relevant provisions of law---Application under S.265-K, Cr.P.C., though could be filed at any stage i.e. before or after recording of evidence, but while considering the feasibility of the application at any particular stage, the facts and circumstances of the prosecution case, had to be kept in view.

Noor Mohammad for Applicant.

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

2016 M L D 309

[Sindh]

Before Nadeem Akhtar and Sadiq Hussain Bhatti, JJ

CIVIL AVIATION AUTHORITY through Airport Manager---Appellant

Versus

SAFE AIR INTERNATIONAL (PVT.) LTD. and another---Respondents

High Court Appeal No.382 of 2003, decided on 16th September, 2014.

Civil Procedure Code (V of 1908)---

----O.VII, R.2 & O.IX, R. 6---Law Reforms Ordinance (XII of 1972), S.3---Intra court appeal---Suit for recovery of money---Ex-parte decree of partial amount---Grievance of plaintiff was that defendants were proceeded ex-parte but single Judge of High Court did not pass decree to the extent of full amount claimed in suit---Validity---Nothing was available on record to show that at any time upto September, 2002, plaintiff had sent any notice/letter to defendants claiming that amount mentioned in plaint was due against them or that the defendants had admitted their liabilities to such extent---Plaintiff was unable to substantiate its claim by cogent evidence, therefore, single Judge of High Court was justified in decreeing the suit for lesser amount on the basis of documents produced by witness of plaintiff---Intra court appeal was dismissed in circumstances.

Arif Khan for Appellant.

Nemo for Respondents.

Date of hearing: 27th August, 2014.

2016 M L D 318

[Sindh]

Before Shahab Sarki, J

Syed PERVAIZ HUSSAIN SHAH---Applicant

Versus

RAFIQUE AHMED SHAH and 10 others---Respondents

Cr. Rev. A. No.S-43 of 2011, decided on 6th February, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 342, 120-B, 147, 149 & 220---Criminal Procedure Code (V of 1898), Ss.200 & 202---Qatl-i-amd, criminal conspiracy, rioting, wrongful confinement and common object---Direct private complaint---Applicant, came to know that his brother was detained by SPO at his residence, where his brother was tortured by the Police Officials as well as private persons, and resultantly his brother died due to said torture---After conducting post mortem of deceased, applicant filed FIR, in which most of the private persons were sent up for trial, whereas the Police Officials were let off---Being dissatisfied with investigation conducted by the Police, applicant, filed direct complaint---Additional Sessions Judge, directed Judicial Magistrate to hold a preliminary enquiry to ascertain the truth or falsehood of private complaint---Judicial Magistrate, gave his preliminary opinion that prima facie, case of applicant was made out---Despite that, Additional Sessions Judge, vide impugned order dismissed the complaint filed by the applicant---Validity---To examine the complaint, only a cursory assessment was to be made to form an opinion, and in-depth assessment was not allowed---Difference was between examining the prima facie evidence at the time of issuance of process, and appraising evidence thoroughly at the stage of trial---At the stage of preliminary enquiry, the court only had to see whether there was prima facie material upon which evidence, could be recorded---In the present case, applicant/complainant and his witnesses had deposed on oath about the commission of offence---Magistrate also reported that prima facie an offence had been made out---Medical evidence, had shown that there were various injuries on the body of the deceased, which had been caused by hard and blunt weapon, which were prima facie evidence of torture as alleged by the complainant---Vide impugned order, Additional Sessions Judge, had embarked upon a very deep appreciation and minute examination of evidence, which was not warranted under the law---Impugned order, was set aside, and case was remanded to the Trial Court to issue process, and thereafter proceed with the case strictly in accordance with law.

Abdul Karim v. Noor Muhammad and 3 others 1990 MLD 2073; Noor Muhammad v. The State and others PLD 2007 SC 9; Soomar Khan v. The State and another 2006 PCr.LJ 422 and Haji Jamil Hussain v. Illaqa Magistrate Section 30, Multan and 7 others 2012 PCr.LJ 159 ref.

Ghulam Shabbir Dayo for Applicant.

Dareshani Ali Haider Ada for Respondents Nos.1 to 8.

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

2016 M L D 333

[Sindh]

Before Syed Sajjad Ali Shah and Muhammad Junaid Ghaffar, JJ

FIRST WOMEN BANK LTD. and 2 others---Appellants

Versus

HAKIM SONS OVERSEAS TRADING (PVT.) LTD. and 4 others---Respondents

H.C.A. No.259 of 2014, decided on 20th October, 2015.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Limitation Act (IX of 1908) S. 3 & Art. 62---Nature and scope of powers of the Trial Court under O. VII, R. 11, C.P.C.---Suit for recovery and damages---Application for rejection of plaint on ground of limitation---Contention of defendant/applicant was that cause of action accrued to plaintiff on 18.11.2004 while the suit was filed on 5.11.2009 which was barred by limitation---Validity---Plaint could only be rejected under provisions of O. VII R. 11, C.P.C. on basis of admitted facts and/or material which had been disclosed in plaint, and contents of the written statement could not be considered for deciding such question with regard to limitation---Court was duty bound to see and examine as to whether on such disclosure of facts, a suit was within time or not and to see that whether the suit was barred by any law or not---If a specific objection was taken through an application under O. VII, R. 11, C.P.C. or otherwise, the court was bound to examine the plaint and reject the same forthwith if from statement made in plaint, it appeared to be barred by law---High Court observed that the court was duty bound by the use of the mandatory word "shall" in O. VII, R. 11 C.P.C., to reject the plaint if it "appears" from the statement in the plaint that the same was barred by any law---Time provided under law for instituting a suit for recovery was three years under Art. 62 of the Limitation Act, 1908, which had expired in the present case and the court must take cognizance of such legal defect on basis of material placed before it---Application under O.VII, R. 11, C.P.C. was allowed, and plaint was rejected---Appeal was allowed, in circumstances.

Haji Abdul Karim v. Messrs Florida Builders (Pvt.) Ltd. PLD 2012 SC 247 rel.

S. M. Kazim for Appellant.

Muhammad Farooq for Respondents Nos. 1 and 2.

2016 M L D 346

[Sindh]

Before Amer Raza Naqvi, J

MUHAMMAD IBRAHIM---Applicant

Versus

UMAID ALI and 4 others---Respondents

Criminal Misc. Application No.280 of 2014, decided on 5th December, 2014.

Penal Code (XLV of 1860)---

----S. 182---Criminal Procedure Code (V of 1898), Ss. 195 (1)(a) & 561-A---False complaint against public servant before police---Trial Court, direction of---Scope---Complainant was aggrieved of order passed by Trial Court, directing police to register case against him under S. 182, P.P.C.---Validity---Bar under S. 195(1)(a), Cr.P.C. was provided for the reason that language of S. 182, P.P.C. showed that aggrieved party under said section was the officer who faced inconvenience and hardship due to false complaint---Such was not in respect of remedy which could be available to accused persons who were aggrieved due to and victimized because of such complaint---Accused persons had their remedy under other provisions in Penal Code, 1860, who were at liberty to invoke such provisions---Bar contained in S. 195(1)(a), Cr.P.C. did not mean that police could not move complaint under S. 182, P.P.C.---Trial Court did not refer S. 182, P.P.C. in its order---No direction could be issued for lodging case against complainant under S. 182, P.P.C., under direction of Trial Court and it could only be done by police itself---If in a case any proceedings under S. 182, P.P.C. had to be initiated, the same should not be treated under order of Magistrate and police itself was to decide that whether or not any proceedings were warranted in such matter---Application was allowed accordingly.

1993 PCr.LJ 767; PLD 2001 Lah. 84 and 1993 PCr.LJ 1097 ref.

Abid Akram and Abdul Wahid for Applicant.

Mehmood Anwar Hussain Baluch for Respondents.

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

2016 M L D 358

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD YASEEN---Petitioner

Versus

NIZAMUDDIN through L.Rs. and 6 others---Respondents

C.P. No.S-761 of 2012, decided on 27th November, 2014.

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

----S. 15---Constitution of Pakistan, Arts.199 & 23---Constitutional petition---Ejectment of tenant---Requirement---Personal bona fide need of landlord---Denial of relationship of landlord and tenant by the tenant---Scope---One who received the rent would fall within the meaning of "landlord"---Once tenant had admitted the paying of rent to a person he could not subsequently take an exception thereto---Selection of business place was the sole prerogative of landlord if having more than one premises---Only requirement for seeking eviction of a tenant was the proof of bona fide need of landlord---Such requirement would be discharged the moment landlord appeared in the witness box and had made such statement on oath or in the form of an affidavit-in-evidence if it remained un-shattered in cross-examination and un-rebutted in the evidence adduced by the opposite party---Tenant had no right to disentitle the landlord of his/her valuable right to acquire, deal and possess his/her property---No illegality had been committed by the courts below---Legitimate and legal right could not be knocked out on technical ground---Constitutional petition was dismissed in circumstances.

2011 CLC 1389 and 1997 CLC 1126 ref.

2011 SCMR 589; Shakeel Ahmed and another v. Muhammad Tarique Farogh and others 2010 SCMR 1925 and 2009 YLR 1052 rel.

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

----S. 2(f)---"Landlord"---Meaning---One who received the rent would fall within the meaning of landlord.

2011 SCMR 589 rel.

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

----S. 152---Clerical error, correction of---Court had power to correct clerical error.

Muhammad Suleman Unnar for Petitioner.

Hakim Ali Siddiqui for Respondents.

Date of hearing: 11th November, 2014.

2016 M L D 376

[Sindh]

Before Shahnawaz Tariq, J

Mst. SAHIBZADI JAHAN ARA---Applicant

Versus

DISTRICT AND SESSIONS JUDGE (SOUTH), KARACHI and 2 others---Respondents

Criminal Revision Application No.119 of 2014, decided on 30th October, 2014.

Criminal Procedure Code (V of 1898)---

----S.526---Penal Code (XLV of 1860), S. 337-F(v)---Causing Hashimah---Transfer of case---Application for---Applicant, filed criminal transfer application before Sessions Judge, on the allegation of partial attitude of the Trial Court---Sessions Judge, after hearing the parties, declined the transfer application, by holding that applicant had failed to make out a good reason for transfer of the proceedings from the Trial Court; as the matter was yet not decided by the Trial Court---Applicant had failed to show any good reason to convince the High Court to consider transfer application, but repeated that she (applicant) had lost her faith in the court---Applicant, on merits, had no case as her attitude towards the proceedings, remained highly objectionable---Considering the unavailability of the prosecution witnesses, proceedings of the case were stopped---It was prime duty of Court to maintain transparency and balance during the trial and must not act according to the whim and wish of either party to the proceedings---Petition being devoid of merits stood disposed of---Sessions Judge, in the interest of prime justice and to ensure the transparency of the trial, was directed by High Court to transfer the subject case from the Trial Court to any other competent court, purely on administrative grounds.

Imtiaz Ahmed Shaikh for Applicant.

Shaikh F.M. Javed, for Respondent No.2.

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

2016 M L D 392

[Sindh]

Before Abdul Rasool Memon, J

MUHAMMAD ROSHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1034 of 2014, decided on 9th September, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Sindh Arms Act (V of 2013), S.23(1)(a)---Possessing unlicensed arms---Bail, grant of---Further inquiry---Punishment of recovery of illicit arms, though had been enhanced through Sindh Arms Act, 2013; and the courts were required to be more careful in cases falling within the prohibitory clause of S.497(1), Cr.P.C., but in a situation, where the case of further inquiry was made out in favour of accused, then bail could not be withheld as a matter of policy---Preparation of Mashirnama of arrest and recovery was not mentioned---Even the names of Mashirs and the property which was recovered from the possession of accused which carried mark of identification had not been mentioned in the FIR, and had been shown without number---Property recovered was not sealed at Wardat---Rubbing number had been shown in the Forensic Science Laboratory report---Prosecution witnesses being Police Officials, there was no apprehension of tampering with the evidence---Accused was behind the bars since 7 months---Mere registration of other cases against accused, was not sufficient to hold any person as hard, dangerous and desperate criminal until or unless, it was brought on record that he had been convicted in any of the cases---Accused having been able to make out a case of further inquiry; and creating shadow of doubt, its benefit could be extended to accused even at bail stage---Accused was admitted to bail, in circumstances.

Amanullah v. The State PLD 1996 SC 241 rel.

S. Samiullah Shah for Applicant.

Salim Akhtar, Additional Prosecutor General for the State.

2016 M L D 402

[Sindh]

Before Shahnawaz Tariq, J

MUHAMMAD NAWAZ---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No.S-498 of 2015, heard on 1st September, 2015.

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

----S. 497---Penal Code (XLV of 1860), Ss. 353, 324, 401 & 399---Attempt to qatl-i-amd, assault, criminal force, preparation to commit dacoity---Bail, grant of---No one from police party sustained any bullet injury during the alleged incident, though allegedly accused persons made straight fires upon police party---Intention of accused to kill police persons would be decided at the trial stage, while considering bail, court was to only consider minimum aspect of sentence provided in Schedule for the alleged offence---Since challan had been submitted, applicant was no more required for investigation so applicant's further detention will not serve any useful purpose---Accused was admitted to bail, in circumstances.

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

----S. 103---Recovery---Requirements---Police had to give preference to private persons to act as "mashir" to maintain the transparency of recovery, rather than to associate police persons as mashirs.

2008 SCMR 1621; 2000 PCr.LJ 1510; 2000 PCr.LJ 153 and 2011 YLR 1185 ref.

State v. Bashir and others PLD 1997 SC 408 and Jamaluddin v. The State 2012 SCMR 573 rel.

Abdul Ahad Buriro for Applicant.

Abdul Rehman Kolachi, APG for the State.

2016 M L D 416

[Sindh]

Before Ahmed Ali M. Shaikh and Naimatullah Phulpoto, JJ

ABDUL GHANI and another---Applicants

Versus

The STATE---Respondent

Crl. B.A. No.D-49 of 2014, decided on 19th June, 2014.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Kidnapping for ransom and rioting with deadly weapons---Pre-arrest bail, refusal of---Plea raised by accused was that abductee had sworn in an affidavit whereby they had been exonerated from charges---Validity---Names of accused transpired in FIR and abductee had implicated them in his statement under S.161 Cr.P.C.---Affidavit of abductee at bail stage could not be regarded as evidence and could not be acted upon unless Trial Court was satisfied that it was true and reliable---Court had to be very careful while deciding bail application on the basis of affidavits---Entire material collected during investigation was to be assessed tentatively---Affidavit of abductee obtained by force was the aspect which had to be considered by Trial Court---Alleged offence carried capital punish-ment---Prima facie there were reasonable grounds for believing that accused had committed alleged offence---Bail before arrest was declined in circumstances.

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

Shahbaz Ali Brohi for Applicants.

Imtiaz Ali Jalbani, APG for the State.

2016 M L D 425

[Sindh]

Before Farooq Ali Channa, J

ASIF RAFIQUE---Petitioner

Versus

Mst. QURATULLAIN and 3 others---Respondents

Constitution Petition No.S-878 of 2012, decided on 30th May, 2014.

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

-----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Scope---Suit for recovery of maintenance allowance and dowry articles---Determination of monthly income of husband---Principle---Amount not being the part of dower or dowry articles---Scope---Family Court while deciding the question of husband's salary had given preference to his oral evidence over documentary evidence i.e. pay slip which would carry presumption of truth---Strong and exceptional evidence was required to rebut the said documentary evidence---Court should rely upon documentary and other circumstantial evidence to find as to which party was speaking truth in proof of a fact when oral words of one party were against the oral words of other party---Net pay drawn by the defendant-husband should be considered for determining his monthly income---Monthly maintenance allowance granted by the Family Court for each child was modified from Rs. 10,000/- to Rs. 7,500/- per month with 5% increase per annum from institution of suit till passing of impugned judgment and decree and thereafter Rs. 10,000/- for each child with 5% increase per annum till they attain the age of 18 years---Wife in support of her claim with regard to recovery of dowry articles had produced only two receipts which were not disputed---Husband had admitted that TV and fridge brought by the wife were lying with him---Wife had not examined any witness nor produced receipts with regard to rest of dowry articles---Sole evidence of wife controverted by the husband in his evidence was not sufficient to prove her claim with regard to rest of dowry articles---Wife was entitled for return of dowry articles mentioned in both the receipts or in lieu of an amount mentioned in the same for each article---Dispute between the husband and father of wife with regard to an amount could not be termed as dowry article and Family Court had no jurisdiction to pass decree with regard to the same---Jurisdiction of Family Court was confined to entertain, hear and adjudicate upon the matters specified in Part-I of the Schedule---Both the courts below had passed decree with regard to an amount not being the part of dower or dowry articles and had exercised jurisdiction not vested in them---High Court in matrimonial matters could exercise constitutional jurisdiction in rare circumstances unless findings recorded by the courts below were arbitrary and suffering from the vice of misreading and non-reading of evidence---High Court modified the impugned judgment and decree and set aside the same to the extent of amount which was not part of dowry articles---Constitutional petition was disposed of in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court in family matters---Scope---High Court in matrimonial matters could exercise constitutional jurisdiction in rare circumstances unless findings recorded by the courts below were arbitrary and suffering from the vice of misreading and non-reading of evidence.

Abbadul Hasnain for Petitioner.

Zafar Iqbal Dutt for Respondent No.1.

Date of hearing: 19th May, 2014.

2016 M L D 445

[Sindh]

Before Naimatullah Phulpoto, J

MUHAMMAD BUX---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.125 of 2011, decided on 27th August, 2014.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of about two days in lodging the FIR, had not plausibly been explained---Two prosecution witnesses, whose statements were recorded after 50 days, claimed to be eye-witnesses of the incident, but they had not disclosed at trial the probable cause of their presence at the relevant time at the place of incident---No post-mortem examination of deceased had been conducted, and only deceased was examined by the Doctor when he was in injured condition---Possibility could not be ruled out that Police did not get conducted post-mortem examination for procuring and planting the eye-witnesses and cooking up a story in the prosecution---Non-examination of material prosecution witnesses, whose names were mentioned in the FIR, would be fatal to the prosecution case---Both eye-witnesses, produced by the prosecution, were related and inimical witnesses, who were chance witnesses, and were residing hundred miles away from place of occurrence---Said witnesses had failed to advance any explanation for their presence at the place of occurrence---Before placing reliance upon evidence of such witnesses, in case involving capital charge, court was to look for material corroboration of such statements from some independent sources, which was lacking in the present case---Motive had also not been established at trial---Alleged recovery of 'Danda' from place of occurrence, was legally inconsequential as said weapon of offence, was sent to expert with inordinate delay without plausible explanation---Medical evidence by its nature could not identify the culprit of alleged incident, same was of no avail to prosecution---Trial Court had failed to discuss the defence evidence---Findings of the Trial Court being based on surmise, same was not sustainable under the law---Prosecution having failed to prove its case against accused beyond reasonable doubt, conviction and sentence recorded by the Trial Court against accused, were set aside---Accused was acquitted of the charge extending him benefit of doubt; and was released, in circumstances.

Irshad Ahmed v. The State 2011 SCMR 1190 rel.

Muhammad Ashraf Samoo for Appellant.

Ali Haider Saleem, APG for the State.

Date of hearing: 19th August, 2014.

2016 M L D 466

[Sindh]

Before Salahuddin Panhwar, J

AMIR BUX---Applicant

Versus

HAJI and another---Respondents

Criminal Revision Application No.S-144 of 2014, decided on 21st July, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 193, 265-K & 439---Revisional jurisdiction of High Court---Scope---Applicant was exonerated by police during investigation but Trial Court on the basis of application under S. 193, Cr.P.C. filed by complainant joined him as accused and was remanded to custody---Validity---Scope of jurisdiction of High Court, in criminal revision was very limited, when a competent court had decided fate of application under S. 193, Cr.P.C. which warranted Trial Court to decide the matter on the basis of evidence and such course had been adopted by Trial Court---Person agitating by revision application about illegality of order in question, had to satisfy and point out illegality committed by Trial Court---Applicant was at liberty to move application under S.265-K, Cr.P.C. and he had chance to lead evidence in his defence and such course was very much available to accused---High Court in exercise of revisional jurisdiction declined to interfere in the matter---Revision was dismissed in circumstances.

1968 PCr.LJ 1212; 1995 PCr.LJ 1543 and 2003 YLR 836 distinguished.

2009 PCr.LJ 367; 2009 PCr.LJ 1344 and 1997 PCr.LJ 1656 ref.

Shoukat Ali Pathan for Applicant.

Muhammad Ishaque Khoso for Respondent No.1./Complainant.

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

2016 M L D 493

[Sindh]

Before Abdul Rasool Memon, J

NIAZUL HAQUE through Legal Heirs---Applicant

Versus

RAFI AHMED QURESHI---Respondent

Civil Revision No.57 of 2012, decided on 21st August, 2014.

Civil Procedure Code (V of 1908)---

----Ss. 50 & 52 & O. XX, R. 4---Enforcement of decree against legal representative---Scope---Powers of Executing Court---Scope---Decree holder could apply to the court which had passed the decree, for enforcement of the same, against legal representative of deceased judgment-debtor---Decree against legal heirs has to be executable to the extent of property of deceased judgment-debtor which had come to his hand and had not been disposed of---Executing Court might on its own motion or on the application of decree holder compel such legal heirs to produce any account of deceased---Decree could be satisfied from the assets left by the deceased at the time of his death---Judgment-debtor, in the present case, was alive at the time of pronouncement of judgment and decree---Execution petition was maintainable in circumstances---No illegality or irregularity had been pointed out in the impugned order---Executing Court had not exceeded his powers by passing the impugned order---Revision was dismissed in circumstances.

2004 YLR 1728; 1997 CLC 152 and 1999 YLR 2336 ref.

2004 YLR 1728; 1997 CLC 152 and 1999 YLR 2336 distinguished.

M. Yousaf Iqbal for Applicant.

Javed Musarrat for Respondent.

Date of hearing: 6th August, 2014.

2016 M L D 506

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

Messrs PORT SERVICES (PVT.) LTD.---Appellant

Versus

PORT QASIM AUTHORITY---Respondent

H.C.A. No.49 of 2012, decided on 13th November, 2014.

Arbitration Act (X of 1940)---

----Ss. 17, 30, 33, 34---Port Qasim Act (XLIII of 1973), S. 65---Specific Relief Act (I of 1877), Ss. 42 & 54---Limitation Act (IX of 1908), Ss. 19 & 29---Law Reforms Ordinance (XII of 1972), S. 3---Suit for declaration, injunction, recovery of money and damages---Intra court appeal---Arbitration proceedings---Recovery of money---Limitation---Contract of plaintiff company was cancelled by defendant Authority---Plaintiff sought recovery of its outstanding bills and damages from defendant Authority---With consent of both the parties matter was referred to sole arbitrator who announced award---Objections were filed by defendant Authority and Single Judge of High Court declined to make award rule of the court on the ground that claim of plaintiff was barred by limitation---Validity---While hearing objections to award under Ss.30 and 33 of Arbitration Act, 1940, Court could not sit in appeal on award which had been passed after recording of evidence led by both the parties---Court was not to launch itself into an exercise of reappraisement of evidence or set itself as appellate Court, except when there was error on the face of award---Division Bench of High Court declined to interfere with findings of sole arbitrator as the award had been made in favour of plaintiff on the basis of evidence of defendant Authority itself, as barring limitation issue---Defendant Authority was not able to raise any substantial question and or objections which regard to merits of the case---High Court set aside the findings of Single Judge of High Court and award of sole arbitrator was made rule of the court---Intra Court Appeal was allowed in circumstances.

Abdul Halim v. Faizunnessa Bibi alias Sarada and others PLD 1969 Dacca 670; Messrs M.G. Kadir and Co. v. Abdul Latif PLD 1970 Kar. 708; Maniram Shah v. Seth Repchand (33 I A 165); Sitayya v. Rangareddi and others ILR 10 Mad. 259; Messrs M.G. Kadir and Co. v. Abdul Latif PLD 1974 SC 174; Karachi Electirc Supply Corporation v. Deputy Custodian of Enemy Property 1989 ALD 468 and Federation of Pakistan through Secretary, Ministry of Food, Islamabad and others v. Messrs Joint Venture Kocks K.G/Rist PLD 2011 SC 506 ref.

Khalid Mahmood Siddiqui for Appellant.

M.A. Issani for Respondent.

Date of hearing: 13th November, 2014.

2016 M L D 546

[Sindh]

Before Syed Sajjad Ali Shah and Naimatullah Phulpoto, JJ

ABDUL GHAFFAR ANSARI and another---Appellants

Versus

The STATE---Respondent

Special Anti-Terrorism Appeal No.34 of 2013, decided on 10th April, 2014.

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

----S. 365-A---Anti-Terrorism Act (XXV of 1997), S.7(e)---Pakistan Arms Ordinance (XX of 1965), S.13(d)---Kidnapping for ransom, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Evidence of Investigating Officer, regarding recovery of the unlicensed Repeaters and Car, used in the crime, corroborated the ocular account furnished by complainant and abductee---Nothing was on record to show that Investigating Officer had mala fide or enmity with accused persons to foist Repeaters upon them---Repeaters, having been recovered from personal search of accused, provisions of S.103, Cr.P.C. had not been violated---Despite lengthy cross-examination, no dent in the prosecution case had been pointed out to discredit the prosecution evidence---Acquitted co-accused, was not implicated by abductee and other material witnesses---Such acquittal of co-accused would not furnish sufficient ground for acquittal of accused persons for the reasons that natural and confidence inspiring evidence of abductee, had come on record in which accused persons had been implicated---Alleged abductee had categorically stated that he was kidnapped for ransom---In order to constitute an offence of abduction for ransom and proof thereof, were not the sine qua non---Said offence stood constituted; if there was an abduction and the purpose of abduction, was extortion of money, or ransom was demanded for the release of abductee---Complainant, prosecution witness and abductee had deposed that demand for ransom was made by accused persons, and it was paid to them by prosecution witness---Sufficient evidence had been brought on record, that abductee was kidnapped by accused persons for the purpose of extorting money, and offence for kidnapping for ransom was proved---Ingredients of offence of kidnapping for ransom, had fully been proved in the case---Trial Court having dilated upon all aspects of the case and appreciated evidence in its true perspective, impugned judgment of the Trial Court required no interference.

State through Advocate-General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 ref.

(b) Criminal trial---

----Appreciation of evidence---Principles---Duty of court---Even if major portion of evidence was found to be deficient, in the case, residue was sufficient to prove the guilt of an accused, notwithstanding acquittal of co-accused, his conviction could be maintained---Duty of the court was to separate the grain from chaff; where chaff could be separated from grain, it would be open to the court to convict accused, notwithstanding the fact that evidence had been found to be deficient to prove the guilt of other accused persons.

Nazir Rizwan Khan for Appellants.

Khadim Hussain Khuharo, Deputy Prosecutor General for the State.

Date of hearing: 12th March, 2014.

2016 M L D 580

[Sindh]

Before Salahuddin Panhwar, J

MOHARRAM alias MAROO---Appellant

Versus

The STATE---Respondent

Crl. Appeal No.S-138 of 2010, decided on 13th November, 2014.

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

----S.345---Compounding of offence---Offence against individual/ society---Distinction---Offence against individual cannot be equated with that of an offence against society---Individual does not have any right to compound the offence which in fact was against the society and not against him.

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

----S. 345(6) & (7)---Penal Code (XLV of 1860), Ss. 302(b), 337-A(i), 337-F(i) & 459---Qatl-i-amd, Shajjah-i-Khafifah, Damihah and Hurt while Trespass---Compounding of offence---Accused were convicted and sentenced for imprisonment of various terms by Trial Court---Accused sought their acquittal on the basis of compromise effected between the parties---Validity---Offence under S. 495, P.P.C. was an independent offence which had its own punishment in addition to punishment for causing Qatl or causing hurt or attempt to cause Qatl or hurt therefore, such offence could not be merged into main offence---When one was tried for two different offences and awarded punishments in both of them, then competence of one to compound one offence could not affect legality of sentence awarded for other independent offence by competent court of law---Likelihood of failure of prosecution to prove charge was no ground to make a non-compoundable offence as compoundable---Attempt to compound an offence, even if failed, could not bring any consequence on merits of the case however, failure of prosecution/complainant to establish charge could give certain rights to accused against complainant/prosecution---High Court accepted compromise to the extent of convictions awarded under Ss. 302(b), 337-A(i) & 337-F(i), P.P.C. while for the offence under S. 459, P.P.C. the same was declined---Application was allowed accordingly.

2004 PCr.LJ 736; 2007 MLD 1269; PLD 2008 Kar. 420; Muhammad Rawab v. State 2004 SCMR 1170; Muhammad Tufail v. Sessions Judge Attock PLD 2004 SC 89 and Umer Hayat v. The State 1990 PCr.LJ 125 ref.

Tarique Ahmed Shah for Appellant.

Syed Meeral Shah, Deputy Prosecutor General for the State.

Date of hearing: 30th October, 2014.

2016 M L D 624

[Sindh]

Before Abdul Rasool Memon, J

IQBAL AHMED---Petitioner

Versus

MUHAMMAD NASIR and another---Respondents

C.P. No.415 of 2015, decided on 10th November, 2015.

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

----Ss. 16 (1), 15 & 21(1)----Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Eviction petition---Application for arrears of rent, dismissal of---Remedy---Appeal against interim order---Permissibility---Rent Controller dismissed application filed under S. 16(1) of Sindh Rented Premises Ordinance, 1979, on ground that relationship of landlord and tenant had been denied which required recording of evidence---Validity---Under S. 21(1) of Sindh Rented Premises Ordinance, 1979, Legislature had specifically prohibited filing of appeal against interim order, and the same was, therefore, not challengeable---Interim order would merge in final verdict, which, then, would be appealable---Object of Legislature would be frustrated by exercise of constitutional jurisdiction against impugned order passed by Rent Controller, whereby he dismissed the application holding that disputed question as to relationship of landlord and tenant existed, was interim in nature, and the same was not a question of exercise of jurisdiction in excess, for invoking constitutional jurisdiction---Tenant would have adequate remedy to challenge impugned order in appeal against final order---Constitutional petition, being not maintainable, was dismissed in circumstances.

Mrs. Durre Shamim Rafi v. Muhammad Zubair Khan and another 2013 CLC 1021; Muhammad Aslam v. Pakistan Steel and another 1990 CLC 849 and Hukum Khan v. Pakistan Steel and another 1989 MLD 4436 distinguished.

Agha Wasif Abbas v. Muzaffar Ali Isani and another 2008 MLD 1229; Habib Bank AG Zurich and another v. Nazir Ahmed Vaid and another 2011 CLC 648 and Muhammad Nadeem v. Nasimuddin and another 2007 CLC 1956 ref.

Mrs. Syeda Tahira Mubashar v. Mst. Zakia Khan and another 2007 CLC 1961 and Abdul Farooq and another v. Maqsood Ahmed and another 2015 CLC 663 ref.

Mujahid Bhatti for Petitioner.

Peer Rehman Mehsud and Naser Shah for Respondent No.1.

Date of hearing: 8th October, 2015.

2016 M L D 636

[Sindh]

Before Shahnawaz Tariq, J

ALLAH MEHAR---Petitioner

Versus

Syed NAZAR ALI and 2 others---Respondents

Constitutional Petition No.S-615 of 2012, decided on 20th November, 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 and damage to the rented premises by tenant---Bona fide personal need of landlord---Ejectment petition was accepted concurrently---Validity---Tenant impugned the ejectment by filing an appeal on the general grounds emphasizing the point of default but he had failed to challenge specifically the findings of Rent Controller with regard to personal bona fide need of landlord---Said question had attained finality---Tenant had no scope to check the legality of concurrent findings to the extent of bona fide need of landlord through the present constitutional petition---Tenant had failed to point out any illegality or irregularity in the findings recorded by both the courts below---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

---Art.199---Constitutional jurisdiction of High Court---Scope---Concurrent findings should not be interfered or disturbed except when there was mis-reading and non-reading of evidence or failure to appreciate the relevant facts or any serious irregularity was committed by both the courts below.

Samsam Ali Raza for Petitioner.

Raja Sikandar Khan Yasir for Respondents.

Date of hearing: 22nd September, 2014.

2016 M L D 661

[Sindh]

Before Abdul Rasool Memon, J

ABDUL HAYEE---Applicant

Versus

The STATE---Respondent

Crl. Bail Application No.S-77 of 2015, decided on 18th August, 2015.

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

----S. 497----Penal Code (XLV of 1860), Ss. 364, 337-J, 149, 148 & 109---Kidnapping or abducting in order to murder; rioting armed with deadly weapons; causing hurt by means of a poison; every member of unlawful assembly guilty of offence committed in prosecution of common object---Bail, refusal of---Accused, along with two others, were alleged to have kidnapped two sisters of complainant with intention to murder them over a land dispute---High Court, in earlier application, had already directed trial court to examine material witnesses and conclude trial within two months period---Accused filed fresh bail application on the ground that non-compliance to said direction had made him entitled to bail---Failure to examine the witnesses within the prescribed period would not automatically entitle the accused to bail---Accused was not entitled to bail on ground of non-compliance of directions of High Court---High Court, declining bail, directed complainant to produce eye-witnesses on next date of hearing and directed Trial Court to conclude trial within three months---Bail application was disposed of accordingly.

Muhammad Nawaz alias Deeno and another v. The State 2003 MLD 79 and Abdul Qadir Sahar v. The State PLD 2004 Kar. 287 rel.

(b) Criminal Trial---

----Principles---In criminal cases, there is no universal rule of application, which can be applied to every case, as facts and circumstances of each case will determine its fate.

Nazar Muhammad v. The State PLD 1978 SC 236 and Safdar Abbas v. The State PLD 1987 SC 467 rel.

Athar Abbas Solangi for Applicant.

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

Mohammad Saleem GN Jessar for the Complainant.

2016 M L D 671

[Sindh]

Before Faisal Arab, J

MOHAMMAD FARHAN ASGHAR and another---Appellants

Versus

MOHAMMAD ASGHAR---Respondent

I.A. No.10 of 2010, decided on 16th December, 2014.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr. 2 & 3---Institution of summary suit on the basis of negotiable instrument---Suit for recovery of money---Contention of defendants was that suit was transferred from one court to another but no notice was issued to them---Validity---Disputed cheque was issued and agreement was executed to settle the dispute before the encashment of the same---Iqrarnama itself had acknowledged the claim of plaintiff for which cheque in question was issued---Matter was pending for more than four years and defendants did not pursue the same---Defendants were bound to pursue the matter before the transferee court---Trial Court had rightly decreed the suit---Appeal was dismissed in circumstances.

Irshad Hussain v. Azizullah Khan 1987 SCMR 150 rel.

Syed Masroor Ahmed Alvi, Ms. Nusrat Mirza and Syed Imran Younis for Appellants.

Muhammad Habib Jalib for Respondent.

2016 M L D 680

[Sindh]

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

Messrs SIKANDAR AND COMPANY through Partner---Petitioner

Versus

CITY DISTRICT GOVERNMENT (KDA WING) through Administrator and 4 others---Respondents

Constitution Petition No.D-2278 of 2013, decided on 22nd December, 2015.

Constitution of Pakistan---

----Art.199---Constitutional petition---Cancellation of allotment of plot---Plots of petitioners were situated on the "Green Belt"---Auction of said plots had been declared as farce and sham act to rob the green belt/amenity plots---Authority was directed to ensure removal of entire construction so far raised on the entire green belt within a specified period---No further construction should be allowed on the said green belt and its original position be restored---Petitioners might pursue their remedy against the Authority in accordance with law---Constitutional petition was dismissed in circumstances.

Raja Sikandar Khan Yasir for Petitioner.

Muhammad Ali Lakhani for Applicant Hanif Yousuf.

Abdul Sattar Pirzada for Intervenors along with Messrs Sameer Ghazanfar and Shabbir Shah.

Shahid Jamil and Sartaj Malgani for SBCA.

Syed Sultan Ahmed for KMC.

Abdul Jalil Zubedi, A.A.-G.

2016 M L D 700

[Sindh]

Before Naimatullah Phulpoto and Shahnawaz Tariq, JJ

RIAZ AHMED---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.D-132 of 2010, decided on 14th January, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.21-L---Constitution of Pakistan, Arts.9 & 10---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, common object, abscondence of accused---Appreciation of evidence---Accused who had absconded, proceedings under Ss.87, 88, Cr.P.C. were initiated against him---Charge was framed against accused for other offences, except S.21-L of the Anti-Terrorism Act, 1997---Accused was tried in his absence and he was acquitted for the offences under Ss. 302, 353, 148 & 149, P.P.C.---No evidence was recorded to prove the ingredients of S.21-L of the Anti-Terrorism Act, 1997---Trial Court had also failed to discuss the evidence regarding deliberate absconsion of accused---Trial Court, in cursory manner, had convicted and sentenced accused under S. 21-L of Anti-Terrorism Act, 1997---Procedure, adopted by the Trial Court, for conviction and sentence of accused in his absence, was not warranted in law and was violative of the Arts.9 & 10 of the Constitution---Accused having been acquitted by the Trial Court in main case, conviction and sentence awarded to accused, under impugned judgment, were set aside---Said judgment would not be construed to preclude the Trial Court from taking any proceeding in accordance with law and adopt legal procedure for trial of offence punishable under S.21-L of Anti-Terrorism Act, 1997.

Arbab Khan v. The State 2010 SCMR 755 and Ikhlaq Ahmad v. State 2008 SCMR 951 ref.

Shahbaz Ali M. Brohi for Appellant.

Khadim Hussain Khaooharo, DPG for the State.

2016 M L D 723

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD SAFDAR and others---Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of National Health Service and others---Defendants

Suit No.Nil and C.M.A. No.3696 of 2015, decided on 15th April, 2015.

Constitution of Pakistan---

----Arts. 4 & 8---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and recovery of damages--- Rejection of plaint--- Constitutional guarantee--- Service to poor---Plaintiffs were unqualified persons providing different dental services to poor people without holding any licence while Authorities started a campaign against them on the plea that they were the big source of causing "hepatitis B and C" to their customers---Validity---No act/omission, likely to cause even slightest harm to life and body, could be permitted under any plea regardless of its being under the name of 'social service' or 'help of the poor'---Plaintiffs were seeking exception to requirement of 'qualification' on the sole ground of 'working for decades' to earn livelihood---Ground could not legally sustain particularly in view of Art. 8 of the Constitution, which had even declared any law, or any custom or usage, having force of law, to the extent of its inconsistency with rights (known fundamental rights) as 'void'---Law demanded proper authorization and qualification from competent legal forum to let one work/act as 'dentist' which, undisputedly, the plaintiffs did not possess---Registration of any society was meant to regularize the affairs of members and it could not be used as licence/certificate to do a job which, otherwise, could not be performed without such licence/certificate---Not the 'experience' which could qualify one to dress himself up with a 'status' which, otherwise, could not be held without proper and legal 'degree'--- Suit of plaintiffs was not maintainable under the law and the same could not be legally allowed to continue on the file of Court, because provision of O. VII, R. 11, C.P.C. insisted to reject a legally barred plaint in its inception---Plaint was rejected, in circumstances.

Saathi M. Ishaque for Plaintiffs.

Naheed Naz for Defendant.

2016 M L D 742

[Sindh]

Before Abdul Rasool Memon, J

TALHA ASIF TAUFIQ---Petitioner

Versus

VTH ADDITIONAL DISTRICT JUDGE and 3 others---Respondents

Constitutional Petition No.S-72 of 2012, decided on 4th June, 2015.

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

----S. 17-A----Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Maintenance of minor---Non-compliance of interim order of maintenance---Power of Family Court to decree suit---Averments of plaint not denied in written statement---Presumption---Conduct of father as to payment of maintenance---Relevance---Plaintiff/wife after dissolution of marriage, along with minor son, filed suit for recovery of maintenance, recovery of dower amount and dowry articles---Family Court passing order under S. 17-A of Family Courts Act, 1964 fixed interim maintenance of minor---Defendant filed application and later Constitutional petition for modification of said interim order, which were dismissed---Family Court decreed the suit for non-compliance of said interim order of maintenance---Defendant took plea that trial court had not considered his financial position while fixing maintenance---Validity---Family Court under S. 17-A of Family Courts Act, 1964 was empowered to grant interim maintenance and in case of non-compliance of interim order, court might struck off defence of defendant and also pass final decree---Under S. 17-A of Family Courts Act, 1964, right of defendant as to further adjudication of question of maintenance was contingent right subject to fulfilment of contingency of S. 17-A---If defendant desired to contest suit, he was required to comply with interim order passed by Family Court under S.17-A of Family Courts Act, 1964---Plaintiff had specifically stated in plaint all expenses being incurred by her family on minor and quantum of income being earned by defendant---Claim or allegation of fact in plaint, if not denied specifically or by necessary implications in written statement, would be taken to have been admitted by defendant---As averments made in plaint as to income of defendant had not been denied by him either specifically or by necessary implication, the same were, deemed to have been admitted---Conduct of defendant (husband) regarding non-payment of interim maintenance was also relevant which showed that he had come to court with unclean hands, as he had not complied with interim order of maintenance----Constitutional jurisdiction of discretionary character could not be invoked as a matter of routine or be used as alternate of appeal or revision---Constitutional petition was dismissed in circumstances.

2011 CLC 820 and PLD 2012 Pesh. 97; Ghazanfar Ali @ Pappu and another v. The State 2012 SCMR 215; Muhammad Ashraf v. Philip Javed and 2 others 2014 MLD 297; Syed Kamal Shah v. Government of N.-W.F.P. 2010 SCMR 1377; Muhammad Maqsood Sabir Ansari v. District Returning Officer Kasur and others PLD 2009 SC 28; Tasneem Jalal and others v. Deputy Director ANF and others 2010 SCMR 73; Muhammad Hanif v. KBCA 2007 CLC 351; NBP v. EFFEF Industries and others 2002 CLD 1431; Nur-ul-Haq v. Ibrahim Khalil 2002 SCMR 1305 and Amin Ali and another v. The State 2011 SCMR 323 ref.

Atta Muhammad v. Mst. Shahnaz Khatoon and 6 others 2006 YLR 1708 rel.

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

----S. 17-A----Scope---Non-compliance of interim order of maintenance---Power of Family Court---Family Court under S.17-A of Family Courts Act, 1964 is empowered to grant interim maintenance and in case of non-compliance of interim order, court may struck off defence of defendant and also pass final decree---Under S.17-A of Family Courts Act, 1964, right of defendant as to further adjudication of question of maintenance is contingent right subject to fulfillment of contingency of S. 17-A.

(c) Islamic Law----

----Maintenance---Father is bound to maintain his child regardless of his own financial position.

Atta Muhammad v. Mst. Shahnaz Khatoon and 6 others 2006 YLR 1708 rel.

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

----O. VIII, R. 5---Written statement---Principles---Under O. VIII, R. 5, C.P.C., defendant must deal specifically with each allegation of fact of which he does not admit to be ture---If defendant fails to do so, fact pleaded in plaint will be deemed to have been admitted by defendant.

Atta Muhammad v. Mst. Shahnaz Khatoon and 6 others 2006 YLR 1708 rel.

Nayyar Zaiuddin for Petitioner.

Haq Nawaz Talpur for Respondents.

Date of hearing: 30th April, 2015.

2016 M L D 773

[Sindh]

Before Zafar Ahmed Rajput, J

CITIBANK N.A.---Applicant

Versus

ARIF DEWAN---Respondent

Civil Revision No.13 of 2015, decided on 26th February, 2015.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Plaintiff had not valued the relief(s) sought in plaint/suit for the purpose of court-fee and pecuniary jurisdiction---When case of plaintiff was that courts below had failed to consider that the relief sought in the suit was not beyond the pecuniary jurisdiction of trial court, plaintiff might file the suit afresh after valuing the relief(s) sought for the purpose of court-fee and pecuniary jurisdiction.

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

----Ss. 5 & 29 (2)---Civil Procedure Code (V of 1908), S. 115---Revision---Condonation of delay---Applicability of S. 5 of Limitation Act, 1908 to revision petition---Scope---Section 5 of Limitation Act, 1908 was not applicable to revision petition.

Allah Dino and others v. Muhammad Shah and others 2001 SCMR 286 and Hafeez Ahmed and others v. Civil Judge, Lahore and others PLD 2012 SC 400 rel.

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

----S. 115---Revision---Limitation---Limitation for revision petition was 90 days.

Zohaib Ahmed for Applicant.

Date of hearing: 26th February, 2015.

2016 M L D 780

[Sindh]

Before Shahnawaz Tariq, J

Messrs MUSLIM COMMERCIAL BANK LTD. through Chief Manager---Petitioner

Versus

The VTH ADDITIONAL DISTRICT AND SESSIONS JUDGE and 2 others---Respondents

C.P. No.S-409 of 2011, decided on 2nd February, 2015.

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

----Ss. 8 & 9---Constitution of Pakistan, Art. 199---Constitutional petition---Fair rent, determination and fixation of---Enhancement of rent---Condition---Interpretation of Ss. 8 & 9 of Sindh Rented Premises Ordinance, 1979---Sections 8 & 9 of Sindh Rented Premises Ordinance, 1979 were self-determining provisions having their independent domain---Section 8 of Sindh Rented Premises Ordinance, 1979 had provided parameters for the enhancement of rent by the Rent Controller to fix fair rent of a tenement---Rent Controller should fix fair rent with care and caution---No restriction or limit existed to minimize the authority of Rent Controller to fix the rent of a demised premises---Section 9(2) of Sindh Rented Premises Ordinance, 1979 had no nexus with S. 8 of the Ordinance---Rent Controller and Appellate Court had ample powers to assess all the relevant circumstances while fixing fair rent---Landlord had never approached the Rent Controller for enhancement of rent nor any fair rent was fixed after inception of tenancy between the parties---Present quantum of rent was less and not in accordance with the prevailing rent of the locality---Demised premises was situated in thickly populated area which was famous for business and commercial activities---Inflation in cost of construction and hike in cost of land had also caused increase in rental value of the premises of the locality---Appellate Court had properly considered the evidence of the parties and modified the judgment passed by the Rent Controller---Tenant had failed to point out any illegality or irregularity in the judgment passed by the Appellate Court---Constitutional petition was dismissed in circumstances.

2001 SCMR 1161 and PLD 2007 Kar. 485 ref.

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

----S. 9---Enhancement of rent---Condition---If fair rent of the demised premises had already been fixed, rent should not be enhanced for the next three years---Bar with regard to increase of rent to the extent of ten per cent per annum would only be applicable if fair rent had already been fixed.

Rizwan Ahmed Siddiqui for Petitioners.

Khawaja Naveed Ahmed for Respondent No.3.

2016 M L D 792

[Sindh]

Before Shahab Sarki, J

Mst. SHAHZEEN---Petitioner

Versus

STATION HOUSE OFFICER and another---Respondents

C.P. No.S-3188 of 2014, decided on 16th February, 2015.

Penal Code (XLV of 1860)---

----S. 365-B---Criminal Procedure Code (V of 1898), S.22-A(6)(i)---Constitution of Pakistan, Art.199---Constitutional petition---Kidnapping, abducting or inducing woman to compel for marriage---Dismissal of application by Justice of Peace filed for registration of criminal case---Petitioner alleged that she was kidnapped by accused persons, who forcibly obtained her signatures on the affidavit of free will and therafter performed Nikah with her and was divorced, the very next month of performing Nikah---Petitioner after about 9 months of the alleged incident, moved application before Justice of Peace for registration of case against accused, who allegedly again attempted to kidnap her, and was issuing threats of dire consequences, and causing her harassment---Application of the petitioner having been dismissed by Justice of Peace, the petitioner had filed constitutional petition---Validity---If the petitioner was aggrieved by the act of accused, she could have moved an application, when she was divorced and came back to her father's home---Petitioner remained quiet about the alleged incident of kidnapping and forced marriage for about one year and thereafter she filed application before Justice of Peace---Justice of Peace was not supposed to act in a mechanical manner and order registration of FIR in every single case---Even otherwise, the petitioner had an alternate remedy to file a direct complaint under S.200, Cr.P.C.---Constitutional petition was dismissed, in circumstances.

Muhammad Bashir v. Station House Officer, Okara Cantt, and others PLD 2007 SC 539 and Muhammad Arif v. The State 2004 PCr.LJ 1347 ref.

Achar Khan Gabole for Petitioner.

Syed Jaffer Ali Shah for proposed accused.

Shaharyar Awan Assistant A.G. for the State.

2016 M L D 806

[Sindh]

Before Abdul Rasool Memon, J

Shaikh SULTAN AHMED---Petitioner

Versus

IFTIKHARUDDIN PARACHA and 2 others---Respondents

C.P. No.S-118 of 2015, decided on 11th May, 2015.

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

----S. 21---Constitution of Pakistan, Art. 199---Constitutional petition---Eviction petition---Appeal against interim order---Maintainability---Constitutional jurisdiction---Scope---Tenant filed application for recalling of order whereby his right to cross-examine was closed by Trial Court due to his non-appearance, and appellate court dismissed appeal against order of dismissal on ground that appeal was not permissible against interim order under S. 21 of Sindh Rented Premises Ordinance, 1979---Contention raised by tenant was that order passed on his application, whereby his right to cross-examine had been closed, was final order---Validity---Impugned order closing right of cross-examination was an "interim order" and the same was not appealable in terms of S. 21 of Sindh Rented Premises Ordinance, 1979---Section 21 of Sindh Rented Premises Ordinance, 1979 had specifically prohibited appeal against interim order---When Legislature did not intend to make interim order challengeable, going against said arrangement by exercising Constitutional jurisdiction would not be proper because in that case object of Legislature would be frustrated---Tenant would have right to appeal against impugned interim order along with final order of Rent controller---Constitutional petition was dismissed in circumstance.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---When Legislature did not intend to make interim order challengeable, going against said arrangement by exercising Constitutional jurisdiction would not be proper because in that case object of Legislature would be frustrated.

The Eastern Express Company Ltd. v. Messrs Haji Khushi Muhamdm 1995 MLD 470; Lion Paper Industries (Pvt.) Limited v. Mrs. Sabiha Rizwan 2001 YLR 3014; Mst. Seema Begum v. Muhammad Ishaq PLD 2009 SC 45; Mst. Raheela Yasmeen v. Muhammad Iqbal 2010 CLC 935; Mehmood Ahmed v. State Life Insurance Corporation of Pakistan 1998 CLC 1987; Syed Intesar Ali v. Ahmed Din Khan 1983 CLC 998 rel.

Muhammad Amin for Petitioner.

Zafar Iqbal Datt for Respondents.

2016 M L D 818

[Sindh]

Before Zafar Ahmed Rajput, J

MUHAMMAD KHAN---Applicant

Versus

MUHAMMAD FAYYAZ KHAN and another---Respondents

Criminal Misc. Application No.326 of 2014, decided on 2nd March, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Cancellation of bail, application for---Principles governing the grant of bail and cancellation thereof substantially stood on different footings and there was no compulsion for cancelling the bail, unless the bail granting order was patently illegal, erroneous, factually incorrect, and had resulted in miscarriage of justice; or where accused was found to be misusing the concession of bail by extending threats; or tampering with the prosecution case---Courts had always been slow to cancel bail already granted, as the liberty of a person, could not be curtailed on flimsy grounds---Grounds for cancellation of bail were pari materia with the principles which would apply to setting aside the order of acquittal---Once bail was granted by a court of competent jurisdiction, strong and exceptional grounds would be required for cancellation of bail---In the present case, post arrest bail had been granted to accused by the Trial Court on medical ground---In the FIR, accused and co-accused were attributed the role of catching hold of the deceased when other co-accused committed murder of the deceased by making fire---Co-accused had been extended concession of bail by the Trial Court---Sister-in-law of the complainant (widow of deceased), who was the sole eye-witness of the occurrence as per FIR, had changed her version by stating that, accused on the Lalkara of co-accused had also made fire upon the deceased and she did not support the sequence of events taking place in the occurrence---Earlier application of accused for grant of bail was dismissed by the courts below in his absence, though an application was filed for condonation of his absence along with Hospital record---Ground of ill health of accused for grant of bail was available to him at the time of second bail application, which he filed after his arrest---As per report of doctor, accused had headache, dizziness, forgetfulness, nightmares, palpitation, fearfulness etc.; and the Trial Court admitted accused after receiving the report of Psychiatrist/Neuro Physician, who had examined the accused in jail, describing his condition as serious---High Court declined interference with the lawful exercise of the jurisdiction in the matter of bail granted by the Trial Court---Application for cancellation of bail, was dismissed being devoid of merits.

Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231 and Ghulam Rasool v. Khadim Hussain and others 1991 PCr.LJ 241 ref.

Umar Farooq Khan and Muhammad Khan for Applicant.

Fazal-ur-Rehman for Respondent No.1 along with Respondent No.1 Muhammad Fayyaz Khan.

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

Date of hearing: 2nd March, 2015.

2016 M L D 831

[Sindh]

Before Muhammad Iqbal Kalhoro, J

MOHAMMAD JUMAN through General Attorney---Appellant

Versus

IIND ADDITIONAL DISTRICT AND SESSIONS JUDGE, HYDERABAD---Respondent

1st Appeal No.38 of 2014, decided on 5th June, 2015.

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

----O. XXXVII, R. 3---Suit for recovery of money---Leave to defend suit---Court had the discretion to grant leave to defend suit either unconditionally or conditionally and that discretion had to be exercised judiciously---Purpose behind such scheme appeared to be empowering court to strike balance between two situations i.e. where triable issues were raised by defendant, unconditional leave to defend might be granted or where defence was presented with sole object of gaining time then court might insist on some condition---If stipulations so required were not complied with, leave granting order would not come into force leaving a very limited choice for court to act otherwise than decreeing the suit after considering merits of case.

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

----O.XXXVII, R.3 & S.115---Leave granting order, appeal against---Leave granting order was not appealable but where discretion had been exercised arbitrarily and capriciously by court, aggrieved party can competently assailed same in revision.

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

----O. XXXVII, R. 2(2)---Conditions for grant of leave to defend suit---Effect---Non-compliance of conditions---Defendant was obliged to make arrangements for defence of suit and effect of his failure to fulfil the condition---Non-compliance would result into his disentitlement to defend the suit on any ground and court in such eventuality would pass a decree in favour of plaintiff.

Aftab Iqbal Khichi and another v. Messrs. United Distributors Pakistan 1999 SCMR 1326 and Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832 rel.

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

----S.96---Appeal---Maintainability---Scope---Appellant filed appeal which was withdrawn---After such unconditional withdrawal, appellant filed another appeal with an affidavit wherein it was stated that appellant had not engaged the counsel who had withdrawn earlier appeal---Held, that neither factum of filing earlier appeal was denied therein nor did it speak out about any action taken by appellant against said counsel in the face of his unconditional withdrawal of earlier appeal without appellant's explicit consent or permission---Appellant could not maintain the present appeal under law as he failed to move any application before the Court in his earlier appeal agitating the point that appeal was withdrawn without his consent and seeking some compensatory order for bringing his appeal to life---Non-mentioning factum of earlier appeal pointed to deliberate design at appellant's behest to conceal facts---Appeal was not maintainable in circumstances.

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

----S.96---Appeal---Acquiescence of defendant---Effect---Appellant had behaved like an indolent person, who never cared about his responsibility and after losing legal battle before Trial Court, he acquiesced to depart from his property in favour of respondent in executing proceedings and finally when his acquiescence got acted upon and relevant entry was kept, he had made another attempt through present appeal to save what he could have, had he been a little vigilant---Appeal was dismissed.

Sher Muhammad Kolachi for Appellant.

Jagdesh R. Mullani for Respondent.

Date of hearing: 11th March, 2015.

2016 M L D 854

[Sindh]

Before Sajjad Ali Shah and Syed Saeed-ud-Din Nasir, JJ

MAQSOOD ALI---Petitioner

Versus

Mst. FAHMIDA KHATOON and 7 others---Respondents

C.P. No.D-2058 of 2015, decided on 20th April, 2015.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Specific Relief Act (I of 1877), Ss. 39 & 42---Family Courts Act (XXXV of 1964), S.5 & Sched.---Suit for declaration and cancellation---Maintainability---Rejection of plaint---Family Court has exclusive jurisdiction in matter of family nature---Plaintiff filed suit for declaration and cancellation of documents regarding second marriage of his former wife and guardianship/custody of his minor children---Defendant/the wife filed application under O.VII, R.11, C.P.C., which was dismissed by the trial Court, but the revisional court, accepting the same, rejected the plaint---Validity---Dispute between the parties was one of family nature, which under S.5 of Family courts Act, 1964 was within the exclusive jurisdiction of the Family Court, regarding matters pertaining to jactitation of marriage, guardianship and custody of children as per the Schedule annexed thereto---Impugned order of the revisional court was, therefore, upheld---Constitutional petition was dismissed in circumstances.

Anwar Ali Shah for Petitioner.

Nemo for Respondents.

Date of hearing: 20th April, 2015.

2016 M L D 862

[Sindh]

Before Zafar Ahmed Rajput, J

IMRAN RASHEED---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No.1431 of 2015, decided on 4th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qanun-e-Shahadat (10 of 1984), Arts. 38 & 39---Qatl-i-amd---Bail, grant of---Crime empties dispatched after recovery of weapon---Extra judicial confession---Case of further inquiry---Only material the prosecution had against accused to connect him with commission of alleged offence was his extra judicial confession and recovery of pistol from his possession allegedly used in commission of murder of deceased---Empties recovered from the spot remained with police for about four years and ten months and were sent to Forensic Science Laboratory after recovery of crime weapon / pistol from possession of accused---Effect---Possibility of recoveries being fake could not be ruled out in circumstances---Extra judicial confession of accused was not admissible under Arts. 38 & 39 of Qanun-e-Shahadat, 1984, and recovery of pistol from the possession of accused after four years and ten months of alleged occurrence was of very weak nature and required corroboration from a source of unimpeachable character---Case of accused fell within the ambit of further inquiry as envisaged in S. 497(2), Cr.P.C.---Bail was allowed in circumstances.

Muhammad Latifuddin for Applicant.

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

Date of hearing: 4th December, 2015.

2016 M L D 877

[Sindh]

Before Abdul Rasool Memon and Aftab Ahmed Gorar, JJ

QAMARUDDIN and 4 others---Applicants

Versus

The STATE---Respondent

Cr. Revision Application No.9 of 2015, decided on 28th August, 2015.

Criminal Procedure Code (V of 1898)---

----S. 561A---Penal Code (XLV of 1860), Ss. 302, 324, 337-H(2), 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, attempt to commit Qatl-i-amd, ghayr-Jaifah rioting a hurt by rash or negligent act, unlawful assembly and terrorism---Essential ingredients of "terrorism"---Contention of accused was that essential ingredients constituting Ss. 6 & 7 of Anti-Terrorism Act, 1997 lacked in the case but Trial Court without considering evidence collected by Joint Investigation Team during course of re-investigation and affidavits of seven injured persons, did not accept supplementary report submitted by police for deletion of Ss. 6 & 7 of Anti-Terrorism Act, 1997---Complainant's plea was that at morning time accused made indiscriminate firing with automatic weapons at the office of one Security Company causing death of four persons and injuring more than twenty persons and had put general public in the office and on road under imminent danger to their lives and thereby created a sense of fear and insecurity---Validity---Whenever any action was taken which created fear and insecurity in any section of people, then such offence would fall within the ambit of S. 6 of Anti-Terrorism Act, 1997 where more than 25 persons duly armed with automatic weapons assaulted upon complainant party and made indiscriminate firing at the office of Security company, wherein not only complainant party sustained firearm injuries and four were killed, but several other persons were injured, such incident caused uncertain atmosphere and created fear in locality---Trial Court had rightly found that Ss. 6 & 7 of Anti-Terrorism Act, 1997 had full application in the case and had rightly applied the same---Deletion of said provisions at later stage apparently seemed to be with mala fide intention just to favour the accused---Application was dismissed, accordingly.

Nazeer Ahmed v. Nooruddin 2012 SCMR 517 rel.

Ghulam Ali Samtio and Asif Ali Abdul Razak Soomro for Applicants.

Habibullah G. Ghouri for the Complainant.

Zulfiqar Ali Jatoi, Deputy Prosecutor General.

2016 M L D 886

[Sindh]

Before Aftab Ahmed Gorar, J

NAZAR MUHAMMAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-1010 of 2015, decided on 11th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 504 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace, common intention---Bail, grant of---Further inquiry---Person who was involved in offence falling under prohibitory clause of S.497, Cr.P.C., could not be granted bail, if there were sufficient grounds to establish his connection with commission of offence, however, when role attributed against accused called for further inquiry into his guilt, he could be granted bail on ground of further inquiry---In the present case, accused had been shown to be present at the spot but he had not been assigned any active role in commission of crime---No injury upon deceased was attributed against accused and his alleged unarmed presence at the scene would reflect, prima facie, that his sharing vicarious liability with main accused was a question which could be determined by Trial Court during trial---Bail could not be withheld as a punishment and there was no legal or moral compulsion to keep people in jail merely due to allegation that they were involved in offences punishable with death or imprisonment for life unless reasonable grounds appeared to exist to disclose their complicity---Ultimate conviction and incarceration of a guilty person could repair wrong caused by mistaken relief of bail granted to him but no satisfactory reparation could be offered to an innocent person for his unjustified incarceration at any stage of case albeit his acquittal in the long run---Bail was granted, accordingly.

2012 SCMR 662 and 2014 SCMR 27 rel.

Ghulamullah Chang for Applicant.

Syed Meeral Shah Deputy Prosecutor General for Respondent.

Shaikh Jawaid Ali for the Complainant.

Date of hearing: 11th December, 2015.

2016 M L D 897

[Sindh]

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

Messrs TRADING CORPORATION OF PAKISTAN LTD.---Appellant

Versus

Messrs GENERAL INDUSTRIAL MACHINES---Respondent

High Court Appeal No.15 of 1979, decided on 22nd December, 2015.

Arbitration Act (X of 1940)---

----Ss.3, 16, 26-A & 30 [as inserted by Arbitration (Amendment) Ordinance (XV of 1981)]---Law Reforms Ordinance (XII of 1972), S. 3---Arbitration---Intra-court appeal---Objection to award---Remission of case---Reasons not stated---Parties referred their dispute to arbitrator who unanimously appointed umpire and a unanimous award was given---Arbitrators filed the award in court and despite objections filed by appellant, single Judge of High Court made it rule of the Court---Appellant sought dismissal of award on the plea that arbitrators did not give reasons of award and after their death parties were not willing to appoint new arbitrator---Validity---Case fell under S. 16 (1)(c) of Arbitration Act, 1940, as objection raised by appellant to legality of award that it lacked reasons was apparent on the face of it---Such objection was also accepted by High Court when the matter was remitted to surviving arbitrator for reasons in sufficient details which order was upheld by Supreme Court---Surviving arbitrator failed to reconsider the award and to submit his decision and reasons in sufficient details within the stipulated period---Such award had become void under S. 16(3) of Arbitration Act, 1940---Arbitration agreement between parties ceased to have effect with respect to dispute referred thereunder and such reference was liable to be superseded under S. 19 of Arbitration Act, 1940---Parties were unwilling to appoint new arbitrators and the award could not be remitted to any other arbitrator---Award had become void and arbitration agreement between parties could not be given effect to and the same had become frustrated---Reference was superseded under S. 19 of Arbitration Act, 1940 and the arbitration agreement ceased to have effect with respect to differences/dispute referred in pursuance thereof to arbitrators and umpire---Division Bench of High Court set aside judgment and decree passed by single Judge of High Court resultantly award was set aside---Appeal was allowed accordingly.

Wazir Khan and 8 others v. Sardar Ali and 25 otherse 2001 SCMR 750; Muhammad Farooq Shah v. Shakirullah 2006 SCMR 1657; Abdul Razzak v. Mst. Qaiser Sultan and 2 others 1984 MLD 147; Associated Constructors Ltd. v. Karachi Municipal Corporation 1987 CLC 383; Messrs Abdullah Traders v. Trading Corporation of Pakistan LTD. and 2 others 1999 CLC 2047 and Chelikani Venkata Rao and others v. C. V. Rao and others, AIR 1958 Andhra Pradesh 740 ref.

Muhammad Gulzar v. Rana Abdul Jabbar and others 2005 MLD 667 rel.

Syed Ashfaq Hussain Rizvi for Appellant.

A. H. Mirza for Respondent.

Dates of hearing: 5th, 19th December, 2014 and 23rd November, 2015.

2016 M L D 916

[Sindh]

Before Nazar Akbar, J

MUHAMMAD YOUNIS---Applicant

Versus

TALUKA MUNICIPAL ADMINISTRATION TALUKA COUNCIL through Nazim and 2 others---Respondents

R.A. No.33 of 2007, decided on 7th October, 2015.

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

----S. 8---Suit for recovery of specific immovable property---Locus Standi---Scope---Plaintiff filed suit without obtaining any succession certificate to show that he was entitled to inherit the suit plot along with other legal heirs of the deceased---Plaintiff without disclosing legal heirs of deceased had no right/locus standi to sue defendants in his own right.

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

----S. 8---Civil Procedure Code (V of 1908), O.XXI, R.1(3) ---Suit for recovery of specific immovable property---Scope---Plaintiff had same cause of action which had accrued to his father even prior to formal purchase of suit plot---Cause of action of plaintiff as mentioned in plaint was one and the same that "octroi post was available on suit plot and his father had sought recovery of possession of that portion from Municipal Committee and Municipal Committee had promised to settle the issue, therefore, suit was withdrawn by plaintiff's father"---Same cause of action had been shown by plaintiff in capacity of son of earlier plaintiff by saying that octroi post was on suit plot and Municipal Committee had refused to vacate the same---Held, that merely because a sale deed was registered subsequently, cause of action could not be said to have accrued subsequently---Plaintiff had failed to even disclose the date of withdrawal of said suit---Plea of fresh cause of action on ground of registration of sale deed subsequent to filing of earlier suit had lost its value---Revision petition was dismissed, accordingly.

1993 CLC 1478 rel.

Anwar Jamal for Applicant.

Nemo for respondents.

Date of hearing: 15th September, 2015

2016 M L D 931

[Sindh]

Before Nazar Akbar, J

RAFAT MALIK JAMAL---Plaintiff

Versus

MUNAWAR MALIK JAMAL and 12 others---Defendants

Suit No.1405 of 1998, decided on 23rd November, 2015.

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

----Ss. 114, 151, O. XLVII, R. 1 & O. XXVI----Review---Scope---Provisions of review of order under S. 114 or O. XLVII, R. 1, C.P.C. and provisions of S. 151, C.P.C., for correction of clerical or arithmetical mistakes in the order, could be invoked simultaneously---Appointment of Commission by Court to examine witnesses---High Court accepted application of interveners; whereas, Division Bench of High Court modified the said order of acceptance, remanded the case to decide issue as to legal status of the interveners within six months, for which Commission had been appointed---Applicant filed application for review of said order of appointment of Commission---Validity---Applicant was not sure as to whether the order sought to be reviewed contained typographical errors, or the same was result of overlooking certain facts on record, nor had he showed as to what prejudice had been caused to him, for which review was necessitated---Failure of applicant to record evidence on pretext of pendency of review application was calculated move to delay decision on merit---Application was dismissed with cost in circumstances.

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

----O. XIV, R. 5----Settlement of issues---Power to amend, and strike out, issues---Scope and object---Issues can be resettled even after recording of evidence and just before final order, either suo moto by court in terms of O. XIV, R. 5, C.P.C. or on request of parties---Purpose of said provision is to ensure that recording of evidence of parties should not be postponed.

Shaukat Jamal, Defendant No.4 in person.

Talha Kamal, for Defendant No.7.

Muhammad Vawda, for Defendants Nos.9 and 10.

Iftikharul Hasan, for CDGK.

Danial Bux, holding brief for Rehman Aziz Malik for the Interveners.

2016 M L D 941

[Sindh]

Before Amer Raza Naqvi, J

NOOR MUHAMMAD---Appellant

Versus

Mst. FEROZA and another---Respondents

Cr. Acq. Appeal No.8 of 2014, decided on 24th November, 2014.

Penal Code (XLV of 1860)---

----Ss. 448 & 34---Criminal Procedure Code (V of 1898), S. 249-A---House trespass and common intention---Family dispute between daughter-in-law and father-in-law---Accused person was acquitted of charge by the Trial Court---Validity---No trespass had taken place and even at the time of alleged incident accused was inside the premises---Family dispute had been converted into criminal proceedings---Accused was still legally wedded wife of son of complainant---No civil proceedings had been initiated with regard to the property by the complainant---Relief which could be claimed in civil proceedings had been attempted to be enforced through criminal proceedings---No illegality, mis-reading or non-reading of evidence had been pointed out in the impugned judgment---Trial Court had rightly exercised its power under S. 249-A, Cr.P.C.---Appeal was dismissed in circumstances.

Ms. Firdous Faridi for Appellant.

Qaim Ali Memon for Respondent.

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

2016 M L D 952

[Sindh]

Before Salahuddin Panhwar, J

Messrs FRANKLIN CREDIT AND INVESTMENT COMPANY LTD.---Plaintiffs

Versus

EXPORT PROCESSING ZONES AUTHORITY and another---Defendants

Suit No.406 of 2005, decided on 2nd April, 2015.

Specific Relief Act (I of 1877)---

----Ss. 42 & 56---Export Processing Zones Authority Ordinance (IV of 1980), S. 24---Arbitration Act (X of 1940), S. 34---Suit for declaration and injunction---Stay of proceedings---Reference to arbitrator---Defendant filed application for stay of proceedings before court and decision through arbitrator---Validity---Plaintiff initiated legal proceedings for number of reliefs including one of declaration and cancellation of lease in favour of defendant---Such dispute was never agreed to be referred to arbitrator nor the parties to agreement at that time were competent or legally justified to keep such authority with them or to get a matter referred for arbitration at their choice when the title, status and rights of defendant would in any case of arbitration were likely to be prejudiced---High Court declined to stay the proceedings---Application was dismissed in circumstances.

2009 CLC 676; 2012 CLD 267 and 1987 CLC 2205 ref.

Shah Muhammad v. Export Processing Zones Authority 2011 YLR 2413 rel.

Mohsin Shahwani for Plaintiffs.

Danish Ghazi for Defendant No.1.

Ghulam Murtaza for Defendant No.2.

Date of hearing: 5th March, 2015.

2016 M L D 981

[Sindh]

Before Muhammad Iqbal Kalhoro, J

FAZAL-E-RABBI---Plaintiff

Versus

PLANT PROTECTION DEPARTMENT OF GOVERNMENT OF PAKISTAN through Director General and 3 others---Respondents

Suit No.378 of 2014, decided on 16th December, 2015.

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

----Ss. 94 & 151---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Seeking permission to raise construction on the suit property---Scope---Plaintiff tried to construct boundary wall but defendant did not allow him---Validity---Issue of construction of boundary wall around the suit plot had been contested by both the parties---Said issue could not be dealt with in summary manner---Relief sought by the plaintiff could be granted after final adjudication of the matter in his favour---Prayer of plaintiff that pending the suit he might be allowed to raise boundary wall over the suit plot was premature---Rights of the parties with regard to any matter in controversy could be determined only through judgment and decree---Plaintiff could not be allowed to raise construction on suit property till determination of his rights thereon---Application for permission to raise construction on the suit property was dismissed in circumstances.

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

----O. XXXIX, R. 2(3)---Interim injunction, violation of---Pray for punishment to the contemner---Scope---Application for grant of interim injunction was disposed of and defendant was restrained from raising any construction on the suit land---Contention of plaintiff was that defendant had violated the injunctive order passed by the court---Validity---Injunctive order was passed without issuing notice to the defendant on the assertions of plaintiff that he was in possession of the suit property---Defendant had disputed said fact through written statement---No finding could be given with regard to the fact that alleged contemners had committed contempt of order of the court till determination of the rights of the parties---Plaintiff had to establish his possession on the suit plot on the relevant date to prove alleged violation of order of the court---No conclusion in favour of either party could be drawn at this stage---Application for contempt of court's order was dismissed in circumstances.

Khawaja Shamsul Islam for Plaintiff.

Zia ul Haq Makhdoom for Defendants Nos. 1 to 3.

Salman Talibuddin, Additional Attorney General Pakistan for alleged Contemnor No.1.

Date of hearing: 10th December, 2015.

2016 M L D 992

[Sindh]

Before Syed Hasan Azhar Rizvi and Muhammad Faisal Kamal Alam, JJ

Mrs. FARIDA SULTAN through Lawful Attorney---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum Islamabad and others---Respondents

C.P. No.D-2293 of 2014, decided on 26th November, 2015.

Karachi Building and Town Planning Regulations, 2002---

----Reglns. 25-12.3 & 25-11.12---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), S. 11---Lease agreement for setting up/operating a petrol Station---Installation of Compressed Natural Gas (CNG) facility at the subject property without permission of landlord---Effect---Petitioner being lessee of the plot submitted that same was leased out to the petroleum company for setting up and operating a petrol pump/retail outlet but gas connection had also been obtained for operating and running CNG facility at the subject property---Validity---CNG facility could be allowed at an existing petrol pump if the area of the plot whereupon same was being run/operating was thousand square yards and above---Area of subject plot whereupon the petrol pump was being run/operating was 1421 square yards---Regulation 25-12.3 of the Sindh Building and Town Planning Regulations, 2002 had not been violated in the present case---CNG facility could be added on an existing petrol pump/retail outlet subject to fulfillment of other requisite formalities---Memorandum of Understanding between the parties could neither frustrate nor overrule the terms and conditions of lease agreement which was a registered document---Permission of landlord was not necessary, unless there was a contract to the contrary, for other commercial ventures which an oil marketing company had undertaken at a retail outlet/petrol pump---Oil marketing company had to obtain permission only from the concerned government functionaries for such business activities at the petrol pump/retail outlet---Petroleum company could not enter into any such agreement with any third party which could frustrate the terms and conditions of lease agreement---Landlord had to lead evidence for seeking the relief of compensation which exercise could not be undertaken under the constitutional jurisdiction by High Court---Constitutional petition was disposed of accordingly---High Court observed that decision of present constitutional petition would not debar the petitioner to seek redressal of her grievances if any from any other competent fora.

Syed M. Intikhab Alam for Petitioner.

Dilawar Hussain standing Counsel for Respondents Nos. 1 and 2.

Malik Altaf Javed for Respondent No.3.

Date of hearing: 17th November, 2015.

2016 M L D 1006

[Sindh]

Before Zafar Ahmed Rajput, J

ABDUL RASHEED---Petitioner

Versus

Mst. SHAMIM ZAKIR and 6 others---Respondents

C.P. No.592 of 2014, decided on 4th December, 2015.

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

----S. 5, Sched---Suits for recovery of maintenance allowance---Family Court fixed maintenance allowance for the minors at the rate of Rs. 8000/- per month for each child with increase of 30% per annum but Appellate Court modified the amount from Rs. 8000/- to Rs.5000/- and annual increase at the rate of 10% per annum---Validity---Appraisal of evidence, assessment of its evidentiary value, drawing of inference therefrom and to determine the amount of maintenance was the function of Family Court---Family Court had exclusive jurisdiction to decide such matters---High Court in exercise of its constitutional jurisdiction could not correct the error of facts committed by the subordinate court during the proceedings of family matters---Appellate Court had reduced the amount of monthly maintenance for the minor and such controversy must come to an end---Findings recorded by the Appellate Court were based on evidence and were also supported by reasoning---No material piece of evidence had been overlooked or misread by the Appellate Court---Appellate Court had correctly determined the maintenance amount---Impugned judgment did not suffer from any jurisdictional infirmity---Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Nature and scope---Powers of High Court in constitutional jurisdiction were not analogous to those of an Appellate Court---High Court under its constitutional jurisdiction could neither substitute finding of fact recorded by the court nor give its opinion with regard to adequacy or quality of evidence---Constitutional jurisdiction could only be exercised if lower court had exceeded its jurisdiction or acted without jurisdiction---Finding of fact recorded by the court having jurisdiction could not be disturbed merely on the ground that another view was possible on the same evidence unless such finding based on evidence was fanciful or arbitrary.

Fayaz Aslam Dar for Petitioner.

Abdul Shakoor for Respondents Nos. 1 to 4.

Date of hearing: 30th November, 2015.

2016 M L D 1024

[Sindh]

Before Nadeem Akhtar, J

HYUMYUN NASEER---Plaintiff

Versus

LT. General ZAHID ALI KHAN AKBAR and another---Defendants

Suit No. 1508 of 2012, decided on 17th November, 2015.

Sindh Chief Court Rules (O. S.)---

----Rr. 128 & 129---Specific Relief Act (I of 1877), Ss. 12 &42---Suit for specific performance and declaration and damages---Failure to pay process fee---Plaint, striking off---Scope---Non-payment of process fee by the plaintiff---Striking off the plaint by Additional Registrar of High Court---Scope---Plaintiff and his counsel were expected to know the dates directing the issuance of the process---Process fee was not paid by the plaintiff for issuance of summons---Plaint was struck off by the Additional Registrar and an endorsement was made to such effect---Only remedy for the plaintiff was to file an application for restoration of the plaint by showing sufficient grounds to the satisfaction of Additional Registrar---No such application had been filed by the plaintiff and order for striking off the plaint was still in the field---No suit or cause existed before the court against the defendants---Present suit must fail, and suit alongwith application for grant of temporary injunction were dismissed.

Muhammad Qutubuzzaman for Plaintiff.

Ejaz Mubarak Khattak for Defendants.

2016 M L D 1037

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

KARACHI FISHERIES HARBOUR AUTHORITY through Managing Director Appellant

Versus

Messr HUSSAIN (PVT.) LTD.---Respondent

High Court Appeal No.35 of 2013, decided on 24th August, 2015.

Arbitration Act (X of 1940)---

----Ss. 20 & 41---Arbitration agreement---Arbitrator, appointment of---Final disposal or hearing of main suit when same was not fixed for the purpose---Effect---Trial Court decided main petition filed under S. 20 of Arbitration Act, 1940 while hearing application moved under S. 41 of Arbitration Act, 1940---Validity---Matter was only fixed on the day for hearing of an application filed under S. 20 of Arbitration Act, 1940 and not for final hearing or disposal of the entire suit or main application---Trial Court while allowing the application had issued direction to the applicant-appellant to file agreement in the court and dispute had been referred for arbitration by the same Arbitrator who had earlier decided the issue between the same parties---When a matter was listed for hearing of an application and not for final disposal or hearing of the main suit, court should not decide the entire suit on merits and could only decide the said application except with the consent of the parties---While hearing miscellaneous application the matter could not have been referred for arbitration as same would amount to finally deciding the main application/suit---Matter was remanded to the Trial Court to decide the main application afresh after providing reasonable opportunity to both the parties within a specified period---Appeal was allowed in circumstances.

Qazi Muhammad Tariq v. Hasin Jahan and 3 others 1993 SCMR 1949 and Pehalwan Goth Welfare Council through General Attorney v. District Co-Ordination Officer (DCO) Karachi and 13 others PLD 2012 Sindh 110 rel.

Shaiq Usmani for Appellant.

Muhammad Masood Khan for Respondent.

Date of hearing: 21st January, 2015.

2016 M L D 1054

[Sindh]

Before Shahnawaz Tariq, J

BILAWAL---Applicant

Versus

The STATE---Respondent

Cr.B.A. No.625 of 2015, decided on 12th November, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 103----Control of Narcotic Substances Act (XXV of 1997), Ss. 9 & 6---Prohibition of narcotic drugs, etc.---Search to be made in presence of witnesses---Bail, grant of---Delay, and contradictions in prosecution version, regarding sending of recovered substance/Charas to Chemical Examiner---Further enquiry---Twenty-five hundred grams of Charas was alleged to have been recovered from accused---Accused was alleged to have been apprehended during day time from a place, which was busy road, but no private person had been associated to act as mashir/witness---Private persons should have been given preference if they were available at the spot, rather than official personnel, to maintain transparency of the recovery---High Court observed that the requirements of S. 103, Cr.P.C. were mandatory regarding the recovery in presence of two members of public---No explanation had been advanced for sending the recovered substance with delay of sixteen days; whereas, chemical laboratory, was about fifty kilometers away from the police station---Recovered substance had been sent to the chemical examiner more than once without any explanation---Accused was no more required to the police---Accused had been behind bars since date of his arrest, but prosecution had failed to examine even a single witness for period of seven months---No one could be detained for an indefinite period---No apprehension of tampering with prosecution evidence existed, as all prosecution witnesses were police officials---Accused had made out a case for further enquiry---Bail application was accepted accordingly.

Jamal-ud-din alias Zubair Khan v. The State 2012 SCMR 573; Khuda Bux v. The State 2010 SCMR 1160 and Noshad v. The State 2012 PCr.LJ 1901 ref.

State v. Bashir and others PLD 1997 SC 408 rel.

Shakeel Ahmed Kalwar for Applicant.

Abdul Rehman Kolachi, APG for the State.

Date of hearing: 12th November, 2015.

2016 M L D 1067

[Sindh]

Before Ahmed Ali M. Shaikh and Muhammad Iqbal Kalhoro, JJ

ASIF AZEEM SHAIKH---Petitioner

Versus

The STATE through Home Secretary, Sindh and 7 others---Respondents

C.P. No.D-461 of 2015, decided on 9th April, 2015.

Criminal Procedure Code (V of 1898)---

----S. 173---Penal Code (XLV of 1860), S. 319---Qatl-i-Khata---Disposal of case under "C" class, instead of "B"---Petitioner, was aggrieved by order of Judicial Magistrate, whereby case against him was disposed of under "C" class---Police, could dispose of a case under either of the class "A", which had been defined as true case, but accused untraced; "B" class as maliciously false cases; and disposal under "C" class, would mean that case was neither true, nor maliciously false, or a non-cognizable offence---Contention of the petitioner was that case of respondent, should have been disposed in "B" class, so that the legal repercussions contemplated under the law to meet such situation could follow against the respondent---Dispute between the parties over tenancy of the house was not denied---Trial Court in an inquiry had held the respondent, responsible for causing eviction of the petitioners from the house by illegal method, which indicated that things were not normal between the parties; and they were to a certain extent inimical to each other---Determination of malice on the part of respondent to supply false information to the Police about death of his mother, to lodge a criminal case against the petitioner accusing him of that incident, was altogether a different exercise in the eyes of law; it had to be ascertained by examining all the facts reported by the complainant of the FIR---Contents of subject FIR had shown that mother of respondent, died due to an alleged shove to her by the petitioner in the heat of argument which caused (allegedly) some hidden head-injury to her---Evidence to that end was not found by the Investigating Officer; nor he inferred that such information was maliciously false; and was used against the petitioner to gain possession of house, and case was disposed of under "C" class---Death of mother of respondent at the hands of the petitioner, was reported to be a result of an accident; and not the result of premeditated conspiracy, or act on the part of the petitioner---Action occurring afterwards, which included arrest of petitioner, and sending him to Police remand, did not establish conclusively that information provided by the respondent for registration of FIR was maliciously false---Subsequent actions, allegedly committed by the respondent to take possession of his house, could be actionable and justiciable in due course of law, but would not be read to have proved information supplied by him concerning death of his mother as false entailing a legal action against him---Magistrate could not find any clue, and disposed of the case in "C" class agreeing with the opinion of Investigating Officer---Law had provided an adequate remedy to a person who was forced to withdraw his suit under the pretence of compromise with the opposing party; and in the face of his dispossession from immovable property, without due course of law, he could seek help of various relevant laws regulating determination of such dispute---Petitioner, would be at liberty to avail further remedy against the respondent in accordance with law.

Muhammad Haroon and another v. The State PLD 2009 Kar. 120 ref.

Muhammad Ali Ghous for Petitioner.

Ashiq Hussain Solangi for Respondent No.7.

Ms. Akhter Rehana, Additional Prosecutor General.

Date of hearing: 3rd April, 2015.

2016 M L D 1088

[Sindh]

Before Naimatullah Phulpoto, J

SULTAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.152 of 2015, heard on 16th September, 2015.

Criminal Procedure Code (V of 1898)---

----S.426(1A)(c)---Penal Code (XLV of 1860), S. 376(1)---Suspension of sentence, application for---Rape---Accused who was awarded sentence of 10 years' R.I. and to pay fine of Rs.50,000, his case fell under mandatory provisions of S.426(1A)(c), Cr.P.C. which provided that convicted person to be released on bail, if he had been sentenced to imprisonment for life or imprisonment exceeding seven years, and whose appeal had not been decided within period of two years of his conviction---In the present case, accused had filed application for suspension of sentence only after three months of his filing appeal, which was premature stage for suspension of sentence of accused---Affidavit of complainant filed before the Trial Court, in which she recorded no objection for grant of bail to accused, could not be considered by High Court while deciding application for suspension of sentence---Appraisal of evidence in depth, was neither warranted, nor desirable while dilating upon and deciding such application---Court was to confine itself to the judgment assailed before it---Thorough scrutiny of evidence and its evaluation, should be made while adjudicating upon the appeal; as it would be opportune moment for doing so and not while deciding the application moved under S.426(1A)(c), Cr.P.C.---Application being devoid of merits was dismissed.

Adil Bashir v. The State 2003 SCMR 407 rel.

Naeem Akhtar Khan for Appellant.

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

Date of hearing: 16th September, 2015.

2016 M L D 1103

[Sindh]

Before Ghulam Qadir Leghari, J

ZAHID HUSSAIN CHANDIO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-209 of 2015, decided on 4th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 392 & 506---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17 (3)---Criminal intimidation; robbery; Haraabah---Bail, grant of---Delay in lodging of FIR and in recording statement of eye-witnesses not explained---Requirement of Tazkiyah-al-Shuhood not fulfilled---Lesser punishment provided for offence to be considered for applying prohibitory clause of S.497, Cr.P.C. at bail stage---Accused, along with one other, was alleged to have robbed the complainant and his son of their mobile phones and taxi---FIR had been lodged with delay of four days after order of Justice of Peace had been received by the police without any explanation by the complainant---Complainant had alleged that the accused persons had, at time of hiring his taxi, had handed over copy of his identity card but same was not produced during recording of statement before the Investigation Officer---Neither the allegedly robbed mobile phones, nor the robbed taxi and the weapon had been recovered from possession of the accused after his arrest---No eyewitness of the occurrence was on record, who had fulfilled the requirement of Tazkiyah-al-Shuhood---Section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was, therefore, not applicable to the present case, and the offence, at the most, fell under S. 392, P.P.C., which provided punishment of three to ten years and fine; however, if the robbery was committed on the highway, the imprisonment might extend to fourteen years---Where, at bail stage, offence in question provided alternative punishments, the lesser of the two punishments was to be taken into consideration in applying the prohibitory clause under S. 497 (1), Cr.P.C.---Lesser punishment provided under S. 392, P.P.C. was three years, hence, the offence did not fall within the prohibitory clause of S. 497, Cr.P.C.---Investigation Officer had recorded statement of the prosecution witnesses with delay of fourty days after lodging of the FIR without any explanation---Delay in recording of statements of the eye-witnesses under S. 161, Cr.P.C. was of material significance for purpose of bail---Bail was allowed accordingly.

Irshad v. The State 2004 PCr.LJ 1246; Rahat Ali v. The State 2010 SCMR 584; Syed Ahmedullah Shah v. The State PLD 1996 SC 241 and Ahmed Nawaz Solangi v. The State 2014 YLR 1723 rel.

Asif Ali Abdul Razzak Soomro for Applicant.

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

2016 M L D 1114

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

ISMAIL AHMED and 11 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, M/O Religious and Minority Afairs, Islamabad 9 and others---Respondents

C.P. No.D-6217 of 2015, decided on 20th October, 2015.

Scheme for Management and Disposal of Urban Evacuee Trust Properties, 1977---

----Cl.8---Sale of evacuee trust property, disposal of---Principles---Petitioners claimed that they, having been in possession of suit plots as owners, which later turned out to be urban evacuee trust land for long, had preferential right as to grant of lease-hold rights of the same by Evacuee Trust Property Board---Validity---Selling out urban evacuee trust property under Scheme for Management and Disposal of Urban Evacuee Trust Properties, 1977, might be a policy matter, but before doing so, Board must come to conclusion that such urban trust property was 'uneconomic' or otherwise 'difficult to manage'---Petitioners had failed to bring on record any such decision of the Board---Petitioners had been illegal occupants of suit plots owned by Board---Petitioners were, therefore, not entitled to any special privilege or preferential treatment---Right in public or State property originally belonged to public or State---State, being virtual entity, exercised its authority through public functionaries---Whenever a right belonging to public or State was alienated through sale, lease, licence, etc. public functionaries were under obligation to protect and preserve transparency and ensure maximum gain for public exchequer by extending equal opportunity to all potential competitors, who intended to acquire such property through purchase, lease, license, etc.---Public functionaries, deriving their authority from or under law, were obligated to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within parameters of law---Constitutional petition was dismissed in circumstances.

Khawaja Muhammad Azeem for Petitioners.

Nemo for Respondents Nos. 1 to 10.

Date of hearing: 7th October, 2015.

2016 M L D 1134

[Sindh]

Before Abdul Rasool Memon, J

MUHAMMAD IFTIKHAR QURESHI---Petitioner

Versus

MUHAMMAD YAHYA QURESHI and 2 others---Respondents

C.P. No.S-557 of 2014, decided on 1st January, 2016.

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

----Ss. 18 & 15---Change of ownership of premises---Ejectment petition was allowed concurrently---Contention of tenant/petitioner was that there was no relationship of landlord and tenant between parties as his wife and alleged landlord were sister and brother inter se and she had purchased the property in question and three other tenants were residing in the said building and his wife being owner had been collecting the rent from them---Landlord's plea was that petitioner's admission as tenant to previous owner was on record from whom landlord had purchased the premises in question and though service notice as to change of ownership had been denied by tenant but filing of ejectment application was sufficient notice in that regard---Validity---Petitioner admittedly was tenant of original owner of the property and notice of ejectment application would be sufficient notice in compliance of S.18 of Sindh Rented Premises Ordinance, 1979 and non-payment of rent would make a tenant defaulter---Even if notice under S.18 of Sindh Rented Premises Ordinance, 1979 was not served upon tenant, contention raised by tenant/petitioner regarding non-service of notice as to change of ownership was not tenable---Constitutional petition was dismissed, in circumstances.

1987 CLC 686; 2001 MLD 1037; 2001 MLD 1044; 1991 MLD 1774; 1991 SCMR 2300; 1987 CLC 148; 1991 MLD 299; PLD 1963 Dacca 269; 1990 CLC 1529; PLD 1968 SC 342; 1972 CLC 1930; 1994 SCMR 572; PLD 1987 Kar. 526; PLD 2011 SC 296; 1997 SCMR 1775; 2013 YLR 1103; 2013 CLC 280; NLR 2004 Civil 702; 1990 MLD 2300; 1996 MLD 1141; 2010 CLC 561; 1989 CLC 1467; PLD 2013 Sindh 513 and 2012 YLR 854 ref.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court was limited only to interference in impugned orders where Appellate Court had flouted provisions of relevant statute or failed to follow law relating thereto---High Court had no jurisdiction to substitute his own findings for findings recorded by courts below.

Arif Khan for Petitioner.

S.M. Haider for Respondent No.1.

Date of hearing: 7th October, 2015.

2016 M L D 1155

[Sindh]

Before Muhammad Iqbal Mehar, J

SHRIMATI GHORI---Petitioner

Versus

9TH CIVIL JUDGE/JUDICIAL MAGISTRATE, HYDERABAD and 5 others---Respondents

C.P. No.S-1135 of 2015, decided on 11th March, 2016.

Penal Code (XLV of 1860)---

----S. 364-A---Kidnapping or abducting a person under the age of fourteen---Submitting summary in 'C' class by Magistrate---Validity---No eye-witness of the incident as none had seen anybody while abducting son of the petitioner/complainant---Place of incident was shown as 'Bakra Mandi' a thickly populated area and at distance of 1/2 furlong from Police Station, but none from the locality had been cited as witness---FIR revealed that purpose of leaving house by alleged abductee was to purchase mango from market in the month of January, which was hardly believable---Whole case was based on extra judicial confession of accused before petitioner/complainant on mobile phone---No allegation of demand of ransom amount from complainant party---Petitioner, did not co-operate with the Investigating Officer in collecting the DATA of mobile phone or of her allegedly abducted son---Impugned order passed by Magistrate, did not suffer from any infirmity in circumstances.

Syed Shahzad Ali Shah for Petitioner.

Aslam P. Sipio for Respondent.

Anwar Hussain Ansari, State Counsel.

Date of hearing: 29th February, 2016.

2016 M L D 1167

[Sindh]

Before Naimatullah Phulpto and Aftab Ahmed Gorar, JJ

MOHAMMAD HASSAN---Appellant

Versus

The STATE---Respondent

Cr. Jail Appeal No.104 of 2011, decided on 21st January, 2016.

Penal Code (XLV of 1860)---

----Ss. 302 (b)---Qatl-i-amd---Appreciation of evidence---Defence pleas not supported by any evidence---Mere relationship of prosecution witnesses inter se and with deceased not sufficient to discard their evidence in absence of motive for false implication---Accused was alleged to have caused death of uncle of the complainant by inflicting firearm injuries on his body due to previous strained relationship with him---Trial Court convicted the accused and sentenced him to death as Ta'zir along with payment of compensation to the legal heirs of the deceased---Accused had taken plea that he had been falsely implicated in the case due to enmity with the then District Nazim, as he had not voted for him in the general elections, that the deceased had enticed away one lady, due to which her relatives were on inimical terms with him---Further plea of accused was that strike call from a political party had been given on the day of incident during which firing had taken place between the police and public and taking advantage of the strike and firing, said relatives might have killed the deceased---Eye-witnesses had categorically stated before Trial Court that they had seen the accused while committing murder of the deceased---Accused had not produced any material to establish his defence pleas nor any witness had been examined by him to prove his assertion, in absence whereof, bare words of the accused could not be believed---Even if the plea regarding enticing a lady was accepted as true, that was not understandable as to why the complainant and the prosecution witnesses, who were admittedly related to the deceased, would spare the real culprits and involve an innocent person---Said plea was, therefore, not proved---No question had been put to prosecution witnesses regarding the strike or firing on the day of the incident, except the Investigating Officer, who had specifically denied such suggestion---Assertion of the accused that after his duty hours he had deposited the official rifle at the police station and same had been obtained by police from the police Malkhana and foisted upon him, was not supported by any witness---Accused had not moved any application or verbally requested the Trial Court to call such record---Mere relationship of the complainant and prosecution witnesses with the deceased was no criteria to discard their testimony, and they could not be termed as interested witnesses---Statements of the eyewitnesses were consistent with each other, with version of the complainant as well as with the medical evidence---Accused had not asserted existence of any inconsistencies or contradictions in evidence of the prosecution witnesses---FIR had been lodged within half an hour of the incident without any delay---No possibility of concoction of false case against the accused, therefore, existed---Considering the quantum of sentence, no mitigating or extenuating circumstances were available on record to justify awarding lesser punishment---Prosecution had proved the charge against the accused beyond reasonable doubt---High Court, maintaining the conviction and sentence, answered the murder reference in the affirmative---Appeal against conviction was dismissed accordingly.

PLD 2004 SC 371; 2010 SCMR 650 and Raqib Khan v. The State 2000 SCMR 163 rel.

A. Rasheed Nizamani for Appellant.

Mohammad Iqbal Awan, D.P.G. for the State.

Date of hearing: 11th January, 2016.

2016 M L D 1180

[Sindh]

Before Shahnawaz Tariq, J

Mst. WAZIRAN and another---Petitioners/Applicants

Versus

PROVINCE OF SINDH through Home Secretary, Government of Sindh and 10 others---Respondents

Const. Petition No.S-2439 and Cr. M.A. No.S-371 of 2015, heard on 29th September, 2015.

Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), S. 365B---Constitutional jurisdiction of High Court---Scope---Quashing of proceedings---Scope---Contention of petitioner was that she performed her Nikah with co-petitioner out of their love affair and since then spouses were residing together happily and neither co-petitioner kidnapped her nor forced her for their marriage---Validity---Where a gross illegality or material irregularities had been committed, High Court had to exercise its constitutional jurisdiction to save innocent persons from mental agony and injustice---After submission of Challan, accused may approach the Trial Court and agitate his innocence by filing application for acquittal instead of invoking Constitutional Jurisdiction of High Court under Article 199 of the Constitution---In the present case, however, Investigating Officer had conducted investigation in appropriate and proper manner and after verifying the authencity of Nikahnama of petitioners, he submitted summary report under S. 173, Cr.P.C. which invalidated allegations made in FIR and such negation had created a valuable right in favour of accused/petitioners---Magistrate was bound to scan the summary report supported with relevant record with a prudent mind and pass appropriate and well discussed order while declining summary report, simultaneously taking cognizance of alleged offence and directed Investigating Officer to submit Challan against accused but Magistrate had declined such report in mechanical manner and without any justification and mentioning valid grounds---Impugned order of Magistrate was set aside and Police was directed to provide security to the petitioners---Constitutional petition was disposed of, accordingly.

Shakeel Ahmed Kalwar for Petitioners (in C.P. No.S-2439 of 2015) and for Applicant (in Cr. M.A. No.S-371 of 2015).

Agha Athar Hussain, A.A.G.

Sardar Ali Shah, A.P.G.

Date of hearing: 29th September, 2015.

2016 M L D 1194

[Sindh]

Before Muhammad Iqbal Mahar, J

MUHRAM and another---Applicants

Versus

IST ADDITIONAL SESSIONS JUDGE and 2 others---Respondents

Criminal Revision Application No.S-174 of 2015, decided on 28th March, 2016.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Application assailing the applicants as accused by Trial Court---Validity---Names of applicants in the FIR, appeared with specific role of firing at deceased, which was corroborated by medical evidence---Eye-witnesses, had fully implicated the applicants in their examination-in-chief recorded before the Trial Court---Trial Court had rightly joined the applicants as accused---Applicants, having failed to make out a case for interference by High Court, revision application was dismissed, in circumstances.

PLD 1986 Lah. 256; 1996 PCr.LJ 99; 1991 MLD 1977 and 2014 PCr.LJ 84 ref.

Ahsan Gul Dahri for Applicants.

Bhagwandas Bheel for Respondent No.2.

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

2016 M L D 1199

[Sindh]

Before Sajjad Ali Shah and Syed Saeeduddin Nasir, JJ

MURTAZA and others---Petitioners

Versus

SIR SYED UNIVERSITY OF ENGINEERING AND TECHNOLOGY through Vice Chancellor and 4 others---Respondents

C.Ps. Nos. No.D-1162 to 1165 of 2015, decided on 21st April, 2015.

Educational institution---

----Due process of law---Admission, cancellation of---Petitioners got admission in computer science discipline of the university but on their own, started attending classes of civil engineering unauthorizedly and without being transferred in accordance with the rules and regulations of the university somewhere at the end of first semester---Petitioners, without attending classes, had also appeared in one or two papers in the first semester in civil engineering department---While petitioners were appearing in second semester during third paper, they were caught by the authorities for unauthorizedly appearing in second semester thereafter their result of first semester was withheld---Grievance of the petitioners was that university had cancelled their admissions without any reason and justification---Validity---University authorities had taken stern action against petitioners by initiating disciplinary action and cancelling admissions of petitioners from the university without affording them an opportunity of being heard and defend their case---Authorities had denied petitioners their constitutional rights guaranteed under Arts. 4 & 10 of the Constitution---High Court set aside the letter issued by the university and restored admission of petitioners to the discipline of computer science---Petition was allowed accordingly.

Mahmood Habibullah for Petitioners.

Abrar Hasan for Respondents.

Date of hearing: 21st April, 2015.

2016 M L D 1208

[Sindh]

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

AMBER ALIBHAI and 6 others---Petitioners

Versus

MUHAMMAD GHULAM JAN MUHAMMAD and 10 others---Respondents

C.P. No.D-1434 of 2011, decided on 30th November, 2015.

Sindh Local Government Ordinance (XXVII of 2001)---

----S. 40---Karachi Building and Town Planning Regulations, 2002---Commercialization of residential area---Reclassification---Petitioner was aggrieved of issuance of NOC by authorities to respondent for converting his residential property into commercial---Plea raised by respondent was that entire road had been declared as commercial after fulfilling the requirements of law---Validity---Once a road was declared as commercial, status of individual plots on that road, automatically changed and no approval was required in such regard---Powers exercised by authorities in granting NOC were in accordance with law to commercialize any plot by allowing change of use of land and legal requirements with regard to calling public through notice to file their objections who could be effected---Such requirement of law had been fulfilled---High Court declined to interfere in the act of authorities granting NOC to respondent for plot in question---Constitutional petition was dismissed in circumstances.

Jawad Mir Muhammadi and others v. Haroon Mirza and others PLD 2007 SC 472 rel.

Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504; Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCMR 916; Messrs Noorani Traders, Karachi through Managing Partner v. Pakistan Civil Aviation Authority through Airport Manager, Karachi PLD 2002 Kar. 83; Messrs Facto Belarus Tractors Limited Karachi and another v. Federation of Pakistan through Secretary, Ministry of Industries, Production and Special Initiatives Islamabad and others PLD 2006 Kar. 479; Owaisco v. Federation of Pakistan and others PLD 1999 Kar. 472; Ayesha Sabohi v. Inspector-General of Police, Punjab, Lahore and 3 others 2010 PLC (C.S.) 240; Imran Hussain v. Water and Power Development Authority through Chairman WAPDA and 4 others 2011 PLC (C.S.) 116; Nighat Jamal v. Province of Sindh and others 2010 YLR 2624; Mrs. Farida and others v. New Allied Electronics Industries (Pvt.) Ltd. and others 2009 YLR 1896; Zainab Garments (Pvt.) Ltd. through Chief Executive and others v. Federation of Pakistan through Secretary Ministry of Housing and Works, Islamabad and another PLD 2010 Karachi 374; Irshad Ahmad Shaikh v. The State 2000 SCMR 814; Ali Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600; Brookes Pharmaceutical Laboratories (Pakistan) Ltd., Karachi through Authorized Director v. Karachi Buildings Control Authority (KBCA) through Chief Controller and 5 others 2012 CLC 131; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512 and Shehri C.B.E. v. Government of Pakistan and others 2007 CLD 783 distinguished.

Messrs Al-Munaf Corporation through Partner v. Sindh Industrial Trading Estate Ltd. through Secretary and 4 others 2009 CLC 950; Capt. S.M. Aslam and others v. Karachi Building Control Authority through Chief Executive Nazim-e-Aala and others 2005 CLC 759; Navaid Hussain and 5 others v. Jahangir Siddiqui through Attorney and 9 others 2007 CLC 1568; Sheikh Naeem Ahmed and others v. Province of Sindh and others 2006 CLC 1231; Sheri C.B.B. and others v. K.B.C.A. and others 2003 YLR 1086; Mrs. Farida and others v. New Allied Electronics Industries (Pvt.) Ltd. and others 2009 YLR 1896; Standard Chartered Bank Limited through Constituted Attorney v. Karachi Municipal Corporation through Administrator and 9 others 2015 YLR 1303 and Abdul Razzak Adamjee and another v. Datari Construction Co. (Pvt.) Ltd. and another 2005 SCMR 142 ref.

Yousuf Ali Sayed for Petitioners.

Mohamed Vawda for Respondent No.1.

Syed Sultan Ahmed for Respondent No.2.

Anwar Ali Shah for Respondent No.5.

Asadullah Lashari for Respondents Nos.6, 10 & 11.

Nemo for Respondents Nos. 3, 4, 7, 8 and 9.

Date of hearing: 13th October, 2015.

2016 M L D 1223

[Sindh]

Before Abdul Maalik Gaddi, J

IRSHAD ALI alias IRSHAD AHMED and 2 others---Applicants

Versus

The STATE and another---Respondents

Cr. Misc. A. No.S-51 of 2015, decided on 18th January, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 249-A & 265-K---Penal Code (XLV of 1860), Ss.324, 392 & 34---Qatl-i-amd, robbery, common intention---Inherent powers of High Court under S.561-A, Cr.P.C.---Scope---Accused impugned legality of order of Magistrate whereby submission of challan against accused was ordered---Contention of accused was that Investigating Officer conducted inquiry and came to conclusion that no case was made out and he submitted the report before Judicial Magistrate for its disposal which was not agreed to by Magistrate and Magistrate without assigning any cogent reason ordered for submission of challan---Validity---Magistrate was not bound to report submitted before him by Investigating Officer as he had to apply his judicious mind while deciding summary after considering material points---Opinion of Investigating Officer could not be accepted to exonerate the accused from commission of offence and when Trial Court had taken cognizance of a case, FIR could not be quashed and fate of case and of accused persons challaned therein, was to be determined by Trial Court itself---Accused person, in such circumstances, could avail remedy under S.249-A or 265-K, Cr.P.C., whatever the case may be to seek his premature acquittal, if the charge was found to be groundless or there was no possibility of his conviction---Application was dismissed, accordingly.

Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68 and Director General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan PLD 2013 SC 401 rel.

Ali Raza Pathan for Applicants.

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

2016 M L D 1229

[Sindh]

Before Shahnawaz Tariq, J

Syed GHULAM SHAH---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary Health Department, Karachi and 2 others---Respondents

C.P. No.S-1925 of 2013, heard on 28th September, 2015.

Penal Code (XLV of 1860)---

----Ss. 324, 337-A(i), 337-F(i), 504, 114, 148 & 149----Pakistan Arms Ordinance (XX of 1965), S. 13 (d)---Attempt to commit qatl-i-amd; shajjah-i-khafifah; ghayre jaifah damihah; abettor present when offence committed; abetment; common object---Unlicensed possession of arms---Petitioner, having sustained injuries, lodged FIR and was examined by Medico-legal Officer, who had issued medical certificate---Petitioner, subsequently, was re-examined by Special Medical Board, which issued its opinion, against which the petitioner filed application before Director General Health for constitution of Super Medical Board, which was dismissed with the advice to approach the Trial Court for the same---Validity---Director General Health had already constituted Special Medical Board; therefore, issuance of direction to him to re-constitute Super Medical Board would not serve any useful purpose, as opinions of the Medico-legal Officer and Special Medical Board, already available on record, were controverting the ocular account of prosecution---Petitioner had not approached the Trial Court for issuance of any direction instantly after issuance of letter of refusal, and after three months whereof he had filed present petition---Such lethargic demeanour reflected that petitioner was not vigilant, cautious and serious for the relief claimed through present petition and had not come to the Court with clean hands---Constitutional petition was, therefore, dismissed in circumstances.

Amanullah G. Malik for Petitioner.

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

2016 M L D 1238

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD QASIM---Applicant

Versus

STATION HOUSE OFFICER, POLICE STATION KHUDABAD, DISTRICT DADU and 7 others---Respondents

Cr.R.A. No.S-136 of 2013, decided on 12th February, 2015.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Illegal possession of property---Complaint---Complaint by attorney---Parties to dispute co-owners of the property in question---Trial Court dismissed complaint filed by the attorney on the ground that attorney was not competent to file direct complaint under Illegal Dispossession Act, 2005---Validity---Complainant and accused jointly purchased the subject land on equal shares---Status of both the parties was that of 'joint owners'---Co-owner could seek restoration of possession from other co-owner subject to establishing his/her possession---Nothing was on record that land jointly purchased was partitioned---Complainant had not indicated as to from which area of joint holding the accused was in 'unlawful possession' or from which portion of such holding he had been dispossessed---Nothing was on record with regard to involvement of accused in illegal activities or their belonging to the gang of 'land grabbers or land mafia'---Mere words of one to be 'land grabbers or land mafia' would not be sufficient to dress him up with such status---Accused had filed a civil suit which was dismissed but appeal of the same was pending for adjudication---Civil courts were courts of ultimate jurisdiction for deciding civil right of the party and status of a document---Present dispute did not fall within the scope of Illegal Dispossession Act, 2005---Complaint under the Act would be equated with that of an FIR---Attorney did not fall within the definition of "witness/complainant"---Attorney could not file the FIR or a criminal complaint---Anybody could bring the law into motion but not as an attorney---Revision was dismissed in circumstances.

2008 MLD 1702; PLD 2007 SC 423; PLD 2007 Pesh. 123; PLD 2007 Lah. 231; 2010 SCMR 1254; PLD 2006 Kar. 221; 2007 MLD 808 and 2007 PCr.LJ 891 ref.

Habibullah v. Abdul Manan 2012 SCMR 1533 rel.

(b) Illegal Dispossession Act (XI of 2005)---

----Preamble---Scope---Scope of Illegal Dispossession Act, 2005 was very limited and cases of forcible dispossession by land mafia or the habitual land grabbers would fall within such category.

(c) Words and phrases---

----'Attorney'---Meaning.

Black's Law Dictionary (Fourth addition) and Per Marriam-Webster rel.

(d) Words and phrases---

----'Witness/complainant'---Meaning---Witness/complainant would be those persons who had either seen; heard or least perceived any fact towards the offence.

(e) Criminal Trial---

----Every person could bring the law into motion by lodging an FIR.

Ejaz A. Awan for Applicant.

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

Shaukat Ali Birhmani for Respondents Nos. 2 to 8.

2016 M L D 1255

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar, J

MUHAMMAD RAMZAN---Appellant

Versus

MUHAMMAD ALI and 13 others---Respondents

IInd Appeal No.42 of 2010, decided on 26th November, 2014.

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

----Ss. 12 & 19---Limitation Act (IX of 1908), Art. 113---Contract Act (IX of 1872), Ss. 51, 52 & 54---Civil Procedure Code (V of 1908), O.VII, R. 11---Suit for specific performance of agreement---Limitation, commencement of---'Fixed date' for performance of contract---Compensation/damages for breach of contract---Reciprocal promise---Scope---Plaint, rejection of---Plaint was rejected being barred by limitation---Validity---Limitation for filing suit for specific performance of contract would start from the 'fixed date' for performance of agreement or if no date was so fixed, from the date of notice of refusal---Seller should have no advantage of his/her failure to perform his/her part of reciprocal promises---Plaintiff could not be held to have been guilty of breaching his obligation on the date so fixed for performance of contract---If seller had not completed his/her title perfect on the 'fixed date' yet it would have no bearing on the 'fixed date' if same had been mentioned in the agreement---Limitation of three (3) years had been provided for filing suit for specific performance of contract---Purchaser could not claim an exception to specific meaning, purpose and object to Art. 113 of Limitation Act, 1908---If case fell within first clause of Art. 113 of Limitation Act, 1908, second clause was not to be resorted to---Suit was not filed within stipulated period of three (3) years even then the defendants refused to perform their part---'Cause of action' to file a suit for 'specific performance of contract' would accrue from the 'fixed date' or from date of notice of refusal if there was no 'fixed date'---Plaintiff had not instituted suit within stipulated period---Rent proceedings or decision had no nexus or relation with Art. 113 of Limitation Act, 1908---Suit of plaintiff was barred by Art. 113 of Limitation Act, 1908---One could competently file a suit for 'compensation' as in addition or in substitution to 'specific performance of contract'---Right to claim compensation for breach of contract would accrue coincidently with the right to sue for specific performance of contract---Limitation for such right should be the same as for specific performance of contract, as such right of compensation was either 'in addition or in substitution'---Limitation would start as per law and procedure and not according to observation of court or even the consent of the parties---Rent Controller could not decide question with regard to status of 'agreement'---If petition or suit was filed beyond limitation, each and every day's delay had to be explained---Court was bound to reject plaint if same appeared to be barred by limitation---No illegality was pointed out in the findings recorded by the courts below---Second appeal was dismissed in circumstances.

2008 YLR 1287 ref.

Abdul Karim v. Florida Builders (Pvt.) Ltd. PLD 2012 SC 247; A. Rasheed v. Maqbool Ahmed and others 2011 SCMR 320; 1996 SCMR 877; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153; Ahmed Khan v. Kausar Perveen 2009 CLC 759 and Lal Khan v. Muhammad Yousaf PLD 2011 SC 657 rel.

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

----Art. 113---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement---Limitation, commencement of---'Fixed date' for performance of contract---Scope---Limitation of three (3) years had been provided for filing suit for specific performance of contract---Limitation for filing suit for specific performance of contract would start from the said 'fixed date' or if no date was so fixed, from the date of notice of refusal.

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

----S. 54---Reciprocal promises---Scope---When things to be performed were dependent upon reciprocal promises, second promise could not be insisted to be done nor failure thereof could be claimed for damages or as a ground to 'fail' the agreement unless it was established that first promise was done.

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

----S.19---Compensation/damages for breach of contract---Limitation---Scope---Right to claim compensation for breach of contract would accrue coincidently with the right to sue for specific performance of contract---Limitation for such right should be the same as for specific performance of contract as such right of compensation was either 'in addition or in substitution'.

Arbab Ali Hakero and Abdul Ghafoor Hakro for Appellant.

Irfan Ahmed Qureshi for Respondent No.1.

Date of hearing: 9th October, 2014.

2016 M L D 1277

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Muhammad Iqbal Mehar, JJ

MANTHAR ALI and 6 others---Petitioners

Versus

DEPUTY COMMISSIONER, HYDERABAD and 8 others---Respondents

Constitutional Petition No.D-790 of 2014, decided on 17th February, 2016.

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

----S. 10(2)----Provisions relating to tenants---Petitioners claimed that the respondent, being in collusion with the high-ups of the Revenue Authorities, had illegally demolished their houses, had occupied the land---Validity---Village was neither sanctioned or regularized nor was any material existed indicating that the land had been entered into the village directory maintained by the Provincial Government---Petitioners had failed to establish their right or title over the land in question, and the Authorities termed their possession as encroachment---Respondent's claim regarding the land, on the other hand, was based on registered lease deed---District Officer (Revenue), on behalf of the Government, had executed said lease deed in terms of S. 10 (2) of Colonization of Government Lands (Punjab) Act, 1912 and Notification issued thereunder---Possession of the land had been handed over to the respondent after compliance of all the terms and conditions, which also included payment of occupancy---Petitioners were although not entitled to possession of the land, but their claim had cast cloud on the claim of the respondent---Respondent, to whom the land had been granted by the Government, was government employee, working as Assistant Director Sehwan Development Authority---Government land was the property of the people and its allotment to individual was subject to adherence to certain law---Government could not, on its own whims and wishes, grant the government land to individuals without following the law---Said authority was also not vested in the government functionaries either---High Court observed that the directions already issued by the Superior Courts to Revenue Authorities, had not been complied with and the flaws and loopholes thus highlighted by the Courts continued unabated---Usurpation of thousands of acres of government land by the land grabbers under the blessings of revenue staff remained unchecked---High-ups in the Revenue Department did not perform their duty diligently and no serious efforts in that regard on their part had been witnessed either---High Court further observed that Supreme Court, finding no improvements, placed complete ban on mutation, allotment, transfer and conversion of any State land---Nothing was available on record to show that for granting of the land to the respondent, relevant laws had been followed and public at large had been invited to participate in any such proceedings or any auction in that regard had been held---Record also did not show the qualification of the respondent for grant of the land---Respondent's claim as to possession of the land was, therefore, a disputed question of fact---High Court, whiling sitting in the Constitutional jurisdiction could not determine all said factual aspects of the case and the merits which had led the Government to grant the land to the respondent---High Court, however, in view of the facts and circumstances of the case, while, dismissing the petition, sent the matter to the Commissioner to determine all said questions pertaining to the grant of the land to the respondent in the light of decisions of the Superior Courts and to submit compliance report to the High Court in that regard---Constitutional petition was disposed of in circumstances.

Mohsin Raza Gopang for Petitioners.

Naimatullah Soomro for Respondent.

Allah Bachayo Soomro, Addl. A.G. for Official Respondents.

Date of hearing: 1st February, 2016.

2016 M L D 1298

[Sindh]

Before Sadiq Hussain Bhatti, J

Mst. JAIWANTI BAI---Appellant

Versus

Messrs AMIR CORPORATION LTD. and 2 others---Respondents

Second Appeal No.72 of 2009, decided on 23rd September, 2015.

Specific Relief Act (I of 1877) ---

----S. 12---Suit for specific performance of agreement to sell---Limitation---Trial Court dismissed suit being time barred which was upheld by the Appellate Court---Validity---Averments made by plaintiff in the plaint as well as memo of appeal were against the facts and not correct---Plaintiff had approached the court with unclean hands---Impugned order was well reasoned which did not suffer from any legal infirmity---Plaintiff had no locus standi to file the suit---Second appeal was dismissed in circumstances.

Abdul Karim v. Safia Mirza 1986 MLD 1333 and Abdur Rashid v. Mubarik Ali 1994 CLC 1617 ref.

Neel Keshav for Appellant.

Nemo for Respondent No.1.

Date of hearing: 8th September, 2015.

2016 M L D 1335

[Sindh]

Before Muhammad Iqbal Kalhoro, J

ABDUL AZIZ---Decree holder

Versus

HAROON---Judgment debtor

Execution Application No.32 of 2014 and Suit No.384 of 1997, decided on 29th December, 2015.

(a) Partition Act (IV of 1893)---

----S.4---Civil Procedure Code (V of 1908), S. 47--- Suit for partition---Execution petition---Objections---During pendency of suit both the parties settled their dispute and agreed to the partition of suit property and suit was decreed---Contention of judgment debtor was that decree was not final and same could not be executed---Validity---Rights of the parties in the suit property had already been settled---No controversy remained to be adjudicated upon---When parties had agreed to partition the property and their respective shares had already been settled, then decree from such settlement would be final---Decree holder had refused to sell out his share and he could not be deprived of his share in the suit property---Execution petition was allowed in circumstances---Official Assignee was appointed to supervise partition of property in terms of proposal of Architect and he was directed to make assure that possession of share to the decree holder was handed over accordingly.

PLD 1989 Kar. 336; PLD 2013 Kar. 583; 1987 SCMR 1591; AIR 1935 Privy Council 12; AIR 1952 T.C. 428; PLD 1989 SC 136; AIR 1963 SC 992; PLD 1963 Kar. 990; PLD 2006 Kar. 126 and 1990 MLD 1189 ref.

(b) Words and phrases---

---'Metes and bound'---Meaning.

Naraindas C. Motiani for Decree holder.

Mushtaq A. Memon for Judgment debtor.

Dates of hearing: 16th, 17th and 23rd December, 2015.

2016 M L D 1359

[Sindh]

Before Muhammad Iqbal Kalhoro, J

MUHAMMAD SHOAIB and another---Plaintiffs

Versus

Messrs M. KAMIL BUILDERS AND DEVELOPERS' through Partner and others---Defendants

Civil Suit No.2604 of 2014, decided on 22nd December, 2015.

Easements Act (V of 1882)---

----S.35---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Plea of nuisance and infringement of easement rights---Scope--- Temporary injunction, grant of---Plaintiff had alleged infringement of easement rights in general terms---Any ground of nuisance and infringement of easement rights had to be established by evidence---Mere assertion of infringement of easement rights was not sufficient for grant of temporary injunction---Defendant could not be restrained from raising construction in accordance with approved plan---Balance of convenience did not lie in favour of plaintiff rather defendant would suffer irreparable loss if injunction was allowed to continue---Application for grant of temporary injunction was dismissed.

Mst. Seema and others v. Messers Millennum Developers and others 2003 CLC 632; Syed Tahir Hussain Mahmoodi and 7 others v. Tayyab and others 2009 CLC 1254; Mrs. Alba D'sa and others v. Mrs. Naheed Pabani and others 2008 YLR 738 and Nighat Jamal v. Province of Sinclh and others 2010 YLR 2624 rel.

Muhammad Mustafa Hussain for Plaintiffs.

Ms. Sarwat Israr for Defendant No.1.

Date of hearing: 16th December, 2015.

2016 M L D 1377

[Sindh]

Before Nazar Akbar, J

AASHIQUE ALI CHANDIO and another---Applicants

Versus

The STATE---Respondent

Cr. Bail Application No.1282 of 2014, decided on 19th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 452, 302, 504 & 34---House trespass, qatl-i-amd, intentional insult with intent to provoke breach of peace and common intention---Bail before arrest, refusal of---Contention of accused was that he had been falsely implicated on account of enmity---Complainant's plea was that accused had been attributed specific role and complainant was eye witness of incident in which his own son at his own house was killed at the hands of accused---Accused was required to establish mala fide and enmity on the part of complainant---Enmity and doubt in the story of prosecution were not supposed to be examined at the stage of pre-arrest bail and such defence would be available to the accused at the trial or in case of bail after arrest---Application for pre-arrest bail was dismissed in circumstances.

Hakim Ali Zardari v. The State and another PLD 1998 SC 1 and Ch. Abdul Malik v. The State PLD 1968 SC 349 distinguished.

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

Mehmoodul Hasan for Applicants.

Nasir Mehmood for the Complainant.

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

2016 M L D 1426

[Sindh (Sukkur Bench)]

Before Irfan Saadat Khan and Shahab Sarki, JJ

MANZOOR HUSSAIN and 9 others---Petitioners

Versus

SHAH NAWAZ and 13 others---Respondents

C.P. No.D-3121 of 2011, decided on 20th January, 2015.

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

----Art. 84---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for declaration---Gift---Ingredients---Gift deed---Proof---Comparison of thumb impression---Scope---Suit was decreed against which appeal was filed by the defendants wherein an application for comparison of thumb impressions of plaintiffs was moved which was dismissed by the Appellate Court---Validity---Defendants duly appeared before the Trial Court and vigorously contested the claim---Trial Court had discussed the complete evidence led by the parties and legal position and had passed a well-reasoned judgment---Defendants availed ample opportunity to produce the concerned officials and marginal witnesses of alleged gift deed but did not request for comparison of thumb impressions---Defendants at belated stage of appeal had moved application for such comparison---Donor had denied the execution of gift deed---Onus was on the donees to establish not only the execution of gift deed but also the basic ingredients of gift---Even marginal witnesses of gift deed were not produced before the Trial Court for examination---Defendants being beneficiaries of gift deed were bound to prove the same but they had failed to discharge their such onus---No illegality or impropriety was found in the impugned order passed by the Appellate Court---Constitutional petition was dismissed in circumstances.

Mst. Kulsoom Bibi and others v. Muhammad Arif and others 2005 SCMR 135 and Abdul Sattar v. Muhammad Ashraf 2008 SCMR 1318 rel.

(b) Islamic Law---

---Gift---Donor denying the execution of gift---Heavy onus is on the beneficiaries to establish the basic ingredients of gift which are proposal, acceptance and delivery of possession where the donor has denied the execution of the gift a huge onus is on the shoulder of the donee(s) to establish not only the execution of the gift deed but also to establish and prove the three basic ingredients i.e. proposal, acceptance and delivery of possession the beneficiary has to prove the proposal, acceptance and delivery of possession, independent of the execution of the gift deed.

Haji Abdullah Memon for Petitioners.

Nisar Ahmed Bhumbhro for Respondents.

Imtiaz Ali Soomro, Assistant A.G. for Official Respondents.

Date of hearing: 15th January, 2015.

2016 M L D 1446

[Sindh (Larkana Bench)]

Before Ghulam Qadir Leghari, J

SADDAM---Applicant

Versus

The STATE---Respondent

Crl. Bail Appln. No.S-616 of 2015, decided on 4th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497----Penal Code (XLV of 1860), Ss. 302, 148, 149---Qatl-i-amd; rioting armed with deadly weapons; common object---Bail, refusal of---Specific role of making fire upon the deceased had been assigned to the accused; therefore, accused could not be said to have no intention to commit murder---Postmortem report showed that the deceased had received three fire shot injuries on his person---Mashirnama of the place of occurrence showed that three empties had been recovered from there---Accused had got recovered the crime weapon---Delay of eight hours in lodging of the FIR had been plausibly explained by the complainant---Relationship of the complainant and the prosecution witnesses with the deceased was not enough to disbelieve their version at bail stage, as contents of the FIR showed that they were natural witnesses to the incident---Where accused was charged with common intention to murder the deceased in pursuit of family vendetta by firing at the deceased with their firearms, it was immaterial as to whose shot have proved fatal---Bail application was dismissed.

1980 SCMR 784 and 2002 PCr.LJ Kar. 494 ref.

Ali Hassan and another v. The State 2011 YLR 846 and Khamiso and another v. The State 1999 PCr.LJ 9 rel.

Abdul Hakeem Brohi for Applicant.

Muhammad Afzal Jagirani for the Complainant.

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

Date of hearing: 4th January, 2016.

2016 M L D 1464

[Sindh Sukkur (Bench)]

Before Aqeel Ahmed Abbasi and Ghulam Qadir Leghari, JJ

MUHAMMAD YOUSIF---Petitioner

Versus

FEDERATION OF PAKISTAN through Election Commission of Pakistan Islamabad and another---Respondents

C.P. No.D-4088, D-4145 and D-4156 of 2015, decided on 13th November, 2015.

Sindh Local Councils (Election) Rules (2013)---

----Rs. 52, 18, 16 & 8----Delimitation of electoral units---Nominations for election---Scrutiny of nomination papers---Petitioner contended that their nomination papers had been rejected after their proposers and seconders had been placed in a different Electoral Unit (Constituency) as result of delimitation by election Commission subsequent to filing of their nomination papers---Validity--¬-Petitioner had filed their Nomination Papers after complying with all codal formalities as per election schedule on basis of Final Electoral Roll, and no defect or objections existed with regard to validity of the same---Defect in question had occurred subsequently on account of said changed circumstances, which were beyond control of petitioners---Petitioners could not be deprived of their right particularly fundamental right, to contest election as guaranteed by Constitution, on basis of some technicalities or fault on part of Election Commission and Returning Officer---High Court directed authorities to allow petitioners to substitute Chairman and Vice Chairman or proposer and seconder of the same Electoral Unit where their Nomination Forms had been transferred---Constitutional petition was allowed in circumstances.

Ghulam Mujtaba Sahito for Petitioner (in C.P. No. D-4088 of 2015).

Shaikh Amanullah for Petitioner (in C.P. No.D-4145 of 2015).

Syed Jaffar Ali Shah for Petitioner (in C.P. No.D-4156 of 2015).

Zulfiqar Ali Sangi, Assistant Advocate General.

Mian Mumtaz Rabbani, Deputy Attorney General.

Nisar Ahmed Bhambhro, Amicus Curiae.

2016 M L D 1475

[Sindh Sukkur (Bench)]

Before Shahnawaz Tariq, J

AZMATULLAH KOLACHI---Applicant

Versus

The STATE---Respondent

Cr. B.As. Nos.886 and 887 of 2015, decided on 1st December, 2015.

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

----S. 497 (2)----Penal Code (XLV of 1860), Ss. 409, 465, 468, 471, 477-A & 34---Prevention of Corruption Act (II of 1947), S. 5 (2)---Criminal breach of trust by public servant, by banker, merchant or agent; forgery; forgery for purpose of cheating; using as genuine a forged document; falsification of accounts; common intention---Criminal misconduct---Bail after arrest, grant of---Further inquiry---Alibi, plea of---Main culprit not implicated---Accused persons were alleged to have misappropriated public funds allocated for a public sector development program---Available record, showed that the accused was posted at some other place on his transfer at the time of commission of offence, which required serious consideration---Record revealed that total amount allocated to the development project and the amount alleged misappropriated were different---Main culprit/XEN Irrigation, who was the competent authority to approve the cases for the payments in question, under whose directions the cheques had been prepared, and who had signed the cheques, had not been implicated in the present case---Accused persons were neither in commanding position in the office, nor had they issued any cheques nor were they signatory to the same, whereby the Government funds had been allegedly misappropriated---Prosecution's entire case depended upon documentary evidence, which had already been collected during the investigation and the same was in custody of the prosecution; therefore, no apprehension of tampering with the evidence existed---Allegations leveled against the accused did not fall within the restraining clause of S. 497, Cr.P.C---Challan had already been submitted---State counsel had no objection to the grant of bail---Bail applications were allowed accordingly.

Saeed Ahmed v. The State 1996 SCMR 1132 rel.

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

----S. 497----Bail---Quantum of sentence---Principles---Court, while dealing with the question of bail, has to consider the minimum quantum of sentence provided for the alleged offence.

Alam Sher Bozdar and Azmatullah Kolachi for Applicants (in Criminal Bail Application No.886 of 2015).

Zulfiquar Ali Naich and Muhammad Sachal for Applicants (Criminal Bail Application No.887 of 2015).

Abdul Rehman Kolachi A.P.G. and Mukhtiar Hussain Lashari, Circle Officer ACE, Ghokti.

Date of hearing: 1st December, 2015.

2016 M L D 1500

[Sindh]

Before Sajjad Ali Shah, C.J. and Anwar Hussain, J

DEPARTMENT OF TRANSPORT GOVERNMENT OF SINDH though Secretary, Ministry of Transport---Petitioner

Versus

MUHAMMAD RAFIQUE and 3 others---Respondents

High Court Appeal No.312 of 2014, decided on 2nd February, 2016.

Civil Procedure Code (V of 1908)---

----S. 12(2)----Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Application for setting aside of judgment and decree on plea of fraud, misrepresentation or want of jurisdiction---Determination---Plaintiff filed suit for specific performance of contract claiming the he, being the highest bidder and having made part payment of the bid amount, had purchased the suit property in auction, which had been conducted by Chairman Sindh Privatization Committee, but the official respondents later, instead of finalizing the contract on payment of the remaining balance amount, had rejected the bid---High Court decreed the suit, and appeals filed against the same and against the execution application were dismissed; High Court therefore had executed sale deed in terms of the contract in favour of the plaintiff after receipt of the balance amount---Applicant/intervener, Department of Transport, filed application under S. 12(2), C.P.C. against the judgment and decree, which was dismissed by the High Court---Validity---Applicant had not shown any reason for their earlier non-appearance and the late filing of the application---Applicant had no locus standi, as Government of Sindh and the Privatization Committee had contested the matter, and the official respondents had even impugned the order, whereby the execution application had been allowed, but without any success---Application in question had been filed after more than five years of passing of the judgment and decree---Applicant had not been able to plead any case of fraud, misrepresentation or want of jurisdiction in terms of S. 12(2), C.P.C.---Appeal was dismissed in circumstances.

Sehri and others v. Province of Sindh, SBLR 2002 Sindh 710; Haji Rehmdil v. Province of Baluchistan 1999 SCMR 1060; R. v. NAT BELL Liquors, Ltd., 1922 All England Law Reports Reprint 335 and Anisminc v. Foreign Compensation Commission ref.

Naeem-ur-Rehman and Ziauddin Junejo, A.A.G. for Petitioners.

Mansoor-ul-Arfeen for Respondent No.1.

2016 M L D 1509

[Sindh]

Before Sadiq Hussain Bhatti, J

ABDUL MAJEED ANJUM---Petitioner

Versus

ABIDA PARVEEN and another---Respondents

C.P. No.S-572 of 2012, decided on 3rd April, 2015.

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

---Ss. 2(f)(j) & S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Eviction of tenant---Relationship of landlord and tenant, determination of---Estoppel, principle of---Applicability---Sale of property---Burden of proof---Possession without rent---Effect---Tenant add some rooms to rented property---Cost of construction was partially reimbursed to tenant and remaining was kept as security deposit---Tenant paid rent for some time period but later stopped paying---Landlord approached tenant for vacation of property as he also needed the same for his personal use---Landlord filed eviction petition wherein tenant denied their relationship as landlord and tenant and claimed himself to be owner of property---Tenant also raised objection on jurisdiction of Rent Controller---Petitioner for eviction was dismissed by Rent Controller on ground that landlord possessed no title documents and he could not claim to be landlord and held him to be trespasser completely ignoring the tenancy agreement produced by landlord---Validity---When tenant had admitted to have purchased the property from landlord he was estopped to deny ownership of landlord and allege him to be a trespasser---When landlord denied the sale of property and he was admitted to be an owner, burden of proof lay on tenant that he had purchased said property, which was to be determined and adjudicated upon by civil court after recording of evidence---Rent Controller and Appellate Court had also proceeded to determine entitlement of possession of property in favour of tenant without recording evidence -- Mere execution of agreement to sell the property which was denied by other party would not entitle purchaser/tenant to occupy property without paying any rent---Constitutional jurisdiction allowed constitutional petition with direction to trial court to decide the case afresh after recording evidence.

Iqbal Shah v. Abida Bi 1994 CLC 1891; Abdul Rashid Khan v. Muhammad Shoukat Hussain 1995 CLC 1708; Abdul Maid v. Mashkoor Ahmed 2013 YLR 1673; Muhammad Lauf v. Additional District Judge 1993 MLD 1631; Noor Muhammad v. Hajra 1985 CLC 2085; Umar Hayat Khan v. Inayatullah Butt 1994 SCMR 572 and Adalat Khan v. Iregum Bibi 1991 SCMR 1381 ref.

Raghib Baqi for Petitioners.

Muhammad Mushtaq for Respondent No.1.

Date of hearing: 3rd March, 2015.

2016 M L D 1527

[Sindh]

Before Muhammad Shafi Siddiqui and Abdul Maalik Gaddi, JJ

KHALID AHMED MEMON---Petitioner

Versus

DEEN MUHAMMAD TALPUR and 2 others---Respondents

C.P. No.D-2547 of 2015, decided on 29th December, 2015.

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

----Ss. 23 & 36---Sindh Local Councils (Election) Rules, 2013, R.18---Election for the seat of local council---Non-disclosure of complete assets at the time of submitting nomination papers---Effect---Rejection of nomination papers---Scope---Proper and Seconder were required to be from the constituency of candidate Nomination papers of the candidate were rejected on the ground that he had not disclosed his complete assets at the time of submitting the same---Appeal filed by the candidate was accepted and it was held that a person could not be disqualified for not disclosing the assets---Contention of rival candidate was that false statement had been given disclosing incomplete assets---Validity---Provisions of Sindh Local Government Act, 2013 and Sindh Local Councils (Election) Rules, 2013 did not provide any necessity or mandatory requirement to submit the details of assets at the time of submitting nomination papers---Successful candidate had to submit the details of assets within a period of 30 days when he took oath of an office---Candidate could not be disqualified on summary assumption for such details of assets---No one should be penalized for not disclosing the assets when law did not require him to disclose the same---No reason was available with the Returning Officer to reject the nomination form on account of not disclosing the assets---Statement made by the candidate did not fulfill the requirements for considering it to be an affidavit on oath---Even such information could not be considered to be a false affidavit---Nothing had been gained by the candidate by not showing assets at the time of filing nomination papers---Such information could not be considered to be a mala fide---Candidate's proposer and seconder were required to be from the same ward or constituency from where a candidate was contesting the election---Constitutional petition was dismissed in circumstances.

Arbab Ali Hakro for Petitioner.

Allah Bachayo Soomro A.A.G. Sindh.

Imdad Ali R. Unar advocate files his Vakalatnama on behalf of Respondent No.1, taken on record.

Jhamat Jehtanand advocate as Amicus Curie.

2016 M L D 1543

[Sindh (Hyerabad Circuit)]

Before Anwar Hussain, J

NAEEM-UL-AREEN---Petitioner

Versus

The STATE---Respondent

Cr. Bail Application No.S-1103 of 2015, decided on 8th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Sindh Arms Act (V of 2013), S.23(A)---Possessing unlicensed arms---Bail, grant of---Further inquiry---One pistol 30 bore, without number, with magazine and five bullets, were allegedly recovered from accused, in presence of mashirs, who were all Police Officials---Place of arrest of accused, had not been shown in the FIR---Said recovery in FIR, was not shown to have been sealed on the spot; where preparation of recovery memo had also not been shown---FIR, did not show that recovered pistol was loaded at the time of recovery---Names of Mashirs of recovery, were not in the FIR---Nothing was shown by the prosecution as to whether any attempt was made for associating private Mashirs---Offence against accused as per prosecution, fell under S.23(1)(a) of Sindh Arms Act, 2013, with regard to any firearm and ammunition, which had been defined in S.2(a)(b) respectively; and in the said provisions, the word "pistol" had not been used; whereas FIR showed recovery of pistol .30 bore---Bail, could not be withheld on the ground that offence fell within the ambit of prohibitory clause of S.497, Cr.P.C., where there were reasons of further inquiry---Investigation was complete and challan submitted---Custody of accused was not required for further inquiry in respect of his guilt within the purview of subsection (2) of S.497, Cr.P.C., accused was entitled for grant of bail, in circumstances.

SBLR 2015 Sindh 310; SBLR 2015 Sindh 748; SBLR 2015 Sindh 745 and 310 and 2015 PCr.LJ 1430 rel.

Syed Madad Ali Shah for Applicant.

Syed Meeral Shah, Deputy Prosecutor General, Sindh.

2016 M L D 1558

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

MANZOOR HUSSAIN SHAHWANI---Applicant

Versus

S.H.O. P.S. "A" SECTION KHAIRPUR and 5 others---Respondents

Criminal Misc. Application No.S-132 of 2014, decided on 19th October, 2015.

Penal Code (XLV of 1860)---

----S. 324---Criminal Procedure Code (V of 1898), S.561-A---Attempt to commit qatl-i-amd---Application for quashing of order---Application for---Summary report submitted by Investigating Officer under 'B' class, having been accepted by Judicial Magistrate in "c" class, applicant had sought quashing of said order of Judicial Magistrate---Applicant and accused were real brothers, and dispute was between them over landed property---Alleged incident occurred at 3.30 p.m. near the outer gate of Sessions Court building; and at relevant time presence of general public, litigants and other advocates, could not be ruled out---Prosecution witness was real brother of accused and respondent but he was in league with the applicant; and was an interested witness; his statement could not be believed in the absence of corroboration of any independent evidence---Prudent mind would not accept that except prosecution witness, none else witnessed the incident, though the place of incident was situated on a main busy road; and surrounded by courts; shops, hotels, offices of advocates; and was residential as well as commercial area---Allegations of applicant were not supported by any independent witness of the vicinity---Applicant, did not approach the concerned Police Station insistently for the lodgment of FIR; and he remained busy in court proceedings of his different cases for two days---Such demeanour of applicant had not only created serious doubt regarding the commission of alleged incident, but invalidated the factum of occurrence---No empty was secured by the Investigating Officer from the spot, which was also fatal to the allegations levelled by applicant---Magistrate was obliged to examine the averments of FIR, statements under S.161, Cr.P.C., recorded during investigation, and final summary report submitted by Investigating Officer judiciously; and after affording adequate opportunity of hearing to complainant; should pass an appropriate order supported with sound reasons by exercising power envisaged under S.173, Cr.P.C., and procedure provided in R.47.7, Vol.III, Police Rules, 1934---Magistrate had afforded right of audience to the applicant; and after considering the entire circumstances and available material on the record, had passed a just and proper order, which did not suffer from any gross illegality or material irregularity; and did not call for any interference which was maintained---Application under S.561-A, Cr.P.C. was dismissed being devoid of any legal substance, in circumstances.

Present in person.

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

Date of hearing: 19th October, 2015.

2016 M L D 1577

[Sindh]

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

KARACHI ELECTRIC SUPPLY COMPANY through authorized Officer---Appellant

Versus

SOORTY ENTERPRISES (PVT.) LTD. through Chief Executive Officer and another---Respondents

High Court Appeal No.113 of 2013, decided on 5th November, 2014.

Civil Procedure Code (V of 1908)---

----S.104, O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss.42 & 54---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Suit for declaration injunction and damages---Interim order---Discretion---Single Judge of High Court passed interim order, directing authorities to restore electricity connection of plaintiff---Validity---While passing the impugned order, Single Judge of High Court had correctly observed and drawn tentative view and there was no occasion to interfere with the discretionary interim relief---Appellate Court was not justified to interfere with exercise of discretion---Interim order would merge into final order and interim order would cease to exist automatically on announcement of final order, therefore, any direction given in term order would also cease to exist---Division Bench of High Court declined to interfere with discretionary interim relief ranted by Single Judge of High Court by deciding interlocutory application---Intra-court appeal was dismissed, in circumstances.

Roshan Din v. S.M. Badaruddin PLD 1969 Kar. 546; C. Kamatchi Ammal v. Kattabomman Transport Corpn. Ltd. AIR 1987 Madras 173; Mrs. Kavita Trehan and another v. Balsara Hygiene Products Ltd. AIR 1995 Supreme Court (Delhi) 441; Shipping Corporation of India Ltd. v. Machado Brothers and others Civil Appeals Nos. 1855-1856/2004 AIR 2004 SC 2093; Gauhati) (State of Assam v. Barak Upatyaka D.U. Karmachari Sanshta AIR 2009 SC 2249; Ali Muhammad Brohi v. Haji Muhammad Hashim PLD 1983 Kar. 527; Abdul Qayyum and another v. Niaz Muhammad and another 1992 SCMR 613; Kashif Anwar v. Agha Khan University 2006 CLC Kar. 1621; Glaxo Laboratories Limited v. Inspecting Assistant Commissioner of Income Tax and others 1992 PTD 932; Prem Chandra Agarwal and another v. U.P. Financial Corp. and others 2009 3 AWC (Supp.) 2578 SC rel.

Abid S. Zuberi for Appellant.

Arshad Tayebaly for Respondent.

Date of hearing: 14th October, 2014.

2016 M L D 1606

[Sindh]

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

Mst. NAJUM-UL-NISA ZAHRA through Attorney---Appellant

Versus

Syed IJAZ HUSSAIN SHAH---Respondent

High Court Appeal No.76 of 2013, decided on 7th November, 2014.

Defamation Ordinance (LVI of 2002)---

----S. 8---Civil Procedure Code (V of 1908), S. 11, O. VII, R.11---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Suit for defamation---Rejection of suit---New plea before Appellate Court---Res judicata, principle of---Applicability---Defendant filed application under O. VII, R. 11, C.P.C. for rejection of plaint but Single Judge of High Court dismissed the application---Appellant raised fresh plea which was not allowed to be agitated in appeal before Division Bench of High Court to support application under O. VII, R. 11 C.P.C.---Validity---Application of defendant under O. VII, R. 11, C.P.C. was rejected on his failure to demonstrate that plaintiff had failed to disclose any cause of action and the law did not bar repeating of fresh application on different ground---Plea that suit was barred by law was not agitated before the Trial Court, such plea could not be examined by the appellate Court, which would not only amount to usurpation of power of Trial Court but would also deprive plaintiff of an appellate forum---No fresh plea could be raised before Appellate Court which was not taken before Trial Court in case of rejection of application under O. VII, R. 11, C.P.C.---Division Bench of High Court declined to interfere in order passed by Single Judge---High court appeal was dismissed in circumstances.

Muhammad Qureshi v. The Settlement Commissioner, Lahore, Division, Lahore and others PLD 1971 SC 61; Messrs Overseas Pakistanis Foundation v. Income Tax Appellate Tribunal AJ&K PLD 2001 SC (AJ&K) 37 and Messrs Shoaib Bilal Corporation v. The Commissioner of Income Tax, Faisalabad and another 1993 PTD 332 and Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi and other PLD 2008 Kar. 458 ref.

Abu Bakar Khalil for Appellant.

Zaheer-ul-Hassan Minhas for Respondent.

Dates of hearing: 11th August 2014 and 29th October, 2013.

2016 M L D 1617

[Sindh (Sukkur Bench)]

Before Aqeel Ahmed Abbasi and Ghulam Qadir Leghari, JJ

ANWER ALI and another---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Election Commission of Pakistan, Islamabad and 9 others---Respondents

Consit. Petitions Nos.D-4182, D-4183, D-4184 and D-4216 of 2015, decided on 12th November, 2015.

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

----S. 34----Sindh Local Councils (Election) Rules, 2013, Rs. 29 & 42 [as amended)---Such Local Councils (Election) Rules, 2015, R.29(2)---Constitution of Pakistan, Art. 218(3)---Constitutional petition---Election Commission to conduct election---Stopping of poll, validity of---Duty of Election Commission as to conduct of election---Declaration of results---Petitioner claimed that Returning Officer had not announced result of the polls, even after election process had already been completed in said polling station---Returning Officer, took plea that serious disturbance took place in the polling station in question before election process could be completed, and that the matter had been reported to District Returning Officer and Election Commission, and re-polling on the polling station had already been announced accordingly---Validity---Under R. 29 of Sindh Local Councils (Election) Rules, 2015, Returning Officer was to ensure that election were held in peaceful atmosphere, and, in case of any interruption, he had authority to refer the matter to District Returning Officer---Election Commission of Pakistan, as provided under section 34 of Sindh Local Government Act, 2013, and with Sindh Local Government (Amendment) Act, 2015, read with R. 29 (2) of Sindh Local Councils (Election) Rules, (2015) and Art. 218(3) of the Constitution, could terminate polling process and order re-polling on the affected polling stations---High Court found no mala fide or error on part of authorities---Constitutional petition was dismissed in circumstances.

Yasir Arfat Shar for Petitioner (in C.Ps. Nos. D-4182, D-4183 and D-4184 of 2015).

Qurban Ali Malano for Petitioner (in C.Ps. Nos. D-4216 of 2015).

Manzoor Hussain A. Ansari for Respondent No.6 (in C.P. No.D-4182 of 2015).

Noor Hassan Malik, Asstt: A.G.

Mian Mumtaz Rabbani, D.A.G., Muhammad usman Khalid, Assistant Commissioner/Returning Officer, Kingri.

2016 M L D 1630

[Sindh]

Before Nazar Akbar, J

PAKISTAN STATE OIL COMPANY LTD.---Petitioner

Versus

SHAHABUDDIN K. BHIMANI and 5 others---Respondents

C.P. No.S-324 of 2012, decided on 19th February, 2016.

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

---S. 15---Ejectment of tenant---Willfull default in payment of rent---Ejectment petition was accepted concurrently---Validity---Default in payment of rent had been proved on record through evidence---Constitutional petition was dismissed with cost of Rs. 100,000/- to be paid by the tenants to the landlords within 15 days through Nazir of the Court---Nazir should attach accounts of tenant in case of default in payment of cost within time and use any lawful means for its recovery and after realizing the same should pay to the landlords---Tenants were directed to vacate the tenements within 30 days and handover vacant possession of the same to the landlords.

(b) Constitution of Pakistan---

---Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent findings of facts based on undisputed evidence could not be set aside by the High Court in its constitutional jurisdiction.

Asim Iqbal and Farmanullah for Petitioners.

Rehan Aziz Malik for Respondent Nos.1 to 5.

Date of hearing: 5th January, 2016.

2016 M L D 1642

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

MUHAMMAD HAYAT and another---Applicants

Versus

The STATE and 4 others---Respondents

Cr. Revision Applications Nos.S-61 and 67 of 2015, decided on 4th September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Superdari---Original case property--- Scope--- Both the applicants "H" and "L" were claiming the ownership of five buffaloes in the custody of police as case property---Applicant "H" resided in the jurisdiction of another police station which was across the river, while applicant "L" resided within the jurisdiction of police station from where the case property was recovered---Applicant "H" had neither lodged any FIR, nor any complaint at any forum except a constitutional petition against police officials, which was pending---- Applicant "H" along with his other relatives were previously involved in eight different FIRs--- Case property was handed over to applicant "L" on furnishing of surety---Revision was disposed of accordingly.

A.K.A.R.A. Chettyar v. Ma Saw Hla AIR 1937 Rangoon 450 rel.

Achar Khan Gabole for Applicant (in Cr. Revision No.S-61 of 2015 and for Respondent No.2 in Cr. Revision No.67 of 2015).

Bakhshan Khan Mahar for Applicant in (Cr. No.67 of 2015 and for Respondent No.5 in Cr. Revision No.61 of 2015).

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

Date of hearing: 7th August, 2016

2016 M L D 1654

[Sindh (Sukkur Bench)]

Before Khadim Hussain M. Shaikh, J

NAUMAN SHEHZAD---Applicant

Versus

ABDUL HANAN and 4 others---Respondents

Civil Revision Application No.S-90 of 2015, decided on 8th March, 2016.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Plaint, rejection of---Scope---Defendant had denied the allegations and claims of plaintiff as set out in his plaint---Divergent pleadings filed by the parties had given rise to lead their evidence for and against their respective pleadings and claims---Trial Court had not committed any illegality while passing the impugned order dismissing application for rejection of plaint---Impugned order did not suffer from any jurisdictional defect---Revision was dismissed in limine.

Mst. Hajiani Khatija Bai and 8 others v. Haji Dawood and 11 others 2003 MLD 828; Abdul Ghaffar Mahenti and 2 others v. Kathiawar Cooperative Housing Society Limited and another 2003 YLR 2635 and Anwar Khan v. Abbas Khan 2003 YLR 712 distinguished.

Raj Kumar D. Rajput for Applicant.

Date of hearing: 15th December, 2015.

2016 M L D 1665

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

Mrs. ABIDA JAWED---Appellant

Versus

Mrs. NAJMA VASEEM ADENWALLA---Respondent

H.C.A. No.11 of 2013, decided on 12th February, 2015.

Specific Relief Act (I of 1877) ---

----Ss. 12 & 39---Transfer of Property Act (IV of 1882), 53-A---Suit for specific performance and cancellation of agreement to sell---Defendant instituted suit for cancellation of the same---Suit of plaintiff was decreed whereas that of defendant was dismissed---Validity---Defendant was not in a position to perform her part of agreement for execution of sale deed---Impugned judgment had been passed by the Trial Court after examining the entire evidence led by the defendant in support of her contention---Defendant had failed to point out any illegality or perversity in the impugned judgment---Trial Court had adequately compensated the defendant whereby plaintiff had been directed to make payment of the balance of the sale consideration on current market value of the property in question---Plaintiff could not justify her failure to deposit the balance sale consideration---Defendant should not suffer on account of delayed payment as during this period possession of suit property was being enjoyed by the plaintiff---Plaintiff after having made payment of part sale consideration was put into physical possession of the property in question---Plaintiff had acquired certain rights with regard to suit property through possession of the same---Plaintiff was willing to perform her part of agreement by making payment of the balance sale consideration---Suit of plaintiff had been rightly decreed keeping in view the facts and circumstances of the case---Trial Court had not committed any error or illegality and had passed a just and well reasoned judgment---Defendant had failed to make out or raise any substantial question of law---Appeal was dismissed in circumstances.

Muhammad Siddiq v. Muhammad Akram 2000 SCMR 533 rel.

Muhammad Idrees Sukhera for Appellant.

Tufail H. Ebrahim and Liaquat Hussain Khan for Respondents.

Date of hearing: 12th February, 2015.

2016 M L D 1686

[Sindh]

Before Naimatullah Phulpoto and Abdul Maalik Gaddi, JJ

AFZAL-UR-REHMAN alias AATIF---Applicant

Versus

The STATE---Respondent

Criminal Bail Applications Nos.1412 and 1413 of 2015, decided on 17th November of 2015.

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

----S. 497----Penal Code (XLV of 1860), Ss. 353, 324, 186 & 34---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 21-D---Assault or criminal force to deter public servant in discharge of his duty; attempt to commit qatl-i-amd; obstructing public servant in discharge of public functions; common intention; attempt to cause explosion or keeping explosive substance with intent to endanger life or property; making or possessing explosives under suspicious circumstances; acquiring, possessing, carrying or controlling any firearm or ammunition---Bail, refusal of---Present accused and the co-accused were coming in rickshaw and while seeing the police party they fired upon the police, and the police had also fired in self-defence---Accused person had sustained firearm injuries during the encounter---Two hand grenades had been recovered from the co-accused persons, which had been defused after recovery, and a positive report had been received in that regard---One pistol .30 bore without licence had been recovered from possession of present accused---Mashirnama of the arrest and recovery had been prepared---Offence with which the accused had been charged, was punishable for a term exceeding ten years---Even otherwise, having such ammunition was a grave offence, undermining the law and order situation in the city---Present accused prima facie had committed the alleged offence---Contentions raised by the accused required deeper appreciation of evidence, which was not permissible at bail stage---Trial court had already framed the charge in the trial---Bail application was dismissed accordingly.

Qeemat Gul v. The State 2011 SCMR 954 ref.

Jan Muhammad Naich for Applicant.

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

Date of hearing: 10th November, 2015.

2016 M L D 1696

[Sindh (Hyderabad Bench)]

Before Nazar Akbar, J

Mst. SHAHIDA PARVEEN---Applicant

Versus

SAIFUL MALOOK---Respondent

Civil Revision Applications Nos.19 and 20 of 2013, decided on 17th August, 2015.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for specific performance to sell immovable property---Agreement to sell, proof of---Scope---Contention of plaintiff was that she purchased suit property form defendant on the basis of agreement to sell---Validity---Burden was on plaintiff to prove the existence of agreement to sell and handing over of possession of suit property through sale agreement---Record showed that neither plaintiff had produced receipt of payment nor she had produced marginal witnesses or any other witness to prove execution of sale agreement with defendant---Sole testimony of plaintiff was not sufficient, thus, plaintiff had failed to discharge her burden in terms of S.79 of Qanun-e-Shahadat, 1984.

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

----S. 115---Revision---Concurrent findings of lower courts---Concurrent findings of lower courts could not be set aside in exercise of jurisdiction under S.115 of C.P.C. unless same were found perverse or contrary to record.

Miss Shazia Umrani for Applicant

Miss Naseem Abbasi for Respondent.

Date of hearing: 7th August, 2015.

2016 M L D 1714

[Sindh (Larkana Bench)]

Before Salahuddin Panhwar, J

GHULAM SHABIR and others---Applicants

Versus

The STATE and others---Respondents

Ist. Crl. Bail Applns. Nos.S-208 and S-222 of 2015, decided on 30th September, 2015.

(a) Words and Phrases---

----"Negligence"--- Meaning.

Black's Law Dictionary (Eight Edition) rel.

(b) Negligence---

----"Advertent negligence"---Connotation--- If actor of negligence is aware of consequences of his failure to discharge what a prudent person would have done then such negligence becomes 'advertent negligence'.

Black's Law Dictionary (Eight Edition) rel.

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

----S. 497--- Penal Code (XLV of 1860), Ss. 318, 319, 320, 337-G & 337-H--- Qatl-i-khata, rash and negligent driving--- Bail, grant of--- Advertent negligence--- One accused was lineman of electricity organization while the other was Line Superintendent---Seventeen persons lost their lives and more than twenty were injured when their vehicle came in contact with live 11000 KV high tension transmission wires hanging at a very low height--- Plea raised by accused was that offences mentioned in the FIR were bailable offences--- Validity--- Such was heinous offence involving height of dereliction in performance of duty on the part of accused persons--- Seventeen persons had lost their lives for no fault of them and more than twenty persons became injured--- Happy occasion turned into mourning because of negligent attitude of accused persons towards their obligations and duties--- Accused persons were serving in electricity organization and they should have been aware of the consequences of negligence in letting electrifying wire hanging to catch people, therefore, they prima facie appear to be guilty of "advertent negligence" which was taken cognizance of as cognizable offence---Accused persons were not justified in claiming bail on mentioning of offence without reference to its consequences--- Order of Court below declining bail plea of accused persons was justified and required no interference--- Bail was dismissed in circumstances.

Manzoor v. The State 1992 PCr.LJ 1374; Ahmed Khan v. The State 1997 MLD 1591; Muhammad Nadeem v. The State 1998 MLD 1537; Muhammad Shakeel Ahmed v. The State 1999 YLR 1368; Yousuf Khan v. The State 2000 PCr.LJ 203 and Ilyas v. The State 2011 MLD 849 ref.

Habibullah G. Ghouri for Applicants.

Complainant in person.

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

Date of hearing: 16th September, 2015.

2016 M L D 1730

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

REHAN and 4 others---Applicants

Versus

BIBI JALO SHAH alias DADA SAIN and 6 others---Respondents

Revision Application No.18 of 2010, decided on 11th April, 2016.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for possession, declaration and injunction---Rejection of plaint---Cause of action---Dispute between parties over possession of suit property and divergent pleadings of parties had given rise to various issues to be framed---Trial Court rejected the plaint but Appellate Court set aside order passed by Trial Court and remanded the same for decision on merits---Validity---Order of Trial Court rejecting the plaint under O.VII, R.11, C.P.C., was not sustainable and was rightly set aside by Appellate Court---Defendant was not able to satisfy as to how suit was barred under provisions of S.42 of Specific Relief Act, 1877---No illegality or jurisdictional defect in exercise of jurisdiction by Appellate Court in setting aside order passed by Trial Court attracting provisions of S.115, C.P.C. were pointed out---Revision was dismissed in circumstances.

S.M. Shafi Ahmed Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338; Nawabzada Malik Habibullah Khan v. The Pak Cement Industries Limited 1969 SCMR 965; Hyderabad Municipal Corporation v. Messrs Fateh Jeans Ltd. 1991 MLD 284; Haji Baz Muhammad and another v. Mst. Humera alias Shireen Taj and 3 others PLD 2003 Quetta 128; Ghulam Ali v. Asmatullah 1990 SCMR 1630 and Saleem Malik v. Pakistan Cricket Board PLD 2008 SC 650 ref.

Irfan Ahmed Qureshi for Applicants.

Ejaz Ali Hakro for Respondents.

Date of hearing: 14th January, 2016.

2016 M L D 1742

[Sindh]

Before Nazar Akbar, J

MUHAMMAD IQBAL---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No.1307 of 2015, decided on 23rd December, 2015.

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

----S. 497(1)---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, refusal of---Statutory delay---FIR had fully implicated the accused, and complainant was the real brother of his wife---Wife of the accused had not disputed the contents of the FIR---Police had already recovered the knife used in commission of the offence of slaughtering ¾ years old innocent daughter---Accused, having been immediately arrested from the place of occurrence, had even confessed his guilt---Truth had come on record when the complainant, at the spur of the moment, had recorded the true facts of the offence committed by the accused in the FIR with all genuineness and natural course of events uninfluenced by the consequences of true facts of the case against the accused---Discretion to grant bail was not supposed to be uncontrolled and unreasonable, and the court had to see the circumstances in which the delay had taken place---High Court had already given specific directions to the Trial Court and prosecution as to conclusion of the trial, which had not been strictly complied with---Delay in the proceedings of trial, at times, were wilfully and deliberately contributed by the complainant side with connivance of the prosecution---Benefit of delay, in given circumstances of the case, might not be attributed to the accused directly; however, the conscious efforts of complainant and prosecution in sharing the burden of delay could not be ruled out---Bail application was, therefore, dismissed accordingly.

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

----S. 497 (1)---Bail on ground of statutory delay---Scope---Interpretation of S.497, Cr.P.C.---Delay in trial is though a valid ground for seeking bail; however, in the name of statutory delay, the court is not supposed to give up its sacred duty of careful examination of the facts and circumstances of the case before exercising the discretion in favour of the accused for grant of bail---In every case, the court is not supposed to rely on the circumstances in which delay in trial has been caused by the accused or the prosecution and decide the fate of bail application on mathematical calculations; other factors cannot be simply ignored---Prime duty of the court in bail matters, is to see that there are "reasonable grounds for believing that the accused has been guilty" or not----Use of the words 'shall not' in S. 497, Cr.P.C. to deny bail is mandatory in cases where reasonable ground exist for believing the guilt of the accused---Word 'shall' in the third proviso of S. 497, Cr.P.C. to release the accused on ground of being in detention for continuous period of two years even in absence of conditions mentioned in the fourth proviso would not take away to undermine the duty of the court to examine the other attending circumstances and evidence connecting the accused with offence to the extent of 'reasonable belief' against him---Word 'shall' in the third proviso has lost its mandatory command for two reasons: firstly, the proviso to any section in an enactment cannot be interpreted to render the effect of the main section null and void, such as the limited discretionary power of court for grant of bail in non-bailable offences; and, secondly, the use of word 'shall not' in S.497, Cr.P.C has made it mandatory for court to check reasonable ground for believing or not believing in the guilt of accused before releasing anyone on bail.

(c) Interpretation of statutes----

----When the provision of law is couched in negative terms and places an embargo on court then a strict view is required to be taken.

Naveed Ali for Applicant.

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

Date of hearing: 16th December, 2015.

2016 M L D 1796

[Sindh]

Before Muhammad Iqbal Kalhoro, J

MUBARAK ALI---Petitioner

Versus

MUHAMMAD ASLAM KHAN and 2 others---Respondents

Constitutional Petition No. S-419 of 2014, decided on 20th May, 2016.

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

----Ss. 14 & 15----Intent and Scope of Ss.14 & 15, Sindh Rented Premises Ordinance, 1979---Eviction petition---'Personal bona fide need' of landlord---Scope---Rent Controller allowed the eviction petition on ground of 'personal bona fide need', and the appellate court maintained said findings---Landlord had earlier filed an eviction petition on the same ground, which had been dismissed on the ground that he was not available before the court to examine himself; however, the issue as to the relationship of landlord and tenant between the parties had been decided in affirmative in said petition, against which the tenant had preferred appeal, which was still pending---Tenant contended that during pendency of said appeal filed against the order passed on the earlier eviction petition, fresh petition was not competent, and that after re-employment of the landlord, the ground of retirement was not available to him, and that after death of the landlord, his legal heirs had no right to sue him on the same ground---Validity---No bar existed to the effect that a landlord, after failing in an ejectement petition filed on any of the grounds enumerated under S. 15 of Sindh Rented Premises Ordinance, 1979, could not file a fresh case under S. 14 of the Ordinance for ejectment of the tenant---Intent and scope of said two provisions of the Ordinance were quite distinct and independent of each other, and referred to different causes of action and could even be simultaneously resorted to by landlord---Term 'personal use' in S. 14 of the Ordinance had broader meaning, which transcended the connotation of the person of landlord, and the same included his immediate family---Law did not require a landlord, that, in order to prove his personal bona fide need, he had to sit idle and stay away from any activity to generate funds for himself and his family till decision of his case---Evidence of the landlord's attorney had remained un-shattered and his assertion that the landlord was living in a rented house had been un-rebutted---Courts below, having exhaustively dealt with the factual aspects of the case, had decided the issue affirmatively as to existence of the relationship of landlord and tenant between the parties---Constitutional petition was dismissed in circumstances.

1984 CLC 755; 2000 MLD 442; 1996 MLD 71; 1992 CLC 723 and 1998 CLC 349 rel.

2010 SCMR 1925 rel.

(b) Constitution of Pakistan---

----Art. 199----Constitutional jurisdiction---Scope---High Court, under its constitutional jurisdiction (in case of concurrent findings of courts below), cannot reappraise the evidence on the premise that a different view is possible.

Syed Ali Kausar Shah for Petitioner.

Rana Muhammad Ahmed Khan for Respondents.

Date of hearing: 17th May, 2016.

2016 M L D 1805

[Sindh (Larkana Bench)]

Before Anwar Hussain, J

TOTO---Applicant

Versus

The STATE---Respondent

M.A. No.911 of 2016 in Criminal Appeal No.S-16 of 2016, decided on 13th May, 2016.

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

----S. 426----Sindh Arms Act (V of 2013), S. 23---Suspension of sentence pending appeal---Release of accused on bail---Appeal against the conviction had already been admitted, disposal of which might take time---Paper book (of the appeal) was under preparation---Accused, even otherwise, had got a case on merits (the appeal was likely to be decided in favour of the accused)---High Court, therefore, suspending the sentence, released the accused on bail during pendency of the appeal---Application under S. 426, Cr.P.C. was accepted accordingly.

2007 PCr.LJ 1035 and 1999 SCMR 2589 rel.

Rashid Mustafa Solangi for Appellant.

Muneer Ahemd Abbasi, D.D.P.P. for the State.

2016 M L D 1813

[Sindh]

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

UMAIR---Appellant

Versus

Messrs TRANS ASIA ENTERPRISES and 10 others---Respondents

H.C.A. No.360 of 2006, decided on 21st January, 2015.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.XLI, R.1---Limitation Act (IX of 1908), S. 5---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Specific performance of agreement to sell---Filing of certified copy of judgment and decree with a delay of 4 years by defendant---Condonation of delay---Scope---Trial Court decreed the suit in favour of plaintiff---Certified copy of judgment and decree passed by Trial Court was filed by defendant with a delay of almost 4 years---Validity---Mere filing of memorandum of appeal within a period of limitation was of no consequence, unless a certified copy of decree was filed before the period of limitation was expired---Appellate Court vested with discretion under the provisions of O.XLI, R. 1, C.P.C. to dispense with filing of certified copy of judgment--- Defendant after filing appeal on 26-8-2006, applied for certified copy of judgment and decree on 26-6-2010 and filed the same in Court on 2-7-2010 with an application under S.5 of Limitation Act, 1908, without accounting for each and every day's delay---Defendant did not show sufficient cause to condone delay of almost four years in filing certified copy of decree, therefore, the defendant failed to make out any case for exercising discretion in his favour to condone delay---High Court declined to condone delay of almost 47 months in filing of certified copy of decree---High Court appeal was dismissed, in circumstances.

Mst. Safia Begum v. Taj Din and others 1993 SCMR 882; Mst. Shagufta Bano v. Hussain Abbas Abidi and another 1988 MLD 2674; Bodh Narain Mahto v. Mahabir Pd. and others AIR 1940 Patna 176; AGENT, G.IP. Ry. Co. v. Jasrup Shrinath 1990 Indian Cases 135; Haji Abdul Ghaffar v. Haji Rauf 1991 CLC 734; Chaudhry Shah Muhammad and 6 others v. Muhammad Ishaq and 5 others 2001 MLD 1518; Fida Hussain v. Jalal Khan 2002 CLC 1339; Imam Gul v. Mt. Begun Ji 1980 CLC 530; Cooperative Model Town Society through Secretary v. Mst. Asghari Safdar and others 2005 SCMR 931; Abdul Rashid and others v. Abdul Ghani and others 2011 MLD 1597; Cooper & Co. (Pvt.) Ltd. v. Laurel Navigation (Mauritius) Ltd. and another PLD 2009 Kar. 288 and Noor Muhammad v. Ch. Ghulam Muhammad and others PLD 1978 Lah. 819 ref.

Rasheed Ahmed v. Province of Punjab 2004 SCMR 707 rel.

Mushtaq A. Memon for Appellant.

Mansoor-ul-Arfin for Respondent No.1.

Nemo for other Respondents.

Date of hearing: 1st December, 2014.

2016 M L D 1830

[Sindh]

Before Sajjad Ali Shah, C J and Muhammad Junaid Ghaffar, J

MUHAMMAD NASIR through Authorized Representative and others---Petitioners

Versus

MINISTRY OF PETROLEUM AND NATURAL RESOURCES through Secretary, Islamabad and others---Respondents

C.Ps. Nos.D-4811 to D-4813 of 2013, decided on 22nd January, 2016.

Constitution of Pakistan---

----Arts.9, 25 & 199---Constitutional petition---Natural gas connection--Discrimination---Grievance of petitioners was that authorities did not give natural gas connection to them under the garb of moratorium imposed by Federal Government---Plea raised by authorities was that petition was not maintainable---Validity---Management and usage of natural resources of the country by the State was through its instrumentalities, therefore, High Court under Art. 199 of the Constitution could exercise such discretionary jurisdiction to put the things in order---Gas supply to domestic consumers was of utmost importance and it was a basic need---High Court believed that the State must take cogent initiatives for un-interrupted supply of gas to domestic consumers on priority but to the dismay of High Court none had so far been taken and instead a complete ban was imposed on gas connections to certain class of people without explaining / and or giving any justifiable reason---Moratorium was issued in year, 2011, but unfortunately nothing had been placed before High Court as to why the moratorium still continued and whether it was ever revisited and scrutinized from any angle to accord some relief to deprived citizens of the country---High Court declared that moratorium to the extent it dictated that natural gas through Sui transmission system would not be provided to high rise buildings, could not be sustained on the touchstone of Arts. 9 and 25 of the Constitution and the same was set aside---High Court further declared that classification of residential building having more than four floors as a high rise building by authorities was without lawful authority and the same was illegal and was also set aside---Direction was issued by High Court that authorities provide gas connections to petitioners---Constitutional petition was allowed in circumstances.

Shehla Zia v. Federation of Pakistan PLD 1994 SC 694; Human Rights Case No.14392 of 2013 2014 SCMR 220; I.A. Sherwani and other v. Government of Pakistan and others 1991 SCMR 1041; Waris Meah v. State and another PLD 1957 SC 157; Khwaja Muhammad Asif v. Federation of Pakistan PLD 2014 SC 206; Government of NWFP v. Meejee Flour and General Mills (Pvt.) Limited, Mardan 1997 SCMR 1804 ref.

Obaid-ur-Rehman Khan for Petitioners (in C.P. No.4811 of 2013).

Muhammad Ishaq Memon for Petitioners (in C.Ps. Nos.4812 and 4813 of 2013).

Asim Mansoor, D.A.G. for Respondent No.1.

Asim Iqbal for Respondent-SSGC.

Date of hearing: 23rd December, 2015.

2016 M L D 1902

[Sindh]

Before Ghulam Sarwar Korai and Salahuddin Panhwar, JJ

TARIQ IRSHAD and another---Petitioners

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU (NAB), ISLAMABAD and others---Respondents

Constitutional Petitions Nos.D-3856 and D-3857 of 2013, decided on 18th February, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Such jurisdiction can be exercised in extraordinary circumstances and normal course provided under law cannot be bypassed in any manner.

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

----S.25(a) & (b)---Constitution of Pakistan, Art.199---Constitutional petition---Voluntary return or plea bargaining---Procedure---Approval of Court---During investigation by National Accountability Bureau notice was issued to petitioner to voluntary return the gains acquired by him---Petitioner agreed to return the gains and an agreement was executed between him and National Accountability Bureau but Accountability Court declined to approve voluntary return agreement---Validity---Word 'accused' was not used in S.25(a) of National Accountability Ordinance, 1999, but 'a holder of public office or any other person' had been used and it had been further mentioned 'prior to authorisation of investigation against him'---Offer of voluntary return was to come from a person not an accused---Discretion vested with Chairman, National Accountability Bureau to reward of discharge such person from all his liability in respect of the matter or transaction in issue---In such matters no investigation had been initiated as such exercise of discretion by Chairman National Accountability Bureau was not subject to any approval of Court, as word 'Court' was nowhere mentioned in S.25(a) of National Accountability Ordinance, 1999---Reward of 'discharge from all liability' was also with an intention to invite person to return at very initial stage---He/she who failed to avail opportunity provided by S.25(a) of National Accountability Ordinance, 1999, could continue with an option to resort to plea bargain but as an accused or convict, as the case might be---Delayed offer (plea bargain) could not be equated with that of an offer (plea bargain) by a person against whom there started no investigation so far---Legislature had confined reward of such offer with release of accused of the convict, as the case might be, which too was subject to approval of Court or as the case might be, the Appellate Court---High Court declined to interfere with the order passed by Accountability Court as opportunity of approaching Court under S.25(b) of National Accountability Ordinance, 1999, remained available being creation of law itself---Petition was dismissed in circumstances.

Asfand Yar Wali's case PLD 2001 SC 607 and Abdul Aziz Memon v. The State PLD 2013 SC 594 ref.

(c) Administration of justice---

----What is required to be done in a particular manner, the same has to be done in the same manner and not otherwise.

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

----S.25(b)---Plea bargain---Seeking of approval---Scope---Prerogative of National Accountability Bureau authorities only to seek approval of accepted offer of accused because after such acceptance, NAB was to seek approval with reference to terms and conditions on which acceptance was made.

Shaukat Hayat for Petitioners (in C.Ps. Nos.D-3856 and 3856 of 2013).

Noor Muhammad Dayo, A.D.P.G., NAB along with Zamir Hussain, Senior Prosecutor NAB for Respondents (in C.Ps. Nos.D-3856 and 3856 of 2013).

2016 M L D 1931

[Sindh]

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

Haji MUHAMMAD IQBAL and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.378 of 2011, decided on 6th November, 2015.

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

----Ss. 9(c) & 29---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Ten bags of charas weighing 289 Kgs., having been recovered from the possession of accused persons, they were convicted and sentenced to suffer life imprisonment and fine of rupees one million---Counsel for accused persons had prayed for their acquittal, or for reduction of sentence---Accused persons, who had served out major portion of their sentence i.e. more than 16 years, were not previously convicted in any case---Evidence led by the prosecution, was in line with the case, with no material variations or lapses---Memo of recovery and FIR stood fully corroborated and proved to the satisfaction of the Trial Court---Defence depended upon mere denial of the charge and case, as well as evidence---No defence evidence, at all had been adduced---Initial burden resting on the prosecution, stood discharged on its part, and accused had failed to rebut the same as provided under S.29 of the Control of Narcotic Substances Act, 1997, and to lead defence evidence establishing their innocence in the matter---Defence counsel prayed for mercy in the matter of punishment on the ground that they were first offenders; were bread earner members of their families, could be dealt with lenient view; more particularly they had served major portion of their sentence and that accused persons, could be allowed to lead their life as reasonable citizens, to support their families for their welfare and well-being---While maintaining the conviction of accused persons, their sentence was reduced to one already undergone---Accused persons, were released, in circumstances.

Amir Mansoob Qureshi, Riazat Ali Sehar and Raja Jawad Ali for Appellants.

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

2016 M L D 1937

[Sindh]

Before Hasan Feroz, J

Mst. AMINA KHAN---Applicant

Versus

The STATE and 5 others---Respondents

Crl. Revision Application No.42 of 2014, decided on 28th October, 2014.

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

----S.540---Power to summon material witness or examine person present---Scope---Application under S.540, Cr.P.C.---Contention of applicant was that ample power had been provided to the Court under S.540, Cr.P.C. to summon any witness as a Court witness at any stage of the case and that Court could not summarily dismiss any such application for additional evidence under S.540 of Cr.P.C. as witness was not mentioned in challan or that it was belated stage of application or that the same would fill up lacuna in prosecution story unless totality of material was considered for just decision of the case---Validity---Purpose of S.540 of Cr.P.C. was to discern truth for just elucidation of matter and Court could summon any person as a witness or recall and re-examine any person as a witness already examined at any stage of case---Evidence sought to be recorded under S.540, Cr.P.C. ought to be allowed for just decision of case as provisions of S.540, Cr.P.C. empowered Court for seeking any material at any stage to reach to just and fair conclusion---Revision was allowed.

Nawabzada Shah Zain Bugti and others v. The State PLD 2013 SC 160; Ansar Mehmood v. Abdul Khaliq and another 2011 SCMR 713; Muhammad Ashraf v. The State and 4 others PLD 2011 Federal Shariat Court 114 and Muhammad Sharif Shar v. The State 2000 PCr.LJ 1882 ref.

(b) Administration of justice---

----When a Court had arrived a conclusion that evidence was essential for just decision, delay in moving an application was not relevant.

Muhammad Akbar Khan for Applicant.

M. Irfan along with D. Hanif Saeed for Respondents Nos.2-6.

2016 M L D 1953

[Sindh]

Before Aqeel Ahmed Abbasi and Ghulam Qadir Laghari, JJ

Syed SADARUDDIN SHAH---Petitioner

Versus

PROVINCIAL ELECTION COMMISSION through DEO and 4 others---Respondents

Constitutional Petition No.D-4194 of 2015, decided on 18th November, 2015.

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

----Ss. 36(d) & 36(e)----Disqualification for candidate as member---Holding an Office of profit---Effect---Petitioner challenged acceptance of nomination papers of respondent by Returning Officer on ground that the respondent, being government employee, was not qualified to contest the local bodies election in terms of Ss.36 (d) & (e) of Sindh Local Government Act, 2013---Validity---Respondent was holding public office, an office of profit, which fact had been concealed by him, and the same had not been disclosed in his nomination form or till date of scrutiny of the same---Respondent had filed notification regarding his resignation for the first time in present constitutional petition, which reflected that his resignation had been accepted retrospectively---Said notification, otherwise, did not support the case of the respondent, as in terms of S.36(e) of Sindh Local Government Act, 2013, period of six months from date of his resignation was not completed---Respondent was, therefore disqualified in terms of section 36(d) and (e) of Sindh Local Government Act, 2013---High Court cancelled the nomination form of the respondent---Constitutional petition was allowed in circumstances.

Shabbir Ali Bozdar for Petitioner.

Ghulam Shabbir Dayo for Respondent No.4.

Zulfiqar Ali Sangi, A.A.G. for Official Respondents.

2016 M L D 1977

[Sindh (Sukkur Bench)]

Before Mohammad Iqbal Mahar, J

IRFAN alias IRFOO and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-81 of 2013, decided on 17th June, 2016.

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

----Ss. 324, 337-F (iii), 337-F (v) & 148----Pakistan Arms Ordinance (XX of 1965), Ss. 13(e) & 9---Attempt to commit qatl-i-amd; ghayr-jaifah/mutalahimah; ghayr-jaifah/hashimah; rioting, armed with deadly weapon---Appreciation of evidence---Interested eye-witnesses/brothers--Unlicensed possession of arms, acquittal in case of---Effect---Occurrence had taken place in broad daylight and the parties were known to each other; therefore, there was no question of mistaken identity---All the three eye-witnesses had nominated the accused persons with the specific weapon and role of firing from their weapons at the injured person---Presence of the eye-witnesses had been proved, and the prosecution had failed to shatter their credibility---Medical Officer had supported the prosecution case---Mashir of the case and the Investigating Officer had also supported the case of the prosecution---Complainant had gone to the police station and lodged the FIR after getting the injured person admitted from one hospital to another hospital; hence, the delay of four days in lodging of the FIR had been explained---High Court observed that the prime consideration in such like cases was to save the life of person, who had received firearm injuries---Prosecution witness had been injured, and his brother complainant was with him, and the prosecution witness was an independent and natural witness, as the incident had taken at his place and he was present there; whereas, the villagers had come on the firing reports and seeing them the accused had gone away---Villagers, therefore, were not the eye-witnesses of the incident---Evidence of the eye-witness, brother of the injured, corroborated by the recovery and medical evidence and also matching evidence of other independent eye-witness could have been safely relied upon in such circumstances---Minor contradictions and discrepancies in the prosecution evidence pointed out by the defence could be overlooked in presence of direct evidence of eye-witnesses corroborated by medical evidence---All three witnesses had deposed that after sustaining the firearm injuries, the injured had fallen down on the ground, therefore, the possibility of sustaining those injuries while falling on some hard ground could not be ruled out---Medical evidence provided that one injury was simple and skin deep and the other was a contusion---Acquittal of the accused in the case under S. 13 (e) of Pakistan Arms Ordinance, 1965, being a separate trial, had no bearing on the evidence and decision recorded in the present case---Appeal was dismissed accordingly.

Ghulam Abbas and others v. The State 2001 PCr.LJ 762 and Mohammad Akram alias Laloo v. The State 2008 PCr.LJ 1569 disdinguished.

Muhammad Mansha v. The State 2016 SCMR 958 rel.

(b) Criminal Trial---

----Interested witness---Principles---Mere relationship is no ground to discard the evidence of a witness related to the deceased/injured, if it is otherwise worthy of reliance and the same is corroborated by other evidence.

Muhammad Mansha v. The State 2016 SCMR 958 rel.

Manzoor Hussain Ansair for Appellants.

A.R. Kolachi, A.P.G. for the State.

Noor Mohammad Soomro for the Complainant.

2016 M L D 2031

[Sindh]

Before Zafar Ahmed Rajput, J

IQBAL---Plaintiff

Versus

Brigadier ZAFAR MAHMOOD and 3 others---Defendants

Suit No.1459 of 2000, decided on 22nd September, 2014.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908) S. 9 & O.VII, R11---Customs Act (IV of 1969), Ss. 162, 163, 171 179, 217---Rejection of Plaint---Principles---Earlier application for rejection of plaint disposed of on the basis of consent of parties---Effect---Ouster of jurisdiction---Principles---Exclusion of protection for act done with mala fide---Plaintiff filed suit for declaration, injunction, recovery of articles and damages against defendant---Defendant filed application for rejection of plaint on grounds that plaintiff's suit did not come within purview of S. 42 of Specific Relief Act, 1877 and damages could not be claimed on violation of any legal right unless act of defendant was proved illegal and unlawful---Defendant further contended that Plaintiff was prosecuted and adjudicated under provisions of Customs Act, 1969 whereby he was acquitted but Customs Reference had been pending adjudication before High Court, therefore, suit was not maintainable in law---Plaintiff contested application on ground that an earlier application for rejection of plaint was disposed of with consent of parties, therefore present application was not maintainable under law and that ouster of jurisdiction was available only to the extent of bona fide act---Validity---When an earlier application for rejection of plaint was disposed of by consent of parties, second application for the same was not maintainable---Pendency of Customs Reference did not spell out any positive prohibition of any legal provision for rejection of plaint---Where government or its officials did or intended to do anything that had been authorized by law they should not be made liable under criminal or civil law, however, such protection was not available for acts done with mala fide---Provisions contained in statutes debarring court of general jurisdiction was to be construed very strictly and unless case fell within barring provision it would not be given effect---When jurisdiction of court was challenged on ground of ouster of jurisdiction, it must be shown that action taken by defendant was not based on mala fide and that principles of natural justice were not violated and unless said conditions were satisfied, action of Authority would not be made immune from being challenged.

Rashid Ahmad v. The State PLD 1972 SC 271; West Pakistan Province v. Hazrat Gul Khan and another PLD 1966 (W.P.) Pesh. 34 and Ali Muhammad and others v. Muhammad Shafi and others PLD 1996 SC 292 distinguished.

Mian Sultan Ali Nanghiana v. Mian Nur Husain PLD 1949 Lah. 301 rel.

Narain Das C. Motiani for Plaintiff.

2016 M L D 2072

[Sindh (Hyderabad Bench)]

Before Syed Saeeduddin Nasir, JJ

JHAMANDAS---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-348 of 2016, decided on 16th June, 2016.

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

----Ss. 497 & 197----Penal Code (XLV of 1860), Ss. 161 & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Sindh Enquiries and Anti-Corruption Rules 1993, Rr.11 & 13---Public servant taking gratification other than legal remuneration in respect of official act; common intention, criminal misconduct---Bail, refusal of---Sanction for prosecution---Requirement---Accused, Assistant Commissioner, was caught red handed by the raiding party headed by the Civil Judge and Judicial Magistrate in presence of the complainant, when the amount received by him as illegal gratification had been recovered from the drawer of his table, for which the accused could not give satisfactory account---Accused was not co-operating with the prosecution and had not volunteered himself to record his statement before the Investigating Officer, due to which the prosecution had not been able to submit final Challan before the court---Defiant attitude of the accused was going to affect and influence the trial if he was set at liberty---Enough material was available on the record to prima facie connect the accused with the commission of the offence--- Under the FIR and the Trap Report, distinct and specific allegations had been levelled against the accused---Prosecution was not bound to obtain prior permission from the competent authority before initiating enquiry, investigation and lodging of the FIR against the accused/public servant and his subsequent arrest as a result thereof---Provisions as to sanction of the President, the Governor of the Province or any other executive authority mentioned in S. 197, Cr.P.0 and S. 6(5) Pakistan Criminal Law Amendment Act, 1958 were repugnant to the injunctions of Islam; therefore, exercise of framing Sindh Enquiries and Anti-Corruption Rules, 1993, contemplating obtaining necessary permission from the competent authority before initiating inquiry, FIR, investigation and submission of challan under Rr. 11 & 13 of the Rules was mala fide, void ab initio and of no legal effect---Even under said Rules, there was no requirement of obtaining prior such permission/sanction---High Court observed that indulging in corruption and taking bribe had become a de facto recognized norm of the society, which was corroding the entire edifice of State, and due to that rampant corruption currently prevailing, the very image of the country had been whittled down in the eyes of the comity of nations---Case of corruption, therefore, should not have been taken leniently, however trivial, the punishment might have been provided for commission of the same---For treating offences (of corruption), an entirely different criterion was to be set different than the one which was adopted for offences punishable under P.P.C. or any other ordinary law---Offence alleged to have been committed by the accused came well within the ambit of crime of corruption, which adversely affected the society at large---Investigation of the case had not been concluded and challan not submitted so far, therefore, it would not be appropriate to admit the accused to bail at that premature stage---Bail application was dismissed accordingly.

Muhammad Suleman v. State 2013 PCr.LJ 1051 distinguished.

Federation of Pakistan v. Zafar Awan Advocate PLD 1992 SC 72; Federation of Pakistan v. Zafar Awan PLD 2005 SC 19 and Imtiaz Ahmed v. State PLD 1997 SC 55 rel.

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

----S. 497----Bail---Principles---Tentative assessment of evidence, at bail stage, is to be made and no deeper appreciation and in depth or detail examination of the evidence is warranted.

Muhammad Yousuf Leghari and Altaf Ahmed Shahid for Applicant.

Shahzado Saleem Nahyoon, A.P.G. for the State along with Malak Allah Ditta, Circle Officer, Anti-Corruption, Mirpurkhas.

2016 M L D 2085

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

IBRAHIM---Applicant

Versus

The STATE and 3 others---Respondents

Cr1. Revision Application No.S-135 of 2012, decided on 5th May, 2016.

Illegal Dispossession Act (XI of 2005)---

----Ss.2 (c), 3 & 4---Illegal dispossession---Proof---Restoration of possession---Pre-conditions---Cognizance of offence---Complainant alleged that he was owner of property in question and sought recovery of the possession but complaint was dismissed by Trial Court--­Validity---For attracting provisions of Illegal Dispossession Act, 2005, and in order to get benefit of S. 3(1) of Illegal Dispossession Act, 2005, complainant had to show befole Court that he was lawful owner or occupier of subject property and accused entered into or upon the property without having any lawful authority---Complainant was also to prove that accused had done so with intention to dispossess or to grab or to control or to occupy property in question---Contents of complaint did not have any such allegations which could fall within the ambit of Ss. 3 & 4 of Illegal Dispossession Act, 2005---High Court declined to interfere in its revisional jurisdiction as no jurisdictional infirmity or any illegality was pointed out in the order passed by Trial Court---Revision was dismissed in circumstances.

Noorul Amin Sipio for Applicant.

Shahid Ahmed Shaikh, A.P.G. for Respondents Nos. 1 and 2.

Ashok Kumar D. Lohano for Respondents Nos. 3 and 4.

2016 M L D 1

[Lahore]

Before Muhammad Qasim Khan and Sikandar Zulqarnain Saleem, JJ

MUHAMMAD ASHRAF---Appellant

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 199 and 198 of 2011, Murder Reference No.37 of 2011, heard on 29th April, 2014.

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

----S.154---Registration of FIR---Object and scope---FIR under S.154 Cr.P.C. is always treated to be corner stone of prosecution case to establish guilt against culprits involved in crime---Any doubt in lodging of FIR and commencement of investigation gives rise to a benefit in favour of accused and FIR lodged after conducting inquiry loses its evidentiary value.

(b) Criminal trial---

----Circumstantial evidence---Scope---If a case hinges on circumstantial evidence, utmost care and caution is required to reach at a just conclusion of the case---In such like cases, every chain should be linked with one another as its one end touches dead body while the other end goes to neck of the accused---If any chain link misses then its benefit should be given to accused.

The State v. Manzoor Ahmed PLD 1966 SC 664; Asadullah and another v. State and another 1999 SCMR 1034; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 188 rel.

(c) Criminal trial---

----Confession---Extra judicial confession must be proved by evidence of very high and un-impeachable character.

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

----S.302 (b)---Criminal Procedure Code (V of 1898), S.103---Qatl-i-Amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon---Private witness, non-associating of---Both the accused were convicted by Trial Court for committing murder and were sentenced to death---Validity---Hatchet was allegedly effected after about eight days of the occurrence and it was not expected from accused persons that they would have kept the hatchet intact in order to produce the same before police for creating evidence against them---Recovery of hatchet was effected in violation of S. 103 Cr.P.C. as public witnesses were not joined in recovery proceedings---Hatchet was sent to Chemical Examiner which was received in the office of Chemical Examiner after ten days and there was little possibility of detecting of blood on the hatchet even after passage of about one month---Recovery of such hatchet was of no use to prosecution---Prosecution was primarily bound to establish guilt against accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling Court whether prosecution had succeeded in establishing against accused or otherwise---If Court had come to the conclusion that charges so imputed against accused were not proved beyond reasonable doubt, then accused was entitled for his release by getting benefit of doubt in prosecution case---Court, in such a situation, had no jurisdiction to abridge such right of accused---To ascertain as to whether accused was entitled to benefit of doubt, Court could conclude on considering agglomerated effect of evidence available on record---Prosecution could not prove its case against accused beyond shadow of doubt---If there was a single circumstance which could create doubt regarding prosecution case, the same was sufficient to give benefit of doubt to accused---Number of circumstances existed which had created serious doubts about prosecution story---High Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge---Appeal was allowed in circumstances.

Abdul Mateen v. Sahib Khan and another PLD 2006 SC 538; Safdar Ali v. The Crown PLD 1953 FC 93; Muhammad Luqman v. The State PLD 1970 SC 10; Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence may confirm ocular evidence with regard to seat of injury and its duration, nature of injury and kind of weapon used for causing such injury---Medical evidence cannot connect accused with commission of crime, until there is some other evidence.

Ghulam Mustafa and another v. State 2009 SCMR 916 rel.

Prince Rehan Iftikhar Sheikh for Appellant (in Crl. Appeal No. 199 of 2011).

Mudassar Altaf Qureshi for Appellant (in Crl. Appeal No. 198 of 2011).

Khalid Ibn-e-Aziz, Defence counsel for the Appellants at State expense.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Nemo for the Complainant.

Date of hearing: 29th April, 2014.

2016 M L D 25

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

NAZIM ALI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Criminal Revision No.469 of 2015, decided on 27th May, 2015.

Criminal Procedure Code (V of 1898)---

----S.265-C---Qanun-e-Shahadat (10 of 1984), Arts.2(1)(b) & 164---Constitution of Pakistan, Art.10-A---Qatl-i-amd, common intention---Petitioner, accused, who was facing trial, moved an application before the Trial Court under S.265-C, Cr.P.C., for providing him copies of Memory Card and Video, which were taken into possession by the Investigating Officer, prior to the framing of the charge which was declined---Validity---Application in question was well within the domain of law and it was covered by S.265-C, Cr.P.C.---Such items had to be supplied to accused prior to the commencement of the trial which was legal pre-requisite for the safe administration of criminal justice---Intent of the legislature was to provide an opportunity to accused to defend himself---Said aspect had been further broadened, and had attained constitutional right after advent of Art.10-A of the Constitution---Petition was allowed, order of the Trial Court was set aside and direction was issued to the Trial Court to provide the copies of items applied for which were taken into possession in the case.

Nasrullah v. The State 1980 PCr.LJ 5; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 and Government of Sindh through Advocate-General, Sindh v. Fahad Naseem and 3 others 2002 PCr.LJ 1765 ref.

Ch. Muhammad Ashraf Kamboh for the Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor- General.

Syed Zohaib Saeed for respondent No.2.

2016 M L D 39

[Lahore]

Before Ali Akbar Qureshi, J

Mst. KATTU and others---Petitioners

Versus

EESA---Respondent

C.R. No.880-D of 1996, decided on 7th April, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Inheritance---Limitation---Trial Court while non-suiting the plaintiffs on the question of limitation had over-looked the relief claimed by them---Filing a suit for declaration to correct the revenue entries in the matter of inheritance was not necessary, however, if suit was filed for the purpose, Law of Limitation would not apply---Plaintiffs being legal heirs of the deceased were entitled to inherit the property to the extent of their shares---Findings recorded by the Appellate Court with regard to limitation were set aside and suit filed by the plaintiffs was declared to be within time---Revision was accepted in circumstances.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217 and Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801 rel.

Muhammad Shehzad Langrrial for Petitioners.

Nemo for Respondent.

Date of hearing: 7th April, 2015.

2016 M L D 48

[Lahore]

Before Muhammad Anwaarul Haq and Zafar Ullah Khan Khakwani, JJ

QASIM IJAZ---Appellant

Versus

The STATE and another---Respondents

Cr. Appeal No.138 and Murder Reference No.77 of 2014, heard on 4th June, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 377---Criminal Procedure Code (V of 1898), S.345---Qatl-i-amd, sodomy---Appreciation of evidence---Compromise---Mitigating circumstances---Compromise was arrived between accused and legal heirs of the deceased, according to which, legal heirs of the deceased had forgiven accused and had waived their right of qisas in the name of Almighty Allah---Heirs of the deceased deposed that they had no objection to acquittal of accused for the murder of their son---Trial Court had verified that said compromise had been entered into voluntarily and without fear---High Court was satisfied that legal heirs of the deceased had effected compromise with regard to murder of the deceased, and had resorted to amicable relations, to promote harmony and good-will between the parties, and to ensure peace and tranquility in the vicinity---Compromise was accepted for murder of deceased---Offence under S.377, P.P.C. was not compoundable, but as legal heirs of the deceased had pardoned accused for murder of their son, which was a major offence, courts of law had always taken lenient view with regard to akin offences falling under the category of non-compoundable offences---Compromise having been effected in the regular proceedings, High Court could consider the compromise as a mitigating circumstance in the matter of quantum of sentence awarded in the non-compoundable offence i.e. under S.377, P.P.C.---Accused had admitted that he had committed a shameful act; that his conscience pinched him that he deserved punishment; and that he felt repentant---Such was an extraordinary extenuating circumstance for taking a lenient view in the matter of sentence under S.377, P.P.C.---Accused had undergone two years, three months and 27 days incarceration---Sentence already undergone by accused under S.377, P.P.C., would be more than sufficient---Impugned judgment to the extent of conviction and sentence under S.302(b), P.PC., was set aside and accused was acquitted of the charge of murder---Conviction of accused under S.377, P.P.C., was maintained, but taking lenient view in awarding punishment under said section, sentence already undergone by accused, would be sufficient to meet the ends of justice.

Ghulam Farid alias Farida v. The State PLD 2006 SC 53 ref.

Zafar Iqbal Gondal for Appellant.

Mirza Abid Majeed, Deputy Prosecutor General for Respondents.

Date of hearing: 4th June, 2014.

2016 M L D 67

[Lahore]

Before Atir Mahmood, J

MOHAMMAD TARIQ---Petitioner

Versus

SAFDAR HUSSAIN and another---Respondents

Writ Petition No.1675 of 2014, heard on 24th September, 2014.

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

----S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Application for eviction of tenant---Summoning of witness---Rent Tribunal dismissed application for summoning of witness filed by the tenant---Contention of tenant was that appearance of witness was necessary to prove the execution of agreement---Validity---Name of witness desired to be summoned was given in the list of witnesses relied by the tenant---Said witness appeared before the Rent Tribunal on issuance of his warrants and got recorded his statement that he did not want to appear as witness of tenant and he had no concern with the agreement---Tenant did not object to the statement of witness when he appeared before the Rent Tribunal and did not raise the plea that witness was employee of landlord at such time---After appearance of witness before Rent Tribunal tenant kept mum for a long period of six months---Law did not favour the indolent rather it would favour the vigilant---Six month period had been provided for disposal of eviction petition---Tenant wanted to gain more and more time to prolong the proceedings for as much time as he could---Court could not compel the witness when he did not want to give evidence in favour of any party---Impugned order was not a final order against which no remedy of appeal had been provided---Constitutional petition was not maintainable where appeal had been barred by the legislature as same would defeat the will of legislature---Impugned order was in accordance with law---No illegality or jurisdictional defect had been pointed out in the impugned order---Constitutional petition was dismissed in circumstances.

1998 MLD 678; 2006 MLD 1532 and 2010 CLC 1590 ref.

1998 MLD 678 and 2006 MLD 1532 distinguished.

Muhammad Iftikhar v. Javed Muhammad and 3 others 1998 SCMR 328 and Saghir Ahmad Naqvi v. Province of Sindh and another 1996 SCMR 1165 rel.

(b) Constitution of Pakistan---

----Art.199---Punjab Rented Premises Act (VII of 2009), S. 15---Interim order of Rent Controller---Constitutional petition---Maintainability---Constitutional petition was not maintainable where appeal had been barred by the legislature as same would defeat the will of legislature.

Muhammad Iftikhar v. Javed Muhammad and 3 others 1998 SCMR 328 and Saghir Ahmad Naqvi v. Province of Sindh and another 1996 SCMR 1165 rel.

Mian Muhammad Akram for Petitioner.

Makhdoom Ijaz Hussain Bokhari for Respondent.

Date of hearing: 24th September, 2014.

2016 M L D 80

[Lahore]

Before Amin-ud-Din Khan, J

Mst. BUSHRA BIBI and others---Petitioners

Versus

HIDAYATULLAH and others---Respondents

Civil Revision No.1633 of 2011, heard on 18th January, 2013.

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

----S.42---Suit for declaration---When share in the Khata has been transferred through mutation, then no question of transfer of specific property from joint Khata arises and if the purchasers are in possession of specific property, the remedy for the party lies anywhere else and a party cannot challenge the judgment and decree which has been passed in favour of that party.

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

----S.115---Revision---Scope---When findings were recorded in accordance with law and fact on record, then there is no need to interfere while exercising revisional jurisdiction.

Sardar Ghulam Baqir Dogar for Petitioners.

Ch. Riasat Ali for Respondent No.6.

Date of hearing: 18th January, 2013.

2016 M L D 91

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

ABDUL HAI through L.Rs. and others---Petitioners

Versus

SETTLEMENT AUTHORITIES and 16 others---Respondents

Writ Petition No.99-R of 2003, heard on 19th May, 2015.

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

----S.2(2)---Constitution of Pakistan, Art.199---Constitutional petition---'Big mansion'---Declaration---Earlier, matter was remanded to Notified Officer on the ground that Chief Settlement Commissioner did not declare the building in question as 'big mansion'---In post remand proceedings Notified Officer while relying upon parawise reply filed in earlier petition, found that Chief Settlement Commissioner had already declared the building as `big mansion'---Validity---Requirement was that a prior declaration by Chief Settlement Commissioner or an officer authorized by Central Government in such behalf to the effect that a building or premises whether residential or commercial, had been declared as a big mansion or Hotel to dispose of the same by unrestricted public auction---Such pre-requisite was not fulfilled and Notified Officer had acted only on presumptions and an annexure to earlier petition, which had been equated with a declaration specifically required under para 16 of the Schedule, which act had no legal sanction---Annexure in question could in no manner be termed as a declaration by Chief Settlement Commissioner or any Notified Officer by Central Government in such regard---Act of authorities in putting property in unrestricted public auction, in absence of any required declaration was unauthorized and illegal, the same had no legal sanction and was liable to be set aside---High Court declared auction proceedings irregular, unauthorized having no legal effect or bearing upon entitlement of persons in possession of the property to be considered as entitled to get the property, as the same were conducted without there being any required declaration---High Court declared that order passed by Notified Officer was passed without lawful authority and of no legal effect and the same was set aside---High Court directed that if occupants of the property, including the petitioners, would so apply, be considered for transfer of the properties in their possession in any capacity, which law permitted on the applicable terms and conditions---Petition was allowed in circumstances.

S.M. Tayyab for Petitioner (in W.P. No.99-R of 2003).

Sajjad Hussain for Petitioner (in W.P. No.138-R of 2003).

Mohammad Shahzad Shaukat for Petitioner (in W.P. No.154-R of 2003).

Syed Naghman Haider Zaidi for Respondents.

Sameer Ejaz for Settlement Department.

Date of hearing: 19th May, 2015.

2016 M L D 103

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Sh. AMIR FAROOQ---Petitioner

Versus

Sh. USMAN and others---Respondents

Writ Petition No.23846 of 2012, heard on 13th May, 2014.

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

----Ss. 7 & 15---Eviction petition---Grounds for eviction---Expiry of lease, default in payment of rent and causing damage to the demised property---Leave to contest, refusal of---Tenant failed to produce any receipt showing payment of rent for period in question---Tenancy agreement did not contain any target date for deposit of monthly rent---Under S.7 of the Punjab Rented Premises Act, 2009 where date of payment of rent was not mentioned in the tenancy agreement, tenant was required to pay or tender the rent not later than tenth (day) of the following month---Tenant did not comply with appellate court's order to deposit rent on the date fixed by the court---Even delay of one day was sufficient to hold the tenant as defaulter---Tenancy agreement had expired---Under S.7 of the Punjab Rented Premises Act, 2009 expiry of lease was one of the grounds of eviction---Filing of ejectment/eviction petition by landlord was sufficient to show that he was not willing to extend the period of tenancy agreement---Judgments of courts below did not call for interference---Constitutional petition was dismissed.

Muhammad Ali Tauqir v. Rafiq Ahmed 1999 CLC 795 rel.

Abid Saqi for Petitioner.

Azhar Aqeel Arain for assisted by Ch. Muhammad Yaqoob for Respondent.

Date of hearing: 13th May, 2014.

2016 M L D 124

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD HASHIM through L.Rs. and others---Petitioners

Versus

MUZAHAR HUSSAIN---Respondent

C.R. No.1567 of 2011, decided on 5th May, 2015.

Easements Act (V of 1882)---

----S.60---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Licensee, right of---Concurrent findings of facts by two courts below---Plaintiff initially claimed to be owner of suit house on the basis of alleged gift deed and will executed in his favour, and later on he claimed to be a licensee---Both the courts below concurrently dismissed suit and appeal filed by plaintiff---Plea raised by plaintiff was that court could grant relief if parties were entitled to it on facts ascertained in the case---Validity---Licence was permissible right as licensee was to hold licensed property purely on the behest of its grantor which could be revoked at any stage---Plaintiff got site plan sanctioned claiming himself to be the owner of property and then made somersault as an alternate plea was raised on the ground that he was a licensee whereas suit was based on document of alleged gift---Plaintiff himself admitted that he was not donee of suit property---Document on record did not prove that plaintiff was licensee---Facts ascertained in the case were condition precedent for grant of relief other than pleadings---Facts ascertained in the case were that plaintiff committed fraud and prepared two documents for becoming owner of suit property---Not an iota of evidence was available on record to show that plaintiff could be treated as licensee in terms of S. 60 of Easements Act, 1882---High Court declined to interfere in concurrent findings of facts by two courts below---Revision was dismissed in circumstances.

Mt. Manbi v. Kodu AIR 1929 Nagpur 269; Dinkarrao and others v. Shamrao and others AIR 1930 Nagpur 173; Din Muhammad another v. Subedar Muhammad Zaman 2001 SCMR 1992 and Abdul Sattar v. Mst. Sardar Begum and 12 others 1992 SCMR 417 ref.

Sh. Naveed Shahryar, Bashir Ahmad Mirza and Fayyaz Ahmad Kaleem for Petitioners.

Syed Aftab Sherazi for Respondent.

Date of hearing: 2nd April, 2015.

2016 M L D 135

[Lahore]

Before Amin-ud-Din Khan, J

SHAH MUHAMMAD---Petitioner

Versus

Mst. KHURSHID BEGUM and others---Respondents

C.R. No.698 of 2000, heard on 9th January, 2013.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---West Pakistan Land Revenue Act (XVII of 1967), S.42---Limitation Act (IX of 1908), Art. 120---Suit for declaration and injunction---Limitation---Mutation, assailing of---Revenue record---Parat Sarkar and Parat Patwar---Plaintiffs assailed mutation in question fourteen years after it was attested---Judgment and decree passed by Trial Court in favour of plaintiffs was maintained by Lower Appellate Court---Validity---Both the courts below had given preference to "Parat Patwar" against "Parat Sarkar" which was against law, as certified copy of "Parat Sarkar" of mutation was admissible in evidence and had evidentiary value against "Parat Patwar"---No cutting or over-writing in "Parat Sarkar" was found---Findings recorded by courts below with regard to mutation in question were not sustainable under law, therefore, were set aside---Plaintiffs claimed to have paid entire price for transfer of land and mutation in question was sanctioned and incorporated in revenue record, therefore, plaintiffs were bound under law to show that their suit was within prescribed period of limitation---Mutation was sanctioned on 9-9-1979 and suit was filed on 13-2-1993, which had been filed after about 14 years of attestation of mutation---Limitation provided for declaratory suit under residuary Art. 120 of Limitation Act, 1908, was applicable and limitation provided therein was six years, thus suit was time-barred---Findings of both the courts below with regard to limitation were against law, therefore, findings recorded by both the courts and judgments and decrees were set aside and suit filed by plaintiffs was dismissed---Revision was allowed in circumstances.

Syed Kaleem Ahmad Khurshid for Petitioner.

Mian Abdul Hayee for Respondents Nos. 1 to 7.

Respondent No.8 proceeded against ex parte.

Muhammad Nasir Chohan, A.A.-G. for Respondents Nos. 9 and 10.

Date of hearing: 9th January, 2013.

2016 M L D 158

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

BISE, GUJRANWALA and 2 others---Petitioner

Versus

AJMAL SAEED KHAN---Respondent

Civil Revision No.2658 of 2009, decided on 9th February, 2015.

Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)---

----Ss. 29 & 30---Proceedings taken by the Education Board, assailing of---Bar of jurisdiction---Scope---Charge-sheet was issued to the plaintiff/candidate against the allegation of impersonation in the examination and he was provided opportunity to defend himself---Plaintiff' instead of surrendering before the Education Board in pursuance of charge-sheet filed a suit calling in question the issuance of charge-sheet---Validity---Civil court had no jurisdiction to entertain the suit filed against any order made or proceedings taken by the Education Board---Persons aggrieved of any order made or proceedings taken by the Education Board could take protection of S.31 of Punjab Boards of Intermediate and Secondary Education Act, 1976 to institute a suit or to initiate any legal proceedings against the Education Board---Condition to take resort for such protection was that the act done or proceeding taken by the Education Board or any official or employee was not in good faith---Plaintiff had not extended any allegation in the plaint with regard to mala fide or lack of good faith on the part of Education Board in issuance of charge-sheet---Only charge-sheet was issued and had the plaintiff joined the proceedings then there was possibility that he would have been exonerated from the charges levelled against him if he succeeded in producing any plausible defence---Statutory proceedings were avoided and a suit which was barred under the law was filed---Civil court had no jurisdiction to entertain and adjudicate upon the suit filed by the plaintiff---Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed---Revision was accepted in circumstances.

Board of Intermediate and Secondary Education through Chairman and 3 others v. Javed Iqbal Bajwa 2005 YLR 2114; Board of Intermediate and Secondary Education Lahore through Chairman v. Ishrat Sultana 2001 YLR 66; Board of Intermediate and Secondary Education Lahore through Secretary v. Mst. Sobia Chand 1999 CLC 116; Education, Lahore through Secretary v. Mst. Ghazala Roohi 2002 MLD 1966 and Board of Intermediate and Secondary Education through Chairman v. Atif Riaz 2006 MLD 1378 rel.

Ali Masood Hayat for Petitioners.

Nemo for Respondent.

2016 M L D 175

[Lahore]

Before Erum Sajad Gull, J

SAQIB MUKHTAR---Petitioner

Versus

Syed MUHAMMAD SABTAIN BUKHARI and others---Respondents

Crl. Misc. No.18-Q of 2015, decided on 27th July, 2015.

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---

----Ss. 7 & 17----Criminal Procedure Code (V of 1898), Ss. 265-K, 200, 201 & 561-A---Penal Code (XLV of 1860), Ss. 454 & 427---Mischief of causing damage to amount of rupees fifty, lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment, haraabah---Proof of theft liable to hadd---Inherent powers of High Court---Scope---Quashment of proceedings---Power of court to acquit accused at any stage---Private complaint---Locus standi---Examination of complainant and victim---Duty of court---Complainant-tenant lodged FIR under Ss. 454 & 427, P.P.C. against accused, land owners, alleging them to have illegally broken locks of rented premises and stolen valuable articles lying there, which, after investigation conducted twice, was found to be false---Father of complainant filed private complainant under S. 17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and S. 201, Cr.P.C. against accused---Accused filed application under S. 265-K, Cr.P.C. for acquittal, which was dismissed by trial court---Held, that complainant of private complaint was neither victim nor he had been given any authority to file the complaint---Trial court, while dismissing application under S. 265-K, Cr.P.C., had not deliberated on violation of S. 7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---High Court observed that it was duty of trial court to scrutinize contents of private complaint and set aside impugned order, directed Trial Court to decide application under S. 265-K, Cr.P.C. afresh while keeping in view question of law "as to whether provisions contained in S. 7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 had been violated"---Petition was disposed of accordingly.

Ghulam Ali v. The State PLD 1986 SC 741 and Zafar and others v. Umer Hayat and others 2010 SCMR 1816 rel.

Waqar Azeem for Petitioner.

Ummul Baneen, Deputy District Public Prosecutor for the State.

Nemo for Respondent No.1.

2016 M L D 185

[Lahore]

Before Amin-ud-Din Khan, J

SHER MUHAMMAD and others---Petitioners

Versus

Mst. FATIMA and others---Respondents

Civil Revision No.523-D of 2007, heard on 16th June, 2015.

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

----S. 42---Limitation Act (IX of 1908), S. 3 & Art. 120---Civil Procedure Code (V of 1908), O. XVIII, R. 2----Qanun-e-Shahadat (10 of 1984), Art. 129---Suit for declaration on the basis of inheritance---Limitation, determination of---Faith/sect of deceased---Determination---Presumption as to Sunni faith---Applicability---Plaintiff not appearing as witness---Effect---Plaintiff filed suit claiming that her father was owner of suit land, and, after his death, she, along with her sisters, being the only legal heirs, alone were entitled to inherit said land as deceased belonged to Shia faith, and that suit land had wrongly been distributed through mutation of inheritance among daughters, widows and collaterals of deceased in accordance with Sunni faith---Both Trial Court and appellate court decreed the suit---Validity---Plaintiff witness, husband of one of daughters of deceased, who alleged to have led funeral prayer of deceased, was interested witness and same was, therefore, not helpful for plaintiff---Said witness admitted himself to be Sunni Muslim; he lived one mile away from residence of deceased and was also not from family or resident of the area where deceased lived---Said witness also admitted that deceased died about thirty-five years ago, whereas Imam Bargah was established in said area of residence of deceased about twenty-five years ago---Another plaintiff witness was attorney of plaintiff, who showed ignorance regarding attestation of inheritance mutation on alleged date---Said witness never stated that inheritance mutation was not in the knowledge of plaintiff before filing of present suit---Inheritance mutation, as per record, had been incorporated in revenue record, and after consolidation proceedings had been conducted later, mutation of distribution of suit land had also been attested, which showed that possession of suit land had been transferred to legal heirs---Said legal heirs had been enjoying possession for the last thirty-four years---Funeral prayer of deceased offered in accordance with any specific faith did not show that he was professing said faith, as after death it was not option of deceased as to by what faith his funeral prayer was to be offered---Plaintiff was required to prove that deceased was professing Shia faith as she had claimed in suit---All witnesses had given their opinion, and no evidence with regard to conduct of deceased had been brought on record---When plaintiff had opted not to appear as her own witness without any valid reason, presumption was against her---Janaza/funeral prayer was not a determining factor of faith of deceased---Conduct of deceased was relevant for determination of his faith---All Muslims were governed by Hanafi law unless proved to the contrary---Under Art. 120 of Limitation Act, 1908, limitation of six years was provided from date when right to sue had accrued---In the present suit, admittedly, right to suit had accrued from date of attestation of mutation of inheritance---Plaintiff had not denied that mutation had been attested in year 1967, and suit was filed in 2000---Suit was, therefore, barred by time---When pleadings had not been proved through evidence, no decree could have been passed in favour of plaintiff---Both courts below fell in error while recording their findings-High Court, allowing revision petition, set aside judgment and decree of courts below---Revision petition was accepted in circumstance.

Muhammad Islam v. Inspector-General of Police, Islamabad and others 2011 SCMR 8; Mst. Latifan Bibi and others v. Muhammad Bashir and others 2006 CLC 1076 and Mst. Rashidan Bibi through Legal Heirs v. Mst. Jantay Bibi through Legal and 2 others 2005 MLD 1202 rel.

(b) Pleadings---

----Proof of---When pleadings have not been proved through evidence, no decree can be passed in favour of plaintiff.

(c) Islamic Law---

----Faith---Presumption as to faith of a Muslim---All Muslims are governed by Hanafi law unless proved to the contrary.

Mst. Rashidan Bibi through Legal Heirs v. Mst. Jantay Bibi through Legal and 2 others 2005 MLD 1202 rel.

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

----O. XVIII, R. 2----Qanun-e-Shahadat (10 of 1984), Art. 129---Evidence, recording of---Plaintiff not appearing as her own witness---Effect---Court may presume existence of certain fact, etc.---When plaintiff has opted not to appear as her own witness without any valid reason, presumption was against her.

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

---S. 3----Under S. 3 of Limitation Act, 1908, it is duty of court to dismiss suit if same as been filed after prescribed period of limitation.

Muhammad Islam v. Inspector-General of Police, Islamabad and others 2011 SCMR 8 rel.

Sardar Ghazi Raza Khan for Petitioners.

Yafis Naveed Hashmi for Respondents.

Date of hearing: 16th June, 2015.

2016 M L D 203

[Lahore]

Before Raja Shahid Mehmood Abbasi, J

REHMAT KHAN---Appellant

Versus

ASHRAF KHAN and 3 others---Respondents

Crl. Appeal No.181 of 2013, heard on 15th July, 2015.

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

----Ss. 337-F (iii), 337-F (vi), 324, 148 & 149---Criminal Procedure Code (V of 1898), S.417---Mutafahimah, munaqqilah, attempt to commit qatl-i-amd, rioting armed with deadly weapon, every member of unlawful assembly guilty of offence committed in prosecution of common object---Appeal against acquittal---Appreciation of evidence---Injured victim medically not examined---Absence of medico-legal certificate---Effect---Absence of incriminating evidence---Benefit of doubt---Order of acquittal, presumptions as to---Basis for interference with order of acquittal---Accused were alleged to have injured complainant and another by firing at them with intention to kill---Trial court acquitted accused---Complainant had not been medically examined, and his medico-legal certificate had not been prepared---No other role had been attributed to accused---Incriminating evidence was not available on file against accused to connect them with commission of offence---Trial court had rightly concluded alleged occurrence as doubtful, and acquitted accused from charges extending benefit of doubt---Interference in appeal against acquittal and one against conviction was altogether different---Said difference of approach was mainly conditioned by fact that acquittal carried with it two well accepted presumptions: first, initial, that was, until found guilty, accused was innocent, and second, again after trial court below had confirmed assumption of innocence---Presumption of double innocence was attached to order of acquittal---Interference in appeal against acquittal was made only when it appeared that there had been misreading of evidence which had amounted to miscarriage of justice---Scope of appeal against acquittal was considerably narrow and limited---No infirmity or illegality was noticed so as to call for any interference with impugned judgment---One substantial doubt was sufficient to acquit accused---Impugned judgment did not suffer from any non-reading or misreading of evidence on record---Appeal was dismissed accordingly.

Muhammad Yaqoob v. Manzoor Hussain and 3 othrs 2008 SCMR 1549; Haji Paio Khan v. Sher Baiz and others 2009 SCMR 803; Muhammad Usman and 2 others v. The State 1992 SCMR 489 and The State v. Muhammad Sharif and others 1995 SCMR 635 rel.

(b) Criminal Trial---

----Benefit of doubt---Principles---One doubt is sufficient to acquit accused.

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

----Ss. 417 & 410---Appeal against acquittal and appeal against conviction---Scope and distinction---Order of acquittal---Presumption of double innocence---Interfered with order of acquittal ---Principles---Acquittal carries with it two well accepted presumptions: first, initial, that is, until found guilty, accused is innocent, and second, again after Trial Court has confirmed assumption of innocence---Presumption of double innocence is attached to order of acquittal---Interference in appeal against acquittal is made only when it appeared that there has been misreading of evidence which has amounted to miscarriage of justice---Scope of appeal against acquittal was considerably narrow and limited.

Malik Amjad Ali for Appellant.

Ch. Muhammad Akhtar Khan, Muhammad Waqas Anwar, DPG with Sajjad A.S.-I. for Respondents.

Date of hearing: 15th July, 2015.

2016 M L D 218

[Lahore]

Before Faisal Zaman Khan, J

Major (R) ABRAR HUSSAIN---Petitioner

Versus

JUDGE FAMILY COURT, LAHORE and others---Respondents

W.P. No.404 of 2015, decided on 12th January, 2015.

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

---Ss. 5, Sched. & 14---Muslim Family Laws Ordinance (VIII of 1961), S.7---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Divorce---Appeal---Scope---Wife filed suit for dissolution and cancellation/termination of marriage in the light of divorce deed which was decreed by the Family Court---Contention of husband was that Family Court could not pass declaration as asked for and notice for divorce had been subsequently withdrawn---Validity---Husband had right to withdraw the notice of divorce within 90 days which he had failed to do---Divorce had become effective and irrevocable and matrimonial bond had come to an end on expiry of 90 days---Question of dissolution of marriage should be raised and adjudicated upon before and by the Family Court---Right of appeal had been provided to a person who was aggrieved of a decision given or a decree passed by Family Court---Family Court had given declaration qua the non-existence of marriage inter se parties---Impugned judgment and decree passed by the Family Court being appealable, constitutional petition was not maintainable---Constitutional petition was dismissed in limine.

M. Salahuddin Khan v. Muhammad Nazir Siddiqi and others 1984 SCMR 583; M. Zikria Khan v. Aftab Ali Khan and another PLD 1985 Lah. 319; Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and M. Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969 rel.

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

----S. 5, Sched.---Jurisdiction of Family Court---Scope---Family Court had exclusive jurisdiction to entertain, hear and adjudicate upon the matters specified in Part-1 of the Schedule of West Pakistan Family Courts Act, 1964 which would include dissolution of marriage.

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

----S. 14---Appeal---Scope---Right of appeal had been provided to a person who was aggrieved of a decision given or a decree passed by Family Court.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Constitutional petition would not be maintainable in view of the availability of alternate remedy.

Moeen Ahmad for Petitioner.

2016 M L D 236

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD IBRAHEEM and others---Petitioners

Versus

ABDUL REHMAN and others---Respondents

Civil Revision No.112-D of 1998, decided on 8th December, 2014.

Islamic Law---

----Inheritance---Gift---Will---Scope---Inheritance mutation was sanctioned after the demise of predecessor in interest of the parties in compliance of S. 42 of West Pakistan Land Revenue Act, 1967---Legal heirs of the deceased including plaintiff and defendants/respondents were mentioned in the inheritance mutation---Gift mutation had been entered on the basis of a Will along with Tamleek allegedly made by predecessor in interest of the parties---Both the documents of Will/ Wasiatnama or gift/Tamleek were never produced by the defendants which were not on record in any shape---Defendants had not produced and proved the documents of Wasiatnama/Will and Tamleek and had failed to prove the factum of gift and Will, made in their favour, by any cogent or confidence inspiring and independent evidence---Impugned gift mutation was illegal, unlawful, void ab initio and having no legal effect in the eye of law---Defendants, in order to deprive other legal heirs, with the connivance of Revenue Staff had succeeded to manage the entry of gift mutation---Such act of defendants was not only against law but also against the ordain of Allah, the Almighty---Revision was allowed with cost throughout, in circumstances.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Vakil Ahmad Siddiqui v. State Life Insurance Corporation of Pakistan and another 2011 CLC 2002; Muhammad Bakhsh v. Ellahi Bakhsh [Deceased] through Umar Khan and others 2003 SCMR 286; Manzoor Hussain and 3 others v. Muhammad Siddique 2000 CLC 623; District Evacuee Trust Committee, Hyderabad v. Ismail and 4 others 1990 SCMR 20; Arbab Jamshed Ahmad and another v. Ghazan Khan and others 1995 CLC 695; Muhammad Hafeez v. Muhammad Hanif Khan and another 1991 MLD 1576 and Muhammad Tufail and 4 others v. Mst. Muhammad Bibi alias Mahadan Law Notes 1967 (W.P.) Lah. 60 ref.

Manzoor Hussain and 3 others v. Muhammad Siddique 2000 CLC 623; District Evacuee Trust Committee, Hyderabad v. Ismail and 4 others 1990 SCMR 20; Arbab Jamshed Ahmad and another v. Ghazan Khan and others 1995 CLC 695; Muhammad Hafeez v. Muhammad Hanif Khan and another 1991 MLD 1576 and Muhammad Tufail and 4 others v. Mst. Muhammad Bibi alias Mahadan, Law Notes 1967 (W.P.) Lah. 60 distinguished.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Vakil Ahmad Siddiqui v. State Life Insurance Corporation of Pakistan and another 2011 CLC 2002 and Muhammad Bakhsh v. Ellahi Bakhsh [Deceased] through Umar Khan and others 2003 SCMR 286 rel.

Mian Habib-ur-Rehman Ansari for Petitioners.

Muhammad Javed Iqbal Khan Jaffer for Respondent No.1.

2016 M L D 242

[Lahore]

Before Abdus Sattar Asghar, J

SHAMIM AKHTAR---Petitioner

Versus

DISTRICT JUDGE and others---Respondents

Writ Petition No.29827 of 2014, decided on 12th November, 2014.

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

----Ss. 5, Sched. & 7(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of bridal gifts---Wife filed a suit for recovery of bridal gifts which was decreed partially by the Family Court but same was dismissed by the Appellate Court---Validity---Wife had instituted a suit for recovery of maintenance allowance, expenses of delivery of minor and dowry articles against husband prior to filing of present suit---Wife had not mentioned details of bridal gifts allegedly in possession of husband in the said suit---Bridal gifts would fall within the ambit of "personal property" and belongings of wife which would confer exclusive jurisdiction upon the Family Court to hear the claim of such matters---Plaint for dissolution of marriage might contain all claims with regard to dowry, maintenance, dower, personal property and belongings of wife, custody of children and visitation rights of parents to meet their children---No bridal gift was in the possession of husband, as if any such gift was in his possession, wife would have claimed recovery of the same at the time of filing of earlier suit---Wife had intentionally relinquished her claim for recovery of bridal gifts, if any, at the time of filing of earlier suit---Appellate Court had rightly formulated the opinion that claim of wife with regard to recovery of bridal gifts appeared to be an afterthought---No legal infirmity, jurisdictional error or perversity was found in the impugned judgment and decree passed by the Appellate Court---Constitutional petition was dismissed in limine.

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

----S. 5, Sched.---"Personal property and belongings of wife"---Scope.

Muhammad Akram v. Hajra Bibi PLD 2007 Lah. 515 and Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Findings on fact recorded by a competent court in exercise of lawful jurisdiction could not be agitated by invoking constitutional jurisdiction unless same suffered from any infirmity, jurisdictional error or perversity causing serious miscarriage of justice.

Ch. Muhammad Zafar Iqbal for Petitioner.

2016 M L D 261

[Lahore]

Before Ch. Mushtaq Ahmad, J

MUHAMMAD YAR alias MAMI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.654 of 2006, heard on 25th June, 2015.

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

----Ss. 302, 322 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, Qatl-bis-sabab, common intention---Power to examine accused---Duty of prosecution as to proof---Prosecution failing to prove charge against accused---Effect---Statement of accused recorded under S. 342, Cr.P.C.---Scope---Appreciation of evidence---Death of deceased was admitted to have resulted from accident---Admission treated as exculpatory statement---Accused, along with two others, was alleged to have killed deceased by injuring him with butt of gun and sotas---Trial court, disbelieving prosecution story, acquitted accused from charge under S. 302, P.P.C., but convicted and sentenced him under S. 322, P.P.C. making him liable to pay Diyat on ground that accused had admitted during his statement recorded under S. 342, Cr.P.C. that alleged occurrence was a road accident---Accused, during his statement under S. 342, Cr.P.C., had stated that deceased's buffalo, having become scared due to light of motorcycle, had run over his motorcycle, and as a result thereof, all present there had sustained injuries---Medical witness, who examined deceased, had supported said statement of accused---Accused had not admitted his guilt; rather his statement was exculpatory in nature---Prosecution was bound to prove charge against accused beyond reasonable doubt---Where prosecution version was disbelieved, statement of accused was to be considered as a whole and not in piecemeal---Conviction recorded by Trial Court was not sustainable---Accused was acquitted---Appeal was allowed accordingly.

(b) Criminal trial----

----Duty of prosecution to prove charge against accused beyond reasonable doubt.

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

----S. 342---Power to examine accused---Statement of accused, appreciation of---Where prosecution version is disbelieved, statement of accused is to be considered as a whole and not in piecemeal.

Syed Badar Raza Gillani for Appellant.

Hassan Mehmood Khan Tareen, Deputy Prosecutor General for the State.

Muhammad Sharif Karkhi Kherra for the Complainant.

Date of hearing: 25th June, 2015.

2016 M L D 274

[Lahore]

Before Hafiz Shahid Nadeem Kahloon, J

NASIR WAHEED---Petitioner

Versus

MINISTRY OF INTERIOR through Secretary and others---Respondents

Writ Petition No.6189 of 2015, decided on 26th June, 2015.

Exit from Pakistan (Control) Rules, 2010---

----R. 2(3)(c)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Conviction under S.9(b) of Control of Narcotic Substances Act, 1997---Insertion of name in the Exit Control List---Ingredients---Petitioner was convicted under S.9(b) of Control of Narcotic Substances Act, 1997 for having heroin weighing 135-grams---Passport of petitioner was held by the Government on the basis of said conviction---Validity---Petitioner, after serving out his entire sentence went abroad---No proceedings to include the name of petitioner in the Exit Control List was initiated during such period---Government had inserted the name of petitioner in the Exit Control List after lapse of considerable time of his release---No adverse material qua the activities of the petitioner was on record---Petitioner never remained member of any international gang or group of smugglers in respect of narcotics---Petitioner had to be convicted by competent court of law for insertion of his name in the Exit Control List---Petitioner had served out entire sentence awarded to him by the court of law---Government might insert the name of person in the Exit Control List who was convicted for drug trafficking---Inserting name of petitioner in Exit Control List for 5-years was harsh punishment---Period already undergone by the petitioner would meet the ends of justice---Government was directed to exclude/remove the name of petitioner from Exit Control List forthwith and hand over travelling documents to him immediately---Constitutional petition was allowed in circumstances.

Sh. Muhammad Mansoor v. Government of Pakistan through Secretary, Ministry of Interior and 3 others 2008 MLD 955; Sohail Latif and 2 others v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 2 others PLD 2008 Lah. 341; Dr. Rukhshanda Parveen v. Federation of Pakistan and others PLD 2008 Isl. 5 and Naveed Zaheer v. Federal Government of Pakistan, and others 2008 CLC 1607 ref.

Mehmood-ul-Hassan Bhatti for Petitioner.

Rana Zafar Iqbal, Standing Counsel for Respondents.

Tariq Saleem Sheikh, Special Prosecutor for ANF.

2016 M L D 284

[Lahore]

Before Khalid Mahmood Malik, J

AASHIQ MUHAMMAD---Petitioner

Versus

MUHAMMAD SHARIF---Respondent

Civil Revision No.885 of 2005, heard on 2nd July, 2015.

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

----O. XXI, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Consent decree---Execution petition---Objection application---Payment out of court---Requirement---Consent decree was passed and plaintiff was directed to pay the remaining consideration amount within 15 days otherwise suit was ordered to have been dismissed---Decree-holder filed execution petition wherein objection application was moved that remaining consideration amount had not been paid---Contention of decree-holder was that remaining consideration amount had been paid outside the court---Objection petition was accepted concurrently---Validity---Remaining consideration amount had not been paid in the court which was allegedly paid to the judgment-debtor out of the court---Decree-holder had not fulfilled the requirement of O.XXI, R.2, C.P.C.---Where law required an act to be done in a particular manner, it had to be done in that manner alone and such dictate of law could not be termed as a technicality---No illegality, irregularity or misreading and non-reading of evidence had been pointed out in the impugned orders---Revision was dismissed in circumstances.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Scope of revisional jurisdiction of High Court was narrow---High Court could not disturb concurrent findings of facts in revisional jurisdiction unless same were result of misreading or non-reading of evidence or contrary to settled law.

Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373 and Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 rel.

(c) Administration of justice---

----Where law required an act to be done in a particular manner, it had to be done in that manner alone and such dictate of law could not be termed as a "technicality".

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

Mian Habib-ur-Rehman for Petitioner.

Muhammad Ashraf Qureshi for Respondent.

Date of hearing: 2nd July, 2015.

2016 M L D 294

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

SADAF BIBI---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No.6123-Q of 2015, decided on 7th May, 2015.

Penal Code (XLV of 1860)---

----Ss. 496-A, 420, 468, 471 & 494---Constitution of Pakistan, Arts.35 & 199---Constitutional petition---Maintainability---Enticing or taking away or detaining with criminal intent a woman, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Marrying again during

life time of husband---Quashing of FIR---Constitutional petition, earlier filed by the petitioner for the same relief, was disposed of by the High Court, observing that matter involved factual controversy which could not be resolved by High Court in its constitutional jurisdiction---Present petition was second petition on the same subject by the petitioner, which was barred by law and the principle of res judicata---Trial of the case being pending before the competent court, petitioner had alternate remedy in the form of filing application under S.249-A, Cr.P.C.---Petition was dismissed being not maintainable, in circumstances.

Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others 2012 SCMR 366;Mirza Muhammad Yaqub v. The Chief Settlement Commissioner, Lahore, and Syed Sadiq Hussain Zaidi PLD 1965 SC 254; Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969 and Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401 ref.

Malik Saeed Hassan for Petitioner.

Muhammad Afzal Shah for Respondent No.4.

Ch. Iftikhar Iqbal Ahmad, Assistant Advocate General.

Aslam, S.I.

2016 M L D 307

[Lahore]

Before Shahid Hameed Dar, J

FARYAD ALI alias MUHAMMAD NAWAZ---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.7112-B of 2014, decided on 12th June, 2014.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.376 & 511---Rape and attempt to rape---Pre-arrest bail, grant of---Different statements---Complainant alleged in FIR that accused tried to commit Zina-bil-Jabr with her daughter but in her supplementary statement she stated that accused had forcibly raped her daughter---Prosecution witnesses followed same line in their secondary statements to the effect that accused had committed Zina-bil-Jabr with daughter of complainant---Validity---Such was a queer situation as to which of the statements the first one or the secondary of the complainant, alleged victim and of eyewitnesses was correct, could not be pointed at bail stage---Alleged victim was medically examined fourteen days after alleged occurrence and doctor found it an old case of rape as hymen of examinee was torn at multiple places and looked healed old---Alleged victim's medico-legal report showed that she was accustomed to act of coitus---No one could know that it was a consenting affair as to involvement of accused in sex play with alleged victim---Probability could not be ruled out that accused might have been falsely involved in case due to maliciousness and mala fides on the part of complainant---Pre-arrest bail was confirmed in circumstances.

Khadim Hussain Sidhu for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General and Khalid A.S.-I. for the State.

Muhammad Irfan Afzal for the Complainant.

2016 M L D 323

[Lahore]

Before Shahid Waheed, J

JAMIL AHMAD and others---Appellants

Versus

MUHAMMAD RAFIQUE and others---Respondents

R.S.A. No.184 of 2005, heard on 7th April, 2014.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for specific performance of contract---Agreement to sell, proof of---Attesting witness---Scope---Contention of defendants was that agreement to sell could not be used as evidence until two attesting witnesses of the same had been called for the purpose of proving execution of such agreement---Suit was decreed concurrently---Validity---Agreement to sell was required to be attested by two witnesses under Art. 17 of Qanun-e-Shahadat, 1984---Document should not be used as evidence until two attesting witnesses were called for proving the execution of the same if such document was required to be attested---Plaintiff was bound to examine at least two attesting witnesses of agreement to sell in order to prove the execution of the same---Scribe of a document could only be a competent witness if he had put his signatures as an attesting witness upon such document and not otherwise---Plaintiff was required to prove agreement to sell under Arts. 17 & 79 of Qanun-e-Shahadat, 1984 for getting a decree in his favour---Plaintiff had produced scribe of agreement to sell and identifier---Evidence of scribe was not sufficient to prove agreement to sell as he had neither attested the same as attesting witness nor he had given any note on such agreement that transaction was concluded and payment was made in his presence---Scribe could not be given the status of attesting witness in such circumstances---Decree could not be passed in favour of plaintiff as agreement to sell had not been proved by producing requisite number of attesting witnesses of said document---Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed---Appeal was accepted in circumstances.

Hafiz Tasadduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241 rel.

Mian Dilawar Mahmood for Appellants.

Ch. Muhammad Anwar Bhindar for Respondent.

Date of hearing: 7th April, 2014.

2016 M L D 337

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD FAAZAL---Appellant

Versus

ABDUL HAMEED MUGHAL and others---Respondents

R.S.A. No.221 of 2010, heard on 28th April, 2014.

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

----S. 29---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Sale of property of minors by the mother of minors not duly appointed or having prior permission of court---Effect---Unilateral agreement---Scope---Contention of minors-defendants was that agreement to sell was executed by their mother which was not binding upon them and said agreement being not signed by one of the parties was not enforceable---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Mother was not an appointed guardian of minors-defendants from competent court of law---Suit property had been sold by mother of minors-defendants who were less than 18 years of age---Mother of minors-defendants could not validly enter into sale contract on their behalf and same was void ab initio having no legal existence---No rights or liabilities would arise in favour of vendee from such void transaction which could neither be enforced nor set up as a valid defence plea to claim right or title---Invalidity of such transaction would arise from a legal incapacity which was incurable---Such sale was void and not voidable---Sale of property of minors-defendants by their mother as a defecto guardian was not "sale" in the eye of law---Such "sale" would be invalid unless guardian had obtained permission from the court of law to sell out the said property after her appointment as a guardian---Court was not bound to grant leave to dispose of property of minors to an appointed guardian unless benefit or welfare of minor was proved for the same---Alleged agreement to sell had been executed by the mother on behalf of minors-defendants without prior permission of court which was void and plaintiff could not seek enforcement of such agreement---Minors-defendants could not be burdened with liability of void contract---Impugned agreement to sell was unilateral having not been signed by the plaintiff which was not enforceable under the law---No grounds of second appeal had been made out by the plaintiff---Second appeal was dismissed in circumstances.

2004 SCMR 729; 2003 CLC 1058; PLD 2006 Lah. 571 and 2009 SCMR 114 ref.

2004 SCMR 729; 2003 CLC 1058; PLD 2006 Lah. 571 and 2009 SCMR 114 Distinguished.

2000 SCMR 961; PLD 1994 SC 674; 2008 SCMR 352; 2010 SCMR 334 and 2013 YLR 1017 rel.

(b) Words and phrases---

----"Agreement of sale and agreement to sell"---Meaning---"Agreement of sale" was not merely an obligation to sell but an obligation on the part of other party to purchase while "agreement to sell" was simply an obligation on the part of vendor or promisor to complete his promise of sale.

Black's Law Dictionary and Hafiz Tassadiq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241 rel.

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

----S. 100---Second appeal---Scope---High Court could interfere if courts below had committed error of law or error in procedure which might have affected decision of the case upon merits or findings recorded by the courts below were not supported by evidence on record but same were the result of surmises and conjectures as a result of fallacious appraisal of evidence.

Khurram Hussain for Appellant.

Muhammad Rafique Chaudhary for Respondent No.1.

Shahbaz Siddique for Respondents Nos. 2 to 6.

2016 M L D 349

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

LAHORE REGENCY (PVT.) LTD.---Petitioner

Versus

WYNDHAM HOTEL and others---Respondents

C.R. No.1183 of 2012, decided on 11th February, 2015.

Civil Procedure Code (V of 1908)---

----O. I, R. 10 & O. VII, R. 11---Suit for damages---Impleadment of parties---Rejection of plaint---Names of defendants were deleted from suit and plaint was rejected to their extent---Validity---Plaintiff, a private limited company filed suit for damages on ground that defendants, foreign companies, had failed to fulfil their part of undertaking as agreed upon through a Letter of Intent, and other defendants were franchise holders, had represented said foreign companies in Pakistan---Defendants, franchise holders, filed application under O. I, R. 10 and O. VII, R. 11, C.P.C. on the ground that they were neither privy to the contract between plaintiff and the foreign companies, nor were they representing them in Pakistan, which was allowed by Trial Court and their names were deleted from array of defendants---Plaintiff contended that defendants, franchise holders, being representative agents were liable to pay decretal amount, in case the suit was decreed---Validity---No agreement existed between plaintiff and defendants, franchise holders, who had stated that they were not agents of defendants, foreign companies, and being franchise holder, they were only their licensee---Plaintiff could not implead the franchise holders, as there was no grievance against them---Present suit was, therefore, not maintainable against the franchise holders---High Court observed that plaintiff might got attached franchise fee payable to defendants, foreign companies by defendants, franchise holders, in case present suit was decreed---Revision petition was dismissed in circumstances.

Tariq Iqbal for Petitioner.

Syed Hassan Ali Raza and Asad Javed for Respondents Nos.1 and 2.

Hafeez-ur-Rehman Ch. for Respondent No.3.

Rustam Khan Parhar for Respondent No.4.

2016 M L D 355

[Lahore]

Before Amin-ud-Din Khan, J

ZAHID HUSSAIN SHAMIM and others---Petitioners

Versus

PROVINCE OF PUNJAB through Collector and others---Respondents

Civil Revision No.566 of 2008, heard on 27th November, 2012.

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

----S.12---Colonization of Government Lands (Punjab) Act (V of 1912), Ss.10 & 30---Suit for specific performance of sale agreement---Allotment of tenancy rights in State land---Agreement in favour of plaintiff related to such land, wherein proprietary rights were yet to be conferred upon defendant---Suit filed against defendant and Province of Punjab decreed by Trial Court against private defendant only---Decree not challenged in appeal by private defendant---Decree set aside by Appellate Court in appeal filed by Province---Validity---Private defendant had not contested revision filed by plaintiff---Province was not party to such agreement, thus, plaintiff could not pray for its enforcement against Province---Trial Court had passed decree in terms of such agreement---Court could not ask private defendant to pass a better title than he himself had in suit land---Province had no right to file appeal for not being aggrieved by such decree, which had only declared rights in suit land in favour of plaintiff and against private defendant---Province, if had any objection, could agitate the same during execution of such decree---Appeal filed against such decree was not competent---High Court set aside order of Appellate Court and restored that of Trial Court in circumstances.

Hakim Khan v. Aurangzeb and another PLD 1975 Lahore 1170 and Qazi Shamsur Rehman and another v. Mst. Chaman Dasta and others 2004 SCMR 1798 ref.

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

----S.12---Decree in suit for specific performance of sale agreement---Effect---Such decree would declare maturity of contract between parties---Rights in property would be created by execution of such decree.

(c) Administration of justice---

----Procedural defects by court could not affect rights of a party---Such defects for being curable would not come to the roots of a case.

Miss Kishwar Naheed for Petitioners.

Rana Shamshad Khan, Assistant Advocate General for Respondent No.1.

Respondents Nos. 2-13 exparte.

Date of hearing: 27th November, 2012.

2016 M L D 370

[Lahore]

Before Mahmood Ahmad Bhatti, J

MUHAMMAD HANIF and another---Petitioners

Versus

Mst. RAZIA BIBI and another---Respondents

C.R. No.409 of 2014, decided on 10th April, 2014.

Contract Act (IX of 1872)---

----S. 25---Suit for declaration---Illiterate person---Scope---Contention of plaintiffs was that impugned mutation was outcome of fraud and misrepresentation---Suit was decreed concurrently---Validity---Plaintiffs were real sisters of defendants who were living in another district---Plaintiffs did not have any independent advice at the time of attestation of impugned mutation---Defendants had failed to prove as to where, when and how the transaction in question was made---Payment of sale consideration to the plaintiffs could not be proved by the defendants---No agreement could come into being without the payment of consideration---Impugned transaction was result of fraud and misrepresentation, plaintiffs should have ensured the presence of their husbands or sons for completion of transaction---Even admission of affixing thumb impression on the document by an illiterate would not lead to the conclusion that he/she had admitted the execution of transaction---No misreading or non-reading of evidence had been pointed out---Revision was dismissed in limine.

Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai PLD 2005 SC 658; Amirzada Khan and another Itbar Khan and others 2001 SCMR 609 and Ghulam Muhammad v. Farooq Ahmed and others 2002 SCMR 1801 rel.

Muhammad Younas Sheikh for Petitioners.

2016 M L D 380

[Lahore]

Before Shahid Hameed Dar and Muhammad Tariq Abbasi, JJ

MUHAMMAD RAASHID---Petitioner

Versus

The STATE and others---Respondents

Crl. Misc. No.6080-B of 2014, decided on 23rd September, 2014.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 337-F(i)(iii)(vi), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, causing damiyah, Mutalahimah, Munaqqilah, rioting, common object, act of terrorism---Pre-arrest bail, grant of---FIR showed that only indiscriminate firing was attributed to accused---Accused was alone at his shop, when his rival party, consisted of five nominated and two unknown persons attacked him---Due to firing of the opposite party, accused sustained as many as seven fire shot injuries, out of which one was Jurh Jaifah---Question whether accused, while making return firing had committed any offence or not was to be determined at the trial---Whether the minor girl or her father were present at the spot, or she had sustained any injury during the occurrence was not mentioned in the FIR---Statements of said persons whereby they stated that injury at the foot of baby was inflicted by accused were recorded on the third day of alleged occurrence---Fact that when indiscriminate firing was being made from both the sides, how it was noted that injury to the baby had been caused by accused---Said witnesses, seemed to have been purposely introduced to falsely involve accused in the case---Complainant and other witnesses sworn affidavits, whereby they exonerated accused from alleged act of firing---Trial Court did not give any importance to the affidavits---Present case was that of two versions; and correct version could only be hinted at and pointed to during the course of trial---Case of accused was one of further inquiry, entitling him to concession of bail---Ad interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Abdul Razzaq Yunas for Petitioner.

Khurram Khan, Deputy Prosecutor General and Ashraf S.I. for the State.

Rao Muhammad Asghar for the injured.

2016 M L D 389

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD ASHRAF alias MAKKHAN---Appellant

Versus

MUHAMMAD AKRAM---Respondent

F.A.O. No.73 of 2015, decided on 23rd June, 2015.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Trade Marks Ordinance (XIX of 2001), S.21---Registration of trade mark subject to disclaimer---Interim relief, grant of---Plea raised by plaintiff was that he had registered trade mark in his favour due to which he had exclusive right over the use of word "Makkhan"---Trial Court declined to grant temporary injunction in favour of plaintiff---Validity---Disclaimer could limit the extent of exclusive rights, which a registration might give to a trade mark owner---In view of the disclaimer, it was manifest that plaintiff had himself disclaimed any exclusive right to the words "Makkhan Sweets & Bakers"---In absence of having any exclusive right on the use of word "Makkhan", plaintiff was not entitled to be considered to have made out a "prima facie case" on the basis of registration in question---Plaintiff failed to show that he has a prima facie case and balance of convenience was also in his favour and that he would suffer an irreparable loss by continuation of business by defendant by selling his goods under the word "Makkhan"---Order passed by Trial Court was within its legal boundary and High Court declined to interfere therein---Appeal was dismissed in circumstances.

Messrs Tabaq Restaurant v. Messrs Tabaq Restaurant 1987 SCMR 1090 ref.

Abdul Karim for Appellant.

Muhammad Khalil Haider for Respondent.

2016 M L D 398

[Lahore]

Before Qazi Muhammad Amin Ahmed, J

MUHAMMAD ARIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.105 and Criminal Revision No.79 of 2007, heard on 21st May, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Apparently perfect structure of the case, notwithstanding, prosecution case warranted a careful scrutiny for more than one reason---Information shared by prosecution witnesses about the whereabouts of deceased at the time of incident was not palatable and did not reflect an usual conduct; and if such information was to be excluded from consideration; then there was no reason left for the prosecution witnesses to witness the occurrence---Arrival of all three prosecution witnesses at the place of occurrence and specially at the time of incident was a coincidence which seldomly occurred---Even otherwise in absence of any special circumstance there was no reason for witnesses to set out in search for deceased---Narrative precision no matter how impressively articulated, alone could not form basis for conviction on capital charge unless fit in the ambit of probability---Recovery did not advance prosecution case as no casings were found from the spot and resultantly no comparison with the gun was possible---Motive did not provide structural support to prosecution and therefore there were doubts lurking over the case and such doubts were neither illusory nor imaginary rather rooted in stated position of prosecution---Benefit of doubt could not be denied to accused on the ground that he is sole accused in FIR---Whether there was a single accused or a group of accused, all were to be adjudged alike on the touchstone of probability and truthfulness---Accused was acquitted and appeal was allowed accordingly.

Malik Muhammad Saleem for Appellant.

Mirza Abid Majeed, D.P.G. for the State.

Nemo for the Complainant.

Date of hearing: 21st May, 2015.

2016 M L D 414

[Lahore]

Before Aslam Javed Minhas, J

MUHAMMAD UBAIDULLAH---Petitioner

Versus

The STATE and others---Respondents

C.M. No.1 of 2015 in Crl. Appeal No.695 of 2012, decided on 8th July, 2015.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-i-amd, common intention---Suspension of sentence, pending appeal---Appeal against judgment of the Trial Court was filed after about two months, and since then more than two years and eight months had elapsed, but appeal had not been decided finally and accused was behind the bars after pronouncement of the impugned judgment---Delay in disposal of appeal, could not be said to have been caused by accused---Accused, in circumstances, had earned statutory right under S.426(1-A)(c), Cr.P.C., which underlined that, convict would be entitled to grant of bail through suspension of sentence, if he had been sentenced for imprisonment for life or exceeding seven years imprisonment and his appeal was not decided within a period of two years---Appeal of accused, was not likely to be decided finally in near future---Prosecution could not point out any material against accused, which would show that he was hardened, desperate and dangerous criminal---Further captivity of accused in jail, would not serve any useful purpose to the prosecution---Accused was entitled to be released on bail by suspending his sentence on statutory ground---Sentences of accused, were suspended, and he was released on bail, in circumstances.

Malik Sajjad Haider Maitla for Petitioner.

Farhan Siddique for the Complainant.

Ch. Muhammad Akbar, DPG for the State.

2016 M L D 420

[Lahore]

Before Shahid Bilal Hassan, J

ALLAH DITTA---Petitioner

Versus

MUHAMMAD ASHIQUE and others---Respondents

C.R. No.2089 of 2007, heard on 27th May, 2015.

Gift---

----Suit for declaration and permanent injunction---Gift mutation---Burden of proof---Non-production of one of the marginal witnesses---Legal effect and presumption---Non-production of Roznamcha Waqiati for proof of entry of gift mutation---Effect---Dispossession from property after delivery of possession---Proof---Plaintiffs filed suit for declaration and permanent injunction challenging validity of gift mutation executed in name of defendant by father of plaintiffs----Trial Court dismissed the suit, and appellate court upheld decree and judgment of Trial Court---Validity---Beneficiary of gift, oral or written, was under burden to prove that the same had been validly executed after fulfilment of all three ingredients that were offer, acceptance and delivery of possession---Defendant had alleged forcible dispossession from suit property after delivery of possession, but he could not bring anything on record that he had been forcibly dispossessed by plaintiffs---Defendant witnesses, apart from being contradictory, failed to mention date of dispossession in their statements and the same, therefore, could not be relied upon---Statement of defendant regarding dispossession was self-made and the same was not trustworthy---Thumb impressions on gift mutation were not proved---Roznamcha Waqiati was not produced to prove entry of gift mutation---One of marginal witnesses was not produced before Trial Court whose statement was necessary under Arts.17 & 79, Qanun-e-Shahadat, 1984, which provided that in order to prove document, production of two truthful witnesses was sine qua non---Adverse presumption could be drawn for that if the marginal witness had appeared in court, he would not have supported stance of defendant---Revision was time-barred as the same had been filed beyond period of ninety days---Findings on facts by Trial Court could not be interfered with by revisional court---Revisional court only had to see whether any material illegality, irregularity or wrong exercise of jurisdiction had been committed by Trial Court below---Both courts below had appreciated oral and documentary evidence in true perspective and no misreading and non-reading had been committed, and the same could not be interfered with in revisional jurisdiction---Revision petition was dismissed.

Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Jamshaid Ali Khan and another v. Ghulam Sayed and another, 2014 YLR 301; Muhammad Khan v. Messrs Murree Brewery Company Ltd. and others, 2014 YLR 1467; Noor-ul-Haq and others v. Liaqat Shah, 2014 YLR 1469; Bashir Ahmed Mirza v. Kamaluddin Alvi and others, 2014 YLR 1097; Ghulam Muhammad and another v. Mian Abdul Karim through L.Rs., 2014 YLR 774; Rab Nawaz and others v. Ghulam Rasul, 2014 SCMR 1181; Haider Ali Khan and another v. Razia Begum and others, 2014 MLD 766; Naimat Ullah v. Faizullah Khan, 2014 MLD 878; Muhammad Akbar v. Mst. Suraya Begum and others, 2014 MLD 1080; United Bank Limited and others v. Noor-Un-Nisa and others, 2015 SCMR 380; Allah Dino and another v. Muhammad Shah and others, 2001 SCMR 286; City District Government, Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin, 2006 SCMR 676; Mst. Naeema Jehan v. Mst. Akbari and 4 others, 2014 YLR 116; Muhammad Iqbal and others v. Bagh Ali and others, 2010 YLR 1908; Dilbad Shah v. S.Rehmat Shah and others, PLD 2007 Pesh. 103 and Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 ref.

Ch. Muhammad Yousaf for Petitioner.

Ch. Zahid Javed for Respondents Nos.1 to 7.

Muhammad Nasir Sheikh and Muhammad Zia ud Din Ansari for Respondents Nos. 9(ii) to 9(vi).

Date of hearing: 27th May, 2015.

2016 M L D 438

[Lahore]

Before Shahid Jamil Khan, J

FARYAL NOUREEN---Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, SARGODHA and others---Respondents

Writ Petition No.29040 of 2015, decided on 19th October, 2015.

Intermediate Examination Rules of Board of Intermediate and Secondary Education, Sargodha---

----R. 17(1)---Constitution of Pakistan, Art. 25---Improvement of marks---Reappearing in examination---Reasonable classification, principle of---Petitioner reappeared in intermediate examination Part-II to improve her result but revised result card was not issued to her on the ground that she did not appear in practical examination of one subject---Validity---Provisions of R. 17 of Intermediate Examination Rules of Intermediate and Secondary Education, Sargodha, spoke about discretion given to candidate but it did not carry specific provision of issuing improved result card if a candidate would improve marks in some of the subjects and remained unsuccessful in any other or did not appear in any of the subjects---Omission to prescribe a procedure should not be taken as prohibition---Candidates who opted to improve marks should fall under one classification and could not be subdivided into classes merely for selecting subjects differently---Equal protection of law meant that all persons equally placed be treated alike both in privileges conferred and liabilities imposed---High Court directed the authorities to issue Revised/Improved Marks Result Card to petitioner of the subjects in which she improved marks in Annual Intermediate Examination, 2015---Petition was allowed in circumstances.

H. M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65; Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCMR 1699; Hitachi Limited and another v. Rupali Polyester and others 1998 SCMR 1618; Shahbaz Afghan v. The State 1993 SCMR 224; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 and I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 rel.

Najaf Muzammal Khan for Petitioner.

Muhammad Hammad Khan Rai, Assistant Advocate General, Punjab.

Mubeen-ud-Din Qazi along with Liaqat Ali Naveed, Controller Examination and Muhammad Aslam, Superintendent, BISE, Sargodha for Respondents.

2016 M L D 460

[Lahore]

Before Abdus Sattar Asghar, J

ABDUL AZIZ---Appellant

Versus

AZHAR ABBAS and others---Respondents

R.S.A. No.73 of 2012, decided on 16th January, 2015.

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

----Ss. 13 & 15---Talbs, performance of---Waiver, principle of---Scope---No material discrepancy with regard to the place of disclosure or performance of Talb-i-Muwathibat was on record---Plaintiff had sufficiently established the fulfilment of Talb-i-Muwathibat and Talb-i-Ishhad in accordance with law---Plaintiff being co-sharer had unambiguously superior right of pre-emption qua the defendant---Findings recorded by the Appellate Court were not supported by any ocular or documentary evidence rather the same were based on surmises and conjectures---Nothing was on record to show that plaintiff had participated in the process of registration or attestation of sale mutation---Observation of Appellate Court with regard to prior notice of impugned sale by the plaintiff was erroneous and untenable---Vendor, as alleged, had neither directly offered the sale of suit land to the plaintiff nor plaintiff had ever declined to purchase the same or waived his right of pre-emption---Right of pre-emption should be deemed to have been waived if pre-emptor had acquiesced in the sale in question or had done any other act of omission or commission which would mean waiver of right of pre-emption---Clear and cogent evidence was required to deprive a person of any legal right---Mere ocular statement of witnesses was not sufficient to establish that pre-emptor had positively relinquished his right to pre-empt the sale---Appellate Court had erred in law and facts while recording the impugned findings on the points of talbs and waiver---Findings recorded by the Appellate Court were based on surmises and conjectures and mis-reading and non-reading of material evidence available on record and had failed to exercise its jurisdiction in accordance with law---Impugned judgment and decree passed by the Appellate Court were not sustainable and the same were set aside and those of Trial Court were maintained---Second appeal was accepted, in circumstances.

Baqri and others v. Salehon and others PLD 1972 SC 133; Jam Pari v. Muhammad Abdullah 1992 SCMR 786; Muhammad Din through Legal Heirs v. Nazir Muhammad through Legal Heirs 2004 SCMR 1394 and Ch. Abdul Majeed v. Ch. Inayat Ali and 4 others PLD 2001 Lah. 194 rel.

(b) Words and phrases---

---'Acquiescence'---Meaning---'Acquiescence' meant satisfaction, lack of opposition or giving of assent.

Ch. Muhammad Anees Khatana for Appellant.

Mian Muhammad Hassan Wattoo for Respondents.

Date of hearing: 16th January, 2015.

2016 M L D 481

[Lahore]

Before Masud Abid Naqvi, J

TAHIR MUNIR MALIK---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Local Government and others---Respondents

Writ Petition No.15516 of 2010, decided on 9th January, 2015.

(a) Parks and Horticulture Authority Act (XLVII of 2012)---

----S. 10 (3)---Constitution of Pakistan, Art. 199---Constitutional petition---Use of public park for commercial purpose---Scope---If any person had intention to use a public park for any purpose other than the normal use, he should make an application to the Authority---If intended use would affect the rights of the neighbours or residents of the area in general, authority should invite objections from residents of the area---Said objections should be decided before taking a decision by the Authority---Authority should not grant permission for conversion of plot if the intended use would affect the rights of the neighbours or residents of the area to the free and uninterrupted use of the roads abutting the public park or changes the general outlook of the locality---Authority could grant permission of using a public park for provision of food, playing facilities, sale of plants, horticulture equipments or books or such other purpose on payment of fees if the said permission did not adversely affect the general outlook of the public park---In the present case, northern side of the park was reserved as a football ground and was being so used by the public at large whereas rest of the park was lying vacant for the use of other recreational activities---Entire park was not being solely used for playing football---Area other than playing football was permitted by the Authority for use by the public though subject to resolution of objections if any filed by the local inhabitants---If objections so filed were found justified, Authority was bound to decline the request for conversion---Dispute raised, in the present case, related to the land owned by the people of Pakistan, legal title thereof might vest in the government but such title did not confer unbridled right in the government or the local authority to exercise the same against the public interest or the law applicable thereto---Playgrounds were required to be maintained for public access and use and were not for running business or trade---Authority was bound itself to develop and maintain public park and playing field and could not be allowed to violate the laws or regulation by awarding lease/licence to private parties for the purpose not permitted by law---Statutory authorities were bound to discharge their functions strictly in accordance with law otherwise the inaction being contrary to law should not be sustainable---Court had to consider whether the Authority which was granting permission had acted legally, fairly, transparently, judiciously and above board---Such like places could not be used for any other purpose by the Authority without inviting, considering and deciding the objections from the general public---Area reserved for a public park could not be used for other object---Financial gain by the Authority at the cost of public welfare had never been considered as legitimate purpose how laudable be the objective---Conversion of public park into a commercial park by the Authority would violate the Fundamental Rights enshrined in the Constitution---Park in question was not being leased out, allotted or permanently converted into commercial area rather it was being allowed for temporary use by the public on their request after paying fee for holding ceremonies---Orphans, widows and low paid retired/serving government servants were granted free bookings---Marriage halls were not easily accessible to a citizen having limited resources---High Court observed that social or other recreational activities as permissible under the law were also part of routine life but inflated charges of ceremonial halls made this facility unaffordable for low paid citizens---Parks were the only option left for them to organize ceremonies---Natural environment could have various benefits which would affect children as well as adults' development---Playing activities were natural part of life that would begin in infancy and continue throughout childhood, adolescence and adulthood---Sport was believed to have many health benefits from physical fitness to cognitive development to emotional well-beings---Playground safety standards were based on reasonable expectations for preventing accidents and injuries---Play was essential for children's emotional, cognitive, social, physical and educational development---High Court directed that health friendly environment in parks should be maintained---Parks were generally established for sustenance of physical and mental health of the local inhabitants or general public---Parks should be used for specified purposes---Football ground situated at northern side of the park should be used only for playing football by the inhabitants of the vicinity, exclusively and said ground should be maintained by the Authority---Rest of the park should remain at the disposal of the Authority for holding public functions etc without compromising convenience, safety and welfare of the inhabitants of the area---Authority was further directed to act in accordance with the provisions of Parks and Horticulture Authority Act, 2012 in order to permit ceremonial use of the park in question as per declared policy---Order accordingly.

Suo Motu Case No.10 of 2009; 2010 SCMR 885; Human Rights Cases Nos.4668-2006, 1111-2007 and 15283-2010 PLD 2010 SC 759 and Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394 ref.

Shehri-CBE through General Secretary and 15 others v. Lahore Development Authority through Chairman and 6 others PLD 2012 Lah. 362 rel.

(b) Parks and Horticulture Authority Act (XLVII of 2012)---

----S. 2 (s)---"Public park"---Scope---"Public park" would include a park or space reserved for use as a public park and notified by the government as a public park.

(c) Administration of justice---

----Statutory authorities were bound to discharge their functions strictly in accordance with law otherwise the inaction being contrary to law should not be sustainable.

Shahid Mahmood Khan for Petitioner.

Muhammad Zia-ud-Din Ansari and Riaz Ahmed Shah, Director Administration PHA for Respondents.

Date of hearing: 8th December, 2014.

2016 M L D 502

[Lahore]

Before Ch. Mushtaq Ahmad, J

MUDASSAR HANIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.330 of 2007, heard on 1st June, 2015.

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

----S. 302 & 34---Qatal-i-amd and common intention---Appreciation of evidence---Complainant did not mention anything about motive in FIR and reiterated the version as contained in First Information Report---Another eye witness who was son-in-law of the complainant, was not examined and one witness was presented by the prosecution to prove motive---No reason existed for prosecution for not examining the son-in-law of complainant an eye-witness of the incident---Testimony of single witness without corroboration could not be relied upon to award conviction---Prosecution story as narrated in the First Information Report was, therefore, not believable---Accused was acquitted and appeal allowed accordingly.

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

----Ss. 97 & 99---Self defence, right of---"Benefit"---Scope---Preconditions---Appreciation of evidence---Accused contended that he fired a single shot, followed by five shots in order to save himself, in self defence---Accused being a student of 10th class and a minor, had no motive to kill the deceased, he only fired a first single shot in order to save himself from being a victim of un-natural lust of deceased---Accused repeated second five shots as he saw that the accused was trying to catch him, and such circumstances cannot be said as exceeding right of self defence as repetition of shots might have been as a result of grave fear.

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

----S. 342---Statement of accused---Acceptance or rejection of---Principles---If prosecution evidence was disbelieved by the Trial Court, the position taken by the accused under S. 342, Cr.P.C. was to be accepted or rejected as a whole.

Muhammad Asghar v. The State PLD 2008 SC 513 rel.

Sardar Zafar Ahmad Lund for Appellant.

Hassan Mahmood Khan Tareen, Deputy Prosecutor General for the State.

Nemo for the Complainant.

Date of hearing: 1st June, 2015.

2016 M L D 538

[Lahore]

Before Shams Mehmood Mirza, J

REGAL STAR NETWORK (PVT.) LTD.---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

W.P. No.33026 of 2014, decided on 14th January, 2015.

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

----S. 33----Pakistan Electronic Media Regulatory Authority Rules, 2009, Rule 12---Pakistan Electronic Media Regulatory Authority (Distribution Service Operation) Regulations, 2011, Regln. 20---Constitution of Pakistan, Art. 199---Constitutional petition---Renewal of licence on expiry of term of licence---Determination of expiry period---Show-cause notice before issuance of seizure order, requirement as to---PEMRA granted cable licence to the petitioner on 15.06.2007 which expired on 15.06.2012, as it was valid for a period of five years---Petitioner illegally continued running the cable network after expiry without obtaining renewal of the licence---Petitioner, prior to expiry of the licence, had got the same up-graded---PEMRA, issued demand notices for payment of arrears and renewal of licence, and seizure order for default in payment of arrears---Petitioner challenged the legality of the seizure order and sought issuance of the certificate for the renewal of the licence on the ground that renewal expiry period had to be calculated from the date of up-gradation of the licence---Validity---Up-gradation of licence did not ipso facto extend the period of licence---Petitioner had to approach PEMRA for renewal of its licence prior to the expiry date---No document showed that the petitioner had applied for renewal of its licence before the expiry of its licence---Power of search and seizure was circumscribed by of Regln. 20(3) of Pakistan Electronic Media Regulatory Authority (Distribution Service Operation) Regulations, 2011 which provided that a prior show cause notice before seizure of equipment had to be given---Show cause notice was admittedly given by PEMRA to the petitioner before exercise of power under Regln. 20---Petitioner, in the present case, failed to point out any violation of law, rules and regulations by PEMRA authorities---Petitioner had no equity in his favour being a defaulter of arrears and having continued with its operation without a valid licence---PEMRA was well within its rights to take action in terms of the power under Regln. 20 of Pakistan Electronic Media Regulatory Authority (Distribution Service Operation) Regulations, 2011---High Court dismissed the petition being devoid of any merit.

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

----Ss. 33(3), 29, 33(B), & 34(A)----Pakistan Electronic Media Regulatory Authority (Distribution Service Operation) Regulations, 2011, Regln. 20---Violation of the Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002), Preamble---Offences and penalties---Inspection and operation, power as to---Violation of any provision of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 is a cognizable offence punishable with imprisonment for a term which may extend to 4 years or with fine or both in addition to the confiscation of the equipment---Any authorized officer or its nominee can physically inspect a distribution service station at any time and in doing so he can seek the aid of police---If any violation of the Ordinance, rules, regulations or terms and conditions of licence is found, the officer can seize the equipment.

Dr. Amjad Hussain Bukhari for Petitioner.

Muhammad Aazam Zia for Respondents.

Tahir Farooq Tarrar, AGM/Legal PEMRA.

2016 M L D 571

[Lahore]

Before Manzoor Ahmad Malik, C.J.

WALAIT ALI---Appellant

Versus

The STATE and another---Respondents

Crl. Appeal No.218 of 2013, heard on 26th June, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 337-D---Qatl-i-Amd and jurh jaifah---Appreciation of evidence---Benefit of doubt---Improvements in statements---Principle of falsus in uno falsus in omnibus---Applicability---Accused was tried under private complaint and was convicted and sentenced to imprisonment for life by Trial Court---Validity---Complainant while appearing before Trial Court made material improvements in his statement, he was confronted with his written application filed before police for registration of FIR as well as contents of private complaint and improvements were brought on record---Evidence of complainant and such prosecution witness who have made improvements was not reliable---One of the co-accused was acquitted by Trial Court and no appeal against his acquittal was filed---Prosecution evidence which was disbelieved to the extent of acquitted co-accused could not be used against accused for maintaining his conviction under Ss. 302(b) and 337-D, P.P.C., without there being any independent and strong corroboration, which was lacking---Principle of falsus in uno falsus in omnibus was not applicable and for the safe administration of justice, courts were required to sift grain from the chaff---High Court extended benefit of doubt to accused and acquitted him of the charge---Appeal was allowed under circumstances.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

Ms Sughran Gulzar for Appellant.

Nisar Ahmad Virk, Deputy District Public Prosecutor for the State.

Mushtaq Ahmad Khan Bhutta for the Complainant.

Date of hearing: 26th June, 2015.

2016 M L D 589

[Lahore]

Before Ali Akbar Qureshi, J

Haji FAZAL KAREEM through L.Rs.---Petitioner

Versus

MUHAMMAD ILYAS through L.Rs. and others---Respondents

C.R. No.989-D of 2001, heard on 15th April, 2015.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 23---Appeal---Remand of case---Post-remand proceedings---Scope---Plaintiff filed suit for possession of land which was dismissed by Trial Court---Appellate Court accepted appeal of plaintiff and remanded the case to Trial Court with the direction to appoint local commission for demarcation of land in dispute---Trial Court, in post remand proceedings had held that suit was barred by time---Plaintiff contended that during first round of litigation, issue of limitation was decided in his favour and Appellate Court, while remanding the case, issued specific direction to Trial Court to appoint local commission for the demarcation of land and maintained finding on issue of limitation---Validity---Trial Court was under obligation to act in accordance with terms of remand order instead having gone beyond the scope of remand order---Court, in post remand proceedings, would only be confined to the terms of remand order---Matter was remanded to appellate court to decide the appeal afresh---Revision was allowed accordingly.

Muhammad Tahir v. Abdul Latif and 5 others 1990 SCMR 751 ref.

Muhammad Ramzan Khalid Joiya for Petitioner.

Ch. Abdul Sattar Goraya and Muhammad Bilal for Respondents.

Date of hearing: 15th April, 2015.

2016 M L D 621

[Lahore]

Before Muhammad Tariq Abbasi and James Joseph, JJ

ALI ASGHAR---Petitioner

Versus

The STATE and others---Respondents

Crl. Misc. No.4569-B of 2014, decided on 15th October, 2014.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and controlling narcotics---Bail, grant of---No particular part of the allegedly recovered substance (bhang), had been described---Report of Chemical Examiner was still awaited---Nature and kind of alleged recovered substance, could not be confirmed---Question as to whether the offence would fall under provision of Control of Narcotic Substances Act, 1997 or the Prohibition (Enforcement of Hadd) Order, 1979 would be resolved during the trial---Accused was no more required for any further investigation, and nothing was to be recovered from him---Keeping accused, confined in the jail, in circumstances, would serve no useful purpose---Accused was admitted to bail.

Fazeelat Bibi v. The State 2007 YLR 3021 rel.

Ch. Muhammad Naeem and Muhammad Malik Khan Langah for Petitioner.

Malik Riaz Ahmad Saghla, DPG and Saleem, SI for the State.

Date of hearing: 15th October, 2014.

2016 M L D 631

[Lahore]

Before Muhammad Anwaarul Haq and Syed Shahbaz Ali Rizvi, JJ

QAMAR NAVEED and 6 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.512 and Murder Reference No.126 of 2013, decided on 13th October, 2014.

Criminal Procedure Code (V of 1898)---

----S.345---Penal Code (XLV of 1860), Ss. 302(b), 148 & 149---Qatl-i-amd, rioting, common object---Appreciation of evidence---Compromise---All legal heirs of the deceased, except father of the deceased, who was residing abroad, got recorded their statements qua compounding the offence and effecting a compromise with the accused---Advocate/real brother of father of the deceased, having a general power-of-attorney, appeared on behalf of the father of the deceased before the court, and stated that a valid compromise had been effected between the parties---Trial Court had shown its satisfaction with regard to genuineness of the compromise---Compromise had been arrived at between the parties without any duress and coercion, which was in the interest of the parties, so that they could forget the existing estrangement and could live in harmony and peace---Permission to compound the offence was granted---Convictions and sentences recorded by the Trial Court against accused persons were set aside, they were acquitted, in circumstances.

Maulana Nawab-ul-Hassan and 7 others v. The State 2003 SCMR 658 ref.

Muhammad Nadir Malik for Appellants.

Mirza Abid Majeed, Deputy Prosecutor General for the State.

Dr. Muhammad Akmal Saleemi for the Complainant.

Date of hearing: 13th October, 2014.

2016 M L D 644

[Lahore]

Before Ch. Mushtaq Ahmad, J

AURANGZEB through L.Rs.---Petitioner

Versus

MASOOD HUSSAIN through Legal Heirs and 4 others---Respondents

Civil Appeal No.298-D of 2005, decided on 24th November, 2014.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2 & O.VII, R.11---Specific Relief Act (I of 1877), S. 54---Suit for permanent injunction against co-sharers---Application for grant of temporary injunction---Rejection of plaint while deciding the application for interim injunction---Scope---Trial Court rejected the plaint while deciding the application for grant of temporary injunction holding that if plaintiff/petitioner had any grievance, he could file a suit for partition as suit for permanent injunction against the co-sharers was not maintainable---Validity---Both the parties were co-sharers in the suit land---Plaint was rejected on the day when only application for grant of temporary injunction was fixed for arguments---Arguments advanced by the plaintiffs were with regard to interim relief and not on main suit and defendants contested only application filed under O. XXXIX, Rr. 1 & 2, C.P.C.---Trial Court while dismissing the application for temporary injunction observed that suit for permanent injunction against the co-sharers was not maintainable and plaint was also rejected---Both the courts below had exercised jurisdiction contrary to law and had wrongly dismissed the suit---Courts below had committed illegality in exercise of jurisdiction---Impugned judgments and decrees passed by both the courts below were set aside---Case was remanded to the Trial Court where suit and application under O. XXXIX, Rr. 1 & 2, C.P.C. would be deemed pending and should be decided afresh after affording an opportunity of hearing to the parties---Revision was accepted, in circumstances.

Sardara and 4 others v. Muhammad Khan PLD 1998 SC 1509; Fazal and others v. Ghulam Muhammad and others 2003 SCMR 999; Syed Kamran Hussain v. PTCL and another 2012 CLC 1998 and Iftikharul Haq v. District Canal Officer and others 2005 CLC 1740 ref.

Sardara and 4 others v. Muhammad Khan PLD 1998 SC 1509; Fazal and others v. Ghulam Muhammad and others 2003 SCMR 999 and Syed Kamran Hussain v. PTCL and another 2012 CLC 1998 rel.

Yasir Mehmood Khokhar for Petitioner.

Nemo for Respondents.

2016 M L D 647

[Lahore]

Before Sadaqat Ali Khan, J

AISHA BIBI---Petitioner

Versus

ZAFAR IQBAL---Respondent

C.R. No.551-D of 2001/BWP, heard on 18th February, 2014.

Specific Relief Act (I of 1877)---

----Ss. 12 & 22---Suit for specific performance---Agreement to sell not written on stamped paper and signed by vendee---Evidentiary value/effect--- Enforceability--- Proof--- Limitation--- Trial Court dismissed suit---Appellate court decreed suit---Validity---Plaintiff witness claimed that he had received the sale price and handed over the same to predecessor of defendant/original owner as such witness was dealing with the matters of sale and purchase of the property of said owner---Said witness could not be believed as he had failed to prove himself as attorney of the original owner nor produced any document in this respect---Agreement to sell did not mention that said witness first received the sale price and then handed the same to original owner as such witness could not be believed to have received the sale price in presence of original owner---Neither marginal witnesses nor plaintiff signed the agreement to sell---Unilateral agreement not signed by the vendee was not mutually enforceable---Agreement in question was not enforceable at law as one of the parties to the contract did not sign or thumb mark the same---Agreement to sell having not been written on the stamped paper was liable to be impounded and had little evidentiary value---Plaintiff could not prove the agreement to sell---Pendency of litigation over disputed property on the basis of inheritance mutation was not sufficient ground for delay in filing suit by plaintiff who despite knowledge of litigation over suit property kept quiet for many years and did join litigation to claim his share/right on the basis of agreement to sell---Suit having been filed 28 years after the agreement to sell, was time barred---Appellate Court's judgment was result of misreading and non-reading of evidence---Revision was allowed---Judgment of first appellate court was set aside---Judgment passed by Trial Court was restored.

Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334; Faqeer Bakhsh v. Khan Muhammad 2013 MLD 955 and Brig. (Rtd.) Sher Afghan v. Mst. Shireen Tahir and 6 others 2010 SCMR 786 rel.

Jam Muhammad Sajjad for Petitioner.

M.A. Rasheed Chaudhary for Respondent.

Date of hearing: 18th February, 2014.

2016 M L D 668

[Lahore]

Before Khalid Mahmood Malik, J

SHAHZAD ANWAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

W.P. No.8654 of 2014/BWP, decided on 28th November, 2014.

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

----S. 5, Sched & S.17---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and dowry articles---Contention of husband was that wife had failed to produce any shop-keeper and receipts of purchase of the dowry articles during evidence in support of her assertion---Validity---Provisions of Civil Procedure Code, 1908 as well as Qanun-e-Shahadat, 1984 were not applicable in stricto sensu to the proceedings before the Family Court---Family Court had to regulate its own proceedings in accordance with the provisions of Family Courts Act, 1964---Evidence adduced before the Family Court could not be evaluated and appraised in the manner as same was appreciated in the cases presented under Civil Procedure Code, 1908---Mere fact that a party had not formally proved the document i.e. receipts of purchase of dowry articles and non-production of shop-keeper in evidence had no legal consequence---Parents give dowry articles to their daughters according to their status---Wife/bride could not keep the record of purchase receipts, prepare the list of dowry articles and obtain signatures from the bridegroom/husband side---Claims of dowry articles were ordinarily given to a bride at the time of her marriage---Both the courts below had given concurrent findings of facts qua the value of dowry articles---Appellate Court had rightly modified the decree to the extent of maintenance allowance after appraisal of facts and evidence and fixed Rs. 3000/- per month instead of Rs. 5000/- for the period of Iddat---No illegality, material irregularity, non-reading and mis-reading of evidence was pointed out in impugned judgment and decree passed by the Appellate Court---Constitutional petition was dismissed in limine.

Mst. Shakeela Bibi v. Muhammad Israr and others 2012 MLD 756 rel.

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

----Preamble---Object of Family Courts Act, 1964---Purpose of enacting said special law with regard to family disputes was to advance justice and to avoid technicalities which were hindrance in providing ultimate justice to the parties---Act was promulgated for the expeditious settlement and disposal of disputes with regard to marriages and other family affairs and special procedure had been provided to achieve such object.

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

----S. 17---Provisions of Qanun-e-Shahadat (10 of 1984) and Civil Procedure Code (V of 1908)---Applicability---Provisions of Civil Procedure Code, 1908 as well as Qanun-e-Shahadat, 1984 were not applicable in stricto sensu to the proceedings before the Family Court.

Farhat-ur-Rehman Awan for Petitioner.

2016 M L D 693

[Lahore]

Before Atir Mahmood, J

Mst. RABIA GULZAR and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.27276 of 2011, decided on 13th November, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance---Neither the plaintiffs (mother and daughter) could establish the monthly expenditures incurred in past or being incurred upon the daughter nor they were able to establish the monthly income of father---Appellate Court had examined the evidence of both the parties and upheld the findings of Family Court qua the quantum of maintenance allowance per month---Evidence of plaintiffs was not confidence inspiring with regard to grant of past maintenance allowance---Dispute/differences had arisen in between the parties on the question of marriage of daughter---Findings of Appellate Court which were recorded after due appraisal of evidence could not be substituted by the findings of High Court---Appellate Court had properly granted maintenance allowance to the daughter from the date of institution of the suit---Constitutional petition was dismissed in circumstances.

PLD 2002 Quetta 38; 2002 SCMR 701; 2008 SCMR 1584 and 1995 MLD 1149 ref.

Farah Naz v. Judge Family Court, Sahiwal PLD 2006 SC 457 rel.

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

----S. 5, Sched.---Limitation Act (IX of 1908), Art. 49---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dowry articles---Limitation---Divorce between the parties took place on 14-11-1983 and suit for recovery of dowry articles was filed after elapse of 26 years---Neither wife had asserted as to when for the first time she demanded the return of dowry articles nor she had stated about refusal of husband to return the same---Possession of the dowry articles became wrongful with the husband when divorce took place or when there was specific demand for return of the same which was refused by the husband---Wife had neither asserted any specific date for first denial of husband to return the dowry articles nor she could produce any evidence to substantiate her claim that dowry articles were still lying in the possession of husband---Delay in filing suit for recovery of dowry articles would give rise to a presumption of fact that same were taken back by the wife after dissolution of marriage---Suit for recovery of specific movable property could be filed within three years when the property was wrongfully taken or when the retainer's possession became unlawful---Present suit was barred by time---Constitutional petition was dismissed in circumstances.

PLD 2002 Quetta 38; 2002 SCMR 701; 2008 SCMR 1584 and 1995 MLD 1149 ref.

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

----Art. 49---Civil Procedure Code (V of 1908), O. XX, R. 10---Suit for recovery of movable property---Limitation---Suit for recovery of specific movable property could be filed within three years when the property was wrongfully taken or injured or when the retainer's possession became unlawful.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could not indulge into the factual controversy while exercising constitutional jurisdiction.

Ms. Erum Sajjad Gul for Petitioners.

Muhammad Akbar Shabbir Chohan for Respondents.

Date of hearing: 19th May, 2014.

2016 M L D 715

[Lahore]

Before Sadaqat Ali Khan, J

ABID HUSSAIN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.433-J of 2010 and Criminal Revision No.266 of 2011, heard on 11th November, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b), 302(c) & 337-F(i)---Qatl-i-amd, causing Damiyah---Appreciation of evidence---Sentence, reduction in---Presence of eye-witnesses at the spot, in the present case, could not be considered as "unnatural" or improbable---All the 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 trustworthy and straightforward---Medical evidence, had supported the ocular account furnished by the eye-witnesses---Accused, neither produced any evidence in support of his plea, nor he himself opted to appear under S.340(2), Cr.P.C., to support his plea---Defence plea of accused was nothing except denial, and the same was discarded---No pre-meditation by accused to commit the murder of the deceased was on record---Incident happened on the spur of moment and there was no background of any ill-will or bitterness of accused to commit the murder of the deceased---Age of accused was 19 years at the time of occurrence, whereas the deceased was 18 years old at the time of his death---Deceased had received only one blow of knife on his chest, and there was no allegation of repetition of knife blow---Incident was one of a fight which was a result of heat of passion developed upon a sudden quarrel and no undue advantage had been taken by accused, nor he had acted in a brutal or unusual manner---Case against accused, in circumstances, fell within the purview of S.302(c), P.P.C.---Conviction of accused for an offence under S.302(b), P.P.C., was converted into that of offence under S.302(c), P.P.C.---Sentence of accused was reduced from life imprisonment to 10 years' R.I., in circumstances.

Azmat Ullah v. The State 2014 SCMR 1178 rel.

Hafiz Khaleel Ahmed for Appellant.

Raja Nisar Ahmed Kiani for the Complainant.

Rana Muhammad Shafique Ahmed, DPG for the State.

Date of hearing: 11th November, 2014.

2016 M L D 730

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Tariq Abbasi, JJ

MUHAMMAD WASEEM KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.641 and Murder Reference No.77 of 2010, heard on 19th June, 2014.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Accused was proved to have strong motive against the deceased for commission of the offence---Complainant had satisfactorily and confidently brought on the record each and every aspect of the case, not only during his examination-in-chief, but also in cross-examination---Defence, despite lengthy cross-examination had badly failed to shake the testimony of sole witness, could not create any dent, or defect in the prosecution story or bring on the record any material favourable to the accused---Conviction could be based on evidence of a solitary eye-witness, if it was found truthful and natural and not interested in deceased or any inimical terms with accused---Complainant had established his presence at the spot and witnessing of the occurrence---Mere relationship of complainant with the deceased, was not sufficient to discard his testimony which otherwise was confidence inspiring---Medical evidence had not contradicted the ocular story---Availability of accused at the spot and his full participation in the alleged occurrence was established---Accused at the time of commission of occurrence being 19 years of age, that was sufficient to consider for premium to him, towards quantum of sentence---Death sentence awarded to accused, was altered to the imprisonment for life, in circumstances.

Muhammad Ashraf v. State 1971 SCMR 530; Allah Bukhsh v. Shammi and others PLD 1980 SC 225; Mali v. State 1969 SCMR 76; Farooq Khan v. State 2008 SCMR 917;Ziaullah v. The State 1993 SCMR 155; Ghulam Sarwar and others v. Sajid Ullah and others 2005 SCMR 1054 and Muhammad Imran @ Asif v. The State 2013 SCMR 782 rel.

Taqdeer Samsuddin Sheikh v. State of Gujarat 2012 SCMR 1879 and Haji v. State 2010 SCMR 650 ref.

Fakhar Hayat Awan for Appellant.

Mirza Muhammad Usman, A.P.G. for the State.

Raja Mehfooz Ali Satti for the Complainant.

Date of hearing: 19th June, 2014.

2016 M L D 766

[Lahore]

Before Amin-ud-Din Khan, J

ALLAH DAD KHAN (deceased) through Legal Heirs and others---Petitioners

Versus

ATAR KHAN and others---Respondents

Civil Revisions Nos.990 and 991 of 2010, heard on 8th May, 2014.

Punjab Land Revenue Act (XVII of 1967)---

----S.42---Punjab Land Revenue Rules, 1968, Form No.39---Land Records Manual, Chap. 7, Para. 7.4 (XIV)---Punjab Tenancy Act (XVI of 1887), Ss.8, 38, 50, 58, 77 & 114---Sale of Right of 'Dakheel Kari'---Attestation of mutation---Limitation---Objection that mutation could not have been attested after six months of entry of mutation had no substance---Once authority and genuineness of the sale transaction had been established, mere irregularity in procedure of attestation of mutation would not suffer (adversely affect) the binding effect of mutation---Father of plaintiffs who was the original right holder of the suit land did not challenge the mutation in his life time despite the fact that he remained alive for 40 years after the attestation of mutation---Moreover, mutation was 30 years old document at the time of filing of suit---Courts below did not assess evidentiary value of mutation under the Qanun-e-Shahadat, 1984---Punjab Land Revenue Act, 1967 was not in force at the time of filing of suit---Mutation had admittedly been incorporated in the revenue record and said entries remained intact till the filing of suit---Presumption of truth was attached to the record of rights---Plaintiffs failed to discharge the burden to prove that mutation was wrongly attested---Plaintiffs were in knowledge of impugned mutation three years prior to the filing of the suit---Under law of mutation, long silence of person without valid explanation would extinguish any right and such right would not remain enforceable at law---Suit was time-barred---Courts below fell in error while deciding question of limitation and failed to consider that Ss.38, 50, 58, 77 and 114 of the Punjab Tenancy Act, 1887 were applicable to the case---Predecessor/father of plaintiffs was not cultivating the land at the time of attestation of mutation and had migrated from the Mauza where the suit land was situated---Plaintiffs could not be declared owners of the suit property---Wrongfully dispossessed occupancy tenant could avail remedy under S.50 of the Punjab Tenancy Act, 1887---Revenue Court, and not the Civil Court, could take cognizance of the matter in issue---Under S.114 of the Punjab Tenancy Act, 1887 occupancy rights could not be created in favour of plaintiffs through decree of court after enforcement of the Punjab Tenancy (Amendment) Act (VII of 1952)---Findings of courts below were result of misreading and non-reading of evidence---Revision was accepted.

Muhammad Ishaq and 2 others v. Ghafoor Khan and another 2000 SCMR 519; Muhammad Amir and others v. Mst. Beevi and others 2007 SCMR 614; Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890; Nazir Ahmad and another v. Muhammad Yousaf PLD 2013 Lah. 517 and Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446 rel.

Khalid Mian and Malik Noor Muhammad Awan for Petitioners.

Amir Abdullah Khan Niazi for Respondents Nos. 1 and 2.

Date of hearing: 8th May, 2014.

2016 M L D 777

[Lahore]

Before Mahmood Ahmad Bhatti, J

TAHIR JAVED---Petitioner

Versus

SUPERINTENDENT DISTRICT JAIL, BAHAWALPUR and another---Respondents

W.P. No.15776 of 2014, decided on 26th November, 2014.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S.302(b)---Pakistan Arms Ordinance (XX of 1965), S.13---Constitution of Pakistan, Art. 199---Constitutional petition---Suspension of sentence---Detaining accused by Jail Authorities, illegally---Father of the petitioner, was convicted and sentenced in a murder case---Pending appeal against the conviction and sentence, accused filed application for suspension of sentence under S.426, Cr.P.C., which application was allowed and accused was ordered to be released on bail by High Court, but Jail Authorities refused to release him---Sentence, passed on accused in the murder case, had already been suspended by High Court; and accused had served his sentence in the case under Pakistan Arms Ordinance, 1965---Further incarceration of accused, pending his criminal appeal, was wholly unwarranted---Accused was ordered to be set at liberty.

Muhammad Zawar Shah Qureshi for Petitioner.

Mohammad Javed Saeed Pirzada, Assistant Advocate-General with and Mobashar, ASP for Respondents.

2016 M L D 789

[Lahore]

Before Muhammad Tariq Abbasi, J

MUHAMMAD AQIB---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.321 of 2014, heard on 15th October, 2014.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Juvenile Justice System Ordinance (XXII of 2000), S.7---Qatl-i-amd, common intention---Age of accused, determination of---Accused filed application before Trial Court, contending that he being a juvenile, his case should be proceeded under Juvenile Justice System Ordinance, 2000---Accused tendered birth certificate and his school leaving certificate---Accused was also examined by the District Medical Board, and his age was opined as 15 to 17 years---Trial Court for further satisfaction, directed examination of accused through the Provincial Standing Medical Board---Said order of the Trial Court had been impugned contending that when towards his age, sufficient material, in shape of documentary evidence was available before the Trial Court, there was no need to direct examination through the Provincial Standing Medical Board---Validity---When accused, during the trial, claimed himself to be minor, proceedings as required under the Juvenile Justice System Ordinance, 2000, should carry on---Court, however, for its satisfaction, could conduct any permissible proceedings, which were necessary to reach at just and fair conclusion---No limit of such proceeding could be prescribed or determined---Birth Certificate and school leaving certificate, as well as report of the District Medical Board, though were available before the Trial Court but when court considered the said documents to be insufficient for reaching at just and fair conclusion, court directed examination of accused, through the Provincial Standing Board---When for medico-legal work, said Board had been established and constituted as third tier, its utilization for the purpose of determination of age, could not be termed objectionable, or strange---Order accordingly.

Sultan Ahmed v. Additional Sessions Judge-I Mianwali and 2 others PLD 2004 SC 758 and Niaz Muhammad v. Umar Ali and another 2009 PCr.LJ 91 rel.

Qazi Sadaruddin Alvi for Petitioners.

Malik Muhammad Jaffar, Deputy Prosecutor General for the State.

Date of hearing: 15th October, 2014.

2016 M L D 798

[Lahore]

Before Farrukh Gulzar Awan, J

TAUQEER AHMAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Misc. No.8102-B of 2015, decided on 27th July, 2015.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, grant of---Case of further inquiry---Abscondence---Complainant did not disclosed name of any person in the First Information Report, who had seen the accused taking the body---Post-mortem examination was conducted with a delay of 29 hours after registration of First Information Report and yet no cause of death was opined by the doctor who performed the post mortem---Investigation was complete, and accused was no more required for investigation---Evidentiary value of sole witness of wajtakar and extra judicial confession in absence of cause of death was a weak type of evidence---Mere abscondance of accused could not be used to kill every right of accused and it could not be the basis of refusal of bail---Bail was granted.

Allah Ditta v. The State and others 2012 SCMR 184 and Sultan Mahmood v. Mansoor Shamsi and another 2015 PCr.LJ 90 rel.

Malik Dino and others v. The State 2002 PCr.LJ 783; Abid Ali v. The State 2011 SCMR 161; Allah Ditta v. The State and others 2012 SCMR 184; Sultan Mahmood v. Mansoor Shamsi and another 2015 PCr.LJ 90; Mst. Maria Khan v. The State and another 2013 SCMR 49; and Talib Jan v. The State and another 2012 SCMR 265 ref.

Malik Muhammad Athar Bilal Khan for Petitioner.

Muhammad Mahmood Ahmad for the Complainant.

Abdul Jabbar Dogar, DDPP along with Mian Suleman, A.S.-I. for the State.

2016 M L D 801

[Lahore]

Before Mirza Viqas Rauf, J

Mst. SARDARAN (deceased) through L.Rs.---Petitioner

Versus

DISTRICT JUDGE, MIANWALI and 2 others---Respondents

Writ Petition No.20138 of 2004, heard on 19th November, 2014.

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

----S. 25---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minor---Welfare of minor (daughter)---Scope---Applicant being maternal grandmother sought custody of minors from the father---Validity---Father of minor was her natural guardian---Minor daughter was studying in the school---Welfare of minor was with the father---Both the courts below had duly appreciated the evidence available on record---Concurrent findings recorded by the courts below did not suffer from any illegality or perversity calling for interference by the High Court while exercising constitutional jurisdiction---Father being natural guardian had preferential right of custody of minors---Constitutional petition was dismissed in circumstances.

Ch. Nazir Ahmad.v. Additional District Judge III, Sahiwal and others 1988 SCMR 1359; Mst. Naseem Akhtar v. District Judge, Multan and others 2009 SCMR 1052; Mst. Maryam Mai v. Judge Family Court, D.G.Khan and 4 others 2004 SCMR 1382 and Mst. Zubaida Begum v. Additional District Judge and others 2002 MLD 202 ref.

Ch. Nazir Ahmad.v. Additional District Judge III, Sahiwal and others 1988 SCMR 1359 and Mst. Naseem Akhtar v. District Judge, Multan and others 2009 SCMR 1052 distinguished.

Mst. Maryam Mai v. Judge Family Court, D.G.Khan and 4 others 2004 SCMR 1382 and Mst. Zubaida Begum v. Additional District Judge and others 2002 MLD 202 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Constitutional petition could not be resorted to challenge an order on the ground that evidence was not properly appreciated as findings of facts recorded by the court of competent jurisdiction could not be disturbed solely on the ground that another view could be possible on the same evidence---High Court in constitutional jurisdiction could not sit as a court of appeal.

Imtiaz Hussain Khan Balouch for Petitioner.

Qaisar Nawaz Khan Niazi for Respondent No.3.

Date of hearing: 19th November, 2014.

2016 M L D 812

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

NOOR MUHAMMAD---Appellant

Versus

The STATE---Respondent

Crl. Appeal No.315 of 2013, heard on 20th June, 2014.

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

----Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---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---Appreciation of evidence---Benefit of doubt---Accused though was named in the crime report, but no specific date, and time of alleged occurrence had been mentioned in the said report, rather same had been mentioned as "unknown"---Case was not lodged upon the statement of any aggrieved person, rather was registered on the basis of source report published in newspaper---Prosecution had failed in proving its case against accused to the extent of offence under Ss.420, 468 & 471, P.P.C., resultantly the Trial Court acquitted accused from the said offences; and convicted accused under S.409, P.P.C. and S.5(2) of Prevention of Corruption Act, 1947; though the charge for offence under S.409, P.P.C. was not framed by the Trial Court---Trial Court had acquitted co-accused on the basis of same set of evidence, and prosecution had not assailed his acquittal before the High Court---Reasoning advanced by the Trial Court while recording guilt of accused, were based upon inculpatory part of statement of accused recorded in terms of S.342, Cr.P.C.---Prosecution had failed to substantiate its case against accused to the hilt, and Trial Court was not justified in convicting accused, while basing upon untrustworthy/uncorroborated evidence, which even otherwise was full of material contradictions---Conviction passed by the Trial Court, in circumstances, was against all canons of law, recognized for the dispensation of criminal justice---Benefit of every doubt was to be extended in favour of accused---Conviction and sentence recorded by the Trial Court against accused, were set aside and he was acquitted, and he being on bail, his surety was discharged, in circumstances.

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

----S. 342---Statement of accused, consideration of---Statement of accused, either had to be accepted in toto, or discarded in entirety, unless there existed other independent/reliable evidence supplementing the prosecution case.

Iftikhar Ahmed v. The State and others 2014 SCMR 7 ref.

(c) Criminal trial---

----Benefit of doubt---Scope---For extending the benefit of doubt in favour of accused, so many circumstances were not required, rather one circumstance, which would create reasonable doubt in the veracity of the prosecution version, could be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right---Court could err in letting off 100 guilty but should not convict an innocent person on the basis of suspicion.

Tariq Pervez v. The State 1995 SCMR 1345; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Tanveer Iqbal for Appellant.

Ch. Qaiser Mushtaq, ADPP for the State.

Date of hearing: 20th June, 2014.

2016 M L D 825

[Lahore]

Before Mahmood Ahmad Bhatti, J

MANZOOR HUSSAIN and another---Petitioners

Versus

Mst. SARDARAN BIBI and another---Respondents

C.R. No.259-D of 2014, decided on 5th March, 2014.

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

----S. 52---Civil Procedure Code (V of 1908), O. XLI, R. 31 & S. 99---Suit for declaration---Gift mutation---Lis pendens, doctrine of---Scope---Contention of plaintiff was that mutation of "Tamleek" was result of fraud---Suit was decreed concurrently---Validity---Beneficiary of disputed mutation was bound to prove the transaction by adducing cogent, consistent and unimpeachable evidence---Defendants had failed to produce even tenuous or slender evidence to substantiate their claim---One of the beneficiaries of impugned mutation had filed consenting written statement and had confessed the claim of plaintiff---Defendants did not examine two witnesses of impugned mutation and even Patwari Halqa and Revenue Officer who entered and sanctioned the same were not summoned---Best evidence had been withheld by the defendants and they had failed to discharge the onus placed on them---Suit land was transferred in favour of wife of one of the beneficiaries during pendency of suit and same would hit by the doctrine of lis pendens---Said land had again been transferred in favour of said beneficiary and her claim stood extinguished during the pendency of suit---When basic order was void, the superstructure built upon the same would come down crashing with said order---Appellate Court was not bound to give issue-wise findings---Trial Court had dealt with all the material aspects of case and no short fall of requirements of law was pointed out---Impugned judgments had been passed with jurisdiction and none of them suffered from any material irregularity---Impugned judgments passed by both the courts below did not suffer from infirmity or misreading or non-reading of evidence---Both the courts below had appreciated properly the controversy in minutest details---Revision was dismissed in limine.

Muhammad Amir through L.Rs. v. Muhammad Sher and others 2006 SCMR 185 rel.

Ch. Muhammad Iqbal for Petitioners.

2016 M L D 840

[Lahore]

Before Ch. Mushtaq Ahmed, J

NOOR ELLAHI and others---Petitioners

Versus

MUHAMMAD MEHBOOB and others---Respondents

Civil Revision No.624 f 2014, decided on 10th November, 2014.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Production of additional evidence in Appellate Court---Scope---Trial Court dismissed the suit against which appeal was filed wherein an application for production of additional evidence was moved by the plaintiffs which was accepted by the Appellate Court---Contention of plaintiffs was that documents which were to be produced were not traceable at the time of recording of evidence before the Trial Court---Validity---Sufficient explanation had been put forth by the plaintiffs for not producing the documents during trial---Appellate Court had correctly exercised jurisdiction and had committed no illegality or irregularity---Revision was dismissed in circumstances.

Sher Baz Khan and others v. Mst.Malkani Sahibzadi Tiwana and others PLD 2003 SC 849; House Building Finance Corporation and others v. Muhammad Akhtar Zaman and others 2005 MLD 112; Mst.Sardaran and others v. Suleman and another 2003 SC 627; Shtamand and others v. Zahir Shah and others 2005 SCMR 348; Mustafa Kamal and others v. Daud Khan and others 2009 SCMR 221; Sh.Qamar Javid and others v. Sh.Hassan Ali 2001 SCMR 1766 and Niaz Rasool through Muhammad Bilal v. Mst.Parveen Ikram and others 2013 SCMR 397 ref.

Dr. Syed Qasim Haroon Naqvi for Petitioners.

Muhammad Abdul Hayee Alvi for Respondents Nos. 1 and 2.

2016 M L D 846

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

LIAQAT ALI and others---Petitioners

Versus

RETURNING OFFICER and others---Respondents

Writ Petition No.33589 of 2015, decided on 16th November, 2015.

(a) Punjab Local Government Act (XVIII of 2013)---

----S. 2---Punjab Local Government (Conduct of Elections) Rules, 2013---Provincial Insolvency Act (V of 1920), S.73---Disqualification of candidate on ground of insolvency---Scope---No definition of terms "undischarged insolvent" had been given in Punjab Local Government Act, 2013 or Local Government (Conduct of Elections) Rules, 2013, however, Provincial Insolvency Act, 1920 was the appropriate legislation to deal with insolvency of a subject---According to S. 73 of Provincial Insolvency Act, 1920 an order of insolvency was considered to be a disqualification to hold certain elected offices, however, an order for "discharge" restored the original status of an insolvent---High Court observed that it could be safely concluded that Provincial Insolvency Act, 1920 was a complete code and determination of all questions including the questions whether a person was insolvent or not and whether an insolvent can be discharged or not and subject to what conditions---Such questions could only be decided by court constituted under Provincial Insolvency Act, 1920.

(b) Local Government (Conduct of Elections) Rules, 2013---

----Provincial Insolvency Act (V of 1920), S.7---Insolvency---Contesting of local government elections---Declaration that a person was "insolvent"---Scope---Neither respondent/Bank ever presented any insolvency petition before competent court as required under S. 7 of Provincial Insolvency Act, 1920 nor the petitioner was adjudged as "undischarged insolvent" by a court of competent jurisdiction, therefore, Authority was not justified in rejecting nomination papers of petitioner for local government elections on such account.

Thampanoor Ravi v. Charupara Ravi and others AIR 1999 SC 3309 and Ch. Tanvir Khan v. President, Cantt. Board, Rawalpindi and 2 others 1999 MLD 721 rel.

(c) Punjab Local Government Act (XVIII of 2013)---

----S. 27---Provincial Insolvency Act (V of 1920), S.7---Sale of Goods Act (III of 1930), S.2(8)---"Insolvent", definition of---Disqualification of candidate on ground of insolvency---Scope---Petitioner impugned rejection of his nomination papers on ground of insolvency---Respondent/Bank while referring to S. 2(8) of Sale of Goods Act, 1930 submitted that petitioner moved application showing his inability to pay outstanding amount, therefore, by virtue of definition of "insolvent" in Sale of Goods Act, 1930, petitioner was rightly declared ineligible to contest election by Appellate Authority---Held, that per S. 2(8) of Sale of Goods Act, 1930 an "insolvent" was defined as a person who had ceased to pay his debts in the ordinary course of business as they become due, whether he had committed an act of insolvency or not---Question of insolvency of a buyer was of considerable importance in the context of seller's lien and it was in such special context that a meaning had been given to the expression "insolvent" even though a person had not been adjudged an insolvent under Provincial Insolvency Act, 1920 but said definition could not be imported into Punjab Local Government Act, 2013---In predecessor legislation, a different criteria was provided for disqualification of a candidate on the grounds of financial inadequacy, and it was abundantly clear from current legislation that Legislature intentionally avoided to use the word "wilful defaulter" in Punjab Local Government Act, 2013, therefore, in the absence of such words a person who was not adjudged as "undischarged insolvent" could not be precluded from election process merely on the ground that he/she had some loan to pay---Legislature, in the Punjab Local Government Act, 2013, in its wisdom opted only to bar the entry of "undischarged insolvent" and not a "defaulter of loan" and it was not for the court to supply omission of Legislature---High Court observed that term "defaulter of loan" was mistakenly been confused with "undischarged insolvent", although said concepts were entirely different and could not be interchanged with one another, therefore, term "undischarged insolvent" had a special meaning which it had acquired under the law of insolvency---Constitutional petition was allowed, accordingly.

(d) Interpretation of statutes---

----If an expression had attained a special connotation in law, then a general or simple dictionary meaning would not be helpful while interpreting such an expression---In such cases, expression must be given its legal sense.

State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd., 1959 SCR 379 rel.

Khalid Ishaque assisted by Mazhar Ali Ghulu for Petitioner.

Muhammad Masood Chishti and Khalil Jamil for Respondent No.5.

Malik Akhtar Hussain for Respondent No.6.

Muzammil Akhtar Shabbir DAG along with Ali Akhtar Khan Law Officer o/o Election Commission.

2016 M L D 860

[Lahore]

Before Erum Sajad Gull, J

IBRAR HUSSAIN JAFFRI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No.18244 of 2012, decided on 19th October, 2015.

Criminal Procedure Code (V of 1898)---

----S.516-A---Penal Code (XLV of 1860), S.381-A---Person entitled to interim custody of stolen car---Car, which had been leased out by Bank and insured by insurance company, was stolen, and the insurance company, on recovery of the car, filed application for its interim custody, which was allowed by Magistrate; whereas, the appellate Court dismissed the same---Validity---Owner had refused to pay the instalments when the car was stolen---Insurance company had paid ninety per cent of the amount of the Bank, and letter of subrogation was, therefore, issued in its favour---Insurance company was, therefore, entitled to custody of the car---High Court, setting aside impugned order, directed interim custody of the car to be given to the insurance company---Constitutional petition was accepted in circumstances.

E.F.U. General Insurance Company through Representative v. The State PLD 2006 Pesh 19 rel.

Rana Adnan Ahmed for Petitioner.

Naveed Saeed Khan, Additional Advocate General along with Ashraf, SI and Sarfraz, ASI.

Syed Hammad-ul-Hassan for Respondent No.2.

Uzair Khalid for Respondent No.3.

2016 M L D 873

[Lahore]

Before Shoaib Saeed, J

NADIR HUSSAIN---Petitioner

Versus

YAR MUHAMMAD and 10 others---Respondents

C.R. No.339 of 2005, decided on 26th May, 2014.

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

----Ss. 6 & 13---General Clauses Act (X of 1897), S.27---Suit for pre-emption---Shafi Khalit, Shafi Jar---Talb-e-Muwathibat---Jumping Demand---Nature---Essentials---Pre-emptor received information of sale at 8.20 a.m, while intention to pre-empt was made at 10 a.m., which demand could not be termed as "jumping demand"---Laxity in performance of Talb-e-Muwathibat which was a jumping demand be seen with rigor---Glaring contradictions in testimonies of witnesses in respect of time, date, place of making the Talb showed that Talb-e-Muwathibat was not performed in accordance with law---Delivery of notice, its receipt and acknowledgment-due had not been proved which were requirements of Talb-e-Ishhad---Orders of courts below did not suffer from any illegality or infirmity---Revision was dismissed.

PLD 2002 Lahore 280; Khalid Hussain through Aftab Hussain and 2 others and 1985 CLC 1513; Allah Bukhsh and another v. Falak Sher 2004 SCMR 1580 and Haji Feroz Khan and another v. Amir Hussain through L.Rs. and others 2004 SCMR 1719 ref.

Munawar Hussain and others v. Afaq Ahmad 2013 SCMR 721; Muhammad Ilyas Naveed and another v. Allah Ditta 2013 YLR 2201; Allah Ditta and 2 other v. Raees and 3 others 2006 CLC 1349; 2006 CLC 79; Allah Ditta through L.Rs and others v. Muhammad Anar 2013 SCMR 866 and Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 rel.

Agha Tariq Mehmood for Petitioner.

Khawaja Aftab Ahmad for Respondents.

2016 M L D 883

[Lahore]

Before Shahid Hameed Dar, J

MUDASSAR ALI---Petitioner

Versus

The STATE and others---Respondents

Crl. Misc. No.1798-B of 2015, decided on 23rd April, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, grant of---Further inquiry---Supplementary statement after registration of FIR appeared to be well thought and deliberated move on the part of complainant to fill-in the gaps of the case---Complainant had improved version as to witnessing the incident which had created the situation worse for the prosecution case---Accused was no more required for the purpose of any recovery---Case against the accused was of further inquiry---Accused was admitted to bail subject to furnishing bail bonds in the sum of Rs. 5,00,000/- with two sureties each in the like amount to the satisfaction of trial court.

Muhammad Arif Awan for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General Punjab for the State with Bilal ASI.

Ch. Aftab Iqbal Dhillon for the Complainant.

2016 M L D 890

[Lahore]

Before Shahid Hameed Dar and Syed Shahbaz Ali Rizvi, JJ

RIZWAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.109 of 2009, heard on 8th September, 2015.

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

----S. 7(e)---Penal Code (XLV of 1860), S.365-A---Kidnapping for ransom---Appreciation of evidence---Recovery of currency notes---Benefit of doubt---Accused was convicted by Trial Court for kidnapping for ransom and was sentenced to imprisonment for life---Validity---During extensive physical remand of accused nothing connecting accused with alleged offence could be recovered and there was no disclosure of place of confinement of abductee---Car allegedly used by accused, when he received ransom amount and about his four co-accused persons could be obtained to corroborate prosecution story furnished by prosecution witnesses---Alleged recovery of ransom amount from the possession of accused at the time of his arrest, such amount was not tainted and was of no consequences to prosecution case being not sufficient to connect accused with commission of alleged offence---Place where ransom was paid by prosecution witnesses could not be pointed out by them---Prosecution was to prove its case against accused by standing on its own legs and it could not take any benefit from weaknesses of case of defence---Prosecution failed to discharge its responsibility of proving case against accused---If there was a single circumstance which created reasonable and cogent doubt regarding prosecution case, the same was sufficient to give benefit to accused---High Court set aside conviction and sentence recorded by Trial Court and accused was acquitted of the charge levelled against him by extending him benefit of doubt---Appeal was allowed in circumstances.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570; Rahat Ali v. The State 2010 SCMR 584; Basharat v. The State 1995 SCMR 1735; Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Raja Ghaneem Aabir Khan for Appellant

Faisal Khan Niazi for the Complainant.

Muhammad Waqas Anwar, Deputy Prosecutor General along with Mohsin, ASI for the State.

Date of hearing: 8th September, 2015

2016 M L D 911

[Lahore]

Before Ch. Mushtaq Ahmad, J

ABDUL SATTAR---Petitioner

Versus

ADDL: SESSIONS JUDGE, SAHIWAL, and 2 others---Respondents

Writ Petition No.9946 of 2013, heard on 24th August, 2015.

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

----Ss. 516-A, 517 & 520---Order for custody and disposal of property pending trial in certain cases---Scope---Sections 516-A, 517 & 520, Cr.P.C., revealed that during pendency of criminal case, temporary custody of case property could be given by the court to a person who was prima facie entitled thereto and on conclusion of trial, court would make final order regarding disposal of property in question.

Muhammad Shafi v. Abdul Razak and 2 others 2003 YLR 324; Mst. Gul Shan v. The State 1971 PCr.LJ 1279; Malik Saif Ullah v. Ch. Rehmat Ali, S.-I 1993 MLD 542 Haji Ghulam Kadir v. State 1974 PCr.LJ 228 and Mumtaz Akhtar v. State 1977 PCr.LJ 168 rel.

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

----S. 516-A---Order for custody and disposal of property pending trial---Petitioner impugned the order of Appellate Court whereby order granting custody of property to petitioner, was set aside---Validity---Respondent had not approached the Illaqa Magistrate claiming to be owner of cattle which were taken in possession during investigation of a criminal case nor her claim was rejected by Illaqa Magistrate, hence, there was no decision given by the court of first instance which could be challenged by her---Respondent could only approach Illaqa Magistrate by filing proper proceedings claiming to be the owner of disputed cattle and the Illaqa Magistrate, if so moved, could consider her claim and decide the matter after providing an opportunity of hearing to both the parties---Such a course was not adopted by respondent---Appellate Court was not competent to set aside the provisional order of Illaqa Magistrate in favour of petitioner---Impugned order of Appellate Court was set aside.

Abdul Rashid v. Arshad Ali and 2 others 2000 YLR 2619 and Mazhar Ali v. Ansar Ali and others 2014 SCMR 1536 rel.

Waseem Sarwar Khan for Petitioner.

Mirza Muhammad Saleem Baig, Additional Advocate General, Punjab for the State.

Rana Muhammad Ajmal Kanju for Respondent No.3.

Date of hearing: 24th August, 2015.

2016 M L D 925

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

ABDUL MALIK and others---Petitioner

Versus

Mst. SUBBHA MAI alias SABBAH MAI---Respondent

C.R. No.921-D of 2013, decided on 6th August, 2015.

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

----S. 5, Sched---Suit for recovery of dower---Landed property fixed as dower---Family Court, jurisdiction of---Entries of dower incorporated in Nikah Nama---Presumption of truth---Wife filed suit for recovery of dower property with regard to land measuring 16 kanals which was decreed concurrently---Validity---Landed property mentioned in the Nikah Nama was given to the wife by the husband as dower which was incorporated in relevant column of the same---Once husband had given immovable property as dower and it was incorporated in the Nikah Nama, then same would become property of wife---If during his lifetime husband was of the view that entries of Nikah Nama/Nikah Register were tampered with then he could have approached the Deputy Commissioner---Once entries were incorporated in the Nikah Nama then same were to be equated to be a registered deed---Strong presumption of truth was attached to such entries made in the Nikah Nama---Defendants had failed to rebut the presumption attached to the contents of Nikah Nama through any cogent evidence---Wife was entitled to the award of decree as passed by the courts below---No cutting, tampering or overwriting on the Nikah Nama was pointed out by the defendants---Claim of wife with regard to dower of land measuring 16 kanals was genuine---Wife had proved her claim through cogent, reliable and trustworthy oral and documentary evidence---Nothing was on record that the findings recorded by the courts below were not in conformity with the evidence brought on record---Family Court had got the exclusive jurisdiction to entertain and adjudicate upon the dispute wherein movable or immovable property had been claimed as dower---Appeal, review or revision were creation of statute and same could neither be presumed nor inferred if they were not specifically provided in the relevant statute---Defendants had preferred revision against the judgment of Appellate Court which was not competent in family cases---Revision was dismissed in limine.

Mst. Ishrat Bano v. Noor Hussain and 2 others 2010 YLR 2452; Nazish Ishaq and another v. Additional District Judge Liaquatpur and 3 others 2013 YLR 1118; Mst. Nabeela Shaheen and others v. Zia Wazeer Bhatti and others PLD 2015 Lah. 88; Mst. Kanizan Begum v. Additional District Judge, Layyah and 2 others 2014 MLD 1479; Dr. Asma Ali v. Masood Sajjad and others PLD 2011 SC 221; Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10; Asia v. Abdul Rehman and another 1994 CLC 1388; Liaquat Ali v. Additional District Judge, Narowal and 2 others 1997 SCMR 1122; Haris Bin Hassan Akhtar Jang v. Judge Family Court and others 2013 CLC 94; Sifat Aizdi v. Dr. Saima Bashir and 2 others PLD 2008 Pesh. 111; Sh. Abdul Karim v. Atta Mansoor and another 2007 CLC 1671; Sifat Aizdi v. Dr. Saima Bashir PLD 2008 Pesh. 111; Mst. Razia Begum v. Jang Baz and 3 others 2012 CLC 105; I.C.I. Pakistan Limited v. Salahuddin and others 1991 SCMR 15; Pakistan through Military Estate Officer, Kharian Cantt. and another v. Abdul Hayee Khan through Legal Heirs and 5 others PLD 1995 SC 418; Mst. Maryam v. District Magistrate/Controlling Authority, Muzaffargarh and 2 others PLD 1996 Lah. 336; Multan Electric Power Company Ltd. through Chief Executive and another v. Muhammad Ashiq and others PLD 2006 SC 328; Muhammad Husnain and another v. Additional Sessions Judge, Multan and 2 others PLD 2013 Lah. 1 rel.

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

----Preamble---Appeal, review or revision could neither be presumed nor inferred if not specifically provided in the statute (Family Courts Act, 1964)---Appeal, review or revision was not maintainable under west Pakistan Family Courts Act, 1964.

Muhammad Amir Khan Bhutta for Petitioner.

Muhammad Akram Khan Gulyani, for Respondent.

2016 M L D 939

[Lahore]

Before Shahid Karim, J

PUNJAB BOARD OF TECHNICAL EDUCATION through Chairman and another---Petitioners

Versus

ARIF IRSHAD and another---Respondents

C.R. No.678-D of 2002, decided on 20th April, 2015.

Educational Institution---

----Revised result, issuance of---Scope---Plaintiff was declared successful by securing 323 out of 650 marks in the Examination of Certificate in Commerce (C. Com) and he appeared in the Examination of Diploma in Commerce (D. Com) but his result was withheld on the ground that he could not succeed in C. Com. examination---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Judgment of Trial Court was cursory and whimsical---Appellate Court had considered and relied upon the entire facts and circumstances of the case as well as evidence brought by the parties---Errors in notification were to be construed as arithmetical errors---Education Board had no power to change the result by a revised notification---Errors and omissions in the notification would be confined to arithmetical errors---Revised result notification had not been brought to the notice of candidate-(plaintiff) nor he was confronted at any stage---Recalcitrance of Board could not be attributed to the candidate and used in order to work against him---No infirmity was pointed out in the impugned judgment and decree passed by the Appellate Court---Revision was dismissed in circumstances.

Amjad Ikram v. Asiya Kausar 2015 SCMR 1 ref.

Mst. Asma Nadeem v. International Islamic University and others 2002 MLD 290 rel.

Haji Muhammad Aslam Malik for Petitioners.

Muhammad Shoaib Khan Bazdar for Respondent No.1.

2016 M L D 946

[Lahore]

Before Hafiz Shahid Nadeem Kahloon, J

OSAMA TARIQ---Petitioner

Versus

AMIR GUL and 3 others---Respondents

PSLA No.2 of 2014, heard on 2nd June, 2015.

Penal Code (XLV of 1860)---

----Ss. 379, 427, 354, 452 & 34---Criminal Procedure Code (V of 1898), S.417(2)---Theft, mischief, assault or criminal force to woman with intent to outrage her modesty, house-trespass after preparation for hurt, assault or wrongful restraint, common intention---Petition for special leave to appeal against acquittal---Reappraisal of evidence---Petitioner/complainant, was not present at his house at the time of occurrence and had dictated the the story after hearing from his servants, present in his house at the time of occurrence---Police had deleted S.379, P.P.C.---Evidence of the complainant being hearsay, had no testimonial value---Occurrence took place in full darkness---Complainant and accused persons, lived in the same vicinity---Civil litigation between the parties, regarding the passage was tried to convert into criminal proceedings for harassing the accused persons---Statements of the prime witnesses was full of contradictions---Two star witnesses, were allegedly beaten by accused persons, but the victims did not receive any medical report in that respect---Prosecution witnesses took divergent stance regarding lurking trespass in the house of the complainant---Recovery of weapon of offence, was not effected from accused persons during the investigation, nor specific weapon was alleged to be carrying by accused persons---Star witnesses of the occurrence, did not support the prosecution version---Trial Court after appraisal of evidence available on record had rightly acquitted accused persons---Trial Court, had passed well reasoned judgment while acquitting accused persons---When an accused was acquitted from the case after protracted trial, double presumption of innocence, was attached to him---Petitioner/complainant having failed to make out a case for conviction of respondents/accused persons, judgment of the Trial Court, was not open to exception in circumstances.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Haji Amanullah v. Munir Ahmad and others 2010 SCMR 222 ref.

Sardar M. Ashfaq Abbasi for Petitioner.

Nemo for Respondent.

Date of hearing: 2nd June, 2015.

2016 M L D 960

[Lahore]

Before Muhammad Tariq Abbasi and James Joseph, JJ

RAB NAWAZ---Petitioner

Versus

The STATE and 6 others---Respondents

Crl. Misc. No.771-M of 2014, heard on 12th February, 2015.

Criminal Procedure Code (V of 1898)---

----S. 417---Appeal against acquittal---Delay, condonation of---Appellant/applicant, seeking condonation of delay in filing delayed appeal, had contended that due to summer vacations, appeal was not entertained and that when the court opened, he immediately filed appeal---Validity---During the year 2014, High Court remained closed for summar vacations from 1-7-2014 to 6-9-2014; and opened on 8-9-2014---Appeal, which was to be filed on the very first day on opening of court i.e. 8-9-2014, was filed on 12-9-2014 after 4 days of opening of the court---Delay could not be condoned in appeal filed against acquittal, until and unless it was shown that appellant was precluded from filing appeal within time, due to some act of acquitted respondents, or by some other circumstances of a compelling nature, beyond control of appellant---No such contention had been either alleged or found in the record---Appellant was supposed to act vigilantly and file appeal within time, but he was indolent which resulted in lapse of prescribed time---Equity aids vigilant and not indolent---Each and every day should have been satisfactorily explained, but in the present case, said requirement was missing---No reason, cause or justification being available to condone the delay in filing appeal, application for condonation of delay, was dismissed, in circumstances.

Lahore Development Authority v. Muhammad Rashid 1997 SCMR 1224; Nazar v. The State 1968 SCMR 71; Jalal Khan v. Lakhmir 1968 SCMR 1345; Piran Ditta v. The State 1970 SCMR 282; Nur Muhammad v. The State 1972 SCMR 331 and Mian Abdul Rahim Sethi and others v. Federation of Pakistan through Minister of Defence and others 2000 SCMR 1197 ref.

Safdar Hussain Sarsana for Petitioner.

Hassan Mehmood Khan Tareen, Deputy Prosecutor General for the State.

Date of hearing: 12th February, 2015.

2016 M L D 963

[Lahore]

Before Masud Abid Naqvi, J

DILAWAR KHAN---Petitioner

Versus

ALI NAWAZ and others---Respondents

C.R. No.1000 of 2010, decided on 1st December, 2015.

(a) Malicious prosecution---

----Suit for damages---Prosecution of a criminal offence---Plaintiff filed suit for damages on the ground that he was acquitted of the charge in complaint case lodged by the defendant---Suit for damages was decreed concurrently---Validity---Plaintiff had not stated with regard to reputation or mental agony and the damages suffered by him---Plaintiff was bound to prove not only the prosecution but also the other ingredients for grant of damages---Acquittal of plaintiff was based on withdrawal of complaint by the defendant on the basis of compromise---Initial burden of proof was on the plaintiff to substantiate his claim (s) by adducing cogent, legal, relevant and unimpeachable evidence of definitiveness---Plaintiff had failed to establish/substantiate/prove his claim of damages---Impugned judgments were without reasoning as required for grant of a decree for compensation for mental/physical torture or disrepute suffered at the hands of complainant---Said judgments and decrees were result of mis-reading and non-reading of evidence which were set aside by High Court.

(b) Malicious prosecution---

----Elements to be taken into consideration---Plaintiff must establish for a decree for malicious prosecution that he/she was prosecuted by the defendant with malice; that prosecution ended in his/her favour; that defendant acted without reasonable and probable cause; that proceedings had interfered with his/her liberty and that same had affected his/her reputation and plaintiff had suffered damage.

Mian Tariq Hussain for Petitioner.

Respondents proceeded against ex parte on 22-10-2015.

2016 M L D 977

[Lahore]

Before Ali Akbar Qureshi, J

SHAHID BASHIR KHAN---Petitioner

Versus

NAJMA ANEES SHEIKH and others---Respondents

W.P. No.3777 of 2014, decided on 5th August, 2015.

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

----S. 15---Ejectment of tenant---Application for leave to contest---Preliminary objections---Scope---Rent Tribunal was not denuded of the power to take cognizance of preliminary objections taken by the tenant in the application for leave to contest---Tenant should have first agitated all such objections before the proper forum instead of approaching the High Court---Rent Tribunal was bound to perform its duties in terms of Punjab Rented Premises Act, 2009---High Court directed the Rent Tribunal to dispose of all the objections if agitated by the tenant while deciding petition for leave to contest---Constitutional petition was dismissed in circumstances.

Abdul Sattar v. Mst. Anar Bibi and others PLD 2007 SC 609; Khalid Ahmad v. Abdul Jabbar Khan and others 2005 SCMR 911; Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428; Mushtaq Ahmad Qadri v. Noor Hussain 1993 MLD 1972; Zahida Parveen and 3 others v. Muhammad Saleem and another 2003 CLC 1245; Begum Azhari Bashir v. Abdul Hamid Chowdhary and 5 others 1984 MLD 1047; Taj Din and others v. Muhammad Ramzan and others 1989 MLD 234; The Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others PLD 1975 SC 331; Federation of Islamic Republic of Pakistan v. Yousaf A. Haroon and another 2002 CLC 1382; Shafique Ahmad v. Mirza Muhammad Anwar Beg PLD 1968 Lah. 367; Sohni Shah v. Momeen and others 1988 CLC 67; Muhammad Shabir and 3 others v. Mst. Janat Khatoon 2015 CLC 102 and Khushi Muhammad and others v. WAPDA and others 1992 CLC 2356 ref.

Hanif and others v. Malik Ahmed Shah and another 2001 SCMR 577 rel.

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

----S. 34---Provisions of Qanun-e-Shahadat, 1984 and Code of Civil Procedure, 1908---Applicability to the proceedings under Punjab Rented Premises Act, 2009---Scope---Provisions of Qanun-e-Shahadat and Code of Civil Procedure, 1908 were not applicable to the proceedings under Punjab Rented Premises Act, 2009 before the Rent Tribunal, District Judge or Additional District Judge.

Haji Khudai Nazar and another v. Haji Abdul Bari 1997 SCMR 1986 rel.

Muhammad Ali Binyameen for Petitioner.

Irfan Aslam Rana for Respondent.

2016 M L D 988

[Lahore]

Before Amin-ud-Dinn Khan, J

PROVINCE OF PUNJAB through Collector and 2 others---Petitioners

Versus

ABDUL GHANI and others---Respondents

Civil Revision No.923 of 1996, decided on 28th April, 2015.

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

----O. XLI, R. 31---Allotment of land---Points for determination---Scope---When plaintiff did not appear as his witness at the time of affirmative evidence and his statement was recorded after the evidence of defendant then said statement could only be read as rebuttal evidence and not as affirmative evidence---Findings recorded by the Trial Court were based on the evidence available on record---Findings recorded by the Appellate Court were in violation of procedure provided under O. XLI, R. 31, C.P.C.---Appellate Court was required to record issue-wise findings or to frame point for determination---Neither findings had been recorded issue-wise nor point for determination had been framed---Judgment passed by the Appellate Court was defective---Nothing was available on record as to when suit land was allotted/adjusted in favour of plaintiffs---Plaintiffs had not produced any evidence to prove that impugned order had been passed by the revenue authorities or mutation in favour of defendant was against the facts and was illegal---Findings recorded by the Appellate Court were not sustainable under the law---Plaintiffs had failed to prove their case as pleaded by them---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed in circumstances.

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

----S. 115---Revision petition---Office objection---Limitation---When revision was initially filed within the prescribed period of limitation and office raised objection and time for removing objection if consumed more than the time granted by the court then revision could not be dismissed as barred by time.

Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400 and Muhammad Boota v. Basharat Ali PLD 2014 Lah. 1 rel.

Muhammad Aurengzaib Khan, Assistant Advocate General Punjab for Petitioners.

Abdul Rashid Sheikh for Respondents.

Date of hearing: 28th April, 2015.

2016 M L D 1002

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

ASGHAR ABBAS---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.2566 of 2010, heard on 24th November, 2015.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Conviction on the basis of second report of Chemical Examiner---Scope---Chemical Examiner reported that the result of the test performed on the sample provided, did not show conclusive result and second sample was required---Second sample was prepared and same was sent to the Chemical Examiner and report was obtained which was positive---Prosecution had not established as to whether second sample was obtained from the material recovered from the possession of the accused---Nothing was on record as to how and in whose presence second sample was prepared---Report of Chemical Examiner could not be made base for conviction of accused in circumstances---Material contradictions existed on record---Prosecution had not been able to prove its case beyond any reasonable doubt---Impugned judgment was set aside and accused was acquitted from the charge---Surety of the accused was discharged from liability---Appeal was allowed in circumstances.

Mst. Fatima v. The State 2002 PCr.LJ 32 rel.

Imtiaz Hussain Khan Baloch for Appellant.

Muhammad Atif Rao, DDPP for the State.

Date of hearing: 24th November, 2015.

2016 M L D 1018

[Lahore]

Before Shahid Mubeen, J

Malik MUHAMMAD AKHTAR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

W.P. No.1384 of 2008, decided on 11th August, 2015.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 7 & 8---Illegal dispossession of property---Interim relief under S.7 of Illegal Dispossession Act, 2005---Petitioner impugned order of Trial Court whereby respondent was put in possession of suit property---Validity---Complainant (respondent) never mentioned anything about being involved with any land mafia or qabza group in his complaint as well as in his cursory statements, therefore, complaint under S.3 of the Illegal Dispossession Act, 2005 was not competent and since the main complaint was not competent so the impugned order, whereby interim possession was granted to complainant, by the Trial Court, was illegal having been passed without deciding the application under S.265-K of Criminal Procedure Code, 1898, which was illegality---Impugned order did not discuss the cursory statements but only relied on the report produced by the SHO---Constitutional petition was allowed and the impugned orders were set aside.

PLD 2007 Lah. 231 ref.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231; Bashir Ahmad v. Additional Sessions Judge, Faisalabad and 4 others PLD 2010 SC 661; Habibullah and others v. Abdul Mannan and others 2012 SCMR 1533 and Muhammad Ihsan and others v. Muhammad Yousaf and others 2007 MLD 1034 rel.

(b) Illegal Dispossession Act (XI of 2005)---

----Ss. 7 & 8---Interpretation of S.7 of Illegal Dispossession Act, 2005---Nature, object and scope of interim relief contemplated under S.7 of Illegal Dispossession Act, 2005.

Ch. Sadaqat Ali for Petitioner.

Mirza Shahid Baig-I for Respondent.

Muhammad Ejaz, AAG with Muhammad Nazir, ASI.

2016 M L D 1030

[Lahore]

Before Amin-ud-Din Khan, J

GHULAM MOHY-UD-DIN (deceased) through L.Rs.---Petitioner

Versus

MUHAMMAD SANA ULLAH (deceased) through L.Rs. and others---Respondents

Civil Revision No.1275 of 2007, heard on 10th November, 2015.

(a) Punjab Pre-emption Act (I of 1913)---

----S. 15---Superior right of pre-emption---Rival pre-emptor---Production of rebuttal evidence only by the plaintiff-pre-emptor---Effect---Plaintiff-pre-emptor neither appeared as a witness himself nor produced any other witness at the time of affirmative evidence---Trial Court decreed the suit of plaintiff-pre-emptor whereas that of defendant-rival pre-emptor was dismissed---Appellate Court dismissed the suit of plaintiff-pre-emptor and decreed that of defendant-rival pre-emptor---Validity---When plaintiff was required to produce affirmative evidence, he must produce the same at the time of his turn---If plaintiff opted not to produce the oral evidence and to appear as his own witness then other side had no opportunity to go through or see what affirmative evidence was in the mind of plaintiff---Defendant would have no occasion in such eventuality to rebut the affirmative part of plaintiff's evidence---Pleadings could not be considered and used as evidence---When plaintiff-pre-emptor opted to get his statement recorded at the time of rebuttal evidence then his part of statement with regard to affirmative evidence could not be considered and read in affirmative evidence---Evidence of plaintiff-pre-emptor after the evidence of defendant-rival pre-emptor could only be read in rebuttal evidence---Documentary evidence produced by the plaintiff-pre-emptor in the statement of his counsel did not prove his superior right of pre-emption as same was not per se admissible---No benefit of such documentary evidence could be given to the plaintiff-pre-emptor---No evidence in support of claim of plaintiff-pre-emptor being available at the time of turn of defendant-rival pre-emptor, findings recorded by the Appellate Court were in accordance with law---Revision was dismissed in circumstances.

Allah Yar and 18 others v. Ghulam Jilani and 3 others PLD 1995 Lah. 409; Rehman v. Noora deceased through his L.Rs. 1996 SCMR 300; Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235; Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; Umar Din deceased through L.Rs. and others v. Abdul Rahim and others 2005 SCMR 495; Mst Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Ch. Allah Ditta v. Abdul Aziz 1984 CLC 651; Pir Muhammad Yunus Shah and 10 others v. Abdullah and 2 others 1992 CLC 15; Jameel Ahmed v. Saifuddin PLD 1994 SC 501; Muhammad Hussain and others v. Muhammad Khan 1989 SCMR 1026; Muhammad Naeem and others v. Ghulam Muhammad and others 1994 SCMR 559; Khuda Bakhsh v. Habib Ullah 1999 SCMR 1800 and Mst. Parveen v. Mst. Jamsheda Bezum and another PLD 1983 SC 227 ref.

(b) Pleadings---

----Pleadings could not be considered and used as evidence.

Ghulam Farid Sanotra for Petitioner.

Ghulam Hussain Malik for Respondents.

Date of hearing: 10th November, 2015.

2016 M L D 1049

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi and Aslam Javed Minhas, JJ

MUHAMMAD HUSSAIN---Appellant

Versus

MUHAMMAD AKRAM and 3 others---Respondents

Crl. Appeal No.156 of 2009, heard on 30th November, 2015.

Penal Code (XLV of 1860)---

----Ss. 302 & 109---Criminal Procedure Code (V of 1898), S.417(2)---Qatl-i-amd, abetment---Appeal against acquittal---Reappraisal of evidence---Contention of complainant was that Trial Court had acquitted accused persons by ignoring the fact that they were also present along with main accused at the spot in furtherance to their common object and Trial Court did not discuss evidence and acquitted them in hasty manner---Accused's plea was that prosecution failed to bring on record the guilt of accused beyond a reasonable doubt, therefore, Trial Court had rightly acquitted them---Validity---Once acquittal was granted by a court of competent jurisdiction, strong grounds were required to re-call freedom of accused and unless it was demonstrated that impugned view of court whereby acquittal was recorded, was perverse, arbitrary and capricious, resulting into miscarriage of justice, the same could not be interfered with---In the present case, Trial Court had discussed each and every aspect of evidence available on record and there was no evidence on record that accused persons had caused any injury to deceased---Complainant failed to point out any mis-reading or non-reading of evidence, therefore, no interference with impugned judgment to the extent of respondents was called for---Accused was presumed to be innocent in law and if after regular trial he was acquitted, he earned a double presumption of innocence and heavy burden lay on the prosecution to rebut such presumption---Appeal was dismissed, accordingly.

Shahiad Abbas v. Shahbaz and others 2009 SCMR 237; Azhar Ali v. The State PLD 2010 SC 632; M. Iqbal v. Abid Hussain 1994 SCMR 1928 and Ghulam Sikandar v. Mumraiz Khan PLD 1985 SC 11 rel.

Shakeel Ahmad Bhatti for Appellant.

Malik Amir Manzoor Awan for Respondents.

Muhammad Ali Shahab, D.P.G. for the State.

Date of hearing: 30th November, 2015.

2016 M L D 1061

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. SANA ASIM HAFEEZ---Petitioner

Versus

ADMINISTRATOR/CHAIRMAN, ARBITRATION AND CONCILIATION COURT---Respondent

W.P. No.21610 of 2012, decided on 21st January, 2014.

Family Courts Act (XXXV of 1964)---

----S.5---Divorce---Spouses residing outside Pakistan having dual nationality---Certificate of effectiveness of divorce, issuance of---Scope---Contention of wife was that she was not served with notice of divorce in UK through Pakistan Commission and Chairman Union Council was not competent to issue certificate of divorce---Validity---Both the spouses were holding dual nationality and were residing in UK at the time of execution of divorce deed---Divorce deed was completed in UK and husband appointed his arbitrator through a special power-of-attorney sent from abroad---Secretary Union Council served notice to the wife through her father when she was residing in UK at the same time---Wife was never served with any notice at her address in UK---Husband had remedy of approaching the Pakistan Mission in UK for reconciliation or effectiveness of divorce deed---Husband had submitted himself to the jurisdiction of Family Division of High Court of Justice, London, UK and said court had assumed jurisdiction in the matter---Proceedings in family matters were to be instituted where the children or wife were ordinarily residing---Both the parties were permanent residents of UK and Arbitration Council in Pakistan had no jurisdiction to proceed in the matter---Proceedings initiated against the wife were in violation of law and rules and were based on mala fide of public functionaries---High Court in constitutional jurisdiction had power to grant relief to the aggrieved party when statutory functionary had acted mala fide or in a partial, unjust and oppressive manner---Impugned divorce certificate was declared to be null, void and of no legal effect---Constitutional petition was accepted in circumstances.

Mian Irfan Latif v. Nazim/Chairman Union Council No.100 and another 2009 YLR 1141; Romana Zahid v. Chairman, Arbitration Council/Nazim Union Council and another PLD 2010 Lah. 681; Syeda Wajiha Haris v. Chairman, Union Council No.7, Lahore 2010 MLD 989; Dr. Ashfaq Ahmad Khan v. Mst. Samina Khan and others 2008 SCMR 466 and Muhammad Talat Iqbal Khan v. Tanvir Batool through Wasim Iqbal and 2 others 2005 CLC 481 ref.

Syeda Wajiha Haris v. Chairman, Union Council No.7, Lahore 2010 MLD 989 and Muslimabad Cooperative Housing Society v. Mrs. Siddiqa Faiz and others PLD 2008 SC 135 rel.

Altaf-ur-Rehman for Petitioner.

Sh. Tariq Mahmood and Mumtaz Ahmed Chaudhry for Respondent.

Date of hearing: 21st January, 2014.

2016 M L D 1077

[Lahore]

Before Shahid Bilal Hassan, J

Messrs COCA COLA BEVERAGES PAKISTAN LIMITED through Company Secretary---Appellant

Versus

Messrs ECHO WEST INTERNATIONAL (PVT.) LTD. through Chief Executive Officer and another---Respondents

F.A.O. No.330 of 2014, decided on 30th June, 2014.

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

----S.11, O. II, R. 2, O. VII, R. 11, O. XXXIX, Rr. 1, 2, O. XLIII, Rr.1 & 3---Suit for declaration and injunction---Appeal, maintainability---Non-issuance of statutory notice---Res judicata---Rejection of plaint---Filing of second suit on same cause of action---During pendency of earlier suit filed by plaintiff, second suit on same cause of action was filed by plaintiff against same defendant---Grievance of defendant was that Trial Court instead of granting ad interim injunction, should have rejected the plaint---Plea raised by plaintiff was that appeal was not maintainable as notice required under O. XLIII, R. 3, C.P.C. which was mandatory under law, had not been given to plaintiff---Validity---When appeal was admitted for regular hearing and defendant's side had put in appearance before court, it was presumed that provision of law had been met with---Second suit instituted by plaintiff during pendency of earlier Arbitration suit, was not maintainable being hit by O. II, R. 2 , C.P.C. as well as under S. 11, C.P.C., i.e. res judicata---High Court in exercise of jurisdiction under O. VII, R. 11, C.P.C., rejected second suit filed by plaintiff---Appeal was allowed in circumstances.

Associate Construction v. Federation of Pakistan and others 2010 MLD 627; Faisal Kapadia and another v. Motorola Ltd. and 2 others 2010 MLD 518; Munda Hydropower Ltd. through Habib H. Paracha and 2 others v. Federation of Pakistan through Secretary Ministry of Water and Power and 2 others 2009 MLD 526; Muhammad Naved Aslam and 3 others v. Mst. Aisha Siddiqui and 14 others 2011 CLC 1176; Muhammad Bachal v. Province of Sindh through Home Secretary and 12 others 2011 CLC 1450; XEN, Highway Division, Abbottabad and another v. Habib Ur Rahman 1996 CLC 279;, Sh. Fazal Hussain v. Board of Governors, Divisional Public High School, Lyallpur 2001 MLD 407; Messrs Mono Engineering (Pvt.) Limited v. The Karachi Development Authority 1999 YLR 1340; Malik Maqsood Asghar and 5 others v. Malik Sultan Asghar and 2 others 2008 CLC 1150; Hafiz Muhammad Abrar and another v. Addl. District Judge, Multan and 17 others 2012 YLR 2471; Muhammad Anwar v. Messrs Associated Trading Co. Ltd. and 2 others PLD 1987 Kar. 535, Syed Altaf Hussain through Attorney v. Irshad Ahmed and 9 others 2014 MLD 457; Zulqarnain v. SNGPL through General Manager and 2 others 2013 YLR 503; Syed Saqlain Abbas v. Syed Hayat Shah 2012 CLC 945; Messrs James Construction Company (Pvt.) Ltd., Lahore through Executive Director v. Province of Punjab through Secretary to the Government of Punjab (Communication and Works) Department, Lahore and 3 others PLD 2002 SC 310; Oil and Gas Development Corporation Ltd. Pakistan v. Claugh Engineering Ltd. through Local Representative Mr. Martin Harris 1999 MLD 254; Messrs China Harbour Engineering Co. v. Water and Power Development Authority and others 2001 YLR 1781; Ch. Bashir Ahmad and 4 others v. Province of Punjab through Collector, Sargodha and 4 others 1990 MLD 986; Salahud Din v. Syed Mansoor Ali Shah and others 1997 SCMR 414; United Bank Limited v. Messrs Khawaja Radio House through Proprietor and 2 others 2004 CLD 1609 and Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693 rel.

Roomi Enterprises (Pvt.) Ltd. v. Stafford Miller Ltd. and others 2005 CLD 1805; (Messrs) The Associated Cement Companies Ltd. v. The Province of Punjab PLD 1954 Lah. 151; Shah Muhammad Khan v. Ghulam Qadir, and others PLD 1971 Baghdad Ul Jadid 9; Mirza Muhammad Iqbal Beg and others v. International Estate Developers Ltd. 1986 MLD 2785; Mst. Sajida Yousaf v. Lahore Development Authority 1989 MLD 225; N.R. Dongre and others v. Whirlpool Corporation and another 1997 MLD 2124; Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 PLC (C.S.) 971; Mirza Iftikhar Beg v. Government of the Punjab through Secretary Health, Lahore and another 1990 CLC 851; Pioneer Pakistan Seed Ltd. v. United Distributors Pakistan Ltd. and 5 others 1998 CLC 61; Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508; Karachi Electric Supply Company through duly authorized officer v. Muhammad Shahnawaz and 46 others 2010 YLR 2426; Government of Pakistan through Secretary Ministry of Interior, Islamabad v. Dr. Abdul Qadeer Khan 2010 MLD 533; West Pakistan Industrial Development Corporation v. Messrs Sheikh Muhammad Amin and Co. 1992 CLC 2047; Bangladesh Shipping Corporation v. Syed Muhammad Anwar Iqbal 1992 CLC 1500; Ghulam Farid and others v. Province of Punjab and others 2013 MLD 77; Messrs James Construction Company (Pvt.) Ltd. through Executive Director v. Province of Punjab through Secretary to the Government of Punjab (Communication and Works) Department, Lahore and 3 others PLD 2002 Supreme Court 310; United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Habib Bank Limited and others v. Syed Zia Ul Hassan Kazmi 1998 SCMR 60 and Messrs Chas A. Mendoza Pharmaceutical Laboratories v. Syed Tausif Ahmad Zaidi and 2 others PLD 1993 Kar. 790 distinguished.

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

----Ss.20 & 33---Arbitration through court---Proceedings as civil suit---Scope---Although proceedings under provisions of Ss. 20 & 33 of Arbitration Act, 1940, are not suit in stricto sensu, yet the proceedings are to be treated as a civil suit---Though said proceedings are not full-fledged civil suit in stricto sensu, but these are legal proceedings with limited scope---Application under S. 20 of Arbitration Act, 1940, is treated as a suit and order directing filing of agreement and making reference to arbitration being final in circumstances amounts to a decree.

Messrs Mono Engineering (Pvt.) Limited v. The Karachi Development Authority 1999 YLR 1340 and Messrs China Harbour Engineering Co. v. Water and Power Development Authority and others 2001 YLR 1781 rel.

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

----S.104, O.VII, Rr.10 & 11---Appellate jurisdiction---Powers of court---When from facts of a case it becomes clear that plaint is not entertainable being barred by law, the same can be rejected or returned.

Muhammad Anwar v. Messrs Associated Trading Co. Ltd. and 2 others PLD 1987 Kar. 535 rel.

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

----S.20, O.VII, R.10 & O.XXXIX, Rr.1 & 2---Territorial jurisdiction---Return of plaint---Grant of interim injunction---Scope---Subject matter of case was within territorial jurisdiction of place "M", whereas plaintiff instituted suit in Civil Court at place "L", which court lacked territorial jurisdiction to entertain the suit---Trial Court instead of passing ad-interim injunction, while entertaining the suit, should have returned the plaint for its presentation before proper forum for adjudication in accordance with law.

Muhammad Bachal v. Province of Sindh through Home Secretary and 12 others 2011 CLC 1450 rel.

Ashtar Ausaf Ali, Muhammad Azam Chughtai, Miss Nida Aftab and Sardar Muhammad Omer Khan Khosa for Appellant.

Asjad Saeed for Respondent No.1.

Date of hearing: 23rd June, 2014.

2016 M L D 1095

[Lahore]

Before Arshad Mehmood Tabassum, J

MUHAMMAD NAYAB---Petitioner

Versus

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

W.P. No.3349 of 2012, heard on 10th January, 2014.

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

----Ss.16 & 19---Constitutional petition---Ejectment application---Non-mentioning the correct name/designation of Trial Court---Effect---Contention of the petitioner/tenant was that the landlord addressed the ejectment petition to senior civil judge/Rent Controller, whereas under the law the same was to be instituted in the court of Special Judge (Rent), therefore the impugned judgment of Trial Court was without jurisdiction---Validity---Ejectment petition had been addressed to the Senior Civil Judge/Rent Controller, however the same Judge had been duly notified as Special Judge (Rent)---Mere non-mentioning of the correct designation of the Trial Court had not taken away the jurisdiction of the Special Judge (Rent), who was seized of the matter and decided the same---Constitutional petition was dismissed.

Rashid Ahmad v. The State PLD 1972 SC 271; Evacuee Trust Property Board v. Ali Bahadur PLD 2011 SC 126 and Caltex Oil (Pak.) Ltd. v. Mian Ashiq Muhammad Faiz PLD 1990 Lah. 370 distinguished.

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

----Ss. 2(d) & 19---"Landlord"--- Definition--- Scope--- Ejectment application---Maintainability---Competency/locus standi to file petition---Ejectment application was filed by the person to whom the petitioner/ tenant was paying rent regularly---Person dealing with collection of rent, enhancement of rent and negotiation with the tenant for evicting the premises fell within the expression "landlord" and ejectment application filed by such person was maintainable.

Hanif and others v. Malik Ahmed Shah and another 2001 SCMR 577 rel.

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

----Ss. 2(d) & 19---Co-owner of property---"Landlord"---Definition---Scope--- Ejectment application--- Maintainability--- Competency/locus standi to file petition---Ejectment application was filed by co-owner of demised property---Effect---Co-owner fell within the expression "landlord" and ejectment application filed by such person was maintainable.

Haji Abdullah Jan v. Anwar Khan PLD 2000 SC 787 rel.

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

----Ss. 15(a) & 19---Transfer of Property Act (IV of 1882), S.106---Constitution of Pakistan, Art.199---Constitutional petition---Expiry of lease agreement---Oral tenancy---Ejectment of tenant---Notice for vacating rented premises, requirement of---Scope---Landlord had sought eviction of tenant on the ground of expiry of lease agreement---Application for ejectment was allowed by Special Judge (Rent) and appellate Court upheld the judgment of Trial Court---Validity---After the expiry of lease period, further agreement was not executed between the parties and tenancy had become oral---Such tenancy would be governed on month to month basis and was terminable on fifteen days notice---Ejectment petition filed by landlord was itself notice for vacating the rented property to the tenant, thus he was liable to be evicted---Courts below had rightly been ordered for eviction---Constitutional petition was allowed.

Nadeem Ahmad Shah for Petitioner.

Malik Mubashar Rafique for Respondent No.3.

Date of hearing: 10th January, 2014.

2016 M L D 1107

[Lahore]

Before Aalia Neelum, J

ABAID ULLAH---Appellant

Versus

The STATE and others---Respondents

Crl. Appeal No.799 of 2007, heard on 17th April, 2015.

Penal Code (XLV of 1860) ---

----Ss. 302 (b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---First information report was recorded with delay which could not be used against the accused as a corroborative piece of evidence---Prosecution witnesses had not attributed any motive to the accused to commit the alleged offence---Prosecution had not been able to prove its case against the accused beyond shadow of doubt---Conviction and sentence recorded by the Trial Court could not be sustained which were set aside while extending benefit of doubt---Accused was acquitted of the charge and sureties were discharged---Appeal was allowed in circumstances.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Ch. Iftikhar Ahmad for Appellant.

Muhammad Ikhlaq, Deputy Prosecutor General for the State.

Date of hearing: 17th April, 2015.

2016 M L D 1128

[Lahore]

Before Mushtaq Ahmad Tarar, J

ASIF NADEEM and another---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE/APPELLATE AUTHORITY TEHSIL, MIANCHANNU and 4 others---Respondents

W.P. No.15440 of 2015, decided on 6th November, 2015.

Punjab Local Government Act (XVIII of 2013) ---

----S. 27 (2) (e)---Punjab Local Government (Legal Advisers) Rules, 2003, Rr. 4, 5, 7 & 9---Election for local government---Candidate being legal adviser of Tehsil Municipal Administration submitted nomination papers to contest election of Chairman and Vice-Chairman as joint candidature which were accepted---Validity---Candidate-respondent was in the service of Tehsil Municipal Administration under the control/supervision and with the power of appointment and removal with the payment of remuneration/compensation by the Government---Case of candidate-respondent did not fall within the exception of S. 27(2)(e) of Punjab Local Government Act, 2013---Candidate-respondent was disqualified to contest the election of local government for the seat of Vice Chairman---Joint nomination papers had been submitted by the respondent and other candidate---Disqualification of respondent would also affect the candidature of other candidate and both would become disqualified to contest election in the panel---Impugned orders passed by the Returning Officer and Appellate Authority were not sustainable under the law which were set aside---Nomination papers submitted by both the candidates were liable to be rejected---Constitutional petition was allowed in circumstances.

Zafar Mehmood Mughal v. Sajjad Akbar Abbasi and others PLJ 2015 SC 814; Sajjad Akber Abbasi v. Advocate-General Punjab and 3 others PLD 2014 Lah. 627; Zafar Mahmood Mughal, Advocate v. Sajjad Akbar Abbasi and 3 others PLJ 2014 Lah. 112 ref.

Mirza Muhammad Tufail v. District Returning Officer and others PLD 2007 SC 16 rel.

Khawaja Qaisar Butt for Petitioners.

Rana Muhammad Asif Saeed for Respondents Nos. 3 and 4.

Shaukat Bilal Khan Banguish, Standing Counsel with Meer Hassan, ARO UC Nos.68 to 74.

Date of hearing: 3rd November, 2015.

2016 M L D 1157

[Lahore]

Before Mirza Viqas Rauf, J

HASSAN BAKHSH through Legal Heirs---Petitioners

Versus

SULTAN and 2 others---Respondents

Civil Revision No.1131-D of 2004, decided on 17th September, 2015.

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

----Ss. 17, 20, 21 & 26-A----Appointment of arbitrator---Order of reference---Power to supersede arbitration when award was void or set aside---Award to set out reasons---Trial court, rejecting objection filed by defendant, decreed the suit making award of arbitrator rule of court; appellate court maintained judgment and decree of Trial Court---Validity---Under S. 21 of Arbitration Act, 1940, all parties interested must be in agreement in sending the matter in difference between them to Arbitrator for its resolution---Consent of plaintiff and defendant-Society had not been obtained for sending the matter to arbitration---All parties interested must have been agreed that the matter would be referred to arbitrators, which was lacking in the present case---Appointment of arbitrators and referring the matter in issue to them was in violation of S. 21 of Arbitration Act, 1940---Arbitrators, while proceeding with the arbitration, had also not made any effort to associate plaintiff and respondent in arbitration proceedings, which had badly affected validity of the award---Section 17 of Arbitration Act, 1940 cast duty upon court to examine the award even on its own in order to see as to whether the same suffered from any patent illegality necessitating either setting aside of the award or its remission to Arbitrator, even when no objection had been filed by any of the parties---Under S. 26 of Arbitration Act, 1940, the arbitrators were duty bound to state in the award the reasons for the same in sufficient details to enable court to consider any question of law arising out of the award---Award in question lacked necessary reasons as required under S. 26-A of Arbitration Act, 1940---Trial court had discarded objection of defendant in cursory manner without applying its judicial mind in terms of S. 17 of Arbitration Act, 1940---Courts below, while making the award rule of court, had acted in illegal and unlawful manner---High Court, holding reference of the matter to arbitration and award rendered on basis thereof illegal and unlawful, set aside impugned judgment and decrees of both courts below and restored proceeding of the suit for decision afresh---Revision petition was allowed, in circumstances.

Umar Din through L.Rs. v. Mst. Shakeela Bibi and others 2009 SCMR 29 and Province of Punjab through Collector, Jhang and 2 others v. Messrs Sher Muhammad and Co. and 23 others 2001 CLC 613 ref.

Province of Punjab through Collector, Jhang and 2 others v. Messrs Sher Muhammad & Co. and 23 others 2001 CLC 613; Umar Din through L.Rs. v. Mst. Shakeela Bibi and others 2009 SCMR 29 and A. Qutubuddin Khan v. CHEC Millwala Dredging Cl. (Pvt.) Ltd. 2014 SCMR 1268 rel.

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

----Ss. 19,20 & 21----Parties to suit may apply for order of reference---Appointment of arbitrator---Order of reference---Arbitration is a bilateral arrangement for investigation and determination of a dispute or disputes between parties by one or more persons chosen by them, while avoiding the ordinary procedure for resolution of dispute---Arbitral tribunal derives jurisdiction either from arbitration agreement or reference transmitted to him with consent of litigating parties---Proceedings before arbitral tribunal are although not to be regulated in accordance with general principles provided under C.P.C., but such tribunal cannot be absolved from its liability to decide dispute in a just and fair manner.

(c) Administration of justice---

----When a thing is required to be done in a specific manner under some law, then that thing should be done in the manner prescribed but in no other way.

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

----S. 115----Revisional jurisdiction of High Court---Scope---High Court always exercises restraint while interfering with concurrent findings, but such is not principle of universal application---Concurrent findings cannot abstain High Court in exercise of its revisional jurisdiction when same suffer from some patent legal error as per established from record---Revisional jurisdiction is always exercised with great care and caution---When judgment and decree suffers legal flaws enumerated under S. 115, C.P.C., then High Court was duty bound to exercise its revisional jurisdiction in order to eradicate such infirmities.

Mehr Ashfaq Ahmad Utera for Petitioner.

Rana Muhammad Hussain, Assistant Advocate General for Respondents Nos. 2 and 3.

Date of hearing: 17th September, 2015.

2016 M L D 1177

[Lahore]

Before Zafarullah Khan Khakwani, J

MUHAMMAD AJMAL---Petitioner

Versus

DISTRICT RETURNING OFFICER and others---Respondents

W.P. No.8733 of 2015, decided on 25th November, 2015.

(a) Punjab Local Government (Conduct of Elections) Rules, 2013---

----Rr. 17, 12, 14, 2 (g), 2 (y) & 2 (z), Form-VII---Death of a contesting candidate---Election proceedings, termination of---Scope---Candidate died and an application was submitted for termination of election proceedings but same was dismissed by the Returning Officer---Validity---Candidate would become a validly nominated candidate on acceptance of his nomination papers and he would remain nominated candidate till passing of day of withdrawal of nomination papers---Candidate could withdraw his nomination paper till final day fixed for withdrawal of his candidature---If nomination papers were not withdrawn and symbol was allocated to contest the election and Form-VII was prepared then candidate would be termed as contesting candidate---If any contesting candidate died before the day fixed for polls after issuance of Form-VII (through which symbols were allocated) then proceedings with regard to election should be terminated by the Returning Officer---Candidate, in the present case, died on 24-10-2015 whereas list of contesting candidates on Form-VII was prepared on 7-11-2015---Present case did not fall within the category of contesting candidates---Returning Officer had rightly dismissed the application for termination of election proceedings---No illegality or irregularity was pointed out in the impugned order---Constitutional petition was dismissed in circumstances.

(b) Punjab Local Government (Conduct of Elections) Rules, 2013---

----Rr. 2 (g), 2 (y), 2 (z) & 17, Form VII---Contesting candidate---Scope---If nomination papers were not withdrawn and symbol was allocated to contest the election and Form VII was prepared then candidate would be termed as contesting candidate.

Jam Muhammad Afzal Gasoora and Syed Jamil Anwar Bokhari, for Petitioner.

Ch. Abdul Jabbar, Standing Counsel for Federation with Muhammad Afzal, Distt. Election Commissioner and Shoaib Ashraf A.R.O. for Respondents

2016 M L D 1193

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD JAVAID and others---Petitioners

Versus

PRINCIPAL, GOVERNMENT COLLEGE FOR WOMEN, LAHORE---Respondent

C.R. No.116 of 2016, decided on 28th January, 2016.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 1---Appeal from original decree---Appellate Court dismissed the appeal on ground that the petitioner had earlier withdrawn appeal against the same order without permission to file fresh appeal---Validity---Dismissal of the appeal on said ground was contrary to law---High Court, setting aside impugned order of dismissal, directed appellate court to decide the appeal on merits---Revision petition was allowed in circumstances.

Muhammad Yar (deceased) through L.Rs. and others v. Muhammad Amin (deceased) through L.Rs. and others 2013 SCMR 464 rel.

Ch. Ishtiaq Ahmed Khan for Petitioners.

Barrister Danyal Ijaz Chadhar for Respondent.

2016 M L D 1197

[Lahore]

Before Miss Aalia Neelum, J

ABDUL REHMAN alias BOOTA---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No.9473-B of 2015, decided on 18th September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 336, 337-H(2), 148 & 149---Attempt to commit qatl-i-amd, Itlaf-i-Salahiyyat-i-Udw, hurt by rash or negligent act, rioting, common object---Bail, refusal of---Accused was named in the FIR with specific role---Injuries attributed to accused, which were supported by Medico-legal Certificate, fell under S.336, P.P.C.---Eye-witnesses as well as injured witness stood by their statement under S.161, Cr.P.C.---Specific plea of alibi taken by accused, had not seen the light of the day during both investigations---Active participation of accused in the occurrence, prima facie was made out---Itlaf-i-Salahiyyat-i-Udw for which accused was charged, was a heinous offence---Three prosecution witnesses, were already recorded, but they had not been cross-examined by the defence---Trial was likely to be concluded shortly---Bail was declined in circumstances.

Ghulam Hussain Awan for Petitioner.

Muhammad Akhlaq, DPG along with Bashir, ASI for the State.

Khawaja Shoaib Mushtaq for the Complainant.

2016 M L D 1206

[Lahore]

Before Mahmood Ahmad Bhatti, J

MUJAHID HUSSAIN---Petitioner

Versus

The STATE another---Respondents

Criminal Revision No.99 of 2015, decided on 23rd April, 2015.

(a) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---Unrepresented accused---Accused's counsel was not present at the time of cross-examination of witnesses and Trial Court asked accused to cross-examine witnesses himself---Validity---When counsel did not show up for one reason or another, there was no warrant to penalize the accused, charged with a capital offence---Either the hearing of the case could have been adjourned or Trial Court was to engage a counsel for the petitioner at State expense---Trial Court overlooked the fact that due process and fair trial were guaranteed as a Fundamental Right under the Constitution vide Article 10-A of the same---Cross-examination by accused can never be a substitute for the cross-examination carried out by a trained legal mind/counsel---Revision was allowed accordingly.

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

----Art.133---Cross-examination---Scope---Cross-examination by accused can never be a substitute for cross -examination carried out by a trained legal mind/counsel.

Saeed Muhammad Shah v. The State 1993 SCMR 550 and Waqar v. The State 2013 PCr.LJ 1279 ref.

Hamayun Syed Rasul for Petitioner.

Ch. Muhammad Akbar, Deputy Prosecutor General for the State.

2016 M L D 1219

[Lahore]

Before Qazi Muhammad Amin Ahmed, J

TANVEER AHMAD---Appellant

Versus

The STATE and another---Respondents

Crl. Appeal No.679 of 2011, heard on 4th March, 2015.

Penal Code (XLV of 1860)---

----Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel for marriage, rape---Appreciation of evidence---Real sister of accused would not offer her good offices to induce away prosecutrix to eventually land in the clutches of accused, so as to be ravished it was equally hard to believe that accused would solicit the services of his real sister to facilitate him in such a repugnant pursuit, that too in the company of another real brother joined by his father-in-law---Mere rendition of criminal charge, no matter impressively articulated, could not sustain unless it successfully qualified the test of probability---Such happenings possibly could not be contemplated---Occurrence did not take place in the manner as alleged by prosecution witnesses---Unexplained delay of 5 days in reporting the matter to the Police, was yet another flaw in the prosecution case---Medical Officer did not appear in the court for evidence; and even if Medico-legal Certificate was taken into consideration, it did not advance the prosecution case, in the absence of serological grouping and DNA identity analysis---Streak of doubt would entitle an accused to claim freedom---Circumstances raised suspicions about the truthfulness of the accusation; and that suspicion taken from any angle, was neither illusionary nor imaginary---Conviction and sentences recorded by the Trial Court against accused through impugned judgment, were set aside---Accused was acquitted from the charge, and was set at liberty, in circumstances.

Waseem Mumtaz Malik for Appellant.

Rana Muhammad Shafi, DPG for the State.

Chaudhry Imran Ahmad for the Complainant.

Date of hearing: 4th March, 2015.

2016 M L D 1225

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

FAZAL HAQUE and another---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.10140-B of 2015, decided on 15th September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 467, 468, 471 & 34---Cheating and dishonestly inducing delivery of property, forgery, using as genuine a forged document, common intention---Pre-arrest bail, confirmation of---Accused persons, were nominated in the FIR being beneficiaries of alleged false bank guarantee---Settlement/agreement was executed between the parties, and bank had obtained a compromise decree on the basis of said agreement and had filed an execution petition before the High Court, which was pending adjudication---Nothing was on record to establish that accused persons had caused any loss to the complainant Bank---Prosecution had failed to point out as to why the Bank guarantee was required by the Bank---Prima facie, it appeared that the bank upon failure to comply with the terms and conditions of agreement, had lodged case against accused persons just to effect the recovery of amount---No mala fide existed on the part of accused persons, rather it was a negligent attitude of the Bank itself---Investigation in the case, had not properly been conducted with respect to the Bank guarantee---Investigating Agency failed to thrash out the matter regarding alleged forged documents, so as to determine the authenticity of same---Police record was also silent with regard to sending the signatures of Bank Officer to Forensic Science Agency for comparison, which had made the case doubtful---Prosecution had failed to place on record any kind of material with regard to the alleged preparation of false Bank guarantee by accused persons---Pre-arrest bail, was an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motive---Ad interim pre-arrest bail, already granted to accused persons was confirmed, in circumstances.

Ch. Abdul Malik v. The State PLD 1968 SC 349; Muhammad Aslam v. The State 2000 YLR 1341; Nazar Muhammad and 2 others v. The State 2012 PCr.LJ 430 and Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 rel.

Muhammad Asim Mumtaz for Petitioners.

Sajid Mehmood, Standing Counsel for Pakistan with Asif Hussain SI/FIA for the State.

Imran Sarwar for the Complainant.

2016 M L D 1232

[Lahore]

Before Abdul Sami Khan and Sadaqat Ali Khan, JJ

KAMRAN alias BOBI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.184-J of 2007, heard on 11th February, 2015.

Penal Code (XLV of 1860)---

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Kidnapping or abduction for ransom, act of terrorism---Appreciation of evidence---Abscondance---Effect---Scope---No time of occurrence was mentioned in the FIR, which was registered with unexplained delay of about 10 days, and had created doubt in the prosecution story---No specific role had been attributed to accused in the FIR---Nothing was recovered from the possession of accused---Allegation of committing sodomy with the complainant, was against the co-accused---Camera, cassette player and cassette were recovered from acquitted co-accused---Main accused in the case had been acquitted by the Supreme Court by disbelieving the evidence of prosecution---Accused with lesser role, could not be convicted on the same evidence---Trial Court had convicted accused, mainly on the basis of his absconsion---Absconsion, itself was not conclusive proof of guilt of accused; it could be a suspicious circumstance against accused that he was found guilty of the offence, but said suspicion could not take place of proof---Value of the absconsion, would depend on the facts of each case, but an accused could not be convicted on the basis of absconsion only in absence of confidence inspiring evidence, which was missing in the present case--- Prosecution had failed to prove its case against accused beyond reasonable doubt---Conviction and sentence awarded to accused by the Trial Court were set aside, he was acquitted, and was directed to be released, in circumstances.

PLD 2009 SC 53 and Sabir Hussain v. The State 2014 SCMR 794 ref.

Arif Mehmood Rana for Appellant.

Aftab Gul for the Complainant.

Khurraum Khan, D.P.G. for the State.

Date of hearing: 11th February, 2015.

2016 M L D 1243

[Lahore]

Before Shahid Waheed, J

MUHAMMAD IQBAL through L.Rs.---Appellant

Versus

MEHMOOD HASAN and others---Respondents

R.S.A. No.20 of 2003, decided on 30th April, 2014.

Contract Act (IX of 1872)---

----Ss.211 & 201---Transfer of Property Act (IV of 1882), S.41--- Power of attorney---Scope---Revocation of power of attorney---Modes---Sale of property by the attorney on behalf of principal---Termination of authority of an agent---Requirements---Power of attorney was a creation of an agency whereby the grantor would authorize the grantee to do the acts specified therein on behalf of grantor which when executed would be binding on the grantor as same had been done by him---Power of attorney could be revoked or terminated at any time---Each recital in the power of attorney would constitute a separate power---Power of attorney should be strictly construed and limited to the exact words contained therein---Attorney was inter alia authorized to sell, gift, exchange, mortgage and waqf the suit property in the present case and accept the earnest money of sale of said land---Principal had not conferred plenary powers on his attorney to deal with the suit property---No power of sale and execution of sale deed before the Sub-Registrar was given to the attorney---Agreement for sale of property and execution of conveyance after agreement of sale were different things---Attorney was required to use reasonable diligence in communicating with the principal/original owner of suit property and he should have sought his instructions about the sale---When general power of attorney had been revoked before the sale was made, the sale deed was illegal and without lawful authority---Attorney was aware that principal had cancelled his power of attorney---Power of attorney could be revoked orally---Termination of authority of an agent would be effective when same would become known to him or so far as regards third persons when same had become known to them---Revocation of authority through a registered deed was not necessary and only notice was required to be given to the agent and said notice might be oral---No evidence had been led by the plaintiff that attorney took reasonable steps in communicating with the principal and sold the suit property after getting his instructions---Plaintiff had not led any evidence that after execution of sale deed attorney colluded with the principal---Sub-Registrar with mala fide intention had registered the sale deed after registration of revocation deed---Power of attorney was of no assistance to the plaintiff in the present case---Impugned sale deed was illegal and without authority---Dismissal of earlier suit as withdrawn with permission to file fresh suit would be deemed as same was never brought---Failure to cross-examine statement of witnesses would amount to admission of facts---Plaintiff/appellant had failed to point out any misreading or non-reading of evidence---Second appeal was dismissed in circumstances.

Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR 1821; Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384 and Ahmad Khan and another v. Zaheer Ahmad Khan Tareen and 7 others PLD 1986 Lah. 184 ref.

Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR 1821 distinguished.

Basri through L.Rs. and others v. Abdul Hamid through L.Rs. and others 1996 MLD 1123; Raza Munir and another v. Mst. Sardar Bibi and 3 others 2005 SCMR 1315; Janki Parshad Singh and others v. Syed Yahia Hossain and others 13 IC 637; Chottey Lal v. The Collector of Moradabad AIR 1922 PC 279; Ziauddain Siddiqui v. Mrs. Rana Sultana and another 1990 CLC 645; Journalist Publication (Pvt.) Ltd. through Chief Executive v. Mst. Mumtaz Begum alias Mustari Begum through her duly constituted Attorney and others 2004 SCMR 1773; Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341 and Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489 rel.

Ch. Muhammad Anwar Bhindar for Appellant.

Sherjeel Adnan and Haris Azmat for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

2016 M L D 1271

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

FAYYAZ AHMAD and others---Petitioners

Versus

Mst. ANAZA BUKHARI and others---Respondents

C.R. No.488 of 2009, heard on 27th May, 2014.

Civil Procedure Code (V of 1908)---

----O. XVIII, Rr. 8 & 14---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Recording of statement of witness by the Reader of the court---Effect---First Appellate Court remanded the case to the Trial Court with the observation that said court had not recorded the evidence in his own hand but same was recorded by Reader of said court in violation of provisions of O. XVIII, Rr. 8 & 14, C.P.C.---Validity---Statement of witness was recorded by reader of the court but same was signed by the judicial officer and no objection was advanced by the defendants---Provisions of procedural law were meant to help and not to create obstacles for the litigants to achieve their rights---Technicalities had to be avoided unless same were found essential to comply with---Non-compliance of provisions of O. XVIII, Rr. 8 & 14, C.P.C. in absence of any allegation of prejudice was not of invalidating nature and the same was irregularity and not illegality---Object of provisions of O. XVIII, Rr. 8 & 14, C.P.C. was to ensure the accuracy of record which was foundation of dispensation of justice as finally judgment was to be rendered on the basis of said record---Trial Court should prepare the record in accordance with law in order to obviate any allegation or counter allegation in preparation of incorrect record and same was for benefit of litigants---No prejudice had been pointed out by the petitioners/defendants to be caused to their case---Impugned judgment passed by the Appellate Court below was set aside and direction was passed to decide the appeal in accordance with law---Revision was accepted in circumstances.

2008 CLC 590 and Mst. Sardar Bibi and 7 others v. Hameed and another 2000 CLC 1311 ref.

Hussain Buksh v. Muhammad Ali 1995 CLC 1257; Abdul Majeed and 2 others v. Abdul Ghani 1995 MLD 8; Bahadur Ali v. Syed Ghulam Sabir Gilani 1990 MLD 588; Nand Lal and another v. Pooran Lal and another AIR 1956 RAJ.9; Pulukuri Kottaya and others v. Emperor AIR 1947 PC 67; Allah Jiwaya v. Judge Family Court, Ahmadpur Sharqia 1990 MLD 239; Mst. Sardar Bibi and 7 others v. Hameed and another 2000 CLC 1311; Muhammad Ramzan v. Muhammad Jahangir 2012 CLC 844; Liaquat Ali v. Additional District Judge, Jhelum and 2 others 2014 CLC 112 and in Mst. Sardar Bibi and 7 others v. Hameed and another 2000 CLC 1311 rel.

Muzammil Akhtar Shabbir for Petitioners.

Miss Kashwar Naheed for Respondents.

Date of hearing: 27th May, 2014.

2016 M L D 1287

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD HAYAT---Petitioner

Versus

DIRECTOR GENERAL, LAHORE DEVELOPMENT AUTHORITY and others---Respondents

W.P. No.13586 of 2009, decided on 14th September, 2015.

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

----S. 79 & O. I, R. 3---Suit by or against government authority or public officers in their official capacity---Parties to suit/constitutional petition---Persons to be joined as defendants/respondents---Procedure---Auction---Bidding---Highest bidder, rights of---Petitioners---Limitation for Authority to reject bid---Petitioner contended that he, being the highest bidder and having deposited earned money, had vested right as to award of sale contract regarding allotment of plots---Authority took the plea that present petition was not maintainable as Development Authority had not been impleaded as party thereto---Validity---Petitioner had neither impleaded Development Authority in the petition, nor given any reason for such omission---Petitioner had arrayed Director General of the Authority to cure the deficiency---Under S. 79 read with O. I, R. 3 of C.P.C., a lis could be filed against legal or natural person--Official designation, howsoever high, could not fulfil the said condition---Petitioner sought direction to the Authority for acceptance of his bid, but record showed that rejection of his bid had been promptly conveyed to him---After rejection of his bid, there was no question of its acceptance till time the act of Authority towards rejection of his bid was declared as illegal by any forum---Prayer of petitioner could not be granted at that stage---Petitioner failed to rebut factum of withdrawal of earnest money by him before filing of petition which amounted to concealment---After withdrawal of earnest money, petitioner had acquiesced rejection of his bid---No person could be allowed to challenge an order to which he had already acquiesced due to his conduct---Till time an agreement was signed between parties, no vested right had accrued in favour of bidder and rights and obligations of parties remained undecided---Bidder could not claim award of contract or allotment on ground of being highest bidder, as same was subject to approval of competent authority, who was in better position to watch national interest---If allotment or award of contract to highest bidder was vested right then referring matter to competent authority for its acceptance would be exercise in futility---Petitioner did not raise any allegations of mala fide on part of the Authority---Requirement that Authority, as per its advertisement, was to decide acceptance or rejection of bid within thirty days of auction, could not be taken as mandatory---Petitioner had been informed about rejection of his bid right after thirty-five days---High Court observed that Authority as offered by it, to give petitioner first right of refusal during re-auction subject to condition that highest bid, which was to be given by prospective bidder in re-auction was accepted by the competent authority---Constitutional petition was dismissed accordingly.

Board of Intermediate and Secondary Education Sargodha through Secretary v. Abdul Rehman 1998 SCMR 1711; Mst. Musharraf Sultana v. Fazal Hussain 1993 CLC 1 and Muhammad Ramzan v. Muhammad Khan and another 1972 SCMR 442 distinguished.

Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and others PLD 2009 SC 28 and Nagina Bakery v. Sui Southern Gas Limited and 3 others 2001 CLC 1559 ref.

Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others 2010 SCMR 115; Ghulam Rasool and 3 others v. Board of Revenue Sindh through Member and 6 others 2010 MLD 776; Bore Muhammad v. Mst. Aziza Begum and others 2001 CLC 701; Secretary, B&R Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625; Messrs Shahbaz Enterprises through Authorised Officer and another v. Government of Sindh through Secretary, Local Govrnment Department, Karachi and others 2014 CLC 174; Muhammad Amir v. Umer Hayat and 4 others 2010 CLC 1798; Kamran Hanif v. Bilqees Bano and others 2010 YLR 1665; Qaiser Ali Khan v. Province of Sindh through Chief Secretary and another 2010 PLC (CS) 542; Mian Peer Muhammad v. Hameer Saffar and others 2010 SCMR 1725; Mumtaz Ahmad Chadhar v. Rana Nasir Ali and 3 others 2005 SCMR 263; Afzal Maqsood Butt v. Banking Court No.II Lahore and 8 others PLD 2005 SC 470; Kay Bee International (Pvt.) Ltd, Islamabad v. Secretary to the Government of Punjab, Industries and Mineral Development, Lahore PLD 2002 SC 1074; Sarosh Haider v. Muhammad Javed Chundrigar and others PLD 2014 SC 338 and Maqbool Elahi v. Capital Development Authority, Islamabad 1998 SCMR 1074 rel.

(b) Constitution of Pakistan---

----Art. 199----Constitutional petition---Procedure---Proceedings of constitutional petition were governed under provisions of C.P.C.

(c) Administration of Justice----

----When law required a thing to be done in a particular way, then any deviation therefrom could be termed as illegal.

(d) Administration of Justice----

----Person who seeks equity must do equity---Person who does not bear clean character cannot be given any equitable relief in exercise of powers vested in court under Art. 199 of Constitution.

Messrs Shahbaz Enterprises through Authorised Officer and another v. Government of Sindh through Secretary, Local Government Department, Karachi and others 2014 CLC 174; Muhammad Amir v. Umer Hayat and 4 others 2010 CLC 1798; Kamran Hanif v. Bilqees Bano and others 2010 YLR 1665 and Qaiser Ali Khan v. Province of Sindh through Chief Secretary and another 2010 PLC (CS) 542 rel.

Arshad Malik Awan for Petitioner.

Waqar A. Shaikh and Ahmad Ali Ranjha for Respondents.

2016 M L D 1325

[Lahore]

Before Muhammad Tariq Abbasi and Sardar Ahmed Naeem, JJ

MUHAMMAD SAFDAR through Attorney---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1114 of 2011 and Murder Reference No.272 of 2011, heard on 7th October, 2015.

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

----S.302----Qatl-i-amd---Appreciation of evidence---Motive not proved---Postmortem report being silent, and not containing necessary details, as to cause of death---Delay in lodging FIR was suggestive of consultation and deliberation---Recovery of dead body from house of accused alone would not show that accused had killed the deceased---Accused was alleged to have murdered his wife by manually strangulating her---Trial court, having convicted the accused under S. 302(b), P.P.C., sentenced him to death with direction to pay one hundred thousand to legal heir of the deceased---Doctor, while relying upon report of Chemical Examiner, had opined that cause of death was asphyxia due to throttling and due to injuries, which were ante-mortem in nature---Large number of symptoms were absent, which ordinarily pointed out to cause of death being asphyxia by throttling---Prosecution had failed to give necessary details regarding alleged cause of death---High Court observed that where there was contradiction between medical and ocular account, the ocular testimony was to be preferred over medical evidence---Place of occurrence was residential room of house of the deceased---Eye-witnesses were in unison that they were healthy and energetic than the accused---Nothing had prevented both the eye-witnesses to move forward to rescue the deceased, particularly, when the accused was empty handed---Eye-witnesses had not offered any resistance to the accused to save life of the deceased, which was unusual and unnatural---Eye-witnesses, having seen the incident, should have reported the same with reasonable promptitude---Eye-witnesses informed the complainant, brother of deceased, telephonically, and FIR was registered upon his arrival, which suggested consultation or deliberation---Prosecution had not examined any independent witness---Witnesses, being closely related to complainant and being inmates of house of the deceased, were best witnesses, but their evidence found no corroboration from material available on record---Dead body of the deceased although had been recovered from house of the accused, but the same would not show that deceased had been killed by him---Motive set by prosecution was that the accused intended to contract second marriage as the deceased (lady) was issueless; however, no information had been provided regarding the lady with whom he intended to get married---Prosecution witnesses had not even mentioned name of the lady---Said motive was, therefore, not proved---Prosecution could not prove that deceased had met un-natural death as result of strangulation---Prosecution, in circumstances, had failed to bring home guilt of the accused beyond any shadow of doubt---High Court, setting aside conviction, acquitted the accused---Appeal against conviction was accepted in circumstances.

Abdul Majeed v. The State 2011 SCMR 941; Saeed Ahmad v. The State 2015 SCMR 710; Ali Sher v. The State 2015 SCMR 142; Muhammad Rafique v. The State 2014 SCMR 1698; Muhammad Ashraf v. The State 2012 SCMR 419 and Abid Ali and 2 others v. The State 2011 SCMR 208 ref.

Abdur Rehman v. The State 1998 SCMR 1778 and Riaz Masih alias Bhola v. The State 2001 YLR 279 rel.

(b) Criminal trial---

----Medical examination/postmortem report---Object and scope---Medical examination or post mortem of deceased is done for limited purpose of only corroboration and support the substantive or circumstantial evidence.

Abdur Rehman v. The State 1998 SCMR 1778 rel.

(c) Criminal trial---

---Medical examination or postmortem report, absence of---Effect---Failure to conduct postmortem or medical examination of deceased would not allow to disbelieve that deceased has died 'unnatural' death.

Abdur Rehman v. The State 1998 SCMR 1778 rel.

(d) Medical jurisprudence---

----'Asphyxia' and 'Asphyxiation'---Meaning and scope---Asphyxia or asphyxiation come from Ancient Greek---Asphyxia means 'without' and 'sphyxis' means 'squeeze', which is a condition in which there is severely deficient supply of oxygen to body, that arises from abnormal breathing---Asphyxiation is defined as hypoxia or anoxia that is caused when respiratory function is hampered by interference with mechanics of breathing.

(e) Medical jurisprudence---

----Strangulation--- Meaning and scope---Neck anatomy---Injuries resulting from strangulation---Determination---Strangulation is a form of asphyxia (lack of oxygen) characterized by closure of blood vessels or air passages of neck as result of external pressure on the neck---Rudimentary knowledge of neck anatomy is critical in order to understand adequately the clinical features of strangled victim---General clinical sequence of victim, who is being strangled, is one of severe pain followed by unconsciousness, which is followed by brain death---Victim loses consciousness by any one or all of the following: blocking of carotid arteries (depriving brain of oxygen); blocking of jugular veins (preventing deoxygenated blood from exiting brain); and, closing off airway, causing victim to be unable to breathe---Visible injuries to neck include scratches, abrasion and scrapes---Said injuries may be from victim's own fingernails as defensive manoeuvre, but the same commonly are combination of lesions caused by both victim's and assailant's fingernails---Lesion location varies depending on whether victim or assailant has used one or two hands, and whether the assailant has strangled the victim from the front or back---Three types of fingernail markings may occur, singly or in combination: impression; scratch; or claw marks---Chin abrasions are also common in victims of manual strangulation as victim lowers the chin in an instinctive effort to protect neck and in so doing , scrapes the chin against the assailant's hands.

Barrister Salman Safdar for Appellant.

Tariq Javed, District Public Prosecutor for the State.

Mian Javed Iqbal for the Complainant.

Date of hearing: 7th October, 2015.

2016 M L D 1352

[Lahore]

Before Shehram Sarwar Ch. J

NASEER AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.928 of 2009, heard on 23rd November, 2015.

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

----Ss. 376 & 511----Rape; attempt to commit offence---Appreciation of evidence---Benefit of doubt---Complainant not being the eye-witness---Effect---Explanation for delay in lodging FIR was unsatisfactory---Recovery, absence of---Trial Court convicted the accused for attempting to commit rape and sentenced him to undergo imprisonment for five years along with payment of fine---Alleged incident had been reported with delay of seven days without any satisfactory explanation---Reason given for the delay by the complainant, that respectables of the area had intervened and assured that the accused would pray and seek pardon, was improbable as none of the respectables had been produced before the police or Trial Court---Complainant had, therefore, got lodged the FIR with due deliberations and consultations---Complainant himself was not the eye-witness of the occurrence as per his application, which was the basis for registration of the FIR; hence, evidence of the complainant was of no avail---Victim of rape had made dishonest improvements before Trial Court to strengthen the prosecution case---Evidence of the victim was, therefore, not reliable---Eye-witness alleged that she was washing utensils in the courtyard of the house, when the accused came and went straight to the room of the victim and attempted to commit rape---Presence of said eye-witness at the place of occurrence was doubtful for the reasons that the complainant had deposed that if someone entered the said room, he could be seen by person sitting in the courtyard---Said eye-witness also alleged that the accused had given her fist blows, but she had not been medically examined---Statement of said eye-witness was, therefore, also not worth reliance---Last worn clothes of the victim had not been produced before Investigating Officer on the first day of occurrence when he visited the place of occurrence---Investigating Officer had also deposed that the clothes were of common nature---Said piece of evidence was also not of much help for the prosecution---Accused was also alleged to have been armed with pistol, but no pistol had been taken into possession---Case of the prosecution, for said reasons, was doubtful in nature---Accused was entitled to benefit of doubt, not as matter of grace, but as of right---High Court extending benefit of the doubt, acquitted the accused---Appeal was allowed in circumstance.

Muhammad Rafique and others v. The State and others 2010 SCMR 385; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

(b) Criminal trial----

----Witness--- Dishonest improvements---Effect---When a witness improves his/her statement to strengthen the prosecution case, the moment it is concluded that the improvement has been made deliberately and with mala fide intention, the testimony of such witness does not remain reliable.

Muhammad Ikram Ullah Sundrana for Appellant.

Abdul Jabbar Dogar, Deputy District Public Prosecutor for the State.

Nemo for the Complainant.

Date of hearing: 23rd November, 2015.

2016 M L D 1372

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan, J

MATLOOB HUSSAIN and others---Petitioners

Versus

ALAMGIR and others---Respondents

Civil Revision No.1046-D of 2001, heard on 11th May, 2015.

Specific Relief Act (I of 1877)---

----S.12---Agreement to sell---Proof---Procedure---Discretion of court to pass decree for specific performance---Scope---Pardanasheen lady---Independent advice---Requirements---Court was not bound to grant a decree for specific performance in every case even if an agreement to sell was proved---Court had discretion to grant decree for specific performance after scrutinizing the evidence in favour of plaintiff who had proved the case that he was entitled for such decree---Court could refuse to grant such decree when there was even a slightest doubt---Plaintiff was bound to prove agreement to sell through concrete, convincing and unimpeachable evidence---Stamp-Vendor along with his record should be produced to prove that stamp paper was issued on a specific date in favour of its purchaser to prove agreement to sell---Petition-Writer along with his register of petition writing must be produced to prove that agreement to sell was written on specific date---Two marginal witnesses of agreement to sell should be produced to prove the same and struck of bargain---Stamp paper for agreement to sell was not purchased by the vendee---Contradictions in the evidence of plaintiffs were on record---Alleged agreement to sell had not been proved by the plaintiffs which was not a genuine document---Plaintiffs were required to prove delivery of possession of suit property but same had not been proved---Executant of agreement to sell was a pardanasheen illiterate lady---No independent advice was available to the said executant of agreement to sell---Contents of agreement to sell were not read over to her---Impugned judgment and decree passed by the Appellate Court were set aside and suit was dismissed---Revision was accepted in circumstances.

Bank of Khulna Ltd. v. Jyoti Prokash Mitra and others AIR 1940 PC 147; Muhammad Rasheed v. Mst. Saleema Bibi 2004 CLC 1026 and Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642 rel.

Ch. Khalid Ayaz for Petitioner.

Malik Muhammad Latif Khokhar for Respondents.

Date of hearing: 11th May, 2015.

2016 M L D 1400

[Lahore]

Before Atir Mahmood, J

ALAM BIBI and others---Petitioners

Versus

QAMAR SULTANA and others---Respondents

Writ Petition No.11609 of 2013, heard on 15th October, 2015.

Civil Procedure Code (V of 1908)---

----O. XVI, R. 1---Specific Relief Act (I of 1877), Ss. 42 & 54---Summoning of witnesses--- Delay in filing list of witnesses--- Suit for declaration and injunction--- Defendant, a lady or ignorant of law---Effect---Petitioners filed suit for declaration and injunction with permanent injunction in year 2003---Trial Court accepted application of defendant containing list of witnesses and summoned some witnesses in 2011--- Orders passed by Trial Court were maintained by Lower Appellate Court--- Validity--- Application was filed on 07-04-2011 whereas defendant lady appeared in witness box on 28-06-2010 when she got recorded her statement--- Even if defendant was considered a Pardanasheen lady, she could tell her counsel on 28-06-2010 when she came to Court about summoning of witnesses but she failed to do so--- Desire of defendant to produce witnesses proposed to be summoned were not due to any cause of action accrued to defendant at later stage as those were the witnesses of documents in dispute and were even available at the time of filing of suit and framing of issues--- Defendant failed to show any cause to produce proposed witnesses--- Mere desire of a party to do an act which was required to be done in a particular manner could not be considered to be good cause--- Being a lady or ignorant of law did not entitle defendant for any special treatment--- High Court set aside the concurrent orders passed by both the courts and dismissed the application filed by defendant--- Petition was allowed in circumstances.

Hakim Habibul Haq v. Aziz Gul and others 2013 SCMR 200 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

Iftikhar Ullah Malik for Petitioners.

Rana Muhammad Arshad Khan for Respondent No.1.

Respondent Nos.2 proceeded against ex parte on 11-11-2013.

Date of hearing: 15th October, 2015.

2016 M L D 1411

[Lahore (Multan Bench)]

Before Shams Mehmood Mirza, J

Mst. BAKHT BIBI---Petitioner

Versus

MUHAMMAD ASLAM KHAN and others---Respondents

C.R. No.1020-D of 2004, decided on 12th November, 2015.

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

----O. VI, R. 4---Suit for declaration---Transfer of land in lieu of dower---Allegation of fraud---Mutation, cancellation of---Father gifted land to his son who further gifted the same to his wife but subsequently both the mutations were got cancelled---Wife instituted suit but same was dismissed on the ground that husband was not owner of the land in question at the time of his marriage---Validity---Both the mutations were duly sanctioned and same were cancelled without notice to the plaintiff-wife---Nothing was on record that mutations were sanctioned fraudulently---Offer was made to the defendants in cross-examination for sending thumb impressions to handwriting expert but same was declined by them---Facts stated in the plaint if not traversed in written statement would be deemed to be admitted---Both the courts below had failed to draw logical inference that property in question was gifted in favour of plaintiff-wife---Nothing was on record with regard to date of marriage between the parties---Defendant-husband had made gift of suit land in favour of plaintiff-wife in lieu of dower after marriage---Once plaintiff had produced affirmative evidence then onus to prove would shift on the defendants---Defendants were bound to produce cogent and substantial evidence to demonstrate fraud---Defendants had not provided the particulars of fraud in their written statement and they could not have led evidence in support of their allegations---Defendants had failed to discharge the onus of proof which shifted on them during the evidence---Plaintiff-wife had proved gift in her favour in lieu of dower---Inference drawn by both the courts below was against fact and law---Impugned judgments and decrees were set aside and suit was decreed---Revision was allowed in circumstances.

Mst. Shumal Begum v. Gulzar Begum and 3 others 1994 SCMR 818 rel.

(b) Islamic Law---

----Dower---Dower could be fixed, enhanced or altered even after the marriage.

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

----Art. 2(4)---Word "proved"---Meaning and scope.

Loo Chay Sit v. Estate of Loo Chay Loo (2010) 1 SLR 286 and Muhammad Luqman v. The State PLD 1969 Lah. 275 rel.

(d) Words and phrases---

----'Balance of probability standards'---Meaning.

Re H (Minors) (1996) AC 563; O'Halloran J.A. in Faryna v. Chorny (1951) B.C.J. No.128; Bater v. Bater (1950) All ER 458 and Re B (2008) UKHL 35 rel.

Malik Zahoor Hussain Thaheem for Petitioner.

Mian Muhammad Jamal for Respondents.

Date of hearing: 3rd June, 2015.

2016 M L D 1441

[Lahore]

Before Muhammad Yawar Ali and Miss Aalia Neelum, JJ

SHAHID alias PAPPA---Appellant

Versus

The STATE---Respondent

Crl. Appeal No.429 of 2009, heard on 3rd March, 2015.

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

----S. 9(b)---Possessing and trafficking narcotics---Appreciation of evidence---Benefit of doubt---Prosecution story appeared to be doubtful, as clear contradictions existed regarding date of recovery of charas, its handing over to the Investigating Officer, its handing over to the Moharrar by the Investigating Officer; and its further handing over to witness for its onward transmission to the office of Chemical Examiner---Un-scaled site plan was prepared---All those facts, not only created doubt about the occurrence, but it was fatal to prosecution version---Burden always remained on prosecution to prove affirmatively, right from the arrest of accused, seizure of recovered contraband till it reached the office of Chemical Examiner---All facts must be in line, but the facts of the present case created doubt on the case of the prosecution and benefit of reasonable doubt, would go to accused---Impugned order, was set aside extending benefit of doubt to the accused---Accused being on bail, surety bonds furnished by accused would stand discharged, in circumstances.

Erum Sajjad Gul for Appellant.

Usman Iqbal, Deputy District Public Prosecutor for the State.

Date of hearing: 3rd March, 2015.

2016 M L D 1453

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

FARZANA CHAUDHRY---Petitioner

Versus

PROVINCE OF THE PUNJAB and others---Respondents

Writ Petition No.16151 of 2015, decided on 15th December, 2015.

(a) Co-Operative Societies Act (VII of 1925)---

----Ss. 44-D & 54---Layout plan of housing society---Change in use of plot---Open space was available adjacent to plot of petitioner and the housing society handed over possession of the vacant plot to him---Development Authority declined to transfer any piece of land to petitioner which was in violation of approved layout plan of the housing society---Validity---Open spaces in any housing society whether Co-operative or otherwise could not be allotted for residential or commercial purposes unless the same would be earmarked or declared as plot in layout plan approved by relevant development authority, i.e., Development Authority---Other similar places existed which were being considered as plot of the society---Co-operative authorities directed the society to prepare a revised layout plan taking into consideration the land aberration and to get the same approved from Development Authority---Revision of approved layout plan was not done and mandatory spaces could not have been converted into residential plots without prior permission from competent authority, i.e., Development Authority---High Court declared the order passed by Housing Society as illegal and without lawful authority---Constitutional petition was disposed of accordingly.

Province of Punjab through Collector, Sargodha and others v. Muhammad Akhtar 2007 SCMR 953 and Muhammad Raza and others v. Jammu and Kashmir Co-Operative Housing Society, and others PLD 2013 Islamabad 49 rel.

(b) Void Order---

----Subsequent proceedings---Scope---If on the basis of void order, subsequently orders have been passed either by same authority or by other authorities, the whole series of such orders together with super structure of rights and obligations built upon them must, unless some statute or principle of law recognizes it as legal, fall to the ground because such orders have a little foundation as the void order on which they are based.

(c) Question of law---

----Scope---Question of law can be raised at any stage of proceedings.

Mustafa Lakhani v. Pakistan Defense Officers Housing Authority, Karachi 2006 SCJ 702; Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another 2006 SCMR 783; Muhammad Iqbal v. Muhammad Ahmed Ramzani and 2 others 2014 CLC 1392; Secretary Communication and Works Department Government of Balochistan and others v. Dad Baksh and other 2013 CLC 343; Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC 104; Moulana Atta-ur-Rehman v. Al-hajj Sardar Umar Farooq PLD 2008 SC 663; Faisal Jameel v. The State 2007 MLD 355; Talib Hussain v. Member, Board of Revenue 2003 SCMR 549; Muhammad Siddiq v. Ashraf Ali 2000 MLD 781 and Abdul Hameed v. Deputy Commissioner / Administrator, Zila Council Mandi Baha-ud-Din 1997 CLC 540 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Relief, molding of---Scope---If relief prayed, for any reason, cannot be granted and from the facts and circumstances of the case it appears that petitioner is entitled to some other relief, High Court to advance cause of justice and to avoid multiplicity of proceedings grants such relief as justice may demand.

S.M. Saleem v. Province of Sindh and others 2007 YLR 2001 rel.

Waqar A. Sheikh for Petitioner.

Muhammad Ejaz, M. Javed Iqbal Qureshi for Respondents.

Date of hearing: 15th December, 2015.

2016 M L D 1468

[Lahore]

Before Shahid Hameed Dar, J

MEHMOOD AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Appeal No.830 of 2007, decided on 21st April, 2015.

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

---S. 302 (b)---Qatl-i-amd---Murder of wife by her husband---Appreciation evidence---No eye-witness of the occurrence---Children of deceased lady and other family members of accused could be considered as eye-witnesses---Witnesses produced by the prosecution might be labelled the res-gestae witnesses who could not be considered as eye-witnesses---None of the probable eye-witnesses appeared at trial for examination---Postmortem examination was conducted with considerable delay---Complaint and F. I. R might be the ante-timed documents---Evidence of res-gestae witnesses was unbelievable and untrustworthy---Medical evidence was corroboratory in nature which could reveal a few details with regard to infliction and duration of injuries, probable cause of death and other allied details, if any, but same could not identify the inflictor of such injuries---Prosecution had failed to prove guilt of accused beyond any reasonable shadow of doubt---Impugned judgment had been passed merely on conjectures and surmises without taking into account the infirmities and weakness in the prosecution's case---Conviction and sentence awarded to the accused were set aside and he was acquitted of the charge---Appeal was allowed in circumstances.

(b) Criminal trial---

----Medical evidence---Scope---Medical evidence would always be corroboratory in nature which could reveal a few details with regard to infliction and duration of injuries, probable cause of death and other allied details if any but same could not identify the inflictor of such injuries.

(c) Words and phrases---

---'Res-gestae'---Meaning.

Black's Law Dictionary-Eighth rel.

Ejaz Khalid Khan Niazi for Appellant.

Rana Tassawar Ali Khan, Deputy Prosecutor for Respondents.

Date of hearing: 21st April, 2016.

2016 M L D 1484

[Lahore (Multan (Bench)]

Before Muhammad Qasim Khan, J

FIDA HUSSAIN---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.284 of 2008, decided on 12th May, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Incident was unseen---Role ascribed to accused, was similar to his three brothers, who were earlier found innocent during investigation, and subsequently had been acquitted by the Trial Court, though the set and nature of evidence against them was the same, as had been used against accused to record conviction against him---When same set of evidence had been disbelieved by the Trial Court qua three co-accused, extra care and caution was required to consider the same evidence against accused---All prosecution witnesses being closely related with the deceased and inter se, heavy onus was on the prosecution to have brought on record strong independent corroborative piece of evidence---As to how and in what manner the deceased lady was trapped in field, from where he got the cloth to tie the neck of the deceased, and what individual role was played by each of accused persons was no where mentioned---Trial Court, in circumstances, reached to a just and proper conclusion to reject the evidence of extra judicial confession---Prosecution witnesses, though were consistent about the recovery of dead body of the deceased from the fields, but that recovery was not sufficient to connect accused with the commission of the offence, because no recovery memo in that respect was prepared by Investigating Officer---Accused remained on physical remand, but no recovery was effected either on his disclosure or pointation---Prosecution having failed to prove its case against accused, beyond any shadow of doubt, conviction and sentence awarded to accused by the Trial Court, were set aside and he was released, in circumstances.

Prince Rehan Iftikhar Sheikh for Appellant.

Malik Muhammad Jaffar, Deputy Prosecutor General for the State.

Complainant in person.

Date of hearing: 12th May, 2014.

2016 M L D 1498

[Lahore Multan (Bench)]

Before Hafiz Shahid Nadeem Kahloon, J

MUHAMMAD SHAFI and another---Petitioner

Versus

The STATE and another---Respondents

Criminal Misc. No.4279-B of 2015, decided on 20th August, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 87, 88, 512 & 161---Penal Code (XLV of 1860), Ss. 302, 148, 149, 109 & 114---Qatl-e-amd, rioting armed with deadly weapon, common object and abetment---Bail, refusal of---Accused were nominated in the FIR having specific role---Accused were present at the scene of occurrence while making lalkara---Offence under S. 114, P.P.C. had been made out against the accused---Motive was also attributed to the present accused---Accused powers remained fugitive from law and were declared proclaimed offenders---No progress in the trial could be made due to abscondence of accused---Accused appeared to be hardened and desperate criminal---Prosecution witnesses had supported the version of complainant in their statements recorded under S.161, Cr.P.C.---Sufficient incriminating evidence was available on record against the accused to connect them with the commission of offence---Accused were not entitled to the concession of bails at this early stage---Accused had been found involved and declared guilty in the commission of offence during investigation---Nothing was on record that false criminal proceedings had been initiated against the accused with mala fide intention and ulterior motive of the complainant---Bail petition was dismissed in circumstances.

Muhamad Aslam v. Nazar Khan and another 2012 SCMR 138 distinguished.

Zafar Hussain. v. The State and another 2014 SCMR 1591; Khalida Bibi. v. Nadeem Baig. PLD 2009 SC 440 and Chiragh Din and others. v. The State PLD 1967 SC 340 rel.

Mrs. Saeeda Asif for Petitioner.

Mirza Abid Majeed, Dy. Prosecutor General for the State.

Muhammad Usman Sharif Khosa for the Complainant.

Muhammad Ayyub, ASI with record.

2016 M L D 1505

[Lahore (Multan (Bench)]

Before Ali Akbar Qureshi, J

MUHAMMAD IMRAN and 4 others---Petitioners

Versus

MUHAMMAD AFZAL and another---Respondents

C.R. No.239-D of 2015, decided on 12th March, 2015.

Gift---

----Ingredients---Undue influence---Effect---Parties to the suit were legal heirs of the deceased---Predecessor of the parties remained ill for about three years and died on 20-11-2002 whereas alleged gift was executed on 12-06-2001---Two important ingredients of gift i.e. offer and acceptance were missing in the present case---Father who was on death-bed could not deprive his other sons and daughters by way of a gift---Donees had failed to prove the fact through any reliable evidence that gift in question was free from undue influence---Both the courts below had carefully examined the record and appreciated the evidence and reached to the right conclusion---Defendants had failed to prove the ingredients of a valid gift---Revision was dismissed in circumstances.

Muhammad Bashir v. Allah Ditta and others 1194 SCMR 1870), Aadut v. Noor Ahmad 2012 MLD 802; Gul Sher and others v. Dost Muhammad and others 2013YLR 1856 and Muhammad Amin v. Mst. Shaista and 30 others 2015 MLD 296 distinguished.

Muhammad Bashir v. Allah Ditta and others 1994 SCMR 1870 and Gull Sher and others v. Dost Muhammad and others 2013 YLR 1856 rel.

Muhammad Ali Siddiqui for Petitioners.

Nemo for Respondents.

Date of hearing: 12th March, 2015.

2016 M L D 1524

[Lahore (Multan (Bench)]

Before Ch. Muhammad Masood Jahangir, J

Sheikh MUHAMMAD LATIF---Petitioner

Versus

Malik MUHAMMAD ASHIQ and another---Respondents

C.R. No.888 of 2002, decided on 15th June, 2015.

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

----O. XVII, R. 3---Closing of evidence---Sufficient opportunities already granted---Matter could not be left on the choice of parties to choose the time for production of evidence according to their own choice----Case proceedings had to be controlled by Court according to its roster---Petitioner who had been already granted sufficient opportunities was not entitled to any further leniency by Court.

Mian Abdul Karim v. Province of Punjab through District Officer (Revenue) Lodhran and 5 others PLD 2014 Lah. 158 and Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637 rel.

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

----O. XVII, R. 3---Closure of petitioner's evidence for failing to produce evidence----Scope---Contention of petitioner was that he was suffering from cancer and was not able to appear before trial court on account of his chronic ailment, therefore, he may be allowed at least one more opportunity to lead his evidence----Validity----Law favoured disposal of cases on merits however, law helps vigilants and not the indolents---Courts were not supposed to go behind litigants who were not interested in disposal on merits----Held, that if it was admitted that petitioner was suffering from ailment even then petitioner could have produced other witnesses as well as documentary evidence to satisfy the Court that he was vigilant in pursuing his case with due care---Petitioner did not even appoint any attorney to make a statement on his part or never made a request to trial court for appointment of local commission to record his statement at his residence---Trial Court had already showed patience for a period of two years and adjourned the case during said period mostly on the request of petitioner---Despite availing sufficient opportunities, petitioner failed to produce a single witness or document in his evidence---Revision petition was dismissed in circumstances.

Sheikh Khurshid Mahboob Alam v. Mirza Hashim Baig and another 2012 SCMR 361; Syed Tasleem Ahmad Shah v. Sajawal Khan etc. 1985 SCMR 585; Qutab ud Din v. Gulzar and 2 others PLD 1991 SC 1109; Haji Muhammad Ramzan Saifi v. Mian Abdul Majid and others 1986 SC 129; Muhammad Hussain and 5 others v. Akram Baig and 3 others PLD 1988 Lah. 183; Mst. Bilquis Fatima and 3 others v. Nasim Ahsan and 2 others 1996 SCMR 1057; Muhammad Ramzan v. Abdul Majeed and 4 others 2009 CLC 386; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Taj Muhammad Khan and others v. Bakht Shery and others 2003 CLC 1176; Muhammad Shafiq v. Mst. Resham Bibi and 3 others PLD 2001 Lah. 206 and Messrs Friends Vegetable Ghee Mills (Pvt.) Ltd. v. Privatization Commission, Ministry of Finance, Government of Pakistan through Chairman and 2 others 2000 CLC 1955 distinguished.

(c) Administration of justice---

----Law help the vigilants and not the inodlent---Courts were not supposed to go behind litigants who were not interested in disposal of lis on merits.

Malik Muhammad Tariq Rajwana, Malik Kashif Rafique Rajwana and Javed Ahmad Khan for Petitioners.

Nemo for Respondents.

Date of hearing: 15th June, 2015.

2016 M L D 1535

[Lahore (Multan (Bench)]

Before Ch. Muhammad Masood Jahangir, J

ALLAH WASSAYA---Petitioner

Versus

Mst. HALIMA MAI and 12 others---Respondents

Civil Revision No.46-D of 2005, decided on 11th May, 2015.

(a) Gift---

----Ingredients---Mutation---Proof of---Procedure---Defendants being beneficiary of disputed gift mutation were bound to prove the transaction of Tamleek which might have been settled at some prior point of time of attestation of the same---Donee did not plead any date, time, place and the names of witnesses to explain as to when and where and in whose presence alleged offer to gift out suit property had been made---Donee remained fail to prove the transaction of disputed gift in absence of such details in the written statement---Mutation per se was not a deed of title but it would indicate some previous oral transaction between the parties---Whenever any mutation was challenged then burden would lie on the beneficiary to prove the same as well as original transaction which he was required to fall back upon---Only one witness of mutation of Tamleek was produced to prove its valid attestation---Said witness did not depose that donor had ever made any offer to gift out the suit property to the donee and he accepted the said offer in his presence---Transaction could not be declared to have been validly proved in absence of two basic ingredients of gift---Testimony of said witness was not helpful to the beneficiary---Disputed mutation was attested by practicing fraud misrepresentation---Attestation of disputed mutation by two real brothers had created doubt regarding its authenticity---Beneficiary of disputed mutation had failed to produce revenue officials who had entered and attested the same---Revenue officials were the best persons who could prove the valid attestation of Tamleek mutation---Best evidence had been withheld by the beneficiaries without showing any justification and inference would be against them---Revenue Officer was bound to conduct the proceedings in a common assembly in the concerned revenue estate to attest the mutation but same was not conducted therein---Beneficiaries of gift had failed to prove ingredients of the same---Transaction of gift and valid attestation of mutation could not be declared to have been proved---Nothing was on record that prior to alleged sale of suit property any inquiry with regard to title of the same was conducted---Impugned judgment passed by the Appellate Court was not sustainable in the eye of law which was set aside whereas that of Trial Court was restored---Revision was allowed in circumstances.

Muhammad Ishfaque through L.Rs. v. Ch. Muhammad Nawaz and others 2008 SCMR 1095; Rasheeda Begum v. Ghulam Ahmed and another 2007 CLC 172; Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202 and Chiragh Din v. Bakhat Bhari and 4 others 2007 YLR 2941 distinguished.

(b) Mutation---

----Mutation per se was not a deed of title.

Tahir Mehmood for Petitioner.

Mohammad Khalid Mehmood Ayaz for Respondents Nos. 1 to 11.

Date of hearing: 11th May, 2015.

2016 M L D 1541

[Lahore]

Before Anwaarul Haq and Syed Shahbaz Ali Rizvi, JJ

EDWARD NASEER---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. Nos.7200/B, 7144/LB and 7145/B of 2015, decided on 23rd June, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.395, 324, 186, 290, 291, 427, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Dacoity, attempt to commit qatl-i-amd, obstructing public servant in discharge of public functions, public nuisance, mischief, rioting common object, act of terrorism---Bail, grant or refusal of---Further inquiry---None of accused persons, had been specifically nominated in the FIR---Identification of accused persons, during test identification parade, was to be looked in by the Trial Court after recording the evidence because of the fact that accused persons were initially taken into custody by Police under S.54, Cr.P.C., on the basis of camera footage---Nothing had been recovered at the instance of accused---Recoveries of sticks and clubs of common pattern only, at the instance of rest of accused persons, were prima facie, not sufficient to connect them with the alleged offence---Out of eleven accused persons, case of one of accused was on different footings and to his extent, the prosecution case found corroboration from the recovery of a valuable PDA device of damaged Metro Bus Station, which was looted during the occurrence---Recovery of the device at the instance of said accused, prima facie, connected him with the alleged offence and made his case distinguishable from that of his co-accused---Except said accused, all other accused persons had made out their case that of further inquiry, entitling for the grant of post arrest bail under S.497(2), Cr.P.C.---Bail petitions to the extent of 10 accused persons were accepted and they were admitted to bail-while bail application of eleventh accused, was dismissed, in circumstances.

Naveed Inayat Malik for Petitioner (in Crl. Misc. No.7200/B of 2015).

Tahir Bashir for Petitioners (in Crl. Misc. No.7144/B of 2015 and Crl. Misc. No.7145/B of 2015).

Ch. Muhammad Mustafa, Deputy Prosecutor General.

Iqbal, DSP and Ishaq, SI.

2016 M L D 1553

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

Malik MUHAMMAD NAWAZ---Appellant

Versus

MOHSIN SALEEM---Respondent

R.F.A. No.29 of 2009, decided on 2nd October, 2015.

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

---O. XXXVII, Rr. 2 & 3---Suit for recovery of money on the basis of cheque---Application for leave to appear and defend the suit---Scope---Facts supported by affidavit---Substantial question of fact---Plausible defence---Scope---Defendant filed application for leave to appear and defend the suit which was dismissed and suit was decreed---Contention of defendant was that plaintiff had committed theft of his cheque---Validity---Defendant moved application for leave to appear and defend the suit within time---Court could rarely refuse leave to defend application where defendant had not failed to disclose any defence---Real question to be determined would be whether leave should be conditional or unconditional---Where defence had raised and disclosed a triable issue or a plausible defence or a prima facie case was made out then leave should be granted as a rule---Court should neither go into the merits of the case to determine if defence was good nor it should go into the truth or falsity of the defence---If plausibility of defence so raised appeared to be determinative then court must exercise its jurisdiction in favour of defendant while providing him opportunity to defend the suit---If court while deciding the application for leave to appear and defend the suit had reached to the conclusion that apparently defence was not bonafide but same required recording of evidence then leave could be granted by imposing equitable condition for due performance of decree---Such condition should not be harsh, unjust and oppressive---Defence raised by the defendant in the present case was not illusory---Said defence required recording of evidence for its proof or disproof which could not be determined without proper inquiry---Application for leave to defend was supported by affidavit which was not controverted by filing counter affidavit---Any person acquainted with facts might make a declaration of the same in writing and sworn on oath by an affidavit---Any application supported by an affidavit if not controverted by counter affidavit alongwith written reply should be taken as correct statement of fact---Defendant had succeeded to disclose a plausible defence while raising substantial question of fact which required to be tried or investigated---Defendant was entitled for leave to appear and defend the suit---Trial Court, in the present case, had failed to exercise its jurisdiction judiciously and properly and impugned order had been passed in a hasty manner---Defendant had admitted his signatures over the cheque so he was liable to be burdened with the condition to satisfy the decree if ultimately passed against him---Impugned judgment and decree passed by the Trial Court were set aside---Application for leave to defend the suit was accepted subject to deposit of specified amount in cash and furnishing of surety bond to the extent of remaining amount before the Trial Court within specified period---Defendant was directed to appear before the Trial Court on the date fixed for further proceedings---Appeal was allowed in circumstances.

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

---O. XXXVII, Rr. 2 & 7---Suit for recovery of money on the basis of negotiable instant---Procedure---Summary suit had provided a special procedure for the parties and the defendant had no right to contest the suit unless he had sought permission to defend the same and leave was granted to him by the court through speaking order---Plaint filed under Order XXXVII, C. P. C. should disclose an open and shut case for the plaintiff to prove and for the defendant to defend with regard to negotiable instrument relied upon in the same.

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

----O. XXXVII, Rr. 2 & 3---Suit for recovery of money on the basis of negotiable instrument---Leave to defend the suit---Scope---Court could rarely refuse leave to defend application where defendant had not failed to disclose any defence---Real question to be determined would be whether leave should be conditional or unconditional---Where defence had raised and disclosed a triable issue or a plausible defence or a prima facie case was made out then leave should be granted as a rule---Court should neither go into the merits of the case to determine if defence was good nor it should go into the truth or falsity of the defence---If plausibility of defence so raised appeared to be determinative then court must exercise its jurisdiction in favour of defendant while providing him opportunity to defend the suit---If court while deciding the application for leave to appear and defend the suit had reached to the conclusion that apparently defence was not bonafide but same required recording of evidence then leave could be granted by imposing equitable condition for due performance of decree---Such condition should not be harsh, unjust and oppressive.

Muhammad Yafis Naveed Hashmi for Appellant.

Nemo for Respondent.

Date of hearing: 2nd October, 2015.

2016 M L D 1569

[Lahore]

Before Shahid Hameed Dar, J

FATEH MUHAMMAD and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.192 of 2005, decided on 9th July, 2015.

Penal Code (XLV of 1860)---

---Ss. 336, 324, 337-A (ii), 337-F (ii), 337-F (iv), 337-F (vi), 34 & 109---Itlaf-e-salahiyyat-e-udw, attempt to commit qatl-e-amd, shajjah-e-mudihah, ghayr-jaifah badi'ah, ghayr-jaifah mudihah, ghayr-jaifah munaqqilah, common intention and abetment---Appreciation of evidence---Statement of accused that they would not challenge their conviction and instead of they would pay Arsh and Daman amount to the injured if the sentence of imprisonment served by them so far was deemed sufficient and not objected to by the prosecution---Acceptance of said offer by the complainant party if payment was made to the injured forthwith before the court---Scope---Accused had injured prosecution witness by having lost self-control---Complainant party had received amount of Arsh and Daman fixed by the Trial Court---Parties had decided to bring end to their hostility---Sentence already served by the accused in jail before they were set at liberty on bail was sufficient to make it even with the accommodative approach of the parties---Conviction recorded by the Trial Court was sustained in circumstances---Appeal was dismissed with a modification of sentence of the accused.

Mubeen Ahmad Siddiqui for Appellants.

Rana Tasawar Ali Khan, Deputy Prosecutor General Punjab the State.

Iftikhar Ahmad Mian and Muhammad Ashraf for the State.

2016 M L D 1613

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed, J

ALLAH WASAYA---Petitioner

Versus

The STATE---Respondent

Criminal Appeals Nos.853 and Criminal Revision No.4 of 2010, decided on 17th September, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Case was of solitary blow confirmed through medical evidence, which was attributed to accused alone---Prosecution witnesses were consistent, straightforward and confidence inspiring---Previous acrimony in the wake of criminal litigation was also satisfactorily established---All the witnesses and accused were close relatives---Inadequacy of motive, infliction of a solitary blow; and un-anticipated arrival of the deceased at the venue to face his assession, were factors which on a closer scrutiny, without doubting the presence of eye-witnesses, spelled out a different scenario---Occurrence was a sudden incident---Application of clause (c) of S.302, P.P.C., in such a situation would be more aptly applicable to the case---Conviction of accused was converted into clause (c) of S.302, P.P.C., and his sentence was reduced to fifteen years' R.I., which in the facts and circumstances of the case would meet the ends of justice.

Ali Muhammad v. and Ali Muhammad and another PLD 1996 SC 274 and Azmatullah v. The State 2014 SCMR 1178 rel.

Syed Jawad Hussain Jafari for Appellant.

Muhammad Ali Shahab, D.P.G. for the State.

Malik Muhammad Saleem for the Complainant.

Date of hearing: 17th September, 2015.

2016 M L D 1623

[Lahore]

Before Umar Ata Bandial, C.J. and Muhammad Farrukh Irfan Khan, J

Haji ZAOHOOR-UD-DIN---Petitioner

Versus

KHALID LATIF and others---Respondents

R.F.A. No.337 of 2010, decided on 10th June, 2014.

Lunacy Act (IV of 1912)---

----S.62---Qanun-e-Shahadat (10 of 1984), Art.79---Specific Relief Act (I of 1877), S.12---Specific performance of agreement to sell---High Court's power to mould relief---Both agreements to sell were genuinely executed documents---Marginal witnesses fully corroborated the version of plaintiff in plaint---Execution of agreement and receipt of earnest money stood proved in accordance with Art. 79 of the Qanun-e-Shahadat, 1984---Second agreement to sell though was attested by only one marginal witness yet the same being continuation of the earlier agreement and having been attested by two sons and widow/wife of the deceased/vendor could not be discarded---Defendants had not challenged the agreements to sell before any court of law---Plaintiff obtained signatures and thumb impressions of two sons and wife of vendor/deceased on agreements in addition to attestation of marginal witnesses suggesting that plaintiff/vendee was in doubt as to vendor's capability of independently entering into agreement to sell---Application of vendor's wife for declaring her husband as lunatic was pending at the time of death of vendor---Vendor was physically and mentally incapable of independently entering into agreements to sell---Relief could not be granted to plaintiffs under Specific Relief Act, 1877, however, in view of proof of payment of earnest money to defendants/vendor's sons, High Court moulded the relief---High Court was vested with discretion to mould the relief in appropriate cases in order to avoid multiplicity of proceedings, to shorten litigation and to do justice between the parties---Agreements to sell were not enforceable at law---Defendants were directed to return the plaintiffs amount equal to the present value of gold which could be purchased with the amount of earnest money received by defendants---Appeal was partially allowed.

Muddasar Qayyum Nahra v. Ch. Bilal Iiaz and others 2011 SCMR 80 and Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984 rel.

Muhammad Rafique Chaudhry-I and Ghulam Mujaddad Rabbani for Appellant.

Ch. Abdus Salam for Respondents.

Ch. Muhammad Iqbal Addl. A.G. for the State.

Date of hearing: 22nd May, 2014.

2016 M L D 1639

[Lahore ]

Before Ali Baqar Najafi, J

IHSAN AHMED KHAN---Petitioner

Versus

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

Writ Petition No.17659 of 2013, decided on 11th December, 2015.

Civil Procedure Code (V of 1908)---

----S.11---Family Courts Act (XXXV of 1964), S. 5, Sched.---Suit for recovery of dowry articles---Res judicata, principle of---Applicability---Words "litigating under the same title" in S.11, C.P.C.---Scope---Suit for recovery of dowry articles was dismissed being premature during subsistence of marriage---Wife filed fresh suit for recovery of dowry articles after dissolution of marriage---Family Court rejected the plaint on the basis of res judicata but Appellate Court remanded the case for decision afresh holding that res judicata was not applicable---Validity---Whether dowry articles were still lying in the house of husband after divorce needed to be proved on the basis of evidence---Cause of action accrued from the date of desertion as it was the breakage of marriage which necessitated the litigation of matrimonial nature---Parties were the same and subject matter was also same but present litigation was not under the same title---Constitutional petition was dismissed in circumstances.

Malik Matee Ullah for Petitioner.

Imtiaz Hussain Khan Baloch for Respondent No.3.

Date of hearing: 1st December, 2015.

2016 M L D 1651

[Lahore (Multan Bench)]

Before Ibad-ur-Rehman Lodhi and Shahid Mubeen, JJ

NAZAKAT HUSSAIN SHAH and 5 others---Applicants

Versus

MUHAMMAD ALI and 3 others---Respondents

Review Application No. 28-C of 2011 in C. R. No. 723-D of 2004, heard on 9th March, 2016.

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

----O. XLVII, R. 1---Review---Scope---Scope of review was limited and applicant could not be allowed to exceed the limit as provided in O.XLVII, Rule 1, C.P.C.---Case could not be allowed to be reopened on merits in review jurisdiction---Applicant, in the present case, intended to introduce a new case which was neither taken in the pleadings nor during arguments---Plea of raising legal question at any time of the proceedings was not available to a review applicant---Review was dismissed in circumstances. [pp. 1652, 1653] A, B, D & E

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

----O. XLVII, R. 1---'Review'---Meaning.

Black's Law Dictionary Sixth Edition rel.

Abdul Rasheed Sheikh for Applicants.

Malik Muhammad Latif Khokhar for Respondents.

Date of hearing: 9th March, 2016.

2016 M L D 1660

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal, J

GHULAM RASOOL---Petitioner

Versus

GOVERNMENT OF PUNJAB through District Officer (Revenue), Sahiwal and 4 others---Respondents

Review Petition No.2-C of 2016 in Civil Revision No.48-D of 2016, decided on 3rd February, 2016.

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

----O. XXIII, R. 1---Withdrawal of suit---Requirements---Before allowing the withdrawal of suit court must be satisfied that there was some formal defect in the pleadings by virtue of which suit might not proceed or there might be some other sufficient grounds for withdrawal---Suit, in the present case, had been decided on merits and appeal had also been dismissed---If applicant was allowed to do away with judgments rendered against him by simpliciter withdrawal of suit, it would amount to setting aside of the decisions of subordinate courts---Applicant could not be allowed to withdraw suit at such stage as judgments and decrees against him had attained finality and had gained the status of binding effect between the litigating parties---Plaintiff had no right to withdraw the suit at his own free will affecting the rights of defendants and also rights of third parties which might have been created by or arisen from the orders passed or proceedings taken in the suit---Applicant was an illegal occupant on the suit property and was not entitled to have any discretionary relief---Lease of applicant had already expired and he was getting benefits without payment to the State---Applicant could not be allowed to withdraw the suit in circumstances---Application for withdrawal of suit was dismissed accordingly.

Fazal ur Rehman and others v. Province of Punjab through District Officer (Revenue), Bhakkar and another 2014 SCMR 1351; Muhammad Sharif through L.Rs. v. Province of Punjab through District Officer Revenue, Pakpattan 2014 SCMR 334 and Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979 rel.

(b) Administration of justice---

----He who seeks equity must do equity.

Ch. Abdul Sattar Goraya for Petitioner.

2016 M L D 1674

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD ILYAS through L.Rs. and others---Petitioners

Versus

KHURSHEED BIBI through L.Rs. and others---Respondents

Civil Revision No.1705 of 2005, decided on 19th February, 2016.

(a) Islamic Law---

----Inheritance---None of the plaintiffs were entitled to anything out of the legacy of propositus as they did not fall in the category of sharer---Distant kindred could not inherit anything in presence of residuaries---Nearer in decree would exclude the more remote---Propositus of the plaintiffs were not only distant kindred but also remoter in decree and they were not entitled to inherit anything from the property---Both the mutations were not attested in accordance with law which would not affect the rights of the heirs who would inherit the property---Bar of limitation was not applicable in the matter of inheritance.

Mst. Bushra Bibi and 2 others v. Muhammad Sharif and 23 others 2002 CLC 587; Muhammad lqbal and others v. Allah Bachaya and 18 others 2005 SCMR 1447; Atta Muhammad v. Maula Baksh and others 2007 SCMR 1446; Allah Yar v. Mst. Zahoor Elahi and 5 others 2011 YLR 2099; Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801; Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869; Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167; Cantonment Board through Executive Officer Cantt. Board Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 and Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373 rel.

(b) Islamic Law---

----Inheritance---Legal heirs---Classes---Classes of legal heirs were sharer; residuary and distant kindred.

(c) Islamic Law---

----Inheritance---When Muslim owner died his succession would open and devolve upon the legal heirs.

(d) Limitation---

----Inheritance---No limitation would run in the matter of inheritance.

Saeed-uz-Zafar Khawaja, Ch. Muhammad Naseer, Asjad Saeed for Petitioners.

Bakhtiar Mahmood Kasuri, Abdul Wahid Chaudhry for Respondents.

Shahid Naseem Gondal and Mushtaq Ahmad Mohal for Respondent No.9-C.

Date of hearing: 22nd January, 2016.

2016 M L D 1680

[Lahore]

Before Abid Aziz Sheikh, J

GHULAM HAIDER THIND---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 22205 of 2013, heard on 30th March, 2016.

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

----Ss. 52 & 2(iv)--- Constitution of Pakistan Arts. 199 & 225---Constitutional petition---Maintainability---Election for the seat of Member Provincial Assembly---Election petition---Words "candidate for election"---Provision of S.52 of Representation of the People Act, 1976---Scope---Nomination papers of the candidate were rejected by the Returning Officer but same were allowed by the High Court, however Supreme Court restrained him to contest the election---Election was held and appeal of the candidate was disposed of having become infructuous---Contention of candidate was that bar of Art. 225 of the Constitution was not applicable to him and constitutional petition being the only available remedy was maintainable---Validity---Provision of S.52 of Representation of the People Act, 1976 was remedial provision inserted for the benefit of the candidates for elections---Provision of S.52 of Representation of the People Act, 1976 had remedy of election petition even for those candidates who had merely filed nomination papers but could not contest election for any reason---Petitioner was candidate for the purpose of filing election petition under S.52 of Representation of the People Act, 1976---Tribunal appointed by the Election Commission had exclusive jurisdiction in election case---Remedy under S.52 of Representation of the People Act, 1976 was available to the petitioner and constitutional petition was not maintainable---Constitutional petition was dismissed in circumstances.

Abdul Ghafoor v. Shah Muhammad and 4 others 1987 MLD 54 ref.

I.A. Sherwani and others v. Govt. of Punjab through Secretary Finance Div. Islamabad and others 1991 SCMR 1041; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/ R.O. 1994 SCMR 1299 and Hafiz Hamdullah v. Saif Ullah Khan and others PLD 2007 SC 52 distinguished.

Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396; Ayatullah Dr. Imran Liaqat Hussain v. Election Commission of Pakistan and another PLD 2005 SC 52; A & B Food Industries Ltd. v. Commissioner of Income Tax/Sales, Karachi 1992 SCMR 663; Messrs. State Cement Corp. of Pakistan Ltd. v. Collector of Customs Karachi and another 1998 PTD 2999; Ghulam Mustafa Jatoi v. Addl. District and Sessions Judge/R.O. 1994 SCMR 1299; Moulana Amir Zaman Bokhari v. Election Commission of Pakistan through Secretary Constitution Avenue, Islamabad and 9 others PLD 2003 Quetta 88 and Muhammad Ramzan v. Jam Kaim Ali and others 1997 MLD 2819 rel.

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

----S. 2 (iv)---'Candidate'---Meaning.

(c) Interpretation of statutes---

----If language of the statutory provision was unambiguous and clear then said provision must be accorded the express meaning without deviation.

Muhammad Shahzad Shaukat for Petitioner.

Zia Ullah Ranjha and Ms. Kalsoom Khaliq for Respondent No.5.

Date of hearing: 30th March, 2016.

2016 M L D 1694

[Lahore]

Before Abdul Sami Khan, J

QAYYUM and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.11536-B of 2015, decided on 29th September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(ii), 337-F(iii), 337-L(2), 148 & 149---Causing Shajjah-i-Mudihah, Mutalahimah, other hurt, rioting common object---Pre-arrest bail, confirmation of---Case being of bail before arrest, deeper appreciation of evidence, was not allowed; only tentative assessment was required---Delay of twelve days in registration of FIR had not been explained, which, prima facie, had shown that the FIR had been got recorded after due deliberation and consultation---No specific role in the commission of alleged occurrence had been assigned to accused persons and only general allegation of giving beating to the complainant and his companion, was levelled against accused---Civil litigation, was pending between the parties; that could be the reason for false implication of accused persons in the present case---Person of accused could not be handed over to Police only for the purpose of effecting recovery, which otherwise had lost relevancy with the passage of time---Recovery of weapons of offence i.e. 'Danday Sotay' was a little help to the prosecution---Accused were previous non-convicts; and were never involved in any other case of like nature; they were neither hardened, dangerous, desperate criminals, nor they had committed the alleged offence on the pretext of honour---Investigation was complete to the extent of accused persons---No useful purpose would be served by sending them behind the bars---False implication of accused persons by the complainant with ulterior motive and mala fide intention, could not be ruled out of consideration---Ad interim pre-arrest bail, already granted to accused persons, was confirmed, in circumstances.

2014 SCMR 1349 rel.

Muhammad Azam Warraich for Petitioners.

Irfan Zia, Deputy Prosecutor General for the State and Tahir, A.S.I. with record.

Sajjad Ahmad Malik for the Complainant.

2016 M L D 1708

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

MOHABTI---Appellant

Versus

PROVINCE OF PUNJAB through D.C.O. and 5others---Respondents

R.S.A. No.12 of 2010, heard on 11th February, 2016.

Punjab Land Revenue Act (XVII of 1967)---

----S. 42---Mutation of sale---Contention of plaintiff was that alleged sale mutation in favour of defendants was illegal and without consideration---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Vendor got recorded his statement on 20-09-1999 in the earlier suit of plaintiff that he was owner of suit property---Alleged sale mutation was attested in favour of defendants on 13-09-1995---If vendor had sold suit property in favour of defendants then he should have deposed in his statement recorded on 20-09-1999---One witness of sale mutation had admitted that he had not affixed his thumb impression before the Tehsildar nor he appeared before the attesting officer or Patwari---Plaintiff was son of vendor who became angry with him and divorced his mother and started living with the defendants---Defendants being beneficiaries of disputed mutation had failed to prove that same was attested against consideration---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Second appeal was allowed in circumstances.

Malik Muhammad Iqbal for Appellant.

Ch. Pervaiz Iqbal Gondal for Respondents Nos.4 to 6.

Muhammad Siraj-ul-Islam Khan, Addl. A.G., Punjab for Respondents Nos.1 to 3.

Date of hearing: 11th February, 2016.

2016 M L D 1723

[Lahore (Multan Bench)]

Before Mushtaq Ahmad Tarar, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MULTAN through Chairman---Petitioner

Versus

Rana ISHFAQ AHMAD and 3 others---Respondents

Civil Revision No.1207-D of 2011, heard on 24th February, 2016.

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

----S. 42---Limitation Act (IX of 1908), Art. 120---Punjab Board of Intermediate and Secondary Education Act (XIII of 1976), Ss. 29 & 31---Suit for declaration---Limitation---Date of birth, correction of---Mala fide---Scope---Contention of plaintiffs was that dates of birth mentioned in their matriculation certificates were against the facts---Suit was decreed concurrently---Validity---Board had entered the dates of birth of the plaintiffs in their matriculation certificates according to the particulars and dates provided and mentioned by them in their admission forms submitted for matriculation examination---No negligence or mistake had been committed on behalf of Board with regard to entries of dates of birth of plaintiffs in their matriculation certificates issued by the same---No mala fide had been cited or established against any officer or official of the Board with regard to entries of dates of birth---Assumption of jurisdiction by the courts below in the present case was erroneous which had rendered impugned judgments without jurisdiction and coram non-judice---No veracity or authenticity could be attached to the alleged birth certificates got issued on the basis of entries procured in the Union Council after appearance of plaintiffs in their matriculation examination---Plaintiffs had procured their alleged birth certificates and other fictitious documents with mala fide intention---Suit of plaintiffs was also time barred as same had been filed after 14 years of their appearance in the examination---Impugned judgments and decrees were nullity in the eyes of law which were set aside---Revision was allowed in circumstances.

Nazir Ahmed through L.Rs. v. UMRA and others 2002 SCMR 1114 and Ghulam Rasool v. Ghulam Mustafa and others 1999 YLR 398 ref.

Board of Intermediate and Secondary Education, Lahore through Chairman v. Mst. Ambreen Ashraf and another 2008 YLR 2388; Board of Intermediate and Secondary Education, Gujranwala through Chairman v. Sohaib Abbas and 2 others 2006 YLR 1271; Board of Intermediate and Secondary Education through Chairman v. Muhammad Ishaque 2006 CLC 1850 and Board of Intermediate and Secondary Education, Lahore through Secretary v. Mst. Sobia Chand 1999 CLC 1166 rel.

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

----Art. 120---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Limitation---Six years period had been provided for filing suit for declaration.

Shakeel Javed Chaudhry for Petitioner.

Ch. Zia-ur-Rehman for Respondents.

Date of hearing: 24th February, 2016.

2016 M L D 1738

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

JAMEEL AHMAD NAAZ---Petitioner

Versus

Messrs SUPER ASSOCIATES and 2 others---Respondents

Writ Petition No.2405 of 2011, decided on 16th October, 2014.

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

----S. 15---Constitution of Pakistan, Art. 199---Constitutional petition---Eviction of tenant--- Default in payment of rent---Denial of relationship of landlord and tenant by the tenant---Rent Tribunal, jurisdiction of---Scope---Tenants filed application for leave to defend wherein they denied existence of relationship of landlord and tenant between the parties---Rent Tribunal declined leave application and passed final eviction order which was upheld by the Appellate Court---Validity---Tenants could not occupy the demised premises for an indefinite period on the basis of pendency of civil suit and take premium of suit which was a matter between a trustee and landlords---Rent Tribunal had limited power and it had to decide the matter arising between a tenant and landlord---Rent Tribunal had no jurisdiction to decide the intricate question of title---Once a tenant was always a tenant---Respondents attained the status of landlord after purchase of demised premises and petitioners became the tenants by operation of law---Notice was issued to the tenants after change of ownership but despite that, they refused to acknowledge the status of respondents as their landlord---Denial of relationship of landlord and tenant by the tenants was contumacious on their part---When a tenant had denied relationship of landlord and tenant but through the material available it was not so established on record tenant was liable to be evicted straightaway---No illegality or irregularity had been pointed out in the impugned orders/judgments passed by both the courts below---Constitutional petition was dismissed with costs, in circumstances.

Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another PLD 2009 SC 453 rel.

Muhammad Safdar Shaheen Pirzada, Sh. Maqbool Hussain, Badar Muneer Ch. Muhammad Asif Javed Khan, Muhammad Khalid Ch. for Petitioner.

Ch. Ikraam-ul-Haq for Respondents.

2016 M L D 1747

[Lahore]

Before Syed Muhammad Kazim Raza Shamsi, J

SAJID ALI---Petitioner

Versus

The STATE and 7 others---Respondents

Criminal Revision No.822 of 2015, decided on 30th September, 2015.

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

----Arts.132 & 133---Refusal to grant permission to cross-examine the Investigating Officer---Trial Court while trying the complaint case, had declined the request of the complainant to cross-examine prosecution witness/Sub-Inspector of Police---Stance taken by the Trial Court was that the witness was produced by the complainant as prosecution witness, who could not be termed as hostile witness; as such he could not cross-examine said witness---Stance taken by the Trial Court was not based upon the correct application of law---If the complaint was also filed along with the State case, then the procedure for the court was to take up first the complaint case; and to examine prosecution witnesses listed in the Police challan as "court witnesses"---When the witness was treated as court witness, then a right was accrued in both parties to cross-examine him---Trial Court, in the present case, should have followed that procedure by treating the witness as court witness; and to allow the complainant to cross-examine him also---Said witness was to be treated as court witness, and permission should have been granted to the petitioner/complainant to cross-examine him---Impugned order passed by the Trial Court was not sustainable in the eyes of law---Impugned order was set aside, with direction to treat the statement of said witness (Sub-Inspector) as statement made by a court witness and allow the complainant to cross-examine him.

Nur Elahi v. The State PLD 1966 SC 708 rel.

Rana Habib-ur-Rehman Khan for Petitioner.

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

Rana Muhamamd Saeed Akhtar for Respondents Nos. 2 to 5 and 7.

2016 M L D 1755

[Lahore]

Before Abdul Sami Khan and Shehram Sarwar Ch., JJ

FATEH MUHAMMAD alias GOGAY KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1329 of 2012, heard on 2nd December, 2015.

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

----S. 9(c)---Possession, import and export, trafficking and financing of the trafficking of narcotic drugs etc.---Appreciation of evidence---Quantum of narcotic substances, determination of---Principles---Presumption when separate samples not prepared from each packet of recovered narcotics---Sentence, reduction of---Trial court convicted the accused for eight kilograms of Charas, two kilograms of heroin and two kilograms of opium and sentenced him to undergo life imprisonment along with payment of fine---One kilogram of Charas had been purchased by the prosecution witness from the accused after becoming a fake customer and a separate sample of ten grams had been taken therefrom---Accused, after apprehension, had also led to the recovery of two kilograms of heroin and two kilograms of opium and separate samples of ten grams each had been taken from those narcotic substances---Seven kilograms of Charas was also allegedly recovered from the accused at time of his arrest, which was admittedly not in one packet and the same consisted in many packets---Prosecution/police witness had categorically deposed that he had mixed open and wrapped the seven kilogram of Charas and then taken sample of ten grams from the recovered bulk, so as to render the same into one packet for chemical analysis---In such situation of ambiguity, the only estimation which could be made was that one packet of Charas had been used by the complainant to segregate a sample of ten grams for transmitting the same for chemical analysis---Recovery of only two kilograms of Charas (one kilogram purchased from the accused by the police constable and one kilogram recovered from him at time of his arrest), two kilogram of heroin and two kilogram of opium, could safely be held to have been proved against the accused---High Court observed that where any narcotic substance was allegedly recovered while contained in different packets, wrappers or containers of any kind or in the shape of separate cakes, slabs or any other individual and separate physical form, then a separate sample was to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical analysis, and if that was not done, then only that quantity of narcotic substance was to be considered against the accused person from which a sample had been taken and tested with a positive result---High Court, maintaining the conviction to the extent of two kilogram of Charas, two kilogram of heroin and two kilogram of opium, reduced the sentence to imprisonment for fourteen years and six months along with fine---Appeal was disposed of accordingly.

Ameer Zeb's case PLD 2012 SC 380 and Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 rel.

Rana Ijaz Ahmad Khan and Malik Falak Sher for Appellant.

Muhammad Naseem, D.D.P.P. for the State.

Date of hearing: 2nd December, 2015.

2016 M L D 1761

[Lahore (Multan Bench)]

Before Amin-ud-din Khan, J

Mst. ZUBAIDA BIBI and another---Petitioners

Versus

RIAZ AHMAD and others---Respondents

Civil Revision No.296-D of 2008, heard on 14th October, 2015.

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

----Ss. 42 & 39---Suit for declaration---Maintainability---Sale deed---Power of attorney---Plaintiffs challenged the transaction of sale and power of attorney in favour of defendants---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Plaintiffs had filed suit after 15 years of transaction---Vendor had never challenged or disputed the impugned sale deed in favour of defendants---Impugned transaction had been made through registered sale deed or power of attorney---Suit should have been filed under S. 39 of Specific Relief Act, 1877 for cancellation of documents and not for declaration---Decree for declaration could be granted for a pre-existing right and no new right could be created through a declaratory decree---Findings recorded by the Appellate Court were in accordance with the evidence available on the file and law---No infirmity or illegality had been pointed out in the findings recorded by the Appellate Court---Revision was dismissed in circumstances.

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

----S. 42---Decree for declaration---Scope---Decree for declaration could be granted for a pre-existing right and no new right could be created through a declaratory decree.

Sardar Mustansar Billah Khan Nahar for Petitioners.

Nemo for Respondents.

Date of hearing: 14th October, 2015.

2016 M L D 1767

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

TARIQ MEHMOOD and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.23156 of 2013, heard on 17th March, 2014.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Custody of minor---Welfare---Determining factors---Guardian Court dismissed mother's application for custody of minor daughter and handed over the custody of minor to paternal uncle and aunt---Appellate court accepted appeal of mother and custody of minor daughter was handed over to her---Validity---In the absence of father, mother was the natural guardian of the minor as she could better look after the minor daughter who was approaching the age of puberty---No substitute for love and affection of real mother---Mother had not contracted second marriage and had devoted her life for the sake of her children---Where minor reached age of discretion, his/her statement could be considered while determining custody but such statement was not sine qua non for court's decision---Welfare of the minor was the supreme consideration in custody matters---Real mother could not be deprived of the custody of her minor children merely on the ground that she did not have sufficient source of income---Younger sister of the minor was also living with the mother---Welfare of minors required that they should all live together at one place---Petition of paternal uncle and aunt was dismissed.

Mst. Zar Bibi v. Haji Malik Abdul Ghaffar and others 1998 MLD 1697; Mst. Zainab Bibi v. Rehmat Ali and 2 others 1994 MLD 1098 and Mst. Munira Bibi v. Additional District Judge, Sheikhupura and 2 others 2007 CLC 1612 distinguished.

Mst. Nazli v. Muhammad Ilyas and another 2010 MLD 477; Najma Parveen v. Ihsan-ur-Rehman 1988 CLC 2196; Mst. Feroze Begum v. Lt. Col. Muhammad Hussain 1983 SCMR 606 and Ghulam Mustafa v. Mst. Manzooran Bibi and others 1994 MLD 1199 rel.

Ghulam Hussain Awan for Petitioners.

Ejaz Ahmed Janjua for Respondents.

Date of hearing: 17th March, 2014.

2016 M L D 1771

[Lahore (Multan Bench)]

Before Shahid Waheed and Shah Khawar, JJ

Mst. RANI FAREEDA---Petitioner

Versus

TAHIR SALEEM---Respondent

R.A. No.13-C of 2014 in C.R. No.813 of 2014, decided on 30th September, 2014.

Civil Procedure Code (V of 1908) ---

----S. 114 & O. XLVII, R. 1---Review jurisdiction, invocation of---Scope---Applicant seeking review was bound to show an error apparent on the face of record---Review jurisdiction could not be invoked as a matter of routine or to re-open a case which had already been decided and that too after conscious deliberation on a question of fact and law---Applicant had failed to point out any error apparent on the face of record which was an important ingredient to invoke review jurisdiction---Review petition was dismissed in limine.

Raja Prithvi Chand Lal Choudhury v. Sukhraj Rai and others AIR 1941 Federal Court 1; M. Moosa v. Muhammad and others 1975 SCMR 115 and Muhammad Azam and another v. Collector of Customs (PREV.), Headquarter, Karachi and 3 others 2005 CLC 58 rel.

Mian Habib-ur-Rehman Ansari for Petitioner.

2016 M L D 1774

[Lahore ]

Before Shezada Mazhar, J

Ms. HUMAIRA NAJMI MUJAHID and another---Petitioners

Versus

DEFENCE HOUSING AUTHORITY through Secretary and another---Respondents

Writ Petition No.6161 of 2010, decided on 28th February, 2014.

Stamp Act (II of 1899)---

----Sched., Art.63-A [Punjab Amendment]---Constitution of Pakistan, Art.199--Constitutional petition---Transfer of right---Levy of stamp duty---Grievance of petitioner was that property in question was transferred through gift deed, therefore, it was not liable to payment of stamp duty as demanded by Housing Authority---Validity---Even if no document / instrument was executed between transferor and transferee, even then at the time of giving effect to transfer of interest in immovable property from one person to another person stamp duty at the rate of 2% of the value of property was to be collected by development authority, housing authority, statutory body, cooperative housing society, company or a developer---Demand raised by respondent Authority for payment of 2% stamp duty at the value of immovable property was in accordance with Art.63-A of Stamp Act, 1899---High Court declined to interfere in the demand made by respondent Authority---Petition was dismissed in circumstances.

Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403; Tahir Umar v. Model Town Society, Model Town, Lahore through Secretary and 2 others 2007 MLD 304 and Khushi Muhammad and others Vs. Muhammad Ashfaq and others PLD 2014 Lah. 26 ref.

Hafiz Saeed Akhtar for Petitioners.

Syed Najaf Hussain Shah for Respondents.

Date of hearing: 20th February, 2010.

2016 M L D 1779

[Lahore (Multan Bench)]

Before Atir Mahmood, J

PAKISTAN BURMA SHELL COMPANY NOW SHELL PAKISTAN LTD. through Legal Advisor/General Attorney Shell Pakistan Shell, Karachi---Appellant

Versus

Messrs NAWAZ AND SONS through Proprietor and another---Respondents

F.A.O. No.182 of 2005, heard on 6th November, 2013.

Limitation Act (IX of 1908)---

----S.3---Civil Procedure Code (V of 1908), O.XXXVII, Rr.2 & 3---Summary suit---Execution petition---Limitation---Merger, rule of---Applicability---Scope---Contention of decree-holder was that execution petition could not be filed during pendency of appeal---Validity---Appeal was preferred against the judgment and decree of Trial court which was admitted for regular hearing but operation of same was not suspended---Said appeal remained pending for about nine years but decree-holder did not file execution petition and appeal was withdrawn---Execution petition was filed after the dismissal of appeal which was dismissed by the Executing Court holding that same was not filed within specified period of three years commencing from the date of passing of decree---Appeal was continuation of proceedings but rule of merger was applicable when decree of Trial Court was modified, reversed or affirmed by the Appellate Court---Time for execution petition might be extended till the decree remained under suspension if stay was granted by the Appellate Court---Time for filing of execution petition would be computed from the date of passing of the decree if stay was not granted and appeal preferred against the same was withdrawn or disposed of without deciding the same on merits---No stay was granted by the Appellate Court in the appeal preferred by the judgment-debtor against the judgment and decree of Trial Court which was ultimately withdrawn---Decree remained executable despite filing of appeal against the same---Limitation for filing of execution petition would start from the date of passing of decree and same would continue for three years---Decree-holder did not file the execution petition for about nine years which was barred by time---Each and every day of delay was required to be explained but decree-holder had failed to do so---Impugned order passed by the Executing Court was in accordance with law---Appeal was dismissed in circumstances.

Union of Indian and others v. West Coast Paper Mills Ltd. and another AIR 2004 SC 1596; Jokhan Rai v. Baikhunth Singh AIR 1987 Patna 133; Gyaniram v. Gangabai AIR 1957 MP 85; Saifur Rahman and others v. Haider Shah and another PLD 1967 SC 344; Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241; Nawabzada Tilla Muhammad Khan v. Haji Muhammad Afzal and 4 others 2012 YLR 2236; Hakim Khan v. Saz Gul and others 2004 YLR 351; Muhammad Umar Gul v. Ikram Ullah Khan 1997 MLD 1917; Dost Muhammad v. Muhammad Rafiq 2003 YLR 1908; Nagendra Nath Dey and another v. Suresh Chandra Dey and others AIR 1932 Privy Council 165 and Uma Shankar Sharma v. The State of Bihar and another AIR 2005 Patna 94 ref.

Bakhtiar Ahmed v. Mst. Shamim Akhtar and other 2013 SCMR 5; Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 and Muhammad Nazir and another v. Qaiser Ali Khan and 4 others 2003 SCMR 436 rel.

Union of Indian and others v. West Coast Paper Mills Ltd. and another AIR 2004 SC 1596; Jokhan Rai v. Baikhunth Singh AIR 1987 Patna 133; Gyaniram v. Gangabai AIR 1957 MP 85; Saifur Rahman and others v. Haider Shah and another PLD 1967 SC 344; Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241; Nawabzada Tilla Muhammad Khan v. Haji Muhammad Afzal and 4 others 2012 YLR 2236; Hakim Khan v. Saz Gul and others 2004 YLR 351; Muhammad Umar Gul v. Ikram Ullah Khan 1997 MLD 1917; Dost Muhammad v. Muhammad Rafiq 2003 YLR 1908; Nagendra Nath Dey and another v. Suresh Chandra Dey and others AIR 1932 Privy Council 165 and Uma Shankar Sharma v. The State of Bihar and another AIR 2005 Patna 94 distinguished.

Sh. Usman Kareem ud Din for Appellant.

Mian Muhammad Asif Rasheed Sial for Respondents.

Date of hearing: 6th November, 2013.

2016 M L D 1787

[Lahore]

Before Ijaz Ahmad and Shahid Bilal Hassan, JJ

PROVINCE OF PUNJAB through District Officer (Revenue) Bhakkar and another---Appellants

Versus

NOOR MUHAMMAD and 3 others---Respondents

R.F.A. No. 696 of 2012, decided on 29th January, 2014.

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

----Ss. 5 & 14---Land Acquisition Act (I of 1894), S.54---Delay in filing of appeal---Condonation of delay---Wrong advice of counsel---Appeal filed before wrong forum---Scope---Plea of the petitioner/government department was that initially they had filed appeal before District Judge (wrong forum) instead of High Court, and some time had also been spent in completion of departmental proceedings---Validity---Valuable rights having been created in favour of respondents/other party, could not be taken away---Government that made laws, must follow the same and could not claim a concessional treatment--- State having made the laws had to adhere to same more strictly than an individual who had no role to play in the scheme of law making---Gross negligence of a counsel in selection of the forum had no ground for exclusion of time or condonation of delay---Application for condonation of delay along with appeal was dismissed.

Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Mirza Muhammad Saeed v. Shahab ud Din and 8 others PLD 1983 SC 385; Manzoor Hussain and 2 others v. Muhammad Ali and another 1989 SCMR 1498; Ferro Alloys v. Toyo Menka Kaisha 1992 CLC 712; Raja Karamatullah and 3 others v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892; Abdul Rehman Qamar v. Government of N.W.F.P through Secretary Education, Peshawar and 5 others 2003 PLC (C.S) 1171; Monazah Parveen v. Bashir Ahmad and 6 others 2003 SCMR 1300; Br. Jehanzaib Rahim v. Dr. Shaukat Pervez and others PLD 2007 SC 560; Abdul Majid and others v. Mst. Zubeda Begum etc. 2007 SCMR 866; Chairman, District Govt. Evacuee Trust, Jhelum v. Abdul Khaliq through Legal Heirs and others PLD 2002 SC 436; Collector, Land Acquisition, Chashma Right Bank Canal Project WAPDA, D.I. Khan and others v. Ghulam Sadiq and others 2002 SCMR 677 rel.

Karachi Electric Supply Corporation Ltd v. Lawari and 4 others PLD 2000 SC 94; Board of Governors Area Study Centre for Africa and North America, Quaid-e-Azam, University, Islamabad and another v. Ms Farah Zahra PLD 2005 SC 153 and Government of Balochistan through Secretary Board of Revenue, Balochistan Quetta and others. v. Muhammad Ali and 11 others 2007 SCMR 1574 distinguished.

Abrar-al-Haq Shami, Deputy Secretary, Establishment Division, Islamabad and another v. Federation of Pakistan through Secretary Ministry of Overseas Pakistanis, Islamabad 2012 SCMR 1292 and 1. Tanveer Jamshed 2. Major (Rtd.) Jamshed Alam Khan v. Raja Ghulam Haider 1992 SCMR 917 ref.

(b) Interpretation of statutes---

----Where two interpretations were possible the one more favouring the feeble individual vis-a-vis the omnipotent state and its functionaries should be adopted.

Miss Samia Khalid, A.A.G. for Appellants.

Saif ul Malook for Respondents.

2016 M L D 1791

[Lahore]

Before Mazhar Iqbal Sidhu, J

UMMER HAYAT---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2 of 2014 in Criminal Appeal No.1065 of 2014, decided on 10th April, 2015.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S. 302(c)---Qatl-i-amd---Suspension of sentence pending appeal---Trial Court, in impugned judgment, had disbelieved the prosecution version, and had found the act of accused as defensive---When the Trial Court had held the bulwark act of accused against the deceased as justified, it was then incomprehensible as to how the court had branded same as illegal---Reprobation, approbation, could not proceed simultaneously---Petition for suspension of sentence was accepted; quantum of sentence inflicted upon accused was suspended and he was granted bail, in circumstances.

Bilal Ahmad Hassan for Petitioner.

Iftikhar-ul-Haq Chaudhry, Addl. Prosecutor General for the State.

A.D. Kahloon for the Complainant.

2016 M L D 1793

[Lahore (Rawalpindi Bench)]

Before Amin-ud-Din Khan, J

WAJID HUSSAIN---Petitioner

Versus

ZAHIR KHAN and 4 others---Respondents

Writ Petition No.1397 of 2012, heard on 4th April, 2016.

(a) Punjab Land Revenue Act (XVII of 1967)---

----S. 163---Gift---Review of mutation by the Revenue Officer---Scope---Once gift mutation had been attested on the move of donor, ingredients of gift were completed---Application for review of mutation before Revenue Officer on the ground that its ingredients were not completed did not lie---Revenue officer was not competent to review the mutation after 8 years of its attestation---Constitutional petition was dismissed in circumstances.

(b) Punjab Land Revenue Act (XVII of 1967)---

----S. 163---Review---Limitation---Ninety days period had been provided for filing review petition before the Revenue Officer.

Syed Atif Hussain Shah for Petitioner.

Malik Muhammad Siddique Awan and Khurshid Ahmad Satti, Asstt. A.-G. Punjab for Respondents.

Date of hearing: 4th April, 2016.

2016 M L D 1802

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Dr. SARAH YOUSAF---Petitioner

Versus

MUHAMMAD UMAIR and others---Respondents

Writ Petition No.25336 of 2015, heard on 10th March, 2016.

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

----Ss. 14 & 5, Sched.----Dissolution of marriage on the basis of Khula'---Appeal against decree of dissolution of marriage/right of dower---Scope---Family Court decreed the suit for dissolution of marriage on basis of Khula subject to return of the dower amount of Rupees 200000---Section 14(2)(b) of Family Courts Act, 1964 debarred the aggrieved party to file appeal only where value of the dower or dowry was not exceeding rupees thirty thousand; therefore, the remedy of appeal was available to the plaintiff under S. 14 (1) (b) of the Act---Plaintiff also had the remedy of appeal, as the Family Court had passed a conditional decree in her favour---Plaintiff, being aggrieved of the decree of the Family Court, could avail the remedy of appeal---Law put clog on the right of appeal of a husband and not of a wife---Constitutional petition being not maintainable was dismissed in circumstances.

Abid Hussain v. Additional District Judge, Alipur, District Muzarfargarh and another 2006 SCMR 100 and Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another 2008 SCMR 186 ref.

Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382 and Abid Hussain v. Additional District Judge, Alipur, District Muzatfargarh and another 2006 SCMR 100 rel.

Sajid Mahmood v. Additional District Judge, Bahawalpur and others 2008 CLC 1657 and Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another 2008 SCMR 186 distinguished.

Ms Asma Jahangir for Petitioner.

Asad Abbas Butt for Respondent.

Date of hearing: 10th March, 2016.

2016 M L D 1810

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

NADEEM RAJA---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No.2709 of 2012, decided on 3rd February, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Registration of FIR---Act done in good faith/ official capacity---Petitioner, employee of Electric Supply Company had lodged FIR under S.39-A of Electricity Act, 1910 against the respondent for stealing electricity---Ex-officio Justice of Peace on application of respondent, directed the SHO to register FIR against the employee of Electric Supply Company and to Capital City Police Officer to hold enquiry into the matter in terms of Art.155(c) of Police Order, 2002---Validity---Petitioner/employee being public functionary, had performed his official duty after fulfilling all the legal requirements; therefore, he, having acted in good faith, had not committed any offence---Employee of Electric Supply Company had already lodged FIR against the respondent for stealth of electricity whereas, the respondent had filed suit for declaration and permanent injunction, and subsequently contempt petition, against the Electric Supply Company and the petitioner/employee---Orders of the Justice of Peace for registration of case against the employee being illegal and without lawful authority, was set aside---Constitutional petition of the employee was allowed in circumstances.

The State and others v. M. Idrees Ghauri and others (2008 SCMR 1118 rel.

Muhammad Umar Malik for Petitioner.

Ch. Akbar Ali Kung, Asstt. A.-G. with Liaqat Ali, D.S.P. and Muhammad Asif, A.S.I. for Respondents Nos.1 and 3.

Waheed Afzal Malik for Respondent No.2.

2016 M L D 1825

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

TAJ MUHAMMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.2236 of 2010, heard on 10th December, 2015.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Prosecution, had not established safe custody of recovered substance---Contradictions existed in the case of prosecution as to deposit of sample and case property in the 'Malkhana'---Inspector, after receiving case property and samples at the spot had not stated as to whom he had handed over the same---No evidence was available to connect the Chemical Examiner's report, with the substance that was seized from the possession of accused---Conviction of accused on the basis of testimony of prosecution witness, which could not be said to be trustworthy was not safe---Trial Court was not justified in convicting accused without any legal evidence---Inherent illegality, having been noticed in the matter, conviction of accused, could not be upheld---Accused was acquitted of the charge, and he being on bail, his surety stood discharged.

Ms. Nighat Saeed for Appellant.

Muhammad Atif Rao, DDPP for the State.

Date of hearing: 10th December, 2015.

2016 M L D 1845

[Lahore]

Before Ali Akbar Qureshi, J

Mst. SHAMIM AKHTAR (deceased) through Legal Heirs and others---Appellants

Versus

GOVERNMENT OF THE PUNJAB through Secretary Education and others---Respondents

F.A.O. No.272 of 2008, heard on 20th January, 2016.

Requisition of Immovable Property (Temporary Powers) Rules, 1962---

----Rr. 8, 9 & 10----Punjab Requisition of Immovable Property (Temporary Powers) Act (VII of 1956), Ss. 6 & 7---Suit for enhancement of compensation/rate of rent---Additional District Judge enhanced the compensation/rate of rent holding that the plaintiff was entitled to claim compensation only for period of three years and the claim beyond that period was therefore barred---Validity---Requisition of Immovable Property (Temporary Powers) Rules, 1962 provided that the owner of the property, if not satisfied with the compensation fixed by the requisitioning authority, firstly would approach the requisitioning authority and on his refusal after issuing the statement in writing would file a reference to the Arbitrator within thirty days thereafter for fixation of the compensation---Rules 8, 9 and 10 of Requisition of Immovable Property (Temporary Powers) Rules, 1962 gave limitation to file the petition/reference to the arbitrator---Additional District Judge, therefore, had erred in law by not deciding the issue as to limitation as required by law---Main question in the case revolved around the limitation, which, being mixed question of law and facts, could only be decided by recording of the evidence---High Court, setting aside impugned order, remanded the case for decision afresh---Appeal against order was allowed in circumstances.

Government of the Punjab through Secretary Education, Lahore v. Shahida Begum 1994 SCMR 1488; Azmatullah and another v. Secretary to Government of West Pakistan PLD 1978 Lah. 979 and Home Department, Government of Punjab through Secretary and others v. Mian Irshad Hussain PLD 2010 Lah. 654 ref.

Muhammad Shehbaz Ahmad for Appellants.

Tariq Mehmood Chaudhry, Asstt. Advocate-General along with Shabnam Noor, Deputy Tehsil Shalimar for Respondents.

2016 M L D 1853

[Lahore]

Before Shahid Mubeen, J

Sardar MUHAMMAD UMAR---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents|

Writ Petition No.32535 of 2015, decided on 20th November, 2015.

Land Acquisition Act (I of 1894)---

----Ss. 11, 5 (a), 6 & 18---Land acquisition---"Public purpose"---Contention of petitioner was that sufficient government land was available and agriculture land could not be acquired---Validity---Land of petitioner had been acquired in accordance with law and award had been announced---Petitioner was estopped to file constitutional petition as he had availed adequate remedy by filing objection against the award---Petitioner had right to a Reference if compensation awarded was not acceptable to him---Availability of government land was no ground to question the acquisition of proposed land---Acquiring agency had to see the suitability of land for the purpose of proposed scheme---Disputed land was acquired for "public purpose"---No prohibition existed with regard to acquisition of land for its being agriculture or non-agriculture whether situated in the vicinity of town or not---Constitutional petition was dismissed in circumstances.

PLD 2009 SC 217 and Muhammad Ashiq and another v. Water and Manpower Development Authority, Lahore through Chairman, WAPDA House and another PLD 2008 SC 335 rel.

Zain Sikandar for Petitioner.

2016 M L D 1862

[Lahore (Rawalpindi Bench)]

Before Masud Abid Naqvi, J

AAMIR IQBAL KHAN---Petitioner

Versus

MARIA NARGIS and 2 others---Respondents

Writ Petition No.2801 of 2014, decided on 13th January, 2015.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dowry articles---Gold ornaments being bridal gifts would become personal property of wife---Wife was entitled to recover gold ornaments from the husband---Finding of Appellate Court with regard to gold ornaments was based on cogent reasons---Judgment of Appellate Court being in accordance with law, justice and equity, constitutional petition was dismissed.

Abdul Razzak v. Shabnam Noonari and others 2012 SCMR 976 rel.

Mrs. Sarkar Abbas for Petitioner.

2016 M L D 1870

[Lahore]

Before Muhammad Khalid Mehmood Khan, J

Chaudhary INAYAT ALI---Petitioner

Versus

PROVINCE OF PUNJAB through D.O.R. (Collector) and another---Respondents

Civil Revision No.60 of 2004, decided on 2nd April, 2015.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----Sched., paras. 9 & 10---Qanun-e-Shahadat (10 of 1984), Art. 87---Suit for declaration---Evacuee property---Auction---Transfer order---Public document---Scope---Contention of plaintiff was that he was owner of suit property on the basis of "transfer order" whereas defendants contended that suit property was not evacuee and Settlement and Rehabilitation department had no authority to transfer the same to the plaintiff---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Suit property was an evacuee property which was transferred to the plaintiff---Final "transfer order" had been issued against the price---"Transfer order" was still in field and had not been cancelled or set aside by any competent court of law---Plaintiff had deposited the entire auction money---Appellate Court had wrongly found that auction was not finalized as it was not the domain of the said court---Appellate Court could not reopen the matter---Defendants had not filed any suit for cancellation of "transfer order" before any competent court of law---Settlement authorities had no jurisdiction to cancel the transfer order---Certified copy of a public document was a proof of the contents of the same and a presumption of genuineness was attached to the said copies if not rebutted otherwise---Plaintiff was owner in possession of suit property---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was accepted in circumstances.

Syed Ahmad Nusrat Ullah and others v. Member, Board of Revenue and others 2002 CLC 384; Pakistan Transport Company Ltd. v. Walayat Khan through Legal Heirs 2002 SCMR 1470; Province of Punjab and others v. Sub. Divisional Forest Officers and others 1991 SCMR 1426; Masooda Begum through Legal Heirs v. Government of Punjab PLD 2003 SC 90 and Muhammad Saddiq (deceased) through L.Rs. v. Mushtaq and others 2011 SCMR 239 ref.

Khan Bahadur and 2 others through Legal Heirs v. Ahmad Khan and others 1992 SCMR 1362; Mahmood Akhtar Kiani v. Azad Jammu and Kashmir Government 1998 SCR 310; Pribhadinomal Melhumal v. Mt. Chitti AIR 1933 Sindh 379 and Dr. Muhammad Iqbal and 9 other's case PLD 2010 Lahore 249 rel.

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

----Art. 87---Public document---Scope---Certified copy of a public document was a proof of the contents of the same and a presumption of genuineness was attached to the said copies if not rebutted otherwise.

Khan Bahadur and 2 others through his Legal Heirs v. Ahmad Khan and others 1992 SCMR 1362; Mahmood Akhtar Kiani v. Azad Jammu and Kashmir Government 1998 SCR 310 and Pribhadinomal Melhumal v. Mt. Chitti AIR 1933 Sindh 379 rel.

Naveed Shehryar Sheikh, Ch. Naseer Ahmad Bhutta and Bashir Ahmad Mirza for Petitioner.

Malik Abdul Aziz Awan, Addl. A.-G., Punjab, Munir Ahmad, Court Clerk, TMA, Kamalia, Muhammad Arshad, Dargodha, TMA, Kamalia, Tariq Mahmood, Patwari Halqa, Pir Mahal and Munir Ahmad, Naib Tehsildar, Pir Mahal for Respondents.

2016 M L D 1884

[Lahore (Rawalpindi Bench)]

Before Ch. Mushtaq Ahmad, J

MUHAMMAD AMANAT KHAN---Petitioner

Versus

The STATE and another---Respondents

Crl. Miscellaneous No.1953/B of 2014, decided on 8th January, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 392 & 34---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, robbery, common intention---Possessing unlicensed arms---Bail, grant of---Further inquiry---Accused was not nominated in the FIR and was involved in the case on the statement of co-accused, who was nominated by the complainant in his supplementary statement---Accused had already been acquitted from the charge in the case---Mere absconsion of accused, could not be a valid ground for refusal of bail to him, if otherwise, he had a case for bail on merits---Material, collected in the case, was not sufficient to prima facie show, that accused had committed alleged offence---Guilt of accused needing further probe, his case called for further inquiry---Accused was released on bail, in circumstances.

Ghulam Ahmad Chishti v. The State 2013 SCMR 385; Mitho Pitafi v. The State 2009 SCMR 299; Allah Ditta v. The State and others 2012 SCMR 184 and Qamar alias Mitho v. The State and others PLD 2012 SC 222 ref.

Sami ur Rehman for Petitioner.

2016 M L D 1887

[Lahore]

Before Mazhar Iqbal Sidhu, J

MUHAMMAD IRFAN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.1381 and Criminal Revision No.779 of 2007, heard on 20th April, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b), 364 & 201---Qanun-e-Shahadat (10 of 1984), Art.40---Qatl-i-amd, kidnapping or abducting in order to murder, causing disappearance of evidence of offence---Appreciation of evidence---Sentence, reduction in---Present case was of circumstantial evidence---Dead body of the deceased was got recovered by accused persons themselves---Deceased was proved to have been abducted in a deceiptful means to kill---Statement of prosecution witnesses related to different incident of having seen the deceased in the company of accused persons---Departure of the deceased from his house up to his reaching along with accused persons had not been demolished despite the fact that searching cross-examination was carried out over the prosecution witnesses; and they all had been found consistent to their statements, and persistent to the accusation---Prosecution had proved its case so far as the abduction of the deceased in order to murder him was concerned---Material on record did not provide any evidence of the killing of the deceased by any of accused persons---No evidence as to the actual commission of murder had been collected by the Investigating Officer during the investigation---When the Investigating Officer had collected the evidence of abduction of the deceased, then he ought to have collected evidence for commission of murder---Accused persons at the time of getting recovered the dead body of the deceased had confessed to have murdered the deceased to his burial, but that part of statements of the prosecution witnesses being inadmissible, could not be read as an evidence---Relying upon Art.40 of Qanun-e-Shahadat, 1984, only to the extent of discovered or recovered event could be taken into consideration; whereas the disclosure of accused could not be read as an evidence and simultaneously, could not be relied upon---Conviction and sentence of accused persons under said provisions of law, was set aside but under Ss.364/201, P.P.C., was maintained and their appeal qua said charges was dismissed---If the period of incarceration of accused persons was reckoned, it was four years; whereas for the last about nine years, they were facing the trial---Under S.201, P.P.C., accused were convicted and sentenced to three years' R.I., which they had already undergone whereas under S.364, P.P.C., to undergo ten years' R.I.---By taking a lenient view their quantum of sentences, were reduced up to the periods already undergone.

Zafar Iqbal Chaudhry, Nasir Mehboob Tiwani and Naeem Akhtar Girwah for Appellants (in Criminal Appeal No.1381 of 2007).

Muhammad Ahsan Bhoon for Petitioner (in Criminal Revision No.779 of 2007).

Iftikhar ul Haq Chaudhry, Addl. Prosecutor General for the State.

2016 M L D 1910

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD ASHRAF---Petitioner

Versus

APPELLATE AUTHORITY and others---Respondents

Writ Petition No.3045 of 2016, decided on 8th February, 2016.

(a) Punjab Local Government Act (XVIII of 2013)---

----Ss. 2(mmm) & 2(xxxi)---Election for local government---Employer/entrepreneur, filing of nomination papers for the seat of 'worker'---Scope---Candidate submitted nomination papers for the reserved seat of "worker" which were rejected by the Returning Officer but Appellate Authority accepted the same---Validity---Candidate was running a furniture showroom for the last many years and number of persons were working under his control---Candidate was an employer/entrepreneur who was employing 'workers' in his shop---Purpose for creating special seats of 'worker' was to give representation to a class of people who had low income and were not able to get representation through general election---Candidate did not fall within the definition of 'worker'---Nomination papers were rightly rejected by the Returning Officer---Impugned order passed by the Appellate Authority was set aside and that of Returning Officer was restored---Constitutional petition was allowed in circumstances.

(b) Punjab Local Government Act (XVIII of 2013)---

----S. 2(mmm)---"Worker"---Meaning.

(c) Words and phrases---

---'Personal labour'---Meaning.

(d) Words and phrases---

---'Subsistence'---Meaning.

Chambers 21st Century Dictionary rel.

Rana Muhammad Arshad Gadhi for Petitioner.

Muzammal Akhtar Shabbir, Deputy Attorney General for Pakistan along with Nasir Javed Ghumman, Law Officer o/o Election Commission of Pakistan and Muhammad Dawood, A.R.O. for Respondents.

2016 M L D 1914

[Lahore]

Before Abdul Sami Khan and Sadaqat Ali Khan, JJ

ZAFAR HAYAT---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.2410 of 2010, heard on 26th February, 2015.

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

----Ss. 302(b), 311, 324 & 337-F(i)---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.345---Qatl-i-amd, tazir after waiving or compounding of right of qisas in qatl-i-amd, causing damiyah, act of terrorism---Tazir---Compromise in case of tazir---Principles---Appreciation of evidence---Case was of promptly lodged FIR, which had ruled out any chance of consultation or deliberation to falsely implicate accused in the case---Parties did not have any dispute over date, time and place of occurrence---Version of complainant could not get support from statements of witnesses to the extent of role attributed to co-accused, but they had consistently supported his version to the extent of accused---Advocate, who sustained injuries during the occurrence, was absolutely an independent witness having no relation with the complainant; and he did not have any malice, ill-will, enmity or ulterior motive to depose falsely against accused---Prosecution witnesses had corroborated each other on all material aspects of the case; their evidence was not only straightforward, but inspired confidence---Medical evidence had fully supported the ocular account furnished by the complainant and other witnesses---Recovery of pistol .30 bore along with two live bullets were recovered from accused, who was caught red handed at the time of his arrest---Report of Forensic Science Laboratory was positive in respect of recovered weapons---Reason behind the murder of deceased, had successfully been proved---Defence plea taken by accused, could not get support from any surrounding circumstances---Version of the prosecution, when put in juxtaposition to the plea raised by accused appeared more feasible and convincing---Prosecution had fully proved its case against accused beyond the shadow of doubt for the murder of the deceased and for causing injuries to prosecution witness, but Trial Court had convicted and sentenced accused under S.311, P.P.C.; on the ground that parents of deceased had forgiven accused in the name of Allah; and had waived their right of qisas---Validity---Present was not a case of qisas falling under S.302(a), P.P.C.; as the eye-witnesses had not undergone the test of "Tazkiya-tul-Shahood" before recording their evidence---Partial compromise effected with only some of the legal heirs in case of tazir could not be used and it was not sufficient to hold that offence had been compromised---Compromise could be effected by all the legal heirs of the deceased under S.345(2), Cr.P.C., with the permission of the courts---Conviction and sentence of accused under S.311, P.P.C., was set aside; and he was convicted under S.302(b), P.P.C.---Accused was sentenced to undergo imprisonment for life as tazir---With said modification in the conviction and sentences of accused, appeal stood dismissed.

Basher Ahmad v. The State and another 2004 SCMR 236 and Zahid Rehman v. The State (Criminal Petition No.568 of 2011) ref.

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

----S. 345---Compromise---Partial compromise---Case of tazir---Principles.

Basher Ahmad v. The State and another 2004 SCMR 236 ref.

Usman Naseem, Defence counsel at State expense for Appellant.

Tariq Javed, District Public Prosecutor for the State.

Imran Javaid Gill for the Complainant.

2016 M L D 1926

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

NAZIR AHMAD (deceased) through Legal Heirs---Petitioners

Versus

MUHAMMAD RAFIQUE and 4 others---Respondents

Civil Revision No.624 of 2016, decided on 11th May, 2016.

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

----S. 9---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Question of title of parties, determination of---Principle---Questions relating to title of parties were to be decided and adjudicated upon by Civil Court of competent jurisdiction under S.9 of Civil Procedure Code, 1908.

Mohhabat Khan v. Abdul Hameed 2016 YLR 1120 and Din Muhammda and 6 others v. Mehar Ali Khan and 2 others PLD 1978 Kar. 267 rel.

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

----S.115----Revision jurisdiction of High Court---Scope---Interference in concurrent findings of lower courts---High court seldom interferes in concurrent findings arrived at by Courts below while exercising power under S.115, C.P.C. unless and until finding on the face of it were against the evidence or so patently improbable or perverse that to accept the same could amount to perpetuate a grave miscarriage of justice or if there had been any mis-application of principles relating to appreciation of evidence or if findings could be demonstrated to be impossible, absolutely illegal and unwarranted under the law.

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

----Art. 34---Admission of fact before the court---Proof---Facts admitted need not to be proved especially when such admission had been made before the Court.

(d) Punjab Land Revenue Act (XVII of 1967)---

----S. 147---Affirmation of private partition/partition without intervention of Revenue Officer---Principle---Partition had been made without intervention of Revenue Officer; any party may apply for affirmation of partition---Such seeking of affirmation was optional and the document did not lose its efficacy if no resort was made to the Revenue Officer.

Muhammad Hanif Niazi for Petitioners.

Abdul Wahid Chaudhary for Respondents.

2016 M L D 1941

[Lahore]

Before Shahid Hameed Dar and Arshad Mahmood Tabbasum, JJ

ASHFAQUE alias BHOLA and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.315 of 2012, heard on 21st October, 2015.

Penal Code (XLV of 1860)---

----S. 365-A----Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abducting for extorting property, valuable security---Act of terrorism---Appreciation of evidence---Prosecution witnesses, the Motorway Police officials, who had allegedly recovered the abductee from an abandoned car, had not said a word about abductee telling them the names of the abductors---Complainant and the abductee had named the captors belatedly and offered no explanation as to why the abductee had not disclosed their names immediately on his recovery---Complainant and the abductee had deposed that they had made their statement under S. 161, Cr.P.C. on their return journey to the police station, but same had been negated by the statement of the Investigation Officer, who had categorically stated during his testimony that he had reached the office of the Motorway Police along with the complainant, where he found the abductee, received a computerized statement from the abductee, recorded statements of the complainant and Motorway Police officials under S. 161, Cr.P.C. and received the car from which the abductee had been recovered---Presentation of a written computerized statement by the abductee before the Investigation Officer made a crucial circumstance, which reflected on the truthfulness of the story of his abduction by the accused and recovery by the Motorway Police---Abductee appeared to have made the computerized statement even before he had been recovered so as to involve the accused in the present conspiratorial case---Abductee had contended that he was abducted by the accused from vacant plots and no shop existed there; whereas, the Investigation Officer had categorically stated that there was no vacant plot at the place and there were shops---Abductee had been recovered while his hands and legs were tied with ropes and mouth gagged with a piece of cloth/parna, which could be the job done by a friend or foe---Recovery of the rope and parna might have corroborated and given strength to the prosecution case, had the evidence of the abductee and the complainant stood the test of cross-examination---Impugned conviction/sentence was, therefore, set aside---Appeal against conviction was accepted accordingly.

Ms. Sheeba Kaiser (defence counsel at State expense) for Appellants.

Rana Tassawar Ali Khan, Deputy Prosecutor General for the State.

2016 M L D 1956

[Lahore (Rawalpindi Bench)]

Before Syed Shahbaz Ali Rizvi, J

Mst. NUSRAT JAN---Petitioner

Versus

ASGHAR KHAN and 5 others---Respondents

Writ Petition No.2737 of 2015, heard on 15th October, 2015.

Penal Code (XLV of 1860)---

----Ss. 365 & 395---Criminal Procedure Code (V of 1898), Ss.154, 161 & 164---Kidnapping or abducting with intent secretly and wrongfully to confine person, dacoity---Prayer for summoning accused who were declared innocent by Investigating Agency and their names were placed in Column No.2 of report under S.173, Cr.P.C. was declined---Three female accused were specifically nominated by the petitioner/ complainant in her statement recorded under S. 154, Cr.P.C.---Abductee, after her recovery, in her statement recorded under Ss.161 & 164, Cr.P.C. had implicated remaining two accused persons by assigning a special role to them---Trial Court while passing the impugned order, had based its finding on the result of investigation; without giving its own observation qua the available evidence; even the evidence recorded by the Trial Court itself had not been discussed---In the present case, not only the statements of witnesses, were available against accused, but Medico-legal Examination Certificate, was also available on file, which were sufficient to issue process against accused---Impugned order passed by the Trial Court and revisional court, were set aside---Trial Court was directed to issue process against accused persons and to complete the trial swiftly.

The State through National Accountability Bureau, Islamabad v. Haji Nasim-ur-Rehman PLD 2005 SC 270 ref.

Ansar Nawaz Mirza for Petitioner.

Muhammad Afzal Khan Jadoon for Respondents Nos.1 to 5.

Nadeem Akhtar Bhatti, Assistant Advocate General and Ghazanfer, S.I. for the State.

2016 M L D 1966

[Lahore]

Before Abid Aziz Sheikh, J

Sheikh NADEEM AHMAD---Petitioner

Versus

G.C. UNIVERSITY and others---Respondents

Writ Petition No.3363 of 2014, decided on 27th June, 2016.

Government College University, Lahore Ordinance (XLVIII of 2002)---

----Ss. 9, 11, 11-A, 12, 13, 14, 15, 17, 20, 21, 26, 29, 34, 40, 49 & Preamble---Constitution of Pakistan Arts.199, 105 & 139---Rules of Business (Punjab), R.3---Expression 'person' under Art.199 of the Constitution---Scope---'Function test'---Applicability---Administrative and financial control of G. C. University by Government of the Punjab---Effect---Preliminary objections raised in the constitutional petitions were whether constitutional petitions were maintainable under Art.199 of the Constitution against the Government College University, Lahore---Held, University had direct nexus with litmus test/'function test' that was if the University was under administrative and financial control of the Government or performing functions for the benefit of the public and not for private gain or profit, then the University fell within the definition of 'person' under Art.199 of the Constitution---Government of the Punjab had made the Rules of Business under Art.139 of the Constitution and Government College University, Lahore was specified therein---Government College University, Lahore therefore, was not only an attached institution of the Government of the Punjab, Higher Education Department, but the laws and rules of the University were also administered by Punjab Higher Education Department---Governor of the Punjab, being the Chancellor of the University, was the final authority---G.C. University was, thus, a 'person' within the meaning of Arts.199(5) and 199(1)(c) of the Constitution---Constitutional petitions were maintainable---Principles.

Anoosha Shaigan v. Lahore University of Management Sciences through Chancellor and others PLD 2007 Lah. 568 distinguished.

Shafique Ahmed Khan and others v. Nescom through Chairman, Islamabad and others PLD 2016 SC 377 and Haroon-ur-Rashid v. Lahore Development Authority and others 2016 SCMR 931 ref.

Pakistan Defence Officers' Housing Authority and others v. Lt.-Col. Syed Jawaid Ahmed 2013 SCMR 1707; International Islamic University, Islamabad and others v. Dr. Shameem Tariq and others 2015 PLC (C.S.) 1336; Aitchison College, Lahore v. Muhammad Zubair and another PLD 2002 SC 326 and Abdul Wahab and others v. HBL and others 2013 SCMR 1383 rel.

Rasheed Ahmad Sheikh, Shoaib Ahmed Sheikh and Umar Rasheed for Petitioner.

Sajeel Shahriyar Sawati for Petitioner (in connected Writ Petition No.24245 of 2015).

Junaid Jabbar Khan for Petitioner (in connected Writ Petition No.33902 of 2015).

Mian Jaffer Hussain for Petitioner (in connected Writ Petition No.10494 of 2015).

2016 M L D 1985

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed, J

MUHAMMAD ANWAR---Appellant

Versus

The STATE and another---Respondents

Crl. Appeal No.581 of 2009, heard on 5th October, 2015.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Complainant, was not an eye-witness---Mother of the deceased who appeared as prosecution witness, in her examination-in-chief had given no time, date of occurrence, nor any reason either of her presence at the spot or to accompany the deceased---Statement of another witness also did not provide fundamental details of the incident in terms of point of time, date and reasons of his presence at the spot, where he was not supposed to be present at the relevant time---Said witnesses, never joined Police investigation---Injuries on the person of accused, though examined belatedly, belied the stance taken by the witnesses which supported the plea raised by accused---Accused did not seem to have transgressed statutory immunity conferred upon him under S.100, P.P.C.---Accused was acquitted from the charge; he being on bail his bond was cancelled and surety discharged, in circumstances.

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

----Ss. 100 & 302(b)---Qatl-i-amd---Right of private defence, exercise of---Exercise of such right could not be weighed in golden scales; it was a human response under the instinct of self-reservation to ward off a threat, while a prudent person with average nerves, could modulate having regard to the situation obtaining upon him; the re-action of accused was in accord with the stress of the situation confronted by him.

Ms. Asma Khan, Defence Counsel at State expense for Appellant.

Mirza Abid Majeed, D.P.G. for the State.

Nemo for the Complainant.

2016 M L D 2039

[Lahore (Multan Bench)]

Before Mushtaq Ahmad Tarar, J

MUNIR AHMAD---Petitioner

Versus

ADDITIONAL INSPECTOR GENERAL OF POLICE, PUNJAB and 6 others---Respondents

Writ Petition No. 16675 of 2014, decided on 29th September, 2015.

Criminal Procedure Code (V of 1898)---

----S.156---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, common object---Change of investigation---When trial was pending before the Trial Court, where charge was framed, and case was adjourned for number of times for evidence, District Police Officer, on application of respondent passed order for change/transfer of investigation, which order, was assailed by the petitioner/ complainant---Validity---District Police Officer, was not competent to pass the impugned order for transfer of investigation at such belated stage when the trial had already commenced---Impugned order, being not sustainable, was set aside.

Qari Muhammad Rafique v. Additional Inspector-General of Police (Inv.), Punjab and others 2014 SCMR 1499 rel.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Raja Khurshid Ahmed v. Muhammad Bilal and others 2014 SCMR 474 and Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 ref.

Khalid Ashraf Khan for Petitioner.

Muhammad Afzal Jatt for Respondents.

2016 M L D 2048

[Lahore]

Before Abdul Sami Khan, J

FAISAL alias MITHU---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.9399-B of 2015, decided on 22nd September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, causing Mutalahimah, rioting, common object---Bail, grant of---Further inquiry---Accused, though was named in the FIR, but, he had not caused any injury to the deceased---Question of sharing common intention with co-accused, would be determined by the Trial Court at the time of trial---Injury attributed to accused fell within the ambit of S.337-F(iii), P.P.C., which offence carried maximum punishment of three years, and did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused having not repeated the fire-shot, question, whether provisions of S.324, P.P.C., to the extent of accused, were attracted in the case or not, would be determined by the Trial Court---Pistol was recovered from accused, but no report of Forensic Science Laboratory regarding matching of crime empties was on record---Accused was previous non-convict, never involved in any criminal case---Accused was behind the bars since his arrest i.e. 1-1-2015; investigation qua him was complete---Mere heinousness of offence, was no ground to withhold discretion of post-arrest bail in favour of accused---Case against accused calling for further inquiry into his guilt was covered by subsection (2) of S.497, Cr.P.C.---Accused, was admitted to bail, in circumstances.

Mushtaq Ahmad Mohal for Petitioner.

Irfan Zia, Deputy Prosecutor General for the State with Khaild Javed, A.S.I. with record.

2016 M L D 2057

[Lahore]

Before Miss Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

HAQ NAWAZ---Appellant

Versus

The STATE and another---Respondents

Crl. Appeal No.2431 of 2010, heard on 27th January, 2016.

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

----S. 9(c)---Possession, import or export, trafficking or financing of trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Nothing was available on record to show that the complainant/SHO had handed over the case property and parcels of samples sealed by him to the Investigation Officer---Investigation Officer had deposed during cross-examination that the complainant had delivered the parcels to him, which he handed over to the Moharrar---Statement of Moharrar under S.161, Cr.P.0 had not been recorded---Statement of the prosecution/police witnesses were contradictory with regard to the place where samples had been drawn and as to who had drawn the samples---Contradictions existed as to dispatch of the parcels of samples and deposit of the same in the office of Chemical Examiner--- Time of raid and preparation of the complaint was also contradictory---Samples taken and deposited in the Chemical Examiner office could not be related with the samples taken from the possession of the accused---Statements of the prosecution witnesses were contradictory as to the scale used for weighing the recovered substance---Prosecution witnesses could not explain as to how 22 Maunds and 20 kilograms of Poast had been weighed in 2/3 minutes---All said aspects of the case created serious doubt as to the truthfulness of the prosecution version---High Court, giving benefit of doubts, acquitted the accused---Appeal against conviction was allowed accordingly.

(b) Criminal trial---

----Burden of proof----Principles---In criminal cases, initial burden of proof is always on the prosecution---Prosecution has to prove its case beyond reasonable doubt.

Muhammad Ali Khatana, for Appellant.

Ikram Ullah Niazi, Deputy Prosecutor General for the State.

2016 M L D 2081

[Lahore]

Before Ch. Mushtaq Ahmad and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD HAYAT---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.355 and Murder Reference No.185 of 2011, decided on 14th December, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Mitigating circumstances---Sentence, reduction in---Motive, shrouded in mystery---Alleged motive did not fit in within the ambit of probability and prosecution's failure to prove motive constituted mitigating circumstances so as to visit convict with penalty of imprisonment for life---Prosecution's own case was that accused committed murders under the influence and on instigation of their father and brother and such aspect of prosecution case could not be lost sight of---All such circumstances cumulatively made out a case wherein alternate penalty of imprisonment for life would meet the ends of justice---High Court converted sentence of death into imprisonment for life---Appeal was dismissed in circumstances.

Naveed alias Needu and others v. The State and others 2014 SCMR 1464; Ahmad v. The State 2015 SCMR 993; Muhammad Mumtaz Khan v. The State 1999 SCMR 837 and Ghulam Mohy-ud-Din alias Haji Babu v. The State 2014 SCMR 1034 rel.

Abdul Khaliq Safrani for Appellant.

Malik Muhammad Jaffar, Deputy. Prosecutor General for the State.

Muhammad Qasim for the Complainant.

2016 M L D 20

[Peshawar]

Before Irshad Qaiser and Muhammad Daud Khan, JJ

RAHIM UD DIN and others---Petitioners

Versus

SABAHUDDIN and others---Respondents

W.P. No.3441 of 2014, decided on 27th March, 2015.

Constitution of Pakistan---

----Arts. 199 & 25-A---Khyber Pakhtunkhwa Government Notification No. SO (G)/ED/5-53/2011/693-94 dated 9-7-2014---Constitutional petition---Educational Institution---Admission on self-finance basis---Pakistan Forest Institute---Petitioners applied for further education on self-finance basis for the degrees in M. Sc. Forestry but respondent-university refused to consider them---Validity---Pakistan Forest Institute was for in-service/Government nominated representative institution and was not meant as public education institution---Competent authority had abolished self-finance admission in M.Sc. and B.Sc. Forestry classes from session 2014-15 in public interest---New policy framed by the Institute as well as Environmental Department of the Provincial Government as part of delegated powers could not be struck down by the High Court on the ground that the same was violative of Art. 25-A of the Constitution---Said policy had been made by exercising powers in a bona fide manner---Framing of admission policy and rules would fall in the executive domain---Legislature was vested with the functions of law making, the executive with its enforcement and judiciary of interpreting the law---Courts could neither assume the role of policy maker nor that of a law maker---Present was not a case of an exceptional nature or of a jurisdictional error---Petitioners could not claim their admissions in the M. Sc. Forestry classes as of right---Constitutional petition was dismissed, in circumstances.

Secretary Economic Affairs Division, Islamabad v. Anwarul Haq Ahmed 2013 SCMR 1687; Amina Sharif v. POF Board through Director Industrial and Commercial Relations (DICR) 2015 MLD 229 and Iram Javaid v. Bahauddin Zakariya University Multan 2010 YLR 2886 rel.

Abdul Latif Afridi for Petitioners.

Sabahuddin Khattak for Respondent.

Rab Nawaz Khan A.A.-G. for the State.

Date of hearing: 27th March, 2015.

2016 M L D 33

[Peshawar]

Before Mohammad Ghazanfar Khan, J

MUHAMMAD RAUF---Petitioner

Versus

SAEED AHMAD---Respondent

C.R. No.45-D of 2015, decided on 28th April, 2015.

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

---Art. 133---Re-examination of a witness---Scope---Trial Court allowed examination of a witness as court witness who had already been examined---Validity---Witness who had been examined in the court could be re-examined---No provision existed to record evidence of such witness as 'court witness'---Impugned order was without any lawful justification which was set aside---Trial Court might re-examine the witness if it deemed appropriate---Opposite party should have right to cross-examine the said witness in that situation---Revision was accepted in circumstances.

Muhammad Wahid Anjum and Kamran Hayat Miankhel for Petitioner.

Muhammad Ayaz Chaudhry for Respondent.

Date of hearing: 28th April, 2015.

2016 M L D 42

[Peshawar]

Before Abdul Latif Khan, J

FAZAL MAULA---Appellant

Versus

The STATE through Additional Advocate General, Khyber Pakhunkhwa and another---Respondents

Cr. A. No. 276 of 2013, decided on 3rd June, 2014.

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

----Ss. 324 & 337-F(v)---Attempt to commit qatl-i-amd, causing hashimah---Appreciation of evidence---Benefit of doubt---Unexplained delay of an hour having taken place in lodging of report, possibility of false implication of accused on the basis of suspicion, could not be ruled out---Nothing was on record to suggest that as to what prevented the Investigating Officer from recording the statements of witnesses, when they were present with the complainant at the time of lodging of report---Credibility of a witness would become highly suspicious, if his statement under Ss.161/164, Cr.P.C. was recorded with delay without offering plausible explanation---For disbelieving a witness, it was not necessary that there should be numerous infirmities, and if there was one, which would impeach the credibility of the witness, that could make the entire statement doubtful---Both witnesses having failed to prove that they were truthful, their testimony was neither believable, nor confidence inspiring---Complainant, though was having the stamp of injuries, but that was not a guarantee of the truthfulness; and his statement was also to be tested with the touchstone as required for other witnesses---Testimony of Medical Officer was also contrary to the statement of complainant---Four shots had allegedly been made by accused, but during spot inspection no empty had been recovered by the Investigating Officer---Place of occurrence was surrounded by maize crop and other bushes/trees---Complainant was allegedly cutting the grass at the time of occurrence, but nothing in shape of cutting grass, rope, bag or sickle had been taken into possession---Presence of prosecution witness, was highly doubtful at the time of occurrence, as he failed to explain his presence in satisfactory manner---Statement of complainant, had also not been corroborated by any independent evidence---One of the important witnesses had been abandoned by the prosecution---Best evidence having been withheld, adverse inference could be drawn---Accused seemed to have been involved in the case due to suspicion, and suspicion whatsoever, strong could not take the place of proof---Evidence led against accused being not sufficient for maintaining his conviction and sentence, same were set aside extending him the benefit of doubt---Accused was acquitted and was set at liberty, in circumstances.

Rahat Ali's case 2010 SCMR 485 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---Prosecution primarily was bound to establish guilt against accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence---If court would come to the conclusion that the charge so levelled against accused had not been proved beyond reasonable doubt, then accused would become entitled for his acquittal on getting benefit of doubt---Where more than one possibility appeared in the case, then the possibility in favour of accused was always to be preferred for simple reason that benefit of doubt was never to be extended to the prosecution, and was always given to accused.

Hazrat Rahman for Appellant.

Said Tuhar Khan for Respondent.

Muhammad Javed, A.A.G. for the State.

Date of hearing: 3rd June, 2014.

2016 M L D 61

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

The STATE through Advocate-General N.-W.F.P.---Appellant

Versus

FAZAL HAKIM---Respondent

Cr. A. No.97 of 1998, decided on 29th May, 2014.

Penal Code (XLV of 1860)---

----Ss.302, 324 & 337-A---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd, attempt to commit qatl-i-amd, punishment of Shajjah---Appeal against acquittal---Double presumption of innocence---Benefit of doubt---FIR was registered by delay of one hour despite the fact that Police Station was situated at a distance of one and half kilometers from place of occurrence---Police witnesses contradicted testimony of eye-witnesses---Had complainant and witnesses been present on the spot with the deceased, they could have shifted the injured to hospital or Police Station---Occurrence had not taken place in alleged mode and manner---FIR was lodged after consultation and preliminary investigation---Stamp of injuries on the person of witnesses was not a yardstick to determine truthfulness or falsehood of injured witnesses---Numerous infirmities were not required to disbelieve a witness, even a single infirmity might make the entire statement doubtful---Recovery of shotgun and empties had not been established in accordance with law---Findings of Trial Court were based on proper appreciation of evidence on record---Double presumption of innocence was attached to the findings of acquittal; heavy onus lay on prosecution to rebut such presumption---Prosecution had to prove its case beyond shadow of doubt---Benefit of doubt had to be extended to accused---Appeal against acquittal was dismissed.

Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329 and Muhammad Yaqoob v. Manzoor Hussain and 3 others 2008 SCMR 1549 rel.

Muhammad Javed, A.A.-G. for Appellant.

Naveed for Respondent.

Date of hearing: 29th May, 2014.

2016 M L D 76

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

SAID ZAMIN---Appellant

Versus

SHAIR AZAIM and others---Respondents

Cr.A. No.145 of 2012, decided on 12th June, 2014.

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

----Ss.302, 201 & 34---Criminal Procedure Code (V of 1898), S. 417---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Appeal against acquittal---Appraisal of evidence---Benefit of doubt---Case was of two versions, one taken by the prosecution in the FIR; and second put forth by accused during investigation and statement under S.342, Cr.P.C.---No direct evidence of the occurrence was available and case of prosecution was based on circumstantial evidence---Testimony of prosecution witnesses, who were nearest relatives of the deceased, was based on presumption, as they were not eye-witnesses of the occurrence---Medical evidence, had negated the story of prosecution---No sign of injury or violation was found all over the body of the deceased---Many circumstances in the case were available, which created doubt in the prosecution story---Evidence in a case of conviction on a capital charge, must come from unimpeachable source, which was lacking in the present case---Drawing presumption, regarding the guilt of accused, without any legal proof could not be recognized by the court---For conviction and sentence of accused to death or life imprisonment there must be strong and legally acceptable evidence, leading the court to a definite conclusion about his guilt; otherwise a single doubt, if found reasonable, was sufficient for acquittal of accused---Accused, was presumed to be innocent in law, and if after regular trial, he was acquitted, he would earn a double presumption of innocence---Heavy onus lay on the prosecution to rebut such presumption---Trial Court had rightly extended the benefit of doubt to accused on valid and cogent reason by correctly appreciating the evidence on record; and their acquittal, did not call for any interference by High Court.

Lal Khan's case 2006 SCMR 1846 and Muhammad Yaqoob v. Manzoor Hussain and 3 others 2008 SCMR 1549 ref.

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

----S.302(b)---Qatl-i-amd---Circumstantial evidence---Scope---Every chain should be linked with each other; and it should form such a continuous chain that its one end touched the dead body, and the other end should touch the neck of accused and if the chain was missing then its benefit must go to accused.

(c) Criminal trial---

----Benefit of doubt---Prosecution to prove its case beyond any reasonable doubt, and if any single and slightest doubt was created, its benefit was to go to accused.

Syed Abdul Haq for Appellant.

Mirza Muhammad Atif for Respondents.

M. Javed, A.A.-G. for the State.

Date of hearing: 12th June, 2014.

2016 M L D 82

[Peshawar]

Before Muhammad Younis Thaheem, J

Haji AKBAR HAYAT---Petitioner

Versus

CHIEF EXECUTIVE PESCO, PESHAWAR and 4 others---Respondents

C.R. No.29-B of 2013, decided on 15th June, 2015.

Electricity Act (IX of 1910)---

----S.20---Specific Relief Act (I of 1877), S.42---Suit for declaration---Contention of Plaintiff/consumer was that fine on monthly electricity bill was illegal, based on mala fide, without notice and ineffective on his rights and prayed for its cancellation---Defendant's witness during cross examination had admitted that meter was not checked/tested in presence of consumer and also admitted that before testing and checking the meter, no notice was served upon the consumer---Report of M&T showed that "meter was tampered and found reversed"---Officials on behalf of M&T Lab did not appear in court to verify their reports---Authority was put a query as to whether result of meter testing laboratory in law had any presumption of truth especially in event of non-serving of notice upon consumer and by not producing persons who had allegedly conducted test of electricity meter---Authority failed to produce any law or legal basis for believing that report of M&T was a conclusive proof and could be relied upon---Held, that no notice before removing meter was served upon consumer nor any respectable persons of locality were associated with proceedings of removing and checking of disputed meter---Officials who tested the meter were not produced as witness---Concurrent findings of two courts below were not based on correct appreciation of evidence and law---Suit of petitioner was decreed to the extent that petitioner would pay bills of electricity for units he had consumed if not yet paid----Revision was allowed, accordingly.

Chairman WAPDA v. Ghulam Sabir" cited as 2009 MLD 1005 rel.

H. Hanif for Petitioner.

Umarzad Shah Bukhari for Respondent.

2016 M L D 95

[Peshawar]

Before Waqar Ahmad Seth and Qalandar Ali Khan, JJ

Miss MEHWISH ASIF---Petitioner

Versus

VICE CHANCELLOR SHAHEED BENAZIR BHUTTO UNIVERSITY and 2 others---Respondents

Writ Petition No. 2526-P of 2014, decided on 16th December, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Alternate remedy---Civil service---Termination of service---Contract employee---Regular appointment, right of---Scope---Petitioner was appointed on contract basis---Post was advertised and contract of employee was terminated---Validity---Petitioner was appointed against newly created post on contract basis but subsequently, post was advertised---Petitioner had participated in the selection process of the said post---Nothing was on record to show that appointment of petitioner was made through proper procedure including advertisement---Appointment of petitioner could not be declared as legal and justified---Respondent-university had its own Syndicate and Senate in addition to the Chancellor---Petitioner had directly approached the High Court instead of approaching the appellate authority under University Statute---Constitutional petition was not maintainable in presence of alternate remedy in the shape of Departmental Appeal---Contract employee had no right to claim regularization or continuation in service by filing constitutional petition---Claim of petitioner was neither legal nor justified---Constitutional petition was dismissed in limine.

2011 PLC (CS) 1651 distinguished.

2013 SCMR 13; Federation of Pakistan through Secretary Law v. Muhammad Azam Chattha 2013 SCMR 120 and Suo Motu case 2013 SCMR 304 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Constitutional petition was not maintainable in presence of alternate remedy.

(c) Civil service---

----Contract employee---Such employee had no right to claim regularization or continuation in service.

2013 SCMR 13; Federation of Pakistan through Secretary Law v. Muhammad Azam Chattha 2013 SCMR 120 and Suo Motu case 2013 SCMR 304 rel.

Khalid Tanveer Rohaila for Petitioner.

Date of hearing: 16th December, 2014.

2016 M L D 107

[Peshawar]

Before Qalandar Ali Khan, J

AURANGZEB and others---Petitioners

Versus

Mst. SHABANA BIBI and others---Respondents

C.R. No.329-A of 2011, decided on 17th November, 2014.

Civil Procedure Code (V of 1908)---

----O. XX, R. 10---Suit for recovery of movable property---Appellate Court had not adverted to the admission of plaintiff whereby sale of articles by her husband had been admitted---Said admission on the part of plaintiff had significance---Neither plaintiff was subjected to re-examination with regard to such admission nor she had challenged the same at any forum---No justification existed for modification of judgment and decree passed by the Trial Court and holding the plaintiff entitled to the price of articles---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Suit of plaintiff was dismissed---Revision was accepted in circumstances.

PLD 1993 Pesh. 81; 2001 CLC 527 and 1993 CLC 1248 rel.

Muhammad Ishaq Battagrami for Petitioners.

Tehmas Khan Jadoon for Respondents.

Date of hearing: 17th November, 2014.

2016 M L D 121

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Syed Afsar Shah, J

FAZAL RAZIQ---Petitioner

Versus

Haji SHER ZAMAN and 2 others---Respondents

W.P. No.3099 of 2011, decided on 3rd December, 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---Denial of relationship of landlord and tenant by the tenant---Question of title---Scope---Landlord filed eviction petition on the ground of default in payment of rent---Eviction petition was dismissed by the Rent Controller but same was accepted by the Appellate Court---Validity---Nothing was on record to show the payment of rent by the tenant to the landlord---No tenancy agreement existed between the parties---Question of title was irrelevant in the matters of ejectment---Appellant Court had misconceived the situation while adhering to the question of title---Person might be owner but not a landlord and he might be landlord but not an owner---Pivotal question for determination before the Rent Controller was that of relationship of landlord and tenant---Impugned judgment passed by the Appellate Court was set aside and that of Rent Controller was restored and ejectment petition was dismissed---Constitutional petition was accepted in circumstances.

Anwar Khan v. Abdul Munaf 2004 SCMR 126; Amin and others v. Hafiz Ghulam Muhammad and others PLD 2006 SC 549 and Muhammad Daud v. Mst. Surriya Iqbal and another PLD 2000 Pesh. 54 rel.

Naveed-ur-Rehman for Petitioner.

Arshad Jamal for Respondents.

Date of hearing: 3rd December, 2014.

2016 M L D 143

[Peshawar]

Before Muhammad Younis Thaheem, J

MEHBOOB KHAN and 9 others---Petitioners

Versus

COLLECTOR REVENUE, KARAK and 16 others---Respondents

C.R. No.127-B of 2010, decided on 1st July, 2015.

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

----S. 42----Civil Procedure Code (V of 1908), O. VII, R. 11---Limitation Act (IX of 1908), S. 3 & Art. 120---Suit for declaration---Maintainability---Rejection of plaint---Dismissal of suit instituted after period of limitation---Suit barred by law includes barred by limitation period---Past and closed transaction---Plaintiffs filed suits against revenue authorities and donees claiming that sale mutations were result of fraud as same had been attested in collusion with revenue officials---Both Trial Court and appellate court dismissed the suits under O. VII, R. 11, CPC---Validity---Plaintiffs had challenged mutations in question, which their ancestors had got attested in favour of defendants thirty-seven years ago---Said ancestors themselves had not challenged mutation during their life time, thus presumption of truth was, therefore, attached being past and closed transaction---Plaintiffs had to challenge the mutations within prescribed period of limitation given under Art. 120 of Limitation Act, 1908---Suits were barred by time as envisaged under S.3 of Limitation Act, 1908---Barred by law also included barred by time---Impugned judgments and decrees of both courts below were based on correct legal footings and same needed no interference under revisional jurisdiction under S. 115, C.P.C.---Revision petition was dismissed in circumstances.

Hakeem Muhammad Boa v. Habib Ahmad PLD 1985 SC 153 and Malka through Legal Heirs and others v. Allah Diwaya through General Attorney and others 2005 YLR 2170 rel.

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

----O. VII, R. 11----Limitation Act (IX of 1908), S. 3---Rejection of plaint---Dismissal of suit instituted after period of limitation---Suit 'barred by law'---Scope---Suit barred by law also includes barred by limitation.

Malana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305 rel.

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

----S. 115----Revision---Scope---Concurrent findings of courts below, being based on law, cannot be set at naught by High Court under S.115, C.P.C. in exercise of its revisional jurisdiction, unless it is established through record that same are patently illegal, erroneous, fanciful, or are result of misreading or non-reading of record.

2002 SCMR 1114 and 2007 SCMR 368 rel.

Wasiullah Khan Khattak for Petitioners.

Bughdad Khan for other Respondent.

Saif-ur-Rehman, Addl. A.-G. for Government (Respondent No.1).

Date of hearing: 1st July, 2015.

2016 M L D 183

[Peshawar]

Before Abdul Latif Khan, J

Haji YAR MUHAMMAD and others---Petitioners

Versus

CHAIRMAN, WAPDA and others---Respondents

C.R. No.1007-P of 2012, decided on 16th February, 2015.

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

----Ss. 18 & 31---Specific Relief Act (I of 1877), S. 42---Land acquisition---Suit for declaration---Jurisdiction of civil court---Scope---Plaintiffs filed suit for declaration which was dismissed concurrently---Validity---Suit property was acquired by the Government for public purpose---Acquisition process had been completed and request of plaintiffs for enhancement of compensation had been turned down by Land Acquisition Collector---Plaintiffs filed reference which was also dismissed---Plaintiffs had already availed remedy available and had failed to get relief---Plaintiffs had received compensation of acquired land without any objection---Specific remedy was available to the plaintiffs aggrieved by the acquisition award---Civil court had no jurisdiction to adjudicate the matter---Present suit was not maintainable in circumstances---Both the courts below had decided the lis with conscious and application of independent mind---Revision was dismissed in circumstances.

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

----S. 9---Jurisdiction of civil court---Scope---Civil court had power to adjudicate civil disputes despite ouster of its jurisdiction if no other efficacious remedy was available to the aggrieved persons or based upon fact constituting lack of jurisdiction of the tribunal/authority and tainted with malice.

Khan Ghawas Khan for Petitioners.

Shakirullah Afridi for Respondents.

Date of hearing: 16th February, 2015.

2016 M L D 200

[Peshawar]

Before Ikramullah Khan and Muhammad Ghazanfer Khan, JJ

SHEHERYAR GUL---Petitioner

Versus

Mst. SADAF BIBI---Respondent

W.P. No.426-D of 2014, decided on 1st April, 2015.

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

----Ss. 5, Sched., 7(2) & 9(1)(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for restitution of conjugal rights---Additional evidence, production of---Scope---Husband filed suit for restitution of conjugal rights---Wife submitted written statement wherein she claimed dissolution of marriage, recovery of dower amount and maintenance allowance---Husband filed rejoinder/better statement to counter claim of wife and also submitted list of witnesses with the rejoinder---Husband filed application for additional evidence but same was dismissed by the Family Court---Contention of husband was that previously submitted list of witnesses was only to the extent of claim of restitution of conjugal rights---Husband had earlier filed a suit for restitution of conjugal rights and had presented his list of witnesses to the extent of his claim in the suit---Wife had claimed dissolution of marriage as counter claim in her written statement---Husband had to file better statement in shape of rejoinder and submitted list of witnesses therewith---List annexed with the better statement was rejected by the Family Court---Validity---Written statement after insertion of S.9(1) & (2) of West Pakistan Family Courts Act, 1964 had attained the status of plaint---Plaint should contain all the material facts and should also contain a schedule giving number of witnesses intended to be produced---Family Court had power to allow either of the parties to call any of the witnesses at any later stage if it considered such evidence expedient to the interest of justice---Impugned order passed by the Trial Court was not only misconceived but was also illegal and based on misreading and wrong interpretation of law on the subject---Provision of law was violated by the Family Court while passing the impugned order which was set aside and Trial Court was directed to examine the witnesses mentioned in the application for additional evidence---Constitutional petition was accepted in circumstances.

Muhammad Ghazanfer Ali for Petitioner.

Khuda Bakhsh Khan Baloch for Respondent.

Date of hearing: 1st April, 2015.

2016 M L D 223

[Peshawar]

Before Waqar Ahmad Seth and Musarrat Hilali, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Appellants

Versus

Syed JAFFAR SHAH---Respondent

Regular First Appeal No.204 of 2011, decided on 4th March, 2015.

Contract Act (IX of 1872)---

----S. 73---Suit for recovery of damages caused by breach of contract---Damages, determination of---Scope---General damages for mental torture, agony, defamation and financial loss were to be assessed following the "rule of thumb" and said exercise would fall in the discretionary jurisdiction of the court which had to be decided in the facts and circumstances of each case---Party claiming damages had firstly to plead and then to prove by sufficient, trustworthy, independent and cogent evidence that the concluded agreement existed between the parties and other party had committed breach of contract/agreement and quantum of damages had to be proved---Plaintiff, in the present case, had failed to produce any evidence to show that in fact he suffered any loss due to breach of contract---Solitary statement of plaintiff was not sufficient to decree the colossal suit amount as plaintiff had not stated anything with regard to damages---Impugned judgment and decree passed by the Trial Court were set aside and suit was dismissed---Appeal was accepted in circumstances.

Rahim Bakhsh Piracha v. Muhammad Ibrahim 1978 SCMR 220; 2013 CLD 733; 2012 CLD 6; 2013 SCMR 507; Azizullah Sheikh v. Standard Chartered Bank Limited 2009 SCMR 276 and Messrs Kamran Construction (Pvt.) v. Nazir Talib 2010 SCMR 829 rel.

Riaz Khan Painda Khel, D.A.G. for Appellants.

M. Saeed Khattak and Manzoor Khan Khalil for Respondents.

Date of hearing: 24th February, 2015.

2016 M L D 245

[Peshawar]

Before Muhammad Daud Khan, J

AQAL ZAMAN and others---Petitioners

Versus

BALQIAT KHAN and others---Respondents

Civil Revision No.132-B of 2012, decided on 27th October, 2014.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Civil Procedure Code (V of 1908), O. XXVI, R. 1---Performance of talbs---Proof---Scope---Exercise of right of talbs by agent---Non-appearance of pre-emptor in the witness box---Effect---Plaintiff had not disclosed the date of notice of Talb-i-Ishhad in the plaint---All the details with full particulars i.e. name of informer, date, time and place of performance of Talb-i-Muwathibat as well as date of notice of Talb-i-Ishhad were mandatory requirements to be mentioned in the plaint so that plaintiff could prove the same during the trial---Plaintiff could not improve his/her case during the trial nor she/he could make any departure from his/her pleadings---Pre-emptor should come forward with all the details with regard to talbs in the plaint---If such details were missing then it would be fatal to the very foundation of the case---Talbs might be made through guardian or agent which should be proved by the statement of such guardian or agent---Performance of talbs being the personal act of pre-emptor could not be proved by the testimony of agent---If pre-emptor could not record his/her statement before the Trial Court, he/she should have requested for issuance of commission for recording of evidence---Non-appearance of pre-emptor before the court to record his statement to prove performance of talbs did not qualify the legal requirement for the proof of talbs---Pre-emptor was bound to produce the postman to prove delivery of notice of Talb-i-Ishhad---Plaintiff had not produced the postman, thus had failed to prove demand of Talb-i-Ishhad---Pre-emptor had failed to prove the performance of Talb-i-Muwathibat---Nothing was on record to prove that acknowledgement-due cards were sent along with registered envelope containing the notice of Talb-i-Ishhad---Requirements of S.13 of Khyber Pakhtunkhwa Pre-emption Act, 1987 had not been complied with---Proof of superior right of pre-emption, performance of Talb-i-Muwathibat and then Talb-i-Ishhad in respective chronological order was essential for successful exercise of right of pre-emption---Any deficiency in such legal requirements would render a pre-emption suit liable to an outright dismissal---Both the courts below had properly appreciated the evidence on record and dismissed the suit---No infirmity or mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Mian Pir Muhammad and others v. Faqir Muhammad through L.Rs. PLD 2007 SC 302; Mst. Bashiran Begum v. Nazar Hussain and another PLD 2008 SC 559; Fazal-ur-Rehman v. Khurshid Ali and another 2012 SCMR 635; Muhammad Ismail v. Muhammad Yousaf 2012 SCMR 911; Dilbar Khan v. Muhammad Ashraf PLD 2013 SC 171; Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Basheer Ahmed v. Ghulam Rasool 2011 SCMR 762 and Allah Ditta through L.Rs and others v. Muhammad Anar 2013 SCMR 866 rel.

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

----S. 115---Revision---Scope---Revisional jurisdiction was limited wherein court could not set aside the concurrent findings of facts nor could upset the same even if on appreciation of evidence a different view could be formed unless same were shown to have been the outcome of a jurisdiction vested but not exercised or jurisdiction not vested but exercised or one of material irregularity.

Muhammad Rashid Ahmed v. Muhammad Siddique PLD 2002 SC 293 and Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

H. Umar Daraz Khan for Petitioners.

M. Akhtar Nawaz Khan for Respondents.

Date of hearing: 27th October, 2014.

2016 M L D 270

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

WADOOD SHAH and others---Appellants

Versus

WAPDA---Respondent

R.F.A. No.83-A of 2009, decided on 24th June, 2015.

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

----Ss.4, 6 & 10--- Acquisition of land---Contention of land owners was that acquired land was 'chahi' as was being irrigated from tube well installed by Irrigation Department, therefore, Referee Judge fell into error by treating land as 'Maira' instead of 'chahi'---Validity---Land owners had admitted in appeal and record would also support their contention that tube well was installed in village "M" while the land was being acquired in village 'A'---Khasra wherein non-functional tube well was shown as installed was not part of acquired land---Land owners failed to prove on record that their land was irrigated from tube well located at a considerable distance in another village---Acquired land was continuously recorded as 'Maira' showing no change in nature of land even in post installation period---Contention of land owners was repelled.

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

----Ss. 31 & 34---Acquisition of land---Compensation---Contention of land owners was that the Award fixed Rs. 112761/- as compensation for one kanal of all kinds of land acquired for the same purpose but in adjoining village compensation of 'Maira' kind of land was fixed at Rs. 78591/- per kanal---Validity---Flat rate of Rs. 112761/- for all three kinds of land i.e. Maira, Rakkar and uncultivated in village could not form a valid basis for fixation of compensation for only 'Maira' kind of land which was fixed at a lower rate i.e. Rs. 78591/- per kanal in adjoining village---Report of local commissioner also did not reflect fair and just valuation of acquired land as he did not furnish any justification or basis for fixation of compensation at Rs. 3,00,000/- per kanal which was rightly discarded from consideration by Referee Judge who had appointed local commissioner for determination of fair and just compensation for acquired land---Appeals to the extent of fixation of compensation at the rate of Rs.85000 per kanal for "Maira" kind of land were dismissed---Levy of 25% compulsory acquisition charges by Referee Judge as against 15% levied by the Collector was not justified.

2013 SCMR 1124 ref.

M. Ayas for Appellants.

Sajjid Ahmed Khan for Respondent.

Date of hearing: 24th June, 2015.

2016 M L D 298

[Peshawar]

Before Abdul Latif Khan and Syed Afsar Shah, JJ

The STATE through Advocate-General Khyber Pakhtunkhwa---Appellant

Versus

RAHEEM SHAH---Respondent

Cr.A. No.90-P of 2014, decided on 27th January, 2015.

Penal Code (XLV of 1860)---

----Ss.302, 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty---Appeal against acquittal---Reappraisal of evidence---Accused had not been arrested on the spot---Occurrence took place at dark night i.e., 11.00 pm., and source of light had been mentioned to be the moon light in which Police party allegedly identified accused and other co-accused but that version of the complainant, later on was contradicted by further improving his statement stating that he used tracer gun for identification of accused which fact was not mentioned in his initial report and for the first time it was introduced by him in order to strengthen the prosecution version regarding identification of accused which made the prosecution case doubtful---Indiscriminate firing took place between accused and Police party, but no specific role of firing had been attributed to any of accused as to with whose fire shot the deceased was hit nor the kind/type of weapon, used by accused, had been mentioned by the complainant in his report---Identification parade, normally was required to be conducted in those cases where identification was doubtful, but when the complainant was sure about identification of accused, there was no need of conducting identification parade, and no reason for conducting the same had been mentioned---Accused was already known to the complainant party/Police, as they were charged in the FIR by name---Complainant was not sure about identification of accused, making the prosecution case doubtful---Three persons had been charged for single injury and it was not clear as to with whose fire shots the deceased had been hit---Empty shells, recovered from the place of accused, had not been sent to Forensic Science Laboratory in order to ascertain, as to whether those were fired from one weapon or different weapons---Despite remaining in Police custody, accused had made no confession before the competent court---Prosecution had mentioned regarding involvement of accused in other criminal cases, but it failed to bring any evidence/document in respect of his conviction in those cases---Mere involvement of accused in a case, was not sufficient to establish his guilt---After earning the acquittal from the Trial Court, double presumption of innocence was acquired by accused---Court, while sitting in appeal against acquittal, must be slow in reversing the judgment of acquittal, unless it was found to be arbitrary, fanciful and capricious on the face of it, or was the result of bare misreading, or non-reading of any material evidence---No such infirmity had been found in the impugned judgment---Prosecution case being full of doubts, its benefit must go to accused---Trial Court had rightly acquitted accused by extending him benefit of doubt, after proper appraisal of evidence, for which no exception could be taken.

Syed Sikandar Hayat Shah, A.A.-G. for Appellant.

Yousaf Shah Mohmand for Respondent.

Date of hearing: 27th January, 2015.

2016 M L D 314

[Peshawar]

Before Abdul Latif Khan and Syed Afsar Shah, JJ

PORDIL KHAN---Petitioner

Versus

STATE through Advocate General, Khyber Pakhtunkhwa and 11 others---Respondents

Writ Petition No.2709-P of 2014, decided on 22nd January, 2015.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), Ss. 156 & 169---Constitution of Pakistan, Art.199---Constitutional petition---Qatl-i-amd, common intention---Placing names of accused persons in column No.2 of the challan---Re-investigation by Investigating Agency---Petitioner had impugned the opinion of the Investigating Officer, whereby names of respondents/accused persons had been placed in column No.2 of the challan---Petitioner, had also prayed for taking accused persons into custody, and to proceed them in accordance with law---Contention of the petitioner was that re-investigation conducted by Investigating Agency, and placing names of accused persons in column No.2 of the challan was illegal and result of mala fide---Validity---No bar existed on the Trial Court to evaluate the material on record to see as to whether the Investigating Authority was justified in thinking that accused persons were innocent on the basis of material on record---Present case was under investigation, as interim challan had been submitted---High Court had no jurisdiction to intervene with any criminal case, when it was in the phase of investigation---By placing names of accused persons in column No.2 of the challan, they had not been exonerated from the charge---No doubt, accused had been declared innocent as a result of re-investigation, but case was not cancelled, and the Trial Court had the power to summon accused persons, notwithstanding the fact that they had been declared innocent or for that matter their names had been placed in column No.2 of the challan---Said persons were still accused as case against them had not been cancelled---Accused persons, in circumstances, could not go for withdrawal of the petition for grant of bail---Accused persons, should adhere to the proper fora for their bail, failing which the law would take its own course.

Muhammad Hafeez v. Ms. Salma Bibi and 3 others PLD 2014 Pesh. 231; Shehnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochitan and another PLD 1971 SC 677; Brig: Imtiaz Ahmad v. Government of Pakistan through Secretary Interior Division and 2 others 1994 SCMR 2142; Muhammad Latif, ASI Police Station Sadar, Sheikhupura v. Sharifan Bibi and another 1998 SCMR 666 and Anwar Ahmad Khan v. The State 1996 SCMR 24; 1985 SCMR 1314 and 1988 SCMR 1428 ref.

Muhammad Ibrahim Khan for Petitioner.

Syed Sikandar Hayat Shah, Addl. A.G. for the State.

Barrister M. Zahurul Haq for Accused/Respondents Nos. 11 and 12.

Date of hearing: 22nd January, 2015.

2016 M L D 330

[Peshawar]

Before Mrs. Irshad Qaiser, J

AURANGZEB KHAN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA (KPK), through Secretary Home and 7 others---Respondents

W.P. No.913-A of 2014, decided on 15th January, 2015.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S.3---Constitution of Pakistan, Arts.10 & 199---Constitutional petition---Preventive detention---Grievance of petitioner was that authorities had wrongly issued detention order against him under the provisions of S.3 of West Pakistan Maintenance of Public Order Ordinance, 1960---Validity---Authority was required to have satisfied itself that material being placed by police before it was sufficient to issue preventive detention order, as right of liberty of person being curtailed, which had been guaranteed under Art. 10 of the Constitution---High Court set aside detention order pertaining to petitioner as the same was not legally justified and against the law and settled principles---Petition was allowed in circumstances.

Muhammad Yousaf Farooi v. Government of Punjab 2012 PCr.LJ 905; Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442; Government of Punjab, Home Department and another v. Hafiz Muhammad Saeed and others 2011 SCMR 1139; Afzoona Kausar v. Additional District Magistrate, ICT, Islamabad PLD 2011 Isl. 1; Muhammad Rafique alias Fiqa v. The District Magistrate, Mansehra PLD 1992 Pesh. 26 and Muhammad Iqbal and 3 others v. Deputy Commissioner/District Magistrate, Mansehra and 3 others PLD 1992 Pesh. 107 ref.

Qazi Muhammad Shiraz for Petitioner with Petitioner in person on bail.

Muhammad Naeem Abbasi, A.A.-G. for Respondents.

Date of hearing: 15th January, 2015.

2016 M L D 343

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak JJ, YOUSAF---Appellant

Versus

The STATE---Respondent

Cr. A. No.33-A of 2013, decided on 8th April, 2015.

Penal Code (XLV of 1860)---

----S. 377---Sodomy---Appreciation of evidence---Sentence, reduction in---Case against accused had been proved beyond any shadow of doubt, as statements of all the prosecution witnesses being in line with each other, were not only credible but also inspired confidence which was duly supported by medical evidence---All the prosecution witnesses were lengthy cross-examined by defence, but nothing beneficial towards accused was brought out from them---Defence had brought nothing on the record which could show that the testimony of the prosecution witnesses was motivated by any ill-will or hostility---Conviction recorded by Trial Court against the accused was maintained---Accused was sentenced to undergo imprisonment for life, along with fine of Rs.50,000---Accused was a young boy of 23/24 years, being first offender, having no record/previous history of involvement in such like offence---Sentence awarded to accused by the Trial Court was harsh in nature---Sentence should be neither so severe that the offenders could, out of frustration become desperate and hardened criminal, nor should it be so mild that it encouraged the offenders to commit the offence again---When accused had spent almost 4 years in jail, his sentence of imprisonment for life, was reduced to 5 years' R.I. and fine of Rs.50,000 to Rs.25,000.

Qazi Shamsuddin for Appellant.

A.A.-G. for the State.

Sardar Basharat for the Complainant.

Date of hearing: 8th April, 2015.

2016 M L D 378

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

GHULAM KHAN---Petitioner

Versus

D.C.O., MANSEHRA and others---Respondents

W.P. No.595-A of 2010, decided on 7th May, 2015.

Public functionary---

----All public functionaries were under constitutional and legal obligation to adhere to letter and spirit of law, resisting temptation of acting to the contrary, in an arbitrary and capricious manner.

M. Shafique Awan for Petitioner.

DAG for the Government.

Raja Shakeel and Sardar Basharat for other Respondents.

Date of hearing: 7th May, 2015.

2016 M L D 383

[Peshawar]

Before Abdul Latif Khan, J

BAHRAMAND---Appellant

Versus

JAMAL-UD-DIN and 5 others---Respondents

R.F.A. No.84-M of 2013 and C.M. No.406 of 2014, decided on 29th September, 2014.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 24---Pre-emption suit---Probable value, determination of---Zar-e-Soam, deposit of---Limitation---Trial Court dismissed suit of pre-emptor due to non-compliance of order passed for deposit of 1/3rd pre-emption amount---Validity---Trial Court was required to order the plaintiff to deposit 1/3rd of the sale price of the property in cash when suit was filed, within such period as the court might fix---If sale price was not mentioned in the sale consideration or in the mutation, the court was bound to order for deposit of 1/3rd of the probable value of suit property---Trial Court had failed to direct the plaintiff for deposit of 1/3rd of the sale consideration on the first date of institution of suit for possession through pre-emption but ordered for deposit of 1/3rd pre-emption money after four months from institution of suit when defendants filed written statement---Trial Court was bound to assess the probable value of the property in case no sale price was mentioned in the sale deed or in the mutation---Order for deposit of 1/3rd pre-emption money within 30 days passed by the Trial Court was not in line with law as no specific amount had been mentioned to be deposited---Plaintiff had failed to deposit zar-e-soam within 30 days as per direction of the Trial Court which was intentional on his part---Such act of pre-emptor could not be termed as act of the court---Plaintiff was bound to deposit zar-e-soam within 30 days as required by the Trial Court but the same was deposited with the delay of two days---Plaintiff could not be exonerated from his fault due to certain lacunae in the orders of the court---Pre-emptor was bound to comply with the time fixed by the Trial Court for deposit of 1/3rd pre-emption money---Pre-emptor could neither be allowed to apply for further extension nor court had any power to extend the time for deposit of zar-e-soam---Any failure on the part of pre-emptor would deprive him of success in getting the pre-emption decree---If Trial Court had failed to order for deposit of 1/3rd pre-emption money, plaintiff was bound to move an application for the deposit of 1/3rd pre-emption amount and pay the same---Plaintiff could not be given right to ignore law rather he was supposed to abide by law and deposit the amount within 30 days---Pre-emptor was not vigilant enough and was not entitled to any leniency---Order of the court had not been complied with nor any good reason had been assigned for non-deposit of zar-e-soam within the specific period---If Trial Court had failed to pass an order for deposit of zar-e-soam on the first date of filing of pre-emption suit, the same could be passed at subsequent stage and pre-emptor would be bound to obey the same in letter and spirit as if the same had been passed on the first date of filing of suit---When the provisions of any enactment required some act to be done, it was to be done in the manner as prescribed in the statute and if the same was not done accordingly, the consequences would be penal in nature---Suit of plaintiff was liable to be dismissed on account of non-compliance of order passed by the court for deposit of 1/3rd pre-emption amount---Trial Court had rightly dismissed the suit of plaintiff---No infirmity or illegality was pointed out in the impugned order passed by the Trial Court---Appeal was dismissed in circumstances.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 24---Pre-emption suit---Zar-e-Soam, deposit of---Limitation---Limitation for deposit of 1/3rd pre-emption amount was thirty (30) days from the date of institution of suit.

Muhammad Ayaz Khan for Appellant.

Ali Baz Khan for Respondents.

Date of hearing: 29th September, 2014.

2016 M L D 395

[Peshawar]

Before Haider Ali Khan, J

MUHAMMAD ARIF---Petitioner

Versus

The STATE through Additional Advocate General and another---Respondents

Cr. M. No.122 in Cr. A. No.138-M of 2015, decided on 13th July, 2015.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), Ss.302(b) & 34---Shari Nizam-e-Adl Regulation, 2009, Para. 9(1)---Juvenile Justice System Ordinance (XXII of 2000), S.13---Qatl-i-amd, common intention---Suspension of sentence---Release of juvenile on probation---Scope---Juvenile was accused of murdering his own father, but father (then injured) lodged an FIR against another person while not uttering a single word against the accused petitioner---Petitioner was not nominated by the deceased himself but Trial Court convicted the petitioner under S. 302(b), P.P.C., in disregard of the Sharia law as envisaged in Paragraph 9(1) of Shari Nizam-e-Adl Regulation, 2009, application for suspension of sentence was allowed accordingly, and accused was released on bail.

PLD 1989 SC (Shariat Appellate Bench) Page 633 rel.

Sher Muhammad Khan for Petitioner.

Sabir Shah, A.A.-G. for the State.

2016 M L D 404

[Peshawar]

Before Ikramullah Khan and Muhammad Ghazanfar Khan, JJ

ZAFARULLAH KHAN and another---Appellants

Versus

CHAIRMAN, NHA and others---Respondents

R.F.A. No.94-D of 2011, heard on 29th January, 2015.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 19----Civil Procedure Code (V of 1908), O. VII, R. 11---Reference to court---Collector's statement---Powers of Referee Court---Rejection of plaint---Owner-objector filed suit for damages for loss suffered as result of acquisition of his suit land by Provincial Government, which was rejected by Trial Court under O. VII, R. 11, C.P.C.---Revisional court, setting aside decision of trial court, directed Collector to treat plaint of the suit as objection petition and refer the same to Referee Court under S. 18 of Land Acquisition Act, 1894---Referee court dismissed the reference on ground of limitation---Validity---High Court directed the referee court to dispose of the matter on merits; as court had not exercised the jurisdiction vested in it under the law by refusing the remedy to petitioner merely on technical ground---Collector had referred the matter to Referee court without any objection as to limitation; thus, the Referee court was precluded to adjudge the matter (question of limitation) not referred to him---Referee court could not go beyond the reference---High Court, setting aside the impugned order, remanded the case to the Referee court for decision afresh on merits.

PLD 2004 SC 512 rel.

Jamal Abdul Nasir for Appellants.

Amir Muhammad Khan Baloch for Respondents.

Date of hearing: 29th January, 2015.

2016 M L D 418

[Peshawar]

Before Ikramullah Khan and Muhammad Ghazanfar Khan, JJ

MUHAMMAD IMRAN KHAN and another---Appellants

Versus

EHSANULLAH and others---Respondents

R.F.As. Nos.31 and 32 of 2011, decided on 10th December, 2014.

(a) Malicious Prosecution---

----Suit for damages---Maintainability---Plaintiffs-accused were acquitted from criminal case under benefit of doubt---Plaintiffs filed suits for damages against defendant which were dismissed by Trial Court---Validity---Plaintiffs had not challenged the documentary evidence pertaining to their compromise with defendant-complainant during recording of evidence in the criminal case---Complete challan, submitted in the criminal case, indicated that parties had effected compromise; however, the said fact, as the alleged offences were non-compoundable, had not been mentioned in order of acquittal by the Trial Court---Prosecution witnesses had given deliberate concessions to plaintiffs, which had lead Trial Court to acquit them giving benefit of doubt---Present case did not fall within the ambit of malicious prosecution---Dismissal of the suits was just and legal---Appeals were dismissed in circumstances.

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

----Art. 113----Facts admitted need not be proved---Facts, which are not challenged at the time of cross-examination, and documents exhibited without objection, would be deemed to have been admitted on the part of party against whom the same were used.

Haji Shakeel for Appellant.

Ghulam Hur Khan Baloch for Respondents.

Date of hearing: 10th December, 2014.

2016 M L D 451

[Peshawar]

Before Muhammad Younis Thaheem, J

JAMAL SHAH---Petitioner

Versus

The STATE and another---Respondents

B.A. No.1751-P of 2015, decided on 30th October, 2015.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonouring of cheque---Bail, refusal of---Habitual offender---Accused was arrested for issuing a cheque for a sum of Rs.41,00,000/- which was dishonoured on presenting to Bank---Validity---Accused was habitual money squeezer as per allegation and had repeated offence so was connected with commission of offence---Case of accused had come within the exceptions despite the fact the offence did not come under the prohibitory clause---Accused was not entitled for concession of bail and two courts below had rightly exercised their discretion by refusing relief of bail---Bail was refused in circumstances.

PLD 1995 SC 34 fol.

Shakirullah Afridi for Petitioner.

Muhammad Sohail Khan, A.A.-G. for the State.

Abdul Latif Afridi for the Complainant.

2016 M L D 469

[Peshawar]

Before Malik Manzoor Hussain and Haider Ali Khan, JJ

PROJECT DIRECTOR and 5 others---Appellants

Versus

Messrs ROYAL BUILDERS (PVT.) LTD. through Managing Director---Respondent

R.F.A. No.89 of 2013, decided on 28th January, 2015.

Civil Procedure Code (V of 1908)---

----O.VII, R. 2---Money suit---Defendants, in the present case, were bound to make payment of items used by the plaintiff-contractor in the project---Defendants had agreed to clear bills of contractor-plaintiff with regard to items used by him but they had refused to honour their commitment and make payment---Trial Court, held, had rightly passed decree and partially allowed the claim of plaintiff-contractor in terms of negotiation-settlement between the parties---Impugned order was based on sound footings---Appeal was dismissed in circumstances.

Ghafoor Khan for Appellants.

Abdul Halim Khan for Respondent.

Date of hearing: 28th January, 2015.

2016 M L D 499

[Peshawar]

Before Qaiser Rashid Khan, J

MUHAMMAD JAN---Petitioner

Versus

RUSTAM KHAN and 2 others---Respondents

Civil Revision Petition No.270-D of 2012, decided on 10th December, 2012.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 2(d), 5 & 13----Suit for pre-emption---Right of pre-emption---Pre-requisites---"Sale transaction"---Meaning and proof---Demands of pre-emption---Requirements for proof---Plaintiff filed suit for pre-emption challenging special power of attorney executed in favour of defendant/alleged vendee for supervision of suit property which was dismissed both by Trial Court and appellate court---Contention raised by plaintiff was that vendor, in order to defeat his right of pre-emption, had transferred suit property in name of vendee through special attorney instead of transferring the same through mutation or registered deed---Validity---Under S. 5 of Khyber Pakhtunkhwa Pre-emption Act, 1987, right of pre-emption would accrue only in case of "sale"---"Sale" as defined under S. 2 (d) of the Act meant a permanent transfer of ownership of immovable property in exchange for valuable consideration---Special attorney, in the present case, was for supervision of suit property and no inference could be made from contents thereof that the same was for any "sale" consideration---Vendor had taken plea that he had not transferred suit property in name of alleged vendee and he was only for looking-after the suit property---Alleged vendee also stated not to have purchased the suit property---Findings as to performance of talbs was not necessary where sale of suit property could not be proved---Judgment and decree of courts below were maintained---Revision petition was dismissed in circumstance.

Ahmad Ali Khan Marwat for Petitioner.

Muhammad Waheed Anjum for Respondents.

Date of hearing: 10th December, 2012.

2016 M L D 533

[Peshawar]

Before Waqar Ahmad Seth, J

ATTA-UR-REHMAN and others---Petitioners

Versus

ABDUR RASHID and others---Respondents

Civil Revision No.366 of 2007, decided on 27th April, 2015.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17----Suit for declaration---Amendment of pleadings---Principles---Plaintiff filed suit for declaration which was dismissed by Trial Court---During pendency of appeal, plaintiff filed application under O. VI, R. 17, C.P.C. for amendment in plaint for inclusion of description of part of suit property, which had been left inadvertently---Appellate court dismissed appeal along with said application for amendment on ground of delay---Validity---Amendment of pleadings might be allowed in such a manner and on such a terms as it might be just---All such amendments would be made as might be necessary for purpose of determining real questions of controversy between parties---Amendments which were found necessary to determine real questions in controversy between parties relevant and necessary to proposition under consideration had to be allowed by court---Amendment might not be allowed when the same was likely to change nature of suit or cause of action or both and in cases where valid right had accrued to other party before the amendment---Amendment in pleadings could be allowed at any stage and delay, in itself, was no ground to refuse application for amendment unless the same was likely to cause injustice to any party---Ends of justice were paramount consideration for deciding application for amendment of pleadings---If amendment was likely to impair judicial process or cause abuse of process of law, it would defeat purpose of provision of O. VI, R. 17, C.P.C.---In the present case, if proposed amendment was allowed, the same would not change cause of action or subject matter and would not cause prejudice to opposite party---Amendment could be allowed to seek consequential relief arising from cause of action originally incorporated in plaint---Amendment could also be allowed to add additional relief available to plaintiff even before higher courts---Judgment and decree of courts below were set aside, application for amendment was accepted and case was remanded to trial court for decision afresh after amendment of pleadings---Revision petition was accepted in circumstances.

Mumtaz Baig and 5 others v. Sarfaraz Baig 2003 CLC 713 and 1993 SCMR 593 rel.

Abdul Sattar Khan for Petitioners.

Sikandar Rashida and Zahir Shah for Respondents.

Date of hearing: 27th April, 2015.

2016 M L D 568

[Peshawar]

Before Muhammad Younis Thaheem, J

MUHAMMAD NAZIR through L.Rs.---Petitioner

Versus

AMEER JAN and others---Respondents

C.R. No.6-B of 2008, decided on 4th May, 2015.

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

----O.I, R. 8---West Pakistan Land Revenue Act (XVII of 1967), S.42---Shamilat deh land---Shart Wajib ul Arz---Contention of plaintiffs was that suit land was Shamilat deh and same was being used for the purpose of grazing fields of the village and any mutation in favour of others in the column of cultivation was in violation of Shart Wajib ul Arz---Suit was decreed concurrently---Validity---Suit property was Shamilat deh and was in the ownership of two castes---No person from any one of the said castes was authorized to transfer the disputed land---Any kind of transaction without consultation of other owners of common property in violation of Shart Wajib ul Arz would be illegal, against the law and void ab initio---Any entry in the column of cultivation without consultation of other co-owners or in violation of Shart Wajib ul Arz could be challenged by any member of proprietary body---No infirmity had been pointed out in the impugned judgments and decrees passed by the courts below---Courts below had rightly appreciated the evidence as well as revenue record and reached on a right conclusion---Revision was dismissed in circumstances.

Sher Afthan v. Muhammad Rafiq and another 2012 CLC 1803 and Major Muhammad Alyub Khan v. Capt. Jamroz Khan and 3 others 1979 CLC 788 (SC (AJ&K)) rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope of revisional jurisdiction of High Court was very limited---High Court could not set aside concurrent findings of facts while exercising revisional jurisdiction nor it could upset the same unless such findings were patently illegal, without jurisdiction, based on conjectural presumption or erroneous assumption.

Faqir Mehboob-ul-Hameed and Pir Hamid Ullah for Petitioner.

Hafeez Ullah Khan and Shahid Saleem Minakhel for Respondents.

Date of hearing: 4th May, 2015.

2016 M L D 605

[Peshawar]

Before Muhammad Daud Khan, J

MUHAMMAD AYUB---Petitioner

Versus

SHER ABBAS KHAN and others---Respondents

C.R. No.53-B of 2007, decided on 9th June, 2014.

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

----S. 42---Transfer of Property Act (IV of 1882), S. 41---Suit for declaration---Sale of property by ostensible owner---Scope---Contention of plaintiff was that registered sale deed executed in favour of defendants was illegal, and was based on fraud and same was ineffective on the rights of plaintiff---Suit was dismissed concurrently---Validity---Defendant had purchased the suit property from the ostensible owner having possession of the same and paid sale amount as consideration---Defendant had purchased the property in question with care and in good faith---Averments made in the plaint were neither asserted in the evidence produced by the plaintiff nor as narrated in the plaint---Documentary evidence produced by the plaintiff had no nexus with the case as asserted in the plaint---Pleading of the parties were not sustentative piece of evidence unless averments in the same were proved from evidence in court or admitted by the other party---Plaintiff had not adduced any evidence to prove the averments of the plaint with regard to his right in his oral as well as documentary evidence---Plaintiff therefore, had failed to prove his case through solid, cogent and reliable evidence---Both the courts below had rightly dismissed the suit after proper appraisal of evidence produced by the parties---No illegality, irregularity, mis-reading and non-reading was pointed out in the judgments passed by the courts below---Revision was dismissed in circumstances.

Sher Muhammad v. Qutabu and others 2002 SCMR 1447; Muhammad Ismail and others v. Lahore Development Authority and 3 others 1999 SCMR 2015; Chaudhary Muhammad Salim v. Fazal Ahmad and 2 others 1997 SCMR 313; Faqir Muhammad and 8 others v. Momin and other PLD 2003 SC 594; Hakeem ud Din through legal representative and others v. Faiz Bakhsh and others 2007 SCMR 870 and Muhammad Akram and others v. Mst Farida Bibi and others 2007 SCMR 1719 rel.

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

----S. 41---Sale of property by ostensible owner---Scope---Section 41 of Transfer of Property Act, 1882 was based on the principle of natural equity and universal application and was statutory application of law of estoppel and exception to the rule that person could not confer a better title than he had.

(c) Pleadings---

----Pleadings of the parties were not sustentative piece of evidence unless averments in the same were proved from evidence in court or admitted by the other party.

Anwar-ul-Haq for Petitioner.

Muhammad Fayaz Khan for Respondents.

Date of hearing: 9th June, 2014.

2016 M L D 628

[Peshawar]

Before Waqar Ahmed Seth and Qalandar Ali Khan, JJ

BIRADAR KHAN---Appellant

Versus

UNIVERSITY OF ENGINEERING, PESHAWAR through Vice Chancellor and another---Respondents

R.F.A. No.91-P of 2012, decided on 12th November, 2014.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 1, O. II, R. 2 & O. VII, R. 11--- Land Acquisition Act (I of 1894), S.23---Suit for recovery of compensation for acquisition of land---Jurisdiction of civil court---Withdrawal of suit---Fresh suit, filing of---Scope---Plaint, rejection of---Plaintiff filed suit for recovery of compensation for acquisition of land but Trial Court rejected the plaint---Validity---Earlier, suit of plaintiff for recovery of compensation of acquired land was conditionally withdrawn with permission to file a fresh suit---Plaintiff instituted fresh suit with regard to same suit land or part thereof but later on suit was withdrawn unconditionally and was dismissed as withdrawn---Present suit was barred under O. XXIII, R. 1 and O. II, R. 2, C.P.C.---Land in question was acquired on 30-11-1992 and suit for recovery of compensation was filed on 14-10-2010 which was time barred; besides present suit was outside the jurisdiction of civil court as dispute was with regard to acquisition of land falling within the ambit of Land Acquisition Act, 1894---Trial Court dismissed the suit under O. VII, R. 11, C.P.C.---Impugned order was modified and plaint was rejected---Appeal was dismissed in circumstances.

Bilal-ud-Din for Appellant.

Khizar Hayat, A.A.-G. for the State.

Date of hearing: 12th November, 2014.

2016 M L D 641

[Peshawar]

Before Abdul Latif Khan, J

SECRETARY IRRIGATION through Project Director---Appellant

Versus

LAND ACQUISITION COLLECTOR and 21 others---Respondents

R.F.A. No.95-M of 2013, decided on 15th September, 2014.

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

----Ss.18 & 22-A---Civil Procedure Code (V of 1908), O.XLI, R.22---Reference to court---Enhancement of compensation---Cross objection---Maintainability---Referee Court clubbed reference filed by the land owners with the cross-objections filed by the Government---Reference was withdrawn and cross objection was dismissed on the ground that main reference for enhancement of compensation had been withdrawn---Validity---Department for whose benefit land was acquired had no authority and locus standi either to file reference against the award for compensation or to carry with the cross-objections in the absence of reference made by the land owners---Government being beneficiary of the land acquired had no right to challenge the compensation given to the deprived owners of land---Department, local Authority or company for which land had been acquired might file an objection petition to the objection made by any person interested and the compensation amount as awarded by the Collector could be reduced, if deemed fit by the Referee Court---No proceedings could be conducted on cross-objections in case of withdrawal of main reference---Impugned order had been passed with conscious and application of independent mind---Appeal was dismissed, in circumstances.

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

----O.XLI, R.22---Land Acquisition Act (I of 1894), S. 22-A---Cross-objections---Scope---Department, local Authority or company for which land had been acquired might file an objection petition to the objection made by any person interested and the compensation awarded by the Collector could be reduced, if deemed fit by the Referee Court---No proceedings could be conducted on cross objections in case of withdrawal of main reference.

Sabir Shah, A.A.-G. for Appellant.

Inamullah for Respondents.

Date of hearing: 15th September, 2014.

2016 M L D 655

[Peshawar]

Before Qalandar Ali Khan, J

Mst. SHAMSHAD AKHTAR---Petitioner

Versus

MUHAMMAD ANWAR---Respondent

C.R. No.154-P of 2011, decided on 22nd April, 2015.

Civil Procedure Code (V of 1908)---

----O. XX, R. 5----Specific Relief Act (I of 1877), Ss. 12, 42 & 54---Judgment and decree---Findings or decision on issues---Principles---Failure of court to give finding on all issues---Effect---Duty of court as to disposal of issues---Plaintiff filed suit for declaration, specific performance of contract, perpetual injunction and possession which was dismissed by both the trial courts and appellate court---Order XX, R. 5, C.P.C. laid down mandatory requirements for judgment to be termed as a valid judgment in the eye of law---Incumbent upon court to state its finding or decision on each separate issue---Plaintiff had distinctly prayed for specific performance of agreement to sell, but court failed to give findings on issue as to her entitlement to specific performance---Absence of any findings on some of issues framed, which was material irregularity, made the impugned judgments of both the courts below as illegal and invalid---Judgments of courts below were set aside being in violation of O. XX, R. 5, C.P.C. and case remanded for decision afresh---Revision petition was accepted, in circumstances.

Abdul Mannan and others v. Sikandar Khan 1992 CLC 505; Asad-Ullah Khan v. Abdul Karim 1997 CLC 1334; Muhammad Siddique v. Muhammad Rafique and others 1992 CLC 1362; Rehmatullah Khan and another v. Ghulam Farid and others 2009 SCMR 371; Mst. Gulshahah v. Civil Judge-III/Judge Family Court, Haripur and 2 others PLD 1992 Pesh. 13 and Mst. Feroza v. Anjuman-e-Ittihad-e-Baluchan and others 2004 YLR 1535 rel.

Shakeel Ahmed for Petitioner.

Zafar Ali Khan for Respondent.

Date of hearing: 22nd April, 2015.

2016 M L D 674

[Peshawar]

Before Lal Jan Khattak, J

ZAFAR HAMEED and others---Petitioners

Versus

NESCOM---Respondent

C.R. No.86-A of 2013, decided on 18th May, 2015.

Civil Procedure Code (V of 1908)---

----O.VII, R.2----Recovery of money---Conditional scholarship---Breach of condition----Recovery of scholarship money---Plaintiff filed suit for recovery of money against defendant alleging that plaintiff/Higher Education Commission had awarded study scholarship to him to study abroad, and per their agreement, he was bound to return to Pakistan and serve plaintiff for specific period or otherwise return all scholarship expenditures incurred by plaintiff---Trial court, after recording evidence, dismissed the suit, but appellate court decreed the same---Validity---As matter of record, defendant having completed his studies, failed to return to Pakistan to serve the plaintiff as per their commitment---Plaintiff took necessary action against defendant calling upon him to honour his commitment but he resorted to lame excuses---Plaintiff was well within its right to demand from defendant to pay what defendant had received from it---Persons who had been selected for scholarship along with defendant had already returned to Pakistan and served their organization---No leniency could be taken with defendant, who had not honoured his commitment made with institution like the plaintiff---Plaintiff had proved its case through reliable oral and documentary evidence---Appellate court rightly decreed the suit, against defendant and his sureties had rightly been held liable to pay back all expenses incurred on him by plaintiff---No illegality was committed by appellate court in accepting appeal---High Court dismissed revision petition and maintained judgment and decree of appellate court---Revision petition was accepted in circumstances.

Mrs. Riala Saboohi for Petitioners.

Barrister Waqas Aziz Qureshi for Respondent.

Date of hearing: 18th May, 2015.

2016 M L D 702

[Peshawar]

Before Qaiser Rashid Khan and Assadullah Khan Chamkani, J

IJAZ KHAN and 2 others---Appellants

Versus

The STATE---Respondent

Cr. A. No.361-P of 2014, decided on 8th August, 2015.

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

----Ss. 9(c) & 29---Possessing and trafficking narcotics---Appreciation of evidence---Three accused persons, separately disclosed and pointed out the presence of narcotic i.e. charas garda hidden in both sides of bus in question---94,800 Kgs charas in 79 packets, was recovered from the bus---10/10 grams from each packet of charas, were separated for Forensic Science Laboratory examination, while remaining packets were sealed into four plastic sacks---Presence of accused persons in the bus at their respective position, stood amply established---During personal search of one of accused persons, registration book of the bus in question and a stamp paper regarding purchase of bus was recovered---Separation of samples of 10 grams from each of 79 packets, its handing over by the complainant to prosecution witness, its safe custody in the Malkhana; and its onward delivery to constable to be taken to Forensic Science Laboratory, was not challenged by accused persons---Positive Forensic Science Laboratory's report, put a final seal on the recovered contraband to be charas garda---Presence of accused persons in the vehicle stood fully established---Prosecution witnesses in one voice stated about the recovery of huge quantity of narcotics, from the bus---Control of Narcotic Substances Act, 1997, was a special law, and it had been specially provided in its S.29 that presumption of recovery of contraband items was always deemed to be from accused, unless it was proved to the contrary---Except for minor and negligible contradictions, which did not strike at the roots of the prosecution version, case stood proved against accused persons to the hilt, leaving no room to doubt the veracity of the statements of prosecution witnesses---Prosecution witnesses, were not at all questioned about any previous ill-will or animous with accused persons, whereby accused could have been substituted with so-called other accused---Mere denial of the charge by accused and pleading innocence, without substantiating the same through cogent and convincing evidence in the face of a strong prosecution case, could not earn them acquittal---Prosecution case stood fully proved against accused persons, Trial Court had recorded a proper and well reasoned judgment according to law and evidence available on the record---Such findings did not suffer from any illegality, misreading or non-reading of evidence, which could in turn call for interference in appeal.

Farhana Marwat and Khushmir Khattak for Appellants.

Muhammad Iqbal Mohmand, SPP for the State.

Date of hearing: 8th October, 2015.

2016 M L D 737

[Peshawar]

Before Qalandar Ali Khan, J

MOHAMMAD DAN GUL and another---Petitioners

Versus

The STATE---Respondent

Cr. M. B. A. No.1932-P of 2014, decided on 29th December, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S.15---Penal Code (XLV of 1860), Ss.170, 171 & 120-B---Anti-Terrorism Act (XXVII of 1997), S.7---Possessing unlicensed arms, personating a public servant, wearing garb or carrying token used by public servant with fraudulent intent, criminal conspiracy, act of terrorism---Bail, grant of---Further inquiry---Nothing was on the record to show previous record of involvement of accused persons in terrorist activities, or their association with the terrorist group---Army uniform, was also recovered from the house of co-accused, while no such recovery was made from accused persons---Nothing was on available record to show involvement of accused persons in the conspiracy to commit acts of terrorism---In such a situation, at the most, accused could be saddled with the charge of having in their possession, unlicensed arms and ammunition under S.15 of Khyber Pakhtunkhwa Arms Act, 2013, prescribing maximum punishment of imprisonment for 7 years or with fine or with both---Case fell outside the scope of prohibitory clause contained in S.497, Cr.P.C.---Where there was alternative provision of imposition of fine, bail should be granted as of right---When rest of sections of law were, prima facie, not attracted to the case of accused persons, their case appeared arguable for the purpose of bail, as their nexus with conspiracy for commission of terrorist acts would, indeed, be subject to further inquiry---Investigation in the case, was completed and accused were no more required by the Police for the purpose of investigation---Accused, were admitted to bail, in circumstances.

Sohail Akhtar for Petitioners.

Aamir Ullah Chamkani for the State.

2016 M L D 749

[Peshawar]

Before Muhammad Younis Thaheem, J

Mst. ZAR TAJA BIBI---Petitioner

Versus

MANAGER MUSLIM COMMERCIAL BANK (M.C.B.) and 3 others---Respondents

C.R. No.46-B of 2015, decided on 11th June, 2015.

Suits Valuation Act (VII of 1887)---

----S. 3----Khyaber Pakhtunkhwa Civil Courts Ordinance (II of 1962), S. 18---Valuation of appeal---Pecuniary jurisdiction of appellate court, determination of---Principles---Plaintiff filed suit for declaration and permanent injunction claiming that she, being widow and legal heir of deceased along with defendants, was entitled to her respective share in inherited amount lying in Bank-accounts which were under control of defendants---Defendants filed application under O. VII, R. 11, C.P.C. for rejection of plaint, which was accepted by Trial Court and plaint was rejected---Appellate court dismissed appeal filed by plaintiff for lack of pecuniary jurisdiction as value of subject matter of suit was more than one million rupees---Contention raised by plaintiff was that for ascertaining forum of appeal, valuation of original suit was to be considered and not value of subject matter involved in the suit---Validity---In view of S. 3 of Suits Valuation Act, 1887, pecuniary jurisdiction was to be determined on basis of value of suit as mentioned in plaint, and not on basis of value of subject matter involved in the suit---Appeal was continuation of suit, and appellate court had ample power to amend, reverse or enhance amount of decree---Court, referring to S. 18 of West Pakistan Civil Courts Ordinance, 1962, observed that appellate court, while dismissing appeal, had committed material irregularity and illegality---Impugned judgment of appellate court was outcome of non-appreciation and misconception of law---High court, setting aside impugned judgment, remanded case to appellate court for adjudication of appeal on merits---Revision petition was accepted in circumstances.

Mst. Sabra Bibi and others v. Hikmat Khan and others 2012 CLC 292; Mst. Tabasam Nazir and another v. Liaqat Hayat and 5 others 2001 CLC 579; Jan Son Construction through Saida Jan v. Govt. of Khyber Pakhtunkhwa and others 2013 CLC 127 and Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394 ref.

Suleman and others v. Pir Bakhsh and others 2012 CLC 1457 and Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394 rel.

Rashid Khan Wazir and Amanullah Jan for Petitioner.

Rahman Ullah for Respondents.

Date of hearing: 11th June, 2015.

2016 M L D 757

[Peshawar]

Before Qaiser Rashid Khan and Assadullah Khan Chamkani, JJ

MUHAMMAD NOOR---Appellant

Versus

RIAZ SHAH and another---Respondents

Criminal Appeal No.277-P of 2012, decided on 9th April, 2015.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Benefit of doubt---Explanation given qua three hours delay in reporting the incident to Police, did not appeal to a prudent mind---Time of three hours had been consumed in deliberation and consultation to charge accused---Oral altercation between the parties prior to incident, remained unproved---No evidence had been led to prove as to where and in whose presence said altercation took place; and what was the bone of contention of said altercation---Where the motive would remain unproved, then the ocular account would be considered with great care and caution---Complainant, who appeared as solitary witness, was first cousin of the deceased---Conviction could be recorded on the basis of solitary statement of a witness having close relation with the deceased or victim, provided same was trustworthy, confidence inspiring and corroborated by strong circumstances of the case---Eye-witness, who claimed his presence at the spot, to make his testimony believable and reliable, must satisfy the mind of the court through some physical circumstances or through some corroborative evidence about his presence at the spot---Serious doubts existed about the presence of the complainant on the spot with the deceased at the time of incident---Complainant had been shown in the site plan in close proximity of 5 paces from the deceased---Accused persons had been attributed the role of firing at the deceased and the complainant with automatic weapons i.e. Kalashnikov---Complainant's case was not that he was not fired at by accused, but he charged accused for attempting at his life, in such circumstances much damage should have been caused to the complainant---Escape or let off the complainant by assailant, had created serious doubts about his presence on the spot with the deceased at the time of incident---Testimony of the complainant, which otherwise suffered from contradictions and discrepancies, had wrongly been believed and relied upon by the Trial Court---Medical evidence, had totally negated the ocular account which had created doubt about the prosecution---Mere recovery of blood from the spot, blood stained last worn garments of the deceased, coupled with positive serologist report and recovery of empties from the spot, in absence of direct evidence, would not be sufficient to sustain conviction of accused in capital charge---Such recoveries, were always considered as corroborative pieces of evidence, which were always taken into consideration along with direct evidence and not in isolation---Abscondence of accused alone, could not be a substitute of real evidence, and could not be enough to sustain conviction of accused---Prosecution evidence, was pregnant with doubts; and had failed to bring home the guilt of accused through cogent and confidence inspiring evidence beyond shadow of doubt---Trial Court had not evaluated the evidence in its true perspective, and reached to an erroneous conclusion by holding accused guilty of offence---Conviction and sentences awarded to accused by the Trial Court, were set aside, he was acquitted of the charge and was set at liberty, in circumstances.

Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Muhammad Asif v. The State 2008 SCMR 1001 and Farman Ali and others PLD 1980 SC 201 ref.

Muhammad v. Pesham Khan 1986 SCMR 823 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---One substantial doubt, would be enough for acquittal of accused---Rule of benefit of doubt, was essentially a rule of prudence, which could not be ignored while dispensing justice in accordance with law---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---Said rule was based on the maxim "It was better that ten guilty persons be acquitted rather than one innocent person be convicted" which occupied a pivotal place in the Islamic Law; and was enforced strictly in view of the saying of the Holy Prophet (PBUH), that the "mistake of Qazi (Judge) in releasing a criminal was better than his mistake in punishing an innocent"

Muhammad Khan and another v. The State 1999 SCMR 1220 Muhammad Ikram v. The State 2009 SCMR 230 ref.

Jalal ud Din Akbar Azam Gara for Appellant.

Muhammad Amin Khattak Lachi for Respondent No.1.

Syed Sikandar Hayat Shah, A.A.-G. for the State.

Date of hearing: 9th April, 2015.

2016 M L D 776

[Peshawar]

Before Abdul Latif Khan, J

NIHAYAT KHAN---Petitioner

Versus

SHEHERYAR KHAN MUHAMMAD---Respondent

C.R. No.462-P of 2012, decided on 26th February, 2015.

Khyber Pakhtunkhwa Pre emption Act (X of 1987)---

----S. 13---Talbs, performance of---Mentioning of place of Talb-i-Muwathibat---Pre-requisite---Constitution of meeting/Majlis was not proved, nor the information allegedly disclosed in the plaint had been substantiated with confidence inspiring evidence---Presence of witnesses in the Majlis had not been established and plaintiff and his witnesses were at variance in this point---Contradictions made in the evidence were grave in nature---Plaint filed by pre-emptors did not mention place of Talb-e-Muwathibat which omission was sufficient reason to non-suit the plaintiff---Lower Courts had rightly dismissed the suit in circumstances---High Court dismissed revision petition being devoid of merit.

M. Nasir Mahfooz for Petitioner.

Jalaluddin Khan for Respondent.

Date of hearing: 26th February, 2015.

2016 M L D 786

[Peshawar]

Before Muhammad Ghazanfar Khan, J

Mst. DILSHAD BIBI and others---Petitioners

Versus

AMIR NAWAZ and others---Respondents

C.R. No.60-D of 2014, decided on 9th September, 2015.

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

----O. I, R. 10 & O. XLI, R.24---Appeal from original decree---Procedure---Remand of case by appellate court, validity of---Appellate court to decide the case finally when evidence on record sufficient---Appellate court setting aside judgment and decree of Trial Court remanded the case for decision afresh on merits after impleading necessary party---Validity---Predecessor of plaintiff had filed present suit only for restraining defendants from interfering in his possession---Appellate court, having admitted that defendants were not able to prove their ownership and possession of suit property, had remitted the case to trial court to record pro and contra evidence to determine undisputed title of the suit property---Person, who was directed by appellate court to be impleaded as party, had not disputed possession of plaintiffs in the suit property---Evidence on record was, therefore, sufficient to dispose of appeal on merits in terms of O. XLI, R. 24, C.P.C.---Appellate court, in such scenario, should have decided the case on available record, avoiding its remand---High Court, setting aside judgment and decree of appellate court, remanded the case to appellate court for decision afresh.

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

----O. XLI R. 24----Evidence on record was sufficient to dispose of appeal on merits in terms of O. XLI, R. 24, C.P.C.---Appellate court, in such scenario, should have decided the case on available record, avoiding its remand.

Saleemullah Khan Ranazai for Petitioners.

Muhammad Wahid Anjum for Respondents.

Date of hearing: 9th September, 2015.

2016 M L D 794

[Peshawar]

Before Abdul Latif Khan, J

ABDUL MANAN and another---Petitioners

Versus

FAZAL SUBHAN and 2 others---Respondents

C.R. No.351-P of 2014, decided on 5th March, 2015.

(a) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)--

----S. 42---Qanun-e- Shahadat Order (10 of 1984), Art. 117---Mutation, validity of---Burden of proof---Principle---When plaintiff deposed of fact of non-appearance before Patwari Halqa or Tehsiladar in Jalsa-e-Aam for attestation of mutation and had also denied payment of sale consideration,burden of proof shifted to defendants who being beneficiary of mutation were legally bound to discharge burden that such mutation was entered and validly attested.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)--

----S.42---Mutation, validity of---Failure to prove sale consideration---Defendants being beneficiaries of mutation failed to prove that mutation had been properly entered with Patwari Halqa and validly attested by Revenue Officer since no marginal witnesses were produced---No evidence was produced to prove that sale consideration was paid to plaintiff---Patwari Halqa and Tehsildar also denied payment of sale consideration in their presence---Failure to prove sale consideration was fatal to the case and mutation being not validly attested was annulled.

Sabitullah Khan for Petitioners.

Abdul Hafeez for Respondents.

Date of hearing: 5th March, 2015.

2016 M L D 809

[Peshawar]

Before Nisar Hussain Khan and Qalandar Ali Khan, JJ

Mst. FARIDA BANO---Petitioner

Versus

HAZRAT MUHAMMAD and 4 others---Respondents

W.P. No.3787-P of 2014, decided on 31st March, 2015.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 15---Civil Procedure Code (V of 1908), O. I, R. 10---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Ejectment proceedings---Impleadment of party---Scope---Appeal was dismissed in limine on the ground that appeal against interlocutory order of Rent Controller was not maintainable---Validity---Neither order passed on application under O. I, R. 10, C.P.C. was appealable nor provisions of Civil Procedure Code, 1908 and Qanun-e-Shahadat, 1984 were applicable to the proceedings before Rent Controller---Impugned order passed by the Appellate Court was not open to exception through constitutional petition---Petitioner had no locus standi to be impleaded in the case on the basis of her claim of ownership and possession---Petitioner had already filed a civil suit seeking declaration with regard to her rights of ownership and possession---Constitutional petition was not maintainable as petitioner had already availed alternate remedy of a civil suit---Object of application for impleadment of petitioner was to further delay eviction proceedings against her son---Constitutional petition, being devoid of merit, was dismissed, in circumstances.

1981 CLC 212; 1982 CLC 1171; 1987 CLC 1210 and 2005 MLD 1232 rel.

Muhammad Farooq Malik for Petitioner.

Muhammad Javed Yousafzai for Respondents.

Date of hearing: 31st March, 2015.

2016 M L D 822

[Peshawar]

Before Abdul Latif Khan, J

Dr. SHAHABUD DIN and others---Petitioners

Versus

ITBAR GUL and others---Respondents

C.R. No.1320 of 2011, decided on 16th February, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Contention of plaintiffs was that impugned mutation was against law and same was liable to be annulled---Suit was decreed concurrently---Validity---Defendants being beneficiary of document had failed to prove the same through confidence inspiring evidence---Vendee could not transfer better title to his purchaser---Plaintiffs were in possession of the property---Defendants could not rebut the possession over the suit property of plaintiffs nor justified their claim of acquiring the entire property---Objection which was not raised at relevant stage could not be raised for the first time before the revisional court---Both the courts below had decided the lis with conscious application of independent mind---Revision was dismissed in circumstances.

Ibadur Rehman for Petitioners.

Haji Riaz Muhammad Khan for Respondents.

Date of hearing: 16th February, 2015.

2016 M L D 837

[Peshawar]

Before Assadullah Khan Chamkani, J

KIFAYAT ULLAH---Petitioner

Versus

SANA ULLAH---Respondent

Cr. Misc. BCA No.157-P of 2015, decided on 4th May, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 109 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S.15-AA---Qatl-i-amd, abetment, common intention---Bail, cancellation of---Principles governing grant and cancellation of bail---Case being based on circumstantial evidence, it was yet to be determined during trial after recording evidence as to whether of circumstantial evidence, had made an unbroken chain to touch its one end the dead body of the deceased and other the neck of accused---Tentative assessment of the material available on record showed that in absence of direct evidence, case of accused required further probe into his guilt; on the basis whereof, the lower court was justified to grant him concession of bail---Principles governing grant of bail and cancellation of bail, stood substantially on different footings---Once bail had been granted by a competent court of law, strong and exceptional grounds were required for cancellation thereof---Court had to see as to whether the bail granting order was patently illegal, erroneous factually incorrect and had resulted in miscarriage of justice---Courts were always slow to cancel bail already granted as the liberty of a person could not be curtailed on flimsy grounds, because cancellation of bail was a harsh step, as it interfered with the liberty of an individual, hence, it was not to be resorted to lightly---Power to take back accused in custody, was to be exercised with care and circumspection---Section 497(5), Cr.P.C., did not command the court to cancel the bail even when the offence was punishable with death or imprisonment for life and where the grant of bail was prohibited under S.497(1), Cr.P.C.---No interference with bail granting order was required, unless the same lacked reasons, or was perfunctory in nature---Curtailing the liberty of a person on bail, the prosecution should make out a case for cancellation, by not making allegations alone, but by giving substantive proof of such allegations---Applicant having failed to point out any such ground to convince High Court for interference in the impugned order, application for cancellation of bail being without any force, was dismissed, in circumstances.

Ishtiaq Ibrahim for Petitioner.

Astaghfirullah for Respondent.

Malik Manzoor Hussain for Respondent.

Date of hearing: 4th May, 2015.

2016 M L D 857

[Peshawar]

Before Muhammad Daud Khan, J

SHAH PUR---Petitioner

Versus

The STATE---Respondent

Cr. M.B.A. No.1840-P of 2015, decided on 25th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51---Bail, refusal of---Principle of consistency---Scope---Person who was on driving seat of the vehicle should be held responsible for transportation of narcotics having knowledge of the same as no condition or qualification had been made in S.9(c) of Control of Narcotic Substances Act, 1997 that the possession should be an exclusive one and could be joint one with two or more persons---Accused's role being driver of vehicle was different than the role of co-accused who were occupying other seats as accused being driver of the vehicle was in charge of the same and all the articles lying therein would be under his control and possession, therefore recovery of 1000 grams heroin from secret cavity of said vehicle would have been in conscious knowledge of accused and recovery of total 1500 grams of heroin made jointly from his possession and secret cavity of his car had in conscious knowledge of the driver of the vehicle---Offence punishable under Control of Narcotic Substances Act, 1997 were by their nature heinous and considered to be offence against the society at large and it was for this reason that the statute itself had provided a note of caution under S.51 of Control of Narcotic Substances Act, 1997 before enlarging an accused on bail in ordinary sense---While referring to standard set out under S.497, Cr.P.C. for grant of bail to an accused involved in an offence under S.9 of Control of Narcotic Substances Act, 1997, even on that basis an accused charged with an offence prescribing various punishments was not entitled for grant of bail merely on account of nature or quantity of narcotics---Appreciation of evidence was not permissible at bail stage and secondly in such situation looking to peculiar features and nature of offence, Trial Court may depart from normal standards prescribed in the case---Accused, in circumstances, was not entitled to concession of bail---Petition was dismissed, accordingly.

Kashif Amir v. The State PLD 2010 SC 1052; Socha Gul v. The State 2015 SCMR 1077 and Ghulam Murtaza v. The State PLD 2009 Lah. 362 rel.

Jawad Khan for Petitioner.

Syed Sikandar Hayat Shah, A.A.G. for the State.

Date of hearing: 25th November, 2015.

2016 M L D 881

[Peshawar]

Before Waqar Ahmed Seth and Qalandar Ali Khan, JJ

FARIDOON KHAN and another---Petitioners

Versus

The STATE and others---Respondents

W.P. No.881-A of 2012, decided on 16th April, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 319 & 34---Criminal Procedure Code (V of 1898), Ss.22-A & 227---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Qatl-i-amd, qatl-i-khata, common intention---Order of Justice of Peace---Scope---Framing and alteration of charge---Constitutional petition---Main grievance of the petitioners/accused persons was that initially case against them was registered under Ss.319/34, P.P.C., but later on, on direction of Ex-officio Justice of Peace, SHO concerned included S.302, P.P.C., in the FIR, which according to the petitioners was beyond the scope of S.22-A, Cr.P.C. and fell outside the jurisdiction of Justice of Peace---Validity---Once the charge was framed by the Trial Court, keeping in view facts of the case and relevant provisions relating to framing of charge under Cr.P.C., sections of law applied in the case by the Police/prosecution at the time of registration of FIR, during investigation and at the time of submission of challan, would become irrelevant and of no significance; as the Trial Court enjoyed discretion, within the parameters of law, to frame charge in the light of facts and evidence, available on record, regardless of the sections of law applied in the FIR, or complete challan by the Police/prosecution---Question of application of sections of law was rendered only academic after completion of investigation and submission of challan to the court---Even the sections of law under which accused was charged by the Trial Court, were subject to alternation/variation "at any time" before judgment was pronounced under S.227, Cr.P.C.---No justification existed to invoke the constitutional jurisdiction of High Court, when other adequate remedies were available at different stages in ongoing proceedings, not yet culminated to the detriment of a person, bringing him within the definition of 'an aggrieved' person, and accruing a cause of action in his favour under Art.199 of the Constitution---Justice of Peace had followed the provisions of S.22-A, Cr.P.C., in its letter and spirit---Constitutional petition was dismissed being not maintainable, in circumstances.

Sajjad Ahmad Abbasi for Petitioners.

Nemo for the State.

Date of hearing: 16th April, 2015.

2016 M L D 908

[Peshawar]

Before Qalandar Ali Khan, J

RAB NAWAZ and others---Appellants

Versus

CIVIL JUDGE and others---Respondents

F.A.O. No.16-A of 2014, decided on 11th May, 2015.

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

----O. VII, R. 10, O. XX, R. 5, O. XLIII, R. 1----Workmen's Compensation Act (VIII of 1923), S. 19---Fatal Accidents Act, (XIII of 1855), S.1---Return of plaint---Plaintiff/legal heirs of deceased filed suit for recovery under Fatal Accidents Act, 1855 claiming compensation for death of the deceased caused due to injuries for negligence of defendants---Trial court, having framed issues on merits and decided single issue as to jurisdiction of the court, returned plaint under O. VII, R. 10, C.P.C. on ground that the suit was barred under S. 19 of Workmen's Compensation Act, 1923----Validity---Question of jurisdiction was to be dealt with at inception stage of suit, but once issues had been framed, judgment had to conform to mandatory requirement of O. XX, R. 5, C.P.C., that was court had to give its finding or decision on each separate issue with reasons---Issue as to whether deceased was employee of defendant had close nexus with issue as to jurisdiction of court, which ultimately was to be decided by civil court---Findings of Trial Court were in violation of O. XX, R. 5, C.P.C.---Impugned order of Trial Court was set aside and case was remanded for decision afresh on all issues---Appeal was accepted in circumstances.

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

----O. XX, R. 5----Judgment and decree---Finding on issues---Principles---Duty of court---Question of jurisdiction is to be dealt with at inception stage of suit, but once issues are framed, judgment has to conform to mandatory requirement of O. XX, R. 5, C.P.C., that was court has to give its finding or decision on each separate issue with reasons.

Sardar Zaheer Ahmad Khan for Appellants.

Javed Iqbal Sheikh for Respondents.

Date of hearing: 11th May, 2015.

2016 M L D 920

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

The STATE---Appellant

Versus

WARIS KHAN---Respondent

Cr.A. No.61 of 2007, decided on 9th April, 2015.

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

----Ss. 9(c) & 21---Prohibition (Enforcement of Hudood) Order (4 of 1979), Arts.3 & 4---Police Rules, 1934, R.25.2(3)---Police Order (22 of 2002), Art.18---Criminal Procedure Code (V of 1898), S.417(2-A)---Possessing and trafficking narcotics---Appeal against acquittal---Reappraisal of evidence---Recovery of alleged charas of 2 Kg and 35 grams, was effected from possession of accused by Police Officer, who was Seizing Officer, complainant, as well Investigating Officer in the case, meaning thereby that he was three in one---Under the law, complainant and accused were two opponents and contesting parties---Role of an Investigating Officer was of a neutral authority, whose object was to unearth the truth---Investigating Officer, could not be part or a member of a party in a case, which he was investigating---Concept of honest investigation was based on non-partisanship and neutrality---Reason and spirit of separating investigating wing from the operation wing of Police, also emanated from the said fact, which reflected in Art.18 of the Police Order, 2002---Element of honest, transparent and fair investigation, lacked in the present case---Despite receiving spy information, ASI Police, did not inform his highups; so that the proceedings could be conducted in accordance with law---According to S.21 of Control of Narcotic Substances Act, 1997, the officer below the rank of Sub-Inspector of Police, had no power of entry, search, seizure and arrest without warrant---Such officer was required at least to inform an official having rank of Sub-Inspector of his Police Station---In the present case, ASI straightaway went to the spot, without conducting any test purchase regarding allegation of selling narcotics by accused---Such action of the ASI created doubt in the prosecution case---Type of charas had also not been mentioned in the FIR, as to whether the recovered contraband was charas Garda or charas Pukhta, which had made the recovery doubtful---Samples, were sent by Investigating Officer to Forensic Science Laboratory after unexplained delay of 12/13 days---Despite prior information about selling of charas by accused, no independent witness had been associated, which could support the prosecution case---Police Officials, were as good as witnesses as other private person---Where the complainant, Investigating Officer was the same, and marginal witnesses, were also his subordinates/colleagues, no chance was of fair investigation existed especially where accused was already known to the prosecution witness---Every possibility of false involvement of accused in the present case existed, wherein the whole proceedings were conducted by one person, who being below the rank of Sub-Inspector who had no power to seize, search and arrest accused---Prosecution had failed to bring on record any history of conviction of accused in those cases---Mere registration of other FIRs against accused, could not be made ground of his conviction---Material contradictions were noticed in the statement of prosecution---Trial Court, in circumstances, had rightly acquitted accused from the charges levelled against him through impugned judgment, which needed no interference by High Court.

Nazir Ahmad v. The State PLD 2009 Kar. 191; Ashiq alias Kaloo v. State 1989 PCr.LJ 601 and State v. Bashir and others 1998 SC 408 ref.

Naeem Abbasi, A.A.-G. for the State.

Shoaib Gul Khan Jadoon for Respondent.

Date of hearing: 9th April, 2015.

2016 M L D 934

[Peshawar]

Before Qaiser Rashid Khan and Assadullah Khan Chamkani, JJ

BAKHT MUNIR---Appellant

Versus

The STATE---Respondent

Crl. Appeal No.363-P of 2013, decided on 17th September, 2015.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 38---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Confession before police---Delay of sending articles to Forensic Science Laboratory---Accused was convicted by Trial Court and sentenced to imprisonment for life mainly on the ground of confession made by him before police---Accused had not confessed his guilt before competent Court of law, therefore, his alleged statement before police amounted to confession before police and such statements had no evidentiary value under Art. 38 of Qanun-e-Shahadat, 1984---Positive report of Forensic Science Laboratory regarding crime empties and pistol was delayed without any plausible explanation and the same would not advance prosecution case---No direct or circumstantial evidence was available to bring home the guilt of accused---So many circumstances existed creating serious doubts in prosecution case which had gone to its roots---One substantial doubt could be enough for acquittal of accused---Rule of benefit of doubt was essentially a rule of prudence and the same could not be ignored while dispensing justice in accordance with law---Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in prosecution case must be resolved in favour of accused---High Court set aside conviction and sentence awarded by Trial Court and acquitted the accused of the charge---Appeal was allowed under circumstances.

(b) Criminal Trial---

----Evidence---Two interpretations---Scope---When two interpretations of evidence are possible, the one favouring accused has to be taken into consideration.

Muhammad Ibrhaim Khan for Appellant.

Mian Arshad Jan, A.A.-G. for Respondent.

Date of hearing: 17th September, 2015.

2016 M L D 943

[Peshawar]

Before Abdul Latif Khan, J

SAEED ANWAR and 3 others---Petitioners

Versus

KHURSHEED ANWAR---Respondent

C.R. No.775-P with C.M. 891-P of 2014, decided on 9th March, 2015.

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

----S. 28 [since omitted]---Specific Relief Act (I of 1877) S. 42---Suit for declaration---Adverse possession, plea of---Legal objection---Court fee, assessment of---Effect---Plaintiff instituted suit for declaration for ownership of suit property vide attested mutation and sought for ejectment of defendant---Plaintiff alleged that an earlier suit of defendant regarding suit property had been dismissed and defendant was in adverse possession---Revenue record revealed that defendant was entered as adverse possessor without any payment---Defendant claimed ownership on basis of longstanding possession---Suit was decreed---Validity---Evidence produced by parties supported claim of plaintiff---Defendant had no right to possess suit property and his plea of adverse possession to claim ownership had been declared as against Injunctions of Islam---Objection by defendant relating to assessment of court fee to be taken at earliest possible time---Court fee had not been properly valued and affixed on plaint but it could be treated as curable irregularity and plaintiff could not be non-suited on this ground alone---Provisions relating to assessment and affixation of court fee had no penal clause, therefore, these could not be termed as mandatory rather they were directory in nature---Court Fee Act, 1877 being a taxing statute should be interpreted in favour of subject as its basic object was to secure revenue and not to injure litigant on account of technicalities---Opportunities be given to make up deficiency on payment of court fee---Both the courts below had passed impugned orders with reasons in cosonance with law and facts of the case---Revision petition was dismissed being devoid of jurisdictional or legal error.

(b) Administration of justice---

----Parties should not be penalized for negligence on part of counsel.

Hayatullah Khan for Petitioner.

Habib Anwar for Respondent.

Date of hearing: 9th March, 2015.

2016 M L D 958

[Peshawar]

Before Nisar Hussain Khan and Muhammad Ghazanfar Khan, JJ

MALIK TILLA MOHAMMAD---Appeal

Versus

DIRECTOR GENERAL EXCISE AND TAXATION and another---Respondents

F.A.O. No.74 of 2012, decided on 7th April, 2015.

Arbitration Act (X of 1940)---

----Ss.34 & 39---Stay of proceedings in a suit in presence of an arbitration clause in the agreement between the parties---Scope---Plaintiff filed a suit for declaration with permanent injunction against defendants---During pendency of suit, defendants filed an application under S.34 of Arbitration Act, 1940 for stay of proceedings---Arbitrator was appointed who submitted his Award which was accepted by plaintiff---Defendants objected the same, on the grounds that objections of Finance Department had not been addressed in a proper manner and Provincial Government being necessary party was not made party and award was set aside by Trial Court and not made Rule of Court---Held, that in agreement deed executed between plaintiffs and defendant it was mentioned that in case of dispute between parties, the dispute would be referred to arbitration under Arbitration Act, 1940---Arbitrator while proper and necessary party and without its impleadment no effective decree could be passed---Trial Court had therefore rightly passed an order for impleading Finance Department as party to suit and impugned order could not be interlard with---Such circumstances, appeal was dismissed, accordingly.

Farmanullah Khattak for Appellant.

Adnan Naveed for Respondent.

Date of hearing: 7th April, 2015.

2016 M L D 986

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

SAFEER SHAH---Petitioner

Versus

The STATE---Respondent

W.P. No.861-A of 2015, decided on 15th September, 2015.

West Pakistan Maintenance of Public Order Ordinance ( of 1960)---

----S.3(1)---Constitution of Pakistan, Art. 199---Constitutional petition---Detention order---Scope---Petitioner was allegedly cutting and destroying forests, therefore, as a preventive measure he was detained by the authorities---Validity---Since cases were registered against the petitioner under the relevant law, there was no need of detaining him under West Pakistan Maintenance of Public Order Ordinance, 1960 said law was not to punish perpetrators, rather was intended to prevent a person from acting in a manner prejudicial to public safety and no such allegations were forthcoming against the petitioner except for one instance of causing damage of forests which was yet to be proved in any court of law---When an offence was committed, there would be no occasion for preventive measures, which could have been taken, if warranted by law, before the commission of such offence and not thereafter---Authorities could not resort to preventive detention as means to punish an alleged offender---In absence of proof of alleged acts of petitioner being a threat to public safety, steps taken by the authorities were hold to be unwarranted and against the Fundamental Rights of the petitioner---Constitutional petition was allowed in circumstances.

Mehdi Zaman for Appellant.

Additional A.G. for the State along with representative.

Date of hearing: 15th September, 2015.

2016 M L D 999

[Peshawar]

Before Qaiser Rashid Khan and Assadullah Khan Chamkani, JJ

AKHTAR MUNIR---Petitioner

Versus

SECRETARY HOME AND TRIBAL AFFAIRS, KPK PESHAWAR and 8 others--Respondents

Writ Petition No.2610-P of 2013, decided on 3rd March, 2015.

National Disaster Management Act (XXIV of 2010)---

----S.15---Constitution of Pakistan, Art. 199---Constitutional petition---Compensation policy---Retrospective effect---Grievance of petitioner was that authorities refused to compensate him for the loss he sustained during military operation---Plea raised by authorities was that loss faced by petitioner was prior to promulgation of Compensation Policy---Validity---Promulgation of such Policy was a late realization on the part of authorities to alleviate woes and sufferings of helpless and hapless people of Federally Administered Tribal Area who had no choice while becoming victims of circumstances thrust upon them---Policy in question should not be meant to compensate only those persons who had come to a certain loss after promulgation of the Policy and the others hailing from Federally Administered Tribal Area who too sustained losses but prior to enforcement of the Policy would only go for a song---High Court declared that petitioner was entitled to compensation amount as per Compensation Policy---Such Policy of government was beneficial, therefore, it would have retrospective effect for those persons who had come within its scope---High Court directed the authorities to consider case of petitioner for compensation amount in respect of destroyed vehicle under the Policy at the earliest---Petition was allowed in circumstances.

Raza Khan Safi for Petitioner.

Syed Sikandar Hayat Shah, A.A.G. for the Respondents Nos.1, 3 and 4 and 7 and 8 along with Kaleemullah Office Superintendent FATA Disaster Management Authority.

Jehanzeb Khan Mehsud for Respondents Nos. 5 and 6.

2016 M L D 1027

[Peshawar]

Before Abdul Latif Khan, J

MUHAMMAD JAN---Petitioner

Versus

Mst. NIHARA---Respondent

C.R. No.549-P of 2012, decided on 27th March, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Sale consideration---Evidence of scribe---PardahNasheen lady, status of---Plaintiff filed suit for declaration to the effect that she was owner in possession of suit property and defendant had no connection with the same---Plaintiff averred that defendant being her attorney in litigation against her sons had obtained her thumb impression on a blank stamp paper with an assurance that a compromise was to be executed with her sons---Defendant did not deny her claim of ownership but alleged that she had sold the property in his favour by a sale deed---Suit was dismissed but appeal against was accepted---Validity---Payment of sale consideration was not proved---During cross-examination of plaintiff, no question was put to her regarding receipt of payment---In case of absence of payment of sale consideration, no sale could be proved---Scribe deposed that plaintiff had not appeared before him and no money exchanged the hands in his presence---Defendant's witness deposed that he took scribe to house of plaintiff to obtain thumb impression but he showed his ignorance about contents of deed though it was read over to him---Defendant failed to prove payment of sale consideration and the fact that thumb impression were obtained for sale transaction---Plaintiff had established defendant as her attorney in litigation against her sons---Appellate Court had rightly accepted the appeal---Revision was dismissed.

Muhammad Ibrahim Khan for Petitioner.

Mukhtar Ahmad for Respondent.

Date of hearing: 27th March, 2015.

2016 M L D 1042

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

MUHAMMAD KHALID---Appellant

Versus

The STATE---Respondent

J. Cr.A. No.37-A of 2012, decided on 25th November, 2015.

Penal Code (XLV of 1860)---

----Ss. 302 (a), 304 (1) (a) & 452----Criminal Procedure Code (V of 1898), Ss. 164 & 342---Qatl-i-amd; house trespass after preparation for hurt, assault or wrongful restraint---Appreciation of evidence---Power of court to record statement and confession---Judicial confession---Value---Delay in sending recovered weapon and empties to the Laboratory---Motive, absence of---Effect---Accused was alleged to have murdered his cousin, the daughter of the complainant, by inflicting firearm injuries---Trial court convicted the accused both on basis of his judicial confession as well as the prosecution evidence and sentenced him to death and imprisonment for seven years along with payment of compensation---Accused contended that awarding the death sentence as qisas was not justified as no proof for the same was available---Complainant had not only reported the incident to the police within a short span of thirty-five minutes charging the accused by name but also citing the names of the eyewitnesses---Statement of prosecution witnesses were consistent and supportive to each other on all material aspects of the case---Medical evidence had fully corroborated the complainant's version---Recovery of crime weapon along with empties had been witnessed by an independent person of the locality, who had also appeared as prosecution witness and supported the factum of recovery---Forensic Science Laboratory report was positive with regard to the recovered pistol and empties---Although no eyewitness was available as to the act of firing made by the accused at the deceased, but statements of the prosecution witnesses, coupled with the recoveries of the crime empties from the spot and the crime weapon on pointation of the accused, had fully supported the prosecution case and connected the accused with commission of the offences---Delay per se in sending the crime weapon and crime empties to the Laboratory would not overweigh the ocular evidence, which had been found in line with, and supported, by the medical evidence---Presence of the accused at the spot just after the occurrence duly armed with pistol, where the accused was lying in the pool of blood, undoubtedly showed his clear nexus with the murder of the deceased---Accused himself had moved an application to the Trial Court for pleading guilty, and thereafter, on conclusion of the prosecution evidence, he had recorded his statement under S. 342, Cr.P.C., whereby he had confessed his guilt---Statement of the accused recorded under S. 342, Cr.P.C. was a confession---High Court observed that statement of an accused recorded under S.342, Cr.P.C. was more reliable than statement under S. 164, Cr.P.C.---Accused had admitted the report lodged by the complainant as correct---Trial court had subjected the accused to medical examination regarding his confessional statement, which was positive---According to S. 304(1)(a), P.P.C., when an accused made voluntary and true confession as to commission of the offence before the court, then under S. 302(a), P.P.C., the sentence of committing qatl-i-amd would be death as Qisas---Weakness, insufficiency or even absence of any motive in murder cases could not be considered as a mitigating circumstance for awarding lesser punishment to an accused---Prosecution had successfully proved its case beyond shadow of doubt---Appeal was dismissed accordingly.

2015 SCMR 423; 2010 SCMR 1752 and 2003 SCMR 747 rel.

Zulfiqar Ahmad for Appellant.

Abdur Razzaq Chughtai for the Complainant.

Additional A.G. for the State.

Date of hearing: 25th November, 2015.

2016 M L D 1058

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

MUHAMMAD YASEEN KALWAR---Petitioner

Versus

ALAMZEB and others---Respondents

W.P. No.911-A of 2014, decided on 1st October, 2015.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), S.561-A---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Prevention of illegal possession of property---Respective claims and counter claims of the parties had been enumerated with the only aim to demonstrate that there were factual controversies between the parties giving rise to several issues relating to the lease agreement; and the rights of the parties thereunder---Main controversy of possession or otherwise of the respondent; and his dispossession therefrom, could not be resolved either through constitutional petition or without recording pro and contra evidence---Impugned order being interim in nature, the framing of charge was by no means proof of guilt of the petitioner; rather same provided the opportunity to put forth if the case, besides proving the falsehood of the complainant, and avail the chance of proceeding against the complainant under the relevant provision of law---Remedies available to the petitioner under the law, would make the constitutional petition, not maintainable.

2009 SCMR 1066; 2012 SCMR 229; PLD 2010 SC 725; 2010 SCMR 1254; 2012 MLD 1652; PLD 2011 Kar. 624; PLD 2013 Isl. 121 and PLD 2011 Pesh. 86 ref.

Raja Rizwan Abbasi for Petitioner.

Muhammad Ali Jadoon for Respondent No.1

Addl: A.G. for the State.

Date of hearing: 1st October, 2015.

2016 M L D 1072

[Peshawar]

Before Qaiser Rashid Khan, J

ASMAT ALI alias MATTAY---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc No.1691-P of 2015, decided on 19th October, 2015.

Criminal Procedure Code (V of 1898) ---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment and common intention---Bail, grant of---Nothing was on record to connect the accused with the commission of offence except through the allegations made in the FIR---Investigating agency had yet to ascertain the involvement of accused having abetted the offence---Present situation called for further probe into the matter---Accused was entitled for concession of bail---Bail was allowed to the accused subject to furnishing bail bonds in the sum of Rs. 1,00,000/- (one lac) with two local, reliable and men of means sureties each in the like amount to the satisfaction of Trial Court.

Ishtiaq Ibrahim for Petitioner.

Syed Sikandar Hayat Shah, AAG for the State.

Imtiaz-ur-Rehman for the Complainant.

Date of hearing: 19th October, 2015.

2016 M L D 1091

[Peshawar]

Before Qalandar Ali Khan, J

HABIB-UR-REHMAN and others---Petitioners

Versus

The STATE and others---Respondents

Cr.M. No.399-A of 2015, decided on 2nd September, 2015.

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

----S. 497---Penal Code (XLV of 1860), Ss.419, 420, 406 & 34---Criminal breach of trust, cheating by personation, cheating and dishonestly including delivery of property, common intention---Bail, refusal of---Contractual liability---X-ray machine was found missing from a Medical Centre---By virtue of an agreement accused party was responsible for smooth running of the Centre, maintenance of Laboratories, out-patient department and for overall security of equipments---Accused contended that since the department had provided a chowkidar for the Centre, accused were not responsible for the security of the Center and the agreement mentioned by the complainant was forged---Held, that despite the fact that accused disputed the execution of the agreement, but the veracity of such claim at present stage specially when the case was still under investigation would involve deep appreciation of evidence, which was not permissible at bail stage---Prima facie, reasonable grounds existed to connect the accused with the offence, therefore accused could neither take shelter under pendency of civil suit on the subject and other technicalities nor can they could claim the bail as of right in offences which were admittedly non-bailable---Bail was denied.

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

----S. 497---Bail---Offences not falling under prohibitory clause of S.497, Cr.P.C.---Scope---Even in respect of offences not falling under prohibitory clause of S.497, Cr.P.C., court could decline to admit bail if exceptional circumstances existed.

PLD 1968 SC 349; PLD 1997 SC 545; 2000 PCr.LJ 105 and 2011 PCr.LJ 852 rel.

Abdul Salam Dilazak for Petitioners.

Muhammad Naeem Abbasi, Additional Advocate General, Irshad Akhtar Khan and Naveed Ahmad Abbasi for Respondents.

Date of hearing: 2nd September, 2015.

2016 M L D 1118

[Peshawar]

Before Muhammad Ghazanfer Khan, J

MUHAMMAD JAMIL KHAN---Appellant

Versus

IRFAN ELLAHI---Respondent

R.F.A. No.66-D of 2011, decided on 3rd June, 2015.

(a) Malicious prosecution---

----Suit for damages---Plaintiff filed suit for damages for loss of reputation, profession causing mental torture and agony---Suit was dismissed by the Trial Court---Validity---Plaintiff was neither arrested nor even remained in police custody or judicial lock up---Plaintiff had not been able to substantiate his cause through any tangible evidence on record; he had not only to prove that the prosecution ended in his favour but also that same was without reasonable and probable cause---Plaintiff had also to prove any enmity, grudge, ill will, hatred or malice with the defendant---Order on the basis of which plaintiff had brought present suit was for discharge of accused and not an order for acquittal---No damages could be claimed on the basis of discharge of accused---Trial Court had properly appraised the evidence brought on record---Appeal was dismissed in circumstances.

(b) Malicious prosecution---

----Suit for damages---Requirements---Plaintiff had not only to prove that the prosecution ended in his favour but also that same was without reasonable and probable cause---Plaintiff had also to prove any enmity, grudge, ill will, hatred or malice with the defendant.

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

----S. 107---Security for keeping peace---Scope---Proceedings under S.107, Cr. P. C were preventive in nature and not punitive.

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

----S. 249-A---"Acquittal" and "discharge"---Distinction.

Saleemullah Khan Ranazai for Appellant.

Haji Muhammad Shakil for Respondent.

Date of hearing: 3rd June, 2015.

2016 M L D 1139

[Peshawar]

Before Lal Jan Khattak, J

MOHABAT KHAN---Petitioner

Versus

MUHAMMAD FAREED---Respondent

C.R. No.133-A of 2007, decided on 23rd November, 2015.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 100---Suit for declaration---Ghair Dakhilkar---Status---Thirty years old document---Presumption---Sale deed---Proof---Procedure---Contention of defendants was that they had purchased the suit property---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Plaintiff was owner in possession of suit property---Possession of defendants on the suit property was being Ghair Dakhilkar which could not confer any right or title---Thirty years old document had presumption of correctness and due execution was attached to it but court was not bound to presume every document which was thirty years old as genuine and duly executed---Mere passage of period of thirty years or more alone would not confer any genuineness to a document---Producer of said document had to prove that the transaction embodied in the deed was genuine one---Defendants had not tried to incorporate the sale deed in the Jamabandi pertaining to the suit property---Non-registration and non-incorporation of sale deed in the revenue record had cast doubt on its genuineness and authenticity---Sale deed in favour of defendants had not been proved in accordance with law---Scribe of sale deed was dead but defendants could have produced legal heirs of scribe and of the marginal witnesses to verify their signatures on the deed---Defendants had failed to produce register of concerned stamp vendor to show that the stamp paper was issued in their favour on which transaction was scribed---Non-production of stamp vendor's register had prejudiced the case of defendants---Plaintiff had established his case through reliable and convincing evidence but defendants had failed to prove their stance put forth by them in the written statement and evidence---Trial Court had rightly appreciated and scrutinized the evidence available on record---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed in circumstances.

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

----Art. 100---Thirty years old document---Presumption---Scope---Thirty years old document had presumption of correctness and due execution would be attached to such documents.

Sajjad Ahmad Abbasi for Petitioner.

M. Ayub Khan for Respondent.

Date of hearing: 23rd November, 2015.

2016 M L D 1174

[Peshawar]

Before Nisar Hussain Khan and Muhammad Younis Thaheem, JJ

Dr. JEHANZEB KHAN---Petitioner

Versus

ANTI-CORRUPTION NOSHERA through Circle Officer and another---Respondents

W.P. No.1584-P of 2015, decided on 17th December, 2015.

Khyber Pakhtunkhwa Anti-Corruption Establishment Ordinance (XX of 1961)---

----S.3---Criminal misconduct---Inquiry proceedings before Anti-Corruption Establishment not subject to interference by High Court---Anti-Corruption Establishment, after open inquiry, initiated investigation against the petitioner for unauthorized cutting and selling of trees and depositing only part of the total sale proceeds---Validity---Findings of the audit report in the open inquiry showed that trees in question had been cut and sold by the petitioner without prior approval from the competent authority and after constant pressure had deposited partial sale amount in the Government Exchequer, and that the petitioner also had other immoral activities in the hospital---Investigation in connection with the open inquiry was already under way; therefore, High Court could not interfere in the inquiry proceedings---Constitutional petition was dismissed in circumstances.

Amir Nawaz Khan for Petitioner.

Rab Nawaz Khan, A.A.G. for Respondent.

Date of hearing: 17th December, 2015.

2016 M L D 1189

[Peshawar]

Before Abdul Latif Khan, J

MUHAMMAD KHURSHAD---Appellant

Versus

The STATE through Additional Advocate-General and another---Respondents

Criminal Appeal No.33-M of 2013, decided on 8th December, 2014.

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

----Ss. 324 & 337-D---Pakistan Arms Ordinance (XX of 1965), S.13---Attempt to commit qatl-i-amd, causing Jurh, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Material contradictions and improvements were noticed in the statements of complainant and other star witnesses, who allegedly were present at the spot at the relevant time---Presence of said persons at the spot remained unproved which had created doubt in the mode and manner of the occurrence as described by the complainant---Contradictions in the statements of the marginal witnesses to recovery memo and Investigating Officer, had made the recovery of alleged weapon of offence doubtful---Report, of Forensic Science Laboratory, was also not supportive to the recovery of blood stained knife---No injury sheet was available on file, on the basis of which medico-legal report had been prepared, which made the medico-legal report doubtful---Neither Electric motor due to which the incident took place, had been taken into possession by the Investigating Officer nor the "Chashma" had been shown in the site plan which belied the version of complainant---Nothing was on record to suggest that the accused was hardened or dangerous criminal, having previous history of involvement in such like cases---Accused had also made no confession before the competent court which could connect him with the commission of alleged occurrence---Material contradictions as well as loopholes in the prosecution evidence, created doubt in a prudent mind about involvement of the accused in the commission of offence, the benefit of which would go to accused---Even a single doubt, if found reasonable, would entitle the accused to earn acquittal---Prosecution having failed to prove its case against accused beyond any reasonable shadow of doubt, the judgment of conviction and sentence passed by the Trial Court, which was based on misreading, non-reading of evidence available on record, and was against the law and the facts, was set aside and the accused was acquitted of the charges levelled against him---Accused being on bail, his bail bonds stood cancelled, and the sureties were discharged from liabilities of bail bond, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Entitlement---Single doubt, if found reasonable, would entitle accused to earn acquittal; and it was not necessary that the defence should furnish bundle of doubts for winning the acquittal of accused.

Sajjad Anwar for Appellant.

Additional Advocate General for the State.

Date of hearing: 8th December, 2014.

2016 M L D 1203

[Peshawar]

Before Abdul Latif Khan, J

IRFAN JAMEEL ESHAI---Petitioner

Versus

Haji BANARAS KHAN and others---Respondents

C.R. No.349-A of 2014, decided on 30th March, 2015.

Civil Procedure Code (V of 1908)---

----S.12(2)---Application under S.12(2), C.P.C.---Scope---Defendant in a civil suit had obtained a consent decree and applied for arraying himself as party to the suit filed by plaintiff---Suit was decreed in favour of plaintiff---Plaintiff filed application under S. 12(2), C.P.C. to set aside consent decree obtained by defendant---Validity---Application under S. 12(2) of C.P.C. filed by plaintiff was misconceived as there was no need to file such application for the reason that same cause had been decided between same parties by competent court---If decree passed in favour of plaintiff remained in field, there was nothing to be adjudicated in subsequent proceedings by court---Plaintiff could not file a suit or an application under S. 12(2), C.P.C., when parties were same and subject matter almost same as that would amount to double jeopardy.

Date of hearing: 30th March, 2015.

2016 M L D 1267

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

NADEEM KHAN and others---Petitioners

Versus

NOUREEN SULTAN and others---Respondents

C.R. No.358-A of 2014, decided on 30th October, 2014.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Transfer of Property Act (IV of 1882), S. 41---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Production of additional evidence in appellate court---Scope---Sale mutation---Requirements---Contention of plaintiff was that she neither appeared before the Revenue officer nor received the consideration of alleged sale amount---Defendants claimed that they had purchased the suit property from the plaintiff---Trial Court dismissed the suit on the ground that defendants had not produced the attesting witness of impugned mutation---Defendant moved application before the Appellate Court for production of additional evidence of Revenue Officer who attested the impugned mutation but same was dismissed---Validity---Appellate Court had power to allow production of additional evidence whether oral or documentary, if same was refused by the Trial Court, which ought to have been admitted---Defendants were bound to produce evidence proving the presence of plaintiff and her signatures on the sale mutation---Testimony of Revenue Officer was essential for proper adjudication of the present case---Defendants had only sought relief of allowing them to call the Revenue Officer as a witness---Impugned order passed by the Appellate Court was set aside and application for production of additional evidence was allowed---Revision was accepted accordingly.

2009 SCMR 221 and PLD 2008 SC 564 distinguished.

Qazi Ghulam Rauf for Petitioner.

Sher Afzal Khan Jadoon for Respondent.

Date of hearing: 30th October, 2015.

2016 M L D 1319

[Peshawar]

Before Waqar Ahmad Seth, J

GUL BADAN and 19 others---Petitioners

Versus

RASHEED-UR-REHMAN and others---Respondents

C.R. No.387-P of 2014, decided on 14th March, 2016.

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

----S.60---Limitation Act (IX of 1908), Art. 148---Mortgage---Redemption---Suit for redemption of mortgaged property---Limitation---Contention of defendants was that they were owners of suit property---Suit was dismissed being time barred---Validity---Mortgagors were in possession of the suit property---Property once mortgaged could never remain mortgaged for an indefinite period---Once a mortgage always a mortgage and mortgagee could not step in the shoes of owners by lapse of time---Alleged mortgage was not a mortgage by conditional sale---Even if there was a clause in the mortgage deed to the effect that mortgagee would become owner in possession of property on non-payment of mortgage money on expiry of any stipulated period even then the possession of mortgagee over the said property would remain as mortgagee and would not stand converted in possession as owner thereof---Lawful owner could not be deprived of his right merely by efflux of time nor a person enjoying possession for a long time could be awarded with premium of ownership---Mortgagors, in the present case, had simply prayed for closure by paying the redemption money to the mortgagees and correction of the revenue record thereof---Mortgagee could not take plea of prescription of a mortgaged property when he had no possession of the same---Suit could not be dismissed simply that the land was not redeemed within sixty years---Mortgagee even otherwise could not bring a suit of ownership on the plea of prescription---Both the courts below had misread the revenue record and settled law on the subject---Impugned judgments and decrees passed by both the courts below were set aside and suit was decreed as prayed for subject to payment of mortgage amount within one month---Revision was allowed in circumstances.

Ayub Khan v. Haqdad Khan and 9 others PLD 1979 Pesh. 87; Abdul Haq v. Ali Akbar and 12 others 1998 CLC 129; PLD 2014 Lah. 26 and Bilawar Khan v. Aamir Sabar Rahman and PLD 2013 Pesh. 38 rel.

Maazullah Barkandi for Petitioners.

Muhammad Rafeer for Respondent.

Date of hearing: 14th March, 2016.

2016 M L D 1341

[Peshawar]

Before Rooh ul Amin Khan, J

Messrs PHARMATEC PAKISTAN (PVT.) LTD. through Managing Director and 3 others---Appellant

Versus

AMJID ALI SHAH ---Respondent

Regular First Appeal No. 174 of 2010, decided on 8th June, 2015.

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

----O. XXIX, R. 1---Proceeding by company or corporation---Resolution of Board of Directors of company---Scope---Proceedings on behalf of corporation or company could not be filed by a person unless duly authorized by Board of Directors of the company through a proper drafted resolution passed in meeting of Board of Directors duly convened for the said purpose---Signatory of vakalatnama, in the present case, was not competent to file appeal on behalf of company---Appeal had been filed by the company through its Managing Director but same had not been signed by any of the appellants---Present appeal had been signed by the counsel of the appellant---Appellants were not authorized by resolution of Board of Directors of the company to file present appeal---Memorandum of appeal was not signed and verified by the Chief Executive or legally authorized person---Any pleading might be signed and verified on behalf of corporation in a suit by or against the same by Secretary or Director or other principal officer of the said corporation who was able to depose the facts of the case---Alleged resolution drafted at the letter pad of the company might not be termed as valid resolution of Board of Directors of the company and at the most could be treated as an authority letter---Alleged resolution was also silent about referral to any meeting of the Board---Appellant had failed to produce an extract from the Minutes Book of the company which was of great importance---Indecipherable, un-cleared and scanty letter without referring to a particular meeting being not supported by minutes of meeting of Board of Directors might not be given any sanctity and could not be treated as substitute of resolution of the Board---Proceedings on behalf of company by a person not authorized by Board of Directors in a duly convened meeting would be nullity in the eye of law---When law required the doing of anything in a particular manner, same must be done in that manners only and all other manners of doing such an act could not be resorted---Present appeal having been filed by an incompetent person, was not maintainable---Appeal was dismissed in circumstances.

Khan Iftikhar Hussain Khan of Mamdon v. Messrs Ghulam Nabi Corporation Ltd. Lahore PLD 1971 SC 550; Messrs Razo (Pvt.) Ltd. v. Director Karachi City Region Employees' Old Age Benefit Institution and others 2005 CLD 1208 and Hasnain Cotex Ltd. and 2 others v. Jasim Khan 2012 YLR 2743 rel.

(b) Administration of justice---

----When law required the doing of anything in a particular manner, same must be done in that manner only and all other manners of doing such an act could not be resorted.

Faridullah Khan Kundi for Appellant.

Muhammad Ali and Attiq-ur-Rehman for Respondent.

Date of hearing: 8th June, 2015.

2016 M L D 1363

[Peshawar]

Before Abdul Latif Khan and Syed Afsar Shah, JJ

The STATE through Advocate-General---Appellant

Versus

BEHRAM KHAN and others---Respondents

Cr.A. No.37-P of 2014, decided on 27th January, 2015.

Penal Code (XLV of 1860)---

----S. 365-A---Criminal Procedure Code (V of 1898), S.417(2-A)---Abduction for ransom---Appeal against acquittal---Reappraisal of evidence---Private Call Detail Record (CDR) produced by the complainant regarding tracing of call data of accused, on the basis of which the FIR, was registered, had not been placed on file---Said CDR, had no signature of issuing authority, nor verified by the concerned authorities---Recovery of alleged abductee, was also doubtful---Abduction from busy place of transport adda at noon time by four persons, was not appealable to a prudent mind---Statements of abductee under S.164, Cr.P.C., and before Trial Court were also contradictory to each other---Data in respect of cell numbers of complainant and alleged abductee, had also not been collected by Investigating Officer, which could show that they were called by the abductors on that numbers---Recovery memo in respect of mobile phones recovered from possession of accused persons, at the time of their arrest, had not been prepared---Court witness, also admitted that he conducted raid on the premises, without search warrants and that he could not conduct raid at a house without a warrant or FIR which meant that raid was conducted illegally---Supplementary statement of alleged abductee under S.164, Cr.P.C. was recorded after delay of six days, due to which consultation and deliberation of complainant party for involving accused, could not be ruled out---Identification parade had been conducted after delay of 15 days---Said identification, was also not in accordance with law, as joint identification was conducted, which was not the requirement of law, because the identification of each accused was to be conducted separately which had created dent in the prosecution case---Accused persons, had not made any confession before the competent court, nor alleged abductee had been recovered from immediate possession of accused persons---Prosecution had failed to prove its case against accused persons beyond any shadow of doubt---Single circumstance was sufficient for creating doubt, and not so many circumstances, were required for creating doubt, the benefit of which must go to accused---After earning acquittal from the Trial Court, double presumption of innocence was acquired by accused---Court while sitting in appeal against acquittal, must be slow in reversing the judgment of acquittal, unless it was found to be arbitrary, fanciful and capricious on the face of it, or was the result of bare misreading or non-reading of any material evidence---In the present case, no such infirmity had been found in the impugned judgment---Trial Court had rightly acquitted accused persons, by extending them benefit of doubt after proper appraisal of evidence for which no exception could be taken.

Syed Sikandar Hayat Shah, AAG for the State.

Hussain Ali for Respondent.

Date of hearing: 27th January, 2015.

2016 M L D 1394

[Peshawar (Bannu Bench)]

Before Muhammad Daud Khan and Syed Afsar Shah, JJ

AJMAL KHAN---Petitioner

Versus

Mst. GUL ZAHIRA BIBI through Legal heirs and 4 others---Respondents

Writ Petition No.326-B of 2013, decided on 11th September, 2014.

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

----O.VII, R.11 & O. II, R.2---Specific Relief Act (I of 1877), Ss. 42, 8 & 54---Khyber Pukhtunkhwa Pre-emption Act (X of 1987), S.13---Rejection of plaint---Cause of action---Determination---Application for rejection of plaint on ground of absence of cause of action---Plaintiff filed suit for declaration, possession through pre-emption and permanent injunction claiming that defendant purchased suit land, and, on the same day, she gifted the same to other defendants/her sons through entry in mutation with ulterior motive to deprive plaintiff from his right of pre-emption regarding suit land and that said gift was fraudulent, collusive, mala fide and ineffective upon right of plaintiff---Defendants filed application under O.VII, R. 11, C.P.C. for rejection of plaint which was allowed by revisional court--Validity---Mutations in name of defendant and her sons/other defendants were attested at same time through serial numbers next to each other, which created apprehension and hurdle for plaintiff in exercise of his right of pre-emption---Plaintiff in his plaint had questioned said act of defendant along with exercising his right of pre-emption including all claims available to him at time of filing of suit in compliance of O. II, R. 2, C.P.C.---Defendants in their written statement had not objected that plaint did not disclose cause of action, instead they asserted that plaintiff had no cause of action, which had different meaning---Suit disclosed cause of action which required evidence to decide matter between parties---Issue as to validity of subsequent transfer of suit land in name of other defendants could not be resolved without providing opportunity to parties to prove their stances---Plaintiff questioned the validity of subsequent transfer and he could not be non-suited on ground that second mutation had not been pre-empted--- Rejection of plaint under O.VII, R. 11, C.P.C., after submission of written statement and framing of issues, was uncalled for---Revisional court had non-suited plaintiff summarily without considering record or allowing parties to lead their evidence---High Court set aside impugned order and remanded the case to Trial Court with direction of providing opportunity to parties to produce their evidence for fresh decision---Constitutional petition was allowed, accordingly.

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

----O. VII, R. 11 & O. II, R. 2---Rejection of plaint---Cause of action, objection as to---Defendants in their written statement had not objected that plaint did not disclose cause of action; instead they asserted that plaintiff had no cause of action, which had different meaning---In the present case, written statement was filed, the issues generated by the divergent pleadings had been framed in such circumstances rejection of plaint under O.VII, R.11, C.P.C. was uncalled for.

Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR 459; Muhammad Zaman v. Shah Wazir Khan PLD 2002 Pesh. 45; Muhammad Altaf and others v. Abdur Rehman Khan and others 2001 SCMR 953 and Aziz-ur-Rehman v. Maulana Muhammad Zahir Shah and 11 others 2008 CLC 1411 rel.

Sheikh Iftikhar ul Haq for Petitioner.

M. Younas Ali Wazir for Respondent.

Date of hearing: 11th September, 2014.

2016 M L D 1430

[Peshawar]

Before Abdul Latif Khan and Syed Afsar Shah, JJ

Mst. SAIMA TABBASAM---Petitioner

Versus

Syed SHER SHAH and 3 others---Respondents

W.P. No.3383-P of 2012, decided on 21st January, 2015.

Family Courts Act (XXXV of 1964)---

----S. 13(4)---Civil Procedure Code (V of 1908), O. XXI, R. 32---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for restitution of conjugal rights---Execution of decree for restitution of conjugal rights---Essentials---Direction of Executing Court for personal appearance of wife-judgment-debtor---Scope---Executing Court passed direction for personal appearance of judgment-debtor-wife in execution petition---Validity---Decree for restitution of conjugal rights might be enforced by attachment of property of wife---No mode and manner for execution of decree for conjugal rights had been provided in S. 13(4) of Family Courts Act, 1964---Decree passed by the Family Court had to be executed either by the court which had passed the same or by any other civil court as directed by the District Judge through a special or general order---Executing Court had to follow the procedure contained in Civil Procedure Code, 1908---Decree for restitution of conjugal rights would become inapplicable of execution if wife had proved non-payment of dower on demand---Only attachment of property of wife could be made in execution of a decree for restitution of conjugal rights---Wife could not be compelled to go and live with her husband in a decree for restitution of conjugal rights---Executing Court had committed an error by giving direction for personal appearance of wife in execution of decree for restitution of conjugal rights---Impugned order passed by the Executing Court for personal appearance of wife was set aside---Constitutional petition was accepted in circumstances.

Khalid Mahmood for Petitioner.

M. Alamzeb Khan for Respondents.

Date of hearing: 21st January, 2015.

2016 M L D 1450

[Peshawar]

Before Qaiser Rashid Khan, J

IMRAN KHAN ORAKZAI---Petitioner

Versus

The STATE and another---Respondents

B.A. No.356-P of 2016, decided on 22nd March, 2016.

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

----S. 489-F---Dishonestly issuing cheque---Ingredients of offence---To constitute offence under S.489-F, P.P.C., ingredients of offence were that cheque was issued with dishonest intention; towards repayment of a loan or fulfilment of an obligation and cheque was dishonoured on presentation.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing cheque---Bail, refusal of---Cheque for a huge amount was issued by accused with the full knowledge that sufficient amount was not available in his account to honour the cheque---Prima facie, element of dishonesty was established on the part of accused---Said amount was advanced to accused as loan for some business---Cheque in question was issued by accused towards the repayment or for that matter, the fulfilment of his obligation towards the complainant; and that cheque was dishonoured---Provisions of S.489-F, P.P.C., were squarely attracted in the case---Complainant, could not be bound down to seek his remedy by approaching the civil court, through a recovery suit, when there was no legal embargo on him to press into service the penal provisions against delinquent, through registration of an FIR---Mere fact that the offence for which accused was charged, did not attract the prohibitory limb of S.497, Cr.P.C., could not per se hold him entitled to the concession of bail---Grant of bail, in such like cases, was not a rule of universal application; case merited decision on the basis of its own facts and circumstances---Accused, prima facie, being linked with commission of the offence, was held disentitled to the concession of bail---Bail petition, was dismissed, in circumstances.

Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 and Shameel Ahmed v. The State 2009 SCMR 174 rel.

Muhammad Inam Khan Yousafzai for Petitioners.

Syed Sikandar Hayat Shah, A.A.G. for the State.

Zia-ur-Rehman Tajik for the Complainant.

Date of hearing: 22nd March, 2016.

2016 M L D 1461

[Peshawar Abbottabad Bench]

Before Qalandar Ali Khan, J

NAJAF NAWAZ KHAN---Petitioner

Versus

The STATE---Respondent

Cr.R. No.37-A of 2015, decided on 1st December, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 120-B & 109---Criminal Procedure Code (V of 1898), S.265-F(7)---Qatl-i-amd, criminal conspiracy, abetment---Application for issuance of process for compelling attendance of witness for examination---Dismissal of application---Application of petitioner/accused for summoning Police Officials along with record of case, was dismissed by the Trial Court---Validity---Application was filed by petitioner after his statement was recorded under S.342, Cr.P.C., wherein he declined to be examined as his own witness---Law, no doubt, had empowered the court to issue process on the request of the defence for attendance; and examination of defence evidence, but the power in that regard had been made subject to the discretion of the court to seek; whether the application was aimed at advancing the ends of justice; or moved only for vexation or delay; defeating the ends of justice---In the present case, the design of delaying conclusion of trial, despite clear direction for trial of the case on daily basis, was evident from the successive order sheets in the case by the Trial Court, showing delay in the conclusion of trial, mostly due to the conduct of the petitioner/accused---Record of accused had disentitled him for indulgence of the court---Request of accused was rightly turned down by the Trial Court---Trial Court, correctly exercised the authority/powers vested in it by the law---Impugned order, did not call for interference by High Court, in circumstances.

2007 PCr.LJ 24; PLD 2011 Federal Shariat Court 114 and 2015 YLR 782 and 2015 YLR 1776 ref.

Sardar Abdul Rauf and Hafiz Kala Khan for Appellants.

Muhammad Naeem Abbasi, A.A.G. for the State.

Masud Azhar for the Complainant.

Date of hearing: 1st December, 2015.

2016 M L D 1479

[Peshawar]

Before Qalandar Ali Khan, J

JIBRAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.563 of 2014, decided on 22nd December, 2014.

Penal Code (XLV of 1860)---

----S. 377---Sodomy---Appreciation of evidence---compromise in non-compoundable offence---Effect---Delay of about 2 hours in lodging FIR, could not be regarded as inordinate, while keeping in view the nature of the offence and circumstances surrounding commission/such offence together with stigma of that despicable act carried by the victim of the offence for rest of his life---Consultation with elders of the family by victim facing trauma of unnatural offence; would not be fatal to the case of prosecution by any stretch of imagination---In such like cases, only the statement of victim of the crime, coupled with the medical evidence report confirming commission of sodomy/unnatural offence, was sufficient to make out a case against accused---Statement on oath of the complainant, was fully corroborated by the prosecution witness i.e. res gestae witnesses who reached the spot immediately after commission of offence and narrated facts, which undoubtedly, supported version of the prosecution---No proof with regard to ill-will or malice on the part of complainant or prosecution was available---When statements on oath of the complainant and his brother, were coherent and confidence inspiring and received corroboration from the medical report showing commission of unnatural offence (sodomy) and nothing was on record to establish innocence of the accused, Trial Court was justified in brushing aside compromise, allegedly arrived at between the parties in non-compoundable offence---Trial Court, correctly found accused, guilty of the charge under S.377, P.P.C. and convicted accused thereunder to imprisonment for 5 years R.I., instead of life imprisonment---Trial Court having already taken a lenient view in the matter of sentence, no occasion existed to interfere with the elaborate judgment of the Trial Court, based on proper appraisal of evidence in the case---Conviction sentence awarded to accused by the Trial Court, were maintained, in circumstances.

Ghulam Ali v the State and another 1997 SCMR 1411; Muhammad Akram v. The State 1995 MLD 1826 and Mumtaz Ali v. the State 2013 YLR 1109 ref.

Zamir Muhammad Khan for Appellant.

Syed Sikandar Hayat Shah, A.A.G. for Respondent.

Date of hearing: 22nd December, 2014.

2016 M L D 1532

[Peshawar]

Before Abdul Latif Khan, J

KHAIR MUHAMMAD and 4 others---Petitioners

Versus

SULTAN MUHAMMAD and 11 others---Respondents

C.R. No.893 of 2003, decided on 26th February, 2015.

(a) Islamic Law---

----Inheritance---Claim of plaintiff was not supported by confidence inspiring evidence---No sufficient evidence was on record that defendant was son of the deceased---Best evidence had been withheld by the defendant and same would lead adverse inference against him---Court might presume a particular inference with regard to fact or evidence until disproved---None of the parties had proved their claim to the legacy of the deceased which would devolve on the legal heirs in accordance with law.

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

----Art. 128---Birth during marriage---Scope---Child born during the continuance of valid marriage would be the legitimate child of the spouses.

Muhammad Shoib Khan for Petitioner.

Fayaz Chamkani, Tariq Afridi and Haziq Ali Shah for Respondent.

Date of hearing: 26th February, 2015.

2016 M L D 1546

[Peshawar] (Bannu Bench)]

Before Muhammad Younis Thaheem, J

FEROZ KHAN---Petitioner

Versus

Mst. MALIK ZARO---Respondent

Civil Revision Petition No.4 of 2012, decided on 18th August, 2015.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements---Non-mentioning of date of performance of Talb-i-Ishhad in the plaint---Effect---Witnesses being not truthful---Scope---Plaintiff had mentioned the details of date, time and place of performance of Talb-i-Muwathibat in her plaint but date of notice of Talb-i-Ishhad had not been disclosed therein---Plaintiff was bound to mention all the details with full particulars i.e. name of informer, date, time and place of performance of Talb-i-Muwathibat as well as of Talb-i-Ishhad in the plaint so that same might be proved during the trial---If any of such detail was missing then same would be fatal to the very foundation of the case---Plaintiff was bound to prove such details also through cogent and trustworthy evidence before the court---Plaintiff had failed to prove the performance of Talb-i-Muwathibat as well as Talb-i-Ishhad in the present case---Plaintiff and her witnesses were not truthful with regard to refusal on the part of defendant to accept her claim for purchase of suit property---Performance of Talb-i-Muwathibat, Talb-i-Ishhad and then superior right of pre-emption for successful exercise of right of pre-emption in respective chronological order was essential---Any deficiency in such legal requirements would render a pre-emption suit liable to an outright dismissal---Trial Court had rightly dismissed the suit by correctly appreciating the evidence---Appellate Court had committed irregularity while decreeing the suit of plaintiff---Impugned judgment passed by the Appellate Court was set aside and that of Trial Court was maintained---Revision was allowed in circumstances.

Mian Pir Muhammad and others v. Faqir Muhammad through L.Rs. PLD 2007 SC 302; Dilbar Khan v. Muhammad Ashraf PLD 2013 SC 171 and Ahmad Hassan v. Muhammad Aslam 2007 SCMR 962 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

---S. 13---Tabls, performance of Requirements---Performance of Talb-i-Muwathibat, Talb-i-Ishhad and then superior right of pre-emption for successful exercise of right of pre-emption in respective chronological order was essential.

(c) Pleadings---

----Contents of plaint could not be considered as evidence.

Bashir-ur-Rehman Burki and Riaz Muhammad Khan for Appellants.

Malik Zaro and H.M. Hanif for Respondent.

Date of hearing: 18th August, 2015.

2016 M L D 1561

[Peshawar]

Before Waqar Ahmed Seth and Musarrat Hilalli, JJ

Dr. MUHAMMAD UL-HASSAN and another---Petitioner

Versus

CHIEF EXECUTIVE LADY READING HOSPITAL, PESHAWAR and 4 others-- Respondents

Writ Petition No.2926-P of 2012, decided on 11th November, 2015.

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

----S. 36 (2)---Pakistan Medical and Dental Council Regulations, 2011, Regln. 19---Post of Assistant Professor of Cardiology---Basic qualification being MBBS or equivalent qualification recognized by the Pakistan Medical and Dental Council and FCPS/MS/MD in the respective subject or equivalent qualification in the specialty recognized by the Council with three research papers on research work of which at least two should be as principal author in the capacity of Assistant Professor in the relevant specialty published in a standard medical journal---Appointment of a person having FCPS in General Medicine---Validity---Basic requirement of postgraduate qualification in the field of Cardiology was fellowship/FCPS in Cardiology---Candidate with postgraduate qualification in the relevant specialty could not be ignored merely on the basis of experience in that field---Experience could not be equated with the basic qualification---Postgraduate/FCPS holder in General Medicine could not be equated with a postgraduate/FCPS in Cardiology for the purpose of appointment/promotion to the post of Associate Professor Cardiology---Respondent was not having postgraduate qualification in the field of Cardiology and he was not entitled, suitable and fit for appointment/promotion against the post in question---Respondent's experience in the Cardiology department could not be given overriding effect over the basic qualification and requirement---Impugned order was set aside---Authorities were directed to consider the case of both the petitioner and any other candidate having basic qualification and experience in the relevant speciality i.e. Cardiology for the post in question within one month---Constitutional petition was allowed in circumstances.

Dr. Shah Wali Khan and others v. Government of N.W.F.P. and 3 others 1997 SCMR 1574 rel.

Ijaz Anwar and Zartaj Anwar for Petitioners.

Shakeel Ahmad, Babar Khan Yousafzai and Arshad Ahmad Khan, A.A.G. for Respondents.

Date of hearing: 11th November, 2015.

2016 M L D 1590

[Peshawar (Bannu Bench)]

Before Ikramullah Khan, J

AJMAL KHAN---Petitioner

Versus

MIRU and another---Respondents

C.R. No.58-B of 2011, decided on 11th November, 2015.

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

----O. XXXIV, R. 7(2)---Mortgage---Preliminary decree in suit for redemption---Non-deposit of mortgage amount---Effect---Usufructuary mortgage---Final decree---Scope---Trial Court decreed the suit subject to deposit of mortgage amount within stipulated period---Plaintiff failed to deposit the said amount within the time fixed by the Trial Court and application was moved for extension of time which was dismissed concurrently---Validity---Court seized with the matter with regard to passing of final decree could extend time fixed for payment of amount fixed or decreed or of the amount adjudged due with regard to subsequent costs, charges, expenses and interests on good cause shown and upon such terms to be fixed by the said court---Mortgagee-respondent had not applied to the court for final decree---No decree could be passed in favour of respondent being usufructuary mortgagee---Right to redeem could not be extinguished till the final decree was passed---Impugned judgments passed by the courts below were set aside and matter was remanded for proceeding in accordance with law---Applicant might be allowed to deposit the required mortgage money within a reasonable time---Revision was allowed in circumstances.

M.d Azim and others v. M.S. Sultan and others AIR (33) 1946 Patna 99 rel.

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

----O. XXXIV, R. 7(1)(c)(ii)---Usufructuary mortgage---Final decree---Scope---Mortgagee against whom a preliminary decree had been passed could apply for final decree for sale or foreclosure if the decree holder/mortgagor defaulted in payment of mortgage money---Decree for sale could be passed except in case of mortgage by conditional sale, a usufructuary mortgage or an anomalous mortgage in which case a decree for foreclosure would be passed---Mortgagor in case of usufructuary mortgage would be entitled to payment at any time even after the expiry of period fixed and he could apply for final decree---Usufructuary mortgagee could not apply for a final decree on default of payment by the mortgagor.

(b) Mortgage---

----Redemption---No bar existed to bring second suit where property was not redeemed despite on earlier decree for redemption.

Babu Ahmad Din and others v. Ch. Muhammad Amin and others PLD 1954 Lah. 341 rel.

Israr-ul-Haq for Appellant.

Fazal-ul-Rehman for Respondent.

Date of hearing: 11th November, 2015.

2016 M L D 1610

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Abdul Latif Khan, J

MUNICIPAL COMMITTEE MINGORA through Chief Municipal Officer---Petitioner

Versus

NASAR KHAN and 8 others---Respondents

C.R. No.101 of 2014, decided on 29th September, 2014.

(a) Khyber Pakhtunkhwa River Protection Ordinance (III of 2002)---

----Ss. 13 & 16---Civil Procedure Code (V of 1908), O. VII, Rr. 11 & 10---Specific Relief Act (I of 1877), S. 54---Suit for permanent injunction---Bar of jurisdiction contained in S. 16, Khyber Pakhtunkhwa River Protection Ordinance, 2002---Scope---Defendants filed application for return of plaint for want of jurisdiction, but Trial Court rejected the same, and Appellate Court remanded the case for proceeding in accordance with law---Validity---Provisions of O. VII, R. 11, C.P.C. were not attracted in the present case---Trial Court had wrongly applied the said provisions despite the fact that defendants had prayed for return of plaint on the ground of lack of jurisdiction---Special court had not been notified nor the same was functional---Parties could not be left in vacuum as there was no forum for redressal of their grievances---Civil court being mother of forum had got the jurisdiction to entertain the matter---Ouster clause in any statute would only be applicable when authorities constituted therein had acted within the four corners of the statute---When authority had not acted in accordance with law, jurisdiction of civil court could not be ousted---Mere mention with regard to the constitution of special authority/court to deal with the matter in the special statute would not debar the civil court from assuming jurisdiction for redressal of the grievances of the citizen until and unless Authority/court had been constituted---Where no remedy was provided, civil court could not fold its hands and leave the fate of aggrieved person in air---Every right had remedy and jurisdiction of court could only be ousted on actual constitution of special court/Authority and not mere mention the same in the statute---No trial court existed to try the offences under Khyber Pakhtunkhwa River Protection Ordinance, 2002, jurisdiction of civil court could not be ousted---Findings of Trial Court were not based on sound reasons which had rightly been set aside by the Appellate Court---Appellate Court had decided the lis with conscious and application of independent mind---Revision was dismissed in circumstances.

(b) Interpretation of Statutes---

---Ouster clause in a statute would only be applicable when authorities constituted therein had acted within the four corners of the statute.

(c) Administration of justice---

---Every right had a remedy and jurisdiction of court could only be ousted on actual constitution of special court/Authority and not mere mention the same in the statute.

Faisal Khan for Petitioner.

Iftikhar Ahmad for Respondent.

Date of hearing: 29th September, 2014.

2016 M L D 1619

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

Mst. NAGINA GUL ALI---Appellant

Versus

TARIQ and others---Respondent

Cr.M/ B.C.A. No.118-A of 2015, decided on 27th August, 2015.

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

----S. 497(5)----Penal Code (XLV of 1860), Ss. 302 & 109---Bail, cancellation of---Qatl-i-amd, abetment---Appreciation of evidence at bail stage---Principles---False implication---Enmity or family feud, relevance of---Medical report corroborating site plan---Circumstances connecting accused with offence---Record of evidence in absence of accused---Abscondance---Accused was alleged to have killed deceased while he was on his way with his security guard and driver---Trial court allowed bail on grounds including false implication on basis of previous enmity and security guard having not acted in response to attack on deceased---Validity---Trial court had not only overlooked prima facie aspect of present case, but had also accorded undue importance to, and embarked upon deep appreciation of conduct of security guard at time of occurrence---Security guard had explained his conduct at time of occurrence in his statement under S. 161 of Cr.P.C. followed by his statement under S. 164 of Cr.P.C.---Statement of security guard had also found support from statement of driver, other witness, recorded under S. 161 of Cr.P.C.---Security guard had explained as to how he had recognized accused at time of commission of offence---Overwhelming evidence was available on record to prima facie connect accused with offence---Such as direct charge of qatl-i-amd against accused in promptly lodged FIR by father of deceased---Was unlikely on part of father of deceased to substitute innocent person for real culprit---Strong motive of previous enmity existed but considering same as ground for false implication at bail stage would be farther from reality---Medical report supporting site-plan should have been good ground for holding accused prima facie connected with commission of offence---Disclosure of name of accused to driver by security guard was not so significant and fatal dent to prosecution case so as to create serious doubts about veracity of statements of two eye witnesses at bail stage---After remaining absconder, accused had been proceeded against under sections 204, 87 and 512 of Cr.P.C.---Crime weapon had been recovered and sent to Forensic Science Laboratory along with crime empties recovered from place of occurrence---Report of Fire Arms Expert was received in affirmative---Impugned order was flawed and against law---Application for cancellation of bail was allowed accordingly.

1999 SCMR 338; 2006 SCMR 1265; 2007 SCMR 482; 1996 SCMR 172; 2004 YLR 400 and 2014 PCr.LJ 1787 rel.

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

----S. 497----Bail---Principles---Court, while allowing bail, ought to see whether there is material available on record to prima facie connect accused with commission of offence.

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

----S. 497----Bail---Appreciation of evidence---Principles---Deep appreciation would not be permissible at bail stage.

Qazi Muhammad Arshad for Appellant.

Masood ur Rehman Tanoli for the State.

Muhammad Naeem A.A.G. for the Complainant.

Date of hearing: 27th August, 2015.

2016 M L D 1633

[Peshawar (Bannu Bench)]

Before Muhammad Younis Thaheem, J

SHAH ALAM KHAN---Petitioner

Versus

MALIK ZAMAN---Respondent

Civil Revision Petition No.167-B of 2012, decided on 3rd July, 2015.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements---Non-disclosing of time of performance of Talb-i-Muwathibat by the witnesses---Effect---Contradiction in the statements of witnesses---Effect---Plaintiff was bound not only to mention date, time and place of performance of Talb-i-Muwathibat but also to prove the same through cogent and trustworthy evidence---Witnesses of plaintiff had failed to disclose time of performance of Talb-i-Muwathibat in their statements recorded before the court---Plaintiff had failed to prove performance of Talb-i-Muwathibat in accordance with S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Statements of witnesses of plaintiff were contradictory to each other with regard to place of performance of Talb-i-Muwathibat---Witnesses of plaintiff were not truthful in circumstances---After performing Talb-i-Muwathibat intending pre-emptor should have affirmed his intention not only in pleading but also had to prove such fact through producing evidence---Pre-emptor had not complied with such legal requirements in the present case---Pre-emptor had alleged in the plaint that suit property had been purchased in consideration of Rs.45,000/- but had failed to prove the same---Pre-emptor was bound to prove the sale price as alleged in the plaint by producing cogent, coherent and confidence inspiring evidence---No such evidence was produced by the pre-emptor with regard to sale price alleged in the plaint---Pre-emptor was not truthful in circumstances---Performance of Talb-i-Muwathibat, Talb-i-Ishhad and then superior right of pre-emption for successful exercise of right of pre-emption in respective chronological order was essential---Any deficiency in such requirements would render a pre-emption suit liable to an outright dismissal---Pre-emptor had failed to prove Talb-i-Muwathibat and Talb-i-Ishhad in the present case---Trial Court had rightly dismissed the suit by correctly appreciating the evidence---Appellate Court had committed illegality while decreeing the suit---Impugned judgment passed by the Appellate Court was result of mis-reading and non-reading of evidence---Judgment passed by the Appellate Court was set aside and that of Trial Court was restored and suit was dismissed---Revision was allowed in circumstances.

Ahmad Hassan v. Muhammad Aslam 2007 SCMR 962; Muhammad Zahid v. Dr. Muhammad Ali PLD 2014 SC 488; Subhanuddin and others v. Pir Ghulam PLD 2015 SC 69 and Muhammad Bakhsh v. Elahi Bakhsh and others 2003 SCMR 286 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements---Performance of Talb-i-Muwathibat, Talb-i-Ishhad and then superior right of pre-emption for successful exercise of right of pre-emption in respective chronological order was essential.

(c) Pleadings---

----Contents of plaint could not be considered as evidence.

Mukhtiar Ali Khattak for Petitioner.

Akhtar Hussain Khan for Respondent.

Date of hearing: 3rd July, 2015.

2016 M L D 1648

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

TALHA BAIG and others---Petitioners

Versus

AYUB MEDICAL COLLEGE, ABBOTTABAD and others---Respondents

Writ Petition No.113-A of 2016, decided on 9th February, 2016.

Educational institution---

----Right to appear in supplementary examination without appearing in the annual examination---Permissibility---Petitioners failed to pass the 2nd Professional MBBS both in the Annual as well as in supplementary examinations, however, on basis of interim order passed by the High Court in some other petition, they were allowed to attend the classes of the 3rd Professional MBBS---Petitioners, having passed the 2nd Professional in the next Annual examination, claimed that they should have been allowed to sit in the 3rd Professional MBBS supplementary examination for the same year---Validity---Petitioners had been allowed to attend the classes of the 3rd Professional at their own risk and cost---Petitioners, having not appeared in the annual examination of the 3rd Professional could not claim their eligibility to appear in the upcoming supplementary examination, which was ordinarily meant for those students who failed in the annual examination---Petitioners, however, would be eligible to appear in the 3rd Professional MBBS in the Annual examination---No violation of the vested right---Constitutional petition was dismissed in circumstances.

Waseem ud Din Khattak for Petitioners.

Asad Tanveer Qureshi for Respondents.

Date of hearing: 9th February, 2016.

2016 M L D 1658

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ghazanfar Khan, J

MUHAMMAD HANEEF---Appellant

Versus

MUHAMMAD SHEHZAD and others---Respondents

Criminal Appeal No.46-D of 2015, decided on 30th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 235---Penal Code (XLV of 1860), Ss. 506, 337-F(i) & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Criminal intimidation, ghayr-jaifah damihah, common intention and possession of unlicensed arms---Trial of more than one offence---Scope---Trial Court acquitted the accused involved in the case registered under Ss. 506, 337-F(i) & 34 read with S.13 of Pakistan Arms Ordinance, 1965---Contention of complainant was that no separate charge under separate heads was framed---Validity---Charge had not been framed under separate heads but allegations against the accused had properly been mentioned in the charge sheet---Non-mentioning of police station had not prejudiced the case of accused---When more offences than one had been committed by the same person, he might be charged with and tried at one trial for every such offences---If acts alleged had constituted an offence falling within two or more separate definitions of any law then the person accused of them might be charged with and tried at one trial for each of such offences---No illegality had been committed by the Trial Court in framing charge against the accused---Appeal was dismissed in circumstances.

Muhammad Imran Khan Gandapur for Appellant.

Adnan Ali, Asstt. A.G. for the State.

Salimullah Khan Ranazai for Accused/Respondents.

Date of hearing: 30th November, 2015.

2016 M L D 1672

[Peshawar]

Before Assadullah Khan Chamkani, J

WAJAHAT---Petitioner

Versus

The STATE---Respondent

Cr. Misc. B.A. No. 1843-P of 2015, decided on 18th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, grant of---Further inquiry---None was charged in initial report written by Police Officer---Dead body of the deceased remained un-identified till his post-mortem and trial---Father of the deceased, charged accused and co-accused for murder---None had come forward to furnish ocular account of the incident---Father of the deceased, was also not the eye-witness of the occurrence---Accused had not confessed his guilt before the competent court of law---Mere recovery of weapon of offence i.e. stone, without being stained with blood and a pair of chappal, without being identified, in absence of direct or circumstantial evidence, would not be sufficient to reasonably connect accused with the commission of offence; rather evidentiary value of those pieces of evidence, was yet to be determined during trial, in the light of other circumstances and evidence---Case of accused requiring further probe, accused was entitled to concession of bail---Accused was admitted to bail, in circumstances.

Abdul Halim Khattak for Petitioner.

Babar Shahzad Imran for the Complainant.

Miss Bibi Saba, State Counsel.

Date of hearing: 18th November, 2015.

2016 M L D 1690

[Peshawar]

Before Qalandar Ali Khan, J

Haji FAZAL GHAFOOR and 7 others---Petitioners

Versus

HAZIR DAD and 7 others---Respondents

Civil Revision No.750-P of 2014, decided on 6th April, 2015.

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

----Ss. 9, 42 & 52---- Illegal Dispossession Act (XI of 2005), S. 3---Suit for declaration, possession and injunction---Maintainability---Partition proceedings conducted by revenue authority---Validity and execution of order of partition---Scope---Plaintiff filed suit for declaration, possession and injunction claiming ownership of suit land on basis of partition proceedings conducted before revenue department---Defendants took plea that partition of suit land was result of fraud and collusion between plaintiffs and revenue officials---Trial court dismissed the suit, and appellate court upheld the order of dismissal on the sole ground that plaintiffs had not filed a separate execution petition to get possession of their shares before filing the present suit---Validity---In partition proceedings, both parties were deemed to be decree holders once their respective shares had been determined---Objection of defendants that plaintiffs should have filed their own separate application or execution petition for partition was of no substance---Defendants had questioned partition mutations as forged and fake in their written statement, but they had not challenged both orders of Tehsildar and partition mutations---Orders of Tehsildar in partition proceedings and partition mutations had attained finality---Land had lost its status as joint property---Revenue record showed plaintiffs to be in possession of their respective shares allotted to them under partition proceedings, and the same had not been challenged by defendants---Plaintiffs were left with no other option but to file the present suit, especially when they had been denied remedy under S.3 of Illegal Dispossession Act, 2005---Impugned judgment and decree of courts below were set aside and suit was decreed as prayed for---Revision petition was accepted in circumstances.

1981 CLC 409 and PLD 1951 Lah. 111 rel.

Khalid Mehmood for Petitioners.

Amjad Ali Mohmand for Respondents.

Date of hearing: 6th April, 2016.

2016 M L D 1700

[Peshawar]

Before Assadullah Khan Chamkani, J

AURANGZEB---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. B. A. No. 1878-P of 2015, decided on 23rd November, 2015.

(a) Criminal trial---

----Alibi, plea of---Meaning and scope---Plea of alibi, was that form of defence through which accused attempts to prove that he was at some other place at the time when alleged offence was committed---Alibi is a latin word, which means 'elsewhere'---Plea of alibi means that accused was physically not present at the time of commission of offence---When accused would suggest to the court that he was somewhere else at the time of commission of alleged offence, such suggestion was called "plea of alibi"---Plea of absence of accused from the place of occurrence at the time of commission of offence, was "plea of alibi", which should be raised at the earliest time/stage.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 427 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage, common intention---Bail, grant of---Further inquiry---Plea of alibi, taken by accused, was not only, prima facie supported by the documents available on the record, but augmented by report of Inquiry Officer---Courts, normally, were reluctant to consider plea of alibi at bail stage, but that was not a principle of universal applicability---In appropriate cases where a strong plea of alibi had been put forward, without any loss of time and same had been found to be authentic, court could grant bail on the plea of alibi---No restriction was on court's power to assess tentatively the material placed before it for the purpose of grant or refusal of bail---Such material would not only be the material collected in favour of the prosecution and against an accused, but would include all the material in favour of the prosecution as well as in favour of the defence---Court, however, had to refrain directly or indirectly from giving any conclusive finding on the question of guilt or innocence of accused---Case of accused was that of two versions, which one was correct, was yet to be determined during trial which had made the case of accused that of further inquiry into his guilt within the meaning of subsection (2) of S.497, Cr.P.C.---Accused having become entitled to bail as of right under S.497(2), Cr.P.C., same could not be withheld as a punishment on mere ground of being directly charged for heinous offence---Mistaken relief of bail could be repaired by convicting accused, if proved guilty at the end of trial, but no proper reparations could be offered to an accused for his unjustified incarceration, albeit his acquittal in the long run---Accused was admitted to bail, in circumstances.

1998 SCMR 920; 1997 SCMR 1829; PLD 2006 Lah, 689; 2015 YLR 2441; 2012 MLD 1876; 2013 PCr.LJ 1318; 2013 SCMR 385; 2012 SCMR 707; 2015 PCr.LJ 1083; 2010 PCr.LJ 1386; Khalid Jawed Gillan v. The State PLD 1978 SC 256; Arshad Mehmood v. The State PLD 2006 Lah. 689; Malik Noor Ahmad and others v. The State PLD 1993 Lah. 500; Iqbal Ahmad and 2 others v. The State 1989 PCr.LJ 2122; Malik Muhammad Saleem and others v. Arshad Siddiq and 2 others 1997 SCMR 1829; Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97 and Muhammad Azeem and others v. The State and others 2015 YLR 2441 ref.

Sultan Shehreyar Khan Marwat for Petitioner.

Muhammad Sajid Khan for Respondent.

Waqar Ahmad, A.A.G. for the State.

Date of hearing: 23rd November, 2015.

2016 M L D 1719

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Haider Ali Khan, J

MUHAMMAD RASHAD---Petitioner

Versus

BAKHTIAR---Respondent

C. R. No.1416-P of 2016, decided on 4th March, 2016.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Sale deed---Scope---Contention of plaintiff was that he was owner in possession of suit property and alleged sale deed was fake, bogus and ineffective upon his rights---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Suit land was in possession of plaintiff and both the parties were inter se brothers---Nothing was on record that plaintiff was cultivating the suit property as tenant of defendant---Alleged transaction was carried out against the ordinary course of business and shrouded in suspicion and lack of transparency---Defendant had not proved the payment of sale consideration to his father---Sale deed was doubtful and could not be relied upon in favour of defendant---Appellate Court had not properly analyzed the evidence on record---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored and suit was decreed---Revision was allowed in circumstances.

1984 SCMR 94 ref.

Asghar Ali for Petitioner.

Sayyed Badshah for Respondent.

Date of hearing: 15th February, 2016.

2016 M L D 1735

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ghazanfar Khan, J

Haji JANGI KHAN and another---Petitioners

Versus

GHULAM MUHAMMAD and others---Respondents

Civil Revision No.218-D of 2015, decided on 11th January, 2016.

Partition Act (IV of 1893)---

----S. 4---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for partition---Temporary injunction, grant of---Scope---Interim relief was granted to the extent of raising construction over the suit property till it was partitioned or six months whichever was earlier---Validity---Partition was the only solution for a co-owner to use and possess the exclusive ownership over a specific portion of land---Trial Court was directed to dispose of the present suit within six months---Revision was dismissed in circumstances.

2016 CLC 176 distinguished.

1989 SCMR 130; 1996 CLC 275(a) and 1999 CLC 598 rel.

Gul Tiaz Khan Marwat for Petitioners.

Muhammad Zahid and Muhammad Shah Behram for Respondents.

Date of hearing: 11th January, 2016.

2016 M L D 1749

[Peshawar]

Before Nisar Hussain Khan, J

SHER BAHADUR and 10 others---Petitioners

Versus

GHULAM QAMAR DIN and 3 others---Respondents

Civil Revision No.769 of 2009, decided on 9th December, 2014.

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

----S. 42---Suit for declaration---Dispute with regard to management of shrine---Contention of plaintiffs was that they were descendants of Baba Jee buried there and were entitled to manage, control and supervise the affairs of shrine as "Sajadah Nasheen"---Suit was dismissed concurrently---Validity---Affairs of shrine in question after the death of Baba Jee were taken over, supervised, managed and contrived by the defendants---Defendants were "Sajadah Nasheen" of shrine of "Baba Jee" and there was no legal impediment in holding the said office by the defendants---No fundamental right had been violated by the defendants---Both the courts below had properly appreciated the evidence and non-suited the plaintiffs while rendering reasoned findings on facts as well as law---No misreading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Alhaj Diwan Bukhtiar Said Muhammad v. Diwan Maudood Masood 2006 YLR 2517 and Abid Arif Nomani and others v. Chief Administrator, Auqaf, Punjab and others 2004 SCMR 1050 ref.

(b) Islamic Law---

---'Waqf'---Scope.

Waqf is a permanent dedication of a property by a person professing Islam for any purpose recognised by Islamic law as religious, pious or charitable and it must be permanent. If a land has been used from a time immemorial for religious purpose including any mosque or burial ground or for the maintenance of mosque, it would be waqf by users though there is no express dedication oral or documentary. Once it is used by raising mosque or graveyard that waqf or dedication cannot be revoked. Only testamentary waqf can be revoked by the dedicator and that too during his life time and not later than that.

Muhammadan Law by D.F. Mulla para 173 ref.

(c) Islamic Law---

---'Mutawali and Sajadah Nasheen'---Distinction and scope.

The person who manages the shrine of a spiritual leader cannot be termed as Mutawali in its legal parlance. Rather he has been recognized as Sajadah Nasheen because office of Mutawali has altogether distinct character and implications. While Sajadah Nasheen being at higher pedestal not only administers, manages and controls the affairs of the shrine but necessarily has to perform religious duties and renders spiritual services for the satisfaction of hearts and souls of the followers and disciples of spiritual leaders/saints buried in the shrine. The mantle of Sajadah Nasheen cannot be bestowed on any one as a hereditary entitlement nor is governed by rule of primogeniture. It can only be earned and assumed by the one who proves himself capable of holding the same in esteemed satisfaction of the followers. If masses and the followers don't accept a person as Sajadah Nasheen, he cannot impose himself on the said office against their will. Somehow or the other, affairs of the shrine and its celebrations for all practical purposes are dependent upon the faith of the followers. In absence of the followers there would be no shrine, no Sajadah Nasheen. Because due to the people offering alms, there is an element of income which in turn is used for celebrations of Urs, Dua and other religious and spiritual rites followers and disciples of the principal saint accept and acknowledge that person as Sajadah Nasheen who is capable of that office having spotless high character of morality, with observance of religious tenets and rites and devoted faithfully to Allah Almighty with deep rooted respect for the principal saint. It may be bestowed on the basis of usage and customs amongst the descendants of the principal saint or the Sajadah Nasheen who is clothed with such qualifications but it is not necessarily a rule of thumb. Any one else, out of the descendant's' line, may be appointed for the said office.

M. Muazzam Butt for Petitioners.

Fazal Kareem for Respondents.

Date of hearing: 9th December, 2014.

2016 M L D 1764

[Peshawar]

Before Abdul Latif Khan and Syed Afsar Shah, JJ

Haji Syed MAHROOF SHAH and 4 others---Appellants

Versus

Syed SHER SHAH and 5 others---Respondents

R.F.A. No.263 of 2005, decided on 21st January, 2015.

Civil Procedure Code (V of 1908)---

----O. VIII, R. 10---Non-filing of written statement---Striking off right of defence---Scope---Written statement was not filed and suit was decreed while striking off right of defence of defendants---Validity---Where any party from whom a written statement was required had failed to present the same within the time fixed by the court, court might pronounce judgment against him or make such order with regard to suit as it was fit---In the present case, routine order was passed but no speaking order requiring the defendants to file their written statement was passed by the Trial Court---Provisions of O.VIII, R.10, C.P.C. being penal in nature, court had to take into consideration the facts and circumstances of each case---Trial Court without satisfying itself about genuineness of the claim of plaintiffs had exercised discretion which was against the principles of natural justice---Trial Court was to require the plaintiffs to satisfy about their claim which element was missing in the present case---Impugned order was set aside and case was remanded to the Trial Court with the direction to ask for written statement from the defendants and to proceed with the case in accordance with law.

Abdul Sattar Khan for Appellants.

M. Alamzeb Khan for Respondents.

Date of hearing: 21st January, 2015.

2016 M L D 1785

[Peshawar]

Before Assadullah Khan Chamkani, J

AHMAD ULLAH---Petitioner

Versus

The STATE---Respondent

Cr. Misc. B.A. No.88-P of 2016, decided on 28th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), Ss.15 & 17---Anti-Terrorism Act (XXVII of 1997), S.7---Possessing and trafficking arms to facilitate act of terrorism---Bail, grant of---Huge lot of pistols was shown recovered from the vehicle of accused, but no evidence had been collected by the Investigating Officer to depict involvement of accused in cases of terrorism or his nexus with any terrorists group or organization or that accused was trafficking alleged recovered arms to facilitate any act of terrorism---Mere allegation of terrorism, without any cogent and tangible evidence at the present stage would not be sufficient to attract S.7 of Anti-Terrorism Act, 1997---Case of accused, at the most, would fall within the meaning of Ss.15 & 17 of the Khyber Pakhtunkhwa Arms Act, 2013, punishment of which, did not fall within the restrictive limb of S.497, Cr.P.C.---Bail, in such like cases was a rule and refusal thereof an exception---No exceptional circumstance existed in the case to clog the way of bail to accused---Accused was admitted to bail, in circumstances.

Muhammad Bashar Khan for Petitioner.

Muhammad Rahim Shah, A.A.G. for the State.

Date of hearing: 28th January, 2016.

2016 M L D 1800

[Peshawar]

Before Waqar Ahmed Seth and Muhammad Younis Thaheem, JJ

ROMANA MUQARRAB and another---Petitioners

Versus

KHYBER MEDICAL UNIVERSITY through Registrar and 4 others---Respondents

Writ Petition No.3015/P of 2015, decided on 11th February 2016.

Educational Institution---

----Fee and refund of fee---Requirement---Petitioners, even having failed several times in their Fourth Professional MBBS examination, had been allowed to sit in the classes of Fourth Professional MBBS under the orders of the High Court issued in constitutional petition (filed by other students), which provided that the failing students would become eligible to sit in the next professional examination without wasting their one year at their own risk and costs, but did not provide that they would be eligible to appear in the examination without depositing the annual dues---Petitioners, in the present case, being not party to said earlier petition, were trying to take shelter under the orders passed in that petition---Validity---Petitioners had been unsuccessful in passing their previous examination, therefore, they could not be allowed to appear in the next examination without deposit of the requisite fee for tuition/lecture of the classes attended by them---Constitutional petition was dismissed in circumstances.

Alam Khan Adezai for Petitioners.

Mansoor Tariq for Respondents.

Date of hearing: 11th February, 2016.

2016 M L D 1807

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan, J

WASEEM AHMED KHAN---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. (B.A.) No.148-P of 2016, decided on 6th May, 2016.

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

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Further inquiry---Business deal between the parties, and the amount was given to accused to buy a piece of land, from a third person, but the transaction was not concluded within the required period of time as agreed by both the parties---Sale consideration was not paid back and alleged cheque was handed over to the complainant, but during the course of pendency of the trial of the case, part payment was made to the complainant and rest of the amount had to be paid in instalments, under an amicable settlement arrived at between the parties, which was also not given final effect---Accused, not only remained in custody for 5 months but also had paid part of the amount, and also non-reluctant to pay the balance amount---Case of accused on such score also became that of further inquiry---Accused was directed to be released on bail, in circumstances.

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

----S. 497---Bail, grant/refusal of---Principles---Generally in cases for which the prescribed punishment, did not fall within the prohibitory clause of S.497, Cr.P.C., grant of bail was a rule, while its denial was an exception---Accused could claim bail as of right in non-bailable offence, bail could also be not withheld as punishment---Where extraordinary and exceptional circumstances exited on record, when there was likelihood of absconsion, apprehension of tampering with the prosecution evidence by accused, danger of repetition of the offence, if accused was enlarged on bail; and where accused was a previous convict, hardened criminal, then bail could not be granted.

Subhan Khan v. The State 2002 SCMR 1997 ref.

Syed Shah Faisal for Petitioner.

Faheem Khan Yousafzai for Respondent.

A.A.G. for the State.

Date of hearing: 6th May, 2016.

2016 M L D 1822

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

BATOOR---Petitioner

Versus

The STATE and another---Respondents

Cr. M. No. 208-A of 2016, decided on 4th May, 2016.

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

----S. 497----Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, refusal of---Accused had been directly charged in the FIR and attributed the role of qatl-i-amd of the deceased by effectively firing at her---Accused had absconded after commission of the offence and remained fugitive from law for 16 years, for which no plausible explanation had been furnished---Co-accused persons, sons of the present accused, having been released on bail, had subsequently absconded and had been at large till present day---Accused claimed himself to be of 73/74 years of age, but the card of arrest under S. 62, Cr.P.C. showed him to be 66/67 years old---Medical certificates of private hospital had shown the accused suffering from normal diseases of hypertension and cardiac problem without disclosing any infirmity entitling the accused to bail; though, the authenticity and credibility of said certificates was yet to be proved---Postmortem report and spot inspection by the Investigation Officer involved deep appreciation of evidence, which was not desirable at bail stage---Accused was, therefore, not entitled to bail keeping in view the long unexplained abscondance, direct charge in the FIR and effective role of committing qatl-i-amd of the deceased attributed to him and the evidence collected against him during the investigation---Bail application was dismissed accordingly.

2015 SCMR 655; 2007 PCr.LJ 1332; 2000 PCr.LJ 60; 2014 PCr.LJ 1787; 1989 PCr.LJ 2044; 2014 PCr.LJ 1526; 2014 MLD 437; 2013 PCr.LJ 1284; 2007 YLR 937 and 2014 YLR 2367 rel.

Muhammad Idris Khan for Petitioner.

Raja Muhammad Zubair, Asstt. A.-G. for the State.

Amanullah Khan Salik for the Complainant.

Date of hearing: 4th May, 2016.

2016 M L D 1840

[Peshawar (Abbottabad Bench]

Before Ikramullah Khan, J

TAHIR JAVED KHAN---Petitioner

Versus

The STATE---Respondent

Writ Petition No.397-A of 2016, decided on 13th May, 2016.

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

----Ss. 6, 7, 12, 13, 17, 21-G, 23, Third Sched.---Penal Code (XLV of 1860), Ss. 302 & 109---Qatl-i-amd common object---Object of Anti-Terrorism Act, 1997---Transfer of case to ordinary court---Scope---Occurrence had taken place within the premises of the court, while both the parties had appeared in connection with their cases, which were fixed on the day of occurrence---Anti-Terrorism Act, 1997 had been brought for two fold purposes; on the one hand, the Act provided for prevention of terrorism and sectarian violence; and, on the other hand, the same was for speedy trial of heinous offences and also for matters connected therewith and incidental thereto---Section 6 of the Act had provided that the offences which fell within the ambit of terrorism, but the object of S. 13 of the Act could also not be bypassed---Anti-Terrorism Court was empowered to try any other offence than the scheduled offence, with which the accused might, under Penal Code be charged at the same trial, in terms of S. 17 of the Act---Section 21-G of the Act conferred exclusive jurisdiction upon the Anti-Terrorism Court with regard to trial of cases falling within the ambit of the Act---In view of S. 23 of the Act, where, after taking cognizance of an offence, Anti-Terrorism Court was of the opinion that the offence was not a scheduled offence, the Court, notwithstanding that it had no jurisdiction in view of S. 193, Cr.P.C to try such offence, would transfer the case for trial of such offence to any court having jurisdiction under Cr.P.C; but there would be definite conclusion and reasons for transferring the case and if it was not a scheduled offence---Anti-Terrorism Court not only had the exclusive jurisdiction of trial of offences committed under any provision of the Act, but the court also had to try all other scheduled offences---Offences mentioned in item 4 of Third Schedule of the Act, being heinuous offences, would also be exclusively triable by the Anti-Terrorism Court---One person, in the present case, had been murdered while he was attending his case within the compound of the court, which, being a scheduled offence, was exclusively triable by the Anti-Terrorism Court---High Court, setting aside the order of transfer, ordered the case to be returned to the Anti-Terrorism Court---Constitutional petition was allowed in circumstances.

Shahzad Arif Raza v. Special Judge Anti-Terrorism Court 2012 PCr.LJ 1735 and Bashir Ahmad v. Muhammad Siddique and others PLD 2009 Supreme Court 11 rel.

Fazal-i-Haq Abbasi for Petitioner.

Muhammad Naeem Abbasi, Addl. A.-G. for the State.

Malik Miandad Khan for Respondent.

2016 M L D 1850

[Peshawar]

Before Assadullah Khan Chamkani, J

MUHAMMAD KHAN and another---Appellants

Versus

The STATE through Arman Gul, S.H.O. and another---Respondents

Criminal Appeal No.554-P of 2014, decided on 26th October, 2015.

Pakistan Arms Ordinance (XX of 1965)---

----Ss. 13, 11, 10, 9, 8, 5 & 4----Penal Code (XLV of 1860), S. 417---Prohibition of going armed without licence; unlicensed possession of arms etc.; unlicensed sale and repair prohibited, cheating---Appreciation of evidence---Recovery of arms and ammunition, proof of---Case property, non-production of---Effect---Benefit of doubt---Perpetual warrant issued for absconded accused---Accused were alleged to have been arrested while transporting twelve .30 bore pistols and a pen pistol---Trial court, convicted accused and sentenced them to undergo six months' imprisonment---Prosecution was under a duty to prove alleged recovery through cogent and confidence inspiring evidence beyond shadow of reasonable doubt, particularly, by producing and exhibiting the arms and ammunitions allegedly recovered from possession of the accused before Trial Court---Prosecution had neither produced/exhibited the arms nor the veil, which the accused was allegedly wearing at time of his arrest, before Trial Court---Mere allegations of recovery would not be sufficient to prove the guilt of the accused---Non-production and exhibition of the case property had totally shattered the entire edifice of the prosecution case, benefit of which was to be extended to the accused---High Court, setting aside conviction acquitted the accused; whereas, present appeal was kept pending, and perpetual warrant of arrest were issued, regarding the other accused, who had absconded during pendency of present appeal---Appeal was allowed in circumstances.

Sohail Akhtar for Appellants.

Mian Arshad Jan, A.A.G. for the State.

2016 M L D 1858

[Peshawar]

Before Ikramullah Khan, J

Haji Malik ZAKIM KHAN---Petitioner

Versus

MERA BAND KHAN (deceased) through Legal Heirs and others---Respondents

Civil Revision Petition No.348-B of 2011, decided on 2nd November, 2015.

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

----S. 42---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S. 52---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Revenue record---Evidentiary value---Limitation---Defendants were in continuous possession of suit property and no one had challenged such long standing entries effected in the record of rights---Presumption of truth was attached to the revenue record prepared in accordance with law which could not be discarded unless proved otherwise by convincing and cogent evidence---If a person was enjoying possession of land then law of limitation should be given high consideration to discourage frivolous claims brought beyond the stipulated period of time---Both the courts below had properly appreciated and appraised the facts of the case---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the courts below---Frivolous suit had been filed by the plaintiff---Revision was dismissed with cost throughout in circumstances.

Hakim Khan v. Aurangzeb and another 1979 SCMR 625 and Muhammad Mian v. Shamimullah 1995 SCMR 69 rel.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 52---Revenue record---Presumption of truth---Scope---Presumption of truth was attached to the revenue record prepared in accordance with law which could not be discarded, unless proved otherwise by convincing and cogent evidence.

(c) Evidence---

----Documentary evidence and oral evidence---Contradiction between---Scope---Documentary evidence could not be rebutted by oral evidence.

Evacuee Trust Property Board and others v. Haji Ghulam Rasool Khokhar and others 1990 SCMR 725 rel.

M. Fayaz and M. Ayub Khan for Petitioners.

Faridullah Shah Wazir for Respondents.

2016 M L D 1865

[Peshawar]

Before Waqar Ahmad Seth and Muhammad Younis Thaheem, JJ

SAIFULLAH KHAN---Petitioner

Versus

ANWAR KHAN and 6 others---Respondents

Writ Petition No.11-B of 2010, 13th January, 2015.

(a) Punjab Minor Canals Act (III of 1905)---

----S. 43---Punjab Tenancy Act (VI of 1887), S. 77 (3)---Settlement of dispute with regard to use of water---Suit with regard to settlement of dispute for use of water was filed before Deputy District Officer (Judicial) which was dismissed---Validity---Suit was not filed before the competent court having jurisdiction i.e. District Collector---Deputy District Officer (Judicial) had no jurisdiction to try the suit with regard to dispute for use of water rights---Plaintiff was bound to institute suit before District Officer Revenue having jurisdiction to try the present suit---Courts below had acted without lawful authority by entertaining/adjudicating the present suit---Findings recorded by the courts below were ultra vires, null and void and having no legal effect---Deputy District Officer (Judicial) was bound to return the suit for filing it before the court having jurisdiction---Plaintiff would be at liberty to file a fresh suit before the competent court of District Collector---Constitutional petition was disposed of in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---If findings recorded by the revenue hierarchy were not based on proper appreciation of evidence or were against law then High Court had jurisdiction to interfere with it.

Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914 rel.

Asghar Ali Khan for Petitioner.

Gul Diaz Khan Wazir for Respondents Nos.1 to 5.

Saifur Rehman Khattak, A.A.G. for Official Respondents.

2016 M L D 1881

[Peshawar]

Before Yahya Afridi and Qalandar Ali Khan, JJ

YOUSAF ALI---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner and 4 others---Respondents

Writ Petition No.1160-P of 2015, decided on 29th April, 2015.

Electoral Rolls Act (XXI of 1974)

----Ss. 11, 16, 17 & 20---Constitution of Pakistan, Art. 199---Constitutional petition---Transfer of name from one local area to another---Scope---Contention of petitioner was that transfer of name from one electoral area to another fell under S. 11 of Electoral Rolls Act, 1974---Validity---According to S.11 of Electoral Rolls Act, 1974 first stage of preparation and computerization of electoral rolls would start from final publication of Electoral Rolls under S.16 of Electoral Rolls, Act 1974---According to S.17 to S.20 of Electoral Rolls, Act 1974, second stage would include giving finality to electoral rolls after constituency which electoral area formed part had been called upon to elect its representative---Clear line of distinction existed between two stages of preparation of electoral rolls and their annual revision as first stage would complete with final publication of Electoral Rolls under S.16 of Electoral Rolls, Act 1974 and second stage with regard to annual revision of electoral rolls would commence under S.17 of Electoral Rolls, Act 1974---Held, that S.11 of Electoral Rolls Act, 1974 had no relevancy, in the present case, and could not be pressed into service for purpose of second stage of annual revision of electoral rolls---Petition was dismissed, accordingly.

Muhammad Jahangir Khan Mohmand for Petitioner.

Riaz Ahmad Khattak, Law Officer, ECP for Respondents.

2016 M L D 1896

[Peshawar]

Before Muhammad Younis Thaheem, J

SHAH KARIM BAKHT and another---Petitioners

Versus

Mst. JEHAN ZEBA and 4 others---Respondents

Writ Petition. No.352-M of 2008, decided on 18th May, 2016.

(a) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S.52---Entries in revenue record, presumption of---Right to apply for partition---Entries in the revenue record, particularly in the column of ownership had strong presumption correctness---Applicant of having been entered in the revenue record as joint owner had lawful right to apply for partition in order to separate her share with exclusive possession.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S.135---Application for partition by co-sharer/joint owner---Scope---Every co-sharer/joint owner in agricultural landed property can legally move an application for partition of his/her/their joint land under the law to separate his/her/their respective shares with possession.

(c) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S.141---Stay of partition proceedings---Grounds---Unregistered and objected deeds---Effect---Partition proceedings could only be stayed when the Revenue Officer after examining the case decided that question of title was involved in the matter---Partition proceedings could not be stayed merely on the assertion of the party that such question existed---Proceedings could not be stayed on the basis of two alleged unregistered and highly objected written deeds.

Atlas Khan Dagai for Petitioners.

Rafiq Ahmad, Asstt. Advocate General and Mian Muhammad Riaz for Respondents.

2016 M L D 1935

[Peshawar (Bannu Bench)]

Before Qaiser Rashid Khan, J

BAKHT ALAM---Petitioner

Versus

The STATE and another---Respondents

Bail Application No.878-P of 2016, decided on 20th May, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.395---Dacoity---Bail, grant of---Further inquiry---Only a sum of Rs.5000 was allegedly recovered from the residential room of accused---Mere recovery of such small amount from a person, would not per se hold him to be linked with the commission of the offence; as long as the same was not proved to be the stolen cash amount from the house of the complainant---Local Police spurred into action against accused, at the instance of the complainant through his statement under S.164, Cr.P.C.---Complainant, present in the court along with his duly sworn affidavit, stated to have satisfied himself about the innocence of accused and expressed his "no objection" over his release on bail---Taking a tentative assessment of the available record, coupled with the sworn affidavit of the complainant, case of accused called for further probe into the matter, which entitled him to bail---Accused was granted bail, in circumstances.

Zar Badshah for Petitioner.

Syed Sikandar Hayat Shah, A.A.G. for the State.

Complainant in person.

2016 M L D 1950

[Peshawar]

Before Muhammad Younis Thaheem, J

SHOAIB-UR-REHMAN and others---Petitioners

Versus

ABDUL HADI and others---Respondents

C.R. No. 132-B and C.M. 319-B of 2015, decided on 4th January, 2016.

Civil Procedure Code (V of 1908)---

----S.12(2)---Limitation Act (IX of 1908), Art.44---Compromise decree, setting aside of---Limitation---Age of applicant at the time of compromise decree was 16 years---Applicant attained majority after two years and he was bound to file petition for setting aside of impugned decree within three years after attaining majority---No illegality had been committed by the courts below---Petition for setting aside of compromise decree was dismissed in limine.

PLD 1992 Pesh. 98 and 2003 MLD 568 rel.

Farooq Alam Wazir for Petitioners.

2016 M L D 1961

[Peshawar]

Before Assadullah Khan Chamkani, J

Peer WAHID SHAH---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. B.A. No.2064-P of 2015, decided on 18th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 337-F(ii), 337-A(i), 382, 148 & 149---Attempt to commit qatl-i-amd, causing badiah, Shajjah-i-Khafifah, theft after preparation made for causing death, hurt or restraint, rioting, common object---Bail, grant of---Further inquiry---Complainant, had not sustained any firearm injury---Two injuries, one on right hand and the other on ear of the complainant, had been observed by the Medical Officer to be result of sharp weapon---Role of giving dagger blows and firing, had been simultaneously assigned to four persons including accused---Three, co-accused, whose role was identical to that of accused had been granted bail, against which no petition for cancellation of bail had been filed, either by the State or complainant---Accused would also be entitled to bail on the principle of consistency---Only ground which prevailed before the Trial Court while declining bail to accused was that in the site plan, the role of fatal dagger blows had been attributed to accused---Such aspect of the case, when no such role, had been given to accused in the report, would by itself make the case of accused arguable for the purpose of bail---Keeping in view the let off, of the complainant, who was in the clutches of four accused, intention of accused to kill, applicability of S.324, P.P.C., was yet to be determined during trial after recording evidence---Punishment of other offences with which accused was charged, did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused, was admitted to bail, in circumstances.

Fazal Haq Kohidamni for Petitioner.

S. Sikandar Hayat Shah for the State.

M. Amin Khattak Lachi and Ibrahim Shah for the Complainant.

2016 M L D 1983

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ghazanfar Khan, J

ABDUL QAYYUM alias BHUTTO---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Transfer Application No.03-D of 2016, decided on 1st July, 2016.

Criminal Procedure Code (V of 1898)---

----S. 526---Transfer of case---Grounds---Exercise of discretion by court---Scope---Remedy for adverse orders---Merely because adverse judicial order had been passed against accused persons would not solely be sufficient ground justifying transfer of case from one court to another court---If accused person had any grievance against the adverse orders, they had remedy to challenge same before the higher forum---While exercising discretion to transfer a case a balance had to be struck in order to ensure that the cases were not transferred merely on the basis of supposition, unfounded and conjectured apprehensions---Merely apprehensions without tangible evidence would not be sufficient for transfer of a case.

2016 M L D 1995

[Peshawar]

Before Assadullah Khan Chamkani, J

BANARAS SHAH---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. B.A. No. 1814-P of 2015, decided on 16th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497----Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd; common intention---Bail, grant of---Cross/counter version---Another FIR about the same incident at the same Police Station had also been registered, wherein the eye-witness of present FIR had been charged for attempting at the life of the complainant (accused of present FIR) and causing him firearm injury, which injury had not been declared to be self-inflicted or artificial by the Medical Officer---Oral altercation/ quarrel between the parties had been alleged to be the motive behind the incident---Deceased, as per the autopsy report, had also sustained single firearm injury, which had caused his death---Incident in question fell within the definition of "cross version", as the date, time, venue of the occurrence and the parties of both FIRs were the same---Accused of the said cross FIR had already been granted bail by the High Court but on the grounds other than cross version, as the case being that of cross version had not been pleaded before the Court---Prime consideration in cross version cases was to see as to who was the aggressor and who was aggressed upon and not the injures caused to one side only or that the loss/damage caused to one party was greater than that caused to the other, which was only a relevant factor and did not have overriding effect---Question as to who had acted in self defence and who had attacked was a matter of further inquiry, which made the accused entitled to the concession of bail---Bail application was allowed accordingly.

Muhammad Shahzad Siddique v. The State and another PLD 2009 SC 58; Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and others 2011 SCMR 606 and Hamza Ali Hamza and others v. The State 2010 SCMR 1219 ref.

M. Azam Khan for Petitioner.

Syed Mubashir Shah for Respondent No.2.

Mamraiz Gul for the State.

2016 M L D 2023

[Peshawar (Mingora Bench)

Dar-ul-Qaza]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

SOHRAB KHAN and 17 others---Petitioners

Versus

NOOR MUHAMMAD and 9 others---Respondents

Writ Petition No.266-M of 2013, decided on 19th January, 2016.

Settlement of Disputes of Immovable Property (Chitral) Order (12 of 1980)---

----Arts. 3, 4 & 5---Royalty of timber extracted from forest, determination of---District Collector---Powers of---Scope---Controversy in the present case did not fall under any category of the disputes which could be decided under Settlement of Disputes of Immovable Property (Chitral) Order, 1980---All such disputes had to be decided by the Provincial Government or an officer authorized by it in that behalf---Determination of royalty amongst the rightful shareholders in the present case was not a dispute within the contemplation of Article of Settlement of Disputes of Immovable Property (Chitral) Order, 1980---Deputy Secretary Home/Presiding Officer Appellate Court had wrongly exercised jurisdiction not vested in him---Impugned orders passed by him were of no legal effect---Impugned orders were set aside and parties were directed to approach the competent forum having jurisdiction in the matter---Constitutional petition was accepted in circumstances.

Sher Muhammad Khan for Petitioners.

Gauhar Ali Khan and Sabir Shah, A.A.-G. for Respondents.

2016 M L D 2036

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ghazanfar Khan, J

HUSSAID through Mother---Petitioner

Versus

The STATE and another---Respondents

Cri. M.B.C.A. No.416-D of 2015, decided on 1st February, 2016.

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---Bail---Application for cancellation---Notice of bail petition to injured person/ State/complainant, requirement of---Determination---Accused was charged on basis of supplementary statement---Accused was not directly charged in the FIR and had been subsequently charged by the complainant in his supplementary statement recorded after 10/11 days of the occurrence---Evidentiary value of said supplementary statement would be determined during trial of the case---Accused had neither confessed his guilt, nor had anything incriminating been recovered from his possession or on his pointation---Contention of the injured victim of the occurrence, that he, being the injured/aggrieved person, neither had been made party to the bail petition, nor had the opportunity of being heard been given to him(before forums below), was misconceived---Said injured person was the minor brother of the complainant, and the complainant had been duly represented by his counsel when the bail applications had been argued---Interest of said injured person and that of the complainant was one and the same---Section 497 (1), Cr.P.C provided that 'a person accused of an offence as aforesaid shall not be released on bail, unless the prosecution has been given notice to show cause why he should not be released on bail'; the word 'prosecution' included complainant party, because the prosecution had no direct interest in the case---State and the complainant had been held entitled to notice in cases covered by Qisas and Diyat Ordinance, 1991, who had been properly given notice in the case, and the bail application had been argued on their behalf---Application for cancellation of bail was dismissed accordingly.

Bahadar Khan Marwat for Petitioner.

Adnan Ali, Asstt.A.G. for the State.

Ch. Javed Akhtar for the Complainant.

2016 M L D 2043

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

Mian GUL RAHIM---Appellant

Versus

The STATE and another---Respondents

Cr. A. No.135-M of 2015, decided on 26th January, 2016.

Penal Code (XLV of 1860)---

----S. 302(b)(c)---Qatl-i-amd---Appreciation of evidence---Enhancement of sentence---Motive, not proved---Effect---State sought enhancement in sentence of the accused---Plea raised by accused was that alleged motive as depicted by prosecution was not proved---Validity---Minor discrepancies existed in prosecution case and handcart was not seized by local police---Such facts were not fatal to prosecution case keeping in view remaining evidence available on record being worth reliance and sufficient for bringing home the guilt of accused---Motive could not be sine qua non for bringing home guilt to an accused and it was enough to determine factum of intention which could be gathered from facts and circumstances---If guilt of accused stood proved in light of statements of eyewitnesses, then absence of motive or failure on part of prosecution to prove the same could not adversely affect ocular account produced by witnesses---Occurrence originated from a petty matter and there was no evidence of premeditation on part of accused---Court in the light of principle of proportionality could avoid awarding of capital punishment to an accused---Trial Court penalized accused under S. 302(c), P.P.C., and the same was not fair just keeping in view the mode and manner in which accused inflicted knife injury to deceased---Proof of the sort specified in S. 302, P.P.C., was not available and mitigating circumstances existed for avoiding death sentence---High Court converted conviction to S. 302(b), P.P.C., and enhanced sentence to imprisonment for life as 'T'azir'---Revision was allowed accordingly.

2010 SCMR 1090 and 2009 SCMR 523 rel.

Saeed Ahmad Khan Nasar and Mian Gul Saeed for Appellant.

Rafiq Aham, Assistant Advocate General for the State.

Abdul Wadood for Respondent No.2.

2016 M L D 258

[Balochistan]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

MUHAMMAD ALI KHAN PARACHA---Petitioner

Versus

Mst. BINISH and 2 others---Respondents

C.P. No.677 of 2010, decided on 5th October, 2015.

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

----S.5, Sched.----Limitation Act (IX of 1908), Art. 103---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of prompt dower---Limitation, determination of---Both Trial Court and appellate court decreed the suit allowing recovery of dower amount and maintenance---Defendant contended that suit for recovery of dower amount was barred under Art. 103 of Limitation Act, 1908, as the same had been filed after six years of divorce---Validity---Neither any ground of limitation was raised in written statement, nor was issue framed by Trial Court in that respect---Limitation pursuant to Art. 103 of Limitation Act, 1908 would start from date of refusal to pay dower amount---Mere making of demand of dower amount without any refusal by husband did not attract provision of Art. 103 of Limitation Act, 1908---Limitation would not start unless two conditions, making of demand and refusal by husband, were fulfilled---Defendant, in his written statement, had pleaded that he had paid dower amount to plaintiff, but he failed to substantiate the same through evidence---Defendant's witnesses, during cross-examination, had admitted that dower amount had not been paid to plaintiff---Limitation, in the present case, would, therefore, start from time when written statement had been filed by defendant---Present suit was not hit by Art. 103 of Limitation Act, 1908---Constitutional petition was dismissed in circumstances.

Sohail Ahmed Ansari for Petitioner.

Respondent No.1 proceeded ex parte on 25-08-2015.

Mst. Sarwat Hina, Additional, P.G. for Official Respondents.

Date of hearing: 25th August, 2015.

2016 M L D 561

[Balochistan]

Before Naeem Akhtar Afghan, J

MUHAMMAD SHAFIQ and 6 others---Applicants

Versus

The STATE---Respondent

Cr. Bail before Arrest Application No.432 of 2015, decided on 23rd November, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 302 & 337---Qatl-i-amd and hurt---Bail before arrest, grant of---Further inquiry---Cross version---Two FIRs---Abscondance---Accused persons in one FIR had been released on pre-arrest bail by Trial Court but accused persons in other FIR were declined pre-arrest bail---Validity---Cross version of occurrence and on the basis of tentative assessment of material available on record, case against accused persons with regard to unnatural death of deceased fell within the ambit of further inquiry---Further inquiry into the guilt of accused persons inter alia mala fide and ulterior motives could be assessed in bail before arrest matters---Mere alleged abscondence of accused could not be made a basis to refuse bail if accused was otherwise entitled for the same on merits and case was open to further inquiry into his guilt within the scope of S.497(2), Cr.P.C.---Complainant or prosecution witness did not sworn / file affidavit to prove allegation of abusing or misusing concession of ad interim pre-arrest bail by accused persons---Possibility of false implication of accused persons for mala fide reasons could not be ruled out of consideration---Intended arrest of accused persons by authorities at the behest of complainant party out of malice and ulterior motives to create humiliation and unjustified harassment could also not be ruled out of consideration---Bail was allowed in circumstances.

Mohammad Ishfaq v. State 2012 SCMR 70 rel.

Baz Muhammad Kakar, Muhammad Dawood Kasi and Jamil Agha for Applicants.

Muhammad Qahir Shah for the Complainant.

Abdul Latif Kakar, Additional Prosecutor General for the State.

Date of hearing: 18th November, 2015.

2016 M L D 613

[Balochistan]

Before Shakeel Ahmed Baloch, J

MUHAMMAD NASIR KHAN KASI---Applicant

Versus

IQBAL AHMED KASI and 2 others---Respondents

Crl. Bail (Cancellation) Application No.500 of 2015, decided on 30th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S. 337, 353, 504 & 506---Hurt and criminal intimidation---Bail, cancellation of---Principle---Tentative assessment of record---Complainant was aggrieved of the order passed by Sessions Court, whereby pre-arrest bail of the accused persons was confirmed---Validity---Only tentative assessment of record was to be considered and deeper appreciation of evidence was not permissible---When bail was granted by a court of competent jurisdiction then very strong reasons were required for its cancellation---For cancelling the bail, court had to see whether accused after released on bail was misusing concession of bail or creating hindrance for complainant party or due to release of accused lives of prosecution witnesses were at risk and that the accused was tampering with prosecution evidenced in any manner---Nothing was available on record was suggestive of the fact that accused persons after their release on bail had put pressure upon Investigating Officer of the case which created hindrance in investigation of the case---If accused persons had pressurized the investigating officer, then under such circumstances investigating officer should have moved an application for cancellation of bail---Mere words of complainant were not enough to hold accused persons guilty of misuse of concession of bail---High Court declined to cancel bail of accused persons as Trial Court had rightly held that it was a case of further inquiry---High Court did not find any illegality or irregularity in the order passed by Trial Court while extending concession of bail---Application was dismissed in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Ehtesab Bureau, Azad Jammu and Kashmir v. Muhammad Hanif Shaikh and another 2004 PCr.LJ 996 and Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66 ref.

Applicant in person.

Aamir Lehri, Behlol Kasi and Muhammad Dawood Kasi for Respondents Nos. 1 and 2.

Abdul Sattar Durrani, Additional P.G. for the State.

Date of hearing: 25th November, 2015.

2016 M L D 966

[Balochistan]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

WALI MUHAMMAD---Petitioner

Versus

ABDUL WAHID and 3 others---Respondents

C.P. No.388 of 2011, decided on 22nd December, 2015.

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

----Ss.12(2)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Transfer of ownership of official accommodation on permanent basis---Fraud and misrepresentation---Decree, setting aside of---Contention of applicant was that impugned decree was obtained through fraud and misrepresentation---Application for setting aside of decree was dismissed concurrently---Validity---Respondent-plaintiff was bound to issue notice to the Government through its Secretary---Government was entitled to 90 days period for filing of written statement in the suit---Suit was decided by the Trial Court within a period of two months which was contrary to the mandate of S.80, C.P.C.---Proceedings conducted by the Trial Court in the suit were unsustainable and untentable---Callous attitude of public functionaries should not be allowed to culminate in deprivation of public of its property that belonged to it---Impugned judgment and decree had been obtained by practicing fraud upon the Trial court---Subsequent orders passed by the Trial Court and revisional court would lack legal substance---Department was not vested with any power to allot/transfer the ownershipo of residential building to anyone on permanent basis---Suit was incompetent as plaintiff had no legal right and title to have had filed the suit---Impugned orders passed by the courts below were set aside and suit filed by the plaintiff was dismissed---Government was directed to ascertain the status of all public buildings and ensure that said buildings were safe and secure, no encroachment and permanent allotment transferring the ownership had been made or would be made and responsibilities of delinquent official should be fixed who failed to defend the public property during the pendency of suit---Result of action so taken should be sent through Registrar of High Court for perusal in Chamber---Constitutional petition was allowed in circumstances.

Assistant Commissioner, Latifabad, Hyderabad and 2 others v. Messrs Muhammadi Enterprises through Managing Partner PLD 1999 Kar. 329; Provincial Government through Collector, Kohat and another v. Shabbir Hussain PLD 2005 SC 337; Zarai Taraqati Bank Ltd. v. Said Rehman and others 2013 SCMR 642 and Haji Farmanullah v. Latif-ur-Rehman 2015 SCMR 1708 distinguished.

(b) Administration of justice---

----Courts being custodian of public property were required to remain careful and cautious while dealing with the cases involving public property.

Nemo for Petitioner.

Adnan Ejaz, Rehmatullah and Amanullah Durrani for Respondent No.1.

Shai Haq Baloch, A.A.G. for Official Respondents.

Date of hearing: 22nd October, 2015.

2016 M L D 1012

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Muhammad Ejaz Swati, JJ

ALI KHAN---Petitioner

Versus

SUPERINTENDENT CENTRAL JAIL, MACH and 2 others---Respondents

C.P. No.861 of 2014, decided on 7th March, 2016.

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

----Ss.35 & 397---Conviction of several offences at different trials---Concurrent running of sentences---Scope---Contention of accused was that he had already served more than forty five years imprisonment---Validity---Case of the accused had been specifically dealt with by the Supreme Court and relief claimed had been declined---High Court could not go beyond the judgment of Supreme Court---Constitutional petition was dismissed in circumstances.

Mst. Bibi Shahista and another v. Superintendent, Central Jail Mach PLD 2015 SC 15; Shah Hussain v. The State PLD 2009 SC 460; Bhai Khan v. The State PLD 1992 SC 14; Hameed Akhtar Niazi v. Secretary Establishment Division Government of Pakistan 1996 SCMR 1185; Government of Punjab, through Secretary Education, Civil Secretariat Lahore v. Sameena Parveen 2009 SCMR 1 and Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2013 SC 195 distinguished.

(b) Constitution of Pakistan---

----Art. 189---Decision of Supreme Court---Binding effect---Scope---Decision of Supreme Court was binding on all the courts in Pakistan.

Azmatullah Kasi, Masoom Khan Kakar and Manzoor Rehmani for Petitioners.

Muhammad Saleem, Additional Advocate General for Respondents.

Date of hearing: 30th November, 2015.

2016 M L D 1990

[Balochistan (Sibi Bench)]

Before Muhammad Kamran Khan Mulakhail, J

NISAR AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. (s)158 of 2013, decided on 21st November, 2014.

Penal Code (XLV of 1860)---

----S. 489-C---Possessing forged or counterfeit currency-notes or Bank Notes---Appreciation of evidence---Certificate of the State Bank of Pakistan, that alleged currency note was examined by the expert who found it forged one, was neither conclusive nor speaking; as it did not contain the name of the concerned Currency Officer---Said certificate was also silent about the procedure adopted for examining the alleged forged currency note---Single line report, which was inclusive and non-speaking, did not provide requisite strength to the prosecution's case---Said Currency Officer was not produced by the prosecution and his report was tendered through the Investigating Officer---Since the Currency Officer was not a notified expert of the Government, he was not exempted from appearance---Without presence of Currency Officer said report was also not admissible in evidence---Nothing was on record to suggest that accused knew or had reason to believe that said currency note was forged or that he intended to use it as genuine---Conviction of accused, was not warranted by the evidence produced against him---Conviction and sentence of accused, were set aside, he was acquitted and was directed to be released forthwith, in circumstances.

Shafique Sajid v. The State 1988 PCr.LJ 1553; Azmat Khan v. The State 2000 PCr.LJ 1461 and Muhammad Aslam v. The State 2010 PCr.LJ 198; Amanat Ali v. The State 1971 PCr.LJ 53, M. Mammutti v. State of Karnataka AIR 1979 SC 1705, Hassan v. The State 1984 PCr.LJ 1281, Shafique Sajid v. The State 1988 PCr.LJ 1553 and Ashraf Mian v. The State 1989 PCr.LJ 1079 ref.

Zameer Ahmed for Appellant.

Nemo for Respondent.

2016 M L D 2064

[Baluchistan (Sibi Bench)]

Before Muhammad Kamran Khan Mulakhail and Ghulam Mustafa Mengal, JJ

ABDUL RAZZAQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-18 and Murder Reference No.S-1 of 2014, decided on 24th July, 2014.

Penal Code (XLV of 1860)---

----S. 302(c)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Case of the prosecution mainly rested upon the circumstantial evidence---Court, in case of circumstantial evidence was bound to be on guard, while appraising the evidence and to see that each circumstance was proved independently and was so connected with the other circumstances that it constituted an unbroken chain and led to no other inference, but to the guilt of accused---Accused had neither denied the recovery of dead body of his legally wedded wife from his house, nor offered any explanation, as to how and under what circumstances his deceased wife, while sleeping in his house, during night, sustained firearm injuries---Accused had made a clean breast extra judicial confession before the complainant regarding murder of his wife---Accused was arrested after about more than 8 months of occurrence; during that period accused neither reported the matter to Police Authorities, nor attended the funeral ceremony of his wife---Such conduct of accused, could lead to the inference that, none else but the accused had committed the murder of his wife---Neither the witnesses nor the complainant had any motive or grudge against accused---Extra judicial confession, was also not proved to be the result of prompting or consultation---Was not necessary in every case to bring on record evidence directly, connecting accused with the crime, nor lack of direct evidence, would mean that the guilt could not be fixed, if there were strong circumstances existing on record against accused---Nothing was on record to suggest that accused was unhappy with his deceased wife; accused would have no reason to commit murder of the deceased---Circumstances, under which the occurrence took place showed that something suddenly had happened between accused and the deceased, which provoked him and lost self-control---Case, in circumstances, was not of death penalty keeping in view the principles of mitigating circumstances, charge under S.302(c), P. P. C. was altered to that of under S.302(b), P.P.C.---Accused would suffer life imprisonment with fine of Rs.1,00,000---Murder reference was answered in negative, in circumstances.

The State v. Manzoor Ahmed and Muhammad Ismail Khan v. Manzoor Ahmed, PLD 1966 SC 664; Ghulam Muhi-ud-Din v. The State 2014 SCMR 1034 and Hassan v. The State PLD 2013 SC 793 ref.

Ahsan Rafiq Rana for Appellant (in Criminal Appeal No.S-18 of 2014).

Abdullah Kurd for the State (in Criminal Appeal No.S-18 of 2014).

Abdullah Kurd for the State (in Murder Reference No.S-1 of 2014).

Ahsan Rafiq Rana for the Convict (in Murder Reference No.S-1 of 2014).

2016 M L D 542

[Shariat Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

IFTIKHAR AHMAD---Petitioner

Versus

MOHIB AGHAZ and another---Respondents

Cr. Revision Petition No.34 of 2014, decided on 26th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.324, 337-A(i) & 341---Attempt to commit qatl-i-amd, causing Shajjah-i-Khafifah, wrongful restraint---Bail, cancellation of---Accused after occurrence, remained absconded for more than ten months---Such conduct of accused, would disentitle him to some of the normal rights, including right of bail granted by the procedural and substantive law---Said absconsion, had not been sufficiently explained by accused before the Trial Court---Conduct of accused, would disentitle him to the concession of even post arrest bail---No doubt, challan had already been submitted before the Trial Court; accused was no more required for investigation; and if his bail was cancelled; he was sent behind bars, and ultimately he was acquitted, there would be no price for agony he would suffer; but in the present case, the peculiar facts and circumstances, especially when accused remained absconder for a pretty long time, suggested that; tendency of absconsion after committing an offence by criminals ought to be eliminated to keep the society non-violent and peaceful---Impugned order whereby application for cancellation of bail of accused was dismissed, was set aside---Accused would be taken into custody and he would be sent to judicial lock up.

PLD 1988 SC 726; 2002 MLD 1268 and Mushtaq Hamed v. The State 2000 SD 698 ref.

2005 PCr.LJ 1843; 2011 SCR 126; 2011 SCR 80; 2011 SCR 244 and 2012 PCr.LJ 1560 distinguished.

Mallick Muhammad Zarat Khan for Petitioner.

Rafiullah Sultani for Respondents.

Ch. Muhammad Ashraf Ayyaz, Addl. A.G. for the State.

2016 M L D 618

[Shariat Court (AJ&K)]

Before Azhar Saleem Babar, J

MUHAMMAD IMTIAZ KHAN---Appellant

Versus

SHAKEELA ZAFEER and another---Respondents

Family Appeal No.50 of 2015, decided on 10th September, 2015.

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----Ss. 5, Sched. & 14---Suit for recovery of maintenance allowance---Execution petition---Interim order---Appeal---Maintainability---Family Court ordered to pay amount of decretal amount in installments---Contention of judgment-debtor was that nothing was outstanding against him---Validity---Court below had calculated the amount on the basis of its record---Nothing was on record to rebut the conclusion arrived at by the court below---Impugned order being interim order did not fall within the definition of a "decree" or a "judgment"---Appeal was not competent in circumstances---Appeal was dismissed.

1987 SCMR 1161 and 1988 CLC 1645 ref.

2004 MLD 510 rel.

(b) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 14---Appeal against interim order---Scope---Appeal against interim order is not competent.

(c) Azad Jammu and Kashmir Shariat Court Act (IX of 1993)---

----S. 19---Appeal before Shariat Court---Court fee, affixation of---Scope---Appeal before the Shariat Court was not maintainable without affixing of court fee.

Tahir Anwar Khan for Appellant.

Sardar Shamshad Hussain Khan for Respondent.

2016 M L D 665

[Shariat Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

AQEEL TARIQ---Petitioner

Versus

IRFAN SULTAN and 3 others---Respondents

Criminal Revision No.112 of 2015, decided on 4th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.448, 337-A & 337-F---House-trespass, causing injuries---Grant of pre-arrest bail---Re-calling of order---Scope---Challan of the case had been submitted before the court of competent jurisdiction; and the case was at the verge of evidence---Bail, once extended to an accused, could only be recalled for certain inevitable reasons; and same could not be done in routine---Order granting bail, could not be interfered with, in circumstances.

2015 SCR 588; 1994 SCR 912; PLD 1986 SC (AJ&K) 16 and 1998 SCMR 496 distinguished.

1996 PCr.LJ 569; 1996 SCR 3; 2014 SCR 579; 2010 SCR 491 and 2015 SCR 465 ref.

Abdul Razzaq Choudhary for Petitioner.

Mohammad Younas Tahir for Respondents Nos. 2 and 3.

A.A.-G. for the State.

2016 M L D 161

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

Syed ABID HUSSAIN SHAH and 3 others---Appellants

Versus

ADMINISTRATOR AUQAF, AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and another---Respondents

Civil Appeal No.17 of 2014, decided on 18th May, 2015.

(On appeal from the judgment of the High Court dated 12-9-2013 in Civil Appeals Nos.67 and 68 of 1999).

Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O.XIII, R.3---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 42-A---Civil petition for leave to appeal---Non-filing of copy of memorandum of appeal---Effect---Appellants filed application only for obtaining copy of impugned judgment---No application was filed for obtaining copy of memorandum of appeal---No case was made out for dispensation of requirements of R. 3 of O.XIII of Azad Jammu and Kashmir Supreme Court Rules, 1978 for filing copy of memorandum of appeal and condonation of delay for the same---Provisions of O. XIII, R. 3 of Azad Jammu and Kashmir Supreme Court Rules, 1978 were mandatory in nature and non-compliance of the same would merit dismissal of petition for leave to appeal/appeal---Appellants were not entitled for dispensation of requirement of R. 3 of O. XIII of Azad Jammu and Kashmir Supreme Court Rules, 1978 or condonation of delay for filing the copy of memorandum of appeal---Civil petition for leave to appeal was not competently filed---Appeal was dismissed by the Supreme Court in circumstances.

Government of Pakistan and another v. Tariq Hussain Farooqui and 3 others PLD 1984 SC (AJ&K) 47 ref.

Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 2000 SCR 70 rel.

Abdul Rasheed Abbasi for Appellants.

Kh. Muhammad Nasim for Respondents.

Date of hearing: 5th May, 2015.

2016 M L D 209

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

SIKANDER HABIB---Appellant

Versus

SHAISTA JABEEN and 3 others---Respondents

Civil Appeal No.25 of 20143, decided on 30th January, 2015.

(On appeal form the judgment and decree of the Shariat Court dated 31-1-2013 in Civil Appeal No.57 of 2012)

(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---Restitution of conjugal rights---Appeal to Supreme Court on the basis of power of attorney---Scope---Family Court passed decree for restitution of conjugal rights but Shariat Court dismissed the suit---Husband filed appeal before the Supreme Court through attorney---Contention of wife was that attorney could not file appeal in matrimonial matters---Validity---Husband had specifically authorized the attorney to file appeals, persue the matters in the revenue, civil/sessions court or criminal courts and appeals in the superior courts---Executant had not authorized the attorney to file suit or appeals with regard to matrimonial matters---Strict compliance should be made to the recitals of power of attorney---Had the intention of the husband be to authorize the attorney for matrimonial matter, he should have specifically mentioned the same---Attorney was not authorized by the husband to act on his behalf in the matrimonial matters---Executant had authorized the attorney only with regard to filing of suits or appeals in respect of revenue, civil and criminal matters---Appeal having been filed incompetently was dismissed by the Supreme Court.

Gul Taj Begum v. Lal Hussain and another PLD 1980 SC (AJ&K) 60 and Muhammad Afsar Khan and another v. Khadim Hussain and 3 others PLD 1978 SC (AJ&K) 143 rel.

(b) Power of attorney---

----Strict compliance should be made to the recitals of power of attorney.

Kamran Tariq Advocate for Appellant.

Sh. Masood Iqbal Advocate for Respondents.

Date of hearing: 27th January, 2015.

2016 M L D 365

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD MISKEEN and 7 others---Appellants

Versus

SHABIR HUSSAIN and 4 others---Respondents

Civil Appeal No.252 of 2013, decided on 28th April, 2015.

(On appeal from the judgment and decree of the High Court dated 07.09.2013 in Civil Appeal No.206/2005)

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

----S. 42---Limitation Act (IX of 1908), Ss. 3 & 18---Suit for declaration---Inheritance---Fraud---Effect---Limitation---Discretionary relief---Impugned mutation was illegally sanctioned against the facts in favour of a person who was not entitled for inheritance---Fraud would vitiate the most solemn proceedings---Any transaction or act based on fraud could be challenged when it was discovered to the concerned aggrieved party---Suit could not be dismissed merely on the basis of limitation rather question of limitation had to be resolved keeping in view the facts and circumstances of the case---Courts below had recorded findings of facts on the basis of proper appreciation of material brought on record---Findings of facts recorded by the courts below did not suffer from any legal infirmity---Appeal was dismissed in circumstances.

Muhammad Najeeb v. Muhammad Javed and 4 others 2013 SCR 172 and Pardool and 3 others v. Gulzada and others PLD 1995 SC 410 ref.

Mst. Muridan Bibi and another v. Ghulam Fareed and 7 others 2014 CLC 1362 rel.

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

----S. 18---Fraud---Effect---Any transaction or act based on fraud could be challenged when it was discovered to the concerned aggrieved party.

(c) Fraud---

----Fraud would vitiate the most solemn proceedings.

Sardar Abdul Sammie Khan for Appellants.

Sardar Pervaiz Akhtar for Respondents Nos. 1 and 2.

Date of hearing: 15th April, 2015.

2016 M L D 407

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD TUFAIL and 3 others---Petitioners

Versus

MUHAMMAD IDREES and 2 others---Respondents

Civil Appeal No.39 of 2013, decided on 7th May, 2015.

(On appeal from the judgment and decree of the High Court, dated 9-5-2012 in Civil Appeal No.337 of 2006)

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

----S.39---Suit for cancellation of consent decree---Shamilat deh land---Declaratory decree for ownership with regard to Shamilat deh land could not be passed by a civil court---Defendants were in illegal possession of suit land---Consent decree was passed which was collusive one---Plaintiffs were owners in the village since long---Decree for possession had correctly been passed by the courts below---Owner in the village would be a sharer in the whole Shamilat deh land---Decree for specific possession against a stranger could be passed on the suit by an owner in the village---Defendants had failed to prove that they were owners in the village and were holding possession of Shamilat deh land on the basis of their respective share---No illegality had been pointed out in the judgment and decree passed by the High Court---Appeal was dismissed in circumstances.

Abdul Shakoor v. Muhammad Rafique and 8 others 2013 SCR 771 distinguished.

Khalid Hussain and 3 others v. Haji Muhammad Rafique and another 2008 CLC 1737 and Elahi Bakhsh v. Budha and another 1968 SCMR 328 rel.

(b) Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XV, R. 8---Petition for leave to appeal against dead person---Application for substitution of legal representatives---Limitation---Condonation of delay---Sufficient cause---Scope---Respondent died during pendency of appeal in the High Court---Petition for leave to appeal was filed in the Supreme Court against dead person---Application for impleading representatives of respondent might be filed within a period of 90 days---Court had power to extend the time if sufficient cause was shown by the party---Application for impleadment of legal representatives of dead person had been filed beyond the period of limitation---No case for extension of time was made out by the applicants---Suit or appeal against a dead person was not maintainable---Application for impleadment of legal representatives of dead person was dismissed in circumstances.

Muhammad Ibrahim v. Custodian Evacuee Property and 10 others 1999 YLR 2336 rel.

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

----O. XLI, R. 27---Additional evidence, production of---Scope---Defendants wanted to bring on record the documents which were available at the time of filing of written statement---Right had accrued to the plaintiffs after decree had been passed by the courts below which could not be taken away by allowing the application for production of additional evidence---Application for additional evidence could not be allowed as the persons to whom a right had accrued on the basis of decree of the court below had not been impleaded as party---Finding recorded by the High Court was unassailable---Application for production of additional evidence was dismissed in circumstances.

Ch. Muhammad Mumtaz for Appellants.

Zaffar Hussain Mirza for Respondent No.3.

Date of hearing: 27th April, 2015.

2016 M L D 1514

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Raja GUL NAWAZ---Appellant

Versus

KAMRAN and 7 others---Respondents

Civil Appeal No.l63 of 2013, decided on 20th October, 2015.

Civil Procedure Code (V of 1908)---

----O.VII, R.11(a)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Plaint, rejection of---Scope---Plaint was rejected having no cause of action---Validity---Court should have proper appreciation of contents of plaint while rejecting the same---If contents of plaint did not disclose cause of action, same could be rejected---Courts below had neither made proper appreciation of contents of the plaint nor same had been discussed---Impugned order having non-speaking, was not maintainable which was set aside---Case was remanded to the Trial Court for reappraisal of plaint and recording speaking order in accordance with law---Appeal was allowed in circumstances.

Muhammad Younas Arvi v. Muhammad Aslam 2012 CLC 1445 rel.

Riaz Inqilabi for Appellant.

Raja Khalid Mehmood, and Ch. Yasir Mehmood for Respondent.

Date of hearing: 19th October, 2015.

2016 M L D 1999

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Mst. NAFEESA MANZOOR---Appellant

Versus

AZAD JAMMU AND KASHMIR UNIVERSITY through Vice-Chancellor, Muzaffarabad and 7 others---Respondents

Civil Appeal No.15 of 2015, decided on 21st December, 2015.

(On appeal from the judgment of the High Court dated 5.8.2014 in Writ Petition No.1663 of 2013).

(a) Semester Regulations of University of Azad Jammu and Kashmir (Muzaffarabad)---

----Regln. 15---Students having equal percentage in the examination---Award of Gold Medal---Scope---Petitioner and respondent being students of M. Sc. Physics in the University secured equal grades---Respondent-student was awarded Gold Medal but petitioner was deprived of the same---Contention of petitioner-student was that she was also entitled for award of Gold Medal---Validity---Formula according to which percentage of both the contestants was equal had to be adopted---University in such like cases had already awarded the Gold Medals to more than one students whose merit was equal---Petitioner student also deserved for award of Gold Medal in circumstances---Authorities should make rules more clear and definite so that such like disputes might not arise as every student had not such sources or determination to seek his right at the judicial forum---Impugned judgment passed by the High Court was recalled and writ petition was allowed---Both the petitioner and respondent were declared to be entitled for award of Gold Medals---Appeal was allowed in circumstances.

(b) Interpretation of statutes---

----When there were two methods or provisions, method or provision which would favour the citizens had to be adopted.

Muhammad Asif Khan and others v. Azad Government and others 2014 PLC (C.S.) 534; Ch. Javaid Mehdi v. Chief Election Commissioner and others PLJ 2004 SC(AJ&K) 245; Messrs Spinning Mills v. Deputy Collector Central Excise and others 2004 PTD 2479; Imran Ali v. Public Service Commission and 4 others 2014 PLC (C.S.) 442 and Province of West Pakistan and another v. Mahboob Ali and another PLD 1976 SC 483 rel.

Sardar Abdul Sammie Khan for Appellant.

Syed Mushtaq Hussain Gillani and Farooq Hussain Kashmiri for Respondents.

2016 M L D 2050

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

MUHAMMAD SADIQ---Appellant

Versus

MUHAMMAD RAFIQUE and others---Respondents

Civil Appeal No.124 of 2013, decided on 28th November, 2015.

(On appeal from the judgment and decree of the High Court dated 20.2.2013 in Civil Appeal No.22 of 2007).

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S. 12(2)---Suit for declaration---Maintainability---Consent decree---Cancellation of---Suit for declaration for cancellation of compromise decree was filed which was decreed---Contention of defendant was that plaintiffs were to challenge the decree through an application under S. 12(2), C.P.C. rather to file a fresh suit-Validity-Plaintiffs challenged the consent decree and mutation sanctioned thereof on the basis of said decree on the grounds of being illegal, fictitious, based on fraud and inoperative on their rights---Plaintiffs had also challenged the validity of the judgment and decree on the other grounds apart from those mentioned in S.12(2), C.P.C.---Suit for setting aside the judgment and decree was competently filed and defendant had failed to prove the ownership in the land in dispute---Findings recorded by the courts below were based on cogent reasons---No misreading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below---Appeal was dismissed in circumstances.

Mst. Gulzar Begum v. Asif and others 1994 SCR 116 and Abdul Ghani Farooqi v. Chairman, AJ&K Council and 2 others 1999 PLC (C.S.) 1527 ref.

Muhammad Bashir Khan v. Muhammad Sharif and 2 others 2011 SCR 214; Safdar Ali Khan v. Azad Govt. and 2 others 2010 MLD 1980 and Muneer Hussain Shah and others v. Kazim Hussain Shah and others 1999 CLC 828 rel.

Abdul Majeed Mallick for Appellant.

Raja Hassan Akhtar for Respondents.