MLD 2017 Judgments

2017 M L D 701

[Federal Shariat Court]

Before Riaz Ahmad Khan, C.J. and Mrs. Ashraf Jahan, J

SALAMAT ALI---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.13/K of 2015, decided on 16th December, 2016.

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

----Ss. 302(b) & 364-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Qatl-i-amd, kidnapping or abducting a person under age of fourteen, kidnapping or abducting in order to subject person to unnatural lust---Sperm could not be matched with the sample taken from accused, Trial Court had rightly found that offence of S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, could not be proved against the accused---Murder of a child aged about four years was committed in a very brutal manner---Confessional statement of accused, wherein, he, in clear words, had confessed about the commission of crime before the Magistrate---Magistrate recorded confessional statement of accused after fulfilling all the legal requirements---Confessional statement of accused was recorded after 11 hours of his arrest---Magistrate before recording confessional statement, had given two hours' time to accused to ponder; all relevant necessary questions and codal formalities were completed---Confessional statement of accused being voluntary, Trial Court had rightly believed the same---Complainant, in the present case, was real brother of accused, who had supported the case of the prosecution completely---No reason existed as to why said prosecution witness would implicate accused falsely---Mashir, no doubt, did not support the case of prosecution in respect of arrest of accused and recovery of hatchet (weapon of offence), but co-mashir supported the case of prosecution to the extent of arrest of accused---Judgment of Trial Court was based on sound reasons, which did not require any interference---Appeal against judgment of the Trial Court was dismissed, in circumstances.

Asif Mahmood v. The State, 2005 SCMR 515; Zafar Ali and another v. The State 1994 PCr.LJ 956; Anwar Shamim and another v. The State 2010 SCMR 1791; Jamshed Khan v. Muhammad Saeed and others 2010 SCMR 1796; Muhammad Amin v. The State PLD 2006 SC 219; Zakir Khan and others v. The State 1995 SCMR 1793 and Mian Ranjha v. The State 1995 SCMR 1806 ref.

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

----S.164---Confession---Capital punishment---Reliance on confessional statement---Scope---For placing reliance on confessional statement, it was to be seen that same was not only true, voluntary and believable, but should be without fear or any inducement---Capital punishment could be awarded on the basis of retracted confessional statement, if the same was voluntary.

Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Muhammad Amin v. The State PLD 2006 SC 219; Nizam-ud-Din v. Riaz 2010 SCMR 457 and Muslim Shah v. The State PLD 2005 SC 168 rel.

Agha Zafir Ali for Appellant.

Ali Haider Saleem, Assistant Prosecutor General, Sindh for the State.

2017 M L D 1962

[Federal Shariat Court]

Before Zahoor Ahmed Shahwani and Mrs. Ashraf Jahan, JJ

SAID AMIN---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeals Nos.17/I and 18/I of 2016, decided on 6th April, 2017.

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---

----S. 17(4)---Haraabah---Appreciation of evidence---No eye-witness of the incident was on record and the case of prosecution hinged upon circumstantial evidence---Alleged recovery of skeleton of the deceased on pointation of accused from a field of sugarcane, was not helpful to the case of prosecution, because no post-mortem report was available to show that alleged recovered skeleton was that of the deceased---Recovery of crime weapon/pistol and live rounds on pointation of accused from his residential room was also not helpful to the case of the prosecution; because neither any empties had been recovered from the place of occurrence, nor any matching report had been obtained---No medical report was available to ascertain that deceased in fact had received any bullet injuries---Recovery of mobile phone and SIM belonging to deceased on pointation of accused, was also doubtful, as no document was available on the record to conclude that alleged recovered mobile belonged to the deceased or same was in his use---No data was collected to confirm that said phone SIM was in use of deceased---Recovery of NIC of deceased, was not helpful to the case of prosecution, because the alleged room from where NIC was recovered, was not in exclusive use and occupation of accused---Independent recovery mashir was not produced by the prosecution---Sole independent witness, was not examined by the prosecution to corroborate the recoveries---FIR, was lodged by the complainant with unexplained delay of about one month---Accused were produced before concerned Judicial Magistrate for getting recorded their confession statements under S.164, Cr.P.C., but they refused to do so---Prosecution failed to produce the alleged recovered generator tractor trolley, which was allegedly recovered on pointation of accused---Prosecution was unable to collect concrete evidence against accused persons which could be used for conviction of accused persons---Trial Court without proper appreciation of evidence had convicted and sentenced accused persons, which called for interference by the Federal Shariat Court---Order of conviction and sentence passed by the Trial Court were set aside, accused were acquitted of the charge and were ordered to be set at liberty forthwith, in circumstances.

PLD 1957 SC (Pak) 257; 2012 SLR (FSC) 508; 2012 SLR (FSC) 625; 1987 SCMR 1177; 1991 MLD 774; PLD 1973 SC 49; PLD 1985 SC (AJ&K) 125; 1981 SCMR 435; 2005 YLR 2032; PLD 2005 SC 63 p.75; 2004 SCMR 1178 and PLD 2007 SC 539 ref.

Malik Abdul Haq for Appellants.

Arshad Ahmed Khan, Assistant Advocate General, Khyber Pakhtunkhwa for the State.

2017 M L D 40

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

ZAID and another---Petitioners

Versus

The STATE---Respondent

Cr. Misc. Nos. 163 and 168 of 2015, decided on 18th March, 2016.

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

----Ss. 497(2) & 169---Penal Code (XLV of 1860), Ss. 302, 114 & 34---Qatl-i-amd, abetment and common intention---Release of accused by the police---Rule of consistency---Scope---Further inquiry---Bail, grant of---Contention of accused was that co-accused having been attributed effective firing had been released on bail by the police---Validity---If accused was released by the Investigating Officer under S.169, Cr.P.C. then remaining accused could not claim bail on the ground that co-accused had been released on bail as such---Rule of consistency could only be pressed if an accused with similar and identical role was released on bail by the court of competent jurisdiction and others were declined the same concession---Accused were in judicial lock up since long whereas their co-accused had been declared innocent by the Investigating Officer---No weapon of offence had been recovered from the accused---Case against the accused was one of the further inquiry---Accused were granted bail in circumstances.

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

----Ss. 169 & 190(1)---Release of accused by the police---Scope---Courts could not impeach upon the jurisdiction of police to change its opinion and to bring it in conformity with their opinion---Powers exercised by the Investigating Officer under S. 169, Cr.P.C. could not be disturbed by Sessions Judge or even by the High Court till cognizance of the case was taken by the competent court of jurisdiction but such powers were not unfettered---Copy of present judgment was directed to be sent to Inspector General of Police who would circulate the same to all the Superintendents of Police to follow the same in letter and spirit and Investigating Officer should not exercise the powers like bounty and very spirit of S. 169, Cr.P.C. should not be defeated.

Johar Ali Khan and Amjad Hussain Hussain for Petitioners.

Malik Sher Baz, Dy. A.G. for the State.

Munir Alam for the Complainant.

2017 M L D 183

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

IKHLAQ HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. No.145 of 2015, decided on 12th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.336, 337-A, 324 & 354---Pakistan Arms Ordinance (XX of 1965), S.13---Itlaf-i-Salahiyyat-i-Udw, causing Shajjah, attempt to commit qatl-i-amd, assault or criminal force to woman with intent to outrage her modesty, possessing unlicensed arms---Bail, grant of---Further inquiry---Medical report, showed simple injuries to the victim of occurrence---Question with regard to offences under Ss.336 & 337, P.P.C., therefore, was one of further inquiry---Victim being wife of accused, question of application of S.354, P.P.C., was also that of further inquiry---Occurrence had taken place in the house of accused and was result of a very petty dispute between the home-mates of accused---Trial Court was yet to determine as to whether occurrence had happened at the spur of moments, or was perpetrated---Bail was granted.

Imran Hussain for Petitioner.

Deputy Advocate General for the State.

Sherbaz Khan for the Complainant.

2017 M L D 238

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

MUHBAT JAMAL---Petitioner

Versus

The STATE---Respondent

Criminal Misc. (B) No.104 of 2015, decided on 11th September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392---Robbery---Bail, grant of---Further inquiry---Plea of accused, was, that he had taken the he-goats of the complainant party from his herd of goats as a customary fine; and never with any other intention---Plea taken by accused, needed further consideration---Trial Court, was yet to determine that taking of the he-goats, was as a customary fine or amounted to any offence---Such very fact, was sufficient to hold that the case was one of further inquiry; and accused was entitled to concession of bail---Accused was released on bail, in circumstances.

Amjad Hussain for Petitioner.

2017 M L D 303

[Gilgit-Baltistan Chief Court]

Before Yar Muhammad and Malik Haq Nawaz, JJ

MALANG---Petitioner

Versus

The STATE---Respondent

Criminal Misc. No.40 of 2016, decided on 7th April, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25---Possessing and trafficking narcotics---Bail, grant of---Despite prior information, no independent private persons were associated with recovery proceedings---Section 25 of Control of Narcotic Substances Act, 1997, no doubt, excluded the association of private witnesses, but, it did not confer unbridled right to public to make it an excuse for all cases, when there was chance that either accused would disappear from the scene; or the narcotics removed somewhere else---Conduct of Police, could not be given shelter; and non-association of independent witnesses, would favour accused, even for limited purpose of bail---Shop of accused (place of recovery) was situated in a thickly populated area; and local Police had no authority to search the shop without resorting to codal formalities provided under law to carry out the search, which had also not been followed, rather violated---Maximum punishment provided for the offence was only up to 7 years, which did not fall within the prohibitory clause of S.497, Cr.P.C.---Concession of bail was extended to accused, if there were no compelling circumstances to refuse the same---Accused, was neither habitual, nor a previous convict and there existed no special circumstance to refuse the concession of bail to him---Accused was admitted to bail, in circumstances.

Shahbaz Ali for Petitioner.

Deputy A.G. for the State.

2017 M L D 343

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C J

YOUSAF ALI and 2 others---Appellants

Versus

Mst. ASIA BROHI---Respondent

C.F.A. No.31 of 2015, decided on 25th March, 2016.

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

----Ss. 10, 11(a), 39 & 47---Appointment and removal of guardian of minors---Application for issuance of guardianship certificate was filed by grandfather of minors, while mother of the minors was alive---Case was fixed within three days, but neither specific notice was issued to mother of the minors for her appearance, nor any publication was made in the newspapers---Provisions of S.11(a) of the Guardians and Wards Act, 1890, provided that court was duty bound to cause notice, and its service would be directed, strictly in accordance with the provisions of O. V, C.P.C.---Mother of the minors was not properly served with regard to application filed in the court by grandfather of minors for grant of guardianship certificate, regarding her minor children---Court issuing guardianship certificate, did not follow the mandatory provisions of law, which was total disregard of the provisions of Guardians and Wards Act, 1890 and caused serious injury to mother of the minors/wards---Said act of the court was within the ambit of provisions of S.39(e) of the Guardians and Wards Act, 1890, through which the court had jurisdiction to remove the guardian appointed by the court itself---Guardian Judge vide impugned order, had very carefully attended the matter in true sense and spirit of law relevant to the matter, which did not call for any interference by the Chief Court---Appeal was dismissed.

Johar Ali for Appellants.

2017 M L D 386

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Malik Haq Nawaz, JJ

ATTA-UR-RAHMAN and another---Petitioners

Versus

The STATE---Respondent

Cr. Misc. No.35 of 2016, decided on 6th April, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss.324, 353, 186, 224 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant to discharge of public functions, resistance or obstruction by a person to his lawful apprehension, common intention---Act of terrorism---Bail, refusal of---Accused persons, were directly charged in the FIR, and they were arrested red-handed after chase and encounter with the Police and Law Enforcing Agencies---One Army Jawan was injured because of the firing opened by one of the accused---Weapons of offence, had also been recovered from the accused persons; and motorbike which was used in commission of offence by accused persons, was also taken into possession---Other accused was privy to the offence, and had shared intention with two of his co-accused---Bail could not be granted to said accused---Petition being meritless was dismissed, in circumstances.

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

----S. 34---Common intention---Scope---Not necessary that there must have an overt act on the part of an accused---If an accused seemed to have been present at the place of occurrence, he could be burdened with the liability of common intention, which could be gathered from the surrounding and peculiar circumstances of a particular case.

Burhan Wali for Petitioners.

Dy. A.G. for the State.

2017 M L D 441

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

WASEEM MASIEH---Petitioner

Versus

The STATE---Respondent

Cr. Misc. 74 of 2016, decided on 20th May, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.377, 367-A & 343---Sodomy, kidnapping or abducting in order to subject person to unnatural lust, wrongful confinement for three or more days---Bail, grant of---Victim, a non-muslim, had stated that he had left his father's house due to maltreatment of his step mother and took refuge in the house of another person and that he had embraced Islam and was living in the house of said person---Serious allegations were levelled against accused in the FIR and in the statement of the victim, but from the record said house was raided without obtaining any search warrant---If there was a real emergency, at least two respectables of the Mohallah must have been associated at the time of recovery of the victim from that house---Since alleged victim was neglected child, he converted to Islam, which might have caused heart burning to the complainant, being real uncle of the alleged victim---Medical report of the alleged victim was not available on record---Liberty of a person, could not be grudged on the assumptions that accused was charged with a heinous offence, and allegations against him would only mature at trial as there was no concept of advance punishment in criminal jurisprudence---Accused, was admitted to bail, in circumstances.

Muhammad Umar Farooq for Petitioner.

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

2017 M L D 530

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

MUHAMMAD ISMAIL---Petitioner

Versus

The STATE---Respondent

Cr. Misc. 170 of 2015, decided on 5th May, 2016.

Penal Code (XLV of 1860)---

----S. 341---Wrongful restraint---Appreciation of evidence---Prosecution in such a case was duty bound to prove that the complainant, had a right to proceed in a particular way, but where such a right was disputed, then obstruction in its exercise, would not constitute an offence---Almost all prosecution witnesses, differed about the date of obstructing the path---Extending benefit of doubt to accused, he was acquitted from the charge---Accused being on bail, his bail bonds were discharged, and his sureties, were relieved from their liabilities.

Sherbaz Ali Khan for Petitioner.

Dy. A.G. for the State.

2017 M L D 557

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

ABDUR RASHEED---Petitioner

Versus

The STATE---Respondent

Cr. Rev. 7 of 2016, decided on 26th May, 2016.

Penal Code (XLV of 1860)---

----S. 381-A---Criminal Procedure Code (V of 1898), Ss.342, 364(2), 408 & 561-A---Theft of tractor---Appreciation of evidence---Submission of accused was that a case of civil nature had been turned into criminal litigation by the complainant with active cannivance of the local Police---Accused further submitted that his statement under S.342, Cr.P.C., had not been properly recorded---Matter of title of tractor in question and specific performance, were pending before the court of competent jurisdiction---Removal of property on a bona fide claim of right, though unfounded in law and fact, did not constitute theft and whether the claim was bona fide or otherwise, would be based on the peculiar circumstances and facts, for which both the parties were at liberty to seek their remedy, if any, before the court of law---Accused was acquitted by chief court from the charge by setting aside judgments of both the courts below and was released.

Muhammad Saleem Khan and Muhammad Kumail for Petitioner.

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

2017 M L D 664

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

EHLIAN-E-MOZA MASOOT GULMAT through representatives and 2 others---Petitioners

Versus

ALI REHMAT and another---Respondents

Civil Revision No.2 of 2015, decided on 18th May, 2015.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Impleadment as a party---Scope---During pendency of appeal petition for impleadment of party was filed by the plaintiffs which was dismissed by the Appellate Court---Validity---Party required to be impleaded was not claiming any title to the suit land or even any kind of proprietary right to the subject matter of suit---No issue showing claim of title of said party to the suit land was framed by the Trial Court---Adding any party to the case was the discretion of Trial Court---Application for impleadment of party was baseless and based on mala fide which was rightly dismissed---Revision was dismissed in circumstances.

Counsel for Petitioners absent.

Sher Baz Ali Khan for Respondents.

2017 M L D 718

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

Mst. HALIMA---Petitioner

Versus

Mst. FATIMA and 6 others---Respondents

C.Rev. No.10 of 2014, decided on 19th August, 2015.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Plaintiff, who was real daughter of the deceased, owner of property in dispute; prayed for her 'Sharia share' in the property of the deceased---Defendants who were the widow and daughters of the deceased, deprived the plaintiff from her share in the property in dispute, on the grounds, firstly that same shares of the plaintiff, had been purchased by two defendants and secondly that land in dispute was Government land, and had been mutated in the name of one defendant---Burden of alleged sale of shares of plaintiff in favour of the defendants was on defendants, but they failed to produce any marginal witnesses to prove said sale---Attestation of alleged mutation of land in the name of said defendant was not supported by any document---Plaintiff was entitled to her share in the suit land, and the Trial Court had correctly held so---All the defendants had completed partition of almost half of the land among themselves, depriving the plaintiff in said property---Appellate Court below, had declared said land as Government land, just because a column in the revenue papers showed so---Appellate Court failed to appreciate that, if the said land was Government land, then why part of the same had been partitioned among parties---Findings of the Appellate Court were based on mere conjectures, and amounted to misreading of evidence; as well as material irregularities---Chief Court held that suit land was subject to partition between the parties to their 'Sharia shares'---Judgment of Appellate Court was reversed, and that of the Trial Court was upheld, in circumstances.

Muhammad Yaseen for Petitioner/Plaintiff.

Muhammad Nazir for Respondents/Defendants Nos. 1 to 7 and 10.

2017 M L D 761

[Gilgit-Baltistan Chief Court]

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

M.E.F.T. PAKISTAN (PVT.) LTD. through CEO/Chairman---Petitioner

Versus

GILGIT-BALTISTAN through Chief Secretary G.B. and 4 others---Respondents

Writ Petition No.23 of 2015, decided on 24th May, 2016.

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

----Art. 71(2)---Northern Areas Mining Concession Rules, 2003, R. 5---Writ petition---Maintainability---Contract for lease of mining---Cancellation of---Scope---Grounds for alleged cancellation of lease were based on facts---Rights and duties between the parties were result of contractual liabilities---Any party might file suit to prove or rebut the violation of any contractual liabilities---Petitioner filed appeal against the actions of the department before the competent Authority but copy of said appeal was not available on record---Writ petition was baseless and not maintainable which was dismissed in circumstances.

Asadullah Khan and Raja Zia-ur-Rehman for Petitioner.

Assistant Advocate General for Respondents.

2017 M L D 872

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Muhammad, JJ

Haji NAIB SHAH---Appellant

Versus

DASTGUL---Respondent

Civil First Appeal No.45 of 2013, decided on 12th November, 2015.

Civil Procedure Code (V of 1908)---

----O.VII, R.2---Money suit---Plaintiff filed suit for recovery of Rs.11,82,636 with interest of 20% till execution of decree, but Trial Court decreed the suit to the extent of Rs.59,898---Validity---Genuine agreement existed between the parties for doing common business in implementing the suit project---Plaintiff had proved the case---Trial Court had passed impugned decree without any elaboration to the effect that as to why the suit was not decreed throughout and was decreed partly---No plausible reasoning was given in the impugned judgment, showing that the attending circumstances, and evidence available on record forced the Trial Court for decreeing the suit partly---Chief Court allowing appeal, decreed the suit throughout, with profit at the rate of 20% on the suit amount from July 1997 till execution of decree.

Sher Baz Ali Khan for Appellant.

Ali Khan for Respondent.

2017 M L D 916

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

The STATE---Appellant

Versus

SHUKOOR JAN and another---Respondents

Cr. Appeal No.20 of 2016, decided on 6th June, 2016.

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

----Ss. 417, 265-K & 265-D---Appeal against acquittal---Case was fixed for framing of charge, Trial Court instead of framing the charge, discharged accused under S.265-K, Cr.P.C.---Validity---Conclusion reached by the Trial Court was in accordance with the spirit of S.265- D, Cr.P.C. and the Trial Court had rightly discharged accused from the groundless accusations, which were not sufficient to hold accused guilty after carrying out a long and futile exercise of trial---Judgment, could be announced in the absence of accused, if he had been exempted---Judgment of Trial Court being one of acquittal, no legal impediment existed to announce the same in absence of accused, when his co-accused and his counsel were present in the court---Trial Court had exercised the powers under S.265-D, Cr.P.C., and not under S.265-K, Cr.P.C.---Judgment of acquittal was well reasoned and had been delivered after due diligence, which did not require interference by Chief Court.

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

----S. 265-D---Powers to examine record before framing charge---Section 265-D, Cr.P.C., required the Trial Court to peruse all the documents filed by the prosecution to see whether, there was ground to proceed further with the trial of accused or not and such scrutiny was carried out before framing of charge against accused---Powers to examine the record before framing of charge, was confined to the trials before the High Court and Court of Session; and such powers were not conferred on the Magistrate, who under 5.242, Cr.P.C., was not left with any option, but to frame a formal charge when accused appeared before him---Powers conferred under S.265-D, Cr.P.C., were to be exercised sparingly and ordinarily and in normal course of nature, the prosecution should be allowed to produce their evidence---In appropriate cases when the facts alleged by the prosecution, did not constitute or commission of an offence, was prima facie not established, the court, could not and should not desist to discharge an accused under S.265-D, Cr.P.C.---Framing of charge, was not an automatic process and the Trial Court was not supposed to act like a Post Office, just to stamp on the ipse dixit of Police; and if the material on record was not sufficient, the court could discharge accused under S.265-D, Cr.P.C.

Mir Muhammad, Addl. A.G. for the State.

Raja Zia-ur-Rehman for Respondents.

2017 M L D 950

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

MOHAMMAD AMIN SHAH and 24 others---Petitioners

Versus

SHERAZ KHAN and another---Respondents

Writ Petition No.77 of 2014, decided on 4th May, 2016.

Civil Procedure Code (V of 1908)---

----O. IX, R. 13---Ex parte decree, setting aside of---Limitation---Petition for setting aside of ex parte decree was filed after five months when judgment and decree was passed---Contents of order sheet of Trial Court had presumption of correctness---Application for setting aside of ex parte decree was time barred which was correctly dismissed by the Appellate Court---Writ petition was dismissed in circumstances.

Ali Nazar for Petitioners.

2017 M L D 1002

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

MUNAWAR SHAH and another---Petitioners

Versus

MASTANA KHAN through L.Rs. and 4 others---Respondents

C. Misc. No.145 of 2015 in Civil Revision No.18 of 2014, decided on 20th November, 2015.

Pre-emption---

----Impleading of parties in a pre-emption suit--Scope---Suit filed by the plaintiff/pre-emptor was concurrently dismissed by two courts below being time barred---Validity---Petitioners, who were real brothers of the plaintiff, filed petition for impleading them---Counsel for the plaintiff stated that he had no objection if the petition for impleading of parties was allowed, but later on, before conclusion of the arguments, he retracted his admission and opposed the impleadment---Said conduct of the plaintiff, had shown his active connivance with the petitioners which was an abortive attempt on the part of the petitioners and the plaintiff to drag the legal heirs of defendant in the subject litigation----Petition was dismissed in circumstances.

Mohammad Ajmal Khan for Petitioners.

Sher Wali Khan for Respondents Nos. 1 to 4.

2017 M L D 1031

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed and Yar Muhammad, JJ

FARID and another---Appellants

Versus

GHULAM BAQAR---Respondent

C.F.A. 65 of 2014, decided on 2nd June, 2016.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Suit for recovery of money---Parties had entered into oral agreement for supply of Potatoes---Plaintiff/supplier, supplied 1117 bags of potatoes, total amount of which was Rs.24,79,600, but defendants paid Rs.14,79,600, while Rs.10,00,000 were still outstanding against the defendants---Defendants, denied claim of the plaintiff that, the plaintiff had supplied 1117 bags of potatoes for which Rs.14,79,600 had been paid---Defendants failed to prove that they had received 972 bags from the plaintiff instead of 1117 bags---Plaintiff and his witnesses were consistent regarding claim of the plaintiff with regard to suit amount Rs.10,00,000---Findings arrived at by the Trial Court, were based on correct appreciation of law and facts---Maintaining judgment of the Trial Court Chief Court dismissed the appeal.

Khursheed-ul-Hassan for Appellants.

2017 M L D 1081

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed and Yar Mohammad, JJ

NAVEED AKHTAR alias JANI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.25 of 2014, decided on 19th May, 2016.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 21-H & 21-L---Qatl-i-amd, common intention, act of terrorism---Case was that of no eye-witness and the whole prosecution case was based on the alleged dying declaration of the deceased made before the complainant/ father of the deceased and Investigating Officer---Prosecution had failed to connect the involvement of accused in commission of offence---Whole material collected by the prosecution, was in support of its case, including that of the confessional statement of accused recorded under S.21-H of Anti-Terrorism Act, 1997 which had clearly shown that murder of the deceased was committed by co-accused, whose name was not mentioned in column No.1 without any reason---Self-destructive statements of the complainant and prosecution witness/ Investigating Officer, could not be safely relied in the peculiar circumstances of the case---Autopsy report, coupled with the statement of the doctor, who conducted post mortem of the deceased, had confirmed that nature of injuries was such in which it was highly improbable for the person to talk---Prosecution having failed to prove the charges levelled against accused, impugned judgment of the Trial Court was set aside and accused was directed to be released, in circumstances.

Burhan Wali for Appellant.

2017 M L D 1226

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Muhammad, JJ

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Tourism Islamabad and 3 others---Appellants

Versus

HASSAN BROTHERS SATPARA, GOVERNMENT CONTRACTOR, SKARDU---Respondent

C.F.A. No.12 of 2011, decided on 3rd March, 2016.

Arbitration Act (X of 1940)---

----S.14---Arbitration award---Objections---Scope---Trial Court appointed arbitrators who made award against which objections were filed but same were rejected---Validity---Trial Court had neither framed issues in the light of objections and reply thereto nor recorded evidence of the parties in proof and rebuttal of the same---Trial Court had made the award rule of court which contained material beyond the subject matter of the suit---Arbitrators had neither recorded evidence of the parties nor heard them before passing the award---Impugned judgment and decree passed by the Trial Court were set aside and award was cancelled---Case was remanded to the Trial Court with the direction to resume trial from the stage where it was given up---Appeal was allowed accordingly.

Shaukat Ali for Appellants.

2017 M L D 1261

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C J and Malik Haq Nawaz, J

KEKAWAS and 28 others---Petitioners

Versus

PROVINCIAL GOVERNMENT through Chief Secretary Gilgit-Baltistan and 6 others---Respondents

W.P. No.137 of 2016, decided on 19th October, 2016.

Gilgit-Baltistan Local Government Act (III of 2014)---

----Ss. 138, 79, 84, 103 & 104---Notification No. Sec-LG-1(24)/2015-16, dated 14-6-2016---Imposition of slaughtering tax on butchers---Petitioners/butchers, had challenged the imposition of slaughtering tax contending that authorities, were not competent to impose any tax till the Local Government and Body of Municipal Committee would hold a meeting and forward its recommendations to the Local Government; which had not been done and taxes had been imposed arbitrarily, without following the proper procedure---Contention of authorities was that under S.138 of the Gilgit-Baltistan Local Government Act, 2014, the Local Government was competent to make rule for imposition/ collection of necessary taxes from the public, as provided in Third Schedule of the Act and in that context had referred Ss.79, 84, 103 & 104 of the Act---Authorities had also placed on record Notification No. Sec-LG-1(24)/2015-16, dated 14-6-2016, whereby the Government of Gilgit-Baltistan had accorded approval to levy taxes/collection of Local Council revenues i.e. tolls, rates, fees and charges as applicable in the Gilgit-Baltistan under the Third Schedule of Gilgit-Baltistan Local Government Act, 2014---Authorities were collecting taxes on the strength of the Notification issued by the Governer Gilgit-Baltistan; the vires of which had not been challenged by the petitioners on any forum provided under Gilgit-Baltistan Local Government Act, 2014---Act of the Authorities, could not be termed as excess of their authority or beyond the limits of law---Order accordingly.

Amjad Hussain for Petitioners.

Assistant Advocate-General for Respondents.

Khuram, Assistant Commissioner Gilgit in person.

2017 M L D 1290

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

LAL SHIREEN---Petitioner

Versus

MASTANA KHAN through L.Rs. and 3 others---Respondents

Civil Revision No.18 of 2015, decided on 20th November, 2015.

Pre-emption Suit---

----Limitation---Trial Court dismissed the suit holding that plaintiff had failed to prove the suit and that the suit was time barred---Appellate Court also dismissed the appeal holding that the suit of plaintiff was time barred---Validity---Plaintiff had filed suit after about 4 years of his knowledge of sale agreement and failed to point out any material irregularity in the impugned judgment, inviting interference of Chief Court---No misreading of evidence had been pointed out---Petition was dismissed.

Rehmat Karim for Petitioner.

2017 M L D 1360

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

The STATE---Appellant

Versus

Sheikh IQBAL and another---Respondents

Cr. Appeal No. 40 of 2016, decided on 8th November, 2016.

Arms Ordinance (XX of 1965)---

----S. 13---Criminal Procedure Code (V of 1898), Ss. 417 & 249-A, Chap. VI (Ss.68 to 93-C)---Possession of unlicensed arms---Appreciation of evidence---Appeal against acquittal---Accused was arrested in the case registered under Ss.302, 324, 109 & 34, P.P.C. and under Ss.6/7 Anti-Terrorism Act, 1997---Accused during investigation, led to recovery of .30 bore pistol---Separate FIR for possessing unlicensed arms was registered against the accused---Trial Court dealing with the main case sent the case registered under S. 13 Arms Ordinance, 1965 to the court of Judicial Magistrate under the assumption that case was exclusively triable by the Judicial Magistrate---Trial Court acquitted the accused due to non-availability of evidence---Validity---Record of main case showed that crime empties of .30 bore pistol were recovered from the place of occurrence---Said crime empties were found wedded with the .30 bore pistol recovered on the pointation of accused---Accused having been acquitted on flimsy grounds could not be accorded judicial blessing as the Trial Court had not followed the procedure provided in Chap. VI (Ss. 68 to 93-C), Cr.P.C. for procuring attendance of the witnesses---Transfer of the case by the Anti-Terrorism Court was not only illegal but also unwarranted---Recovered pistol was corroborative piece of evidence in the main case---Witnesses of recovery were cited as prosecution witnesses in the calendar of witnesses of main case---Circumstances suggested that acquittal order was passed without legal justification---Appeal against acquittal was allowed accordingly and case was remanded to the Anti-Terrorism Court for its disposal with the main case.

Malik Sher Baz, Dy.A.G. for the State.

Imtiaz Hussain for Respondent No.1.

2017 M L D 1383

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

MUHAMMAD ILYAS---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No.196 of 2016, decided on 28th December, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 489-F & 420---Dishonestly issuing a cheque, cheating and dishonestly inducing delivery of property---Bail, refusal of---Complainant alleged that accused issued a cheque which was dishonoured by the Bank as there was insufficient balance---Contention of counsel for accused that complainant instead of resorting to civil remedy had maliciously opted to lodge FIR was misconceived---No doubt complainant had option to file a civil suit for recovery of amount in question being an appropriate remedy but at the same time for commission of an offence criminal proceedings could also be initiated and both the proceedings could continue side by side---Contention of counsel that offence did not entail parameters which fell within prohibitory clause of S.497, Cr.P.C. did not hold the field as the tendency to issue bogus cheque was increasing day by day and innocent people were being defrauded to deprive of their life savings---Chief Court observed that issuing a bogus cheque would amount to financial murder of a family and needed to be dealt with iron hands---Bail was refused accordingly.

1981 SCMR 37 rel.

Shahbaz Ali for Petitioner.

Addl. A.G. for the State.

2017 M L D 1468

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

QASIM SHAH and 3 others---Petitioners

Versus

TAMEER MILLAT PROGRAM through Manager and 9 others---Respondents

Civil Revision No.12 of 2015, decided on 9th May, 2016.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Scope---Suit land was khudkasht and it was not clear as to how defendant became owner of the said land---Plaintiffs had better title of the suit land---Trial Court was yet to determine title with regard to suit property---Court while granting temporary injunction was supposed to maintain status quo of suit property to avoid multiplicity of litigation---Plaintiffs had good prima facie case in their favour---Both the courts below had come to an incorrect and erroneous conclusion which was material irregularity---Impugned orders passed by the courts below were set aside and defendants were directed to maintain status quo of suit property till final disposal of suit---Revision was allowed in circumstances.

Sher Baz Ali Khan Petitioners.

Amjad Hussain for Respondents Nos.1 to 3.

Additional Advocate General for Respondents Nos. 4 to 10.

2017 M L D 1565

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

HABIBULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Misc. No.05 of 2016, decided on 4th March, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 169---Penal Code (XLV of 1860), Ss.302 & 34---Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, common intention, possessing unlicensed arms---Bail, refusal of---Counsel for accused, argued that Police had released co-accused under S.169, Cr.P.C.; and pressed for release of accused on rule of consistency---State Counsel, had contended that prosecution had initiated proceedings against release of co-accused---Two eye-witnesses, had charged accused and co-accused for the offence---Trial of the case had commenced, and Trial Court had, examined two prosecution witnesses---Chief Court, refused to grant bail to accused and petition was dismissed.

Amjad Hussain for Petitioner.

Deputy Advocate General for the State.

2017 M L D 1583

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

SANG ALI---Petitioner

Versus

SULTAN MEHMOOD through L.Rs.---Respondent

Civil Revision No.87 of 2015, decided on 25th April, 2016.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff and defendant, were real brothers, and suit had been filed by the plaintiff against legal representatives of the defendant---Plaintiff had prayed for declaration to the effect that he was the owner of suit land---Trial Court dismissed the suit, while Appellate Court maintained the judgment of the Trial Court---Validity---Claim of the plaintiff was that he purchased the suit land from the sons of original owner of suit land through sale-deed---Defendants resisted the suit on the ground that plaintiff paid Rs.11,500 as part payment of the suit land by selling a common field of the parties; that part payment of Rs.22500 was paid by the defendants, and last payment of Rs.18,000 was paid by the plaintiff---Real owner of suit land being alive at the time of sale agreement, plea of the plaintiff that he purchased the suit land from sons of original owner, was false---Plaintiff failed to prove that suit land was solely purchased by him without any participation of defendants in the payment of suit land---Concurrent findings of the two courts below, were not result of any misreading of evidence of either of the parties, nor the same was result of non-reading of any part of evidence of parties---Revision was dismissed.

Mohammad Hussain Shehzad and Latif Shah for Petitioner.

2017 M L D 1696

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

The STATE through Deputy Advocate General---Petitioner

Versus

SHAHID HUSSAIN---Respondent

Cr. Misc. 81 of 2016, decided on 13th June, 2016.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Petition for cancellation of bail---Initially, none was charged in the FIR---Police as per its own investigation, arrested a person and after completion of investigation committed that person to judicial lock up and after the order of re-investigation arrested present accused and got recorded his confessional statement under S.164, Cr.P.C., besides effecting recovery of .30 bore pistol---Case of prosecution, was of two conflicting versions, which had made the case that of further inquiry attracting the provisions of S.497(2), Cr.P.C.---As to which version was correct, was to be determined by the Trial Court after recording of evidence---Investigation in the case, had been concluded in a dishonest manner---Trial Court had exercised its discretion in accordance with law in granting bail to accused---No interference was required to upset the well reasoned judgment of the Trial Court---Petition for cancellation of bail, was dismissed being devoid of merits.

Mir Muhammad, Addl. A.G. for the State.

Muzaffar-ud-Din and Muhammad Saleem Khan for the Complainant.

Amjad Hussain for Respondent.

2017 M L D 1771

[Gilgit-Baltistan Chief Court]

Before Sahib Khan, C.J. and Malik Haq Nawaz, J

MUHAMMAD TARIQ---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No.75 of 2016, decided on 23rd June, 2016.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-H---Qatl-i-amd, common intention, act of terrorism---Bail, grant of---Further inquiry---No evidence worth reliance was available against accused, either direct or circumstantial, except a statement under S.21-H of Anti-Terrorism Act, 1997 and statement of co-accused against him and abscondance of accused---Mere abscondence and statement of co-accused against accused could not be made a ground for refusal of bail, if the ingredients of a prima facie case were lacking---Case of accused being one of further inquiry falling under S.497(2), Cr.P.C., accused was released on bail, in circumstances.

(b) Criminal trial---

----Abscondance of accused---Scope---Abscondence, by itself, was not sufficient to sustain conviction and was always considered a factor between guilt and innocence.

Muzaffar-ud-Din for Petitioner.

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

2017 M L D 1804

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

FARHAD ALAM---Petitioner

Versus

The STATE---Respondent

Cr. Misc. 98 of 2016, decided on 29th July, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 34, 109 & 458---Qatl-i-amd, common intention, abetment, lurking house-trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint---Bail, refusal of---Plea was that no recovery had been effected from accused---Prosecution witness had charged co-accused for opening fatal shots on the deceased, and his presence without any overt act, were the questions which prosecution would meet at the trial of the case---Case of accused could not be considered as one of further inquiry---Murder was pre-planned and cold-blooded---Recovery would not play a decisive role in such like cases and non-recovery of weapon of offence, would not reduce the gravity of offence, if ultimately the charge was proved---Existence of common intention consisted of motive, preconcert and pre-arrangements, which could not be proved directly and it being a state of mind, could be inferred from the attending circumstances---Eye-witnesses had attributed the role of facilitation in commission of offence to the accused which would be sufficient ground to refuse concession of bail to the accused---Reading of FIR, statements of prosecution witnesses and other attending circumstances made out a prima facie case against accused, which disentitled him for concession of bail---Bail petition being meritless, was declined, in circumstances.

2014 PCr.LJ 1548; 2014 PCr.LJ 1124; 2015 MLD 263; 1988 SCMR 281 and PLD 2004 SC 822 ref.

Raja Shakeel Ahmand and Asadullah Khan for Petitioner.

Dy. A.G. for the State.

2017 M L D 1864

[Gilgit-Baltistan Chief Court]

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

BINYAMEEN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.5 of 2016, decided on 12th April, 2016.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), Ss.7(a) & 21-L---Qatl-i-amd, common intention, act of terrorism, abscondance---Appreciation of evidence---Co-accused having been acquitted by the Trial Court after thorough appraisal of prosecution evidence, there remained no prosecution evidence in proof of guilt of accused---Conviction/sentence of accused could not be upheld as Trial Court had passed the impugned order in utter defiance of judgment of Division Bench of Chief Court passed in appeal filed by co-accused---Conviction and sentence of accused, were set aside---Accused was acquitted and was ordered to be released forthwith, in circumstances.

2009 MLD 1198 ref.

Burhan Wali for Appellant.

2017 M L D 1927

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Yar Muhammad, JJ

SHAH ALAM and another---Petitioners

Versus

The STATE---Respondent

Criminal Appeal No.54 of 2014, decided on 20th April, 2016.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---FIR was lodged after 26 days of the occurrence---Incident was unseen and prosecution could establish the case only through circumstantial evidence---Police did not recover dead body of deceased in presence of prosecution witnesses, instead showed a jute bag to the prosecution witnesses, claiming that same contained dead body of the deceased---Legal heirs of deceased, could not identify dead body of the deceased recovered in presence of prosecution witnesses---Prosecution had failed to establish the recovery of dead body of the deceased---Rest of the prosecution evidence could be taken up for discussion only, if prosecution had succeeded to establish the recovery of dead body of deceased---Prosecution had failed to connect accused persons with the incident---Impugned judgment was set aside, accused persons were acquitted, and were released from custody.

Johar Ali and Jahanzeb Khan for Appellants.

2017 M L D 2003

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Malik Haq Nawaz, JJ

MOHAMMAD ALI---Petitioner

Versus

KARAKORAM COOPERATIVE BANK LTD. (KCBL) through General Manager Head Office, KCBL---Respondent

Civil Revision No.103 of 2016, decided on 27th February, 2017.

Civil Procedure Code (V of 1908)---

----S.47---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9---Suit for recovery of loan amount---Execution petition---Objection---Suit was decreed and judgment-debtor was committed to jail---Judgment-debtor moved petition for suspension of impugned order which was dismissed by Division Bench of Chief Court---Judgment debtor filed another petition which was accepted by the Single Judge of Chief Court---Validity---Single Judge could not pass conflicting order against orders of the Division Bench of the Chief Court---Both the petitions were similar---Petitioner did not mention in the subsequent petition with regard to filing and dismissal of earlier petition---Petitioner had played foul with the Court and he should be dealt with in accordance with law---Impugned order passed by the Executing Court was upheld---Executing Court would be free to issue non-bailable warrants for the arrest and production of judgment-debtor and pass order of detention of the petitioner in civil prison or any other order in accordance with circumstance of the case---Trial Court might issue process against sureties of petitioner produced before the Single Judge---Revision was dismissed in circumstances.

Amjad Hussain for Petitioner.

2017 M L D 2035

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

MEHBOOB---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.4 of 2016, decided on 4th May, 2016.

Arms Ordinance (XX of 1965)---

----S. 13---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Possessing unlicensed arms---Act of terrorism---Appreciation of evidence---Trial Court did not base the impugned order on any prosecution evidence and instead based the same on compromise that accused effected with the legal heirs of deceased and injured persons---Two occurrences were reported through two different FIRs., which were quite distinct and different in nature---Many offences were not compoundable---Court was passionate in accepting the compromise and acquitted accused and his co-accused, even from the offences which were not compoundable---Compromise in the main occurrence was not a sufficient proof of guilt of accused---Trial Court had adopted his own style of convicting and sentencing accused; instead of following the relevant law of evidence; which mandatorily required recording of prosecution evidence for basing all judgment/orders of conviction---Order of conviction/ sentence, without recording evidence or admission of accused, was a display of alarming attitude of Judicial Officer---Appeal was allowed holding that impugned order was fit to be set aside to the extent of said accused.

Burhan Wali for Appellant.

2017 M L D 150

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, and Sadaqat Hussain Raja, JJ

DAELIM LOTTE JOINT VENTURE and another---Petitioners

Versus

COMMISSIONER INLAND REVENUE (APPEALS), AJ&K COUNCIL, MIRPUR and 3 others and another---Respondents

Writ Petition No.2075 of 2016, decided on 19th August, 2015.

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

----S. 44---Writ petition by attorney---Scope---Attorney had not been authorized to file any suit, revision, writ and appeal in any court of law including the High Court---Power of attorney would confer only those powers which were specified therein and agent could neither go beyond nor deviate from the terms of such instrument---Attorney could perform only those powers or perform such acts which had been specifically mentioned in the power of attorney---Writ petition having been filed incompetently was dismissed in limine.

Manzoor Begum v. Haji Fazal Ellahi 2012 YLR 2152; Muhammad Mehrban v. Sadrud Din and another 1995 CLC 1541; Gul Taj Begum v. Lal Husain and another PLD 1980 SC (AJ&K) 60; Azad Jammu and Kashmir Government and 4 others v. Sardar Muhammad Azad Khan 2000 YLR 2662 and Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and another PLD 2002 SC 71 rel.

(b) Power of attorney---

----Scope---Power of attorney was a written authorization by which principal could appoint another person as his agent and confer upon him the authority to perform such functions as specified by the principal---Purpose of such instrument was to evidence the authority of agent to third parties with whom he would deal---Power of attorney must be strictly construed.

Raza Ali Khan for Petitioner (in Writ Petition No.2075 of 2016).

Mushtaq Ahmed Janjua, for Petitioner (in Writ Petition No.2210 of 2016).

Nemo for Respondents Nos.1, 3 and 4.

2017 M L D 682

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

LIAQAT ALI---Appellant

Versus

MUHAMMAD RASHEED KHAN and 7 others---Respondents

Civil Appeal No.89 of 2012, decided on 6th December, 2016.

Civil Procedure Code (V of 1908)---

---O. XX, R. 14---Decree in pre-emption suit---Non-deposit of decretal amount within time fixed by the Court---Effect---Trial Court decreed the suit subject to payment of sale consideration along with expenses of sale deed within a period of one month failing which suit would be deemed to have been dismissed---Appellate Court remanded the case to the Trial Court for decision afresh---Contention of vendee was that decree was conditional but no decretal amount was deposited within the time fixed by the Trial Court and appeal filed on behalf of pre-emptor stood automatically dismissed for non-depositing of amount---Validity---No application for extension of time for deposit of decretal amount was filed by the pre-emptor---Civil law was the law of omission and commission---If an act was not performed in due course of time or direction of the Court was not complied with, defaulter had to suffer---Right of pre-emption was considered a draw back on the freedom of contract---Courts had to interpret the provisions of pre-emption law strictly---Pre-emptor remained negligent till final disposal of the appeal---Non-extension of time for deposit of sale consideration would result into dismissal of suit---No valid appeal existed before the Appellate Court on which impugned order had been passed---Time fixed in the case could be extended without any application or even on oral request of the parties---Had the matter brought into the notice of the Court through a written application, time might have been extended but no such application was moved by the pre-emptor till disposal of appeal---Suit for pre-emptor would be deemed to have been dismissed in circumstances---Reasons with regard to remand of case by the Appellate Court were erroneous---Appellate Court could fix time for deposit of decretal amount while disposing of main appeal if judgment of Trial Court remained suspended---Remand of case was not desirable as parties had led evidence and there was sufficient material for disposal of appeal even otherwise---Case could not be remanded for filing lacunas of parties---Judgment and decree passed by the Appellate Court were vacated---Suit filed by the plaintiff was dismissed for non-compliance of judgment of Trial Court---Appeal was allowed in circumstances.

Qasim Hussain Shah v. Muhammad Gulzar Khan PLD 1984 SC (AJK) 155; Muhammad Siddique Khan v. Sardar Muhammad Akbar Khan and 5 others 2013 MLD 514; Zia ul Haq v. Umar Hayyat and 3 others 2013 SCR 165; Muhammad Zahid Naseem Adil v. Muhammad Shafi and 5 others 2007 YLR 2190; Mst. Irshad Begum v. Mst. Gul Farosha and others 2003 YLR 724; Zahid Ahmed v. Deputy Director Adjudication and 2 others PLD 2006 Kar. 252; Muhammad Iqbal v. Anwaar Anwar and another 1997 MLD 631 and Ghulam Rabani v. Muhammad Fiaz and another 2015 SCR 317 ref.

Syed Tufail Hussain Bukhari for Appellant.

2017 M L D 863

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

NASIR MASOOD---Petitioner

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 14 others---Respondents

Writ Petition No.801 of 2008, decided on 20th December, 2016.

Azad Jammu and Kashmir Local Government Act, 1990---

----S. 49---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ of mandamus---Petitioner sought direction for establishment of chemical examination laboratory for checking milk---Validity---Government and Municipal Corporations throughout the State had failed to take measures for combating the adulteration of milk---Municipal Committee was bound to take necessary measures with regard to supply of pure milk---No person could import, or export milk for sale or manufacture butter, ghee or any other milk or dairy without obtaining license from the Municipal Committee and keep milk cattle within the area of the municipality---Authorities were directed by the Supreme Court to establish milk testing laboratory (s) at capital city within six months period---No person should import, export, sell, peddle, establish milk cattle for the sale of milk unless and until he obtained a license from the concerned Municipal Committee---Municipal Corporation was directed to stop all such persons who import, export, sell or deliver milk and take necessary steps for closing all those dairy shops, milk sale points and dairy farms which were working without obtaining license from the concerned authorities within one month prior notice---Writ petition was accepted in circumstances.

Syed Hazoor Imam Kazmi for Petitioner.

Ikhlaq Hussain Kiani Additional Advocate General and Haider Rasheed Mughal for Respondents Nos. 1 to 9 and 12 to 15.

2017 M L D 1251

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

Mst. KAMAYAN BI---Appellant

Versus

MUHAMMAD DIN---Respondent

Civil Appeal No.94 of 2013, decided on 22nd September, 2016.

(a) Gift---

----Proof of---Procedure---Contention of plaintiff was that impugned gift deed was based on fraud and deception---Suit was dismissed concurrently---Validity---Plaintiff was an illiterate lady---Onus to prove that gift deed was obtained lawfully and execution of the same was in the knowledge of donor was on the donee---Defendant-donee was bound to produce the marginal witnesses of the gift deed---Witness who identified the donor was not produced by the donee to prove that it was the donor who appeared before the Sub-Registrar at the time of registration of document---Neither the marginal witnesses of gift deed nor the stamp vendor and petition-writer of the same had been produced by the donee-defendant---Defendant had no blood relation with the plaintiff-donor---Execution of gift deed was doubtful in circumstances---No intention for gifting the suit property had been shown in the present case---Gift deed was lacking the necessary condition and suit property had been given without any consideration---Gift deed was declared to have been executed by practising fraud and deception---Impugned judgments and decrees passed by the courts below were set aside and gift deed was cancelled---Plaintiff was entitled to the possession of suit land---Defendant should remove the improvement/construction at his own cost---Appeal was allowed in circumstances.

Muhammad Zaman Khan v. Sher Afzal Khan and 8 others PLD 1984 SC (AJ&K) 138; Muhammad Sarwar Khan v. Salamat Ali and 2 others 2012 CLC 94 and PLD 2005 Lah. 654; Khursheed Ahmed and 7 others v. Zeenat Begum and another PLD 2003 AJ&K 25 and PLD 1959 Lah. 932 rel.

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

----S. 100---Second appeal---Scope---Second appeal would be competent where some mis-reading or non-reading of evidence was shown.

Sardar Nazar Muhammad Khan for Appellant.

2017 M L D 1291

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

IMRAN SABIR and another---Petitioners

Versus

UNIVERSITY OF AZAD JAMMU AND KASHMIR through Registrar and 4 others---Respondents

Writ Petition No.2553 of 2016, decided on 2nd March, 2017.

(a) University of Azad Jammu and Kashmir Act, 1985---

----S. 21(2)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 44 & 4(15)---Writ petition---Medical student failed in First Professional of MBBS Annual Examination---Internal re-assessment examination of students conducted by the Medical College---Non-inclusion of marks obtained in the internal re-assessment examination in preparation of result card---Effect---Petitioners-students failed in First Professional Annual Examination and college did not include marks obtained by them in re-assessment examination while preparing result card---Validity---Continuous assessment of medical students was permissible---Impugned regulation framed by the Board of Studies was contrary to curriculum of Pakistan Medical and Dental Council and was liable to be struck down as such---Board of Studies had no authority to promulgate regulations and could only make recommendations---Academic Council could make regulations---Regulation issued by Board of Studies had not been approved by the Academic Council---Petitioners-students could not be deprived of the marks of internal re-assessment who attended remedial classes and made up their deficiencies---Students of second and third Professional were granted marks of re-assessment on the ground that their result was not announced while petitioners could not be extended the said benefits as their result was already announced---All the State subjects were equal before law and entitled to equal protection of law---Impugned regulation was declared to be without lawful authority having no legal effect---Authorities were directed to add marks obtained by the students in internal re-assessment examination and issue result cards accordingly---Writ petition was allowed in circumstances.

Azad Government and 2 others v. Syed Tayyab Gilani and 14 others 2009 SCR 415; Muhammad Younas v. Azad Government and 3 others 2010 SCR 271 and Syed Imdad Ali Shah and 59 others v. Azad Government and 8 others 2003 PLC (C.S.) 1537 ref.

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

----S. 4(15)---Equal protection of law---All the State subjects were equal before law and entitled to equal protection of law.

Kh. Imtiaz Ahmed for Petitioners.

Farooq Hussain Kashmiri for Respondents Nos. 1 to 3.

Nemo for Respondent No.4.

2017 M L D 1347

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J., M. Tabbasum Aftab Alvi and Azhar Saleem Babar, JJ

ABEER QAMAR and another---Petitioners

Versus

CONTROLLER OF EXAMINATIONS, UNIVERSITY OF AJ&K, MUZAFFARABAD and 7 others---Respondents

Writ Petition No.2329 of 2016, decided on 28th October, 2016.

Educational institution---

----Medical education---Petitioners, students of M.B.B.S. Fourth Professional examination seeking direction for inclusion of marks obtained in "Objective Structured Practical Examination"---Scope---Contention of petitioners-students was that marks obtained in "Objective Structured Practical Examination" had not been included while preparing final award list due to which they had failed in the M.B.B.S. Third Professional examination---Validity---Marks obtained in "Objective Structured Practical Examination" had not been included in the award list prepared by the Medical College---High Court observed that students should not suffer due to act of Medical College---Candidates were entitled to equitable relief of writ jurisdiction---Authorities were directed to announce the result of students after including Objective Structured Practical Examination marks pertaining to subjects of Pharmacology and Therapeutics and Forensic Medicine and Toxicology---Writ petition was allowed in circumstances.

Muhammad Sharif Khan v. Mirza Fazal Hussain and others 1993 SCR 88; Public Health Engineering Division and another v. Aurangzeb Khan 2008 SCR 590 and AJ&K Council and 3 others v. Messrs Paidar Builders 2011 SCR 595 rel.

Barrister Humayun Nawaz Khan for Petitioners.

Farooq Hussain Kashmiri for Respondents Nos.1, 4 to 8.

2017 M L D 1716

[High Court (AJ&K)]

Before Sadaqat Hussain Raja, J

ABDUL HUSSAIN (ABDUL REHMAN)---Appellant

Versus

MUHAMMAD YOUSAF and another---Respondents

Civil Appeal No.48 of 2011, decided on 23rd May, 2017.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 23---Specific Relief Act (I of 1877), S. 8---Suit for possession of property---Remand of case by appellate court---Scope---Dismissal of suit for want of proof---Appellant/defendant contended that suit of the plaintiff was instituted in the year 1997 which was dismissed after recording the evidence and appellate court had wrongly remanded such an old case---Respondent/plaintiff contended that defendant was in illegal possession of the property which was in ownership of the plaintiff and that appellate court had rightly remanded the case to be decided afresh---Record revealed that the parties were litigating since 1997 and Trial Court had decided the case on its merits after recording evidence of the parties---Under O. XX, R. 5, C.P.C. it was necessary for the Trial Court to decide the suit issue-wise and would state the finding or decision, with the reasons upon each separate issue---If from the record it was possible to resolve the controversy, appellate court instead of remanding the case to the lower court, was to decide the appeal on merits---High Court observed that in the present case, the trial court had decided the case on merits though some of the issues had been decided in a telegraphic manner, however, the first appellate court should have decided the controversy on merits, because the evidence of the parties had already been recorded and the record relied upon by the parties was also available to it for drawing its conclusion on merits of the case---Where no additional issue was framed or additional evidence was required, especially where the parties were litigating since long, the remand of the case was not justified---High Court remanded the case to the first appellate court for decision of the case on its merits within a period of 3 months---Appeal was accepted accordingly.

Abdul Rashid v. District Edcuation Officer and another 1998 PLC (C.S.) 304; Abdul Aziz v. Muhammad Ashraf and 8 others 1998 SCMR 204 and Muhammad Karim and 3 others v. Kala and 4 others 2014 YLR 353 ref.

Zaheer Babar Chaughtai for Appellant.

2017 M L D 53

[Islamabad]

Before Mohsin Akhtar Kayani, J

MUHAMMAD AKBAR CHOHAN---Petitioner

Versus

RENT CONTROLLER, ISLAMABAD and others---Respondents

W.P. No.1761 of 2016, heard on 29th June, 2016.

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

---Ss. 17, 4, 24, 25, 26 & 28---Eviction of tenant---Proceedings before Rent Controller---Limit---Non-completion of eviction proceedings within stipulated period---Effect---Rent Controller was bound to complete eviction proceedings expeditiously as possible but not later than four months of the date of first hearing after service of summons on tenant---Rent Controller had to satisfy himself as to whether the reasons put forward by the landlord were justified---Rent Controller had to frame issues and record evidence when parties had denied the facts---No procedure for holding inquiry had been provided in Islamabad Rent Restriction Ordinance, 2001---Rent Controller had framed issues and record evidence of the parties before pronouncement of order---When default and subletting was on record then framing of issues and recording of evidence was not required---Procedure for service of summons should be applied keeping in view the statutory period of four months---Procedure in terms of O. V of C.P.C. was against the mandate of S. 25(3) of Islamabad Rent Restriction Ordinance, 2001---If penalty provision was applied in appropriate cases where parties were causing intentional delay then matter could be resolved within the statutory period---Legislative intent had to be followed in its essence and any deviation from the said concept would lead into negation and denial of rights under the law---Courts were guardian to protect the intention of legislature as they were bound to follow the same---Eviction petitions had not been finally disposed of within timeline prescribed under S.25(3) of Islamabad Rent Restriction Ordinance, 2001---High Court disposed of constitutional petition and gave guidelines for Rent Controllers to be kept in mind while dealing with ejectment petition.

Following are the guidelines provided by High Court for the Rent Controllers while dealing with ejectment petition

i. Rent Controllers shall keep in mind that legislature has promulgated Islamabad Rent Restriction Ordinance, 2001 to ensure expeditious and timely settlement of disputes between landlords and tenants. In order to achieve said goals, procedural requirement as envisaged in C.P.C. for trials of civil suits are not applicable in proceeding before Rent Controller. Moreover, different tools have been provided in Islamabad Rent Restriction Ordinance, 2001 to ensure timely adjudication of petitions instituted under Islamabad Rent Restriction Ordinance, 2001.

ii. Every Rent Controller, while adjudicating upon ejectment petitions under Islamabad Rent Restriction Ordinance, 2001, shall keep in mind that legislature has provided mechanism of inquiry/summary disposal of ejectment petition, which is an essence different from a regular Civil Suit/Trial and some provisions of C.P.C. are made applicable which are referred in Section 24 of Islamabad Rent Restriction Ordinance, 2001.

iii. Rent Controller can pass order for simultaneous application of service mode including but not limited to registered post AD, TCS, UMS, telegram, telephone, email, Special Messenger/Process Server and affixation on the conspicuous place of the rented premises or upon the address of tenant as the case may be.

iv. Every Rent Controller shall carefully peruse the report of Process Server. If Rent Controller is satisfied that service is effected upon a party then under section 25 of Islamabad Rent Restriction Ordinance, 2001 he can proceed with the case and it is not necessary that Rent Controller in all eventualities have resorted to service of a party through secondary/alternate mode.

v. All services mode can be adopted within the period of fourteen (14) days and after receipt of service report, thereafter Rent Controller can proceed with the matter accordingly.

vi. Legislature has not provided any timeline for submission of written reply in Islamabad Rent Restriction Ordinance, 2001; therefore, a Rent Controller is not under obligation to wait for completion of thirty (30) days for written reply, only three days may be granted for the submission of written reply and in exceptional circumstances one extra adjournment can be granted not beyond three (03) days.

vii. Every Rent Controller shall ensure that on first date of hearing i.e. after written reply has been submitted, an order under section 17(8) Islamabad Rent Restriction Ordinance, 2001 shall be passed. No adjournment shall be granted to advance arguments for such an order. In case parties have not advanced arguments, Rent Controller shall pass an order on the basis of available record.

viii. Rent Controller, in appropriate cases shall also look into the record, if any, petition can be decided while resorting to summary order. Unnecessary procedural requirements should be brushed aside in such situation. It is not necessary that in all cases regular inquires to be held.

ix. In appropriate cases, if Rent Controller is of the opinion that controversy between the parties is based upon settled law either statutory law or based upon settled judicial pronouncement, then he can decide the controversy based on the said law, without going into the detail inquiry.

x. Rent Controller shall carefully look into allegations levelled in petition and admissions made in written reply. Upon perusal of the record if controversy between parties can be resolved through framing of preliminary legal issue (s) only, then Rent Controller shall frame only those issues. In such case, if Rent Controller is of the opinion, based on available material, that such controversy can only be resolved while resorting to legal arguments only then Rent Controller shall fix the date on which he shall hear the arguments of both the parties and decide the matter.

xi. Every Rent Controller shall carefully exercise its powers while placing onus to prove on issue on a particular party. In appropriate cases, Rent Controller can place onus on respondents/tenant and direct him to adduce his evidence first.

xii. On the first date of hearing, after receiving written reply of the petition, Rent Controller shall pass an order whereby parties are directed to produce their affidavits of evidence along with their documentary evidence if any.

xiii. While dealing with any miscellaneous application, a Rent Controller shall take notice, if written reply of the application is necessary or any such application can be decided in a summary manner. It is not necessary for a Rent Controller that for every miscellaneous application written reply is sought.

xiv. While dealing with any application for summoning of witness, a Rent Controller shall keep in mind its mandate provided under section 25(2) of Islamabad Rent Restriction Ordinance, 2001, as parties are bound to produce their witnesses upon their own responsibility, in appropriate cases official witnesses can be summoned through Rent Controller.

xv. Every Rent Controller shall not grant any adjournment for any steps of the proceedings beyond three (03) days and any party who is guilty of taking unnecessary dates or deliberately delaying the proceedings by way of filing of different miscellaneous applications they should be burdened with cost not be less than Rs. 5,000/- or more than Rs.10,000/- (in terms of Section 26 of Islamabad Rent Restriction Ordinance, 2001).

xvi. District Judge East and West shall ensure that pendency before every Rent Controller is equalized and same shall be considered with respect to workload suggested by National Judicial Policy.

xvii. Every Rent Controller shall ensure that ejectment petition shall finally be decided within timeline prescribed under section 25(3) of Islamabad Rent Restriction Ordinance, 2001 i.e. within four (04) months. All ejectment petitions in which timeline have been elapsed shall be decided within the period of two months commencing from 1st September, 2016. Fresh ejectment petitions instituted after 1st May, 2016 shall be decided within the period of four (04) months positively.

xviii. Rent Controller shall explain/communicate each and every days of delay to this Court through respective District Judge. Report of delay shall be submitted on weekly basis to Registrar/MIT of this Court, incase delay is not justified, cases shall be referred to Hon'ble Chief Justice for appropriate orders.

xix. Rent Controllers who are not observing the directions and legislative intent of Islamabad Rent Restriction Ordinance, 2001 or failed to comply with the directions of Apex Court cited above are considered guilty of misconduct.

xx. The Appellate Courts while hearing the rent appeal are bound to decide the matter within the period of two (02) months from the date of entrustment after the service mode given above.

Imtiaz Ahmad Lali v. Ghulam Muhammad Lali PLD 2007 SC 369; Rana Muhammad Tajamul Hussain v. Rana Shaukat Mehmood PLD 2007 SC 277; Sheikh Ghulam Hussain v. Chief Settlement Commissioner and others 2016 YLR 285; Muhammad Jamil v. Munawar Khan and others PLD 2006 SC 24; Khurshid Bibi through Muhammad Din v. Shahbaz Ali 2006 CLC 1579 and Barkat Ali v. Muhammad Ehsan and another 2000 SCMR 556 rel.

(b) Administration of justice---

----Things must be done in a manner in which it had been provided and any other mode of doing the same would amount to denial of certain legal obligation.

Sheikh Ghulam Hussain v. Chief Settlement Commissioner and others 2016 YLR 285 rel.

(c) Interpretation of statutes---

----When legislation was unambiguous then its simple meaning had to be given effect in its true spirit and any other interpretation by way of different meaning should not be considered as valid.

Rana Muhammad Tajamul Hussain v. Rana Shaukat Mehmood PLD 2007 SC 277 rel.

Manzoor Hussain for Petitioner

2017 M L D 214

[Islamabad]

Before Miangul Hassan Aurangzeb, J

SOOFIA MUNIR and another---Petitioners

Versus

JUDGE, FAMILY COURT (WEST), ISLAMABAD and another---Respondents

Writ Petition No.596 of 2016, decided on 3rd May, 2016.

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

----Ss. 5, Sched. & 25---Suit for recovery of dower, maintenance allowance and dowry articles---Application by father for visitation the minor---Scope---Mother filed suit for recovery of dower, maintenance allowance and dowry articles---Father moved application for issuance of schedule for meeting the minor which was allowed by the Family Court---Validity---Family Court had jurisdiction to entertain and adjudicate upon an application for visitation rights filed by any of the parents to meet with their minor child---Such application could be routed through Senior Civil Judge or directly filed in the proceedings already pending before the Family Court---Constitution petition was dismissed in circumstances.

Munir Alam v. Civil Judge/Family Court Lahore 2009 CLC 442; Syed Aqdas Abbas v. Mst. Samina Shahbaz 2010 CLC 32 and Shamim Akhtar v. District Judge 2016 MLD 242 ref.

Anne Zahra v. Tahir Ali Khilji 2001 SCMR 2000; Mst. Maham Shabbir v. Salman Haider 2014 CLC 330; Aamir Shahzad v. Additional District Judge Multan 2015 CLC 632 and Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others PLD 2012 SC 66 rel.

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

----S. 12---Application under S.12, Guardians and Wards Act, 1890---Scope---Application under S.12 of the Act was not barred in proceedings other than for the dissolution of marriage.

Syed Khawar Ameer Bukhari for Petitioners.

Sajid Mehmood Shad for Respondent No.2.

2017 M L D 323

[Islamabad]

Before Aamer Farooq, J

KHALID PERVEZ BHATTI---Petitioner

Versus

Mst. MADIHA RAFIQ---Respondent

Civil Revision No.359 of 2016, heard on 1st November, 2016.

Specific Relief Act (I of 1877)---

----Ss. 39 & 42---Civil Procedure Code (V of 1908), S.24 & O.XXXVII, R.1---Transfer and consolidation of cases---Suit for recovery of money on the basis of negotiable instrument was filed by respondent and it was pending before District Court, while suit for cancellation of instrument was filed by petitioner and it was pending before Civil Court---Petitioner filed application for transfer and consolidation of both the suits but the application was dismissed by District Judge---Validity---Subject matter of two suits was the same i.e. pronote and cheque and in case two suits were adjudicated separately there was likelihood of conflicting judgments---Since subject matter of two suits was the same, therefore, it was proper that they be consolidated and heard together despite the fact that those were at different stages of adjudication---District Judge while dismissing application under section 24, C.P.C. filed by petitioner, exercised jurisdiction with material irregularity---High Court, in exercise of revisional jurisdiction, set aside the order passed by District Judge and transferred the suit pending before Civil Court to District Court and both the suits were consolidated---Revision was allowed in circumstances.

Zahid Zaman Khan v. Khan Afsar PLD 2016 SC 409; Sheikh Iqbal Hussain v. Anzar Hussain 2005 YLR 181 and Muhammad Yaqoob v. Behram Khan 2006 SCMR 1262 rel.

Naseer Anjum Awan for Petitioner.

Raja Niaz Ahmed Rathore for Respondent.

2017 M L D 372

[Islamabad]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

Messrs CARGILL HOLDINGS---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division and others---Respondents

I.C.A No.138 of 2016, decided on 15th June, 2016.

Privatization Commission Ordinance (LII of 2000)---

----S.33---Privatization of industrial unit---Contractual obligation, failure to comply with---Appellant sought restraining order against Privatization Commission from re-advertising sale of shares of Heavy Electrical Complex---Single Judge of High Court declined to restrain the Commission---Validity---Appellant did not pay Rs. 225 million within 45 days of issuance of "Letter of Acceptance" and the Letter stood revoked---Authorities extended concession to appellant by depositing cheque issued by appellant for encashment on a date beyond specified date---Mere fact that account holder had instructed its Bank not to make any payment under the cheque brought the matter to a close---High Court, in intra-court appeal, declined to interfere in the order passed by Single Judge---Appeal was dismissed in circumstances.

Abdul Wahab Baloch for Appellant.

Noman Amin Farooqi and Khurram M. Hashmi, for Respondents.

2017 M L D 453

[Islamabad]

Before Miangul Hassan Aurangzeb, J

GULFRAZ and others---Petitioners

Versus

MIR DAD and another---Respondents

C.R. No.181 of 2016, decided on 27th September, 2016.

Specific Relief Act (I of 1877)---

----S. 54---Suit for permanent injunction---Dispute as to possession of land---Co-sharer---Scope---Plaintiffs were co-sharers in the disputed Khasra and no partition had taken place between the co-sharers---Co-sharers were entitled to retain possession of land in their respective occupation until partition had taken place by metes and bonds---None of the co-owners could interfere in other's possession unless land co-owned by them was partitioned---Co-owner in possession could alienate his share and transfer the possession of his holding to another person which holding would be subject to partition---Purchaser of such land would not become the exclusive owner of specific un-partitioned jointly owned land---Co-owner enjoying exclusive possession of joint property could not be evicted by another co-sharer except by filing a suit for partition---Plaintiffs were co-owners of un-partitioned land in the Khasra and they could not be forcibly dispossessed from the land in their possession as co-sharers---Impugned judgment and decree passed by the Appellate Court did not make the plaintiffs exclusive owners of suit land which was in their possession---Appellate Court had only protected the peaceful possession of plaintiffs until the joint land was partitioned in accordance with law---Said judgment did not arm the plaintiffs to gain possession of joint land which was not in their possession at the time of institution of suit---Revision was dismissed accordingly.

Ahmad Din v. Abdul Ghanni 1994 CLC 1263 ref.

Sukh Dev v. Parsi AIR 1940 Lah. 473; Jamal Shah v. Abdul Qadir Shah PLD 1955 Pesh. 26; Haji Khan Muhammad and others v. Yaqub Khan and others PLD 1956 Pesh. 96; Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9; Mst. Yasmin v. Muhammad Jamil Khan 2012 CLC 1618 and Muhammad Sareer Khan v. Arbab Sultan Muhammad 2016 CLC 1255 rel.

Zulfiqar Ali Abbasi and Ch. Asif Irfan for Petitioners.

Raja Yasir Shakeel for Respondents.

2017 M L D 567

[Islamabad]

Before Moshin Akhtar Kayani, J

FAROOQ AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE (WEST) ISLAMABAD and 3 others---Respondents

W.P. No.3448 of 2016, decided on 3rd November, 2016.

Civil Procedure Code (V of 1908)---

----Ss. 12(2), 104 & 115 & O. XLIII, R. 1---Islamabad Rent Restriction Ordinance (IV of 2001), S. 17---Eviction order allegedly based on fraud and misrepresentation---Remedy for third party---Applicability of S. 12(2) of Civil Procedure Code, 1908 before the Rent Controller---Scope---Rent Controller dismissed application under S. 12(2), C.P.C. against which revision was filed which was dismissed observing that no such remedy had been provided under Islamabad Rent Restriction Ordinance, 2001---Validity---Order under S. 12(2), C.P.C. was not appealable and only remedy of revision was available---Order passed by the Appellate Court was not maintainable---If Rent Controller had entertained application under S. 12(2), C.P.C. that would mean that he exercised the jurisdiction in terms of Civil Procedure Code, 1908---No remedy of S. 12(2), C.P.C. was available under Islamabad Rent Restriction Ordinance, 2001 but parties could not be precluded from filing application under S. 12(2), C.P.C. in order to prove question of fraud and misrepresentation---Remedy for third party under such situation would lie under S. 12(2), C.P.C. for recalling or review of order based on fraud or to file separate suit but he could pursue that remedy which he initiated first or earlier in point of time---Petitioner had rightly filed application under S. 12(2), C.P.C. on his own grounds---If appeal was not maintainable then same could be converted into revision---Appellate Court had not provided both of such remedies to the petitioner and has committed an illegality which was not protected under any law---Impugned order passed by the Appellate Court was set aside---Matter was remanded to the Appellate Court with the direction to decide the same within one month---Constitutional petition was allowed in circumstances.

2013 CLC 411 and 2014 MLD 109 ref.

PLJ 2011 Lah. 745; 2004 YLR 1066; 1992 SCMR 1908 and 1992 SCMR 917 rel.

Hamid Ahmed for Petitioner.

Tariq Mehmood for Respondents Nos. 2 and 3.

2017 M L D 612

[Islamabad]

Before Miangul Hassan Aurangzeb, J

SHAFIQUE AHMED QURESHI---Petitioner

Versus

WALAIT KHAN and others---Respondents

C.R. No.160 of 2016, decided on 25th October, 2016.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Institution of summary suit on the basis of cheque---Application for leave to appear and defend the suit---Scope---Application for leave to appear and defend the suit was allowed subject to furnishing surety bond equal to the amount claimed in the suit---Validity---Defendant's affidavit made reference to the application for leave to defend the suit which had been filed along with the said affidavit---Defendant had condescended to the particulars of suit in the said application for leave to appear and defend the suit---Defendant in his affidavit had made reference to the contents of said application that its contents were correct to the best of his knowledge and belief---Affidavit of defendant was albeit short but Trial Court had not committed any illegality by taking it into consideration---Mandatory requirement of filing an affidavit appeared to have been satisfied---No jurisdictional irregularity was pointed out in the impugned order passed by the Trial Court---Revision was dismissed in circumstances.

Umar Khan v. Haji Musa Jan 2009 SCMR 1101; Haji Ali Khan and Company v. Allied Bank of Pakistan Ltd. PLD 1995 SC 362; Fine Textile Mills Ltd., Karachi v. Haji Umar PLD 1963 SC 163; Rafique Saigol v. Bank of Credit and Commerce International (Overseas) Ltd. PLD 1996 SC 749 and Javed Qayyum Khan v. Muhammad Ismail Sabri 2002 CLC 439 ref.

Zohair Akhtar v. Jawad Adil 2006 YLR 1510 and Sharaaf Ali Shah v. Liaquat Ali Shah 2000 CLC 1646 rel.

Khurram Mehmood Qureshi for Petitioner.

S. Mahmood for Respondent No.1.

2017 M L D 627

[Islamabad]

Before Aamer Farooq, J

Col.(R) JAVED AGHA and 31 others---Petitioners

Versus

ARSHAD MAHMUD and 4 others---Respondents

Writ Petition No.1337 of 2001, decided on 22nd September, 2016.

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

----Ss. 12(2) & 49(c)---Islamabad Land Disposal Regulations, 2005, Rglns. 2 & 3---Plots---Categorization---Division or categorization of plots under Islamabad Land Disposal Regulations, 2005, is in pursuance of S. 12(2) as well as 49(c) of Capital Development Authority Ordinance, 1960.

(b) Fine/penalty---

----Imposition---Principle---Fine or penalty can be imposed through Rules or Regulations if it remains within the object and scope of parent statute.

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

----Ss. 12(2) & 49(c)---Islamabad Land Disposal Regulations, 2005, Rglns. 2 & 3---Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005, Rglns. 2.1, 2.17 & 4.1---Plots, categorization of---Petitioners were running guest houses and commercial activities in residential areas and they were aggrieved of notices issued by the authorities---Validity---Capital Development Authority made reasonable classification by providing a category whereby professionals with permission of Capital Development Authority could use their properties for professional work provided the area used for such work was not more than 25% of the covered area and there was no complaint of nuisance by neighbours---Provisions of Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005, was not discriminatory in any way or was in violation of parent statute---Guest houses were given commercial meters for electricity and when guests were accepted for consideration the use did not fall within the definition of "residential use" as provided in Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005, therefore, use in question did not remain residential whereas, property was let out for residence, its use as residential building or a house within the meaning of the concepts as provided in the definition clause of Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005, remained intact---Establishing and running of guest houses was though not prohibited under law, however, petitioners were to abide by Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005, and use the land also in accordance with the provisions of Capital Development Authority Act, 1960---Any use which did not conform with the classifications made by Capital Development Authority or as prescribed under the Regulations would tantamount to a non-conforming use within the meaning of the concept as provided in Islamabad Land Disposal Regulations, 2005, and Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005, and would render owners and occupants liable for action under the law---No justification or basis existed for striking down any provision of Capital Development Authority Ordinance, 1960, Islamabad Land Disposal Regulations, 2005, and Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005---High Court declined to interfere with the notices issued by authorities---Constitutional petition was dismissed in circumstances.

Case law referred.

Syed Naeem Bokhari, Ijaz Janjua, Mr. Ali Raza, Akram Sheikh, Barrister Natalia Kamal, Mir Afzal Malik, Habib Ahmed Bhatti, Haroon ur Rashid, Rana Abdul Latif Khan, Naseem Ahmed, Faraz Rana, Faraz Raza, Jawad Hassan, Barrister Omar Malik, Shoaib Razzaq, Barrister Jawad Khalid Niazi, Rana M. Irshad Khan, Saad Ahmed Ranjput, Ms. Shafaq Abid, Ali Hussain Bhatti, G.M. Chaudhry for Petitioners.

Rehan Seerat, Hafiz Hifzur Rehman and Ch. Aamir Latif Gill, and Afnan Karim Kundi, Additional Attorney-General for Respondents.

2017 M L D 923

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Syed AKIF HUSSAIN SHAH---Petitioner

Versus

FBISE and others---Respondents

R.S.A. No.23 of 2016, decided on 23rd December, 2016.

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

----S.42---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Limitation---Change in date of birth---Contention of plaintiff was that his date of birth was 19-02-1985 instead of 12-04-1984---Suit was dismissed concurrently---Validity---Present suit which was instituted more than twelve years after issuance of Matriculation Certificate was time barred---Where there was disparity in the date of birth entered in the educational testimonials of a person and National Identity Card or birth certificate then credence should be given to the entry of date of in educational testimonials unless there was cogent and evincing evidence to hold otherwise---Findings recorded by the Courts below were in accordance with law and based on logical reasoning---Second appeal was dismissed in circumstances.

Saima Iltaf v. Principal, Junior Burn Hall Girls College, ottabad 2001 CLC 972 ref.

Pakistan Steel Mills Corporation (Pvt.) Ltd. v. Mohammad Ali 2014 MLD 440; Hasnain Faraz v. Chairman through B.I.S.E. 2011 CLC 265 and Imran Khan v. Federation of Pakistan 2016 YLR 323 distinguished.

Board of Intermediate and Secondary Education v. Javed Iqbal Bajwa 2005 YLR 2114; Muhammad Hashim Ansari v. Board of Secondary Education, Karachi 2010 CLC 527; Mohammad Arshad v. Noor Ahmad 2008 SCMR 713 and Muhammad Faisal 'v. State Life Insurance Corporation PLD 2007 Lah. 453 rel.

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

----Art. 120---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Limitation---Period for filing suit for declaration was six years computed from the date when the right to sue accrued.

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

----S. 100---Second appeal---Scope---Second appeal could lie only on the grounds mentioned in 5.100 of Civil Procedure Code, 1908 and not on question of fact---High Court could interfere in the impugned judgments in second appeal if same were contrary to law or if they had been rendered without deciding some material issue of law or there had been any error or defect of procedure provided by law.

Naeem Hussain for Appellant.

Mir Afzal Malik for Respondent.

2017 M L D 1023

[Islamabad]

Before Miangul Hassan Aurangzeb and Athar Minallah, JJ

PAEC FOUNDATION HOUSING SCHEME and others---Appellants

Versus

SHARF-UL-ISLAM KHAN---Respondent

I.C.A. No.894 of 2013, decided on 28th February, 2017.

Allotment---

----Refund of amount of price paid---Scope---Housing Society had assailed order of Single Bench of High Court by virtue of which Housing Society was directed to allot a plot to petitioner/member or alternatively to refund the price along with interest on the basis of prevailing market rate---Housing Society asked its member(s) to deposit enhanced amount for the reason that Society had purchased land at a price higher than initially estimated and owing to escalation of prices of the construction material---Member of the Society attributed higher price paid by the Society on account of bad planning and excessive expenditures of the Society and asked the Society for allotment of plot on settled price or full deposited amount to be refunded with prevailing market interest---Housing Society contended that a member could get the deposited amount refunded after 10% deduction and after subtraction of non-refundable processing fee and membership fee---Validity---Allotment letter issued to the member was provisional in nature; it was explicitly mentioned in said letter that plot was "provisionally" allotted to the member---At no material stage, final allotment letter was issued to the member, instead member was asked to clear outstanding dues in order to become eligible for the allotment of a plot in scheduled balloting---Member, prior to the scheduled balloting, had invoked the constitutional jurisdiction of High Court---Price mentioned in the provisional letter was a "tentative cost" and was by no way the final cost of the land for the entire housing project which fact was also admitted by the member---No final letter had been issued to the member by the Housing Society that the price of the plot was not tentative, but final and not subject to any change/enhancement---Member was well aware of Housing Society's policy decision regarding refund to members after 10% deduction---Provisional allotment did not invest the allottee with absolute unconditional ownership of the plot so allotted; unless and until a final allotment letter was issued to the allottee by the competent authority upon fulfilment of all the conditions necessary for such allotment, the allottee could not become absolute owner of the plot---Allotment of a plot would not be deemed to be final if it was expressly stated to be 'provisional' or subject to the declared terms and conditions---Impugned judgment was modified to the extent that Housing Society shall refund the entire amount deposited by the member, without any liability to pay interest on the refunded amount, and without any deductions---Intra-court appeal was partly accepted.

Messrs Hand Tools Ltd. (Saadat Industries Ltd.) v. Karachi Development Authority 1985 CLC 529; Agha Saifuddin Khan v. Pak Suzuki Motors Company Ltd. 1997 CLC 302; Ahmad Saeed v. Comsats Institute of Information Technology 2012 MLD 710 and Iftikhar Mehmood Butt v. Federal Government Employees' Housing Foundation 2012 CLC 447 ref.

Muhammad Irfan Zafar Hashmi and Sohail Akram Malik for Appellants.

Ahteisham-ul-Haq Butt and Saima Uzma Chatta for Respondent.

2017 M L D 1256

[Islamabad]

Before Aamir Farooq, J

INDEPENDENT MEDIA CORPORATION (PVT.) LTD.---Petitioner

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through its Chairman---Respondents

F.A.O. No.72 of 2017, heard on 8th May, 2017.

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

----Ss. 27, 26, 39, 29(6) & 30A---Electronic Media (Programmes and Advertisements) Code of Conduct, 2015 Cl. 3(3)---Prohibition of broadcast media or distribution service operation---Fundamental principles---Broadcast of the statements of members of proscribed organisations or their representatives---Scope---Appellant impugned order passed by the Pakistan Electronic Media Regulatory Authority ("PEMRA") whereby prohibition was placed upon appellant against broadcast of an interview---Contention of appellant, inter alia, was that no opportunity of hearing was provided to it before passing of the impugned order---Contention of respondent PEMRA was that the content of the broadcast violated Clause 3(3) of the Electronic Media (Programmes and Advertisements) Code of Conduct, 2015 whereby broadcast of statements of members of proscribed organisations or their representatives was prohibited---Validity---Breach of the Electronic Media (Programmes and Advertisements) Code of Conduct, 2015 entailed action either under S. 26 , if there were complaints, or under S. 29 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002---If action was to be taken under S. 29 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002; show-cause notice was required to be issued---PEMRA in the present case, proceeded against appellant in violation of rules framed under the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 as the Electronic Media (Programmes and Advertisements) Code of Conduct, 2015 was framed under S. 39 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, hence it was mandatory for PEMRA to issue a show-cause notice prior to taking any action against the appellant---Impugned order did not contain any reasons provided for under S. 27(a) or 27(b) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and therefore it had not been passed under the said provisions---Sole provision under which PEMRA could prohibit broadcast of any programme was S. 27 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and the same could only be done if reasons/ grounds mentioned therein were attracted and reasons for the same were recorded in writing---Impugned order was set aside by High Court with observation that in case the broadcast of the appellant violated the Electronic Media (Programmes and Advertisements) Code of Conduct, 2015 or S. 27 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 or any other provision of the same, then PEMRA may proceed against appellant in accordance with law---Appeal was allowed, accordingly.

ARY Media Communications (Pvt.) Limited v. Pakistan Media Regulatory Authority and another FAO No.81 of 2016 rel.

Jam Asif Mehmood and Faisal Iqbal Khan for Appellant.

Ali Shah Gillani for Respondent.

2017 M L D 1311

[Islamabad]

Before Shaukat Aziz Siddiqui, J

IMTIAZ ALI KHOKHAR alias TAJI KHOKHAR---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. Nos.184-B and 185-B of 2017, decided on 21st April, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Bail, grant of---Further inquiry---Allegation in the FIR was that three co-accused persons armed with Kalashnikovs came at the place of complainant party and restrained them from raising construction---Assailants threatened them, therefore, they went inside the house due to fear---One of the co-accused made burst of Kalashnikov which hit the member of complainant party and succumbed to the injuries---Offence was committed at the instigation of accused-petitioner---During investigation of the said case, it proved that the accused-petitioner was falsely involved in that case and there was no evidence of abetment, therefore, a private complaint was filed---Accused-petitioner had submitted application under S. 91, Cr.P.C. for permission to submit bail bond, which was granted and he submitted bail bond in the private complaint---Complainant challenged the said order through criminal revision, which was disposed of with the observation that the fate of the case would be decided by the Trial Court---Accused-petitioner moved bail application before the Trial Court, which was dismissed---Record showed that statements about abetment were recorded with a delay of almost five months and one week---Particulars of witnesses, examined by the police under S. 161, Cr.P.C. had not been mentioned---No reference of witnesses was made in the complaint---Ailment of the accused-petitioner was admitted---Reports of Medical Officer, Jail and Medical Board showed that he should stay hospitalized with multi disciplinary management approach, which was not possible in Jail hospital---Accused-petitioner according to the reports was suffering from serious ailments and complainant side could not deny that fact, as such no challenge was put to the reports, due to which, he required treatment of choice, special diet and conducive atmosphere---Circumstances established that accused-petitioner had made out a case of further inquiry under S. 497(2), Cr. P. C., thus, bail was allowed in circumstances.

Firdous Paul v. The State 2004 SCMR 15; Mumtaz Ali Khan v. The State 2001 PCr.LJ 1406; Zar Muhammad v. Mian Jafar Shah and another PLD 2009 SC 707; Mamaras v. The State and others PLD 2009 SC 385; Ghulam Qammber Shah v. Mukhtiar Hussain and others PLD 2015 SC 66; Malik Javaid Iqbal v. The State and others PLD 2015 SC 250; Babar Hussain v. The State and others 2016 SCMR 1538; Naseem Malik v. The State 2004 SCMR 283; Wazir Gul v. The State 2016 YLR Note 27; Muhammad Imran v. The State and others 2016 SCMR 1401; The State v. Haji Kabeer Khan PLD 2005 SC 364 and Ghulam Ahmed Chishti v. The State and another 2013 SCMR 385 ref.

1997 PCr.LJ 348 rel.

(b) Constitution of Pakistan---

----Art. 9---Right of security of person---Allegation of abetment was not sufficient to deprive any accused of his Fundamental Right guaranteed by Art. 9 of the Constitution.

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

----S. 497(2)---Bail---Case of further inquiry---Trial had commenced---Normally court did not interfere to grant or refuse bail at that stage of proceedings but said rule was not absolute---When accused had successfully made out case of further inquiry, bail was granted.

PLD 1989 SC 585; 1997 PCr.LJ 847; PLD 1989 Lah. 233 and 1991 SCMR 322 rel.

Syed Zahid Hussain Bokhari for Petitioner.

Muhammad Fakhar Hayat Awan for the Complainant.

Complainant in person.

M. Akram Gondal, State Counsel.

Nauman Munir Peracha for SZABSIT.

2017 M L D 1432

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MANSOOR ALI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE (WEST), ISLAMABAD and others---Respondents

W.P. No.1522 of 2017, decided on 2nd June, 2017.

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

----S. 17---Eviction petition---Personal bona fide need of heirs of original landlord---Scope---Grounds of expiry of tenancy agreement and personal bona fide need---Tenant claimed tenancy agreement with deceased original owner---Relationship between tenant and legal heirs of original owner---Scope---Tenant/petitioner contended that he had tenancy agreement with lady owner of the demised property and her legal heirs continued receiving rent from him despite expiry of tenancy agreement---Tenant/petitioner denied personal bona fide need claiming that, earlier, premises was vacated in the name of personal bona fide need but later the same was again rented out---Landlord/respondents contended that after the demise of original owner of the property, they were her legal heirs who wanted eviction of tenant for personal bona fide need---Validity---Record showed that the eviction petition was instituted by original owner of the rented premises in the year 2013---Original owner passed away, during the pendency of the eviction petition, therefore, her legal heirs were impleaded---Relationship of landlord and tenant between the contesting parties had not been denied---Admittedly, the petitioner's entry into the rented premises was on the basis of lease agreement executed in the year 2004---Said lease agreement was entered into between the tenant/petitioner and husband of the original owner---Son of the original owner did not deny that earlier the landlord had rented premises vacated on the ground of personal bona fide need, but it had also been deposed that after the rented premises was vacated by the earlier tenant, the same was used by landlord for the business which continued for a year and a half after which the rented premises were again rented out---Held, owners of the rented premises could institute eviction petition against tenant/ petitioner on the ground of personal bona fide need---Landlord's had unfettered choice as to which of his properties he might put to his personal use---Rent Controller did not have the authority to determine the property which the landlord should put to his own personal use---Landlord was not required to mention in the eviction petition or in his evidence, the nature of business he wanted to carry out at the rented premises---Choice was with the landlord to select any of the tenements for his personal need and for such purpose the tenant had no locus standi to give advice to the landlord to use alternate accommodation---Landlord had a complete option to choose from one of the several tenements occupied by tenants for his personal requirements and the discretion was not assailable, except in the rarest cases of bad faith---Son of deceased original owner, in the present case, had deposed that the rented premises was required to be used as a clinic by his wife, who was a doctor which stance could not be shaken in the cross-examination---No inconsistency existed between the averments in the eviction petition and evidence---Sole statement of landlord regarding the personal bona fide need for the rented premises was sufficient for the eviction of tenant---Tenant/petitioner, in his affidavit-in-evidence had deposed that he was not tenant of the son of original owner and that tenant/petitioner was regularly paying rent---On account of demise of original owner, both husband and son of deceased had become co-owners of the rented premises, therefore, they both were competent, jointly or severelly to institute or pursue the eviction proceedings against the tenant---Under S. 17(5) of the Islamabad Rent Restriction Ordinance 2001, the Rent Controller had to satisfy himself about the bona fides of landlord's claim regarding his requirement for his own occupation of the rented premises in good faith---Two courts below were concurrently satisfied as to the eviction petitioners' bona fides regarding the claim---No convincing material was available to doubt the satisfaction of two courts below as to the eviction petitioners' bona fides---If the rented premises was not occupied by the landlord or by any of their family members, S. 17(6) of the Islamabad Rent Restriction Ordinance 2001 gave ample protection to the tenant---Without going into the question whether the expiry of a lease was a ground under the Islamabad Rent Restriction Ordinance, 2001 to seek the eviction of a tenant, High Court observed that two courts below had correctly allowed the eviction petition on the ground of landlord's bona fide need for the rented premises---Constitutional petition was dismissed accordingly.

Pakistan Institute of International Affairs v. Naveed Merchant 2012 SCMR 1498; S.M. Nooruddin v. Saga Printers 1998 SCMR 2119; Javaid Ahmed v. Muhammad Imran Malik PLD 2011 Isl. 30 and Iqbal Book Depot v. Khitab Ahmed 2001 SCMR 1197 ref.

Sardar Muhammad Tariq Fareed Gopang for Petitioner.

Ghulam Fareed Chaudhry for Respondents Nos. 3(a) to 3(f).

2017 M L D 1522

[Islamabad]

Before Mohsin Akhtar Kayani, J

Raja MUHAMMAD RIZWAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Misc. No.220-B of 2017, decided on 12th May, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 408, 420, 467, 468, 470, 471, & 34---Criminal breach of trust by clerk or servant, cheating and dishonestly inducing delivery of property, forgery of valuable security, forgery for purpose of cheating, forged document, using as genuine a forged document, common intention---Bail, refusal of---Medical ground---Scope---Prosecution case was that complainant had appointed the accused as care-taker of his business, during his medical treatment in hospital, but he defrauded the complainant and ccaused a loss of Rs. 250 million---Accused-petitioner sought bail on medical ground after dismissal of his earlier bail petition on merit---Accused contended that he was suffering from Hepatitis-B with very high ALT and his disease had increased in jail, where its normal treatment was not available---Medical report of accused was sought from Medical Officer, Jail on the basis of available record and test report of the accused-petitioner---Report submitted by jail authorities showed that hemoglobin level of the petitioner was 15.3 and all other pathological blood pictures were in normal range---Column of remarks in the pathology report of accused-petitioner was blank whereas ALT showed 561 beyond the prescribed normal range and treatment of Hepatitis-B was not possible in jail---Medical report did not show that accused-petitioner was suffering from Hepatitis-B, and being a carrier could transmit the disease to other prisoners or his health was deteriorating rapidly---Circumstances established that accused-petitioner at present stage was healthy and his disease could not be called contiguous, hazardous and a simple treatment was required, which had been given to the accused---Bail petition was dismissed in circumstances.

Sardar Amjad Ali Khan v. The State 2009 SCMR 425; Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) through Chairman and others 2006 SCMR 1225; Abbas v. The State 2000 SCMR 212; Mian Manzoor Ahmad Watto v. The State 2000 SCMR 107; Zakhim Khan Masood v. The State 1998 SCMR 1065; Malik Muhammad Yousafullah Khan v The State and another PLD 1995 SC 58; Rana Muhammad Tahseen v. The State and another 2014 PCr.LJ 102; Muhammad Amin v. The State and another 2012 YLR 2275; Gul Muhammad v. The State 2010 PCr.LJ 264; Muhammad Aslam v. The State 2009 PCr.LJ 1153 and Abdul Rehman alias Achar No.Onari v. The State 2009 PCr.LJ 239 ref.

Mian Nazeer Ahmad v. State and others 2016 SCMR 1536 and Rehmatullah v. The State and another 2011 SCMR 1332 rel.

Qausain Faisal Mufti and Raja Ikram Ameen Minhas for Petitioner.

Ms. Hadia Aziz, State Counsel.

Raja Rizwan Abbasi, and Sohail Akhtar for Respondent No.2./Complainant.

2017 M L D 1643

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Dr. MUHAMMAD SAEED---Petitioner

Versus

Sardar MUHAMMAD AKRAM and others---Respondents

W.P. No.3189 of 2016, decided on 14th March, 2017.

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

----Ss. 17 & 21(6)---Ejectment of tenant---Tentative rent order---Striking off defence---Denial of relationship of landlord and tenant by the tenant---Approbation and reprobation, doctrine of---Applicability---Tenant failed to deposit tentative rent and his defence was struck off and eviction petition was allowed---Appellate Court passed order for deposit of tentative rent which was deposited by the tenant but appeal was dismissed---Validity---No one could be permitted to assume inconsistent positions in the Court by approbating and reprobating to the detriment of opposite---Tenant was party to the lease agreement---Once a tenant always a tenant---Respondent was not owner of the rented premises---Tenant was estopped by his own conduct to deny the relationship of landlord and tenant---Appellate Court had all the powers which the original forum had---Rent for the months of April and May, 2016 was deposited by the tenant on 31-05-2016---Delayed deposit of rent for the said months was not just in default of tentative rent order but also the terms of lease agreement---Tenant could have deposited the rent for the said months prior to the 15th of each month---Deposit of rent after disposal of eviction petition could not be said to be in compliance with the tentative rent order passed by the Rent Controller---Tentative rent order passed by the Rent Controller was in field---Tenant was supposed to show compliance with the said order in order to avoid adverse consequences---Constitutional petition of tenant was dismissed in circumstances.

Aisha Bibi v. Anwer Sultana 2000 YLR 1352; Noor Muhammad v. Mehdi PLD 1991 SC 711; Jahangir Khan Jadoon v. Gulnigar Manzoor 2008 CLC 547; Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami 2007 SCMR 818; Maqsood Ahmed v. Bhagwani Bai 2003 SCMR 1364; Afzal Ahmad Qureshi v. Mursaleen 2001 SCMR 1434; Khadija Wadood v. 1st Additional District Judge 2009 YLR 1165; Sohail Javed v. Atiq-ur-Rehman PLD 2008 SC 470; Seema Begum v. Muhammad Ishaq PLD 2009 SC 45; Qaiser Javed Malik v. Pervaiz Hameed 2009 SCMR 846; Wajid Ali v. Board of Revenue, Punjab PLD 1982 Lah. 716; Muhammad Siddique v. Muhammad Rashid 1985 SCMR 21 and Noor Alam v. Muhammad Bashir 2015 CLC 1675 ref.

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

(b) Appeal---

----Appeal was continuation of proceedings.

(c) Constitution of Pakistan---

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

(d) Maxim---

----"Allegans contraria non est audiendus"; Person alleging contradictory facts should not be heard.

(e) Approbation and reprobation, doctrine of---

----Scope elucidated.

The principle that a person may not approbate and reprobate expresses two propositions, (1) that the person in question, having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile, and (2) that he will not be regarded in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent.

Halsbury's Laws of England (4th Edition) (Volume 16) rel.

Raja M. Aleem Khan Abbasi for Petitioner.

Babar Mumtaz for Respondents Nos.1 and 2.

2017 M L D 1737

[Islamabad]

Before Mohsin Akhtar Kayani, J

WASEEM HAROON and 2 others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.56 of 2017, decided on 14th June, 2017.

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

----Arts. 73 & 75---Documentary evidence---Production of secondary evidence---Procedure---Evidentiary value of documents produced during trial has to be seen in the light of Qanun-e-Shahadat, 1984---Duty has been imposed under Art. 75 of Qanun-e-Shahadat, 1984 upon court to exhibit those documents which are primary, and if original documents are not available during trial, documentary evidence was to be tendered through secondary mode after getting permission of court, failing which, document has no evidentiary value in eyes of law.

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

----Ss.395 & 412---Qanun-e-Shahadat (10 of 1984), Arts.22, 73 & 75---Police Rules 1934, Rule 26.32---Dacoity and recovery of stolen property---Appreciation of evidence---Identification parade---Proof---Scope---Accused persons were convicted by Trial Court under Ss.395 & 412, P.P.C., for various terms maximum up to imprisonment for 7 years---Validity---Documents tendered in evidence and admitted as exhibits were not in accordance with provisions of Qanun-e-Shahadat, 1984---Documents, contents of which were not proved by way of its author, executor or witnesses of contents and executions were not admissible, therefore, no reliance for purposes of conviction could be placed on Photostat copies of documents---Entire documentary evidence regarding identification parade was inadmissible and could not be relied upon for purposes of conviction and to form any opinion---Identification parade as well as recoveries were illegal, having no sanctity in eyes of law---CCTV footage was not produced and eye-witnesses failed to identify accused persons in court---No witness of identification parade was produced in trial---Trial Court did not pass judgment of conviction on basis of any evidence rather entire judgment was based upon no evidence---High Court set aside sentence and conviction awarded by Trial Court and acquitted all the accused persons of the charge---Appeal was allowed accordingly.

Akhtar Muhammad v. The State PLD 2017 Pesh. 55; Alam Zaib v. The State 1999 PCr.LJ 1955; Muhammad Ayaz and others v. The State 2011 SCMR 769; Khadim Hussain v. The State 1985 SCMR 721; Ghulam Rasul and 3 others v. The State 1988 SCMR 557 and Imran Ashraf and 7 others v. The State 2001 SCMR 424 ref.

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

----Art. 22---Police Rules 1934, Rule 26.32---Identification parade---Principle---Witnesses had already seen CD/pictures of accused persons prior to their identification parade---Description of dummies was not given as per requirements nor witnesses were confronted with role of each accused during course of identification parade---Report of identification parade was silent regarding specifications of accused given by witnesses in their statements under S. 161, Cr.P.C.---Such identification parade did not qualify the test given by superior courts and same was nullity in the eyes of law.

Sher Afzal Khan for Appellants.

Yasir Barkat Ch., Standing Counsel, Muhammad Khan, S.I., P.S. Sabzi Mandi for the State.

2017 M L D 1

[Sindh]

Before Sajjad Ali Shah and Syed Saeeduddin Nasir, JJ

IRSHAD AHMED SHAD---Appellant

Versus

PERVEZ AKHTAR and 2 others---Respondents

H.C.A. No.115 of 2013, decided on 16th June, 2015.

Limitation Act (IX of 1908)---

----S. 5---Civil Procedure Code (V of 1908), O. IX, R. 9 & S. 151---Restoration of suit---Limitation---Condonation of delay---Proof of absence---Act of counsel---Suit filed by plaintiff was dismissed for non-prosecution on 11-01-2011 whereas application for restoration was filed on 8-06-2011---Plaintiff sought condonation of delay on the ground that he remained under medical treatment for about six months---Validity---No medical record was filed by plaintiff along with his application therefore explanation/justification given by him for filing application after inordinate delay of about five months was not acceptable---Plaintiff was unable to give any explanation for absence of his counsel on the date when matter was called by the Court and suit was dismissed in default---Single Judge of High Court had rightly held that parties were bound by the acts and omissions of their counsel and in case of negligence on the part of counsel, parties could not claim that they were not to be held responsible---On account of dismissal of suit, valuable rights had accrued in favour of defendants which could not be taken away unless justifiable, strong or convincing cause was shown to the Court---Division Bench of High Court declined to interfere in the order passed by Single Judge dismissing the suit for non-prosecution---Appeal was dismissed in circumstances.

Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others 1974 SCMR 223; Zahid Ahmed v. Deputy Director Adjudication and 2 others PLD 2006 Kar. 252 and Khalid Saigal v. National Investment Trust Ltd., and 2 others 1984 CLC 182 rel.

Badrul Alam for Appellant.

Qamar Riaz Virk for Respondents.

2017 M L D 22

[Sindh]

Before Sajjad Ali Shah, C.J. and Muhammad Junaid Ghaffar, J

MILITARY ESTATE OFFICER---Appellant

Versus

ARDESHIR COWASJEE and 3 others---Respondents

H.C.A. No.74 of 2013, decided on 4th January, 2016.

Land Acquisition Act (I of 1894)---

----Ss. 17, 18 & 28-A---Civil Procedure Code (V of 1908), S. 114 & O. XLVII, R. 7---Law Reforms Ordinance (XII of 1972), S. 3---Intra-court appeal---Review application---Scope---Amendment in decree by Executing Court---Scope---Compensation against award was determined by Court and judgment/decree was passed in that regard against authorities---During pendency of execution application filed by landowners, authorities preferred objections on which Single Judge of High Court directed authorities to deposit decretal amount within 30 days and on failure to comply with direction, execution was allowed---Single Judge of High Court while deciding execution application recorded observations and authorities wanted to get said observations implemented---Validity---Even if such part of order whereby it was observed that decree-holder was entitled for compensation under S.28-A of Land Acquisition Act, 1894 was set aside, same would have no bearing on final outcome, as judgment and decree itself provided for payment of such compensation against which appeal preferred by authorities already stood dismissed and same had not been challenged any further---Observations were recorded by Single Judge of High Court as it was specifically pleaded on behalf of authorities that since S.28-A of Land Acquisition Act, 1894 stood omitted as if it was never on the statute book, therefore, additional compensation was paid---Authorities were to agitate merits of judgment and decree in further appeal which otherwise had attained finality and not before Executing Court through review application---Authorities tried to make an attempt to get modification of judgment and decree by raising such objections which were not permissible as Executing Court was bound by judgment and decree passed in the matter and such observations in order in question could not be challenged to seek further opportunity of having decree set aside---High Court declined to interfere in the matter as authorities did not assail appellate order any further, therefore same had attained finality and was not a case of pending proceedings---Intra-court appeal was dismissed in circumstances.

PLD 1992 FSC 398 and Lahore Development Authority v. Fahmeeda Khatoon and others 1986 SCMR 1478 ref.

Umar Hayat Sandhu for Appellant.

Afsar Ali Abidi for Respondent.

2017 M L D 32

[Sindh]

Before Abdul Maalik Gaddi, J

ANWAR ZAMAN---Applicant

Versus

The STATE---Respondent

Crl. B.A. No.460 of 2016, decided on 10th June, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(b) & 51---Possessing and trafficking of narcotics---Bail, grant of---Further inquiry---Case had already been challaned against accused, who was no more required for investigation---Accused was behind the bars for the last more than five months without any substantial progress in trial---Case of the prosecution rested upon the evidence of the Police Officials, their evidence required thorough scrutiny at the time of trial; and there was no apprehension of tampering with the prosecution evidence at the hands of accused---Five hundred grams charas, having allegedly been recovered from possession of accused, accused was liable to be tried under S.9(b) of Control of Narcotic Substances Act, 1997, which did not fall within the prohibition contained in S.51 of the Act---Accused was previous non-convict and it was yet to be determined at the trial whether accused had committed the offence in a manner as alleged by prosecution or otherwise, till then case of accused required further probe---Accused having not been convicted in any case allegedly registered against him, he could not be refused bail mainly on the ground that certain other criminal cases had been registered against him---Accused having made out a case for further inquiry, he was admitted to bail, in circumstances.

Shah Nawaz alias Chullu v. The State and another 2013 PCr.LJ 1782 rel.

Asghar Ali Joiya for Applicant.

Zahoor Shah, APG for the State.

2017 M L D 46

[Sindh (Larkana Bench)]

Before Anwar Hussain, J

ASIF ALI ZANGEJO JATOI--Applicant

Versus

The STATE---Respondent

Crl. Bail Appln. No.S-145 of 2016, decided on 20th April, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497----Penal Code (XLV of 1860), Ss. 324 & 353---Assault or criminal force to deter public servant from discharge of duty---Bail, grant of---Exchange of firing had taken place between the police party and the accused party, and empties of crime weapons had been recovered, but neither any member of the police party had received any injury, nor was there any scratch on the police vehicle; whereas, accused had sustained firearm injury on his leg; as such, it was a case of ineffective firing on part of the accused, which made present case a matter of further inquiry---All prosecution witnesses were police officials and no independent person had been cited as witness---Challan had already been submitted---Bail was allowed accordingly.

2011 SCMR 70; 2004 YLR 104; 2010 MLD 344; 2007 YLR 1727 and 2000 PCr.LJ 1510 ref.

Mumtaz Ali v. The State 2011 SCMR 70 and Suleman v. The State 2004 YLR 104 rel.

Muhammad Afzal Jagirani for Applicant.

2017 M L D 74

[Sindh]

Before Salahuddin Panhwar, J

IMTIAZ ALI EFFENDI---Plaintiff

Versus

ALI MUHAMMAD EFFENDI and 5 others---Respondents

Suit No.1114 of 2011, decided on 26th February, 2016.

Civil Procedure Code (V of 1908)---

----O. XX, R. 13---Administration suit---Auction proceedings---Application to keep the property by the party---Scope---Confirmation of sale in favour of auction purchaser had not been ordered---Return of deposited amount would not cause prejudice to the auction purchaser---Defendants intending to keep the property with them directed to deposit the share amount of plaintiff within a period of six months failing which auction proceedings in favour of auction purchaser should stand restored---Auction purchaser would be at liberty to withdraw/collect his amount from the Nazir---Application to keep the property by the defendants was accepted in circumstances.

Ziaul-Haq Makhdoom and Azhar Mehmood for Plaintiff.

Khawaja Saif-ul-Islam and Irfan Hassan for Defendants.

Safia Saeed Shah and Sohail Abbas for auction purchaser.

2017 M L D 100

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto, J

Mst. SHAHNAZ NAYAR---Applicant

Versus

The STATE---Respondent

Cr. Bail Appl. No.S-892 of 2014, decided on 20th October, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 498/497----Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, confirmation of---Accused had already filed Constitutional petition against the complainant for harassment, and later she lodged criminal case alleging that some of her articles including her purse had been taken away/stolen---Cheque in question had not been issued towards repayment of some outstanding loan or fulfilment of an existing obligation---Dishonest intention for issuing the cheque was yet to be proved at trial---Ingredient of S. 489-F, P.P.C., prima facie, were not satisfied---Offence in question did not fall within the prohibitory clause of S. 497, Cr.P.C.---Serious mala fide on part of the complainant and the police had been alleged---Accused was a female---Challan in the case had already been submitted---Pre-arrest bail already granted to the accused was confirmed---Bail before arrest was allowed accordingly.

Mian Allah Ditta v. The State and others 2013 SCMR 51 rel.

Muhammad Qasim Siyal for Applicant.

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

Complainant present in person.

2017 M L D 112

[Sindh (Hyderabad Bench)]

Before Abdul Rasool Memon and Zafar Ahmed Rajput, JJ

PIR BUX SOOMRO and another---Petitioners

Versus

PROVINCE OF SINDH through Senior Member Board of Revenue and 5 others---Respondents

Const. Petition No.D-2176 and M.As. Nos. 12409, 12410 of 2014, decided on 27th November, 2014.

(a) Sindh Land Revenue Act (XVII of 1967)---

----S. 164---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Cancellation of Foti-Khata Badal by the Executive District Officer (Revenue)---Scope---Revenue courts had exclusive jurisdiction to determine the matter with regard to making and maintenance of record-of-rights, assessment and collection of land revenue, survey and demarcation of boundaries of land, appointment and functions of revenue officers and matters connected with Land Revenue Administration in the province---Impugned order was within the jurisdiction of Executive District Officer (Revenue)---Remedy of appeal and revision had been provided against the impugned order passed by the Executive District Officer (Revenue)---Petitioners should not have approached High Court without exhausting other remedies provided to them in the hierarchy of Revenue Forums under the Sindh Land Revenue Act, 1967---Constitutional petition was dismissed in limine.

Messrs Ahmed Clinic v. Govt. of Sindh and others 2003 CLC 1196 and Mst. Ghulam Sakina v. Member (J) Board of Revenue Hyderabad and 4 other PLD 2004 Kar. 391 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could not exercise constitutional jurisdiction where aggrieved person had adequate remedy.

Mumtaz Ahmed and another v. The Assistant Commissioner and another PLD 1990 SC 1195 rel.

2017 M L D 132

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

IMTIAZ ALI---Petitioner

Versus

PROVINCE OF SINDH through Home Secretary and 8 others---Respondents

Constitution Petition No. S-3425 of 2014, decided on 4th May, 2016.

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

----Ss. 302, 395, 342, 364, 506, 34, 402, 399, 324 & 353---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 173---Qatl-i-amd, dacoity, wrongful confinement, abduction in order to commit murder, criminal intimidation, assault or criminal force to deter public servant from his duty, attempt to commit qatl-i-amd---Appreciation of evidence---Two conflicting versions in respect of alleged incident were on record---First FIR was lodged by police party alleging encounter between police party and deceased and his companions, while second FIR was lodged by petitioner alleging that police raided their house, committed robbery, apprehended petitioner and his brother, and subsequently committed murder of his brother and threw his dead body in front of their house---Investigating officer recommended disposal of case under "B" class which was approved vide impugned order---Deceased was admitted to hospital in a serious condition where he succumbed to injuries---Dead body of deceased was received by father of deceased after post-mortem---Deceased was also involved in fifteen criminal cases---Petitioner had failed to point out any illegality and material infirmity in the impugned order---Constitutional petition was dismissed accordingly.

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

----Ss. 154 & 173---First Information Report---Second FIR---Scope---Registration of second FIR is not permissible on the basis of same occurrence, facts and allegations, specially when the earlier FIR stood cancelled on the Police report under S.173, Cr.P.C.---If there had been malpractice by the Police or anybody else in registration of first FIR, subsequent FIR could not be registered.

Muhammad Saleem Akhter v. Station House Officer Police Station Chotiana and 3 others 2005 PCr.LJ 1789; Syed Wahid Bux Shah alias Chacho Shah and another v. The State 2011 MLD 64 and Jamshed Ahmed v. Muhammad Akram Khan and others 1975 SCMR 149 rel.

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

----S. 173---Police Rules, 1934, R.24.7---Power of Magistrate to accord or discord police report---Scope---Magistrate while dealing with summary report submitted by Investigating Officer was competent under S.173, Cr.P.C. and R.24.7 of Police Rules, 1934, to accord or discord summary report considering facts and circumstances of incident prudently to maintain ends of justice and curb the abuse of process of court.

Suhail Ahmed Khoso for Petitioner.

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

2017 M L D 146

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

IMTIAZ ALI---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No.S-761 of 2015, decided on 3rd December, 2015.

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

----S. 497----Penal Code (XLV of 1860), S. 161---Prevention of Corruption Act (II of 1947), S.5(2)---Public servant taking gratification other than legal remuneration in respect to an official act---Criminal misconduct---Bail, grant of---Accused apparently had no direct nexus with the issue of alleged refund of security deposit---Complainant, as per the FIR, had paid Rs.30000 to the accused instead of Rs.15000---Mashirnama showed that fifteen currency notes with denomination of Rs.1000 each had been allegedly tainted by the Anti-Corruption Establishment, and during search, only an amount of Rs.6000 had been recovered from possession of the accused instead of Rs.15000---Raid had been conducted under the supervision of the Magistrate and complainant had gone inside of the office and made payment of the tainted currency notes to the accused, but the raiding party had remained away/outside of the office of the accused; therefore, the raiding party had neither heard the conversation between the complainant and the accused nor witnessed the factum of payment of alleged tainted money---Challan of the case had already been submitted and the accused was no more required for investigation---Accused had been behind the bars for four months, but the prosecution had failed to examine even a single witness to substantiate the charge against him---Offences under S. 161, P.P.C. read with S.5(2) of Prevention of Corruption Act, 1947 was neither punishable with death nor imprisonment for life or imprisonment for ten years, hence, the same did not fall within the prohibitory clause of S. 497 (1), Cr.P.C---Bail application was allowed accordingly.

Saleem Jan (Naib Tehsildar) and another v. The State and another PLD 2011 SC 509; Muhammad Suleman v. The State 2013 PCr.LJ 1051; Dr. Iftikhar Ahmed Seehar v. The State 2014 YLR 1385 and Nazar Mohammad v. The State 2003 PCr.LJ 175 rel.

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

----S. 497----Bail---Principles---Concession of bail ought not to be withheld by way of premature punishment.

Qurban Ali Malano for Applicant.

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

2017 M L D 187

[Sindh]

Before Sajjad Ali Shah, C.J. and Zulfiqar Ahmad Khan, J

Miss AYESHA BALOCH---Petitioner

Versus

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

Constitutional Petition No.D-572 of 2015, decided on 11th April, 2016.

Educational institution---

----Petitioner-student despite availing maximum of four chances could not pass the MBBS First Professional Examination---Contention of petitioner was that it would be harsh for her if she was asked to leave the college---Validity---Court could not grant relief which was contrary to law, on humanitarian grounds---Any direction for correction of the mark sheets by the court would be transgression of the provision of the rules---Court could not be a party to direct the student to disobey regulations---Petitioner appeared to be not interested to continue her studies in the Medical College nor had required aptitude needed for the subject---Rules had provided for a maximum of four chances of the First Professional MBBS Examination (whether appeared or not) to a candidate---Petitioner had made four attempts and did not pass the examination---Constitutional petition was dismissed in circumstances.

2000 CLC 1097; 2008 CLC 1449; 2011 YLR 1838; 2005 YLR 1462 and 2012 MLD 392 ref.

2000 SCMR 1222; 2001 SCMR 1506; 1994 SCMR 532 and Miss Asma Ghafoor v. Principal, King Edward Medical College, Lahore 2011 SCMR 1311 rel.

Masjood Ali Memon for Petitioner.

Syed Mehmood Alam Rizvi, Zakir Laghari and Abbas Hyder for Respondents Nos. 1 and 2.

Mustafa Mahesar, A.A.G.

Asim Mansoor Khan, D.A.G.

2017 M L D 200

[Sindh (Sukkur Bench)]

Before Aqeel Ahmed Abbasi and Muhammad Faisal Kamal Alam, JJ

SHABBIR AHMED MALIK and another---Petitioners

Versus

CHAIRMAN, NAB and others---Respondents

C.Ps. Nos.D-424, D-425, D-1626 and D-1627 of 2016, decided on 3rd June, 2016.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 5(r), 9(a), 25(a) & 33-E---Recovery of 'amount due'---Willful default---Quashing of proceedings---Petitioners alleged to have committed offences of corruption and corrupt practice and had entered into Voluntary Return under S. 25(a) of National Accountability Ordinance, 1999---Petitioners failed to deposit amount settled under Voluntary Return, therefore, NAB filed fresh reference against them---Validity---When a person did not pay entire agreed amount as determined by Trial Court, then such default did not fall within the mischief of 'wilful default' as mentioned in S. 5(r) of National Accountability Ordinance, 1999---Remedy for NAB in such default lay in invoking S. 33-E, of National Accountability Ordinance, 1999, as the same had been termed as a special provision to execute recovery of 'amount due' under National Accountability Ordinance, 1999---Petitioners had agreed to pay back the amounts as determined by NAB, by signing Voluntary Return agreements, therefore, subsequent filing of NAB Reference against petitioners was not justified and the same was tainted with malice---High Court directed petitioners to pay Voluntary Return amounts in four equal instalments and quashed proceedings pending before Trial Court---Constitutional Petition was allowed in circumstances.

Mahesh Kumar and another v. Chairman, NAB, Islamabad and others PLD 2008 Kar. 38; Sohail Adeeb Bachani v. The State C.P. No.D-7144 of 2015; Haji Khan v. Government of Pakistan 2013 PCr.LJ 1571; Independent Newspapers Corporation (Pvt.) Ltd. v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees 1993 SCMR 1533 and Agriculture Workers' Union, Balochistan v. Registrar of Trade Unions, Balochistan 1997 SCMR 66 rel.

Shahab Sarki, Zulfiqar Ali Sangi and Khan Muhammad Sangi for Petitioners.

Abdul Karim Luhrani, Special Prosecutor, NAB with Umesh Chawla Assistant Director/I.O. NAB for Respondents.

2017 M L D 223

[Sindh]

Before Muhammad Ali Mazhar and Muhammad Iqbal Mahar, JJ

TAYYAB JAVED---Petitioner

Versus

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

C.P. No.D-2785 of 2012, decided on the 6th June, 2016.

Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Controversial questions of fact could not be decided in exercise of powers under Art. 199 of the Constitution---Such questions could only be determined after recording of evidence by the competent forum.

PLD 1996 SC 632 and PLD 2007 SC 498 distinguished.

Imdad Khan for Petitioner.

Liaqat Hussain Standing Counsel along with Sub-Lieutenant Zeeshan Zuberi for Respondents.

2017 M L D 249

[Sindh]

Before Mohammad Shafi Siddiqui, J

SAEED ALLAHWALA---Applicant

Versus

ZAM ZAM CORPORATION/FEDERATION OF PAKISTAN through Secretary Ministry and 2 others---Respondents

J.Ms. Nos. 20 and 37 of 2013 in Suit No.943 of 2012, decided on 7th April, 2016.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Fraud and misrepresentation---Proceedings under S.12(2), C.P.C.---Scope---Judgment and decree, setting aside of---Scope---Applicant was neither aggrieved of judgment and decree nor any of his interest or right had been infringed---Applicant had sought relief in seeking declaration in the application which could not be granted while setting aside the judgment, decree and/or order impugned therein---Impugned judgment and decree did not affect the applicant---Scope of proceedings under S. 12(2), C.P.C. was confined to fraud practiced upon the court itself and obtaining an order or decree through misrepresentation---Party alleging fraud and misrepresentation by its own authorized representative or attorney or officer would not be entitled to relief under S.12(2), C.P.C.---No fraud or misrepresentation appeared to have been committed on the part of respondents---Application for setting aside of judgment and decree was dismissed in circumstances.

Ayan Mustafa Memon for Applicant (in J.M. No. 20 of 2013).

Khalid Ishtiaq for Applicant (in J.M. No. 37 of 2013).

Makhdoom Ali Khan along with Abdul Ghaffar Khan and Sarmad Hani for Respondent No.1.

2017 M L D 272

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh and Nadeem Akhtar, JJ

SHAFIQUE AND COMPANY, HYDERABAD through Proprietor---Petitioner

Versus

FEDERATION OF ISLAMIC RE-PUBLIC OF PAKISTAN through Ministry of Foreign Affairs Government of Pakistan, Islamabad and 3 others---Respondents

C.P. No.D-2289 of 2012, decided on 16th February, 2016.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Alternate and efficacious remedy---Execution of decree---Suit for recovery of money filed by petitioner company was ex-parte decreed in its favour---Plea raised by petitioner was that direction be issued to authorities for getting the decree executed---Validity---Jurisdiction of High Court under the provisions of Art. 199 of the Constitution was conditional upon non-availability of other remedy to petitioner---Execution proceedings initiated by petitioner were pending before executing court---High Court declined to interfere in the matter---Petition was dismissed in circumstances.

Muhammad Sulleman Unar for Petitioners.

Muhammad Humayoon Khan Standing Counsel for Respondent.

2017 M L D 309

[Sindh (Sukkur Bench)]

Before Mohammad Iqbal Mahar, J

Mst. MUMTAZ BANU---Petitioner

Versus

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

Constt. Petition No.S-2282 of 2016, decided on 16th June, 2016.

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

----S. 25---Custody of minor---Petitioners/mother claimed restoration of the custody of her minor sons on the ground that their father had illegally removed the minors from her (lawful) custody---Validity---Minor sons being aged about 10 and 8 years respectively, their custody with their father could not be treated as illegal, as he was responsible for their upbringing being the natural guardian---Father, even otherwise, was entitled to the custody of his sons over 7 years of age---Petitioner had equally efficacious and alternate remedy to move an application for the interim or permanent custody of the minors before the Guardian Court---Constitutional petition was dismissed in circumstances.

Mst. Saima Aslam v. Asif Tufail 2009 YLR 552 and Mst. Rizwana Bokhari v. Abdul Majeed Shah and others 1984 PCr.LJ 2582 distinguished.

Mst. Gulzadi v. Government of Sindh, through Home Secretary and others PLD 2014 Sindh 386 and Mst. Saddaf v. Shahnwaz and 3 others 2013 MLD 562 rel.

Abdul Naeem Pirzado for Petitioner.

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

2017 M L D 329

[Sindh]

Before Sajjad Ali Shah and Muhammad Iqbal Kalhoro, JJ

Mst. MUSARAT ABID---Petitioner

Versus

Messrs AKBAR BUILDERS through Managing Partner and 6 others---Respondents

Const. Petition No. D-2002 of 2015, decided on 26th October, 2015.

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

----S. 12(2)---Specific Relief Act (I of 1877), S. 42---Suit for declaration, permanent injunction, specific performance and mesne profit---Respondent contended that judgment-debtor had sold out the property to petitioner fraudulently---Judgment-debtor was at fault, action if any should have been initiated by the petitioner against him---Judgment-debtor was fully aware of the decree, which was challenged by him in appeal but remained unsuccessful---Selling the suit property in favour of petitioner did not appear to be with bona fide consideration---Petitioner had to swim and sink with judgment-debtor who remained unsuccessful in litigation over the disputed property---Constitutional petition was dismissed.

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

----S. 52---Lis pendens, principle of---Applicability---Transferee of suit property, even if purchaser for value, without notice of the pendency of suit, was a bona fide purchaser---Person being bona fide purchaser, in view of the rule of lis pendens shall be bound by the result of the suit in all respects, as her transferor would be---Transferee, therefore, did not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes she steped in for all intents and purposes and had to swim and sink with his predecessor-in-interest.

2003 MLD 1970; 2000 CLC 250; 2006 SC 84 and Mohammad Ashraf Butt and another v. Muhammad Asif Butt and another PLD 2011 SC 905 ref.

Mohammad Ashraf Butt and another v. Muhammad Asif Butt and another PLD 2011 SC 905 rel.

Abdul Wajid Wyne for Petitioner.

Lali Tabbasum for Respondents Nos. 2 and 3.

Called absent for Respondent No.1.

2017 M L D 347

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD ALI HASAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1088 and M.As. Nos. 7079 and 7080 of 2016, decided on 30th July, 2016.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302, 322, 435, 436, 337 & 34---Qatl-i-amd, qatl-bis-Sabab, mischief by fire or explosive substance with intent to destroy house, shajjah, common intention---Protective bail, grant of---Accused neither had been nominated in FIR nor the police charge-sheeted him---Accused was patient of lymphoma (Cancer)---Trial court instead of passing interim bail order on his pre-arrest bail application, issued notice to prosecution and in such a way the very purpose of interim pre arrest bail application was frustrated---High Court, without touching the merits and demerits of the case, admitted the accused to protective bail subject to furnishing surety bond till passing of the order by the trial court on interim pre-arrest bail application---Trial court was directed to decide the pending pre-arrest bail application within the period of ten days.

2017 M L D 366

[Sindh]

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

Messrs TMK SUGAR MILL (PVT.) LTD. through Authorized Director---Appellant

Versus

VENUS CHEMICALS (PVT.) LTD.---Respondent

H.C.A. No.353, 354, 368 and 369 of 2015, decided on 26th January, 2016.

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

----S. 12---Suit for specific performance of contract---Temporary injunction/status quo order, abuse of---Inherent jurisdiction of High Court---Scope---Plaintiffs filed two suits for specific performance of Asset Purchase Agreements claiming that the defendants, having sold out the suit property to them, had avoided to perform their part of contract and tried to interfere with their possession, whereupon, the Single Judge of the High Court, on injunction application, directed the parties to maintain status quo---Defendants, denying the existence of said agreements contended that the plaintiffs, under the garb of status quo order, had forcibly taken over the possession---Single Judge of High Court on basis of judicial inquiry report, handed over the possession of the property back to the defendants---Validity---Defendants, being owners of the suit property, had been in possession of the same---In spite of the huge sale consideration, not a single penny had been shown to have been paid to the defendants---Single Judge of the High Court had passed the impugned order while exercising inherent jurisdiction, which was proper and legal in all respects---Defendants had made misrepresentations while filing present appeals---Defendants had already impugned the same orders of the Single Judge of the High Court by filing two appeals, which they had withdrawn after filing the present appeals against the same orders---Defendants, playing fraud and malafidely misrepresenting/suppressing facts, had obtained status quo order in present appeals showing themselves to be in possession of the suit property and again forcibly, illegally and unlawfully occupied the suit property---Defendants, therefore, had abused the process of the Court and come to the Court with unclean hands and mala fide intention for wrongful gains---High Court, maintaining the impugned orders, issued notices in the contempt application and also required the counsel for the plaintiffs to explain as to why the matter not be referred to the Bar Council for initiating disciplinary proceedings against him for misconduct---Appeals were dismissed in circumstances.

Civil Aviation Authority v. Noor Muhammad PLD 1988 Kar. 401 (DB); Saif-ur-Rehman, v. Muhammad Ayub, PLJ 1999 Kar 263(DB); Collector of Central Excise and Sales Tax, v. Pakistan Fertilizer Co. Ltd., 2007 SCMR 351 and Gajanand Sha v. Dayanand Thakur, AIR 1943 Patna 127 (DB) rel.

(b) Administration of Justice---

----Abuse of process of the Court---Courts have got inherent jurisdiction to pass appropriate orders, where party has abused the process of the court.

Faiz H. Shah for Appellants.

Noor Ahmed Memon for Respondents.

Ghulam Mustafa Mahesar, A.A.G. for the State.

2017 M L D 388

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

SONA KHAN alias SONHRA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.161 and Confirmation Case No.2 of 2015, decided on 30th March, 2016.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Eye-witnesses, along with the deceased were working at the same place---Presence of eye-witnesses at the place of incident, therefore, had been established---Names of the eye-witnesses had been mentioned in promptly lodged FIR---Eye-witnesses, though were closely related to the deceased, but their evidence could not be discarded on that ground alone, when said witnesses had no motive to falsely implicate accused in the case---Evidence of said witnesses was fully corroborated by the medical evidence---Appraisal of evidence, carried out by the Trial Court, did not suffer from any infirmity---Witnesses remained firm on all major particulars of the case i.e. date, time and place of occurrence; and despite lengthy cross-examination, their credibility could not be shattered---Prosecution had proved motive against accused for commission of offence---Accused was caught hold at the spot, crime weapon/churry was recovered from him, which was sent to Chemical Examiner, who gave positive report---Accused came prepared at the place of incident to commit murder---Case against accused had fully been proved---No mitigating circumstances had been pointed out by the counsel for accused for reduction of sentence of death---Accused had committed murder in cruel and callous manner by causing knife blows at the vital parts of deceased---Normal penalty of death awarded to accused by the Trial Court, seemed to be justifiable---Appeal was dismissed; Reference for confirmation of death sentence, was answered in affirmative.

Mir Alam v. Amroz Khan and another PLD 2015 Pesh. 125; Akhtar Hussain alias Kaka v. The State 2009 PCr.LJ 444; Abid Hussain v. The State 2008 PCr.LJ 230; Abdul Wahid v. Umar and 2 others 2013 PCr.LJ 192; Muhammad Irfan v. The State PLD 2008 Kar. 182; Muhammad Rafique v. The State PLD 2008 Lah. 268; Mst. Nazakat v. Hazrat Jamal and another PLD 2007 SC 453; Amal Sherin and another v. The State through AG, N.-W.F.P. PLD 2004 SC 371; Iftikhar Ahmed v. The State 2005 SCMR 272; Muhammad Asghar and others v. The State 1997 MLD 2197; Salim Javed Durrani v. The State through Deputy Attorney-General, N.W.F.P and 3 others 2005 PCr.LJ 22; Anwar Shamim and another v. The State 2010 SCMR 1791 and Dadullah and another v. The State 2015 SCMR 856 ref.

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

----S. 302(b)---Qatl-i-amd---Interested witness---Meaning and scope---Interested witness was one who had an animus for false charge---Mere relationship of a witness to the deceased was not enough reason to discard his testimony, because such a witness was necessarily not an interested witness in the true sense of term.

Raqib Khan v. The State 2000 SCMR 163 ref.

Muhammad Ramzan for Appellant.

Muhammad Iqbal Awan, Asstt: Prosecutor General Sindh for the State.

Fazul Rehman for the Complainant.

2017 M L D 412

[Sindh]

Before Muhammad Iqbal Kalhoro, J

TAHIR AYUB KHAN---Petitioner

Versus

Mrs. ALIA ANWER and another---Respondents

C.P. No.S-1661 of 2014 C.M.As. No. 6370 of 2015, 7240 of 2014 and 1543 of 2016, decided on 21st April, 2016.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.17---Suit for recovery of maintenance allowance and dower---Preliminary decree---Scope---Wife filed suit for recovery of maintenance allowance and dower wherein Family Court directed the husband to pay dower before decision of said suit---Contention of husband was that preliminary decree could not be passed in family cases---Validity---Husband had not paid dower to the wife---Dower was prompt in nature and it had to be paid on demand---Family Court in order to do substantial justice was competent to regulate its proceedings and pass order to promote interest of justice---Purpose and object behind enactment of S. 17 of Family Courts Act, 1964 was to facilitate the Family Court to bypass the lengthy and mundane procedure of Civil Procedure Code, 1908 and to decide family matters expeditiously---Husband could not insist to defer the payment of dower till the conclusion of family suit---If prompt dower was not paid on demand, wife could refuse to perform conjugal obligations to her husband---Pendency of suit for conjugal rights against the wife could not be considered as an impediment for her to demand prompt dower from the husband---Constitutional petition was dismissed in circumstances.

1999 CLC 1578; 1997 CLC 647; 2006 YLR 1264; PLD 2011 SC 221 and 2012 CLC 1881 ref.

Abdul Haleem Siddiqui and Zeeshan Khan Sherwani for Petitioner.

Ibadul Hasnain for Respondent No.1.

2017 M L D 427

[Sindh]

Before Muhammad Humayon Khan, J

SHANZA ALI---Petitioner

Versus

AAMIR SHUJAAT and 2 others---Respondents

Cr. Misc. Application No.120 of 2016, decided on 28th July, 2016.

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

----S.491---Guardians and Wards Act (VIII of 1890), S. 25---Habeas Corpus petition by mother for recovery of her minor child, pending proceedings before Guardian Judge for custody of minor---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 the rights of parties for final determination of the dispute pertaining to the custody of minor by the Guardian Judge---Custody of minor, who was aged less than two 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---Petition, was allowed accordingly.

Mst. Saima Bibi v. Raheel Butt and 3 others 2014 MLD 38; Mst. Abida v. S.H.O., Ratodero Police Station (District Larkana) and 3 others 2014 YLR 705; Mst. Reema v. S.H.O., Police Station Darri, Larkana and 4 others PLD 2014 Sindh 598; Saima Noreen v. The State and others 2015 MLD 833; Karam Khatoon v. Senior Superintendent of Police, District Khairpur and 8 others 2016 MLD 29 and Mst. Zarmeen v. Dr. Omer Mohayuddin Sheikh and others 2013 MLD 1640 rel.

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

----S. 491---Habeas Corpus petition---Maintainability---Custody of minor, restoration of---Under provisions of S. 491, Cr.P.C. court was empowered to pass an appropriate order to ensure that the rights conferred upon the minor child were fully protected in a suitable manner, particularly when minor was of tender age---Habeas Corpus petition in such cases was maintainable.

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

----S.491----Habeas corpus petition---Restoration of custody of minor---Minor girl aged about one year and ten months was forcibly removed from mother---Mother's right to restoration of custody---Scope---Mother filed criminal miscellaneous application seeking restoration of custody of her minor daughter claiming that she was living at her parents' house along with minor, and her husband had forcibly snatched her minor daughter---Mother contended that she had preferential right of custody of minor, who was of tender age---Father took the plea that petitioner had already filed an application for the custody of minor which was pending before the Guardian Court, and that petitioner had herself gave the custody of minor in the presence of witnesses---Validity---Mother had the preferential right to "Hizanat" till the minor attained the age of seven years in the case of male and till the age of puberty in the case of female---Petition of mother was allowed accordingly.

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

----S.491---Guardians and Wards Act (VIII of 1890), S. 25---Habeas corpus petition for recovery of minor, pending petition before Guardian Judge for custody of minor---Agreement between the minor's mother (petitioner) and father (respondent), by which the mother had given the minor to her father---Mother had filed application under S.25 of the Guardians and Wards Act, 1890 in the Guardian Court---Contention of the father was that minor was handed over by her mother under an agreement---Validity---Agreement with regard to the custody and guardianship of minor was not a valid agreement and could not be enforced and had no binding force in the eye of law---Petition of mother of minor was allowed accordingly.

Mst. Abida v. S.H.O., Ratodero Police Station (District Larkana) and 3 others 2014 YLR 705; Saima Noreen v. The State and others 2015 MLD 833; Mst. Tahera Begum v. Saleem Ahmed Siddiqui PLD 1970 Kar. 619; Afshan Naureen v. Nadeem Abbas Shah 1997 MLD 197; Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533; Dr. Fauzia Haneef v. Dr. Raashid Javaid and 2 others PLD 2010 Lah. 206 and Mst. Shehnaz Bibi v. Muhammad Akram and others 1995 PCr.LJ 307 rel.

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

----S.491----Habeas Corpus petition---Restoration of custody of minor---Minor girl aged about one year and ten months was forcibly removed from mother---Mother's right to restoration of custody---Scope---Minor had a fundamental right of being fed from the breast of her mother---Minor could not be deprived by any person of such fundamental and supreme right---Petition was allowed accordingly.

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

----S. 491---Habeas Corpus petition---Restoration of custody of minor---Minor girl aged about one year and ten months was forcibly removed from mother---Mother's right to restoration of custody---Scope---Minor in the present case, would need constant care of mother and it was a universal truth that there could not be any substitute for mother---Lap of mother was God's own cradle for a child---Petition was allowed accordingly.

Shaukat Masih v. Mst. Farhat Parkash and others 2015 SCMR 731 ref.

Asad Ali Zaidi for Petitioner.

Ms. Naeema Aziz for Respondent No.1.

Zafar Ahmed Khan, Additional Prosecutor General and Anwar Subhani, State Counsel for Respondent Nos. 2 and 3.

2017 M L D 449

[Sindh (Hyderabad Bench)]

Before Ghulam Qadir Leghari, J

RIAZ ALI LEGHARI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-1165 of 2015, decided on 27th July, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Bail, refusal of---Complainant had alleged that accused caught hold of deceased while co-accused caused dagger blows to the person of deceased resulting in his death---Accused had played pivotal role by catching deceased and facilitated the co-accused---Case was of two versions but as per statements of eye-witnesses, prima facie, involvement of accused could not be ruled out---Accused could be tentatively connected to the crime having prima facie facilitated the murder of deceased---Bail was declined to accused.

Nadeem alias Athar v. The State 2011 PCr.LJ 1479; Hafiz Muhammad Hashim v. Muhammad Bux and others 1979 SCMR 197; Gul Khan v. Gul Daraz Khan 1995 SCMR 1765 and Muhammad Abbasi v. The State 2011 SCMR 1606 rel.

Syed Madad Ali Shah for Applicant.

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

Haji Qalandar Bux Laghari for the Complainant.

2017 M L D 460

[Sindh]

Before Nazar Akbar, J

Mrs. AFIA BAIG w/o MIRZA FAWAD BAIG: In re:

S.M.A. No.74 of 2015 and C.M.A. No.1336 of 2016, decided on 14th October, 2016.

(a) Counsel and client---

----Affidavit by advocate---Scope---Lawyer is not supposed to take place of his client when seeking any substantial relief which the client wanted from the Court---Lawyer cannot swear affidavit of facts relating to circumstances of his client in which need for an order from Court of law was felt for the client even on the advice of lawyer---Such facts and circumstances can only be in the personal knowledge of the client when neither application nor affidavit in support of application is signed by client.

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

----Ss. 273 & 372---Chief Court Rules (O.S.), Rr. 340, 376, 377 & 399---Letters of Administration and succession certificate---Amended petition---Seeking of surety---Object---Necessary ingredients---Widow of deceased owner of property in question died during pendency of petition and applicant did not file proper amended petition---Validity---On the death of widow of deceased owner, in amended petition for the share inherited by her, amended petition must disclose her legal heirs---Once all codel formalities were honestly completed and petition of letter of administration was granted, it would be duty of petitioner to administer properties of both deceased parents as per law which could include first mutation in the name of respective legal heirs and then it would be the choice of new owners by way of inheritance to deal with their respective individual shares in joint properties the way they could wish to, but in accordance with law---Grant of letter of Administration was always subject to the Rules---Purpose of obtaining sureties by Court in terms of Rr. 399 & 340 of Sindh Chief Court Rules (O.S.) was to ensure that petitioner would administer properties of deceased in accordance with law and honestly.

2017 M L D 472

[Sindh (Larkana Bench)]

Before Abdul Rasool Memon and Rasheed Ahmed Soomro, JJ

MUHAMMAD PANAH alias JHANGI SHAR---Appellant

Versus

The STATE---Respondent

Crl. Jail Appeal No.D-67 of 2011, decided on 28th July, 2016.

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

----S. 9 (b)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic drug/charas---Appreciation of evidence---Police officials as recovery witnesses---Custody of recovered material---Report of chemical laboratory---Witnesses/police officials of ocular account were patrolling and saw the accused slipping away from them---On his arrest and inquiry 1100 grams of charas was recovered from accused---Prosecution produced two witnesses in support of their version---Both the witnesses of recovery were police officials, though they could not be termed as unreliable witnesses, but since the place of occurrence was a busy place the police officials did not make effort to join independent witnesses---Investigating Officer deposed that recovered charas was in shape of two pieces, however, as per evidence of complainant there was one piece from which 400 grams were separated as sample---Recovered material was sent to laboratory after eight days---Prosecution did not examine the person who carried sample of recovered material to laboratory---Appeal of accused was allowed in circumstances and he was acquitted of the charge.

(b) Control of Narcotic Substances (Government Analysts) Rules, 2001---

----R. 4(2)---Dispatch of sample for test or analysis---Principle---Samples were to be dispatched for analysis at the earliest but not later than 72-hours of the seizure.

(c) Criminal trial---

----Benefit of doubt---Not necessary that there must be many circumstances creating doubt---Where there was single circumstance which created reasonable doubt in prudent mind about the guilt of the accused, accused would be entitled to its benefit, not as a matter of grace and concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Faiz Muhammad M. Larik for Appellant.

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

2017 M L D 485

[Sindh]

Before Syed Muhammad Farooq Shah, J

MALIHA HUSSAIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE-V and another---Respondents

C.P. No.S-401 of 2016, decided on 31st May, 2016.

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

----S.12---Family Courts Act (XXXV of 1964), S.14(3)---Appeal against interim order passed under S.12 of Guardians and Wards Act, 1890---Maintainability---Trial Court, while passing order in terms of S.12 of Guardians and Wards Act, 1890, declined interim custody of the minors to the petitioner-father and provided a schedule of meeting; whereas, the appellate Court, accepting appeal against said interim order, modified the schedule and allowed change of school---Validity---Trial Court, keeping in view the welfare and betterment of the minors for certain period, had passed the interlocutory/interim order, as an ancillary order, against which no remedy of appeal, revision or review had been provided---Interference at the interlocutory stage was avoided by the High Court under its constitutional jurisdiction, particularly, when the Legislature had not provided any appeal against interlocutory order in the statute---Trial Court, while passing the Impugned order, had not delivered any final decision, and the order, being interim in nature, could not have been challenged before the appellate court in terms of S.14(3) of Family Courts Act, 1964---Impugned order by the appellate Court, being coram non judice/without jurisdiction and void ab-initio, was not maintainable---Legal plea, not raised before the lower Appellate Court, could not be raised before the High Court---Impugned order of the Appellate Court was, therefore, set aside.

Syed Saghir Ahmed v. Province of Sindh through Chief Secretary S&JD Karachi and others 1996 SCMR 1165; Bilawal House, Karachi v. The State 1991 SCMR 1447; Mushtaq Hussain Bukhari v. The State 1991 SCMR 2136 and Pakcom and others v. Federation of Pakistan and another PLD 2011 SC 44 rel.

Jaffer Raza for Petitioner.

Arshad Tayyaballay for Respondents.

2017 M L D 496

[Sindh]

Before Syed Muhammad Farooq Shah, J

RASHEEDA alias RABIA---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No. 1053 of 2016, heard on 26th August, 2016.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)---Possession of narcotic substance---Bail, refusal of---Accused, was alleged to have been arrested while she was in possession of 9950 grams of opium---Entire opium was sent to the Chemical Examiner for examination, who affirmed that recovered narcotic was opium---No enmity was alleged by the accused with the police to show that she had falsely been implicated in the case---Offence of the accused fell under the ambit of prohibitory clause of S.497 Cr.P.C---Bail was refused accordingly.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)---Possession of narcotic substance---Bail, refusal of---Police officials as sole recovery witnesses---Competency of---Principles---Accused, was alleged to have been arrested while she was in possession of 9950 grams of opium---Prosecution witnesses were police officials---Associating private witnesses in such cases was not the requirement of law---Police witnesses were as good and competent witnesses as anybody else, unless they were proved to be inimical against the accused---Bail was refused accordingly.

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

----S. 25---Criminal Procedure Code (V of 1898), S. 103---Search and arrest---Mode---Search to be made in presence of witnesses---Application of S. 103, Cr.P.C. has been excluded in narcotic cases in view of S. 25 of Control of Narcotic Substances Act, 1997.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)---Possession of narcotic substance---Bail, refusal of---Principle---Deeper appreciation of evidence was not permissible at bail stage---Looking to the peculiar features and nature of the offence Trial Court could depart from the normal standards prescribed in such cases.

Socha Gul v. The State 2015 SCMR 1077 rel.

Ghulam Murtaza and another v. State PLD 2009 Lah. 362 and Amir Zeb v. The State PLD 2012 SC 380 ref.

Zia Ahmed Awan for Applicant.

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

2017 M L D 507

[Sindh]

Before Muhammad Ali Mazhar and Muhammad Iqbal Mahar, JJ

RIAZ AHMED and 2 others---Petitioners

Versus

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

C.P. No.D-1898 of 2012, decided on 22nd June, 2016.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Application of S.12(2), C.P.C.---Scope---Fraud and misrepresentation---Scope---Judgment, decree or order could be challenged if case of fraud, misrepresentation or want of jurisdiction was made out---Application under S. 12(2), C.P.C. had very limited scope---No particular instance or ground had been demonstrated which was sufficient to hold any plea of fraud, misrepresentation or want of jurisdiction---If applicants were not made party in the main proceedings it did not lead to any adverse inference that judgment had been obtained by fraud or misrepresentation---Applicants had failed to demonstrate any case of fraud or misrepresentation---Application for setting aside of judgment was dismissed in circumstances.

Dadabhoy Cement Industries Ltd and others v. National Development Finance Corporation Karachi PLD 2002 SC 500; Mst. Shabana Irfan v. Muhammad Shafi Khan and others 2009 SCMR 40 and Mst.Nasira Khatoon v. Mst.Aisha Bai and others 2003 SCMR 1050 ref.

M.M. Aqil Awan and Danish Rasheed for Petitioners.

Dr. Shahnawaz for Petitioner No.2.

Malik Naeem Iqbal, Faizan H. Memon and Muhammad Saleem for Applicants.

Sibtain Mehmood A.A.G with Ms. Rakhshanda Waheed, State Counsel.

2017 M L D 539

[Sindh (Larkana Bench)]

Before Abdul Rasool Memon and Rasheed Ahmed Soomro, JJ

SAMANDAR alias QURBAN and others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-40 and Criminal Appeals Nos.D-42 and D-44 of 2015, decided on 3rd August, 2016.

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

----Ss. 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7(h)---Sindh Arms Act (V of 2013), S. 23(i)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duty, rioting armed with deadly weapon and every member of unlawful assembly guilty of offence committed in prosecution of common object, terrorism, and possession of unlicensed arms---Appreciation of evidence---Allegation against the accused was that they had confined abductees in their premises---Police party had conducted raid in order to get the abductees released---Accused persons made firing upon the Police party with intention to kill them---Police party also fired in retaliation---None from either sides received injury or scratch and no bullet hit to the vehicle---Trial Court had acquitted the accused persons as the abductees had deposed that accused persons present in the court were not the ones who abducted them---Such circumstances cast serious doubt about the veracity of prosecution case, benefit of which would resolve in favour of accused---Appeal was allowed and conviction and sentences recorded by the trial court against accused persons were set-aside in circumstances.

Mumtaz alias Laloo v. The State 2015 MLD 1117 and Farooq Ahmed v. The State 2014 YLR 998 rel.

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

----Ss. 324, 353, 148 & 149---Anti-Terrorism Act (XXV of 1997), S.7---Sindh Arms Act (V of 2013), S.23(i)(a)---Criminal Procedure Code (V of 1898), S. 103---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duty, rioting armed with deadly weapon and every member of unlawful assembly guilty of offence committed in prosecution of common object, terrorism, and possession of unlicensed arms---Appreciation of evidence---Police party conducted raid on spy information---Despite having prior information, no effort was made for associating private persons to act as witness and attest the very occurrence, arrest and recovery---Recovery of weapons of offence were effected in violation of S. 103, Cr.P.C. as public witnesses were not joined in recovery proceedings---Abductees had stated that crime weapons were not recovered from the accused in their presence---Such circumstances cast fatal blow to the veracity of prosecution case about alleged recovery of weapons of offence---Appeal was allowed and conviction and sentences recorded by the trial court were set-aside in circumstances.

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

----Ss. 324, 353, 148 & 149---Anti-Terrorism Act (XXV of 1997), S.7---Sindh Arms Act (V of 2013), S.23(i)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duty, rioting armed with deadly weapon and every member of unlawful assembly guilty of offence committed in prosecution of common object, act of terrorism, and possession of unlicensed arms---Appreciation of evidence---Delay in sending crime weapons for Forensic Science Laboratory report---Effect---Weapons of offence recovered were sent to ballistic expert for forensic report with delay of 20 days which created doubt in the prosecution case, it could safely be presumed that alleged recovery of crime weapons was not made from the possession of the accused as claimed by the prosecution---Appeal was allowed and conviction and sentences recorded by the trial court against accused persons were set-aside in circumstances.

(d) Criminal trial---

----Benefit of doubt---Scope---Prosecution had to prove its case beyond shadow of any reasonable doubt---If slightest doubt occurred in the prosecution case with regard to the commission of alleged offence, benefit would be given to the accused not as a matter of grace and concession but as a matter of right.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Appellant in person (in Cr. Jail Appeal No.D-40 of 2015).

Habibullah G. Ghouri for Appellant (in Criminal Appeal No.D-42 of 2015).

Ahmed Bux Abro for Appellant (in Cr. Appeal No.D-44 of 2015).

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

2017 M L D 560

[Sindh]

Before Ahmed Ali M. Shaikh and Muhammad Saleem Jessar, JJ

ROSHAN ALI SOLANGI---Applicant

Versus

The STATE---Respondent

Crl. Bail Application No.1112 of 2016, decided on 18th November, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 365, 384, 385, 386, 506-B, 342 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Abduction, extortion for money and terrorism, criminal intimidation, wrongful confinement and common intention---Bail, refusal of---Accused, a police official---Allegation against the accused was that he demanded extortion money from the complainant---On refusal, complainant was kidnapped by accused and was released after receiving huge amount as extortion---Police being custodian of law were supposed to guard citizen and their rights by providing legal protection---Police official when committed activity of terrorism under the garb of his lawful duty by misusing official capacity, if not curbed, every citizen would not only feel insecurity and uncertainty---Bail was refused in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss. 365, 384, 385, 386, 506-B, 342 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Abduction, extortion for money and terrorism, criminal intimidation, wrongful confinement and common intention---Bail, refusal of---Allegation against accused, a police official, was that he demanded extortion money from the complainant---On refusal, complainant was kidnapped by the accused and was released after receiving huge amount as extortion---Accused was nominated in FIR---Huge amount of extortion money was recovered from possession of accused---Accused being a police official was to ensure sense of security and protection amongst the people---High Court observed that if a police official was charged with such like offence, it would not only expose such accused to face such charge/allegation but would also result in hitting the conscious of people at large thereby shaking the sense of security---Case of such an accused would not be considered on same pedestal as that of ordinary accused---Offence was hit by prohibitory clause of S.497(1), Cr.P.C.---Bail was declined in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss. 365, 384, 385, 386, 506-B, 342 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Abduction, extortion for money and terrorism, criminal intimidation, wrongful confinement and common intention---Bail, refusal of---Allegation against the accused, a police official, was that he demanded extortion money from the complainant---On refusal, complainant was kidnapped by accused and was released after receiving huge amount as extortion---Accused was nominated in FIR with specific role of receiving huge amount of extortion money---Accused had not established or pleaded any specific mala fide on part of the complainant or the police which could justify that complainant or the police was so inimical towards the accused that such huge amount was arranged only to falsely involve the accused in the case---Mere plea of accused to have been falsely involved could not be considered at bail stage---Bail application was dismissed in circumstances.

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

----S.497---Penal Code (XLV of 1860), Ss. 365, 384, 385, 386, 506-B, 342 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Bail, refusal of---Abduction, extortion for money and terrorism, criminal intimidation, wrongful confinement and common intention---Delay in lodging FIR---Plausible explanation---Delay in lodging FIR was not fatal in such like cases as the victim/family/people ever remained under fear, coercion and compulsion and did not dare to even disclose the facts to their elders or members of their community---Accused, in the present case, was police official and reluctance of complainant was believable---Complainant contended that he was encouraged by his relatives, therefore, case was got registered---Delay so caused had been explained plausibly and same was not helpful for the accused---Bail was declined in circumstances.

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

----Ss. 497 & 154---Bail---Delay in lodging FIR---Effect---Delay in lodging of FIR could not be presumed to be fatal for the prosecution case as each case had its own merits and circumstances---Mere delay in lodging FIR alone was not sufficient to claim release on bail.

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

----S. 497---Bail---Principle---Observation made in bail refusing order was tentative in nature and trial court would not get influenced while deciding case on merit.

Ghulam Sarwar Chandio for Applicant.

Muhammad Iqbal Awan, Assistant Prosecutor General for Respondent.

Abdul Latif Shaikh for the Complainant.

2017 M L D 596

[Sindh]

Before Arshad Hussain Khan, J

MEHBOOB---Applicant

Versus

The STATE---Respondent

Cr. B.A. No.1446 of 2016, decided on 28th November, 2016.

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

---S.497---Penal Code (XLV of 1860), Ss. 324, 353, 186 & 34---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharging of his duty, obstructing public servant in discharge of public functions and common intention---Bail, refusal of---Accused persons were charged in FIR for firing on police party with the intention to kill them when accused persons were followed by the police party considering them suspicious persons---Accused was earlier granted bail by the trial court on merits---Accused misused the concession of bail, absconded from justice and remained fugitive from law for about four years---Circumstances established that accused failed to make out the case of concession of bail as there was every likelihood that if accused was granted bail, he would again absconded---Bail was refused in circumstances.

PLD 1995 SC 34 ref.

Awal Gul v. Zawar Khan and others PLD 1985 SC 402 rel.

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

----S. 497---Bail---Principle---Observations made in bail refusing order was tentative in nature and trial court would not get influenced by such order in reaching its decision on merits of the case.

Muhammad Aslam Shar for Applicant.

2017 M L D 605

[Sindh]

Before Zulfiqar Ahmad Khan, J

NISAR AHMED SHEIKH---Petitioner

Versus

VIITH ADDITIONAL DISTRICT AND SESSIONS JUDGE, DISTRICT SOUTH and another---Respondents

C.P. No.S-621 of 2010, decided on 5th October, 2016.

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

----Ss. 15 & 2(g)---Ejectment of tenant---Personal bona fide need of landlord---Proof---Procedure---"Landlord"---Connotation---Contention of tenant was that landlord had not examined his son on whose behalf personal bona fide need had been claimed---Eviction petition was allowed concurrently---Validity---Sections 2(g) and 15(2) (vii) of Sindh Rented Premises Ordinance, 1979 had treated the landlord and his spouse or his son or daughter as 'one unit'---Landlord was not bound to put his wife or children in the witness box for whom he needed the demised premises---Landlord for proving bona fide use of demised premises had to bring evidence on his necessity and desire---Landlord would be the best judge of his requirement and tenant could not dictate the terms to the landlord---Bona fide was a state of mind which could only be determined by examining the person who requested for such a use---Testimony of landlord could be assessed by the Court to determine bona fide and evidence of forthcoming occupier was not necessary---Non-examination of son by the landlord was neither necessary nor fatal to the eviction petition filed by the landlord on personal bona fide use in respect of his son---Constitutional petition was dismissed in circumstances.

2001 SCMR 338 ref.

1995 MLD 1471; Viriendrapal v. Daljeet Singh Saudh 1978 (ii) RCJ 365; Shahid Mehboob v. Muhammad Ismail 2008 CLC 87; 1994 SCMR 355; 2001 SCMR 550; Messrs Sri Srinivas v. Sri Narayandas and others 1998 SCC 119; Mustafa Haji v. Umbichi 2004 (2) KLT 1110; Gulraj Singh v. Dr. Harbans Singh 1993 AIR 1574 and 1993 SCR (1) 149 rel.

Muhammad Ali Waris Lari for Petitioner.

None for Respondent No.2.

2017 M L D 623

[Sindh]

Before Muhammad Iqbal Kalhoro, J

MUHAMMAD IBRAHEEM---Applicant

Versus

MUMTAZ BANO through L.Rs. and others---Respondents

R.A. No.110 of 2014, decided on 19th September, 2016.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Case was remanded to the Trial Court whereafter defendant did not appear and suit was decreed---Validity---Defendant's counsel had knowledge of remand of case which stood conveyed to him when defendant allegedly took away case file from his counsel after remand of the case---Counsel would be bound to appear for his client and protect his interest in the proceedings unless court had allowed him to withdraw his power on behalf of his client---Failure of counsel to appear in the court would not absolve him of his duty nor his client from taking responsibility of an adversarial order passed in such circumstances---Defendant's counsel simply submitted application for withdrawal of his power and remained absent---No prejudice had been caused to the defendant if his side was closed leading to a decision against him---Trial Court had resorted to closing side of defendant after his failure to appear in response to service effected upon him through all modes of service---Defendant failed to lead his evidence for ten years which itself was sufficient to debar him from participating further in the proceedings---Trial Court was competent to mould the relief accordingly---Plaintiff had registered lease deeds in his favour---Bank challans could not be given effect over and above the registered lease deeds---Revision was dismissed in circumstances.

Masood Khan Ghori for Applicant.

Ms. Farkhunda Jabeen for Respondent.

2017 M L D 666

[Sindh]

Before Salahuddin Panhwar, J

Dr. ABDUL QADIR AKHUND---Plaintiff

Versus

Ms. SHAHILA PERVEEN---Respondent

Civil Suit No.58 of 2016, decided on 8th August, 2016.

(a) Malicious prosecution---

----Damages--- Scope--- Proof--- Defendant had filed different applications before different forums against plaintiff in result of which plaintiff filed suit for damages---Validity---Filing of an application/ complaint did not earn right of filing a suit for damages because it did not fulfil the term "prosecution" which necessarily require commencement and carrying out of any action or scheme---Pleadings of plaintiff had made it clear that complaint made by defendant was pending adjudication---Suit for damages was not sustainable on such ground alone---Plaintiff nowhere gave details of special damages nor classified the claimed amount as general damages---Revision was dismissed.

(b) Malicious prosecution---

----Damages---Ingredients---Person claiming damages had to establish firstly, that he was prosecuted secondly, prosecution ended in his favour thirdly, prosecution was without reasonable and proper cause and lastly, prosecution was malicious one---First two ingredients were required to maintain suit for damages while later two ingredients would be opened to be proved by respective parties as per their respective claims.

(c) Malicious prosecution---

----Civil litigation---Scope---One could sue for being prosecuted in civil legal process for recovery of damages under "malicious prosecution" but ingredients shall be the same.

Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 PLC (C.S.) 574 and Gregory v. Portsmouth Council (2001) 1 ALL ER 560 rel.

(d) Words and phrases---

---"Prosecution"---Meaning.

Black's Law Dictionary, 9th Edition

(e) Words and phrases---

---"Damages"---Meaning.

Black's Law Dictionary, 9th Edition

(f) Words and phrases---

---"Defamation"---Definition.

Khuwaja Naveed Ahmed for Plaintiff.

Khalid Mehmood Siddiqui along with Mumtaz Ahsan Zuberi, Chairman Women Protection, PIA and Ms. Musarat Safdar, Member WPC for Defendants with Defendant in person.

2017 M L D 695

[Sindh]

Before Aqeel Ahmad Abbasi and Abdul Maalik Gaddi, JJ

Messrs DEHLI CO-OPERATING HOUSING SOCIETY through Chairman---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Co-operation, Karachi and 5 others---Respondents

Constitution Petition No.D-4537 of 2014, decided on 27th September, 2016.

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

----Ss. 54 & 59---Limitation Act (IX of 1908), Art. 181---Award by the Registrar Co-operative Societies---Certificate for execution---Execution petition---Limitation---Objections---Execution petition for execution of award issued by the Registrar Co-operative Societies was moved wherein objection was raised that same was time barred but Executing Court allowed the said execution application---Validity---Time factor did not come in the way of decree holder as parties were in litigation for a long time and execution petition could not be filed for want of Certificate of Registrar Co-operative Societies---Registrar Co-operative Societies issued Certificate for execution on 24-05-2012 and execution application was moved on 13-06-2012 which was within time---Courts below had rightly decided that execution petition was within time---Constitutional petition had been filed after a period of two years and three months which was hit by principle of laches---Constitutional petition being not maintainable was dismissed in circumstances.

Mehrunnisa and others v. Assistant Registrar, Co-operative Societies (Recoveries) 2003 MLD 1927 ref.

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

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

---Art. 181---Execution of decree---Limitation---Execution of a decree could be made within three years of the date of accrual of right to apply.

Khalil Ahmed Siddiqui for the Petitioner.

Muhammad Mushtaq Qadri for Respondent No.4.

Saifullah, A.A.G. along with Ms. Nasreen Sehto State Counsel.

2017 M L D 733

[Sindh (Larkana Bench)]

Before Abdul Rasool Memon and Anwar Hussain, JJ

GUL MUHAMMAD KHAN---Petitioner

Versus

RETURNING OFFICER and 9 others---Respondents

C.P. No.D-143 of 2016, decided on 26th April, 2016.

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

----Rr. 53, 52, 20 & 16----Sindh Local Government (Election) Rules, 2015, R. 20---Withdrawal of nomination papers---Validity---Petitioner raised the objection that he had never filed any withdrawal statement before the Returning Officer and the signatures on the same were forged and fabricated---Returning Officer, in his comments, had categorically denied the allegation of the petitioner and stated that the petitioner had voluntarily appeared on the last date of withdrawal and admitted the contents and signatures on the withdrawal statement filed before him---Allegations of fraud, manipulation of signatures and forgery in question could not be resolved except adducing evidence and through proper trial, and the cases involving such questions did not qualify for invoking the Constitutional jurisdiction of the High Court---High Court, while exercising powers under Art. 199 of the Constitution could not exercise jurisdiction for thrashing factual controversies---Petitioner could only seek remedy of election petition before the Election Tribunal after issuance of notification of the returned candidates---Constitutional petition was dismissed in circumstances.

Muhammad Younus Khan v. Government of N.W.F.P. 1993 SCMR 618 and Federation of Pakistan and 2 others v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476 rel.

Habibullah G. Ghouri for Petitioner.

Safdar Ali Ghouri for Respondents Nos. 7 and 8.

Mushtaque Ahmed Kourejo, Standing Counsel for D.A.G.

Ali Akbar Kalhoro, State Counsel.

2017 M L D 754

[Sindh]

Before Muhammad Iqbal Kalhoro, J

WAZIR ALI SAMOON---Applicant

Versus

The STATE through A.N.F.---Respondent

Cr. Bail Applications Nos.117 and 118 of 2016, decided on 11th May, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 21(2) & 26---Recovery of narcotics---Bail, refusal of---Recovery proceedings---Exclusive possession---Charas weighing 66.500 kilograms and 2 kilograms heroin were recovered from a locked box lying in office of accused---Accused was a police officer and plea raised by him was that recovery was violative of provisions of S. 21(2) of Control of Narcotic Substances Act, 1997---Validity---Recovery of huge quantity of narcotics was effected from office of accused---In absence of accused, his office was found locked that indicated his exclusive control over the same and availability of case property inside a locked box lying there led to a tentative inference about conscious possession of accused---Accused himself was a police official and his false implication in absence of strong animosity could not be normally expected and same was not borne out of any requirement---Alleged raid was conducted in night hours and provisions of S. 21(2) of Control of Narcotic Substances Act, 1997 in such peculiar circumstances could not be strictly pressed---Such grounds could not be taken into consideration, at bail stage for doing so would amount to a deeper appreciation of material---As a result of entry into office of accused, huge quantity of narcotics was recovered and except narcotics, nothing there was seized to even prima facie attract provisions of S. 26 of Control of Narcotic Substances Act, 1997---Bail was declined in circumstances.

1999 PCr.LJ 225; NLR 2003 Criminal 640; 2004 YLR 1303; 2008 SCMR 1111; 2007 YLR 3130 and 2000 SCMR 677 ref.

Muhammad Ilyas Khan for Applicant.

Muhammad Habib, Special Prosecutor ANF for the State.

2017 M L D 770

[Sindh]

Before Fahim Ahmed Siddiqui, J

USMAN KHAN---Petitioner

Versus

MUHAMMAD NAZIM and another---Respondents

C.P. No.S-1700 of 2016, decided on 2nd December, 2016.

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

----O. XLI, R. 27---Sindh Rented Premises Ordinance (XVII of 1979), S. 15---Eviction petition---Production of additional evidence before the Appellate Court---Conditions---Eviction petition was allowed against which appeal was filed wherein tenant moved application for production of additional evidence which was dismissed by the Appellate Court---Validity---Memo. of appeal was silent with regard to subsequent rent agreement---Pleadings of the parties were benchmark of their respective claims and subsequent rent agreement was to be mentioned in the memo. of appeal---Additional evidence could be adduced when the Court from whose decree/order appeal was preferred had refused to admit said evidence which ought to have been admitted and Appellate Court required any document to be produced enabling it to pronounce judgment or for any other substantial cause---Appellate Court had rightly dismissed the application for production of additional evidence---Constitutional petition was dismissed in circumstances.

Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562 and Messrs Essa Engineering Company (Pvt.) Ltd. and another v. Pakistan Telecommunication Company (Pvt.) Ltd. 2014 SCMR 922 rel.

(b) Pleadings---

----Evidence produced must be in line of the pleadings.

(c) Maxim---

----"Secundum allegata et probata"---Connotation.

Nasir Ahmed for Petitioner.

Nemo for Respondents.

2017 M L D 785

[Sindh]

Before Muhammad Ali Mazhar, J

AL-TAMASH MEDICAL SOCIETY through Secretary---Plaintiff

Versus

Dr. ANWAR YE BIN JU and 9 others---Defendants

Suit No.2389 of 2014, decided on 16th December, 2016.

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

----O.VII, R.11---Rejection of plaint---Scope---Substantial question of facts or law---Scope---Provisions of O. VII, R. 11, C.P.C. cannot be invoked in case of substantial question of facts or law---Proper course is to frame issues and decide same on merits in the light of evidence.

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

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for cancellation, declaration and injunction---Rejection of plaint---Question of facts and law---Amenity plot, misuse of---Whistleblower---Plaintiff claimed to be a whistleblower who assailed allotment of amenity plot on the allegation of its misuse---Plea raised by defendant was that plaintiff had no cause of action---Validity---Plaintiff beseeched and entreated its role as whistleblower to bring certain facts in the knowledge of Court, therefore, it was indispensable to delve into the issues raised and decide the controversy with proper opportunity to all stake holder in the suit rather than non-suiting plaintiff on mere technicalities---High Court observed that at the present stage, it would be premature to grasp and catch on that plaintiff had failed to come into sight without any cause of action or plaint appeared to have been barred by any law---Nevertheless the crucial practicality and expediency needed to be thrashed out in the course of trial as to whether plaintiff could challenge violation of lease or such right was only vested in or possessed by lessor alone putting side by side role of plaintiff as whistleblower---High Court declined to reject plaint as plaintiff could maintain the suit at such juncture---Application was dismissed in circumstances

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

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for cancellation, declaration and injunction---Interim injunction, grant of---Pre-conditions---Amenity plot, misuse of---Plaintiff claimed to be a whistleblower who assailed allotment of amenity plot on the allegation of its misuse---Plea raised by defendants was that plaintiff was stranger to suit property and the land was not misused---Validity---Plaintiff failed to make out prima facie case and balance of convenience lay in favour of defendants---No question of sustaining any irreparable injury ascended to plaintiff in the capacity and character of whistleblower---Defendants in a joint venture had resolved and committed to establish hospital on amenity plot so basic condition for which amenity plot was allotted was not violated nor use of land was being changed---Lessor did not initiate any action against alleged violation of lease---If at later stage suit was decreed and lease of amenity plot was cancelled or any direction was issued to lessor to take action against alleged violation of lease that would not amount to an outright transfer or allotment of the plot to plaintiff as their vested or legitimate right but law would take its own course---All such fundamental points at issue needed to be thrashed out during trial of the suit but at such stage no plausible justification was made out to continue restraining order till final disposal of the suit---High Court declined to grant interim injunction against defendants---Application was dismissed in circumstances.

Ilyas Ahmed v. Muhammad Munir PLD 2012 Sindh 92; Muhammad Sabir v. Maj. (Rtd.) Muhammad Khalid Naeem Cheema and others 2010 CLC 1879; Naseem-ul-Haq through Attorney and another v. Raes Aftab Ali Lashari through Guardian ad-litem and 5 others 2015 YLR 550; Arif Majeed Malik and others v. Board of Governors Karachi, Grammar School 2004 CLC 1029; Karachi Stock Exchange through Attorney and another v. Muhammad Ashaqeen and 6 others 2006 YLR 185; Naseem Ali Khan v. K. D. A. and others 2007 MLD 1880; Province of Sindh through Chief Secretary and 8 others v. Syed Kabir Bokhari 2016 SCMR 101; Najamuddin Zia and another v. Mst.Asma Qamar and others 2013 CLD 1263; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Abdullah and others v. Muhammad Haroon and others 2010 CLC 14; Barkat Ali and another v. Mst. Fatima Bai and 2 others 1995 CLC 1012; Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others PLD 1978 Lah. 113; Chairman, Municipal Committee, Taxila v. Mohammad Jan and 4 others 1987 CLC 2416; Naseer Ahmed v. Hafiz Muhammad Ahmed and others 1984 CLC 340; Mrs. Shahnaz and others v. Hamid Ali Mirza 2006 CLC 1736; R.G. Sehwani Co-operative Housing Society Ltd. v. Haji Ahmad and others PLD 1983 Kar. 11; Ref: Cf. Ashwender v. Teinessee Valley Authority, 297 U.S. 288 at p. 325: L, Ed. 688 at p. 699. In keeping with Cf. 62 Harvard Law Review at pp. 875-76. (Ref: Anand & Iyer's, Commentary on Specific Relief Act. 11th Edition. Page 927; Gale on Easement 13th Edition, Page 6; Mst. Bano alias Gul Bano and others v. Begum Dilshad Alam and others 2011 CLC 88; Abu Dhabi Medical Devices Co. L.L.C. v. Federation of Pakistan 2010 CLC 1253; C.M. Row Law of Injunctions, Eighth Edition; Muhammad Shafi v. Kaniz Zohra Bibi 1983 CLC 2541 and Sayyid Yousaf Shirazi v. Pakistan Defence Officers' Housing Authority 2010 MLD 1267 ref.

Khawaja Shams-ul-Islam, Imran Taj and Khalid Iqbal for Plaintiff.

Arshad M. Tayebaly and Muhammad Shahzad Ashraf for Defendants Nos.1 and 2.

Muhammad Yousuf for Defendants Nos.8, 9 and 10.

Syed Iftikharul Hasan and Mr.Ghulam Mohiuddin for KMC.

Ms.Nasreen Setho, State Counsel and Abdul Jabbar Qureshi, A.A.G.

2017 M L D 806

[Sindh]

Before Nadeem Akhtar and Arshad Hussain Khan, JJ

Syedah IMAMMAH ALI and 5 others---Petitioners

Versus

MUHAMMAD YAQOOB and 3 others---Respondents

Constitutional Petition No.D-3503 and C.M.A. No.17646 of 2016, decided on 20th October, 2016.

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

----S. 22-A(6)(i)---Justice of peace---Powers---Scope---Registration of case---Complainant had alleged that officials of Cantonment Board along with police visited site and removed construction---Ex-Officio Justice of Peace directed SHO to record statement of complainant and if cognizable case was made out register FIR against alleged accused persons---Alleged accused persons filed application for recalling the order of Justice of Peace under S. 21 General Clauses Act, 1897 which was dismissed by Justice of Peace---Ex-Officio Justice of Peace while passing impugned order failed to discharge his duties as per the settled principles of law which were declared as void, illegal and of no consequence.

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

----S. 22-A (6)---Power of Ex-Officio Justice of Peace to issue directions to police---Object---Object of subsection (6) of S.22-A, Cr.P.C. was that an aggrieved person could get remedy in time at his doorstep.

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

----S. 22-A---Powers of Justice of Peace---Scope---Functions of Justice of Peace were quasi-judicial as he entertain applications, examine the record, hear the parties, pass orders and issue directions with due application of mind---Every lis before him demanded discretion and judgment---Functions so performed could not be termed as executive, administrative or ministerial on any account.

Younus Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 rel.

(d) Constitution of Pakistan---

----Art. 199---Writ jurisdiction of High Court---Scope---Jurisdiction conferred under Art. 199 of the Constitution was discretionary with the object to foster justice and not to perpetuate injustice.

Shahzad Qammar Abbas for Petitioners.

Miran Muhammad Shah Addl. A.G., Sindh for Respondent.

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

2017 M L D 818

[Sindh]

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

Syed RASHID HUSSAIN RIZVI---Applicant

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU through National Accountability Bureau and 2 others---Respondents

Constitution Petition No.D-3624 of 2016, decided on 29th November, 2016.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(b), 18(g) & 24(b)---Corruption and corrupt practices---Bail sought on the ground of hardship/statutory delay in conclusion of trial---Scope---Accused was arrested by National Accountability Bureau on the allegations that he was involved in land scam and loss of Rs. 399.288M was caused to the national exchequer---Validity---Record showed that accused was in custody for around 17 months---Delay in conclusion of trial had occasioned due to the adjournments sought by accused---Provisions of S. 497, Cr.P.C. were, not as such, applicable for the purpose of grant of bail to an accused facing charges under National Accountability Ordinance, 1999---Bail on statutory grounds was not available in NAB cases---Circumstances established that accused had not made out a case for bail on hardship/statutory grounds---Constitutional petition was dismissed in circumstances---High Court directed the Trial Court that in order to avoid the inordinate delay shocking or unconscionable, and taking into account the right of accused to an expeditious trial, hear the case on day to day basis without allowing any adjournments on any flimsy grounds and to complete the trial within four months.

Khan Asfand Yar Wali v. Federation of Pakistan PLD 2001 SC 607; Muhammad Bashir v. The State 1987 PCr.LJ 230; Muhammad Saeed Mehdi v. The State 2002 SCMR 282; Mian Manzoor Ahmed Watto v. The State 2000 SCMR 107; Sanjay Chandra and others v. Central Bureau of Investigation Principle of Granting Bail 2012 SCMR 1732 SC India; Makhdoom Javed Hashmi v. The State 2003 PCr.LJ 266, Muhammad Afzal Butt v. The State 2015 SCMR 1696, Muhammad Javaid v. The State 2003 PCr.LJ 273; Munawar Hussain Manj v. The State 2000 SCMR 1585; Imran Amin v. The State 2002 MLD 1416 and Amir v. The State 1991 PCr.LJ 534 ref.

Kumail Ahmed Sherazi for Petitioner.

Muhammad Altaf Special Prosecutor, NAB for Respondents Nos. 1 and 2.

Ashfaq Rafique Janjua for Respondent No.3.

2017 M L D 829

[Sindh (Larkana Bench)]

Before Muhammad Iqbal Mahar, J

GULZAR AHMED alias BIRJO---Applicant

Versus

The STATE---Respondent

Cr. Bail Appln. No.S-56 and M.A. No. 290 of 2016, decided on 14th October, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 337-H(2), 148 & 149---Qatl-i-amd, hurt, rioting armed with deadly weapon, unlawful assembly---Bail, refusal of---Accused had taken plea that he had been substituted for some other person---Accused had not taken such plea before investigating agency nor in his first bail application before Trial Court and then High Court---Complainant had pointed out the accused as real culprit---Accused was named in FIR with specific role of firing at deceased along with co-accused---Version of complainant was fully supported by prosecution witnesses in their statements under S. 161 Cr.P.C.---Delay in FIR was properly explained by complainant that after post-mortem and funeral ceremony of deceased, she lodged the FIR---Medical evidence and recovery of pistol also corroborated version of FIR---Offence fell under prohibitory clause of S. 497, Cr.P.C.---Bail was declined in circumstances.

Mohammad Murad Chachar for applicant.

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

Complainant in person.

2017 M L D 841

[Sindh]

Before Irfan Saadat Khan and Muhammad Humayon Khan, JJ

Messrs GRID-IT, PAKISTAN (PVT.) LTD. through authorized Manager and another---Appellants

Versus

SIRAJ-UL-HAQ and 7 others---Respondents

High Court Appeal No.369 of 2016, decided on 28th November, 28th November, 2016.

Civil Procedure Code (V of 1908)---

----O. VII, R. 2---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Money suit---Appointment of commissioner for recording of evidence---Change---Procedure---Petition for change of commissioner was moved but same was dismissed by the Trial Court---Validity---If there was allegation against the officer appointed by the Court, counsel who was conducting the proceedings was to file his affidavit showing the reasons, grounds and circumstances to establish allegation against such officer---No such affidavit had been filed in the present case---Counsel for the applicants did not file his affidavit-in-rejoinder to rebut or controvert the contents of counter affidavit of respondent---Applicants had filed their rejoinder which had no value as proceedings were conducted by the counsel for the applicants---Even counsel for the applicants had not filed his own counter affidavit to rebut the contents of comments filed by the Commissioner---Commissioner had conducted the proceedings in accordance with law---Court was to presume that judicial and official acts were regularly performed---Applicants were required to give cogent reasons and grounds to rebut such presumption duly supported by affidavit of their counsel who conducted the proceedings---Applicants had failed to bring such reasons and grounds on record duly supported by affidavit of their counsel---Said presumption having not been rebutted, no case for change of Commissioner had been made out---Petition for change of Commissioner was filed with ulterior motive to delay the proceedings---Trial Court had rightly decided the application moved for change of Commissioner---Appeal was dismissed with cost in circumstances---Commissioner was directed to conclude the proceedings within specified period of time.

Mirza Moazzam Baig for Appellants.

Respondent No.1 in person.

2017 M L D 851

[Sindh]

Before Muhammad Junaid Ghaffar, J

Mst. SAKINA KHATOON and 6 others---Plaintiffs

Versus

MUHAMMAD ASGHAR and 5 others---Defendants

Suit No.73 of 2012 C.M.As. Nos.14907 of 2014 and 11730 of 2011, decided on 7th November, 2016.

Civil Procedure Code (V of 1908)---

----O. XXII, R. 1---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Death of a party---Application for abatement of suit---Scope---Defendant had already been arrayed through his legal heirs when suit was filed---Plaintiff had claimed that defendants had misused power of attorney and sold the suit property after obtaining sale consideration---Suit would not abate merely that defendant had died as right to sue with regard to suit property and alleged conduct of said defendant still survived---Application for abatement of suit was dismissed in circumstances.

Ghazanfer Ally Effendi and 3 others v. Arif Effendi through L.Rs. and others 2009 CLC 413; Mercantile Co-operative Bank Ltd. v. Messrs Habib and Co. and others PLD 1976 Kar. 755 and M. Veerappa v. Evelyn Sequeira and others AIR 1988 SC 506 rel.

Mian Mushtaq Ahmed for Plaintiff.

Agha Zafar for Defendants Nos.4 and 5.

2017 M L D 859

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar, J

SAHIB KHAN and another---Applicants

Versus

The STATE---Respondent

Cr. B.A. No.S-307 and M.A. No.3098 of 2016, decided on 17th October, 2016.

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

----S. 497---Bail---Application for bail was dismissed as withdrawn---Second bail application---Scope---If earlier bail application was dismissed as withdrawn, second bail application could only be filed on fresh ground and not on the same grounds, which were available at the time of the disposal of earlier application.

Muhammad Aslam v. The State and others PLD 2015 SC 41; Ghulam Qambar Shah v. Mukhtiar Hussain and others PLD 2015 SC 66; Mst. Jewan Mai v. The State and others PLD 2015 SC 242 and Nazir Ahmed and others v. The State and others PLD 2014 SC 241 ref.

Muhammad Mushtaq v. State 2007 PCr.LJ 1542 rel.

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

----S. 497---Bail---Fresh ground pending application for bail---Procedure---Even when bail plea was pending before the High Court and a fresh ground had arisen during period of filing of bail plea and pendency thereof, the accused could raise such ground or may withdraw the bail plea to have fresh ground considered before the court so as to keep his right to approach the High Court alive.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 337-A(ii), 337-F(ii), 337-L(2), 337-H(2), 147, 148, 149, 506(2) & 504---Qatl-i-amd, attempt to commit qatl-i-amd, Shajjah-i-mudihah, badiah, hurt, rashly or negligently act as to endanger human life, rioting, rioting armed with deadly weapon, unlawful assembly, criminal intimidation and intentional insult with intent to provoke breach of peace---Bail, grant of---Rule of consistency---Accused persons had alleged that co-accused had been granted concession of bail and their cases was at par with that of co-accused---Cases of the accused persons appeared to be prima facie at par with that of co-accused---Co-accused and accused persons were not alleged to have caused any injury to the deceased---Accused persons were also entitled for same treatment on account of rule of consistency and were admitted to bail, in circumstances.

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

----S. 497---Bail---Principle---Bail could not be withheld as conviction in advance.

Muhammad Akbar Mughal for Applicants.

Shahzado Saleem Nahyoon, Assistant Prosecutor General.

Khadim Hussain Soomro for the Complainant.

2017 M L D 892

[Sindh]

Before Nazar Akbar, J

MASOOD ALI KHAN---Applicant

Versus

ZAHID ALI KHAN through L.Rs. and another---Respondents

Revision Applications Nos. 172 to 174 of 2006, decided on 14th November, 2016.

Specific Relief Act (I of 1877)---

---Ss. 12 & 39---Suit for specific performance, cancellation of agreement to sell and recovery of arrears of rent---Plaintiff filed suit for specific performance of contract whereas defendants filed suit for cancellation of sale agreement and recovery of arrears of rent---Trial Court dismissed the suit of plaintiff but Appellate Court decreed the same---Validity---Findings of Appellate Court were result of mis­reading and non-reading of evidence---Documents discussed in the impugned judgment were not relevant to form any opinion---Trial Court was not supposed to insist that the specific performance should be done by an unwilling party to the contract---Appellate Court while reversing the decree of dismissal of suit for specific performance of contract had not directed the plaintiff to pay or deposit the balance sale consideration with the Nazir of the Court within any specified duration of time with the condition that non-deposit of the same would mean dismissal of said suit---Impugned orders passed by the Appellate Court were set aside and judgments and decrees of the Trial Court were modified accordingly---Suit for cancellation of sale agreement was decreed and that of plaintiff for specific performance was dismissed-- Plaintiff was directed to pay rent due with 10% simple mark-up from the date of filing of suit till the realization and handover peaceful possession of suit property to the defendant---Revision was disposed of accordingly.

M.S. Qureshi for Applicants.

Masood Anwar Ausaf and Abdul Majeed Shaghil for Respondents.

2017 M L D 903

[Sindh (Hyderabad Bench)]

Before Muhammad Faisal Kamal Alam, J

NADEEM ALI---Appellant

Versus

MOHAMMAD YASEEN ATTA and another---Respondents

First Civil Appeal No.13 of 2016, decided on 18th November, 2016.

Civil Procedure Code (V of 1908)-

----O.XXXVII, Rr. I & 2---Suit for recovery of money on the basis of negotiable instrument---Leave to defend the suit---Delay in filing of application---Triable issue, absence of---Suit filed by plaintiff on the basis of bank cheque was decreed in his favour as Trial Court declined to grant leave to defend the suit to defendant---Validity---Defendant failed to plead any genuine triable issue for which he could be granted leave to defend in the referred summary suit---Defendant failed to comply with specific provisions of O. XXXVII, C.P.C. by not filing leave to defend application within stipulated time---High Court declined to interfere in judgment and decree passed by Trial Court as it had applied its judicial mind and also rightly applied law to the facts of the case---Proceedings under C. P. C. were of summary nature and object of such type of proceedings could not be allowed to be defeated on some fanciful grounds---Appeal was dismissed in circumstances.

2016 MLD 206 and PLD 1985 SC 405 ref.

Syed Kamran Ali for Appellant.

Abdul Aziz A. Shaikh for Respondent No. 1.

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

2017 M L D 937

[Sindh]

Before Nadeem Akhtar and Arshad Hussain Khan, JJ

ADIL KHAN---Petitioner

Versus

SECRETARY TO GOVERNMENT OF PAKISTAN MINISTRY OF DEFENCE, PAKISTAN and 2 others---Respondents

Constitutional Petition No.D-3232 of 2011, decided on 29th November, 2016.

Civil Procedure Code (V of 1908)---

----O. XLVII, R. 1 & S. 114---Review---Scope---Where Court had applied its mind to a particular fact or law and passed the order, it could not be contended that error was one apparent on the face of record and could be corrected by court---Court on the statement of petitioner's counsel that he intended to withdraw the constitutional petition disposed of the same directing the respondent to initiate appropriate action in accordance with law---Said direction was within the four corners of law and same could not be termed as an error of law on the face of the record---Case could not be reopened on merits on the review petition as scope of review was limited---Neither any mistake or error was apparent on the face of record nor any other sufficient reason or justification had been made out by the petitioner to review the order passed by the Court---Review petition was dismissed in circumstances.

2008 MLD 793 and PLD 2012 Sindh 1 distinguished.

Majid Mehmood v. Muhammad Shafi 2008 SCMR 554; Ali Ahmad v. Muhammad Iqbal 2009 SCMR 394 rel.

Malik Altaf Javed for Petitioner.

Muhammad Aslam Butt, D.A.G. for the State.

2017 M L D 953

[Sindh]

Before Fahim Ahmed Siddiqui, J

Dr. SHABBIR HUSSAIN HYDERI through Attorney---Petitioner

Versus

Syed RIZWAN HUSSAIN RIZVI through Attorney and 2 others---Respondents

C.P. No.S-972 of 2010, decided on 20th December, 2016.

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

----S.13---Specific Relief Act (I of 1877), S.12---Landlord and tenant, relationship of---Scope---Re-induction of ejected tenant after obtaining a decree of specific performance by civil court---"Proceedings for ejectment of tenant under Sindh Rented Premises Ordinance, 1979" and "suit for specific performance" by a tenant were two distinct proceedings---Effect of ejectment order by Rent Controller could not be softened due to the mere pendency of a civil suit on the basis of an agreement to sell unless the tenant succeeded in getting relief from a civil court---Order of lower appellate court was in the field by virtue of which tenant was declared as purchaser and owner of the property in question, thus dispute of relationship of landlord and tenant was resolved---High Court observed that tenant, for his re-induction was at liberty either to approach the Rent Controller or/and get the decree of civil court executed---Constitutional petition was disposed of accordingly.

Iqbal and 6 others v. Mst. Rabia Bib and another PLD 1991 SC 242 ref.

Muhammad Ali Waris Lari for Petitioner.

Nemo for Respondents.

2017 M L D 978

[Sindh]

Before Shahnawaz Tariq, J

IFTIKHAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.206 of 2016, decided on 20th October, 2016.

Criminal Procedure Code (V of 1898)---

----S. 426---Sindh Arms Act (V of 2013), S. 23-A(1)---Acquisition and possession of firearms and ammunition---Suspension of sentence, pending appeal---Accused was convicted for the offence punishable under S. 23-A(1), Sindh Arms Act, 2013 and was behind the bars for six months---Accused had not misused the concession of bail during trial---No likelihood of final disposal of appeal in near future existed---Application under S. 426, Cr.P.C. for suspension of sentence was allowed.

Muhammad Akbar for Appellant.

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

2017 M L D 1008

[Sindh (Sukkur Bench)]

Before Faheem Ahmed Siddiqui, J

SANAULLAH and 5 others---Applicants

Versus

JAN MUHAMMAD and another---Respondents

Cr. Revision Application No.S-112 and M.A. No.4593 of 2016, decided on 22nd December, 2016.

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

----S. 173---Police submitted report/challan after placing the name of accused in column No.2 of FIR---Such report was not binding upon the court---Court was to determine as to whether there was sufficient material before it to join the accused of column No.2 of the charge sheet or not.

Wiqarul Haq alias Nitho another v. The State 1988 SCMR 1428 and Safdar Ali v. Zafar Iqbal and another 2002 SCMR 63 rel.

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

----Ss. 173 & 193---Penal Code (XLV of 1860), Ss. 311, 337-A(i), 337-F(i), 114, 395, 148, 149 & 506---Ta'zir after waiving or compounding of right of qisas in qatl-i-amd, shajjah-i-khafifah, damiyah, abetment, dacoity, rioting armed with deadly weapon, common intention, criminal intimidation---Police submitted challan after placing the name of accused in column No.2 of FIR---Application of prosecution filed under S.193, Cr.P.C. for joining the petitioners as accused to face trial was accepted by the Trial Court---Petitioners had filed revision petition against said order on the ground that Trial Court could not associate the petitioners as accused in the trial without giving notice and without recording evidence of complainant and eye-witnesses---Validity---Recording of some evidence before summoning the accused, whose name appeared in column No.2 to face trial was not the requirement of law---Said accused could be summoned directly to stand trial---In the present case, Trial Court, after the availability of some material on record in the shape of statement of complainant against the accused, summoned him to face trial, though it was least necessary for the Trial Court to record evidence before summoning the accused of column No.2 to face trial---Revision petition was dismissed accordingly.

Wiqarul Haq alias Nitho and another v. The State 1988 SCMR 1428 and Safdar Ali v. Zafar Iqbal and another 2002 SCMR 63 rel.

Mehfooz Ahmed Awan for Applicant.

Khan Muhammad Sangi for Respondent No.1.

2017 M L D 1042

[Sindh]

Before Ahmed Ali M. Shaikh and Rasheed Ahmed Soomro, JJ

Syed SHAFQAT ALI QADRI---Petitioner

Versus

The STATE---Respondent

Cr. Appeal No.263 of 2015, decided on 1st September, 2016.

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

----Ss. 419, 420, 468, 471 & 109---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.10---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document and abetment---Appreciation of evidence---Conviction was awarded on the statement of co-accused---Allegation against the accused was that he sent co-accused to the Bank for encashment of forged cheque drawn from the account of a lady---Co-accused had also stated that accused had given the cheque for encashment---Admittedly, except the statement of co-accused, prosecution had failed to bring on record any material and confidence-inspiring evidence to prove that accused had instigated, abated, or aided the co-accused for committing offence as alleged in the FIR---Accused could not be convicted on the basis of confessional statement of co-accused---Attending circumstances suggested that prosecution failed to prove its case beyond any shadow of doubt---Appeal was allowed and conviction and sentence recorded by Trial Court were set-aside in circumstances.

(b) Criminal trial---

----Confessional statement of co-accused---Scope---Accused could not be convicted on the basis of confessional statement of co-accused.

Muhammad Ashraf Kazi and Irshad Jatoi for Appellants.

Muhammad Aslam Butt, D.A.G. for Respondent.

2017 M L D 1049

[Sindh]

Before Munib Akhtar and Yousuf Ali Sayeed, JJ

FORTE PAKISTAN (PVT.) LTD.---Petitioner

Versus

AZAM KHAN and 2 others---Respondents

Constitutional Petition No.D-6966 of 2016, decided on 13th February, 2017.

Civil Procedure Code (V of 1908)---

----O.XLVII, R.1, O.IX, R.13 & S.114---Constitution of Pakistan, Art. 199---Constitutional petition---Review of ex parte judgment---Trial Court passed ex parte judgment and decree against petitioner who assailed the same beyond period of limitation and instead of filing appeal preferred to seek review of the judgment---Validity---Review proceedings had to be strictly confined to the scope of O. XLVII, R. 1, C.P.C., which was very limited and could not be used as a substitute for a regular appeal---Review did not lie merely due to a Court having taken an erroneous view on a question of fact or law or on the ground that a different view could have been taken on such point---Term 'mistake or error apparent' in O.XLVII, R.1, C.P.C. did not extend to every erroneous decision but by its very connotation signified an error which was so evident that its detection did not require any detailed scrutiny and elucidation---Error which was not self-evident and had to be extracted from record and detected by a process of reasoning could not be an error apparent on the face of record justifying exercise of power under O. XLVII, R. 1, C.P.C.---Petition was dismissed in circumstances.

Syed Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905; Haider Ladhu Jaffar and another v. Habib Bank Limited through President and 10 others 2014 CLC 725; Jehanzeb Aziz Dar v. Messrs Maersk Line and others PLD 2000 Kar. 258; Muhammad Suleman v. Habib Bank Limited 1987 MLD 2757 and Sant Lal Mahton v. Kamla Prasad and others AIR (38) 1951 SC 477 ref.

Dr. Masroor Ahmed Zai v. Province of Sindh through Chief Secretary and 2 others 2016 CLC 1861; Engr. Inam Ahmad Smani v. Federation of Pakistan and others 2013 MLD 1132; Mst. Doda Begum v. Israr Hussain Zaidi and others 2014 CLC 1407 and Mian Shiraz Arshad v. VIIIth Civil and Family Judge, Karachi (South) 2009 YLR 1016 rel.

Abdullah Azam for Petitioner.

Syed Abid Shirazi for Respondent No.1.

2017 M L D 1067

[Sindh]

Before Nadeem Akhtar and Fahim Ahmed Siddiqui, JJ

MUHAMMAD ATEEQ and 5 others---Petitioners

Versus

MUHAMMAD SHAFIQ and 4 others---Respondents

Constitutional Petition No.D-7084 of 2016, decided on 16th February, 2017.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), S.11 & O.VII, R.11---Rejection of plaint---Plea of res judicata---Scope---Non-issuance of notice---Plaintiffs filed suit for cancellation of documents, declaration and injunction but without any application filed by defendant, Trial Court rejected plaint on the plea of res judicata---Validity---If defendant was of the view that suit was barred under principle of res judicata, he should have filed a proper application for rejection of plaint or dismissal of suit on such ground---Such application could not be decided without notice to plaintiffs---In absence of any such application, plaint could not have been rejected suo motu by Trial Court---Opportunity of hearing should have been provided to plaintiffs and not condemned unheared---Course adopted by Trial Court for disposing of suit on the basis of a purported statement was alien to Civil Procedure Code, 1908, and therefore, was not legal---Order passed by Trial Court was non-speaking order which had made it void---By not remedying error committed by Trial Court, Lower Appellate Court in exercise of revisional jurisdiction failed in exercising jurisdiction vested in it by law---High Court set aside order passed by Trial Court---Constitutional petition was allowed in circumstances.

Petitioners Nos.2 to 6 through Petitioner No.1.

Nemo for Respondents.

2017 M L D 1076

[Sindh]

Before Zafar Ahmed Rajput, J

ZAHIR SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1423 of 2016, decided on 23rd February, 2017.

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

----S. 498---Gas (Theft Control and Recovery) Act (XI of 2016), Ss. 15 & 17---Tampering with auxiliary or distribution pipe-line of gas and tempering with gas meter---Pre-arrest bail, recalling of---Allegation against the accused was that he was using the gas through direct line by connecting from gas service line---Record showed that officer and staff of the Gas Company detected direct gas supply from the main service line through rubber pipe to a hotel, owned by the accused---Ownership of the said hotel was not denied by the accused---Technical staff of Gas Company disconnected the illegal supply of the gas from the main service line and took into possession the articles used for the said purpose---Illegal act of the accused under the prevailing energy crises would be deemed as an offence against the society as a whole---Due to scarcity of gas supply on account of pilferage not only the consumer suffered but also caused loss to public exchequer---Interference with gas meters and gas pipelines was a serious risk to the safety of life and properties of the innocent people---Tentative assessment of the evidence on record established that prosecution prima facie had sufficient evidence against the accused to connect him with commission of offence---Malice and ulterior motive, either on the part of complainant or the police were missing in the present case---Circumstances suggested that accused was not entitled for extra-ordinary concession of pre-arrest bail---Interim bail granted to accused earlier was recalled.

Khan Muhammad v. The State 2014 PCr.LJ 48; Syed Shaukat Ali Gilani and another v. The State and another 2011 MLD 1268 and Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 ref.

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

----S. 498---Bail---Principle---Offence besides being punishable for imprisonment was also punishable alternatively with fine---Accused would be entitled to bail as of right in such cases, because if at the trial, he was sentenced with fine only---Period as under trial prisoner due to refusal of bail, would amount to a case of double jeopardy.

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

----S. 498---Bail---Principle---Observation made in bail order was tentative in nature and Trial Court would not get influenced while deciding the case on merit.

Saba Khan for Applicant.

Malik Sadaqat Khan, Special Prosecutor SSGC for the State.

2017 M L D 1094

[Sindh]

Before Nadeem Akhtar and Fahim Ahmed Siddiqui, JJ

MUHAMMAD YOUNUS AHMED ZAI---Petitioner

Versus

EXECUTIVE OFFICER, MALIR CANTONMENT and 3 others---Respondents

C.P. No.D-3216 of 2011, decided on 24th January, 2017.

Constitution of Pakistan---

----Arts. 199, 23 & 24---Constitutional petition---Lease of land---Cancellation of---Scope---Plot in question was purchased by auction purchaser in open bid---Said land was subsequently transferred in favour of petitioner---Petitioner had made entire payment of suit plot---Vested right had been created in favour of petitioner with regard to said plot---Right once created could not be snatched in the manner as it was done by the authorities---Registration of lease deed after collecting all the dues was responsibility of authorities---If there was any sluggishness on the part of petitioner even then he could not be punished for the same by snatching a right which was guaranteed under the Constitution---No one could be deprived of his property save in accordance with law---Action taken against the petitioner was not in accordance with law---Neither any show-cause notice was issued to the petitioner nor he was heard before taking impugned action against him---Notice should have been issued as to why allotment of petitioner be not cancelled---Act of authorities was violation of principles of natural justice---Impugned cancellation of plot of petitioner was liable to be struck down---Plot in question was still available and same had not been auctioned---Respondent was directed to execute and register lease deed in favour of petitioner and hand over the physical possession of the plot to him---Petitioner would pay the outstanding charges if any which were permissible in law---Constitutional petition was allowed in circumstances.

Zohra v. Government of Sindh PLD 1996 Kar. 1 and Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652 rel.

Shaikh Abdul Majeed for Petitioner.

Ashraf Ali Butt for Respondent No.1 along with Aijaz Ali, O.S., Cantonment Board Malir, Karachi in person.

2017 M L D 1105

[Sindh]

Before Munib Akhtar and Yousuf Ali Sayeed, JJ

ADAM A. MUCHHADDA---Appellant

Versus

Captain (R) H.A. RAHIM---Respondent

H.C.A. No.181 of 2016, decided on 10th March, 2017.

Limitation Act (IX of 1908)---

----S.3---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Limitation---"Void" and "illegal order"---Distinction---Appellant assailed ex parte judgment and decree passed against him on the plea that no limitation would run against void order, as he was not served and was unaware of judgment and decree---Validity---Mere irregular, incorrect, erroneous or illegal order did not necessarily fall within conception of the term "void" and law of limitation would apply to such orders---Single Judge of High Court was fully competent to adjudicate upon subject matter of underlying suit and to pass judgment and decree in question---No assertion to the contrary was made by appellant in such regard---Appeal filed against judgment and decree in question was barred by limitation---Intra-court appeal was dismissed in circumstances.

Muhammad Swaleh v. United Grain Fodder Agencies PLD 1964 SC 97; Messrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599 and Land Acquisition Collector, Nowshera and others v. Sarfaraz Khan and others PLD 2001 SC 514 ref.

M. Shafi Muhammadi for Appellant.

Respondent in person.

2017 M L D 1112

[Sindh]

Before Muhammad Humayon Khan, J

ABDUL GHAFFAR---Applicant

Versus

The STATE---Respondent

Cr. B.A. No.834 of 2016, decided on 4th July, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468, 470, 471, 506 & 34---Cheating, forgery for the purpose of cheating, using as genuine a forged document, criminal intimidation and common intention---Bail, grant of---Further inquiry---Case of the prosecution was that accused received an amount of Rs. 5,00,000/- from complainant by offering forged appointment and joining letters---FIR was lodged after the unexplained delay of about one year and nine months of alleged incident---Offence under Ss. 420, 471 and 506 P. P. C. were bailable while offence under S. 468, P.P.C. was punishable with seven years only---Case of accused, in circumstances, did not fall within prohibitory clause of S. 497, Cr. P. C.---Offences under Ss. 468 & 471, P. P. C. were non cognizable, but no permission had been sought for challan---Prevailing circumstances of the case against accused required further inquiry---Accused was allowed bail in circumstances.

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

----S. 497(1)---Bail, grant of---Principles---Provisions of S. 497(1) were not punitive in nature and in the absence of any exceptional circumstances, withholding bail was not the intention of law---No concept of punishment existed before judgment in the criminal law of the land---Question of grant or refusal of bail was to be determined judiciously having regard to the facts and circumstances of the case---Bail would be granted in case, offence was bailable or did not fall within the prohibitory clause of S. 497, Cr.P.C.---If the court arrived at a conclusion that matter required further inquiry, bail should be granted.

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

----S. 497(1)---Bail, grant of---Principles---Where offence falls within non-prohibitory clause of S. 497 Cr.P.C., granting bail had to be considered favorably as a rule but declined in exceptional cases.

Zafar lqbal v. Muhammad Anwar and others 2009 SCMR 1488 rel.

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

----S. 497(1)---Bail, refusal of---Principles---Case not falling within prohibitory clause of S.497, Cr.P.C.---Accused could not claim bail as matter of right, and court could decline concession of bail if there was likelihood of abscondance of the accused, apprehension of the accused tampering with the prosecution evidence, danger of the offence being repeated in case of releasing the accused on bail and accused was a previous convict.

Ghulam Hussain v. The State 2002 YLR 621 ref.

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

----S. 497(1)---Bail---Proceedings---Nature---For grant of bail, available material was to be considered tentatively only, which could not influence the decision of the case on merits.

Imtiaz Ali Awan for Applicant.

Ms. Rehana Akhtar, A.P.G. for Respondent.

2017 M L D 1125

[Sindh (Larkana Bench)]

Before Anwar Hussain, J

Mst. SAKINA UMRANI---Applicant

Versus

The STATE---Respondent

Crl. Bail Appln. No.S-132 of 2016, decided on 25th May, 2016.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 504, 109, 120B & 34---Qatl-i-amd; attempt to commit qatl-i-amd; intentional insult with intent to provoke breach of the peace; abetment; criminal conspiracy; common intention---Bail, grant of---Absondence---Effect---No overt act of making fire upon the deceased had been assigned to the accused---Only allegation against the accused was that she, along with the co-accused, while meeting the principal accused in the court premises (during judicial custody in another case), had provided him a pistol, whereby, the principle accused had committed the alleged murder in the Prisoners' Hall, where the accused, the complainant, the deceased and the injured had been kept under custody---No one had seen the accused giving the pistol to the principal accused, and that was only the complainant's claim that the accused and co-accused had provided the pistol to the principal accused---Complainant had not specified as to whether the accused or the co-accused had provided the pistol, and the same was yet to be determined by the Trial Court---Abscondence of the accused would not come in the way of grant of bail, if the case for grant of bail was otherwise made out---Accused, in the circumstances of the case should not have been deprived of the benefit of bail---Bail application was allowed accordingly.

Mitho Pitafi v. The State 2009 SCMR 299; Malik Mukhtiar Ahmed Awan v. The State 1991 SCMR 322; Tariq Bashir v. The State PLD 1995 SC 34; Amanullah Shah v. The State PLD 1996 SC 241 and Nisar Ahmed v. The State 2014 SCMR 27 rel.

Habibullah Ghouri for Applicant.

Saleem Raza Jakhar for the Complainant.

2017 M L D 1137

[Sindh]

Before Muhammad Iqbal Kalhoro, J

Mrs. KATHLEEN M. AFZAL---Petitioner

Versus

MOIZ SABUWALLA and 2 others---Respondents

C.P. No. S-852 of 2013, decided on 23rd September, 2016.

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

----Ss. 15, 16 & 2(g)---Ejectment of tenant---Tentative rent order---Default in payment of rent---Bona fide personal need of landlord---Scope---Tenant was directed to deposit arrears of rent and future monthly rent on or before 10th of each English Calendar month but she failed---Rent Controller struck off defence of tenant and she was directed to vacate the tenement---Validity---If a case was filed on the sole ground of default and the tenant on the first day of hearing had admitted his liability to pay the entire dues, Rent Controller on being satisfied that tenant had not defaulted on any previous occasion and default did not exceed six months would direct the tenant to pay all the rent on or before the date fixed and upon such payment he should reject the ejectment application---Where in addition to alleged default of six months if some or any other grounds had been raised by the landlord, eviction petition on payment of arrears of rent claimed on the first date of hearing would not be liable to be rejected---Default in payment of rent was not the sole ground for seeking eviction in the present case---Landlord had also pleaded his personal need as one of the ground for seeking eviction of the tenant from the demised premises---Tenant's making good of the entire default on the first date of hearing was of no consequence insofar as landlord's right to continue with his case on the ground of personal need---Rent Controller could not reject the eviction petition on the basis of payment of arrears of rent in the present case---Law did not restrict the term 'personal need' to the wife and children only and same would include the family and/or children of siblings who would become dependent on the landlord---Tenant had committed default in payment of rent and he was defiance of tentative order---No illegality was pointed out in the impugned judgments and orders passed by the courts below---Constitutional petition was dismissed in circumstances.

Case-law referred.

Abdul Qadir Khan for Petitioner.

Mushtaq Ahmed Memon for Respondent No.1.

2017 M L D 1155

[Sindh]

Before Anwar Hussain, J

Syed ABID HUSSAIN SHAH---Applicant

Versus

The STATE---Respondent

Bail Application No.80 of 2016, decided on 4th July, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 392, 398 & 34---Robbery, attempt to commit robbery or dacoity when armed with deadly weapon, common intention---Bail, grant of---Further inquiry---Complainant alleged that two accused had robbed his cell phone and amount of Rs. 1380/---One accused (petitioner) was arrested on the spot---Only cell phone and not Rs.1380 allegedly robbed was recovered from accused---Weapon of offence (gun) was also not recovered from the accused which rendered the case that of further inquiry---Bail was allowed accordingly.

Muhammad Hanif for Applicant.

2017 M L D 1164

[Sindh (Hyderabad Bench)]

Before Rasheed Ahmed Soomro, J

LAL BUX---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No.S-396 of 2016, decided on 30th June, 2016.

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

----S. 497---Bail---Principles---Deeper appreciation of evidence could not be taken into account and it was to be seen only whether or not the accused was prima facie connected with the commission of offence.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Prohibition of possession, import and export, trafficking or financing trafficking of narcotic drugs---Bail, grant of---Further inquiry---Only 1300 grams of charas was allegedly recovered from the accused---Present case appeared to be a borderline case, which attracted the provisions of Ss. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997, and the benefit of such discrepancy was, therefore, to be extended to the accused---Prosecution had not claimed that the accused was previously involved in the such nature of cases---Case of accused therefore, was that of further inquiry in terms of S.497(2), Cr.P.C.---Bail application was allowed accordingly.

Wajid alias Waji v. State 2016 PCr.LJ 831; Ali Hassan Ali Hasan v. State 2014 YLR 188; Asif Ali v. State 2013 YLR 1241 and Ayaz v. State 2011 PCr.LJ 177 rel.

Qadir Dad Shar Applicant.

2017 M L D 1174

[Sindh]

Before Salahuddin Panhwar, J

SHAMSHEER KHAN through L.Rs. and others---Plaintiff

Versus

GUL KHAN and 2 others---Defendants

Suit No.1384 of 2014, decided on 19th February, 2016.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Suit for recovery of compensation amount---Fatal accident---Burden of proof---Defendants had deliberately avoided to avail the remedy of defence---Filing written statement was meant to provide an opportunity to deny claims of plaintiffs---When there was admission of claim then court was not bound to adopt procedure of trial---Where defendants had denied allegation of negligence, burden would shift upon them to prove the same---Owner of vehicle had means to compensate and not the employee who was driving the same---Act of employee plying/running the vehicle was part of employment activity of owner of vehicle---Both the owner of vehicle and his employee were jointly and severally liable for the tort in question---Person who stood surety for release of vehicle on superdari would not be liable for an act of employer and employee---Deceased died at the age of 30 years and had joined the practical life---Age of deceased for compensation/ damage was taken as seventy years---Deceased was working as a driver and his average monthly income was taken as Rs.25,000/- per month---Suit was decreed to the extent of Rs. 11,000,000/- in circumstances.

Anisur Rehman v. Govt. of Sindh 1997 CLC 615; Mst. Sakina v. National Logistic Cell 1995 MLD 633; Pakistan Steel Mills Corporation v. Malik Abdul Habib 1993 SCMR 848; Catholic Child Welfare Society v. Various Claimant (FC) the Institute of the Brothers of the Christian Schools 2013 SCMR 787 and 2011 SCMR 1836 rel.

Masjood Ali Memon for Plaintiff.

Nemo for Defendants.

2017 M L D 1197

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

DANYAL alias DANI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.322 and Confirmation Case No.3 of 2012, decided on 17th February, 2016.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Counsel for accused did not press appeal on merits, but prayed for converting death sentence awarded to accused into imprisonment for life, in view of young age of accused---Factum of young age of accused was never raised by accused before Police during investigation, so also before the Trial Court---Youth of accused alone, would not constitute an extenuating circumstance, as would justify imposition of lesser penalty prescribed by law---Prosecution had proved its case by cogent evidence, that three successive churri/knife blows were inflicted by accused on the chest and abdomen of the deceased---Ocular evidence was corroborated by medical evidence; and no other evidence was required in the present case to establish the factum of intention---Accused had committed murder in a brutal manner by inflicting three knife blows to the deceased---Accused, in circumstances, did not deserve any leniency in sentence---Trial Court had examined each and every piece of evidence carefully and appreciated evidence according to settled principles of law---No reason existed for reducing sentence of accused from death to imprisonment for life---Appeal was dismissed and Reference for confirmation of death sentence was answered in Affirmative, in circumstances.

Muhammad Ismail and others v. The State and others 2013 PCr.LJ, 478; Rashid Bashir v. The State and others 2011 PCr.LJ 1522; Bilawal v. The State 2012 MLD 1419; Muhammad Saleem v. The State 2001 SCMR 536; Faisal Aleem v. The State PLD 2010 SC 1080; Muhammad Yar v. The State 1997 SCMR 401 and Miss Najiba and others v. Ahmed Sultan alias Sattar and 2 others 2001 SCMR 988 and Dadullah and anther v. The State 2015 SCMR 856 ref.

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

----S. 302---Qatl-i-amd---Intention---Intention, would not imply or assume the existence of some previous design or forethought; intention would mean an actual intention, existing intention of the moment; and was proved by or inferred from the act of accused; and the circumstances of the case.

Munawar Ali v. The State 2001 SCMR 614 ref.

Shahid Ali Qureshi for Appellant.

Muhammad Iqbal Awan Asstt: Prosecutor General for the State.

Qadir Hussain Khan for the Complainant.

2017 M L D 1215

[Sindh (Larkana Bench)]

Before Abdul Rasool Memon, J

ALI AKBAR---Petitioner

Versus

NOOR AHMED and 4 others---Respondents

Constitutional Petition No.S-710 of 2015, decided on 17th October, 2016.

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

----Ss. 15, 5 & 2(f)---Qanun-e-Shahadat (10 of 1984), Art. 115---Ejectment of tenant---Bona fide personal need of one of the landlords---Denial of relationship of landlord and tenant by the tenant---Scope---Contention of tenant was that landlord was not owner of the demised premises and was not competent to execute the rent agreement---Eviction petition was accepted concurrently---Validity---Tenant entered into agreement with the landlord and was paying rent to him---"Landlord" would include a person receiving rent on his own account or on behalf of any other person---Landlord was entitled to file rent application as he satisfied the requirement of law---Article 115 of Qanun-e-Shahadat, 1984 did not permit the tenant to deny the title of landlord during continuance of tenancy---One of the landlords could file ejectment petition---Landlord had prerogative to choose the rented premises, for his personal use, if having more than one---No restriction could be enforced upon the landlord either by the tenant or the Rent Controller---No mis-reading or non-reading of evidence was pointed out in the impugned order passed by the courts below---Tenant was directed to vacate the demised premises within 90 days---Constitutional petition was dismissed in circumstances.

Muhammad Ali v. Haji Abdul Rehman and others 1980 SCMR 29; Saifuddin and another v. Senior Civil Judge/Rent Controller-VIII Karachi (South) and 7 others 2007 SCMR 128; Khalique Ahmed v. Abdul Ghani and another PLD 1973 SC 214; Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 and Haji Abdullah and others v. Yahya Bakhtiar PLD 2001 SC 158 rel.

Abdul Hameed Khan for Petitioner.

Bashir Ahmed Dargahi for Respondents Nos. 1 to 3.

Ameer Ahmed Narejo State Counsel.

2017 M L D 1232

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

ASHIQUE ALI---Petitioner

Versus

PROVINCE OF SINDH through Home Secretary Governmet. and 10 others---Respondents

Constitutional Petition No.S-4220 of 2015, decided on 22nd January, 2016.

Constitution of Pakistan---

----Art. 199----Constitutional petition---Scope---Dispute involving settlement of amount/factual controversy---Allegations of harassment by respondents---Respondent, who was an old citizen, had categorically denied the allegations for causing harassment to the petition regarding recovery of outstanding amount---Respondents/police officials had also denied the allegations of harassment---Court was under the duty to examine the set of allegations prudently, and if the same, prima facie, reflected that the petitioner had not come to the Court with clean hands and the matter involved factual controversy, the High Court should not have exercised its Constitutional jurisdiction in favour of the complaining party---Dispute, in the present case, pertained to settlement of amounts, falling within the ambit of factual controversy, which could not be decided until recording of evidence of the parties supported with relevant documents---Petitioner could not invoke the Constitutional jurisdiction under the garb of causing the harassment by the (private) respondents---Petitioner had not approached the Court with clean hands, and, instead of paying the dues to the private respondents, had filed present petition with the sole purpose to defeat their legal demands---Constitutional petition was dismissed in circumstances.

Shaikh Amanullah for Petitioner.

Shahryar Imdad Awan, Asstt: A.G. along with Inspector Muhammad Sharif Jandan, P.S. "C" Section, Sukkur, SIP, Abdul Hameed, SHO Airport, ASI, Muhammad Arab, P.S. Pano Akil and SIP Nasrullah for Respondents.

2017 M L D 1267

[Sindh (Larkana Bench)]

Before Abdul Rasool Memon and Anwar Hussain, JJ

Miss TAYABA---Petitioner

Versus

VICE-CHANCELLOR, QUAID-AWAM ENGINEERING UNIVERSITY OF SCIENCES AND TECHNOLOGY and 4 others---Respondents

Const. Petition No.D-414 of 2015, decided on 28th June, 2016.

Educational Institution---

----Petitioner (student) completing one semester of the program from abroad---Student was allowed to complete one semester of the program from abroad which she completed successfully---Student on return appeared in the semester of the program but she was declined sessional marks and was not allowed to sit in examination---Validity---Impugned letter declining the request for appearance of student in the examination was unjustified as no reason had been given nor any reference or rule had been mentioned therein which barred her from allowing sessional marks and appearance in examination---When educational institution had allowed the student to attend and participate in the program for one semester abroad, her certificate of participation ought to have been recognized---If student was not exempted from having requisite percentage of attendance and sessional work, condition should have been mentioned in the relieving letter---No such condition was mentioned in the said letter---Educational institution had allowed another student to attend the same program to study a complete semester of full time and on return he was allowed to appear in terms subjects---Present petitioner (student) should have been treated at par---Impugned letter was discriminatory and against the principles of natural justice---Constitutional petition was allowed in accordingly.

Muhammad Abdullah Riaz v. University of Health Sciences (UHS), Lahore and another PLD 2011 Lah. 555; Memoona Noureen v. Vice-Chancellor, Fatima Jinnah Women University, Rawalpindi 2011 CLC 230; Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961 and Junaid Jamshed v. University of Health Sciences and others 2015 CLC 65 distinguished.

Ayesha Fida v. Government of N.W.F.P. 2004 CLC 1160; Ms. Shakeela v. University of Peshawar PLD 2003 Pesh. 69; Chairman, Joint Admission Committee Khyber Medical College, Peshawar and others v. Raza Hassan and others 1999 SCMR 965 and Rabia Talib v. Vice Chanellor, Baha-ud-Din Zakariya University, Multan and 6 others 2008 YLR 2858 rel.

Shamsuddin Abbasi and Habibullah G. Ghori for Petitioner.

Kamaulddin for Respondents Nos. 1 to 3.

Abdul Hamid Bhurgri, A.A.G. for the State.

2017 M L D 1299

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

MUHAMMAD SHAH alias MUDASAR SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-108 of 2014, decided on 18th April, 2016.

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

----S. 497----Penal Code (XLV of 1860), Ss. 302, 337-H (2), 149, 148, 147 & 109---Qatl-i-amd; hurt by rash and negligent act; rioting; rioting armed with deadly weapon; abetment; common object---Bail, grant of---Principles---Case of counter/cross version---Further inquiry---Benefit of doubt---Two counter versions were available on the record regarding the murder of the deceased---Cases of conflicting versions arising from the same incident---Where set of allegations put forward by the complainant in his FIR was controverted by the opposite party in their subsequent FIR, bail should have been granted on the ground of further inquiry, as contemplated under S. 497, Cr.P.C, as it was for the Trial Court to determine and fix the responsibility of guilt after recording of the evidence of the parties and to determine as to which of the versions was correct and believable and which of the parties was the transgressor---Tentative assessment of the material available on the record had created some doubt about the person responsible for the injuries caused to the deceased, the benefit of which was to be extended to the accused even at bail stage---Accused persons of the FIR lodged against the complainant had already been granted bail by the Trial Court, but the accused of the FIR lodged by the complainant had been behind the bars for more than twenty-two months, and so far no witness had been examined to substantiate the charge against him---Bail application was allowed accordingly.

Naimat Khan v. The State 2010 PCr.LJ 964 and Abdul Rahim v. The State 2013 YLR 2534 ref.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; Ali Shaharyarv. The State and another 2008 SCMR 1448 and Gul Din v. The State and another 2011 SCMR 1997 ref.

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

----S. 497----Bail---Principle---Deeper appreciation of evidence, while dealing with the question of bail, is not permissible under the law, and plea of bail should be decided on tentative assessment of material available on record.

Irshad Ahmed Dharejo and Mohammad Ali Napar for Applicant.

Ghulam Shabir Dayo for the Complainant.

A.R. Kolachi APG for the State.

2017 M L D 1306

[Sindh (Larkana Bench)]

Before Abdul Maalik Gaddi, J

Mst. RAZIA---Applicant

Versus

The STATE and 3 others---Respondents

Crl. Misc. Appln. No.S-144 of 2013, decided on 9th February, 2016.

Criminal Procedure Code (V of 1898)---

----Ss.173, 204 & 561-A---Penal Code (XLV of 1860), Ss.342, 351, 354, 420, 498-A, 506(2), 148, 149 & 34---Inherent powers of High Court---Cancellation of case---Trial Court, jurisdiction of---Summoning of accused---Complainant was aggrieved of order passed by Trial Court cancelling the case on the basis of report under S. 173, Cr.P.C. filed by Investigating Officer---Validity---Trial Court was bound to apply its judicial mind to material placed before it and if Trial Court was of the view that opinion expressed by Investigating Officer in report under S. 173, Cr.P.C. was just and appropriate, the Court was fully competent to accept the report and dispose of the case as proposed by Investigating Officer---Complainant nominated accused persons in FIR, specific role was also assigned against accused persons and version of complainant was also supported by prosecution witnesses---Offence was serious and heinous but Trial Court did not consider the point of view of complainant in its order---Sufficient evidence to take cognizance of offence was on record and at such stage guilt or innocence of accused could not be decided for which evidence was to be recorded---High Court directed the Trial Court to issue process against accused persons and set aside the order cancelling the case---Application was allowed in circumstances.

Syeda Afshan v. Syed Farrukh Ali and 03 others PLD 2013 Sindh 423 and Bakhsh Ali v. The State and 7 others 2013 YLR 1948 ref.

Anwar Shamim and others v. The State 2010 SCMR 1791 rel.

Habibullah G. Ghouri for Applicant.

Khadim Hussain Khooharo, D.P.G. along with SP Ferozuddin Siddiqui and SIP Irshad Ali Tunio DIG Office Larkana.

Sobhraj L.P. for Respondents Nos. 3 and 4.

2017 M L D 1321

[Sindh (Sukkur Bench)]

Before Abdul Rasool Memon and Sadiq Hussain Bhatti, JJ

ABDUL AZIZ---Applicant

Versus

MUHAMMAD PUNHAL and 2 others---Respondents

Criminal Miscellaneous Application No.D-582 and M.A. No.4781 of 2015, decided on 7th December, 2016.

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

----S.6---Jurisdiction of Anti-Terrorism Court, determination of---Complainant had challenged the order passed by Anti-Terrorism Court, by which it was directed the Investigating Officer to submit challan of accused before the ordinary criminal court---Validity---Commission of any act, creating fear and insecurity in any Section of people would fall within the ambit of case as contemplated under S. 6 of Anti-Terrorism Act, 1997 and Anti-Terrorism Court would assume the jurisdiction for trial of such a case.

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

----Ss.302, 364-A, 201 & 377---Anti-Terrorism Act (XXVII of 1997), Ss. 6(b), 7(e) & 23---Qatl-i-amd, kidnapping a person under the age of ten, causing disappearance of evidence of offence, un-natural offence, act of terrorism---Application for transfer of case from Anti-Terrorism Court to ordinary criminal court was allowed---Validity---Prosecution case was that accused kidnapped the minor son of complainant, murdered him by strangulation after committing carnal intercourse and then his body was thrown in river---Dead body of the deceased boy was recovered from the river---When dead body of the minor boy was taken out from river and brought for burial, it would have certainly caused not only shock to the parents and close relatives but also created fear and insecurity amongst the people of vicinity having children of same age---Offence committed in presence of people could not only create insecurity in the minds of people but its impact upon minds of people was to be seen---In the present case, the way the boy was kidnapped, sexually assaulted, killed by strangulation and thrown into river, recovery of dead body in such mutilated shape was not only the kind of occurrence which would not create terror and horror in the people or any section of people but the onlookers must have felt fear and insecurity on seeing the barbaric and callous manner in which the innocent boy was killed---Such act of the accused was not only heinous but would come within the definition of "terrorism"---Application was therefore, allowed and case was directed to be tried by Anti-Terrorism Court.

Nazeer Ahmed and others v. Nooruddin and another 2012 SCMR 517; Rana Shahbaz Riaz v. Special Judge Anti-Terrorism Court, Faisalabad and 13 others 2009 PCr.LJ 346 and The State v. Abdul Malik alias Malkoo PLD 2000 Lah. 449 ref.

State through Advocate General N.-W.F.P., Peshawar v. Mohammad Shafique PLD 2003 SC 224 and Mst. Najam-un-Nisa v. Judge, Special Court constituted under Anti-Terrorism Court Act, 1997 2003 SCMR 1323 rel.

Hadi Bux Bhatt for Applicant.

Sikandar Ali Junejo for Respondents Nos. 1 and 2.

Saleem Akhtar Buriro, Additional Prosecutor General Sindh.

2017 M L D 1339

[Sindh]

Before Sadiq Hussain Bhatti, J

BARKAT ALI (deceased) through Legal Heirs and 6 others---Petitioners

Versus

MOHAMMAD UMER and 2 others---Respondents

C.P. No.S-1579 of 2014, decided on 8th October, 2015.

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

----Ss. 21 & 15---Civil Procedure Code (V of 1908), S. 12(2)---Specific Relief Act (I of 1877), S. 12---Eviction order---Appeal---Scope---Tenants filed appeal against eviction order but same was withdrawn and an application under S.12(2), C.P.C. was moved to assail the said order on the grounds of concealment and misrepresentation of facts which was dismissed concurrently---Validity---If tenants were aggrieved by the order of eviction, an adequate remedy was an appeal---Tenants instead of availing the adequate and efficacious remedy filed application under S.12(2), C.P.C. which was not substitute of an appeal---Application under S.12(2), C.P.C. could only be moved when judgment/decree had been obtained on the back of a party by playing fraud upon the court---Nothing was on record, in the present case, as to why appeal was withdrawn and petition under S.12(2), C.P.C. was moved---No order was passed behind the back of the tenants and in each case their counsel was present---Facts which were alleged to have been suppressed/concealed by the landlord were within the knowledge of tenants and they were not precluded from bringing the same on record---Pleas raised in the application under S. 12(2), C.P.C. could have been agitated in the appeal which had a far wider scope than petition under S. 12(2), C.P.C.---Tenants were not put in possession of the demised premises as part performance of sale agreement---Tenants should have filed a suit for specific performance to enforce the sale agreement and once they had succeeded therein, they should be put in possession of demised premises as owners---Tenants could not deny relationship of landlord and tenant till they had obtained specific performance of such agreement---If demised premises was a leased property and pursuant to sale agreement the same was transferred and mutated in the name of tenants, they would have been justified in denying the existence of relationship of landlord and tenant between the parties---Constitutional petition being not maintainable, was dismissed.

Messrs Ilyas Marine and Associates v. Amin Lasania and another 2004 MLD 1008 ref.

Haji Muhammad Saeed v. Additional District Judge 2005 YLR 1985 rel.

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

----S.12(2)---Invokation of S.12(2), C.P.C.---Scope---Application under S.12(2), C.P.C. could only be moved when judgment/decree had been obtained on the back of a party by playing fraud upon the court.

Messrs Ilyas Marine and Associates v. Amin Lasania and another 2004 MLD 1008 ref.

Mobarak Ahmed for Petitioner.

Ms. Darkhshan Jahan for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

2017 M L D 1363

[Sindh]

Before Nadeem Akhtar and Fahim Ahmed Siddiqui, JJ

Mrs. KAUSAR RASHID through Attorney---Petitioner

Versus

KARACHI BUILDING CONTROL AUTHORITY and 9 others---Respondents

Constitutional Petition No.D-2357 of 2013, decided on 11th January, 2017.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Amenity plot---Status, changing of---Petitioner alleged that plot in question was a park in layout plan which was being changed by authorities---Validity---Complexion and character of an amenity plot cannot be changed therefore, shifting of children park of society to playground was not in accordance with law---High Court directed the authorities to restore park and playground on their original location as per previously approved plan of society and set aside revised plan of society---High Court further directed authorities to dismantle any structure raised on amenity plot to restore and establish park in its original position---Constitutional petition was allowed accordingly.

Abdul Razak v. Karachi Building Control Authority PLD 1994 SC 512 and Province of Sindh through Chief Secretary's case 2016 SCMR 101 rel.

Muhammad Imran Ameer for Petitioner.

Ali Azad Saleem for SBCA along with Syed Nishat Ali, Deputy Director (Urban Design), Master Plan Department KBCA.

2017 M L D 1391

[Sindh]

Before Syed Hasan Azhar Rizvi and Syed Saeeduddin Nasir, JJ

Mrs. HAMIDA SULEMAN and another---Petitioners

Versus

SINDH BUILDING CONTROL AUTHORITY through Director General 6 others---Respondents

C.P. No.D-4065 of 2013, decided on 20th April, 2016.

Constitution of Pakistan---

----Art. 199---Constitutional petition---High-rise building---Conversion of plot from residential to commercial one---Seeking approval for further construction---Demand for payment of difference of commercial fee---Scope---Petitioner applied for approval of fourth and fifth floor on subject plot---Municipal Corporation demanded the difference of commercialization fee---Validity---High-rise buildings were already in existence in the vicinity of building in dispute---High Court while exercising constitutional jurisdiction should see that mischief and chaos was prevented when construction of high-rise building was in public interest---Petitioner was required to make payment of differential amount which was to be incurred on the work being carried out by the Municipal Corporation with regard to development of infrastructure such as water and sewerage---Suit plot was commercialized as far back as in 1987---Petitioner was not seeking change of land use as the status of subject plot had already stood changed from residential to commercial---Municipal Corporation could not demand difference of commercial fee at the new rates once petitioner had paid the commercialization and town planning charges at the prevailing rates---New policy for change of land use and master planning would not be applicable to the plot in question---Plot was located on the road already declared as commercial---No permission of Municipal Corporation was required and petitioner was free to construct fourth and fifth floor on the subject plot after obtaining approved building plan---Demand raised by the Municipal Corporation through impugned letter was without lawful authority which was set aside---Constitutional petition was allowed in circumstances.

Federation of Pakistan v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2744; Federation of Pakistan v. Muhammad Tariq Pirzada and others 1999 SCMR 2189; Zainab Garments (Pvt.) Ltd. and others v. Federation of Pakistan and another PLD 2010 Kar. 374; Zahid Saeed and 4 others v. City District Government, Karachi and 3 others PLD 2010 Kar. 218; Mst. Ummatullah v. Province of Sindh and 6 others PLD 2010 Kar. 236 and Jawad Mir Muhammadi and others v. Haroon Mirza and others PLD 2007 SC 472 ref.

Capt. S. M. Aslam and others v. Karachi Building Control Authority and others 2005 CLC 759 rel.

Mohammad Noman Jamali for Petitioners.

Anwer Ali Shah for Respondent/SBCA.

Miran Mohammad Shah, A.A.G. Sindh along with Mrs. Asadullah Lashari, State Counsel.

Syed Sultan Ahmed for Respondent/KMC.

2017 M L D 1402

[Sindh]

Before Ahmed Ali M. Shaikh and Mohammed Karim Khan Agha, JJ

ANOOP KUMAR and 3 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Director (IPR) FIA and 2 others---Respondents

C.P. No.D-407 of 2015, decided on 26th May, 2016.

Criminal Procedure Code (V of 1898)---

----S.561-A---Copyright Ordinance (XXXIV of 1962), Ss. 56, 66 & 71---Copyright, infringement of---Quashing of FIR---Jurisdiction of High Court---Petitioners had alleged that they were innocent and had falsely been implicated in the case---No offence was made out as per contents of the FIR---Necessary ingredients for the offence were missing---No chance of their being convicted, to allow the Trial Court to continue would amount to abuse of the process of law---Scope---Admittedly, FIR was lodged and a challan had been submitted before the Trial Court, which had taken the cognizance---Once Trial Court had taken cognizance of the matter, High Court could not, as a rule, quash the FIR as the petitioners had adequate alternative remedies available to them before the Trial Court---Constitutional petition was dismissed accordingly.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Director General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others PLD 2013 SC 401 rel.

Ghulam Haider Shaikh for Petitioners.

Syed Abdul Rauf for Respondent No.2 and Saeed Ahmed Memon, Standing Counsel along with Ali Hassan Zardari, I.O. for Respondents.

2017 M L D 1428

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

MUHAMMAD BUX---Petitioner

Versus

PROVINCE OF SINDH through Secretary Home Department and 6 others---Respondents

C.P. No.S-4531 of 2015, decided on 11th January, 2016.

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

----S. 173---Report of police officer---Complainant impugned the order passed by Judicial Magistrate whereby summary report submitted by the Investigating Officer under "B" class was approved---Complainant lodged FIR with the delay of thirteen days for which no plausible explanation had been furnished---No empty was recovered from the spot nor any injury was sustained by the complainant party nor any medical certificate had been placed on record by complainant to substantiate the allegation of maltreatment---Admittedly parties were under litigation for the custody of child and accused were facing litigation pending before the courts---Allegation of stealing of money from the pocket of complainant after a quarrel did not attract prudent mind---Complainant had failed to point out any partial attitude of the Investigating Officer that he had not carried out investigation by fair means or he had not recorded statements of his witnesses properly or recorded statements incorrectly or did not consider the documentary evidence produced by him connecting the accused regarding commission of the alleged offence---Magistrate had ample powers under S. 173, Cr.P.C. to scan the entire material placed before him in shape of summary report by the Investigating Officer including averments of FIR, statements recorded under S. 161, Cr. P. C. and other relevant material and pass appropriate order by applying his judicial mind either accepting or declining such report---Impugned order transpired that Magistrate had discussed the involved aspects and passed speaking order which was just and proper and did not call for any interference---Constitutional petition was dismissed accordingly.

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

----S. 173---Report of police officer---Scope---Investigating agency had no authority to decide the guilt or innocence of accused.

Anwar Shamim v. State 2010 SCMR 1791 rel.

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

----S. 173---Report of police officer---Scope---Magistrate had ample powers under S. 173, Cr.P.C. to scan the entire material placed before him in shape of summary report by the Investigating Officer including averments of FIR, statements recorded under S. 161, Cr.P.C. and other relevant material and pass appropriate order by applying his judicial mind either accepting or declining such report.

Ghulam Mujtaba Naich for Petitioner.

Agha Ather Hussain, Assistant Advocate General.

Syed Sardar Ali Shah Rizvi, Assistant Prosecutor General along with ASI Muhammad Hashim Hakro of P.S. Sarhad.

2017 M L D 1447

[Sindh]

Before Muhammad Iqbal Kalhoro, J

NIB BANK LTD.---Appellant

Versus

A.R.Y. TRADERS (PVT.) LTD. through Director---Respondent

IInd Appeal No.92 of 2011, decided on 12th May, 2016.

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

----S. 12 (5)---Civil Procedure Code (V of 1908), S. 96---Appeal---Limitation---Time spent in obtaining certified copy----Computation of---Principle---Appellate Court dismissed appeal being time barred---Validity---Unless a copy was stamped and certified by the copying branch it could not be considered ready for delivery---Copy was certified on 13-07-2010 and it was ready for delivery only on that date---Period would be computed from that day and not from the day when copy just got ready for further action---When copy was ready for delivery then 6 days more were used in collecting the same from office of copyist---Copy branch was bound to issue notice of intimation to collect the copy after it got ready for delivery---In absence of such notice time requisite for obtaining copy would extend to the date of delivery---Appeal was filed on 28th day which was not time barred---Matter was remanded to the Appellate Court to decide the appeal on merits after hearing both the parties within specified time---Appeal was disposed of in circumstances.

PLD 2005 SC 311; 2008 YLR 1865; 1983 CLC 1235; 2005 CLC 680; 1981 CLC 797; 1980 CLC 1972; 2012 CLC 1293; 2003 SCMR 176; PLD 2008 SC 577; 2003 SCMR 1560; 1997 SCMR 919; 1997 SCMR 1974 and 2014 CLC 160 ref.

(b) Maxim---

----"Actus curiae neminem gravabit"---Applicability---Scope.

Kashif Hanif for Appellant.

Kashif Paracha for Respondent.

2017 M L D 1460

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

SHARMA and another---Petitioners

Versus

PROVINCE OF SINDH, through Secretary Home Department and 9 others---Respondents

C.P. No.S-1848 of 2016, decided on 17th May, 2016.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Grievance of petitioners was that police had not been providing protection to them and was not properly investigating their case against respondents who were influential people of the locality and were not letting them to reside in their own houses---Validity---High Court earlier had directed Superintendent of Police and Station House Officer concerned to provide protection to the lives and properties of both petitioners as well their family members against respondents as there were serious allegations of their murder on account of 'Karap' and dispossession from their houses---Both the officials failed to provide any tangible evidence regarding providing protection to petitioners and alleged the allegations against respondents favouring the subordinates---High Court directed police officials to ensure protection of petitioners, their family members and their properties in accordance with law---Constitutional petition was disposed of accordingly.

H.N. Rishbud and another v. State of Delhi AIR 1955 SC 196; Bahadur Khan v. Muhammad Azam 2006 SCMR 373 and Atta Muhammad v. Inspector General of Police, West Pakistan and others PLD 1965 (W.P.) lah. 734 ref.

Shabir Ali Bozdar for Petitioners along with petitioners.

Zulfiqar Ali Sangi for Respondents.

Agha Athar Hussain A.A.G. along with Malazim Hussain DSP Ranwati and Mohammad Khan Abro SHO P.S. Wasti Jeewan Shah.

2017 M L D 1485

[Sindh]

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

Messrs RAAS SYSTEM ENTERPRISES through Authorized Representative---Petitioner

Versus

GOVERNMENT OF SINDH, SECRETARY LOCAL GOVERNMENT KARACHI and 7 others---Respondents

C.P. No.D-3743 of 2015, decided on 14th January, 2016.

Tender---

----Allegation of malpractice in awarding bid---Prayer for inquiry---Scope---Contract had been awarded by the authorities after completing all the required formalities of bid---Respondents being lowest bidders had accepted the bid and project was about to be completed---Petitioner who had not participated in tender proceedings had approached the court to challenge tender proceedings after lapse of more than three years---No corrupt practice had been pointed out by the petitioner---Mere words had been alleged without any substantial proof---Constitutional petition was dismissed in circumstances.

Muhammad Zafar Ahmed for Petitioner.

Ishrat Alvi for Respondents Nos. 2, 3 and 4 along with Irfan Ali, Law Officer, LDA, Aziz Memon, Chief Engineer and M. Shahid Hussain Superintending Engineer, L.D.A.

Ghulam Hyder Shaikh for Respondent Nos.5 and 6.

Raza Ali Abidi/Respondent No.8, present in person.

2017 M L D 1497

[Sindh (Sukkur Bench)]

Before Irfan Saadat Khan and Muhammad Junaid Ghaffar, JJ

KHALID MEHMOOD---Petitioner

Versus

SHABIR AHMED and another---Respondents

C.P. No.S-893 of 2014, decided on 30th March, 2015.

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

----Art. 113---Specific Relief Act (I of 1877), S. 12---Contract Act (IX of 1872), S. 65---Civil Procedure Code (V of 1908), O. VII, R.11---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for specific performance of agreement to sell---Limitation---Plaint, rejection of---Plaintiff filed suit for specific performance of agreement to sell wherein an application for rejection of plaint was moved on the ground that suit was barred by limitation---Application for rejection of plaint was dismissed concurrently---Validity---Plaintiff had not mentioned a specific date for accrual of cause of action and failed to show any continuity in the cause of action---Six months period of limitation had been provided in the agreement to sell for execution of the same---Period of limitation was not to be counted from the date of refusal of specific performance of agreement but from the date which had been provided in the agreement itself---When agreement had specified a fixed period to perform the same and from which the date could be easily determined or calculated then limitation would run forthwith from that date irrespective of the fact whether any party had defaulted or was unable to perform his/her part of the agreement in relation thereto---Present suit was filed beyond the period of limitation which was time barred---Court was bound to examine whether suit filed was barred by any law or not and see if objection was taken through an application under O. VII, R. 11, C.P.C. or otherwise and reject it forthwith if it appeared from the statement made therein, to be barred by any law---Both the courts below had erred in law in dismissing the application for rejection of plaint---Impugned orders passed by both the courts below were set aside and application for rejection of plaint was allowed and plaint was rejected being time-barred---Defendant in view of S.65 of the Contract Act, 1872 had received the advantage under such agreement and was bound to restore it or to compensate for it to the person from whom he received it---Defendant was directed by High Court to refund the amount to the plaintiff so received, as earnest money, with mark-up at the rate fixed by State Bank within specified period which would be subject to settlement of rent due if any---Constitutional petition was accepted in circumstances.

Muhammad Taj v. Arshad Mehmood and 3 others 2009 SCMR 114; Mst.Noor Bibi v. Mst.Mukarama Bibi 2014 YLR 1494; Muhammad Anwar Khan v. Ghulam Farid and others 2014 YLR 2244; Sultan v. Saifullah and others 2011 CLC 1946; Feroz Hussain and 2 others v. Executive Engineer, Mithrao Division, Mirpurkhas and 4 others 2009 CLC 529; Mst.Fatima through L.Rs. v. Jan Muhammad through L.Rs. 2006 CLC 1401; Ch.Muhammad Bashir v. Divisional Canal Officer and others 1994 CLC 2302; Mst.Musharaf Begum and another v. Abdul Wahab 1999 CLC 1820; Ch. Zia Illahi Advocate through Legal Heirs and 4 others v. Khushi Muhammad and 8 others 2000 YLR 1881 and Muhammad Ayyub Khan v. Ch.Muhammad Aslam and another 1984 CLC 2159 ref.

Muhammad Ramzan v. Muhammad Qasim 2011 SCMR 249; Haji Abdul Kareem through Attorney v. Florida Builder (Pvt.) Limited Karachi 2009 YLR 451; Haji Abdul Karim v. Florida Builders (Pvt.) Limited PLD 2010 Kar. 17; Muhammad Aslam v. Bilqees Begum 2008 CLD 38 and T. L. Muddukrishna and another v. Smt. Lalita Ramchandra Rao AIR 1997 SC 772 rel.

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

----Art. 113---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Limitation---Limitation period of three years had been provided for a suit seeking specific performance of contract to be filed from the date fixed for the performance in the agreement or if no such date was fixed then the date on which plaintiff had noticed that performance had been refused.

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

----O. VII, R.11---Plaint, rejection of---Scope---Court was bound to reject the plaint if it appeared from the statement in the plaint to be barred by any law.

Rashid Khan Durrani for Petitioner.

Farman Ali Rajput for Respondent No.1.

Imtiaz Ali Soomro, A.A.G. for the State.

2017 M L D 1514

[Sindh]

Before Naimatullah Phulpoto and Mohammed Karim Khan Agha, JJ

AMEEN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.165 of 2014, decided on 4th November, 2016.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession and trafficking of narcotics---Appreciation of evidence---Police official as recovery witnesses, competency of---Principles---Prosecution case was that five kilograms of charas was recovered from the possession of accused---Prosecution witnesses were police officials---Defence had alleged that no private witness was associated at the time of alleged recovery of charas, which was violation of provision of S. 103 Cr.P.C.---Validity---Record showed that charas was recovered from the possession of accused at 0030 hours---Private person as witness at such odd hours of the night were not available, as such question of association of private persons did not arise---Police officials were as good witnesses as private persons of the society---Evidence of such witnesses could not be discarded merely for the reason that they were police officials---Appeal against conviction was dismissed in circumstances.

Riaz Ahmad alias Raju v. The State 2004 SCMR 988 rel.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules 2001, R.4(2)--Recovery of narcotics---Appreciation of evidence---Delay in sending samples--Charas weighing Five-kilograms was recovered from accused---Plea raised by accused was that charas was sent to Forensic Science Laboratory after seven days of recovery; that Control of Narcotic Substances (Government Analysts) Rules, 2001, described that contraband substance should have been sent to Chemical Examiner within seventy two hours of recovery and that positive report could not be relied upon on account of delay---Validity---Control of Narcotic Substances (Government Analaysts) Rules, 2001 had placed no bar on the Investigating Officer to send the samples beyond seventy two hours of the seizure---Said Rules were directory and not mandatory in nature---Failure to follow the Rules would not render the search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity and made the entire prosecution case doubtful---Delay of seven days in sending the charas to the Chemical Examiner for expert opinion could not be treated fatal for the prosecution case in absence of objection regarding the same having been tampered with or manipulated---No such allegation with the case property was on record---Appeal against conviction was dismissed in circumstances.

Abdul Majeed v. The State 2014 YLR 2050 and Imdad Ali Junejo v. The State 2002 PCr.LJ 1086; Glzulam Murtaza and another v. The State PLD 2009 Lah. 362 and Ameer Zeb v. The State PLD 2012 SC 380 ref.

Tariq Mehmood v. The State through Attorney-General PLD 2009 SC 39 and Gul Alam v. The State through Advocate General NWFP, Peshawar 2011 SCMR 624 rel.

(c) Control of Narcotic substance s Act (XXV of 1997)---

----S. 9(c)---Possession and trafficking of narcotics---Appreciation of evidence---Allegation against accused was that five-kilogram charas was recovered from the possession of accused---Complainant narrated the story of arrest of accused and recovery of charas, unlicensed weapon and hand grenade from his possession, which appeared to be confidence inspiring and trustworthy---Mashirnama of arrest and recovery was prepared by complainant/police official in presence of mashirs---Property was sealed at the spot---Complainant, thereafter, brought the accused to the police station and lodged FIR---Departure and arrival entries from police station were produced by the complainant, which showed that police party had actually left the police station for patrolling on the relevant date---Despite lengthy cross-examination, no inherent defect in the evidence of complainant had been brought on record---Sealed parcel of charas was sent to the Chemical Examiner---Evidence of mashir was also confidence inspiring and supported the complainant---Complainant had no reason to falsely challan the accused in the case---No material contradictions in the evidence of prosecution witnesses were found---Circumstances established that prosecution proved its case beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 and Ameer Zeb v. The State PLD 2012 SC 380 rel.

Obaidullah for Appellant.

Ms. Seema Zaidi, APG for Respondent.

2017 M L D 1535

[Sindh Hyderabad Bench)]

Before Naimatullah Phulpoto and Rasheed Ahmed Soomro, JJ

GHULAM ABBAS---Applicant

Versus

The STATE---Respondent

Cr. Bail Applications Nos.D-71 and D-72 of 2016, decided on 27th January, 2017.

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

----S.497---Penal Code (XLV of 1860), Ss. 324, 353, 392, 337 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6/7---Sindh Arms Act (V of 2013), S. 23-A---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharging of his duty, robbery, shajjah, common intention, act of terrorism, possessing unlicensed arms---Bail, grant of---Further inquiry---Accused was charged in FIR for firing on police party with the intention to kill them when police party raided for the arrest of accused wanted in another criminal case---Record showed that son of accused had been killed in the alleged incident and wife of accused had sustained injuries in the incident but Investigating Officer had suppressed the injuries---Prosecution case was that there was exchange of fires from both sides with sophisticated weapons in which only one Police Official of the police party received firearm injury on his non-vital part of the body---Facts and circumstances suggested that ingredients of S. 324, P.P.C. and S. 7 Anti-Terrorism Act, 1997 were yet to be determined at trial---Prima facie, case against the accused required further inquiry---Accused was therefore, allowed bail in circumstances.

Dilmurad v. The State 2010 SCMR 1178; Jan Muhammad alias Janan v. The State 2016 PCr.LJ Note 42; Javed v. The State 2016 PCr.LJ Note 54; Muharram v. The State 2012 MLD 599; Shah Faisal v. The State 2011 MLD 1075 and Syed Amanullah Shah v. The State PLD 1996 SC 241 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 353, 392, 337 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6/7---Sindh Arms Act (V of 2013), S. 23-A---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharging of his duty, robbery, shajjah, common intention, act of terrorism, possessing unlicensed arms---Bail, grant of---Principle---When reasonable doubt existed with regard to the participation of accused in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, accused would not be deprived of benefit of bail.

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

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

----S. 497---Bail---Principle---Observations made in bail order was tentative in nature and Trial Court would not be influenced by such observations in deciding the case on merits.

Mrs. Razia Ali Zaman Khan Patoli for Applicant.

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

2017 M L D 1544

[Sindh]

Before Sadiq Hussain Bhatti, J

MAZHAR ALI NOMANI and another---Appellants

Versus

KARACHI ELECTRIC SUPPLY CORPORATION LTD., through Chairman and 2 others---Respondents

Second Appeal No.25 of 2009, decided on 13th May, 2015.

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

----O. XVII, R. 3---Plaintiff was not vigilant in pursuing the matter even after the suit was restored and the dismissal orders were set aside---Plaintiff seemed to be disinterested in pursuing his case, suit was dismissed---If plaintiff was not coming forward to produce his evidence, court could not secure his presence by coercive measures; the only option left with the Trial Court was to take appropriate step under the law---No error or illegality was pointed out in the impugned orders passed by the courts below---Second appeal was dismissed in circumstances.

(b) Administration of justice---

----Nobody should be condemned unheard.

Mrs. Sarwar Jahan for Appellants.

M. Hassan Akber for Respondents.

2017 M L D 1555

[Sindh]

Before Zulfiqar Ahmed Khan, J

MUHAMMAD SHAFIQUE---Petitioner

Versus

IST. ADDITIONAL DISTRICT JUDGE and another---Respondents

C.P. No.S-305 of 2008, decided on 16th January, 2017.

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

----S. 15---Ejectment of tenant---Personal bona fide need of landlord---Scope---Rent Controller accepted the eviction petition whereas Appellate Court dismissed the same---Validity---Requirement of property by landlord in good faith must be bona fide and not arbitrary or unbridled desire---Once Court was satisfied of the bona fides of need of landlord for the premises or additional premises by applying objective standards, the matter of choosing out of more than one premises available to the landlord was subjective choice---Tenant could not seek details of the business which the landlord wished to commence in the premises---Landlord was not bound to disclose the nature of business to be started in the demised premises to seek ejectment of tenant on the ground of personal bonafide need---Proof of having experience in the trade or business by the landlord was not necessary to prove bona fides of personal need of the premises---Impugned order passed by the Appellate Court was based on incorrect reading of facts which was set aside---Findings recorded by the Rent Controller were maintained---Constitutional petition was allowed in circumstances.

1993 MLD 469; 2000 SCMR 1613 and 2000 CLC 1708 ref.

1988 CLC 1343 and 1988 CLC 1793 disinguished.

Mushtaq Ahmed and others v. Tahir Adam and others 2015 YLR 308 and Shahid Mehmood v. Muhammad Ismail 2008 CLC 87 rel.

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

----S. 15---'Bona fide'---Meaning.

Blacks' Law Dictionary and Chambers 20th Century Dictionary rel.

Javed Ahmed Rajput along with Abdul Hameed Thaheem for Petitioners.

Khalid Daudpota for Respondent No.2.

2017 M L D 1576

[Sindh]

Before Ahmed Ali M. Sheikh and Omar Sial, JJ

Mst. ROZINA BEGUM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 483 of 2011, decided on 24th January, 2017.

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

----Ss. 6, 9(c) & 21---Possession of narcotics---Appreciation of evidence---Arrest of accused in violation of S. 21, Control of Narcotic Substances Act, 1997---Allegation against accused was that 30-kilograms charas was recovered from her suitcases---Accused contended that officer who arrested was of the rank of Assistant Sub-Inspector in violation of S. 21 of Control of Narcotic Substances Act, 1997---Record showed that Assistant Sub-Inspector arrested the accused and taken the alleged charas into his custody---Provisions of S. 21 were not applicable when an accused was apprehended by the police during their normal duties---Provisions of S. 21 were directory in nature and non-compliance would not make the trial or conviction bad in the eyes of law---Appeal was partly allowed, conviction of accused was maintained but her sentence was reduced from life imprisonment to rigorous imprisonment for five years and six months.

State v. Abdali Shah 2009 SCMR 291 and Zafar v. The State 2008 SCMR 1254 rel.

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

----Ss. 6 & 9(c)---Possession of narcotics---Appreciation of evidence---Recovery of charas---Sentence---Humanitarian grounds---Admittedly accused was a woman and it was alleged that she was not expected to be involved in the business of drug or had the strength to carry two suitcases---Scope---Normally drug peddlers had adopted obnoxious device by engaging womenfolk and the children and through them, crimes were being committed and ultimately mercy was sought against such accused on humanitarian grounds---Adequate punishment, instead of showing sympathy on the ground that accused was woman or child, would be awarded to curb such menace otherwise the actual accused involved in such heinous crime, which was against the society, would be encouraged and carriers would be freely available to promote the crime with the hope that after spending small period in the prison, they would be set at liberty despite of committing heinous crime of drug trafficking---Appeal was partly allowed, conviction of accused was maintained but her sentence was reduced from life imprisonment to rigorous imprisonment for five years and six months.

Surraya Bibi v. The State 2008 SCMR 825 rel.

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

----Ss. 6 & 9 (c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic substance---Appreciation of evidence---Police officials as sole recovery witnesses, competency of---Principles---Prosecution case was that 30-kilograms charas was recovered from the suitcases of accused---Prosecution witnesses were police officials---Defence had alleged that no railway employee or private witness was associated by the police---Validity---Section 25 of Control of Narcotic Substances Act, 1997 had excluded the applicability of S.103, Cr.P.C. in narcotic cases---Appeal was partly allowed, conviction of accused was maintained but her sentence was reduced from life imprisonment to rigorous imprisonment for five years and six months.

Abdul Rasheed v. The State 2009 SCMR 306 and Tariq Mehmood v. The State PLD 2009 SC 39 rel.

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

----Ss. 9(c) & 29---Qanun-e-Shahadat (10 of 1984), Art. 122---Possession of narcotics---Appreciation of evidence---Burden of proof---Defence had alleged that Trial Court did not take into consideration that mens rea accompanied the actus reus to make a person liable for offence---Validity---Allegation against the accused was that she was in possession of 30-kilograms of charas---If narcotic substance was recovered from the possession of accused, presumption would be that accused had committed the offence unless and until the contrary was proved---In the present case, prosecution had proved through evidence that accused was apprehended red handed while in possession of two suitcases with contraband substance in the same---Samples sent to the Chemical Examiner were treated as charas---Accused had taken the defence that because she did not satisfy the illegal demands of the policemen, she had been implicated in the case---No enmity was alleged against prosecution witnesses and there was no possibility for false implication without having any ulterior motive, which though alleged by the accused remained disproved in trial---Prosecution witnesses were not confronted with question regarding the allegation of illegal gratification---Prosecution, in circumstances, discharged the onus accordingly---Accused failed to rebut the presumption, against her under S.29, Control of Narcotic Substances Act, 1997---Circumstances established that prosecution proved its case against the accused persons beyond a reasonable doubt---Appeal was partly allowed, conviction of accused was maintained but her sentence was reduced from life imprisonment to rigorous imprisonment for five years and six months.

Muhammad Noor v. The State 2010 SCMR 927 and Mohammad Imran v. The State 2011 SCMR 1954 rel.

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

----Ss. 6 & 9(c)---Possession of narcotics---Appreciation of evidence---Sentence, reduction in---Prosecution case was that a total of 30 packets of charas, each weighing one kilogram (gross) were recovered and seized from the accused---Two out of the thirty packets were of a black/cream color whereas the remaining twenty eight packets were of a red/brown colour---One out of the two black/cream coloured packets and two out of the twenty eight red/brown packets were sealed and sent to the Chemical Examiner for analysis---Circumstances of the case showed that sampling had not been done as per requirement of law as the samples of charas sent for chemical analysis were not representative samples of the entire seizure---Accused was therefore, liable for three kilograms charas and not 30-kilograms as was the prosecution case---Appeal was partly allowed, conviction of accused was maintained but her sentence was reduced from life imprisonment to rigorous imprisonment for five years and six months.

Ameer Zeb v. The State PLD 2012 SC 380; Abdul Sattar v. The State 2016 SCMR 909; Abdul Hameed v. The State 2016 SCMR 707 and Shaukat Ali alias Billa v. The State 2015 SCMR 308 rel.

Muhammad Iqbal Baloch for Appellant.

Saeed A. Memon, Standing Counsel.

2017 M L D 1592

[Sindh]

Before Sajjad Ali Shah and Muhammad Junaid Ghaffar, JJ

MUHAMMAD SALEEM and others---Appellants

Versus

SALEEM AHMED MIRZA and others---Respondents

H.C.As. Nos.149 of 2014 and 207 of 2003, decided on 15th December, 2015.

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

----Ss.8 & 42---Transfer of Property Act (IV of 1882), S.53A---Suit for possession of immovable property and declaration---Part performance of agreement---Plaintiff claimed to be owner of suit property and sought recovery of possession---Defendants contended that they were owners in possession of suit property on the basis of part performance of agreement to sell executed by the original owner in their favour---Single Judge of High Court decreed the suit in favour of plaintiff---Validity---Defendants did not make any effort, either for seeking specific performance of agreement in their favour or in any other manner for more than 20 years; it was only after plaintiff entered into an agreement to purchase suit property on 12-9-1993, and advertised it through public notice dated 15-9-1993, when defendants came into motion and asserted their ownership on the basis of agreement entered into with deceased owner and alleged possession with them---Agreement dated 16-5-1973, also included an arbitration clause as alleged, however the arbitration proceedings were initiated after publication of notice in newspaper on behalf of plaintiff and thereafter award dated 22-10-1993 was passed---Division Bench of High Court declined to interfere in the judgment and decree passed by Single Judge of High Court---Intra Court Appeal was dismissed in circumstances.

Syed Waqar Haider Zaidi v. Mst. Alam Ara Begum through legal heirs and others PLD 2015 Sindh 472; Echo West International (Pvt.) Limited v. Pakland Cement Ltd. 2008 CLD 85; Muhammad Anwar v. Syed Saleemuddin and 2 others 2009 YLR 17; Mir Akbar v. Sher Bahadur and others 2006 SCMR 315; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Muhammad Shafi v. Muhammad Hussain 2001 SCMR 827 and Javaid Iqbal v. Abdul Aziz and another PLD 2006 SC 66 ref.

(b) Law Reforms Ordinance (XII of 1972)---

----S.3---Limitation Act (IX of 1908), S. 5---Intra court appeal---Condonation of delay---Principle---Date of knowledge---Proof---After 3 months of filing of appeal, appellants filed application under S.5 of Limitation Act, 1908, for condonation of delay---Affidavit in support of such application did not reflect nor it gave proper date on which it had come to the knowledge of appellants that the matter was finally decided and as to on which date it had come to appellants' knowledge through search on website of High Court, that judgment was announced---Entire affidavit was silent with regard to explanation of delay of each day---Not less than nine advocates were engaged by appellants before the Single Judge of High Court, whereas none appeared on their behalf---Effect---Merely stating in affidavit that one advocate informed them about proceedings in question could not shift burden, nor the onus was discharged in such a casual manner---Division Bench of High Court declined to condone the delay---Intra Court Appeal was dismissed in circumstances.

Ayan Mustafa Memon and Ahmed Ali Hussain for Appellants.

Abdul Qadir Khan for Respondents (in H.C.A. No.207 of 2003).

Arshad Hussain, Abdul Qadir and Muhammad Ehsan (in H.C.A. No.149 of 2014).

2017 M L D 1616

[Sindh]

Before Muhammad Ali Mazhar, J

HAJJ ORGANIZERS ASSOCIATION OF PAKISTAN through Authorized Officer and 9 others---Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Religious Affairs and Interfaith Harmony and 6 others---Defendants

Suit No.866 and C.M.As. Nos. 5438, 7874, 8042, 8021, 8386, 8387, 7281, 6605 of 2017, decided on 16th June, 2017.

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

----O. I, R. 10---Necessary and proper party---Scope---Only those persons are necessary and proper parties to proceedings, whose interests are challenged in suit and without their presence suit cannot be decided on merits---If a dispute in suit can be effectually adjudicated in absence of a person, such person is not necessary party to be impleaded in suit---Any person who has any distant or indirect relationship or connection with either plaintiff or defendant, such person should be joined as party to proceedings.

Jiand Rai v. Abid Esbhani 2010 YLR 1666 rel.

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

----O. XXXIX, Rr. 1 & 2--- Hajj Quota, reduction in--- Interim injunction, grant of---Promissory estoppel---Applicability---Scope---Hajj group organizations (HGO)---Vested right---Scope---Plaintiffs were different HGOs who were aggrieved of reduction in quota of Hajj allocated to them by Government of Pakistan---Reduction in quota was made on account of expansion work by Government of Saudi Arabia and same compelled to reduce quota of HOAP members from 50% to 40%---Validity---Hajj quota was granted to Pakistan and not to any individual or HGOs so that they could dictate their terms to Government within realm and sphere of policy making domain---Government of Pakistan had discernably sovereign and independent right to frame Au Fait, equitable and evenhanded Hajj policy for utilization of quota fair and square amongst citizens of Pakistan---Plaintiffs could not claim any vested rights that their 50% quota could not be reduced nor any case of promissory estoppel was made out on basis of Memoranda of Understanding---Plaintiffs failed to make out any prima facie case nor balance of convenience in their favour and there was no question of irreparable injury arising to them---High Court declined to interfere with the quota fixed by the authorities---Application was dismissed in circumstances.

Dossani Travels (Pvt.) Ltd. v. Travels Shop (Pvt.) Ltd. PLD 2014 SC 1; Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and others PLD 1969 SC 599; Messrs M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan 1998 SCMR 1404; Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCMR 916; Aman Ullah Khan and others v. The Federal Government of Pakistan PLD 1990 SC 1092; Federation of Pakistan v. Ammar Textile Mills (Pvt.) Limited 2002 SCMR 510; Mumtaz Ali Bohio v. Federal Public Service Commission 2002 SCMR 772; Al-Samrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917; Jiand Rai v. Abid Esbhani 2010 YLR 1666; Muhammad Arif Idrees and others v. Sohail Aamir and others Criminal Original Petition No.59 of 2015 and Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642 distinguished.

(c) Judicial review---

----Administrative action---Scope---In absence of some unrrebuttable material on record regarding malafides, court should not annul order of executive authority which otherwise does not reflect any illegality or jurisdictional defect.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction, grant of---Principles---Injunction is an equitable relief based on well-known equitable principles---Relief being wholly equitable in nature, party invoking jurisdiction has to show that he himself was not at fault---Phrase "prima facie case" in its plain language signifies a triable case where some substantial question is to be investigated or some serious questions are to be tried---Said phrase was not to be confused with "prima facie title" before granting injunction---Court is bound to consider probability of plaintiff succeeding in suit---All presumptions and ambiguities are taken against party seeking temporary injunction---Balance of convenience and inconvenience being in favour of defendant i.e., greater damage would arise to defendant by granting injunction in the event of its turning out afterwards to have been wrongly granted, than to plaintiff from withholding it, in event of legal right proving to be in his favour, injunction may not be granted---Parties seeking aid of court by way of injunction must as a rule satisfy the court that interference is necessary to protect from species of injury which court calls irreparable before legal right can be established in trial.

Al-Tamash Medical Society v. Dr. Anwar Ye Bin Ju and others 2017 MLD 785 ref.

Abid Shahid Zuberi, Ayan Mustafa Memon, Farhan Shah and M.Arif Ansari for Plaintiffs.

Salman Talibuddin, Additional Attorney General for Pakistan.

Sohail Mehmood, D.A.G.

Abdul Wasey Khan Kakar, D.A.G.

Abdul Qadir Leghari, Assistant Attorney General.

Shaikh Jehangir Ishtiaq, and M.Fazl-e-Rabi Shaikh for Defendant No.4.

Syed Imtiaz Ali Shah, Deputy Director (Hajj), Ministry of Religious Affairs, Government of Pakistan, Karachi is also present.

Javed Yousuf Siddiqui for Intervenors (C.M.A. No.7874/2017).

Kumail Shirazi for Intervenors (C.M.As. Nos.8386 and 8387/2017).

Irfan Aziz for Intervenor (CMA No.8021/2017) along with Intervenor Abu Bakar.

Hasan Rashid Qamar for the Intervenors (C.M.As. Nos.6605 and 8042/2017).

Muhammad Bashir Intervenor in person (C.M.A. No.7281/2017)

2017 M L D 1662

[Sindh]

Before Zulfiqar Ahmad Khan, J

Late Mirza MASOOD ALI WARSI through L.Rs.---Petitioner

Versus

Mst. BALI BAI and 5 others---Respondents

R.A. No.89 of 2008, decided on 3rd August, 2016.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Concurrent findings of facts by two Courts below---Abuse of process of law---Plaintiffs claimed to be owners of suit property on the basis of agreement to sell---Suit and appeal filed by plaintiffs were dismissed by Trial Court and Lower Appellate Court respectively---Validity--- Plaintiff had nothing new to offer except the old story of contract which the Courts had already declared as a false and fabricated document---Plaintiffs purposefully and methodologically and with near surgical precision abused process of law time and again for the sole purpose of enjoying property in question without paying a single penny for one reason or the other---Plaintiffs in their last effort relied on one forged and fabricated document aimed to keep away legal heirs of deceased defendant from their legitimate and constitutional right over suit property---Equity, justice and good conscience demanded that such act of plaintiffs was to be dealt with iron hands once for all---High Court imposed exemplary special costs on plaintiffs in the sum of Rs.2 million and directed to recover all rent that ought to have been paid by plaintiffs from year 1968 till date at the value of applicable price of gold in that year---High Court declined to interfere in concurrent findings of facts by two Courts below as the same were well reasoned and had fully covered all aspects of controversy and issues involved---Revision was dismissed in circumstances.

S. Ansar Hussain for Petitioners.

Mohammad Ali Jan along with Muhammad Siddique Arif, Honorary Secretary, Society for Respondent No.5.

M. Zahid Marghoob for Respondent No.6.

2017 M L D 1699

[Sindh]

Before Fahim Ahmed Siddiqui, J

AMANULLAH---Appellant

Versus

INAMULLAH and 5 others---Respondents

IInd Appeal No.72 of 2014, decided on 20th December, 2016.

Registration Act (XVI of 1908)---

----S. 47---Registered document---Relinquishment deed, rebuttal of---Defendants relied upon a registered 'relinquishment deed' in their favour and plaintiff could not rebut the same---Lower Appellate Court dismissed the suit filed by plaintiff---Validity---Relinquishment deed was a registered document and it had become public document with presumption of correctness and reliability attached to it---Mere denial on the part of plaintiff in respect of registered document was not sufficient but he was required to prove his case with strong and non-rebuttable evidence, as onus to prove of a registered document never shifted to defendant---Plaintiff could not discharge his onus in denial of 'relinquishment deed' before Trial Court, as execution of such document was established before Trial Court---Lower Appellate Court rightly dismissed the suit of plaintiff and the same did not need interference by High Court---Second appeal was dismissed in circumstances.

Abdul Hakeem v. Abdul Majid and another PLD 1957 (W.P.) Kar. 379 ref.

Muhammad Sarwar Khan and others v. Mst. Rukhsana Zohra Bibi and others 2016 CLC 20 rel.

Talib Shah, Attorney of Appellant.

Ahmer Javed Alam for Respondents. Nos. 1 and 2.

2017 M L D 1727

[Sindh]

Before Salahuddin Panhwar, J

ZAFAR MAHMOOD KHAN---Plaintiff

Versus

MUHAMMAD ALI KHAN and another---Respondents

Suit No.780 of 2001, decided on 13th May, 2015.

Civil Procedure Code (V of 1908)---

----O. XX, R. 18---Specific Relief Act (I of 1877), Ss. 8, 9 & 42---Suit for declaration, partition and permanent injunction---Partition and separate possession---Principles---Preliminary decree---Requirement---Plaintiff filed suit claiming that suit property was owned by parties being legal heirs of deceased, and sought partition and separate possession thereof---Defendants, brother and step mother of plaintiff, took plea that suit property had actually been purchased by father of plaintiff but the same had been in name of plaintiff and defendants, whereas plaintiff was only benamidar---Plaintiff filed application seeking appointment of Nazir of the Court for resolution of dispute as to use of suit property---Validity---As per record, plaintiff and defendants were joint owners and co-sharers of suit property---Order XX, R. 18, C.P.C. provided mechanism for partition and separate possession of movable and immovable property---Order XX, R. 18(2), C.P.C. provided vast jurisdiction to court to record preliminary decree where partition or separation could not be conveniently made without further inquiry---Remedy for specific partition and possession in specific immovable or movable property was an exception to other reliefs, controlled and declared by Specific Relief Act, 1877---Where legal status of parties as sharers or joint owners was not disputed, course provided under O. XX, R. 18, C.P.C. should have been adopted---Predecessor of parties had gifted suit property equally to the parties, and their titles, being under same gift, could not be claimed to be Benami by any one of them---Party claiming any right on basis of independent title or character might file separate suit, but on that plea, process of partition would not stop, where prima facie legal status of parties as co-sharers and that of suit property was evident---High court passing preliminary decree appointed Nazir of court to inspect suit property and submit his report as to feasibility of partition thereof---Suit along with civil miscellaneous application was disposed off accordingly.

Sarakhi Abdul Rahiman Trangan and another v. Muhaldin Pathaummal Bivi and another AIR 1917 Madras 244; Habib-ur-Rehman v. Abdul Rahman and 3 others 1987 CLC 195; Hamayun Kabeer v. Qaiser Nazir 2006 MLD 1496; Moinuddin Paracha v. Sirajuddin Paracha 1994 CLC 247; Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others PLD 1994 SC 462; Jan Muhammad and another v. Abdur Rashid and 5 others 1993 SCMR 1463; Samar Gul v. Central Govt. and others PLD 1986 SC 35; Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others PLD 1994 SC 462; Haji v. Khuda Yar PLD 1987 SC 453; Muhammad Anwar v. Muhammad Ahmed 2007 SCMR 1961; Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 and Abdul Rasheed v. Maqbool Ahmed 2011 SCMR 320 ref.

Qazi Hifz-ur-Rehman for Plaintiff.

Zeeshan Abdullah for Defendant No.1.

2017 M L D 1796

[Sindh]

Before Nazar Akbar, J

Shaikh MUHAMMAD AYUB---Plaintiff

Versus

Mst. NASIRA MUSHTAQ and 5 others---Respondents

Suit No.233 and C.M.A. No.2011 of 2015, decided on 27th February, 2015.

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

----S. 42---Suit for declaration---Plaintiff seeking declaration of ownership rights in the suit property on the basis of sale agreement---Plaintiff had no lawful title of suit property and there was likelihood of raising construction or creating third party interest by him---Plaintiff was restrained from creating any third party interest in the suit property and /or raising any construction---Nazir of the court was directed to inspect the suit property and take photograph and place on record so that the restraining order passed herein might not be breached by the plaintiff.

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

----S. 2---"Agreement"---Scope---Agreement of sale did not confer any right, title and interest in the immovable property.

Plaintiff present in person.

Ikram Siddiqui and Sohail Ahmed for Defendant No.1.

2017 M L D 1822

[Sindh]

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

ASSOCIATED CONSTRUCTORS LTD.---Petitioner

Versus

MALIR DEVELOPMENT AUTHORITY and another---Respondents

C.P. No.D-597 of 2011, decided on 29th January, 2015.

Malir Development Authority Act (XI of 1994)---

----S. 24---Constitution of Pakistan, Art. 199---Constitutional petition---Approval of layout plan by the Development Authority---Scope---Development Authority had decided Rs. 220/- per square yard to be the outer development charges and petitioner had to pay the same---Petitioner was ready to pay any lawful dues and/or comply with any lawful direction for approval of layout plan---Petitioner would pay the outer development charges and Development Authority should approve the layout plan by charging at the rate of Rs. 220/- per square yard---Development Authority was directed to approve layout plan within specified time on receipt of outer development charges.

Agha Faisal for Petitioner.

Manzoor Ahmed for Respondent No.1.

Nemo for Respondent No.2.

2017 M L D 1835

[Sindh]

Before Munib Akhtar and Abdul Maalik Gaddi, JJ

PAKISTAN AIRLINE PILOTS ASSOCIATION through Honorary General Secretary---Appellant

Versus

MUHAMMAD SUHAIL BALUCH and another---Respondents

High Court Appeal No.20 and C.M.As. Nos. 511, 312 of 2016, decided on 18th April, 2016.

(a) Bye-laws/Constitution of Pakistan Airline Pilots' Association---

----Election for the seat of President of Pakistan Airline Pilots Association---Nomination papers, rejection of---Words "fall vacant" "coming year" and "next tenure"---Scope---Nomination papers of the candidate were rejected due to non-availability of his two years tenure of remaining in service---Validity---No express embargo existed that an active pilot having less period of outstanding service could not contest the election for the seat of President---Period of service could even be less than the maximum period of two years to contest the election---Election Committee had not acted in accordance with the Byelaws/Constitution of the Association while rejecting the nomination papers of the candidate which was an arbitrary exercise of power---Decision of Election Committee was not sustainable in law---Candidate was entitled to contest the election for the seat of President of the Association---Candidate who was reaching the age of superannuation, he should leave the seat of President upon attaining the age of superannuation and Election Committee should call for election for the vacant seat as per law---No illegality in the impugned judgment had been pointed out---Appeal was dismissed in circumstances.

(b) Administration of justice---

---When a thing was to be done in a particular manner then it must be done in that way and not otherwise.

Tehsil Nazim TMA Okara v. Abbas Ali and 2 others 2010 SCMR 1437 rel.

(c) Constitution of Pakistan---

----Art. 4---Rule of law---Scope---Every person should follow the law and should not exceed the limit of law for any reason whatsoever.

Mohammad Ali Lakhani for Appellant.

M. Najeeb Jamali for Respondent No.1.

Provincial Assistant Registrar for Respondent No.2.

2017 M L D 1857

[Sindh]

Before Nazar Akbar, J

MUHAMMAD MUSLIM---Petitioner

Versus

AZEEM AHMED and 3 others---Respondents

C.P. No.S-284 of 2016, decided on 18th April, 2017.

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

----Ss. 15 & 18---Civil Procedure Code (V of 1908), O. I, R. 10 & S.12(2)---Ejectment of tenant---Execution petition---Conversion of application under O. I, R. 10, C.P.C. to an application under S. 12(2), C.P.C.---Scope---Execution petition was moved wherein an application for impleadment was filed which was converted into application under S.12(2), C.P.C. by the Rent Controller but Appellate Court set aside the said order---Validity---If tenant after entering into rent proceedings had chosen not to contest the same then order of his eviction could not be said to have been obtained fraudulently---Once tenant entered appearance in the proceedings and filed written statement then disposal of the case was on merits---Application under O. I, R. 10, C.P.C. could not be converted into an application under S. 12(2), C.P.C.---Ingredients of S. 12(2), C.P.C. were missing from the contents of application under O.I, R. 10, C.P.C.---Applicant had not alleged fraud and misrepresentation or that Rent Controller had no jurisdiction to entertain the case---Dispute and allegations levelled by the applicant were in the nature of civil matter which were outside the jurisdiction of Rent Controller---Applicant had prayed to be impleaded as intervener in the execution proceedings---Petitioner had not contended that eviction order was without jurisdiction or on account of any misrepresentation---Ownership of tenement could not be frustrated through a collateral proceedings pending before a civil Court---Applicant was neither landlord nor tenant in the demised premises from the date of execution of registered sale deed---Title of tenement stood transferred in favour of landlord by operation of law---Executing Court might evict the tenant in execution of its order passed in rent case---Constitutional petition was dismissed in circumstances.

PLD 1987 Kar. 86 and 1992 SCMR 1908 ref.

Muhammad Sadiq Hidayatullah for Petitioner.

Asghar Bungash for Respondent No.1.

Nemo for Respondent No.2.

Nemo for Respondent No.3.

2017 M L D 1867

[Sindh]

Before Munib Akhtar and Yousuf Ali Sayeed, JJ

MUHAMMAD SULEMAN and others---Appellants

Versus

MUHAMMAD AHSAN and others---Respondents

H.C.A. No.138 of 2017, decided on 27th March, 2017.

Civil Procedure Code (V of 1908)---

----O. XX, R. 13---Administration suit---Scope---Administration suit was the appropriate forum for determination of all matters between the heirs including an issue as to whether or not the deceased had title to any property being claimed by an heir and whether such property formed part of the divisible estate---Appellants had not availed the remedies that were open to them at the appropriate stage and had allowed the proceedings in the administration suit to advance to the conclusion---Impugned order did not warrant any interference---Appeal was dismissed in circumstances.

Syed Abdul Waheed for Appellants.

Respondent in person.

2017 M L D 1878

[Sindh (Hyderabad Bench)]

Before Nazar Akbar, J

GUL---Petitioner

Versus

JUMO and 5 others---Respondents

R.A. No.50 of 1998, decided on 7th October, 2015.

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

----Ss. 42 & 52----Limitation Act (IX of 1908), Art. 14---Civil Procedure Code (V of 1908), O. XLI, R. 30 & S. 96---Suit for declaration and permanent injunction---Maintainability and limitation---Determination---Appeal from original decree---Judgment in appeal---Plaintiffs filed present suit claiming that suit land originally belonged to their grandfather and they, being one of the legal heirs, were entitled to be declared as owners of suit land to the extent of their shares and to get their name entered in revenue record accordingly---Trial Court dismissed the suit on grounds of limitation and same being hit by proviso to S. 42 of Specific Relief Act, 1877; whereas, appellate court decreed the same as prayed for---Validity---Order of appellate court was devoid of any reasoning and support of evidence led by parties---Appellate court had not even framed points for determination for deciding appeal and failed to examine order of Deputy Commissioner and appellate authority under Land Revenue Code, 1894 and report of the Commissioner---Appellate court, while setting aside findings of Trial Court, did not give any reasoning on the point of limitation---While reversing the findings of court below, appellate court had to give reasons for disagreeing with findings of lower court and also to advance reasons for its opinion in support of reversing the findings---Plaintiffs had not prayed for possession from defendant and only sought declaration of ownership as legal heirs and declaration as to cancellation of mutation---Appellate court failed to appreciate that predecessor of plaintiff had appeared before Revenue Authorities for effecting mutation in respect of suit property in favour of defendant---Trial court, on basis of evidence on issue regarding possession of suit property and following mandatory proviso to S.42 of Specific Relief Act, 1877, had rightly held the suit not maintainable---Appellate court's judgment was silent on issue of maintainability of suit with reference to S. 42 of Specific Relief Act, 1877---High Court, setting aside judgment and decree of appellate court, restored that of trial court---Revision petition was allowed in circumstances.

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

----O. XLI, R. 30 & S. 96---Appeal from original decree---Judgment in appeal---Duty of appellate court---Whenever appellate court is to reverse findings of court below, it has to give reasons for disagreeing with findings of lower court and also to advance reasons for its opinion in support of reversing the findings.

Bahadur Ali Baloch called absent for Applicant.

Hakim Ali Siddiqi for Respondent No.1.

Allah Bachayo Soomro Addl. A.G. for Respondents Nos. 3 to 5.

2017 M L D 1902

[Sindh (Hyderabad Bench)]

Before Muhammad Faisal Kamal Alam, J

Mst. SHAKEELA---Applicant

Versus

MUHAMMAD SALEEM and 8 others---Respondents

R.A. No.213 of 2014, decided on 18th November, 2016.

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

----S. 4---Limitation Act (IX of 1908), S.3---Suit for partition of immovable property by legal heirs---Limitation---Limitation does not run in such matter as cause of action in favour of a legatee continues if he/she continues to be deprived of his/her share in inheritance.

(b) Possession---

----Joint property---Constructive possession---Every legal heir is deemed to be in constructive possession in respect of an inheritable estate.

(c) Sindh Katchi Abadis Act (II of 1987)---

----Ss. 38 & 39---Civil Procedure Code (V of 1908), O.VII, R.11---Plaint, rejection of---Concurrent findings of fact by two courts below---Plaintiff was one of the legal heirs of deceased owner of suit property, who sought her share in the legacy of her father---Trial Court rejected the plaint and the order was maintained by Lower Appellate Court---Validity---Barring provisions of Ss.38 & 39 of Sindh Katchi Abadis Act, 1987, could not be invoked by courts below in order to disqualify plaintiff from claiming her share in inheritance, particularly after filing of written statement by other family members, who had not disputed her status---Such barring provisions of Ss.38 & 39 of Sindh Katchi Abadis Act, 1987 provided a protection to official of Katchi Abadis Authorities in respect of their bona fide acts and functions---Such was standard statutory protection which was invariably existed in every such type of statute---High Court set aside concurrent findings of two Courts below and case was remanded to Trial Court for decision on merits---Revision was allowed in circumstances.

2011 CLC 884; PLD 2002 Kar. 408; PLD 2004 Kar. 269; 2012 CLC 1445; 2009 YLR 1827; 2008 CLC 1409; 2007 SCMR 74; 2009 SCMR 1079 and 2003 CLC 1156 ref.

Aqeel Ahmed Siddiqui for Applicant.

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

2017 M L D 1917

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Rasheed Ahmed Soomro, JJ

ASIF---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.D-128 of 2016, decided on 22nd March, 2017.

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

----S. 9(c)---Possession of narcotic drugs---Appreciation of evidence---Complainant and mashir (witness) deposed that sixty seven rods of charas (narcotic) were recovered from the possession of accused---Investigating Officer deposed that three pieces of charas and sixty six rods of charas were handed over to him by the complainant---Complainant deposed that they returned to specific police station and got registered FIR of the case against accused while mashir deposed that they returned to different police station and FIR was lodged there---Complainant in cross-examination deposed that they reached at CIA Centre on the relevant date at 8:00 a.m. and so also his staff came there while mashir in cross examination deposed that on relevant date of incident he reached at CIA Centre for duty at 2100 hours (night)---Complainant and the mashir were unable to tell the way they had adopted to reach at the place of occurrence---Complainant denied the suggestion that present accused was not known to him prior to the present case while mashir deposed that present accused was not known to them previously except in the present case---As per prosecution case three big pieces and sixty seven rods of charas were allegedly recovered from the accused while as per report of the Chemical Examiner three slabs and sixty seven rods of charas were sent to him for chemical examination---Such contradictions had destroyed the intrinsic value of the prosecution case---Arrest and recovery in the manner as alleged by the prosecution had become totally doubtful---Prosecution had not been able to prove its case beyond any reasonable shadow of doubt, appeal was allowed accordingly.

(b) Criminal trial---

----Benefit of doubt---For giving benefit of doubt to accused it was not necessary that there would be many circumstances creating doubt---One simple circumstance creating reasonable doubt would entitle accused to such benefit not as a matter of grace and concession but as a matter of right.

Tarique Pervez v. The State 1995 SCMR 1345 rel.

Ayaz Hussain Tunio for Appellant.

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

2017 M L D 1975

[Sindh]

Before Syed Hasan Azhar Rizvi and Khadim Hussain M. Shaikh, JJ

Mian SHAFIQUE AHMED and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Election Commission of Pakistan Islamabad and 5 others---Respondents

C.P. No.D-3473 and C.M.A. No.9125 of 2016, decided on 23rd August, 2016.

Sindh Local Councils (Election) Rules, 2015---

----R. 18---Constitution of Pakistan, Art.199---Election dispute---Nomination papers rejection of---Candidate, a proclaimed offender in criminal case---Petitioner was aggrieved of order whereby his nomination papers were rejected by the authorities---Validity---Despite specific objection regarding his being proclaimed offender in a case involving attack on courts, judges and advocates having been raised before Returning Officer, petitioner did not join proceedings before Anti-Terrorism Court---Petitioner, after rejection of nomination papers, obtained interim pre-arrest bail from High Court i.e., two days after rejection of nomination papers---No illegality or infirmity or any jurisdictional defect existed in the order by Authorities (rejecting nomination papers) attracting exercise of extraordinary jurisdiction by High Court under provisions of Art.199 of the Constitution---Constitutional Petition was dismissed in circumstances.

Muhammad Ibrahim Qasmi v. Election Commission of Pakistan and 15 others PLD 2008 Pesh. 84; Muhammad Ismail v. Provincial Election Commission, through DEO District N/Feroze 2016 CLC 786 Muhammad Afzal Khan Dhandla and 3 others v. Election Tribunal and others PLD 2010 SC 959; Hussain Bux and another v. District and Sessions Judge/District Returning Officer and Appellate Authority, Sanghar and 3 others 2002 CLC 281; Ghulam Mustafa Wasan v. Abdul Salam Thaheem and 13 others PLD 2008 Kar. 60 and re-Kareem Bux v. Murad Bux and others C.P. No.D-6386 of 2015 ref.

Sarfraz Ahmed Akhund and Gulzar Ali Malano for Petitioners.

Jamshed Ahmed Faiz for Respondent No.6.

Liaquat Ali Shar, Additional Advocate General.

Yousuf Ali, Standing Counsel.

2017 M L D 1993

[Sindh]

Before Abdul Maalik Gaddi, J

NADEEM AKHTAR BUTT---Applicant

Versus

The VITH JUDICIAL MAGISTRATE MALIR, KARACHI and another---Respondents

Crl. Misc. Application No.184 of 2015, decided on 20th August, 2015.

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

----S.173---Investigation Report---Cognizance by court---Principles---Ipsi dixit opinion of Investigating Officer is not binding upon Court---Trial Court can take cognizance of offences even in case of negative report submitted by police that accusation is baseless and no case is made out against the delinquents.

Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 rel.

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

----Ss.173, 249-A, 265-K & 561-A---Cognizance by court---Inherent Jurisdiction of High Court---Grievance of accused was that Trial Court had wrongly taken cognizance in the case though the Investigating Officer submitted his report under S.173, Cr.P.C. in 'C' class---Validity---Case of accused was that no such incident had taken place as alleged in FIR but such fact was denied by prosecution---Words against words existed and factual controversies were floating on the surface of record with regard to facts of the case and the same could not be decided by High Court at such a stage---Trial Court had already taken cognizance of the case, the FIR registration in that case could not be quashed and the fate of the case and accused persons challaned therein was to be determined by Trial Court itself---If after taking cognizance of the case by Trial Court, accused deemed himself to be innocent and falsely implicated and he wished to avoid the rigors of trial, then the law had provided him a remedy under Ss.249-A/295-K, Cr.P.C., to seek his premature acquittal from Trial Court if the charge against him was groundless or there was no probability of his conviction---Remedy was available to accused for rederssal of his grievances by approaching to Trial Court for filing proper application in support of his case---Application was dismissed in circumstances.

Waqar Alam Abasi for Applicant.

Muhammad Iqbal Awan, APG for the State.

2017 M L D 2005

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Muhammad Iqbal Mahar, JJ

TARIQUE AHMED SOLANGI---Petitioner

Versus

PROVINCE OF SINDH through Secretary Education, Government of Sindh, Karachi and 3 others---Respondents

C.P. No.D-1260 of 2013, decided on 8th November, 2016.

(a) Educational institution---

----Medical student---Seeking conversion of admission from self-finance to merit quota---Scope---Petitioner applied for admission in the department of physiotherapy on self-finance basis and on merit quota---University sent letter to the candidate and he paid admission fee of self-finance---Student applied for conversion of his admission from self-finance to merit quota but his request was declined---Validity---University could frame policies for running its affairs but could not act or omit in a manner which was likely to prejudice the 'merit quota'---Mere lapse of time should not be an excuse to 'terminate' a 'right' in name of procedure or policy---Rule of propriety and practice could not operate as a bar for granting a right---Reserved merit quota was not meant for single individual but for the 'District'---Positive efforts must be shown that the 'District' was attempted to give its due---Petitioner had submitted a written request for conversion of his admission while referring to merit-list of his 'District'---Such request could only be declined by giving admission to one higher in rank in merit list and not otherwise---Admission of petitioner on self-finance was ordered to be converted into merit-list reserved for concerned 'District'---Amount deposited on self-finance should be returned back to the student after deducting the requisite fees on merit---Student would be liable to pay future fees on merit basis---High Court observed that in future Universities must come forward with a mechanism that such reserved seat should not go forfeited merely for the reason that one listed at top of merit list lost his interest---Constitutional petition was allowed in circumstances.

Shahista Bibi v. Superintendent, Central Jail Mach PLD 2015 SC 15 rel.

(b) Educational institution---

----University---Role of.

Aamer Raza Ashfaq v. Minhaj Ahmed Khan 2012 SCMR 6 rel.

Khadim Hussain Soomro for Petitioner.

Anwar H. Ansari for Respondent.

Kamaluddin for Respondents Nos. 2 to 4.

2017 M L D 2012

[Sindh (Hyderabad Bench)]

Before Zafar Ahmed Rajput, J

AFTAB AHMED---Petitioner

Versus

DISTRICT JUDGE and 2 others---Respondents

C.P. No. S-707 of 2012, decided on 9th January, 2015.

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

----Ss. 2(F)(J), 15(2)(ii), (vii) & 21---Qanun-e-Shahadat (10 of 1984), Art.115---Constitution of Pakistan, Art.199---Constitutional petition---Default in payment of rent---Bona fide personal need, of landlord---Ejectment application, filed by landlord against tenant on grounds of default in payment of rent and bona fide personal need was accepted by the Rent Controller---Appeal filed by tenant against the order of Rent Controller was dismissed---Validity---Tenant denied relationship of landlord and tenant, claiming that landlord and his brother had sold the shop, in question, to him---Contention of tenant was that the shop was sold to him in the sum of Rs.38,00,000 out of which he had already paid Rs.15,00,000 to the attorney of landlord at the time of execution of sale agreement; and that he was ready to pay balance amount to landlord---Tenant had not denied the fact of his occupation over the shop being tenant, and payment of monthly rent---Tenant had asserted that after entering into a sale transaction with the attorney of the landlord, no relationship of landlord and tenant, existed between landlord and him---Brother of landlord, who was also co-owner of premises in question, filed affidavit-in-evidence, wherein he had stated that alleged agreement of sale, receipt of amount and undertaking, were forged documents, manipulated by the tenant to save himself from ejectment---Tenant could not deny his relationship with landlord on the basis of alleged sale agreement, when execution thereof was denied by the landlord---Till the time, tenant was able to establish his claim for "specific performance" on the basis of alleged sale agreement, landlord would continue to enjoy the status of being owner or landlord of the premises; and the relationship between the parties, till such time, would be regulated by the terms of tenancy---Tenant could not legitimately resist the maintainability of ejectment proceedings pending against him on the ground of execution of alleged sale agreement---Once a person acknowledged himself to be tenant of landlord, principle of "estoppel", would come into play, debarring such tenant to deny the title of his landlord---Plea of agreement of sale by tenant, could not save him from consequences of ejectment orders---Tenant was proved to be defaulter for payment of rent as claimed by the landlord---Landlord had also fully proved that he wanted to settle his son in the shop, as he had sufficient business experience and funds---Issue regarding relationship, default and personal bona fide requirement of landlord had been correctly decided by both the authorities below---In absence of any defect or legal infirmity with regard to conclusions drawn in the impugned orders and ejectment, constitutional petition having no merits, was dismissed, in circumstances---Tenant was directed to vacate the shop in question within 30 days.

Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45 and Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320 ref.

Saeed-ud-Din Siddiqui for Petitioner.

Shamsuddin Memon for Respondent No.3.

2017 M L D 2025

[Sindh (Larkana Bench)]

Before Salahuddin Panhwar, J

MUHAMMAD HASSAN MAHAR---Applicant

Versus

The STATE---Respondent

Crl. Revision Application No.S-44 of 2009, decided on 21st October, 2015.

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

----S.13(e)---Recovery of unlicensed pistol---Appreciation of evidence---Both Trial Magistrate and Appellate Court had convicted accused---Validity---Two competent courts having affirmed the guilt of applicant/accused, applicant had to establish prima facie illegality resulting into injustice---Mashir strengthened the statement of the complainant on all material points---Defence, prima facie, failed to get any material contradiction from said witnesses---Mashir was a private independent person, and accused/applicant had failed to prove any ill-will or enmity of the complainant and Mashir with him---Recovery of pistol from a place at the pointation of accused was proved and was admissible in evidence---No major material contradiction or legal infirmity existed in the prosecution evidence---Judgment by the Trial Court as well as Appellate Court was based upon proper appreciation of evidence and was backed by cogent reasons, which did not warrant any interference---Revision application was dismissed.

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

----Art. 40---Information received from accused, proof of---Disclosure by an arrested accused resulting into discovery of any fact, would fall within meaning of Art.40 of Qanun-e-Shahadat, 1984; and was admissible in evidence---Discovery of fact with reference to Art.40 of Qanun-e-Shahadat, 1984, would require the prosecution to prove information or statement by accused under custody with regard to discovery of some fact and discovery of some fact in result of such information or statement---Before seeking application of Art.40 of Qanun-e-Shahadat, 1984, the prosecution would require to establish co-existence of said two conditions---In absence of information or statement, disclosing discovery of some fact, the discovery of fact alone, would not permit the prosecution to insist for application of Art.40---Such discovery would not become futile for that court alone, but the prosecution would be required to prove the same through ordinary legal modes, i.e. direct or circumstantial evidence.

Askar Jan v. Muhammad Daud 2010 SCMR 1604 rel.

Ghulam Dastagir A. Shahani for Appellant.

Khadim Hussain Khooharo, Deputy Prosecutor General for the State.

2017 M L D 2041

[Sindh (Sukkur Bench)]

Before Shahnawaz Tariq, J

MUZAMIL AHMED---Petitioner

Versus

Mst. MEHNAZ PARVEEN---Respondent

Constitution Petition No.S-2329 of 2014, decided on 1st September, 2015.

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

----S. 25---Custody of minor---Application of petitioner/father for custody of minor was rejected on the ground that the same be filed before Family Court---Contention of petitioner/father was that defendant/mother, after her second marriage had shifted to place 'R' and was residing with her second husband along with the minor, hence, custody of minor be handed over to father---Mother's plea was that she was residing at place 'R', however, minor had been residing with her (mother's) parents at place 'M' and father, only to settle his amount of enmity had filed the application for custody of minor---Validity---Father had not filed any tangible evidence to establish that minor was residing with mother at place 'R' and on mere presumptions, he had invoked territorial jurisdiction of Family Court at place 'R'---Perusal of record reflected that minor had been residing at place 'M' and proceeding for determination of her custody at place 'R', would cause hardship for production of minor from place 'M' before Family Court at place 'R'---Constitutional petition of father being devoid of merits, was dismissed, accordingly.

Zafar Ali Edan Mangi for Petitioner.

Agha Ather Hussain Assistant A.G. for the State.

2017 M L D 2057

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro, J

AAMIR GHOUS HASHMI---Applicant

Versus

NUSRAT HUSSAIN---Respondent

Civil Revision App. No.S-81 of 2014, decided on 3rd March, 2016.

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

---S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 79, 117 & 118---Suit for specific performance of contract---Agreement to sell---Proof---Procedure---Mere tendering agreement to sell in evidence had no evidentiary value and same would not prove its execution---Plaintiff was required to prove execution of agreement to sell by examining its scribe or the marginal witnesses thereof---Plaintiff was bound to prove original transaction along with agreement---Failure of plaintiff to prove the same, judgments and decrees passed by both the courts below were set aside and suit was dismissed with costs---Revision was allowed in circumstances.

1999 CLC 1656; 2001 SCMR 798 and 2011 CLC 164 ref.

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

----Arts. 117 & 118---Burden of proof---Scope---Person who urged the court to give judgment as to any right or liability dependent on the existence of facts which he had asserted must prove the same---When a person was bound to prove the existence of any fact, burden of proof would lie on the said person.

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

----S. 115---Revisional jurisdiction of High Court---Concurrent findings recorded by the courts below could be interfered by the High Court if same would result into injustice or hardship.

Muhammad Arshad S. Pathan for Petitioner.

Naimatullah Soomro for Respondent.

2017 M L D 2074

[Sindh]

Before Abdul Rasool Memon, J

Syed FAHIMUL HASSAN---Petitioner

Versus

Khawaja MOHSIN ALI and 2 others---Respondents

C.P. No.S-256 and M.A. No.1092 of 2014, decided on 8th December, 2014.

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

----Ss. 15 & 16---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Default in payment of rent---Personal bona fide need of landlord---Summary inquiry---Procedure---Tentative rent order, non-compliance of---Striking off defence---Scope---Tenant did not comply with the order of Rent Controller with regard to payment of arrears of rent and his defence was struck off and eviction petition was accepted---Validity---Summary inquiry was conducted by the Rent Controller whereby tenant was called upon to explain as to the alleged default in payment of rent---No foundation had been laid for requiring the Rent Controller to record any evidence before passing of tentative rent order---Rent Controller had placed a condition that disputed portion of rent would not be withdrawn by the landlord---Tenant deposited the rent for the month of August 2013 after delay of three days for which no proper and cogent reason was offered---Tenant had been depositing the rent before the Rent Controller which was nothing but mala fide act just to put the landlord under pressure---No illegality or arbitrariness was found in the impugned order/ judgment---Constitutional petition was dismissed, in circumstances.

Muhammad Nawaz v. Muhammad Hayat 1996 MLD 1895; Dr. Riaz Ahmed v. Sabir Ali Dhojani PLD 1994 Kar. 446; Tabassum Iqbal Sheikh v. District and Sessions Judge and others 2007 CLC 546; Fatima Gul v. Saeed Akhtar PLD 2005 SC 34; M.H. Mussadaq v. Muhammad Zafar Iqbal 2004 SCMR 1453 and Mushtaq Hussain v. Muhammad Shafi 1979 SCMR 496 ref.

Muhammad Nawaz v. Muhammad Hayat 1996 MLD 1895 and Dr. Riaz Ahmed v. Sabir Ali Dhojani PLD 1994 Kar. 446 distinguished.

Tabassum Iqbal Sheikh v. District and Sessions Judge and others 2007 CLC 546 rel.

Javed Ahmed Rajput for Petitioner.

Mrs. Razia Danish and Mrs. Danish Hussain for Respondent No.1.

2017 M L D 2093

[Sindh]

Before Nazar Akbar, J

MUHAMMAD YOUNUS and others---Applicants

Versus

The STATE---Respondent

Cr. B.A. No.1478 of 2015, decided on 18th December, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498----Bail, grant of---Prosecution failed to appear and defend the bail application---Liberty of a man could not be compromised without merit for keeping him in jail merely because all three Special Prosecutors of FIA were on general adjournment---Court could grant interim bail on account of non-preparation of prosecution without touching merit of the case---Accused had been charged with offences which carried punishment of two years imprisonment or fine or both---Bail application was allowed accordingly.

Hassaan Sabir for Applicants.

Muhammad Qasim, Standing Counsel.

I.O. Mansoor Khan present.

2017 M L D 2097

[Sindh]

Before Naimatullah Phulpoto and Aftab Ahmed Gorar, JJ

MOINUDDIN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.5_03 of 2010, Confirmation Case No.1 of 2011 and Criminal Revision Application No.181 of 2010, decided on 27th January, 2016.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), S.342---Qatl-i-amd, attempt to commit qatl-i-amd, common intention--­Recording statement of accused-Appreciation of evidence---All the incriminating pieces of evidence on which Trial Court had placed reliance, were not put to accused at the time of recording their statements, particularly recovery of crifne weapon, ballistic report and motive---Trial Court had committed illegality, which was not curable under law---Each and every material piece of evidence, being relied upon by the prosecution against an accused, must be put to him at the time of recording of his statement under S.342, Cr.P.C.; so as to provide him an opportunity to explain his position in that regard--­Denial of such an opportunity to accused, would defeat the ends of justice---Failure to comply with that said mandatory requirement, would vitiate the trial-Appeal was allowed, impugned judgment passed by the Trial Court, was set aside, and case was remanded to the Trial Court for recording the statement of accused under S.342, Cr.P.C., afresh and then to proceed with the matter in accordance with law.

Muhammad Hassan v. The State Criminal Appeal No.292 of 2009 ref.

A.Q. Halepota for Appellants.

Muhammad Iqbal Awan Assistant Prosecutor General for the State.

2017 M L D 4

[Lahore]

Before Shahid Hameed Dar, J

SOHAIL ASLAM---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.14497-B of 2015, decided on 30th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.376 & 511---Rape, attempt to commit offence punishable for life or for shorter terms---Interim pre-arrest bail, grant of---Accused had committed an offence, which was not only non-bailable, but also not compoundable---Complainant party, including the alleged victim, had forgiven accused and had shown consent not to press against his plea for bail before arrest, rather they joined him in his quest for seeking the said relief---Complainant and his adult daughter were identified by Investigating Officer, before they stated that accused had sought an apology from them before a gathering of the brethren by showing remorse and making pledge, not to turn unethical or immoral again to the victim in future---Alleged victim's father looked satisfied like her daughter to the apology sought after by accused from them---Parties had compounded the offence and decided to make it a peaceful living in future---Parties had themselves voluntarily forgotten and forgiven the crime and entered into an outside court settlement, that could be considered a ground for granting bail to accused in the interest of justice and equity---If the complainant party was no longer willing to prosecute the matter, then it should not be for the court to pressurize them to continue with their hostilities and hatred---Gravity of offence allegedly committed, could validly be determined by the Trial Court after recording evidence of the parties at the trial, but fruit of compromise could not be declined---High Court observed that let the parties' will to compound the offence be respected and given an assent to, notwithstanding the nature of allegation, being it compoundable or otherwise---Ad interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Naseeb Masih for Petitioner.

Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab for the State with Muhammad Ikram-ul-Haq, ASI.

2017 M L D 14

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mahmood Abbasi, JJ

MUHAMMAD ASLAM---Appellant

Versus

The STATE---Respondent

Crl. Appeal No.22-J and Murder Reference No.24 of 2011, heard on 12th February, 2016.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Incident was day time occurrence, and matter was reported to the Police without any deliberation or conscious delay---Complainant and prosecution witness, with sufficient, satisfactory and reliable evidence had established that accused and his co-accused (since acquitted) armed with respective weapons, committed murder of the deceased---Both, the complainant and prosecution witness, who were natural witnesses, their testimony was further strengthened and fully supported by other prosecution witness---Testimony of said prosecution witnesses had not been shattered despite lengthy cross-examination---Mere relationship of the complainant with the deceased, would not by itself diminish the evidentiary value of his statement---Complainant being a close relative of the deceased, would not substitute real culprit with the innocent person, as substitution was a rare phenomenon---Medical evidence, had provided full corroborative support to ocular account---No casing was secured from the spot, but gun was recovered at the instance of accused, found with spent cartridge in the chamber---Both were dispatched to Forensic Science Laboratory, report of which was positive---Case was that of single shot and accused did not repeat the shot---Motive was beside the mark---Prosecution having successfully proved its case against accused, Trial Court had rightly convicted accused through impugned judgment---Mitigating circumstances in favour of accused calling for reduction in quantum of sentence were; firstly the recovery was inconsequential; secondly prior to occurrence quarrel took place between the prosecution witness and the complainant, and not with the deceased; thirdly, on the same set of evidence, co-accused was acquitted by the Trial Court and fourthly, it was case of single shot and shot was not repeated---Alternate sentence of imprisonment for life, to accused, would meet the ends of justice---Maintaining conviction of accused under S.302(b), P.P.C., his sentence was altered from death to rigorous imprisonment for life, with benefit of S.382-B, Cr.P.C., in circumstances.

Zahoor Ahmad v. The State 2007 SCMR 1519; Ghulam Mohy-ud-Din alias Haji Babo and others v. The State 2014 SCMR 1034 and Sharafat Ali Khan v. The State 2010 SCMR 1205 rel.

(b) Criminal trial---

----Evidence---Quality and not quantity of the evidence would determine the guilt or otherwise a person.

Raja Ghaneem Aabir Khan for Appellant.

Muhammad Waqas Anwar, Deputy Prosecutor General for the State.

Nemo for the Complainant.

2017 M L D 30

[Lahore]

Before Mazhar Iqbal Sidhu and Malik Shahzad Ahmed Khan, JJ

BILAL alias BALI---Petitioner

Versus

The STATE and another---Respondents

Crl. M. No.2338-B of 2016, decided on 9th March, 2016.

Criminal Procedure Code (V of 1898)---

----S.497----Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession, import or export, trafficking or financing the trafficking of narcotic drugs---Bail, grant of---False implication---Scope---Accused allegedly had been apprehended at the spot along with the recovered charas---Medico-Legal Report revealed that the duration of the injuries sustained by the accused was within eight to twenty hours, which prima facie proved that the accused might have been manhandled by the police and the contraband might have been planted upon him---High Court made certain observations as to the illegal conduct of the police officials in their dealing with criminals and conduct of investigation with reference to the duty of court under injunctions of Islam---Bail application was allowed accordingly.

Abdul Latif Hanjra for Petitioner.

2017 M L D 44

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD IRFAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.15130-B of 2015, decided on 26th November, 2015.

Criminal Procedure Code (V of 1898)---

----Ss.497(2) & 498---Penal Code (XLV of 1860), Ss.337F(vi), 337-L(2), 337-N(2), 148 & 149---Ghayr Jaifah Munaqqilah, hurts and rioting armed with deadly weapons---Pre-arrest bail, grant of---Accused was alleged to have been armed with pistol .30 bore but injuries on the persons of complainant/injured was caused with iron bar ( )---Effect---Accused along with his two brothers and father had been involved in case and possibility could not be ruled out of consideration that complainant had widened the net to involve whole family in the case---No specific role during alleged occurrence was assigned to accused, therefore, vicarious liability in the commission of alleged occurrence was to be determined by Trial Court after recording of evidence---Accused was previously non-convict, neither he was hardened, dangerous, desperate criminal nor he had committed alleged offence on the pretext of honour, therefore, S. 337-N(2), P.P.C. also would come to his rescue---No allegation was on record of using pistol .30 bore by accused at the time of occurrence and no empty was collected by Investigating Officer from place of occurrence---Recovery of weapon with which accused was allegedly armed at the time of occurrence was of no help to the case of prosecution---Accused had already joined investigation which was complete to his extent, therefore, no useful purpose would be served by sending him behind the bars so as to enable him to come out of jail after a few days---Pre-arrest bail was allowed in circumstances.

Azeem Ullah Khan for Petitioner with Petitioner in person.

Irfan Zia, Deputy Prosecutor General and Arshad, ASI for the State.

2017 M L D 69

[Lahore (Rawalpindi Bench)]

Before Qazi Muhamamd Amin and Raja Shahid Mahmood Abbasi, JJ

KHURRAM SHAHZAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.196 and Murder Reference No.29 of 2012, heard on 6th April, 2016.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Grave and sudden provocation---Conversion of conviction/sentence---Presence of the prosecution eye-witness/injured at the spot in the company of the deceased, in the facts and circumstances of the case, could not be doubted, and injuries on the person of the accused confirmed that he had also been thrashed alongside the deceased; however, said witness had not told the whole truth, as the account of the incident/conspiracy theory given by him was not plausible, and the same was liable to be rejected---Use of Churri, an ordinary piece of cutlery readily available in every household, would not have been the choice weapons, should the occurrence were planned in the manner as suggested by the prosecution---Assault on the deceased was not premeditated or actuated in the name or on the pretext of honour, but the same had happened in the wake of sudden situation, which no one had visualized shortly before the incident; therefore, culpability of the accused came within the mischief of S. 302(c), P.P.C., and the proviso thereto did not stand as an impediment---High Court converted the conviction from S. 302(b) to S. 302(c), P.P.C., and sentenced the accused to fifteen years---Order accordingly.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 and Malik Muhammad Mumtaz Qadri's case PLD 2016 SC 17 rel.

Muhammad Munir Paracha for Appellant.

Tanveer Iqbal Khan for the Complainant.

Naveed Ahmad Warriach, D.P.G. and Zulfiqar, S.I. for the State.

2017 M L D 94

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan, J

MUHAMMAD SADIQ and 3 others---Petitioners

Versus

Mst. SEEMI BIBI through Legal Heirs and others---Respondents

C.R. No.1252-D of 2001, heard on 6th May, 2015.

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

----S. 2-A---Inheritance---Limitation---Limited owner, proof of---Suit filed by plaintiff was decreed in his favour concurrently by Trial Court and Lower Appellate Court---Validity---Basis of claim of plaintiff was on the ground that owner of land was written as widow, therefore, property she received in claim was on the basis of ownership of the deceased who was maternal uncle of plaintiff---Plaintiff was required to prove that property allotted to widow was allotted as limited owner and in their family there was custom prevailing and not the Shariat in the matters of inheritance---Even if application of Punjab Muslim Personal Law (Shariat Application) Act, 1962 was taken into consideration, a specific time was provided and further, when case of plaintiff was that from year 1966 to 1980, property was transferred in favour of defendants through different mutations and an area of 111 kanal 4 marlas was transferred, the suit was not within limitation when it was filed on 21-07-1988---Concurrent findings recorded by both the courts below were not sustainable under the law, as the suit was not competent and the same had been filed after the prescribed period of limitation---When other legal heirs challenged the rights of the widow and failed, they used present plaintiff to once again attack the rights of widow in the property which was sold by her in favour of defendants---High Court, in exercise of revisional jurisdiction set aside judgments and decrees passed by both two courts below and suit filed by plaintiff was dismissed---Revision was allowed in circumstances.

Abadan and others v. Mst. Jannat and another 1987 CLC 1048; Muhammad Hassan v. Syed Mumtaz Hussain PLD 1965 (W.P.) Lah. 35; Mst. Zainab v. Mst. Raji and others PLD 1960 SC 229 and Major Amir Muhammad Khan v. Dr. Faqir Muhammad and others 1983 CLC 1173 ref.

Mian Habib-ur-Rahman Ansari and Dilshad Ali Khan Nadim for Petitioners.

Syed Muhammad Ali Gillani, Mughees Aslam Malik and Mumtaz Hussain Awan, L.Rs. of Respondent No. 2 and for respondent No. 13-A-(i),(ii) & (iii).

Hafiz Muhammad Asghar Bhatti, Respondent Nos. 12 to 18.

Respondent Nos. 19 to 23 already ex-parte.

2017 M L D 105

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

FARHAT ABBAS SHAH---Appellant

Versus

The STATE---Respondent

Crl. Appeal No.52-J and Murder Reference No.57 of 2011, decided on 19th February, 2016.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Statement made by deceased before her death, that she was set on fire by sprinkling kerosene oil by accused, was corroborated by recovery of empty bottle of oil got recovered by accused; she was brief, straightforward and to the point---Defence plea taken by accused at belated stage, that the deceased died of homicidal death, was found inconsistent both by Investigating Officer as well as evidence furnished by the prosecution witnesses---Prosecution witness, who found the deceased in burnt and naked condition, and took her to the Hospital on official vehicle, further falsified the defence plea taken by accused---Medical Officer despite lengthy cross-examination, remained straightforward and defence had not been able to bring on record a single circumstance, which could discredit his veracity---Prosecution by producing cogent, concrete, consistent and trustworthy evidence, had established that accused had committed brutal and merciless murder of the deceased, his wife---Charge under S.302(b), P.P.C., for qatl-i-amd of the deceased, was proved against accused---Motive was also proved---Case involving a capital charge, could not be decided on mere hypothetical possibilities, which were otherwise devoid of any proof or substance---No extenuating circumstance in the case existed warranting reduction of the sentence which was upheld and affirmed.

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

----Art. 46---Dying declaration---Scope---Dying declaration, could sustain capital charge successfully in case it was found true and in line with other piece of evidence---Law did not require any particular quantum of evidence to derive home the charge, a solitary piece of evidence, free from taint and within the ambit of probability, could sustain the charge---Under Art.46(1) of Qanun-e-Shahadat, 1984 dying declaration could be admitted to help the court to arrive at correct finding of fact---No specific forum was provided before whom such declaration was required to be made; it would depend on the circumstances of each case as to how a departing person divulge details of the incident.

Raja Ghaneem Aabir Khan and Raja Amanat Ali Khan for Appellant.

Mirza Muhammad Usman, Deputy Prosecutor General and Saeed, S.I. for the State.

Nemo for Complainant.

2017 M L D 120

[Lahore]

Before Muhammad Khalid Mehmood Khan and Shahid Bilal Hassan, JJ

Rana SHAUKAT ALI KHAN and 2 others---Appellants

Versus

FAYYAZ AHMAD and 3 others---Respondents

Regular First Appeal No.972 of 2010, decided on 17th February, 2016.

(a) Malicious prosecution---

----Suit for damages---General damages---Plaintiffs filed suit for damages on the ground that they were involved in the criminal case with mala fide intention through supplementary statement---Suit was dismissed by the Trial Court---Validity---Act of defendant to involve the plaintiffs in the incident of dacoity was mala fide---Charge against the plaintiffs was wrong to the knowledge of defendant---Defendant had tried to influence the police to send the innocent plaintiffs to jail---Malice on the part of defendant had been proved---Plaintiffs were discharged after long investigations---Plaintiffs procured pre-arrest bail and they remained under threat of arrest in case of withdrawal of concession of bail by the court---Court had power to grant general damages to the plaintiffs in circumstances---Damages/compensation was granted to the extent of Rs. 10,00,000/ to the plaintiffs---Appeal was allowed in circumstances.

Anwarzeb v. Mushtaq Ahmed 2014 CLD 1632; Dr. Anwar Zada and others v. Mst. Yasmeen and others 2015 YLR 1263; Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737; Hafiz Hakim Muhammad Fayaz v. Akbar Ali 2006 CLC 489 and United Bank Limited and 5 others v. Raja Ghulam Hussain and 4 others 1999 SCMR 734 ref.

Pandit Gaya Parshad Tewari v. Sardar Bhagat Singh and another Privy Council, 1908 (35) L.R.-I.A. 189; AIR 1947 PC 108; Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6 and Niaz and others v. Abdul Sattar and others PLD 2006 SC 432 rel.

(b) Malicious prosecution---

----Ingredients---Ingredients to establish malicious prosecution were; that plaintiff was prosecuted by the defendant; that prosecution ended in favour of plaintiff; that defendant acted without reasonable and probable cause; that defendant was actuated by malice; that the proceedings had interfered with plaintiff's liberty and had also affected his reputation and plaintiff had suffered damages.

Muhammad Zafar Chaudhary and Miss Kashwer Naheed for Appellants.

Ch. Akbar Ali Tahir for Respondents.

Sami-ul-Hassan Rana for Respondent No.4.

2017 M L D 141

[Lahore (Rawalpindi Bench)]

Before Shahid Mubeen, J

ZUBAIR KHAN---Petitioner

Versus

HABIB UR REHMAN and another---Respondents

C.R. No.835 of 2015, decided on 28th April, 2016.

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

----Ss.151 & 12(2)---Limitation Act (IX of 1908), Art. 181---Inherent jurisdiction of court---Scope---Petition for setting aside of decree passed in an application under S.12(2), C.P.C.---Limitation---Application moved under S. 12(2), C.P.C. was dismissed for non-prosecution and petition to set aside the said order was dismissed being time barred---Validity---No provision in Civil Procedure Code, 1908 existed to recall/set aside the order dismissing the application for restoration of petition under S. 12(2), C.P.C,---Litigant could not be left without any remedy---Inherent jurisdiction of court could be invoked when there was no other specific provision to deal with the issue---Petitioner could claim relief under S. 151, C.P.C. in circumstances---No limitation had been prescribed to invoke inherent jurisdiction of the court and application so filed would be governed by Art. 181 of Limitation Act, 1908---Application to invoke inherent jurisdiction could be filed within three years when right to apply accrued---Limitation was mixed question of law and fact---Petitioner had made efforts to explain the delay by projecting sufficient cause---Application under S.12(2), C.P.C. was dismissed at 12.45 (after noon)---High Court observed that cases should not be dismissed in the early hour of the day---Court should refrain from dismissing the cases in default till end of the day when the court was rising---Even mistake with regard to date of hearing could be bona fide by misapprehension of counsel or wrong communication by clerk of Court---Impugned orders were set aside and application filed under S. 12(2), C.P.C. would be deemed to be pending before the Trial Court who should decide the same in accordance with law---Revision was allowed accordingly.

Inayat Masih v. Member (Revenue), Board of Revenue and 2 others 1985 CLC 1609; House Building Finance Corporation v. Mrs. Sarwar Jehan PLD 1992 Kar. 329; PLD 1979 SC 18; PLD 1985 Pesh. 35; PLD 1981 Pesh. 339; 1981 SCMR 533; PLD 1995 Kar. 267 and PLD 1957 Lah. 420 rel.

(b) Administration of justice---

----Law favours adjudication of cases on merits rather than on technicalities.

Ch. Muddasir Niaz for Petitioner.

2017 M L D 173

[Lahore]

Before Ayesha A. Malik, J

ABDUL ALEEM KHAN---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and others---Respondents

W.P. No.13510 of 2016, heard on 17th June, 2016.

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

----Ss. 103A, 103AA & 56---Contempt of Court Ordinance (V of 2003), S.3---Constitution of Pakistan, Art.225---Election dispute---Power of Election Commission of Pakistan to punish for contempt---Scope---Petitioner made an application under S. 103AA of the Representation of the People Act, 1976 to declare results of a bye-election as void and in support of the same, submitted a number of affidavits from voters of the constituency alleging fraud---Said application was rejected by the Election Commission on the ground that the remedy to be availed by the petitioner was to approach the Election Tribunal as mandated by Art. 225 of the Constitution with the observation that some of the affidavits submitted by the petitioner were false and fabricated---Subsequently, on basis of said observation, and upon the application of the respondent, the Election Commission proceeded to initiate proceedings for contempt against the petitioner under S. 103A of Representation of the People Act, 1976---Validity---Admittedly there was no order which had been disobeyed or disregarded by the petitioner and no proceedings were interfered with or obstructed by the petitioner---Contempt was said to have been committed by filing false affidavits in support of the petitioner's application under S. 103AA of the Representation of the People Act, 1976---Election Commission did not adjudicate on the merits of the complaint under S. 103AA of the Representation of the People Act, 1976, therefore it could not have concluded that some affidavits were false and fabricated as the said observation was presumptive without following any process of the law---Election Commission, therefore, essentially left an option open to itself to proceed against the petitioner once the Election Tribunal decided the fate of his election petition---Election Commission's observation regarding the allegedly false and fabricated affidavits prejudiced the case of the petitioner before the Election Tribunal wherein he had challenged the results of the bye-elections, and which had not been decided so far---Since the Election Commission did not adjudicate upon the merits of the petitioner's complaint under S. 103AA of the Representation of the People Act, 1976; there was no legal justification for it to observe that some of the affidavits filed by the petitioner were false , especially after the Commission itself had held that the matter was to be decided by the Election Tribunal, meaning thereby that Commission had accepted that jurisdiction in the matter lay with the Election Tribunal, hence the veracity of the affidavits was to be determined by the Election Tribunal and not the Commission---Proceedings for contempt of court against the petitioner under S. 103A of the Representation of the People Act, 1976 were declared to be illegal---Constitutional petition was allowed, in circumstances.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1089 ref.

(b) Contempt of Court Ordinance (V of 2003)---

----Ss. 3, 4 & 6----Power to hold a person in contempt of court---Object and nature of such power---Distinction between contempt of court and criminal contempt of court---Contempt of court is when a person willfully interfered with process of the court in order to disrupt or challenge authority or dignity of the court---Criminal contempt was made out when a person willfully interrupted or interfered in the administration of justice such that it obstructed or hampered the course of justice---While simple contempt of court was the disobedience of the order or direction of the court, criminal contempt was the obstruction of administration of justice in a court of law---In both cases, objective of the law of contempt was that law and order must be maintained by the court and the course of justice was not hampered---Power of contempt was a necessary sanction to protect administration of justice, however, it was a power which must be exercised with great care and caution and only when it was absolutely necessary for the proper administration of justice.

Anis Ali Hashmi for Petitioner.

Muzammil Akhtar Shabbir, D.A.G.

Hafiz Muhammad Saleem for Respondent No.1.

Ayesha Hamid for Respondent No.2.

2017 M L D 185

[Lahore]

Before Shahid Hameed Dar and Syed Shahbaz Ali Rizvi, JJ

BILAWAL ALI---Petitioner

Versus

The JUDGE ATC-III and 2 others---Respondents

W.P. No.29575 of 2015, decided on 8th December, 2015.

Criminal Procedure Code (V of 1898)---

----S. 540---Penal Code (XLV of 1860), Ss. 302, 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd and kidnapping for ransom with common intention---Summoning of witnesses---During pendency of trial, accused sought summoning of four persons as defence witnesses---Complainant had no objection to summoning of the witnesses provided the trial be concluded in 30 days---Validity---Complainant categorically submitted and pledged that trial of accused would conclude necessarily within 30 days from the date of examination of persons intended to be called as defence witnesses---Stance was reiterated by complainant so as to lend an impression of certainty and purity of pledge made in words that a day would not exceed the limit of 30 days, as suggested by complainant, for concluding of trial of accused---High Court appreciated such statements of parties in unison---Constitutional petition was allowed in circumstances.

Ch. Muhammad Qasim for Petitioner.

Ms. Asma Hamid, Addl. Advocate General, Punjab.

2017 M L D 194

[Lahore]

Before Syed Shahbaz Ali Rizvi and Ch. Mushtaq Ahmad, JJ

MUHAMMAD ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.2071, Criminal Revision No.1244, Murder Reference No.498 of 2012 and Criminal Misc. No.3910-M of 2013, heard on 16th February, 2016.

Penal Code (XLV of 1860)---

----Ss. 302, 392 & 109---Criminal Procedure Code (V of 1898), S.544-A---Qatl-i-amd, robbery; abetment---Appreciation of evidence---Enhancement of compensation awarded under S. 544-A, Cr.P.C---Condonation of delay in filing appeal against conviction---Complainant had implicated the present accused person along with his wife and the wife of his brother through his supplementary statement stating that they had committed robbery and murdered his mother on the day of the occurrence, as they had already extended threats to kill him and his brother, and that he had, therefore, registered the case against unknown under coercion and fear of the accused persons---Complainant's supplementary statement recorded several days after registration of the FIR carried no weight; rather, the same had cast serious doubt on the veracity of the version contained therein---Such supplementary statement had no evidentiary value in the eye of law---Complainant had given two different versions during the investigation and his cross-examination as to who had cut their ropes and untied them---Prosecution eye-witness had disclosed having witnessed the occurrence after 12/13 days after the occurrence---Statements of both the eye-witnesses on the face of it, were implausible and unbelievable---Statement of the prosecution witness, who had alleged to have seen and heard the accused persons while they were planning the commission of the crime and discussing their motive for the same, was also implausible and ridiculous on the face of it, and as such, the same was liable to be rejected---Conviction could not have been recorded, where the ocular account produced by the prosecution was found intrinsically weak, contradictory, implausible and un-trust worthy---High Court, setting aside the conviction/sentences, acquitted the accused persons and dismissed the application filed for enhancement of compensation and condonation of delay in filing of the appeal---Appeal against conviction was allowed accordingly.

Khalid Javed v. The State 2003 SCMR 1419; Akhtar Ali and others v. The State 2008 SCMR 6 and Falaksher v. The State 1995 SCMR 1350 rel.

Alamgir and Sardar Khurram Latif Khan Khosa for Appellant.

Asif Javed Qureshi and Pirzada Zaroon Rashid for the Complainant.

Rana Muhammad Shafiq, Deputy District Public Prosecutor for the State.

2017 M L D 222

[Lahore (Rawalpindi Bench)]

Before Abdul Sami Khan, J

RIAZ AKHTAR and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.200-B of 2016, decided on 1st March, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, common object---Bail, grant of---Further inquiry---No allegation of encircling the deceased by co-accused---No injury was attributed to accused persons on the person of the deceased and injured; same had been attributed to co-accused---Question of sharing common intention by accused persons with their co-accused as well as their vicarious liability in the commission of alleged occurrence would be determined by the Trial Court after recording evidence---Accused persons, were previous non-convict and were behind the bars since 13-10-2015, without any fruitful progress in the trial---Investigation of the case was complete, and accused persons, were no more required for further investigation---Mere heinousness of offence, was no ground to refuse the concession of bail to accused, who otherwise became entitled for that on merits---No useful purpose would be served by keeping accused persons behind the bars---Case of accused persons, had become one of further inquiry covered by subsection (2) of S.497, Cr.P.C.---Accused, was granted bail, in circumstances.

1996 SCMR 1125 rel.

Raja Ghaneem Aabir Khan for Petitioners.

Usman Iqbal, ADPP and Zayarat SI with record for the State.

2017 M L D 230

[Lahore]

Before Shahid Hameed Dar and Syed Shahbaz Ali Rizvi, JJ

MUHAMMAD BASHIR KHAN---Petitioner

Versus

The STATE and 4 others---Respondents

Criminal Appeal No.1730 of 2010, heard on 25th January, 2016.

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

----Ss. 302, 449 & 34----Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-i-amd; house-trespass in order to commit offence punishable with death; common intention---Appeal against acquittal---Appreciation of evidence---Delay of nine years in reporting murder---Effect---Application for registration of the FIR had been prepared in 1998 and presented before the police in 2007 after nine years after the alleged murder of complainant's daughter and grand-daughter---Motive behind the murder of the deceased persons, as disclosed by the complainant, was that the deceased having inherited the landed property from her father had transferred the same to her brother and sons of other brothers giving nothing to the accused persons---Dead bodies of the deceased persons had not been subjected to postmortem examination, nor had the same been disinterred for the said purpose---Police had although moved an application to the Magistrate for disinterment of the dead bodies, but the same had been dismissed due to the complainant's disinclination to the disinterment---Complainant, during the course of the investigation, had not contended that a panchayat had been convened and the accused persons had confessed their guilt before the same---Police had prepared a cancellation report under S. 173, Cr.P.C. and submitted the same before the Magistrate---Complainant, in his private complaint with the same allegations, had made an addition in her story alleging that the accused, having admitted the murder of the deceased persons before the panchayat, had promised to pay a certain amount of money as the blood-money to her, and that she, instead of taking the blood-money, had preferred lodging the FIR---Complainant had not been cited as a witness in the case, which meant that the private complaint had been filed against her will---None of the complainant's witnesses was eyewitness of the occurrence, despite the fact they lived at the same place and compound; hence, their silence for about nine years would adversely reflect on the veracity of their statements---Police had concluded during the investigation that both mother and daughter had been electrocuted and not murdered by anyone, and for the same reason the complainant had not let the dead bodies disinterred for holding an inquest into the cause of their death---Evidence of the extra-judicial confession of the accused persons before the panchayat was nothing but a mere gossip, having been maliciously fabricated by the complainant together with his co-witnesses to frustrate and pressurize the accused---Both the FIR and the private complaint, in view of the facts and circumstances of the case, should have been extinguished at earlier stage, instead of proceedings with the same for too long---Impugned judgment of acquittal was therefore maintained---Appeal against acquittal was dismissed accordingly.

Alam Khan v. Swans Khan and 3 others 1996 SCMR 1742; Inayatullah Butt v. Muhammad Javaid and 2 others PLD 2003 SC 563 and Mst. Saira Bibi v. Muhammad Asif and others 2009 SCMR 946 rel.

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

----S. 417 (2-A)----Appeal against acquittal---Principles---Judgment of acquittal can only be interfered with, if it looks wholly perverse, capricious, arbitrary, artificial, speculative or based on misreading or non-appraisal of the evidence on record.

Malik Matee Ullah for Appellant.

Munir Ahmad Sial, Deputy Prosecutor General Punjab for the State.

Mazhar Abbas Khokhar for Respondents Nos. 2 to 5.

2017 M L D 266

[Lahore High Court]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

MUHAMMAD AJMAL and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos.12-J of 2013, 1319, 1500, 1554, Murder Reference No.308 and Criminal Revision No.1084 of 2011, heard on 15th December, 2015.

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

----S. 396---Dacoity with murder---Appreciation of evidence---Benefit of doubt---Complainant, during identification parade, picked up accused as the person who made fire shot on the deceased; whereas by other witnesses, participating in the identification parade, no such role was ascribed to accused---Incident was a night occurrence, but in the FIR no source of light was mentioned; whereas in the private complaint filed subsequently, a torch light was introduced by the complainant---Improvement inconsistent with the case set up in the FIR, as well as change of role of accused qua fatal fire shot in the private complaint, cast serious doubt on the veracity of ocular testimony; and it was not safe at all to base conviction of accused on such distorted evidence---Findings of conviction recorded by the Trial Court, being not maintainable, conviction and sentence recorded by the Trial Court against accused persons through impugned judgment, were set aside---Accused were acquitted of the charge, and were ordered to be released, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Scope---Conviction must be based on unimpeachable evidence, and certainty of guilt, and any doubt arising in the prosecution case, must be resolved in favour of accused---For giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused, would make him entitled to the benefit; not as a matter of grace and concession, but as a matter of right.

Muhammad Khan and another v. The State 1999 SCMR 1220 rel.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 ref.

Ch. Abdul Ghaffar, Malik Mukhtar Hussain for Appellants (in Criminal Appeal No.1319 of 2011).

Ashraf Ali Qureshi for the Complainant.

Malik Muhammad Jaffer, Deputy Prosecutor General for the State.

2017 M L D 282

[Lahore (Bahawalpur Bench)]

Before Zafarullah Khan Khakwani, J

MUKHTAR AHMAD---Petitioner

Versus

RETURNING OFFICER and others---Respondents

W.P. No.8320 of 2015, decided on 12th November, 2015.

(a) Punjab Local Government (Conduct of Elections) Rules, 2013---

----R. 14(3)(d)---Qanun-e-Shahadat (10 of 1984), Art. 84---Election for local government---Nomination papers, submission of---Application for replacement of proposer and seconder---Objection with regard to signatures or thumb impressions of proposer or seconder---Summary inquiry---Comparison of signatures/thumb impressions by the High Court---Scope---Candidate submitted nomination papers and thereafter filed an application for replacement of proposer and seconder on the ground that they had been won over by his rival candidates---Returning Officer dismissed the said application and nomination papers were also rejected on the ground of absence of proposer and seconder---Validity---If an objection was raised with regard to signatures or thumb impressions of the proposer or seconder then Returning Officer should conduct a summary inquiry---No such inquiry was conducted in the present case---Nothing was on record as to how Returning Officer satisfied himself that signatures of proposer and seconder were bogus---Court had power to make the comparison of signatures, words or figures written over the disputed document with those of the admitted one---High Court compared signatures/thumb marks on the nomination papers with the admitted document of the proposer and seconder and found 95% similarity and resemblance---Possibility of proposer and seconder having been won-over by the rival candidate after putting their signatures/thumb marks on nomination papers could not be ruled out---Impugned orders were set aside and Returning Officer was directed to accept nomination papers of the candidate and proceed further in the matter---If candidate was declared returned candidate, and proposer and seconder wanted to challenge genuineness of their signatures/thumb impressions then they would be at liberty to avail their remedy before the Election Tribunal---Constitutional petition was accepted in circumstances.

Mst. Aziz Begum v. Federation of Pakistan and others PLD 1990 SC 899 and Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others 1999 SCMR 85 rel.

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

----Art. 84---Comparison of signatures by the court---Scope---Court had power to make the comparison of signatures, words or figures written over the disputed document with those of the admitted ones.

Malik Imtiaz Mahmood Awan for Petitioner.

Ch. Abdul Jabbar and Abdul Shehzad Hashmi, A.R.O. for Respondents.

2017 M L D 306

[Lahore (Multan Bench)]

Before Ali Baqar Najafi, J

ALLAH DITTA and others---Petitioners

Versus

MUHAMMAD TEHSEEN and others---Respondents

Civil Revision No.1073 of 2009, heard on 4th April, 2016.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Production of additional evidence in Appellate Court---Scope---Suit was decreed against which appeal was filed wherein an application for production of additional evidence was moved which was accepted by the Appellate Court---Validity---Suit was instituted in the year 1996 and evidence could be concluded after a long period of 8/9 years---Application for production of additional evidence was moved before the Trial Court on the day when judgment was about to be pronounced---Written statement did not mention the existence of document to be produced as an additional evidence---Application for additional evidence could be moved at any stage but applicant had to establish a good cause---Application for production of additional evidence was dismissed and case was remanded to the Appellate Court for decision of appeal on merits---Revision was allowed in circumstances.

Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778; Moazam Majeed Bajwa v. Tariq Munawar and others 2012 MLD 417 and Province of Punjab through Chief Secretary and 5 others v. Malik Ibrahim and sons and another 2000 SCMR 1172 distinguished.

Muhammad Nazir v. Fazal Karim and others PLD 2013 SC 255; Faiz Hussain and 7 others v. Muhammad Din through Legal Heirs 1999 MLD 1386; Mumtaz Khan and 8 others v. Haji Nawab Khan 2003 MLD 399 and Muhammad Yousaf v. Mst. Maqsooda Anjum and others 2004 SCMR 1049 rel.

Ch. Khalil Asghar Sindhu for Appellants.

Muhammad Khalid Ashraf Khan for Respondents.

2017 M L D 312

[Lahore]

Before Shams Mehmood Mirza, J

Messrs IRFAN INDUSTRIES (PVT.) LIMITED through Chief Executive---Plaintiff

Versus

STANDARD CHARTERED BANK through Chief Executive Officer and another---Defendants

C.O.S. No. 54 of 2012 and C.M. No.797-B of 2015, heard on 24th October, 2016.

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

-----S.11 & O. VII, R.11---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss.9, 10 & 17---Res judicata, principle of---Scope---Rejection of plaint---Effect of decree passed in one suit over the other suit between the same parties---Whether the judgment and decree passed against the plaintiff in the suit filed by the Bank could be considered by the Court in deciding the application for rejection of plaint filed by the Bank in the suit of plaintiff---After the institution of the present suit by the plaintiff, the suit filed by the Bank against the plaintiff was decreed---Statement of account in respect of which the present suit was filed was made available to the plaintiff in the other suit filed by the Bank---Other suit filed by the Bank was contested by the plaintiff as was apparent from the judgment and decree which also showed that the allegations levelled in the present suit were also taken as defence by the plaintiff in the other suit---Court which passed the judgment and decree in the other suit filed by the Bank did not consider the said defence of the plaintiff worthy of merit and accordingly dismissed the application for leave to defend filed by the plaintiff---Validity---Fact that a decree was passed against the plaintiff in the suit of the Bank was not disputed---Certified copy of the judgment and decree passed in the said suit of the Bank was brought on record through the application for rejection of plaint---Court could, therefore, take notice of the said judgment and decree in favour of the Bank and against the plaintiff---By virtue of the said decree, the present suit of the plaintiff had become barred under the principle of 'res judicata'---Application of the Bank was allowed and the plaint was rejected in terms of O.VII, R.11, C.P.C.

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

----Ss. 9 & 10---Civil Procedure Code (V of 1908), O.VII, R.11 & O.XX, R.16---Suit for rendition of accounts along with ancillary reliefs for seeking appointment of Chartered Accountant and declaration---Maintainability---Contractual relationship between the parties---Effect---Rejection of plaint---Defendant Bank contended that the suit was filed primarily for seeking relief of rendition of accounts which was not maintainable in the law in view of the contractual relationship between the parties---Plaintiff contended that question of maintainability of the suit was different from rejection of plaint and the exercise of jurisdiction under O.VII, R.11, C.P.C. limited the role of a court to only look at the contents of the plaint---Validity---Suit for rendition of accounts was not maintainable where the parties to the suit were in a contractual relationship---Procedure for regulating the suits for rendition of accounts was provided for in O. XX, R.16, C.P.C.---Said provision pertained to the procedure, and, therefore, did not create any substantive rights for a party to seek rendition of accounts by filing suit in every case where such accounts were not provided---Procedure provided in O.XX, R.16, C.P.C. would only apply where there already existed a right to seek rendition of accounts---Rendition of accounts was normally confined to specific cases where relationship was of such a nature that the relief of rendition of accounts would only enable the plaintiff to assert his legal rights---Furthermore, a suit for rendition of accounts could be maintained if the plaintiff indeed had a right to receive an account from the defendant---Such a right could either stem from a statute or it may be based on a relationship that was fiduciary in character---Right to seek accounts, however, could not be claimed in the present case because the plaintiff did not know the exact amount due to him---Suit for rendition of accounts was thus not maintainable---Objection of the plaintiff having no force was accordingly repelled---Plaint was rejected in circumstances.

Haji Abdul Kareem and others v. Messrs Florida Builders (Pvt.) Ltd. PLD 2012 SC 247; Messrs Friend Engineering Corporation, the Mall, Lahore v. Government of Punjab and 4 others 1991 SCMR 2324; Narandas Morardas Gajiwala v. SPAM Papammal AIR 1967 SC 333 and K.C. Skaria v. Govt. of State of Kerala and another AIR 2006 SC 811 ref.

Mrs. Ayesha Hamid for Plaintiff.

Majid Ali Wajid for Defendant.

2017 M L D 327

[Lahore]

Before Abdul Sami Khan, J

SABIR BAIG---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.9950-B of 2016, decided on 7th September, 2016.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(ii), 337-L(2), 148 & 149---Hurt, rioting armed with deadly weapon, unlawful assembly---Pre-arrest bail, confirmation of---Ulterior motive and malafide intention---FIR was registered with a delay of more than one year---Pendency of civil litigation between parties could be a reason for false implication of accused---Accused had already joined investigation---Person of accused, in circumstances, could not be handed over to police for the purpose of recovery because same was of little help to prosecution---Accused was neither a previous convict, nor hardened, dangerous or desperate criminal and had not committed the alleged offence on the pretext of honour---Ad-interim pre-arrest bail was confirmed accordingly.

Nazir Ahmad Khan for Petitioner in person.

Irfan Zia, Deputy Prosecutor General for the State and Jamil ASI with record.

2017 M L D 338

[Lahore]

Before Amin-ud-Din Khan, J

KHALID MEHMOOD---Petitioner

Versus

Mst. NASEEM AKHTAR and 9 others---Respondents

C.R. No.2202 of 2006, heard on 5th May, 2016.

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

----O. VI R. 4---Allegation of fraud---Pleadings---Requirements---Order VI, R. 4, C.P.C. required that full particulars of fraud were to be mentioned in pleadings---Plaintiff had to plead specifically the particulars of fraud, the circumstances in which plaintiff put thumb impression on the mutation and the purpose as to why he appeared before the Revenue Officer---In the present case, neither the fraud had been pleaded in the plaint nor satisfactory evidence had been produced in such regard---Non-impleading of the Revenue Officials was a fatal defect---Plaintiffs had failed to discharge initial onus to prove misrepresentation and fraud---Findings of the trial court dismissing the suit of the plaintiff were restored---Revision was allowed accordingly.

Mst. Sahib Noor v. Haji Ahmad 1988 SCMR 1703; Muhammad Younas v. Waris Baig and 2 others 2012 CLC 1846; Rasheeda Begum v. Ghulam Ahmed and another 2007 CLC 172 and Mst. Nusrat Zohra v. Mst. Azhra Bibi and others PLD 2006 SC 15 rel.

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

----Art. 133---Cross-examination---Statement not challenged---Effect---Portion of statement which remained unchallenged in cross-examination was ordinarily deemed to have been admitted by the other side.

Anwar and others v. Sher Bahadur and others 1990 CLC 274 rel.

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

----Arts. 91 & 92---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Presumption as to document kept in official record---Presumption of truth was attached to the official record in absence of anything to the contrary---In the present case the original mutation deed in favour of defendant was not rebutted by any cogent and confidence inspiring evidence---Findings of the trial court dismissing the suit of the plaintiff were restored---Revision was allowed accordingly.

Mst. Nur Begum and another v. Settlement and Rehabilitation Commissioner Multan and 2 others 2003 SCMR 501 and Hazoor Bakhsh and others v. Abdul Rashid and others 1987 SCMR 1845 rel.

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

----S. 42---Suit for declaration---Legal heirs---Claim of inheritance---Claim of plaintiffs was that they were legal heirs of deceased, they had been deprived of the inheritance of deceased---Plaintiffs produced two witnesses to prove themselves as legal heirs of deceased but oral version had not been proved by any confidence inspiring evidence---Mother of plaintiffs was also not produced as witness---Defendant produced Record Keeper who brought original register of pert-sarkar of impugned mutation---Tehsildar who attested the mutation was also produced and was not cross examined with regard to affixing of thumb impression, identification and receipt of consideration---Possession of defendant was also admitted---Allegation of fraud was not pleaded in plaint nor satisfactory evidence was produced in such regard---Findings of the trial court dismissing the suit of the plaintiff were restored---Revision was allowed accordingly.

Mushtaq Mehdi Akhtar for Petitioner.

Irshad Ahmad Cheema for Respondents.

2017 M L D 349

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

MUHAMMAD AZAM KHAN---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.7451-B of 2016, decided on 13th October, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment and rioting armed with deadly weapons---Bail, grant of---Abetment---Ingredients---Accused had been named in FIR with an allegation of abetment---Questions to be considered in case of abetment were whether the accused instigated any person to do a thing; whether accused was engaged with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission taken place in pursuance of that conspiracy and in order to the doing of that thing and whether accused intentionally aided, by any act or illegal omission, the doing of that thing---Circumstances, prima facie showed that ingredients of abetment were not made out---Allegedly factum of abetment was conveyed to the complainant in the morning, much earlier to the occurrence but the complainant had not taken any precautionary measures---Fact remained that previous enmity between the parties existed, in such like cases, conspiracies were not hatched in public at a place, which was easily accessible for every one---Circumstances of the matter bringing the case within the ambit of further inquiry---Ad-interim bail already granted to the accused was confirmed accordingly.

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

----Ss. 497/498---Bail---Principle of consistency---Co-accused who was attributed same role as the petitioner, had been released on bail---Petitioner, was entitled to be released on bail on the basis of principle of consistency.

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

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

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss.302, 324, 148, 149 & 109---Qatl-i-amd, attempt to commit qatl-i-amd, abetment and rioting armed with deadly weapons---Pre-arrest and after arrest bail, grant of---Rule of consistency---Scope---Co-accused was granted bail after arrest---Accused-petitioner claimed pre-arrest bail on the basis of principle of consistency as co-accused was attributed same role as that of petitioner---Prosecution objected that pre-arrest bail was an extraordinary relief, which could be granted sparingly---Validity---Pre-arrest bail was an extraordinary relief and in case, such relief was not granted on the basis of said technical ground, petitioner would be entitled to post arrest bail on the principle of rule of consistency soon after the pronouncement of bail refusing order by the court---Basic law was bail and not jail---By sending accused behind the bars, no useful purpose would be served---Ad-interim pre-arrest bail granted to co-accused was confirmed accordingly.

Muhammad Ramzan v. Zafar Ullah and another 1986 SCMR 1380 rel.

Mr. Munir Ahmad Bhatti for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General Punjab for the State.

Rana Adnan Ahmad for the Complainant.

2017 M L D 360

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

NAZAR MUHAMMAD and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.1203 of 2010 and Murder Reference No.124 of 2012, heard on 21st September, 2016.

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

----Ss. 302, 452, 109, 148 & 149---Qatl-i-amd, house trespass after preparation for assault, rioting armed with deadly weapon, unlawful assembly committed in prosecution of common object and abetment---Appreciation of evidence---Benefit of doubt---Scope---Evidence of ocular account---Allegation against the accused was that they intercepted the deceased outside the complainant's house wherefrom he ran inside the house and bolted himself in a room and that accused forced their entry in the said room and dragged him out in a nearby field where they had fired multiple shots on him within the view of the witnesses---Story of hot pursuit by the accused compelling the deceased to flee and run into safety without being fired upon by the accused present in their footsteps was a question mark---Accused were allegedly behind the deceased, they could have conveniently knocked him down without loss of time outside the house, as apparently there was no point to incur an avoidable risk of entering the house to possibly encounter an unanticipated unfavorable situation---Seemingly there was no point in dragging the deceased to the field of occurrence situated at some distance from the house when the intended purpose could have been achieved there and then---Prosecution had brought nothing on the record to prove breaking of the door, as neither the broken latch nor the door was taken into possession nor there was any such reference in the inspection note---Accused had been acquitted by the trial court under S.452, P.P.C.; neither the complainant nor the State had challenged acquittal from the said charge---Prosecution case was fraught with improbabilities and doubts, benefit of which was to be given to the accused---Appeal was allowed and conviction and sentences recorded by the trial court were set-aside in circumstances.

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

----Ss. 302, 452, 109, 148 & 149---Qatl-i-amd, house tresspass after preparation for assault, rioting armed with deadly weapon, unlawful assembly, committed in prosecution of common object and abetment---Appreciation of evidence---Benefit of doubt---Mere rendition of criminal charge, no matter how impressively articulated and supported by investigative details, could not sustain the charge unless it successfully qualified the test of probability---Occurrence did not take place in the manner as alleged by prosecution witnesses---Circumstances raised suspicions about the truthfulness of the accusation; and that suspicion taken from any angle, was neither illusionary nor imaginary---Appeal was allowed and conviction and sentences recorded by trial court against accused were set aside in circumstances.

(c) Criminal trial---

----Benefit of doubt---Single suspicious circumstance lurking behind the prosecution case entitled accused to claim benefit thereof.

Badar Raza Gillani for Appellants.

James Joseph and Ch. Umar Hayat for the Complainant.

Malik Riaz Ahmad Saghla, Deputy Prosecutor General, Punjab with Shafi, S.I. for the State.

2017 M L D 382

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmad and Ch. Mushtaq Ahmad, JJ

MUHAMMAD IRFAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.728-J and Murder Reference No.74 of 2010, heard on 5th September, 2016.

Penal Code (XLV of 1860)---

----Ss. 302 & 337F(v)---Qatl-i-amd, ghayr-jaifah hashimah (Hurt)---Appreciation of evidence---Sentence, reduction in---Extenuating circumstances---Matter was reported to police with promptitude---Only one accused was nominated with specific role---Presence of material witnesses was well explained in the prosecution evidence---Role attributed to accused was that he made fire shot with his .30-bore pistol hitting left flank of deceased and second fire hitting injured witness on his elbow which was corroborated by medical evidence---Crime empties were found wedded with said pistol as per report of Forensic Science Agency---Report of Serologist regarding blood-stained earth was also found positive---Complainant did not utter a single word about motive which was extenuating circumstance---Maintaining conviction, death sentence awarded to accused was converted to imprisonment for life.

Prince Rehan Iftikhar Sheikh for Appellant.

Riaz Ahmed Saghla, Deputy Prosecutor General for the State.

Ch. Muhammad Sharif for the Complainant.

2017 M L D 399

[Lahore]

Before Shahid Hameed Dar, J

SHARAFAT ALI and another---Petitioners

Versus

The STATE and another---Respondents

Crl. Misc. No.3352-B of 2016, decided on 19th September, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 364-A, 337-A(i), 337-F(i), 337-L(2), 336, 148 & 149---Juvenile Justice System Ordinance (XXII of 2000 ), S. 10(7)(a)---Attempt to commit qatl-i-amd, rioting armed with deadly weapons, kidnapping a person under the age of fourteen years, causing shajjah-i-khafifah, damiyah, hurt and causing itlaf-i-udws---Bail, grant of---Statutory ground of delay in conclusion of trial---Joint trial of accused persons (petitioners) and co-accused persons---Prosecution produced witnesses only on four occasions during the period of last two years, but only when some of the co-accused and some times a few of them were not produced from jail---Accused-persons could not be held responsible for the idleness of the prosecution, as being in jail---Accused persons and some of the co-accused were being tried jointly---Only because some of the co-accused persons had been playing hide and seek with the trial court or causing delay in conclusion of their trial, accused persons could not be deprived of bail---Nothing was available on record to the effect that accused-persons were hardened, desperate or dangerous criminals---Accused-persons were not shown to have ever committed an act of terrorism, punishable under the Anti-Terrorism Act, 1997 or the other allied laws---Accused were granted bail, in circumstances.

Muhammad Afzal Butt alias Aphi v. The State and others 2015 SCMR 1696 rel.

Mehr Zakir Hussain for Petitioners (in Crl. Misc. Nos.3352-B/2016 and Crl.Misc.No.11028-B/2016).

Qamar Zaman Qureshi for Petitioner (in Crl. Misc. No.9220-B/2016).

Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab for the State with Falak Sher AS1.

2017 M L D 407

[Lahore]

Before Atir Mahmood, J

MUHAMMAD ASIF SHAHEEN---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No.25588 and C.M. No. 2797 of 2016, decided on 24th August, 2016.

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

----S.54---Arbitration---Dispute as to membership of society---Petitioner wrote letter to Registrar Co-operative Societies seeking advice that the plot in the co-operative Housing Society was being transferred in the name of respondent against a membership number which was issued in October, 2014 and no plot was allotted to the said number and since membership was not enjoyed by the member, his membership fee be refunded and plot in question be transferred to a new membership number---Respondent filed petition under S. 54 of Co-operative Societies Act, 1925 seeking declaration to the effect that he was a bona fide and rightful member of the society which was accepted---Petitioner filed appeal which was dismissed, whereafter he filed Constitutional petition---Held, that Byelaw No.8 of the Society provided that it was duty of the Managing Committee to consider the application of respondent and if the process mentioned in Byelaw No.8(1) was not completed, then after completion of his 1-year membership his membership stood automatically confirmed---Byelaw 8(3) further strengthened the case of respondent that had there been any refusal by the society qua eligibility of membership of respondent then it was mandatory to inform him in writing within 2-months of such refusal---Objection that without ownership of the plot membership could not be conferred became irrelevant in such circumstances---Respondent not only was a member of the society but also owner of 50% of the plot at the relevant time and nothing was on record to suggest that society ever objected to membership of respondent in any manner---President of the society was allegedly contesting election against respondent so possibility of mala fide could not be ruled out---Petitioner being finance secretary of society failed to support present petition through any record of the society and only contested application of respondent without any lawful authority conferred upon him by the society through any resolution---Petitioner had no locus standi to challenge the membership of respondent---Constitutional petition was dismissed accordingly.

Javed Iqbal Qureshi, Anas Ghazi and Shahid Iqbal Qureshi for Petitioners.

Raja Muhammad Arif, Additional Advocate General and Ms. Shazia Ashraf Khan, Asstt. A.-G. for Respondents Nos. 1 and 2.

Moazzam Ali Butt, Assistant Registrar, Housing-III on behalf of Respondents Nos. 1 and 2.

Nemo for Respondent No.3.

Messrs Ahsan Bhoon, Saqib Akram Gondal and Sh. Usman Kareem ud Din for Respondent No.4.

2017 M L D 418

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

PIR MUHAMMAD MANJH---Petitioner

Versus

NAVEED IQBAL MALIK and 2 others---Respondent

Writ Petition No.2104 of 2014, heard on 10th June, 2016.

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

----Ss. 2(e), 15 & 30---Ejectment petition on ground of expiry of tenancy agreement---'Pagri', payment of---Scope---Landlord had contended that he had purchased the tenancy premises from previous landlord; that tenancy agreement had expired thus tenant should vacate the premises---Tenant contested the matter on the ground that no notice regarding transfer of ownership had been issued to him and that he had already paid amount of Rs. 30,00,000/- as "pagri"---Validity---Record showed that notice was duly served upon tenant through registered-acknowledgement-due which was also affirmed by tenant through a suggestion in his evidence---"Pagri" if any was paid to another tenant who was not a landlord thus such amount could not be termed as "pagri" as per S.2 (e) of Punjab Rented Premises Act, 2009---Tenant thus could not claim tenancy in perpetuity as premium on account of alleged payment of "pagri"---Constitutional petition was dismissed.

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

----S. 30---Transfer of ownership---Ejectment petition---Competency---Non-compliance of S.30 of Punjab Rented Premises Act, 2009 did not entail any penal consequences having adverse effect upon competency of ejectment petition.

Nadeem Zafar and others v. Muhammad Ismaeel and others PLD 2012 Lah. 178 and Hafiz Muhammad Shahid Nawaz v. Hafiz Muhammad Saeed 2010 CLC 1941 rel.

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

----S. 30---Purpose of S.30, Punjab Rented Premises Act, 2009---Purpose of enactment of S.30 was to regulate and register new landlord so that dispute of denial of tenancy could be avoided.

Nadeem Zafar and others v. Muhammad Ismaeel and others PLD 2012 Lah. 178 and Hafiz Muhammad Shahid Nawaz v. Hafiz Muhammad Saeed 2010 CLC 1941 rel.

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

----Preamble---Scope---Preamble to Punjab Rented Premises Act, 2009 provided that purpose of enactment of said Act was to provide expeditious remedy in rent matters but it did not allow disposal at the cost of technicalities.

Nadeem Zafar and others v. Muhammad Ismaeel and others PLD 2012 Lah. 178 and Hafiz Muhammad Shahid Nawaz v. Hafiz Muhammad Saeed 2010 CLC 1941 rel.

Shaukat Rauf Siddiqui for Petitioner.

Masood Ahmad Khan for Respondents Nos. 1 and 2.

2017 M L D 439

[Lahore]

Before Ali Akbar Qureshi, J

Malik ASHFAQ AHMAD---Petitioner

Versus

PUNJAB COOPERATIVES BOARD FOR LIQUIDATION through Chairman---Respondent

Petition No.3 of 2015, decided on 11th November, 2016.

Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 11---Land belonging to defunct corporation---Forgery for purpose of usurping land---Land in question was purchased by the defunct corporation through various sale deeds---Certain persons in connivance with each other in order to grab and usurp the land, prepared forged documents including credit vouchers etc. in their favour---Record of the defunct corporation did not mention anywhere that the said amount was to be credited in its account---Petitioner, who claimed to be the owner of the land in dispute could not produce the latest fard malkiyat in his name because the land in question, in the revenue record, still existed in the name of the defunct corporation---Although petitioner claimed that the land was purchased by his predecessor but he could not place on record anything to show, that the sale of land in favour of the defunct corporation was challenged in any manner whatsoever by his predecessor---Petitioner in such circumstances had no locus standi to claim the ownership of the land in question or ask for the issuance of "No Objection Certificate" in his favour---Petition was dismissed accordingly.

Shaikh Naveed Sheharyar and Humaira Bashir for Petitioner.

Shaighan Ijaz Chadhar for Respondent.

2017 M L D 446

[Lahore (Bahawalpur Bench)]

Before Farrukh Gulzar Awan, J

Malik SAJID ISMAEEL and others---Petitioners

Versus

The STATE and others---Respondents

Crl. Misc. Nos.2739-B of 2015, and 36-B of 2016, decided on 10th March, 2016.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.322, 148 & 149---Qatl-bis-sabab, rioting, common object---Pre-arrest bail, confirmation of---Accused had been attributed the role of administering poisonous material, and co-accused persons had been attributed the role of holding the deceased at the time of alleged occurrence---Accused was involved in the case on the supplementary statement of the complainant, but without disclosure of source of information---Medical evidence available on record, had shown that no mark of violence on person of deceased was observed; no drug/poison was detected by the Chemical Examiner; and even cause of death could not be ascertained---Investigating Officer, had exonerated accused persons vis-a-vis offence under S.302, P.P.C., substituting the same by S.322, P.P.C., which though was non-bailable, but was punishable for Diyat---Liberty of accused persons, could not be curtailed, merely on the basis of allegations---Accused persons, throughout the investigation, had been joining the investigation process---In absence of any motive to do away with the deceased and the medical evidence being prima facie contradictory to the oral version of the complainant, malice and mala fide on the part of the complainant, could not safely be ruled out---Concession of ad interim pre-arrest bail, already granted to accused persons, stood confirmed, in circumstances.

Syed Muhammad Firdaus and others v. The State 2005 SCMR 784 and Qammar Naseer alias Baitu Masih and other's case 2006 YLR 1221 ref.

Sadiq Mahmood Khurram Malik for Petitioners (in Crl. Misc. No.2739-B of 2015).

Malik Abdul Rasheed Khokhar for Petitioner (in Crl. Misc. No.36-B of 2016).

Ch. Shamas-ul-Haq for the Complainant.

2017 M L D 467

[Lahore (Multan Bench)]

Before Ali Akbar Qureshi, J

MALIK BROTHERS COTTON GINNING PRESSING AND OIL MILLS through Sole Proprietor and another---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Commerce and 4 others---Respondents

W.P. No.16684 of 2014, decided on 26th December, 2014.

Constitution of Pakistan---

----Art. 199----Constitutional petition---Contractual obligation---Enforceability---Scope---Trading Corporation of Pakistan (TCP) advertised for the purchase of Cotton and petitioners applied for the same---Officials of the corporation visited the premises of the petitioners and assured/promised that contract of purchase would be executed---Corporation, however, refused to execute the contract on the pretext that Federal Government had restrained the corporation to purchase cotton any more---Petitioners contended that they had been subjected to discriminatory treatment as the corporation had executed a contract with another party---Validity---Petitioners had filed the application (for grant of the contract) well before the instructions conveyed by the Federal Government, whereby the TCP had been restrained to sign any further contract---Letter/instructions of the Federal Government had specifically advised to the TCP to complete the process of sampling of the offered contracts, and the petitioners, in the present case, had made an offer for contract; therefore, the corporation was bound to complete the process of sampling to sign the contract in favour of the petitioners---Instructions whereby the corporation had been restrained to sign further contract had prospective effect---No ground was available to refuse to sign the contract with the petitioners who had approached the corporation well within time and fulfilled all the requirements and conditions---Corporation, having put the machinery in motion by visiting the premises of the petitioners, had refused to sign the contract on the lame excuse, with mala fide intention and ulterior motive---High Court observed that the officers of the corporation were granting the contract to the persons of their own choice or liking and directed the corporation to execute the offered contract with petitioners as per the policy---Constitutional petition was allowed in circumstances.

Messrs SF Engineering Services through Proprietor v. Federation of Pakistan through Secretary, Water and Power, Islamabad and 4 others PLD 2014 Sindh 378 and Haqbahoo Corporation v. P.I.A. and others PLD 2003 Kar. 369 rel.

Malik Sohail Ashiq Shujra for Petitioners.

2017 M L D 479

[Lahore]

Before Shahid Jamil Khan, J

GHULAM RASUL through Legal Heirs and others---Petitioners

Versus

IHSAN ULLAH through Legal Heirs and others---Respondents

Civil Revision No. 2832 of 2015, heard on 25th April, 2016.

Civil Procedure Code (V of 1908)---

----O. XXI, R. 1 (1)(c) & S.115---Execution of decree---Deposit of money---Extension of time---Execution application filed by decree holder was dismissed by Executing Court on the ground that decree holder deposited decretal amount after the date fixed by Executing Court---Lower Appellate Court declined to interfere in the order passed by Executing Court---Validity---Application for deposit of amount was filed on last date that too without showing any effort for payment as required under the decree and amount deposited in Court was not "payment under decree"---Payment of amount, within stipulated period was a condition precedent for execution of compromise decree---Both the Courts rightly dismissed execution petition by holding that decree holder failed to perform his part under compromise decree---Failure of decree holder to make payment under compromise decree, a valuable right had accrued in favour of judgment debtor, which could not be disturbed at appellate stage---Lower Appellate Court while hearing appeal against dismissal of execution petition could not go beyond decree to extend time stipulated in compromise decree---Revision was in circumstances.

Shah Wali v. Ghulam Din alias Gaman and another PLD 1966 SC 983; Riaz Hussain v. Nazar Muhammad and others 2005 SCMR 1664 and Sheikh Attiq-ur-Rehman Sarwar v. Sajjad Hussain 2009 SCMR 684 rel.

Rana Ghulam Sarwar for Petitioners.

Nemo for Respondents.

2017 M L D 494

[Lahore]

Before Mazhar Iqbal Sidhu, J

SAMINA IRAM---Petitioner

Versus

The STATE and others---Respondents

Crl. M. No.10334-B of 2016, decided on 29th September, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(1)---Penal Code (XLV of 1860), Ss. 302, 34 & 109---Qatl-i-amd, common intention and abetment---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Accused, a female---Allegation against accused-lady was that she had conspired with her husband to commit murder---Accused-lady had not caused any injury to the deceased, she having an infant, her case fell under the exceptions of proviso (1) of S. 497, Cr.P.C.---Nothing was required to be recovered from her, she had been declared innocent in first phase of investigation---Accused lady was prepared to surrender her passport to the court till the decision of the case, which eliminated the chance of her abscondence---Circumstances had brought the case of accused-lady within the ambit of further inquiry---Ad-interim pre-arrest bail already granted to accused-lady was confirmed in circumstances with the direction to surrender her passport to the Trial Court till the decision of the case.

Syed Farhad Ali Shahu for Petitioner.

Ikram Ullah Khan Niazi D.P.G. with M. Mansha ASI for the State.

2017 M L D 504

[Lahore (Multan Bench)]

Before Farrukh Gulzar Awan, J

MUKHTIAR AHMAD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, MULTAN and 4 others---Respondents

Writ Petition No.1751 of 2010, heard on 23rd February, 2016.

Illegal Dispossession Act (XI of 2005)---

----Ss.3, 4 & 7---Constitution of Pakistan, Art.13---General Clauses Act (X of 1897), S.26---Double jeopardy, principle of---Applicability---Word "offence" as mentioned in Art.13 of the Constitution disclosed the act or omission made punishable under the same provision of law and if the same was punishable under the different statutes/provisions of law, it could not be said to have committed the same offence---Principle of "double jeopardy" was applicable to the same offence under the same statute/provisions of law only---In the present case, the complainant re-agitated his grievance by filing second private complaint in respect of the same occurrence and same accused by alleging that accused forcibly dispossessed the complainant from his land---Constitutional petition of complainant was dismissed in circumstances.

Shakeel Javed Chaudhary for Petitioner.

Mian Adil Mushtaq, Asstt. A.-G. for the State.

2017 M L D 532

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

NASIR alias NASRULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.811 and Murder Reference No.134 of 2009, heard on 26th October, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Ocular account furnished by prosecution witnesses, who were from the locality, was consistent and straightforward on all the salient aspects of the occurrence---Nothing could be solicited from those witnesses which could even obliquely discredit their credibility---Incident was a daylight occurrence with single accused---Father of the deceased was not expected to substitute assassin of his son with an innocent person---Medical evidence was in line with the ocular account; and duration of time given therein corresponded with the time of occurrence given in complaint---Every hypothesis of innocence of accused stood excluded---Accused exhibited an extremely violent conduct, disproportionate to the reason cited for the crime---Mere refusal of the deceased to extend credit to accused, would not provoke such a violent backlash---What immediately preceded to occurrence, remained shrouded in mystery---All those aspects, made out a case for conversion of death penalty into imprisonment for life, which was an alternate sentence, and would meet the ends of justice---Penalty of death was altered into imprisonment for life---Benefit of S.382-B, Cr.P.C., was also extended to accused---Amount of compensation/fine, was kept intact, in circumstances.

Ghulam Mohy-ud-Din alias Haji Babu v. The State 2014 SCMR 1034 rel.

Muhammad Anwar Ali Khan Rana for Appellant.

Malik Riaz Ahmad Saghla, Deputy Prosecutor General for the State.

Nemo for Complainant.

2017 M L D 535

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed, J

ASGHAR ALI---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.999-M of 2015, decided on 16th October, 2015.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S.561-A---Qanun-e-Shahadat (10 of 1984), Art.133---Dishonestly issuing a cheque---Forfeiture of cross-examination---Petition under S.561-A, Cr.P.C. against the order of forefeiture---After submission of report under S.173, Cr.P.C., case could not proceed for one reason or the other---Various adjournments were allowed to the discredit of the complainant---Trial Magistrate succeeded in recording statements of prosecution witnesses, but cross-examination was deferred on the request of the defence---On various dates the witnesses were in attendance, but due to non-availability of the defence counsel, case was adjourned with last opportunity to the petitioner/accused to arrange cross-examination---On various dates of adjournments, witnesses were again in attendance but accused failed to arrange for cross-examination---Accused, was once again cautioned with the last opportunity to arrange his representation---Lastly, when despite availability of witnesses, the petitioner/accused failed to arrange cross-examination through his counsel, his right of cross-examination was forfeited---Validity---Right of cross-examination, was a most valuable right which would enable an accused confronting a criminal charge to vindicate his position---No statement, except a dying declaration, could be read in evidence to the detriment of a person, likely to be adversely affected by such statement, unless cross-examined---Right of hearing and right of cross-examination, were equally important to ensure a fair trial---Accused was to be afforded a meaningful and reasonable opportunity to canvass his point of view; as well as impeach credibility of the witnesses appearing against him through cross-examination which would not mean that accused would avail those opportunities according to his whims and choice; or he could hold in abeyance the process of law to a point of time of his selection---Legislature in its wisdom had provided a period, no less or no later than seven days---For a valid cause that period could be extended, but within reasonable limit---Incessant adjournments and importunate cross-examinations, were the factors behind social apathy towards civic responsibility to become a witness in aid of justice despite a divine command---Call of strike by the members of the Bar could not be taken as a cover for failure to cross-examine a witness, who was in attendance---Petitioner could not press into service lawyers's strike to indemnify his absence or failure to arrange representation on the witnesses, who were in attendance---Petition under S.561-A, Cr.P.C. was dismissed.

Ch. Shamsher Ali v. Khalid Mehmood 2015 YLR 47 and B.L. Wadehra's case AIR 2000 Delhi 266 ref.

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

----S. 561-A---Inherent powers of High Court---Scope---Powers under S.561-A, Cr.P.C., were to prevent abuse of process of law and in aid of justice; those powers could not be invoked to validate wrongs.

2017 M L D 572

[Lahore]

Before Shahid Waheed, Shams Mehmood Mirza and Shahid Karim, JJ

MUHAMMAD SIDDIQUE---Petitioner

Versus

M.B.R./C.S.C., PUNJAB and others---Respondents

W.P. No.11687 of 2009, decided on 18th November, 2015.

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

----S.2---Notified officer---Jurisdiction---After promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, consequently upon repeal of all laws relating to evacuees and displaced persons, all proceedings which immediately before such repeal, were pending before authorities appointed thereunder were transferred for final disposal to such officers as notified by Provincial Government in official gazette---All cases decided by the Supreme Court or High Court after such repeal which would have been remanded to any such Authority in the absence of such repeal also stood remanded to the officers so notified---Any proceedings transferred or remanded to the notified officer were required to be disposed of by said officer in accordance with the provision of repealed Act or Regulations to which proceedings related.

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

----S.2---Punjab Government Notification No.1996-2008/564-Admn (I) dated 24-4-2008---Notified officer---Jurisdiction---Petitioners assailed authority of Chief Settlement Commissioner on the ground that after repeal of evacuee laws he could not act as such---Validity---Chief Settlement Commissioner in view of Punjab Government Notification No.1996-2008/564-Admn(I) dated 24-4-2008 was the officer who was lawfully notified to decide/dispose of pending or remanded cases relating to displaced persons and evacuee property as contemplated in S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Appellation of Chief Settlement Commissioner in the said notification did not mean that the offices created under repealed Act and Regulations were resurrected---Appellation in question neither conferred additional powers nor altered status of Notified Officer---Notwithstanding the appellation/designation in question status of Chief Settlement Commissioner remained as Notified Officer---Mentioning of any appellation did not affect validity of notification in question.

Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97; Province of Punjab through Member Board of Revenue (Residual Properties) Lahore and others v. Muhammad Hussain through Legal Heirs and others PLD 1993 SC 147; Sagheer Muhammad Khan and 5 others v. Member Judicial (V) Board of Revenue, Punjab and 4 others 2009 YLR 1255 and Dr. Muhammad Iqbal and 9 others v. Member, Board of Revenue/Chief Settlement Commissioner, Lahore and another PLD 2010 Lah. 249 ref.

C.P. No.709-L of 2009 rel.

Malik Noor Muhammad Awan for Petitioner.

Mehmood A. Sheikh for Respondent.

Ch. Rashid Abdullah for Petitioner.

Maqbul Sadiq and Khalil Ahmad Ali for Petitioner (in W.Ps. Nos.158/R/2008, 172/R/2010 and 173/R/2010).

Hafiz M. Yousaf for Appellant (in I.C.As. Nos.566/2011, 559/2011, 558/2011, 98/2010, 461/2010 and 769/2014).

Mian Luqman for Petitioner (in W.P. No.11-R/2012).

Bashir Ahmad Mirza for Petitioner (in W.P. No.45-R/2009).

Ch. Iqbal Ahmad Khan for Petitioner (in I.C.A. No.31/2012).

Naseem Sabir Ch. for Respondents in connected petition.

Ch. M. Shafique for Respondents (in W.Ps. Nos. 96-R/2011, 17-R/2011 and 124-R/2008).

Hafiz M. Yousaf for Respondent (in W.Ps. Nos.11687/2009, 187-R/2009, 85-R/2009, 6332/2009, 5735/2014 and 138-R/2014 and Crl. Orig. No. 344/W/2009).

Kh. Waseem Abbas and Imran Humayun Chheena for Respondents in connected petitions.

Mian Shahid Iqbal for Respondent in connected petition.

M. Sohail Tipu for Respondent (in W.P. No.124-R/2008).

Muhammad Sharif Chohan and Hafiz Muhammad Yousaf for respondents.

Rana Shmshad Khan, A.A.G.

Gazanfar Khalid Saeed for Settlement Department.

Ashfaq Quyyam Cheema for Applicant in connected matter.

Mian Rafaqat Ali for Petitioner (in W.P.No.5735/2014)

Ch. Arshad Hussain, for Petitioner (in W.P.No.7911-R-2011)

Sh. Naveed Sheharyar for Petitioner (in W.P.No.85-R-2009).

Mr. Sagheer Muhammad Khan for respondent No.3 (in W.P. No.101-R-2009).

Muhammad Afzal for Petitioner (in W.P.No.88-R-2011).

Malik Amjad Pervaiz for Petitioner (in W.P.No.18-R-2012).

2017 M L D 580

[Lahore]

Before Jawad Hassan, J

KHURRAM SHEHZAD---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GUJRANWALA and others---Respondents

W.P. No.4417 of 2012, decided on 11th January, 2017.

(a) Family Courts Rules, 1965---

----R. 6---Family Courts Act (XXXV of 1964), S. 5, Sched.---Suit for recovery of maintenance allowance, dower and dowry articles---Territorial jurisdiction---Determination of---Expression 'ordinarily resides'---Scope---Expression 'ordinarily resides' did not necessarily mean that residence should be long in point of time---Residence for a few days was enough---Court had to examine the place where the wife had chosen to stay regardless of whether she was a permanent resident of the place, whether she had property over there or the length of time she had resided there---Both the courts below had rightly decided the issue of territorial jurisdiction in favour of wife---No illegality or mis-reading and non-reading of evidence had been pointed out in the impugned judgments passed by the Courts below---Constitutional petition was dismissed in circumstances.

Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others PLD 2012 SC 66 and Anjum Firdous v. Additional District Judge and others 2007 CLC 1433 distinguished.

Bibi Anwar Khatoon v. Gulab Shah and 2 others PLD 1988 Kar. 602; Mahbub Ahmad v. First Additional District Judge and another PLD 1976 Kar. 978; Fazal Khitab v. Mst. Naheed Akhtar and another PLD 1979 SC 864; Rafiq Ahmad v. Judge Family Court, Khanewal and another 1996 CLC 1820; Mst. Shahnaz Kausar v. Muhammad Boota PLD 1982 Lah. 350; Mst. Irshad Mai v. Additional District Judge and another 1997 CLC 742; Dicey in his book "Conflict of Laws" at page 96 and "Conflict of Laws" by Graveson, 6th Edition at page 197 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Question of fact could not be gone into by the High Court while exercising constitutional jurisdiction.

(c) Family Courts Rules, 1965---

----R. 6---'Ordinarily resides'---Meaning.

Dicey in his book "Conflict of Laws" p.96 rel.

Sh. Ishrat Mehmood for Petitioner.

Nemo for Respondents.

2017 M L D 590

[Lahore (Rawalpindi Bench)]

Before Shahid Mubeen, J

FATEH MUHAMMAD and 8 others---Petitioners

Versus

ALLAH DITTA and 5 others---Respondents

C.R. No.812 of 2010, decided on 27th April, 2016.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O. XVII, R. 3---Ex-parte decree, setting aside of---Closure of evidence---Adjournment was granted on the previous date at the request of petitioners for production of their evidence---Trial Court had rightly invoked the provision of O. XVII, R. 3, C.P.C.---Petitioners by not producing their evidence had made impossible for the Trial Court to proceed further with the matter---No illegality or infirmity had been pointed out in the impugned judgments passed by the courts below---Revision was dismissed in circumstances.

Ahlian Moori Payeen through representative and others v. Ghulam Muhammad and 7 others 2010 CLC 902 distinguished.

Executive Engineer, Peshawar v. Messrs Tour Muhammad and Sons and 4 others 1983 SCMR 619; Sajida Mussarrat v. Muhammad Shafi and 2 others 1993 CLC 1514; Mst. Arifa Amjad and 2 others v. Abbas Tayyab Dar and another 1990 CLC 1743; Rana Tanveer Khan v. Naseer-ud-Din and others 2015 SCMR 1401; PLD 1990 SC 1192 and PLD 1991 SC 1109 rel.

Malik Nasrullah Awan for Petitioners.

2017 M L D 603

[Lahore (Rawalpindi Bench)]

Before Abdul Sami Khan, J

ABDUL QADOOS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.80-B of 2016, decided on 2nd February, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.496-A---Enticing or taking away or detaining with criminal intent a woman---Bail, grant of---Further inquiry---Case being of bail after arrest, deeper appreciation was not allowed---Unexplained delay of ten days in the registration of FIR---Name of accused did not figure in the FIR, rather his name had been replaced with other person through supplementary statement---Accused had undergone extensive period of remand, but nothing had been recovered from him---Accused, who was previously non-convict was behind the bars since 10-12-2015---Investigation qua accused was completed, and he was no more required for the purpose of further investigation---Challan having been submitted, no useful purpose would be served by keeping accused under incarceration for an indefinite period---Offence under S.496-A, P.P.C., with which accused was charged, did not fall within the prohibitory clause of S.497, Cr.P.C.; in such like cases grant of bail was a rule and its refusal was an exception---Case against accused having become of further inquiry, accused was admitted to bail, in circumstances.

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

Shahzad Raza Mubashir for Petitioner.

Sheikh Istajabat Ali, Deputy Prosecutor General for the State. and Imtiaz Shah SI with record.

2017 M L D 617

[Lahore]

Before Jawad Hassan, J

Miss ZAIBUNISA KHAN and others---Petitioners

Versus

The UNIVERSITY OF HEALTH SCIENCES and others---Respondents

W.P. No.40837 of 2016, decided on 9th January, 2017.

(a) Educational Institution---

----Medical student---Petitioners (students) had failed in M.B.B.S. First Professional examination even after availing four consecutive chances---Petitioners sought direction for allowing them to appear in supplementary examination on the basis of hardship---Scope---Petitioners had ceased to be eligible for further medical education---Right of petitioners to seek education was subject to Statutes/ Regulations framed by the University to regulate the studies---If a student failed to clear the examination in the prescribed chances, he would cease to become eligible for further education---Petitioners had rightly been denied next chance after availing four consecutive chances in the First Professional M.B.B.S. Part-II examination---Such students could not get extra favour contrary to the Rules and Regulations of University under the garb of hardship/unavoidable circumstances---Constitutional petition was dismissed in circumstances.

Alaptagin v. Principal Saidu Sharif Medical College, Swat and 3 others PLD 2004 Pesh. 307 ref.

Muhammad Salman Ghani v. Government of Punjab, thorugh Secretary to Government of Punjab Health Department, Lahore and 3 others 2006 CLC 463 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could not go into the factual controversy of the matter while exercising constitutional jurisdiction.

Liaquat Ali Quresehi and Ms. Mehwish Khurshid for Petitioners.

2017 M L D 661

[Lahore]

Before Abdul Sami Khan and Raja Shahid Mehmood Abbasi, JJ

MUHAMMAD IQBAL---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Home and 10 others---Respondents

W.P. No.1614 of 2015, decided on 14th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 202---Penal Code (XLV of 1860), Ss. 365-A, 337-J, 344, 109, 148, 149 & 506---Anti-Terrorism Act (XXVII of 1997), S. 7---Act of terrorism, kidnapping or abduction for extorting property, causing hurt by means of a poison, wrongful confinement, abetment, rioting, unlawful assembly and criminal intimidation---Private complaint---Private-complaint to the extent of S. 365-A, P. P. C read with S. 7 of Anti-Terrorism Act, 1997 was dismissed with the observation that complainant could file another private complaint before the court of ordinary jurisdiction---Validity---Impugned order was self-contradictory as on the one hand Trial Court observed that occurrence to the extent of abduction and receiving ransom was not believable and at the same time it was observed that complainant could file another private complaint to the extent of other offences before the court of ordinary jurisdiction---Trial Court had not taken into consideration the documentary evidence produced by the complainant---Serious allegations had been levelled against the accused---Sufficient material was available on record to proceed with the trial---Trial Court had only to see if prima facie case was made out or not---Appreciation of evidence at preliminary inquiry was not the purpose under S. 202, Cr.P.C.---Trial Court had erred in law while dismissing the private complaint---Impugned order passed by the Trial Court was set aside and Trial Court was directed to proceed with the trial---Constitutional petition was allowed in circumstances.

Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105 rel.

Rana Kasif Saleem Arfaa for Petitioner.

2017 M L D 689

[Lahore]

Before Ali Akbar Qureshi, J

Mst. SARDARAN BIBI and others---Petitioner

Versus

Mst. ALLAH RAKHI through L.Rs. and others---Respondents

C.R. No.2512 of 2016, heard on 19th May, 2016.

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

----Ss. 42 & 54---Oral Gift---Suit for declaration and permanent injunction on basis of oral gift---Claim of inheritance---Plaintiffs filed suit on the ground that suit property was owned by the father (deceased) of the parties to the case---On chehlum of deceased, defendants-real sisters of plaintiff orally gifted the suit property in favour of plaintiff---When plaintiff intended to transfer property to his son defendants refused to honour their commitment---Suit of plaintiff was dismissed by the Trial Court as well as lower appellate court---Validity---Plaintiff had failed to fulfill the mandatory requirements of an "oral gift" as no specific date, time and place was mentioned in the plaint---Witnesses could not substantiate claim of plaintiff even plaintiff himself failed to prove his case---Defendants flatly and categorically denied the factum of making oral gift in favor of plaintiff---Women who were weaker segment of society were not to be deprived of their right of inheritance in the name of custom or by emotionally exploiting them---Revision was dismissed accordingly.

Muhammad Nawaz through LRs v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Rana Surbland Khan v. B.K. Enterprises through Director PLD 2015 Lah. 681 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

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

----S. 115---Revisional jurisdiction of High Court---Concurrent findings of lower courts---Principle---High Court in case of concurrent findings declined to interfere unless impugned findings were result of exercise of jurisdiction not vested in lower courts.

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; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984; Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 and Abdul Ghafoor and others v. Kallu and others 2008 SCMR 452 rel.

Zafar Iqbal Chohan for Petitioner.

2017 M L D 730

[Lahore]

Before Shahid Hameed Dar, J

AHMAD ALI---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.7863-B of 2016, decided on 26th July, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 201, 109, 148, 149 & 34---Qatl-i-amd, causing disappearance of evidence, abetment, rioting with deadly weapon, common intention---Bail, grant of---Complainant alleged that accused persons took his brother with them for doing labour on their land where he was murdered by a fire shot---Deceased's father had stated that his son died because of bullet shot fired from his own pistol which he had concealed in fold of his shalwar (pantaloons)---Extra-judicial confession of accused before complainant and his co-witness was weakest type of evidence---Eye-witnesses remained silent for seven long days and did not disclose as to when they informed complainant about factum of having seen the occurrence---FIR mentioned that accused had tried to stop bleeding of deceased and shifted him to hospital---Nothing was recovered from accused during physical remand---Investigating Officer had concluded that deceased was injured by his own pistol which accidently went off while kept in his shalwar (pantaloons)---Accused was arrested after four and half years after alleged occurrence but no proceedings under S.87, Cr.P.C. were initiated against him---Abscondance did not affect bail application of accused---Case of accused being that of further inquiry, bail application was accepted accordingly.

Mushtaq Ahmad Mohal for Petitioner.

Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab for the State with Abdul Majeed S.I.

2017 M L D 745

[Lahore (Multan Bench)]

Before Farrukh Gulzar Awan, J

MUKHTIAR HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.763 of 2010, heard on 14th October, 2015.

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

----Ss. 302(b) & 337-F(vi)---Criminal Procedure Code (V of 1898), S. 340(2)--- Qatl-i-amd, causing Munaqqilah--- Appreciation of evidence---Benefit of doubt---Complainant, had made improvements with regard to time of occurrence and failed to tell the exact date, time, month as well as year of occurrence---Deposition of Medical Expert, suffered from dishonest/material improvements---Stance of the defence, found support even from the FIR---Defence plea, though could not be relied upon to discard the eye-witness account, as accused opted not to appear in his defence under S.340(2), Cr.P.C., nor produced any evidence in support of his contention, but same was very much relevant when the same found support from other circumstantial evidence, produced by the prosecution---Motive set up by the prosecution, had been attributed to acquitted co-accused---Improved deposition of both the eye-witnesses, were duly confronted during trial with regard to time of occurrence, role of co-accused (since acquitted)---When a witness improved version, the improved statement subsequently made, could not be relied upon, and its credibility would become doubtful---Complainant had not challenged the acquittal of co-accused, who was acquitted on merits on the basis of same set of witnesses by giving him benefit of doubt by the Trial Court---Benefit of principle of rule of consistency should be given to accused---Prosecution, having failed to prove its case against accused beyond reasonable doubt, conviction and sentence recorded by the Trial Court against accused, vide impugned judgment were set aside, and he was acquitted of the charge; and he being on bail, his bail bond as well as sureties stood discharged from the liability, in circumstances.

Akhtar Ali and others v. The State 2008 SCMR 6 and Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825 ref.

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

----S. 302(b)---Qatl-i-amd---Medical evidence, scope---Deposition of medical expert, was supportive piece of evidence which was relevant, when same would find support from strong and un-shattered deposition of eye-witnesses---Medical evidence could confirm only the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death, but it would not tell the name of assailant.

Tanveer Ahmed v. The State 2013 YLR 1845 rel.

(c) Criminal trial---

----Benefit of doubt---Prosecution was to stand on its own legs and to prove the case beyond any shadow of doubt---Single stance causing a reasonable doubt in the mind of the court, would entitle accused to the benefit of doubt; as a matter of right and not of grace---Rule of benefit of doubt could not be ignored while dispensing justice according to law---Said principle was based on the maxim "it was better than ten guilty person be acquitted, rather than one innocent person be convicted".

Tariq Pervaiz v. The State 1995 SCMR 1345 and Abdul Hussain v. The State 2003 PCr.LJ 1847 rel.

Muhammad Usman Sharif Khosa for Appellant.

Abdul Qayum, A.P.G. for the State.

Jamil Hussain Nutkani for the Complainant.

2017 M L D 767

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD KAMIL alias DEWAN KAMIL---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.1593-B of 2016, decided on 28th April, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon and unlawful assembly---Bail, grant of---Plea of alibi---Accused remained on physical remand for 14 days but nothing was recovered from him---Investigating Officer had opined that accused had not taken part in the incident, being physically away from the place of occurrence, however, his involvement in the case by way of abetment was not ruled out---Bail could be granted in a capital charge on the plea of alibi if peculiar facts and circumstances of the case so justified---Abdominal injury of the deceased allegedly attributed to the accused but said injury could not cause death of deceased---Bail was allowed in circumstances.

Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97; Akram Khan v. The State and another 1978 SCMR 242; Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samma and another 1975 SCMR 219 and Meeran Bux v. The State and another PLD 1989 SC 347 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon and unlawful assembly---Bail, grant of---Further inquiry---Obstructing the proceedings of trial---Trial court granted repeated adjournments, during trial for different reasons, not necessarily attributable to the accused---Accused allegedly abetted the crime, as had opined by the investigating officer, which was not based on any worthwhile incriminating material---Attending circumstances made the case of accused being one of further inquiry as envisaged by S. 497(2), Cr.P.C.---Bail was allowed accordingly.

Muhammad Ahsan Bhoon for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General Punjab along with Ishtiaq S.I. for the State.

2017 M L D 775

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed, J

ARSHAD alias HERA and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.433 of 2010 and Criminal Revision No.313 of 2012, heard on 30th September, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Report to the Police, was not prompt; and post mortem examinations, were also delayed---Both, the complainant and prosecution witness, who were residents of 50-Km away from the place of occurrence were chance witnesses; they no doubt, had rendered graphic details of the occurrence, supported by medical evidence, but their arrival at the spot at the relevant time, warranted serious consideration---Was hard to believe that a real sister, would play privy to a cold blooded murder of her sister---Narrative details furnished by alleged eye-witnesses, sans probability as they were chance witnesses---Inquest reports having not been prepared, FIR, was not recorded at a point of time stated therein---Co-accused was exonerated during course of investigation---Case of prosecution, did not seem free from doubts; it would be unsafe to maintain conviction of accused---Accused, were acquitted from the charge, extending them the benefit of doubts---Accused being on bail, their bonds were cancelled; and sureties discharged, in circumstances.

Rana Muhammad Asif Saeed for Appellants.

Muhammad Ali Shahab, D.P.G. for the State.

Abdul Sattar Bhutto for the Complainant.

2017 M L D 815

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

SANA GULNAZ---Appellant

Versus

SECRETARY, HEALTH GOVT. OF PUNJAB and others---Respondents

I.C.A. No.1023 of 2016, decided on 8th February, 2017.

(a) Educational Institution---

----Examination---Re-checking/re-evaluation of answer sheets---Student sought directions of High Court to the university for enhancing marks in answer book---Allegation of student was that university had violated the regulations making her career at stake---University contended that prescribed rules could not be agitated in constitutional petition---Validity---High Court declined interference in matters pertaining to marking of answer sheets by officers of colleges and universities who were expert in their field---High Court could not substitute its findings for that of the persons skilled in their task---Constitutional petition being not maintainable was dismissed accordingly.

Muhammad Farooq Wajid v. FPSC and others PLD 2015 Lah. 457; Muqarab Akbar v. Bahauddin Zakariya University, Multan through Registrar and 2 others 2006 MLD 1776; Abdul Hakim Hashmi v. Federal Public Service Commission through Chairman and 8 others 2002 SCMR 504 and Board of Intermediate and Secondary Education Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Educational Institution---Examination---High Court declined interference in matters pertaining to making of answer sheets by officers of the educational institution who were expert in their filed---High Court could not substitute its findings for that of the persons skilled in their task---Constitutional petition was not maintainable.

Mirza Abdul Khaliq for Appellant.

Sultan Mahmood, Assistant Advocate-General for Respondent No.1.

Imran Sarwar, Vice-Counsel for Respondent No.2.

2017 M L D 827

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

Qureshi MUHAMMAD ASLAM---Petitioner

Versus

ADDITIONAL DIRECTOR ACE, SARGODHA and others---Respondents

Review Application No.64 of 2013, decided on 7th February, 2017.

Civil Procedure Code (V of 1908)---

----S. 114---Review---Scope---Review was not competent where neither any new and important matter or evidence had been discovered nor was any mistake or error apparent on the face of record---Such error might be an error of fact or of law but it must be self-evident and floating on surface not requiring any elaborate discussion---Error must not only be apparent but must also have a material bearing on the fate of case and be not of inconsequential import---Where judgment or finding, although suffering from erroneous assumption of facts, was not sustainable on other grounds on record, review was not sustainable.

Shabbir Ahmed Zafar v. MBR and others 2016 CLC 1655 ref.

Abdul Hameed Tahir Qasoori for Petitioner.

2017 M L D 832

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

GOVERNMENT OF PUNJAB and others---Appellants

Versus

ISHTIAQ AHMAD BUTT and others---Respondents

I.C.A. No.184 of 2013, decided on 1st February, 2017.

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

----Art. 151 & Ss. 3, 5---Law Reforms Ordinance (XII of 1972), S.3(2)---Intra-court appeal---Limitation---Condonation of delay---Sufficient cause---Scope---Constitutional petition was allowed against which civil petition for leave to appeal was filed before the Supreme Court which was dismissed as withdrawn and intra-court appeal was filed---Contention of appellant was that delay in filing intra-court appeal was not deliberate or intentional---Validity---No reason or justification had been given in the application for condonation of delay to justify delay in filing the intra-court appeal---Only ground/reason for condonation of delay was 'mis-reading and misinterpreting' which was neither cogent nor confidence inspiring to extend favour of condonation of delay---Supreme Court while disposing of civil petition for leave to appeal made no observations with regard to condonation of delay in filing of the intra-court appeal rather disposed of the petition as withdrawn---Date on which the Supreme Court dismissed the civil petition for leave to appeal as withdrawn, was to he considered as the date of filing intra-court appeal---Intra-court appeal, therefore, was barred by limitation---Appellant had failed to show any sufficient reason for condonation of delay---No reason existed to condone the delay in filing of intra-court appeal---Impugned judgment was personam for respondents---Petition for condonation of delay and intra-court appeal were dismissed being barred by time.

Dr. Syed Sibtain Raza Naqvi v. Hydrocarbon Development and others 2012 SCMR 377; Gen. (R) Parvez Musharraf v. Nadeem Ahed (Advocate) and another PLD 2014 SC 585; Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi 2014 SCMR 1594; Government of Baluchistan v. Abdul Nabi and another 1988 SCMR 1906; Province of Punjab through District Officer Revenue, Rawalpindi and others v. Muhammad Sarwar 2014 SCMR 1358; Province of Punjab and others v. Aftab Ahmed and others 2012 PLC (C.S) 1402 and Ministry of Defence and 3 others v. Muhammad Athar 2013 MLD 1284 ref.

Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others PLD 2001 SC 355 and Federation of Pakistan and 2 others v. Khurshid Ahmed and another 1999 SCMR 664 rel.

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

----Art. 151---Law Reforms Ordinance (XII of 1972), S.3(2)---Intra-court appeal---Limitation---Limitation for filing appeal from decree or order of High Court passed in original jurisdiction was twenty days from the date of said decree or order.

Sultan Mehmood, Asstt. A.-G. and Javed Hussain Sial, Law Officer for Appellant.

Malik Muhammad Awais Khalid and Mian Bilal Bashir for Respondent.

2017 M L D 845

[Lahore]

Before Ali Akbar Qureshi, J

MUKHTAR AHMAD---Petitioner

Versus

MUHAMMAD AMEEN (deceased) through Legal Heirs and 8 others---Respondents

Civil Revision No.3917 of 2016, decided on 10th October, 2016.

Gift---

----Gift through attorney---Scope---Contention of plaintiff was that impugned gift deed was result of fraud and misrepresentation---Suit was decreed concurrently---Validity---Love and affection in case of making a gift could not be conveyed or expressed through any other person including the attorney---Sentiments of love and affection must be established on satisfactory and unimpeachable evidence---Impugned gift deed was silent with regard to consent or permission of original owner---Ownership or title of a property could not be transferred or conveyed by way of general power of attorney in favour of attorney---Attorney by playing fraud and misrepresentation made a gift of suit land in favour of her son which was against law---Donee had failed to prove the genuineness of gift deed made in his favour through any law or evidence---No legal infirmity or jurisdictional defect had been committed by the courts below---Revision was dismissed in limine.

Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Haji Faqir Muhammad and others v. Pir Muhammad and others 1997 SCMR 1811; Muhammad Jalil and 4 others v. Muhammad Sami and 8 others PLD 2006 Lah. 619; Haji Faqi Muhammad and others v. Pir Muhammad and others 1997 SCMR 1811; Noor Muhammad v. Abdul Ghani 2002 CLC 88; Muhammad Arif v. Malik Muhammad Farooq and 4 others 2002 CLC 1361; Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Mst. Bandi v. Province of Punjab and others 2005 SCMR 1368; Muhammad Boota through L.Rs. v. Mst. Bano Begum and others 2005 SCMR 1885; Mst. Parsan Bibi and another v. Mst. Razia Bibi and 10 others 2006 CLC 1893; Muhammad Jalil and 4 others v. Muhammad Sami and 8 others PLD 2006 Lah. 619; Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others 2007 SCMR 1884;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.

2017 M L D 856

[Lahore (Rawalpindi Bench)]

Before Atir Mahmood, J

Malik SHAFAQAT HUSSAIN---Petitioner

Versus

CHIEF ELECTION COMMISSIONER, PUNJAB and 5 others---Respondents

Writ Petition No.3097 of 2016, heard on 29th November, 2016.

Punjab Local Government (Conduct of Elections) Rules, 2013---

----R. 36(5)---Election for local government---Recounting of ballot papers---Scope---Candidate moved application for recounting of votes but same was rejected by the Returning Officer---Validity---Votes would be deemed to be rejected if were rejected by the competent authority i.e. Presiding Officer and not by any other authority---Where no vote rejected was no question of counting rejected votes in favour of opposite candidate would arise---Returning Officer was not bound to recount the ballot papers on each and every request/challenge but for any such action either he himself should be satisfied or by the person who had challenged the validity of the votes---Returning Officer, in the present case, had seen the record produced before him by the candidate as well as the Presiding Officer and found that application for recounting of votes was without merit---Returning Officer was competent to decline application of candidate for recounting of votes---Candidate could approach the Election Tribunal with regard to validity of votes impugned by him if so advised as factual controversy could not be resolved under constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Karamat Hussain and another v. Election Commission of Pakistan through Provincial Election Commissioner (Punjab) and 7 others PLD 2016 Lah. 491 ref.

Malik Jawwad Khalid for Petitioner.

Fazal ur Rehman and Abdul Qayyum Qasuri, Returning Officer for Respondent.

2017 M L D 870

[Lahore]

Before Shahid Hameed Dar, J

SHER MUHAMMAD---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.7825-B of 2016, decided on 8th September, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Bail, grant of---Further inquiry---Two co-accused had already been granted post-arrest bail---Accused's case assimilated with that of said co-accused so far as allegation of causing bodily injuries to the injured persons was concerned---Only the fact which put the case of accused at variance, related to allegation of overpowering deceased, when he was under attack of co-accused---Neither FIR nor statement of witnesses disclosed the mode by which accused and his co-accused had rendered deceased powerless at the crucial hour---Accusation against accused were to be analyzed by Trial Court at the time of trial---Accused allegedly got recovered a hatchet, not blood-stained---Accused was not linked with motive incident in any way---Question of vicarious liability might be better resolved at the appropriate stage of trial---Investigation of case had been finalized and Challan under S. 173, Cr.P.C. had been submitted---Cross case was set up by accused which was recommended for cancellation by investigating officer as District Standing Medical Board after re-examining injuries of injured persons observed that probability of fabrication in that respect could not be ruled out---Fact remained that three accused had been injured during occurrence, whose Medico-legal Reports were available on record---Sufficient reasons existed to believe that accused's case called for further probe into his guilt within scope of S. 497(2), Cr.P.C.---Bail was granted accordingly.

Asghar Ali Gill for Petitioner.

Rana Tassawar Ali Khan, Deputy Prosecutor General for the State with Akram ASI.

2017 M L D 876

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

NADEEM YOUSAF---Petitioner

Versus

SARA NADEEM and 3 others---Respondents

Writ Petition No. 1447 of 2010, decided on 19th November, 2015.

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

----S. 5, Sched---Maintenance allowance for minors---Family Court fixed maintenance allowance for minors @ Rs. 5,000/- per month per minor and Rs. 10,000/- per month was fixed for medical treatment of the minor who was cancer patient---Family Court further observed that maintenance allowance and expenses of medical treatment would also increase 20% per annum---Appellate Court dismissed the appeal filed by the father but increased quantum of maintenance allowance of minors from Rs. 5,000/- per month per minor to Rs. 10,000/- per month per minor without filing any appeal or cross objection by the minors---Validity---One of the minors was a patient of cancer and she was under treatment---Both the minors were getting education and mother had to bear expenses of stationery, tuition fee and transportation etc---Father was bound to provide the minors proper education, health facilities and other basic necessities of life---Maintenance allowance fixed by the Family Court at the rate of Rs. 5,000/- per month per minor was insufficient to fulfil basic needs of the minors---Appellate Court was justified in exercising its discretion for increasing quantum of maintenance allowance of minors without their appeal---Father was abroad and his monthly income was Rs. 1,00,000/- per month---Quantum of maintenance allowance fixed by the Appellate Court could not be held beyond the financial capacity of the father---Courts below were justified to allow annual increase of 20% which was in consonance with the inflation rate of the country---Constitutional petition was dismissed in circumstances.

Mateen Haider v. Additional District Judge, Lahore and others 2005 SCMR 1683 and Muhammad Nazir Khan v. Ahmad and 2 others 2008 SCMR 521 ref.

Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557 rel.

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

----O. XLI, R. 33---Family Courts Act (XXXV of 1964), S.5, Sched. Appellate court, powers of---Appellate Court could mould/modify the relief in favour of non-appealing party---Appellate Court could increase quantum of maintenance (allowance of the minors) in absence of their appeal against the decree of Family Court.

Messrs S.M. Yusuf and Bros. v. Mirza Muhammad Mehdi Pooya PLD 1965 SC 15 rel.

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

---S. 17---Provisions of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 to the proceedings under Family Courts Act, 1964---Scope---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 but said court had power to adopt its own course provided such procedures was not against the principles of natural justice.

Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others 2011 SCMR 1361 and Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365 rel.

Naved Ahmad Kh. for Petitioner.

2017 M L D 889

[Lahore]

Before Sardar Ahmed Naeem, J

MUBARIK ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.433 of 2012, heard on 2nd February, 2017.

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

---Ss. 337-A(i), 337-A(ii), 337-L(2), 147 & 148---Shajjah-i-khafifah, Shajjah-i-madihah, hurt, rioting armed with deadly weapons---Appreciation of evidence---Benefit of doubt-Ocular account---Scope--­Prosecution case was that complainant sustained injuries at the hands of the accused as well the co-accused---Complainant had not attributed any specific injury to the accused in his statement recorded under S.161, Cr.P.C.---Complainant and eye-witnesses had not mentioned date, month or year of the occurrence---No independent corroboration was forthcoming to support the eye witnesses---Complainant was injured which indicated his presence at the relevant time but there was no guarantee of truthfulness---Circumstances established that prosecution had failed to prove its case against accused through unimpeachable ocular testimony beyond any shadow of doubt, thus the conviction of accused could not be maintained--Accused was acquitted, in circumstances, by setting aside conviction and sentence recorded by Trial Court.

(b) Penal Code (XLV of 1860)-

----Ss. 337-A(i), 337-A(ii), 337-L(2), 147 & 148---Shajjah-i-khafifah, Shajjah-i-madihah, hurt, rioting armed with deadly weapons---Appreciation of evidence---Benefit of doubt---Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case would be resolved in favour of the accused.

Muhammad Khan and another v. The State 1999 SCMR 1220 rel.

Ch. Muhammad Saeed Gujjar for Petitioner.

Ch. Muhammad Akram Tahir, DDPP for the State.

2017 M L D 899

[Lahore (Rawalpindi Bench)]

Before Muhammad Ameer Bhatti, J

DEFENCE HOUSING AUTHORITY through Secretary DHA and another---Petitioners

Versus

Mst. PARVEEN AKHTER---Respondent

Civil Revision No.859 of 2014, decided on 20th October, 2016.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 19 & O. III, R. 4---Specific Relief Act (I of 1877), S. 54---Suit for permanent injunction---Appeal dismissed for non­-prosecution---Re-admission of appeal---Petition for readmission was filed with affidavit of counsel---Effect---Petition for readmission of appeal was dismissed on the ground that same had not been filed by the appellants themselves nor any reason had been shown for their non-appearance on the date when appeal was dismissed---Validity--- Petition for readmission of appeal should have been allowed as same was promptly filed with affidavit of counsel explaining reason for his non-appearance---Matter was to be decided on merits rather than on the basis of technicalities---Absence of petitioners' counsel was neither intentional nor deliberate but on account of circumstances beyond his control---Appointment of counsel would remain in force until determined with leave of the Court or until party appointing him or counsel died or until all proceedings .with regard to his client ended---Counsel had right to do everything that was necessary for proper conduct of the case---If case was decided ex-parte or dismissed in default then counsel had implied authority to get that order set aside so that the case be heard on merits---Petitioners had engaged the counsel who was representing them and his inability to attend the Court proceedings had been explained duly supported by affidavit---When counsel was attending the Court, there was no occasion to raise any objection with regard to non-availability of parties unless their presence was specifically required---Counsel was stuck in traffic and same being unavoidable circumstance was beyond his control and could be regarded a sufficient ground---Determination of Appellate Court qua non-appearance of petitioners being fatal was un-warranted case was not fixed for their appearance---Appellate Court had committed material illegality and irregularity while not accepting the application for restoration of appeal by the counsel on behalf of his client---Impugned order passed by the Appellate Court was set aside---Petition for readmission of appeal was allowed and appeal was restored---Revision was allowed accordingly.

United Bank Ltd. v. Mian Tajammul Hussain 1998 CLC 179 and Abdul Latif v. Additional District Judge/Election Tribunal/M.C. Arifwala and others 2000 YLR 946 rel.

Malik Muhammad Kabir for Petitioners.

2017 M L D 920

[Lahore]

Before Mrs. Erum Sajad Gull, J

INAYAT BIBI---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.680 of 2015, decided on 8th December, 2015..

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

----Ss. 204, 200, 250 & 265-K----Penal Code (XLV of 1860), Ss. 302, 448, 148 & 149---Qatl-i-amd; house trespass; rioting, armed with deadly. weapon; common object---Summoning of accused after cursory evidence, legality of---Examination of complainant---Issue of process---False, frivolous and vexatious accusations-Power of court to acquit accused at any stage---Complaint filed with delay of more than one year---Effect---Accused had not filed ally application under S. 265-K, Cr.P.C. before Trial Court and instead directly challenged the summoning order by the Trial Court passed in the complaint through revision petition---Permissibility---Both parties should have been given an opportunity to prove their version by producing evidence, as they both were closely related to the deceased---Trial Court had powers under 5.250, Cr.P.C. to punish the complainant for filing false and frivolous complaint and adequately compensate the accused while acquitting them at trial stage---Trial Court had just summoned the parties and interference at that stage would amount to gaging the proceedings of the case and resultantly depriving the Trial Court to consider the evidence to determine the actual truth of the case---Objection as to filing of present complaint after a considerable delay of more than one year, had no consequence, as the complaint had already been accepted---Impugned order was neither perverse nor arbitrary---Revision petition was dismissed accordingly.

Asif Iqbal v. District and Sessions Judge, Khushab and others 2011 SCMR 720 and Noor Muhammad v. The State and others PLD 2007 SC 9 rel.

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

----S. 200----No limitation although exists for filing a private complaint; however, the longer the complaint is delayed, the lesser would be the chance of believing the same.

Muhammad Anwar Bhatti for Petitioner.

Malik Muhammad Arif Bara for Respondent No.2.

2017 M L D 948

[Lahore (Rawalpindi Bench)]

Before Atir Mahmood, J

Ch. SULTAN MAHMOOD---Petitioner

Versus

APPELLATE AUTHORITY/ADJ and 2 others---Respondents

Writ Petition Nos.2772 and 2773 of 2016, heard on 10th November, 2016.

Punjab Local Government Act (XVIII of 2013)---

----S. 2(ii)---Election for the seat of "worker"---Nomination papers, rejection of---Scope---Nomination papers filed by the petitioner and rival candidate were rejected---Validity---Petitioner owned seven marla plot, seven marla residential house, motor bike, five tola jewellery, Bank accounts and also a college---Rival candidate had twenty five kanal of land valuing Rs. 40,00,000/- and Bank account---Petitioner and rival candidate did not subsist on the income being a 'worker' rather they were men of means---Seat reserved for "workers" was meant for those who belonged to a specific class---Persons belonging to such class should only be allowed to contest the election against such seats---If persons not belonging to a class for which seats had been reserved were allowed to contest election against the seats reserved for such class then purpose of reserving the seat for such class would not only fail but rights of such class would injure also---Petitioner and rival candidate had sound financial status and they did not belong to class of 'workers'---Nomination papers had rightly been rejected in the present case---No illegality had been pointed out in the impugned orders passed by the fora below---Constitutional petition was dismissed in circumstances.

Abid Hussain Abid for Petitioner.

Ansar Nawaz Mirza for Respondent No.3 (in W.P. No.2772 of 2016).

Fazal ur Rehman for Election Commission.

2017 M L D 962

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

Sh. ADNAN NASEEM---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.12199-B of 2015, decided on 24th November, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso----Penal Code (XLV of 1860), Ss. 302, 148 & 149---Bail, refusal of---Qatl-i-amd; rioting armed with deadly weapons; common object---Statutory delay, ground of---Hardened and desperate criminal---Scope---Accused had been named in the promptly lodged crime report with specific role of causing firearm injuries on the person of the deceased---Ocular account was fully corroborated with the medical evidence---Prosecution witnesses had fully implicated the accused---Sufficient incriminating material was available on record to connect the accused with alleged crime---Deceased was an eyewitness of murder of his real brother, for which FIR was already lodged---Deceased had been done to death for not entering into compromise regarding murder of his said brother---Characteristics possessed by the accused clearly reflected that he was a desperate and hardened criminal, who had committed murder only to frustrate the course of law---Accused could be deemed as a desperate criminal even if he was not a previous convict; whereas, present case spoke otherwise---Accused had acted in a manner which was directly in conflict with the process of law, which could not be ignored---Bail was declined accordingly.

Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72 and Muhammad Hanif v. The State PLD 1986 Kar. 437 rel.

Syed Zulfiqar Ali Bukhari and Mehram Ali Bali for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General for the State.

S. Abbas Bukhari for the Complainant.

2017 M L D 971

[Lahore (Multan Bench)]

Before Aslam Javed Minhas, J

MUHAMMAD RASHEED---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. Nos.5656-B and 5599-B of 2015, decided on 8th October, 2015.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i), (iii), 337-F(i), 337-L(2), 354, 148 & 149---Causing Shajjah-i-Khafifah, Hashimah, Damiyah, other hurt, assault or criminal force to woman with intent to outrage her modesty, rioting, common object---Pre-arrest bail, grant of---Case was of two versions; one set up by the complainant in the FIR; and the other by accused while recording their cross-versions---Both the parties sustained injuries almost of similar nature---Each of the party, was claiming the other to be an aggressor---Which party was aggressor and which was aggressed upon, would be adjudged by the Trial Court after recording of evidence---Injuries attributed to both the parties, entailed maximum punishment of five years; same did not fall within the prohibitory clause of S.497, Cr.P.C.---Previous enmity between the parties was an admitted fact---Both parties had joined the investigations, which was complete; and they were not required by the Police for the purpose of any further investigation---Challan had already been submitted before the Trial Court---Ad interim pre-arrest bail already granted to accused persons, were confirmed, in circumstances.

Kabeer Ahmed Gill for Petitioner (in Crl. Misc. No.5656-B of 2015).

Mian Mehmood Rasheed for Petitioner (in Crl. Misc. No.5592-B of 2015).

2017 M L D 980

[Lahore (Multan Bench)]

Before Farrukh Gulzar Awan, J

FAZAL HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.410 of 2005, heard on 2nd March, 2016.

Penal Code (XLV of 1860)---

----S.302(b)----Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Court may presume certain facts---One of the eye-witnesses lived at a distance of about one and half kilometers away from the place of occurrence and no reason had been assigned regarding his presence at the time and place of occurrence at the odd hours (midnight); his testimony was, therefore, under heavy clouds---Present accused had been assigned the role of giving hatchet blow on the left eye and nose of the deceased; whereas, the complainant had deposed that the accused had given hatchet blow on the right eye of the deceased---Other eye-witness had made improvement stating that the accused had given hatchet blow on the left side of face of the deceased---Statements of prosecution witnesses contained contradictions as to their dealing with the injured deceased before his death---Medical witness had deposed that the deceased, who died after nine days of the occurrence, was well oriented with time and place and answered the questions well, but neither his statement under S. 161, Cr.P.C. had been recorded by the Investigating Officer nor had any application been made to the Medical Officer to seek permission to record his statement---Deceased, while being injured and the star witness of the occurrence, was required to be joined in the investigation of the case, and such omission raised the presumption under Art.129(g) of Qanun-e-Shahadat, 1984---Occurrence took place in the midnight, and the complainant had deposed that he had identified the accused in the light of torch; however, neither any torch had been taken into possession during investigation nor could intensity of the same be brought on record---Per scaled site plan of the occurrence, no other source of light had been mentioned/marked therein---Other eye-witnesses had even not mentioned any source of light in their deposition---Places as to the presence of the eye-witnesses had not been mentioned in the scaled site plan---Identity of the accused in the dark night assigning specific roles was, therefore, under heavy clouds---Recovery of the hatchet was inconsequential in absence of report of Serologist for determination of human blood thereon and also because the hatchet had been received at the office of Chemical Examiner after about ninety days of the occurrence---Motive did not provide corroboration to the prosecution case---Oral evidence of the prosecution was not in line with the medical evidence---Medical evidence, being corroborative piece of evidence, was relevant only when the primary evidence, ocular evidence, inspired confidence, which was not the situation in the present case---Prosecution had failed to prove guilt of the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

Mehroz Aziz Khan Niazi for Appellant.

Syed Nadeem Haider Rizvi, DDPP for the State.

Sahibzada Nadeem Fareed for the Complainant.

2017 M L D 1005

[Lahore]

Before Jawad Hassan, J

MUHAMMAD ALTAF---Petitioner

Versus

ADDL. DISTRICT JUDGE and others---Respondents

W.P. No.5797 of 2014, decided on 22nd February, 2017.

Family Courts Act (XXXV of 1964)---

----Ss. 14 & 17-A---Maintenance for minors---Non-compliance of order of Family Court to pay interim maintenance---Father contended that dismissal of appeal was not based on merit rather his appeal was dismissed for non-compliance of order of Family Court to pay interim maintenance---Mother of minors contended that payment of interim maintenance was outstanding since long---Validity---Appellate Court directed the father to pay interim maintenance as well as outstanding maintenance, thereafter the appeal was to be fixed but he failed to comply with the order---Question to be determined by High Court was "whether appellate court was justified in passing a conditional order, could appellate court dismiss the appeal without deciding the same on merits"---Record revealed that order of appellate court regarding payment of interim maintenance was not a conditional order and nowhere was it mentioned in the said order that its non-compliance would construe dismissal of appeal---Order of appellate court was set aside and case was remanded for decision afresh---Case being an old one and involved maintenance of minors, Appellate Court was directed to decide the appeal expeditiously---Father was directed to pay maintenance allowance in compliance of order of Family Court---Order accordingly.

Civil Appeal No.810-L of 2013 ref.

Ghulam Hussain Awan for Petitioner.

2017 M L D 1015

[Lahore (Multan Bench)]

Before Asjad Javaid Ghural, J

MUHAMMAD YOUSAF and 3 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Appeal No.411 of 2011, heard on 15th February, 2017.

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

----Ss. 302(b), 449, 148 & 149---Qatl-i-amd, house trespass in order to commit offence punishable with death, rioting armed with deadly weapon, common intention---Appreciation of evidence---Ocular account corroborated by medical evidence---Allegations against accused persons were that they made direct firing with their deadly weapons at father and paternal uncle of complainant, who had succumbed to the injuries at the spot---Ocular account was furnished by witnesses including complainant---Complainant/eye-witness had given detailed account of the incident---Witness of ocular account deposed exactly in line and corroborated the stance taken by complainant---Said witnesses remained consistent on all material particulars with regard to the time, place, mode and manner of occurrence committed by the accused persons with their co-accused---Said witnesses had explained each and every limb of occurrence---Witnesses remained consistent on the point that they had seen the occurrence in the light of gas, lit at the venue of occurrence---Witnesses faced lengthy cross-examination but the defence could not extract anything favourable to the accused persons---Prosecution failed to shatter the credibility of eye-witnesses---Both the parties were admittedly known to each other and there was no question of misidentification of the assailants at the venue of occurrence---Post-mortem reports of the deceased persons showed the specific attribution to the accused persons with regard to seat of injuries, which was corroborated with the deposition of medical expert---All the injuries attributed to the accused persons were available in the post-mortem examination reports---Medical evidence was in line with the ocular account---Circumstances established that prosecution had successfully proved the ocular account supported by medical evidence, as to time, place of occurrence and the names of accused persons with their respective roles in minute detail---Prosecution had successfully proved the charge against the accused persons through confidence inspiring and reliable evidence---Appeal against conviction was dismissed.

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

----Ss. 302(b), 449, 148 & 149---Qatl-i-amd, house trespass in order to commit offence punishable with death, rioting armed with deadly weapon, common intention---Appreciation of evidence---Motive, proof of---Motive as set up by the prosecution in the crime report was that there was enmity in connection with a murder case and dispute over land amongst complainant and accused party---Prosecution had proved the motive through the evidence of witness---Said fact had been admitted by defence---Prosecution witness had deposed that brother of accused was murdered---Criminal case was registered against two sons of deceased, who were facing trial when the occurrence took place---Motive of the occurrence had successfully been proved by the prosecution, rather it had been admitted by the defence---Appeal against conviction was dismissed.

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

----Ss. 302(b), 449, 148 & 149---Qatl-i-amd, house trespass in order to commit offence punishable with death, rioting armed with deadly weapon, common intention---Appreciation of evidence---Recovery of weapons of offence from accused persons---Weapons of offence had been recovered from the possession of accused persons---All the weapons were taken into possession by the Investigating Officer vide recovery memos, which were proved by the prosecution through un-shattered and confidence-inspiring evidence---Record showed that crime weapons were not found to be wedded with crime empties and no positive report was available to the effect, that the said weapons were connected with the occurrence---Said recovery, therefore, had become inconsequential in the circumstances and could not support the prosecution version---Such a report about weapons of offence could not discard the veracity of evidence adduced in support of prosecution---Appeal against conviction was dismissed in circumstances.

Shafqat Raza Thaheem (on State expenses) for Appellant.

Prince Rehan Iftikhar for the Complainant.

Adnan Latif, Deputy District Public Prosecutor for the State.

2017 M L D 1036

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

DILAWAIZ ALI KHAN---Appellant

Versus

COMSATS INSTITUTE OF INFORMATION TECHNOLOGY and others---Respondents

Intra Court Appeal No.404 of 2015, decided on 16th March, 2017.

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

----S.18---COMSATS Undergraduate Degree Programs Regulations, 2006, Reglns. 18(c), 20, 21 & 33---Educational institution---Prospectus and regulations---Appellant did not secure required Cumulative Grade Point Average (CGPA) therefore, University did not allow him to continue his admission---Single Judge of High Court declined to interfere in order passed by the university---Validity---Students were bound to obey Prospectus and Regulations which could be changed or altered yearly basis---Matter revolved around Regulations framed by the University and each and every student had got admission after accepting Regulations of the institution---Regulations of university did not permit readmission or up scaling of CGPA---Concepts of compassion and hardship could be considered by High Court for providing relief to aggrieved party in terms of Art. 199 of the Constitution, only when there was room in relevant law to do so but not by breach of law and not by stultifying right accrued to opposite side and/or by enforcing a right which aggrieved party under the law had lost---Division Bench of High Court declined to interfere in order passed by the Single Judge of High Court---Intra-court appeal was dismissed in circumstances.

Talha Siddique v. Director COMSATS and others 2010 CLC 1084; Chairman, Board of Intermediate and Secondary Education, Bahawalpur v. Rizwan Rashid and 3 others 2005 SCMR 728; Faiqa Ali v. VC, Government College University Lahore 2010 MLD 103; Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961; Waqas Zafar v. Baha-ud-Din Zakaria Univesrity 2010 CLC 999; Shafique Ahmad and others v. The Province of Punjab PLD 2004 SC 168 and Ali Yousaf and others v. Chairman Academic Dow Medical College, Karachi and others 2000 SCMR 1222 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Plea of compassion and hardship---Scope---Concepts of compassion and hardship could be considered by High Court for providing relief to aggrieved party in terms of Art. 199 of the Constitution, only when there was room in relevant law to do so but not by breach of law and not by stultifying right accrued to opposite side and/or by enforcing a right which aggrieved party under the law had lost.

Ch. Muhammad Javed Arshad for Appellant.

Muhammad Waheed Akhtar Mian for Respondents.

2017 M L D 1046

[Lahore]

Before Sadaqat Ali Khan and Erum Sajad Gull, JJ

ADIL MANSOOR---Petitioner

Versus

The STATE and 2 others---Respondents

W.P. No.39108 of 2015, heard on 14th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 426(2-B)----Anti-Terrorism Act (XXVII of 1997), S. 7---Penal Code (XLV of 1860), Ss. 337-J, 342, 376(2), 379, 148 & 149---Suspension of sentence pending appeal---Permissibility---Trial Court convicted/sentenced the accused and High Court maintained the same; whereas, Supreme Court allowed leave to appeal to consider questions as to absence of medical evidence; applicability of S. 7 of Anti-Terrorism Act, 1997, etc.---High Court, having upheld the convictions and sentences passed by the Trial Court, could not go further into the matter---Constitutional petition was dismissed in circumstances.

Ahmed Sher alias Sheri Bhatti v. The State and others 2014 PSC (Crl.) 411 rel.

M. Khurram Tufail Awan for Petitioner.

Nemo for the Complainant.

Khurram Khan, D.P.G. and Ibrahim, S.I. for the State.

2017 M L D 1063

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

ARIF---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.8212-B of 2016, decided on 3rd October, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 436, 148, 149 & 427---Qatl-i-amd, mischief by fire or explosive substance with intent to destroy house, rioting armed with deadly weapon, unlawful assembly, mischief causing damage to the amount of fifty rupees---Bail, refusal of---Specific nomination in FIR---Statutory ground of delay---Accused was nominated in promptly lodged FIR with specific role of accused of raising lalkara and causing firearm injuries to the deceased---Medical evidence corroborated ocular account---Accused was found guilty during investigation---Delay in conclusion of trial was attributable to accused---Bail was declined.

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

----S. 497---Bail---Principle---Delay of more than two years in conclusion of trial---Even after lapse of two years, the conduct of accused seeking adjournments could be taken note of and bail could be denied by court even on the statutory ground.

Babar Husain v. The State and others 2016 SCMR 1538 rel.

Ch. Nawab Ali Mayo for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General with Muhammad Aslam, S.I. for the State.

2017 M L D 1073

[Lahore]

Before Shahid Hameed Dar, J

TANVEER HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.15393-B of 2015, decided on 14th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497----Penal Code (XLV of 1860), Ss. 380 & 408---Theft in dwelling house etc.; criminal breach of trust by clerk or servant---Bail, grant of---Joint extra judicial confession---Evidentiary value---Agreement, which the accused had executed in favour of the complainant whereby the accused had admitted his guilt and issued cheque and pronote for payment of the amount equal to the loss/value of stolen articles, had been executed two days prior to lodging of the FIR, but neither the fact as to execution of said agreement nor the name of the accused had been mentioned in the FIR (FIR had been lodged against unknown persons)---Admission of guilt of the accused along with the co-accused was at the most, constituted joint extra judicial confession---Extra judicial confession was a weak type of evidence, and joint extra judicial confession was even weaker of the weakest---Language of the pro note in question showed existence of relationship of loaner and loanee between the parties; therefore, probability, that the accused might have repaid the debt under said security documents, could not be ruled out---Accused's false involvement due to some malice and hidden motive of the complainant was probable---High Court had already allowed pre-arrest bail to the accused in another FIR lodged under S. 408, P.P.C. by the complainant---Ad-interim bail already granted to the accused was confirmed accordingly.

Ch. Babar Waheed for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General and Akram Inspector and Yasin ASI for the State.

2017 M L D 1091

[Lahore]

Before Shahid Hameed Dar, J

SHAKEELA BIBI---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.476-B of 2016, decided on 27th January, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), S.365---Kidnapping or abducting with intent secretly and wrongfully to confine person---Pre-arrest bail, grant of---Further inquiry---Investigating Officer, had not collected any incriminating evidence against accused, except a call-data record (CDR), which revealed that a couple of phone calls had been made from the cell number to alleged abductee---Said (CDR) did not show, if it belonged to cell phone of accused---Complainant lady, had alleged in the FIR that her son went missing, after he received a phone call in the room of a hotel---In such a situation, how the lady knew that her son, who was not traceable since then had received any call---Record did not show that a seizure memo. about CDR had been prepared by Investigating Officer---Complainant lady in her supplementary statement, raised a suspicion against couple of other persons as well including real sister of accused, besides another girl---Investigating Officer had virtually done nothing in the case, and it had not traversed beyond the stage of mere suspicion of the complainant---Accused's involvement in the case, was altogether a skeptical circumstance, which after years, investigation remained a blemished speculation of the complainant---Mere mentioning of name of a person as an accused in the FIR, that too as a suspect, would hardly mean anything, perilous in his bail plea---Case of accused called for further probe into her guilt within the scope of S.497(2), Cr.P.C.---Accused being a female, her case was covered by the first proviso to S.497(1), Cr.P.C.---Ad interim pre-arrest bail granted to accused was confirmed, in circumstances.

Malik Amjad Pervaiz for Petitioner.

2017 M L D 1101

[Lahore (Multan Bench)]

Before Ali Akbar Qureshi, J

Mst. MITHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, JATOI and 7 others---Respondents

W.P. No.15851 of 2011, heard on 2nd May, 2016.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched---Suit for recovery of dower---Entries made in column No. 16 of Nikahnama---Scope---Contention of wife was that husband promised to mutate agricultural land mentioned in column No. 16 of Nikahnama---Suit was decreed by the Family Court but same was dismissed by the Appellate Court holding that Family Court had no jurisdiction to decide the controversy involved in the present case---Validity---Family Court had jurisdiction to entertain and decide the matter arising out of Nikahnama---Family Court rightly assumed the jurisdiction and decided the lis strictly in accordance with law---Appellate Court had committed jurisdictional defect while accepting the appeal---Wife had proved her case through reliable and credible evidence and she was entitled for the decree prayed in the plaint---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Constitutional petition was accepted in circumstances.

Air League of PIAC Employees through President v. Federation of Pakistan M/O. Labour and Manpower Division Islamabad and others 2011 PLC 89; Rai Naeem Shahadat v. Mst. Qamar Munir and others 2004 SCMR 412; Yusuf Ali Khan Barrister-at-Law, Lahore v. Messrs Hongkonk and Shanghai Banking Corporation Karachi and another 1994 SCMR 1007; Messrs National Bank of Pakistan, Lahore v. Muhammad Akram Khan and 17 others 2000 CLC 1493; Iftikhar Ali v. The State PLD 2001 SC 38; Khalid Qureshi and 5 others v. United Bank Limited I.I Chundrigar Road, Karachi 2001 SCMR 103 and Dr. Asma Ali v. Masood Sajjad and others PLD 2011 SC 221 rel.

Muhammad Afzal Bhatti for Petitioner.

Mian Bashir Ahmad Bhatti for Respondents.

2017 M L D 1109

[Lahore]

Before Mazhar Iqbal Sidhu, J

ANEES UL MURTAZA alias ABID---Petitioner

Versus

The STATE---Respondent

Crl. A. No. 608 and Crl. M. No.1 of 2016, decided on 21st October, 2016.

Penal Code (XLV of 1860)---

----S. 322---Qatl-bis-sabab---Appreciation of evidence---Suspension of execution of sentence of imprisonment---Accused was convicted under S. 322, P.P.C. to pay an amount of diyat to the legal heirs of deceased or kept into custody---Accused contended that he was a destitute and on account of impecuniosity, he had hitherto not paid diyat to accused, therefore, he could be released on bail---Validity---Contention of accused regarding his being destitution had no force---Accused was represented by a private counsel during trial---Nothing had been brought on record as to the financial condition of accused and same was not raised by the accused in his statement recorded under S. 342, Cr.P.C.---Deceased was the high hopes of his family---Application of accused was dismissed accordingly.

Ghulam Mustafa Ch. for Petitioner.

Mian Muhammad Saeed for the Complainant.

2017 M L D 1121

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

UMAR DARAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.293 of 2011 and Murder Reference No.174 of 2010 heard on 5th September, 2016.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Allegation against accused was that he murdered his wife by strangulating with her Dopatta---Accusation of strangulation according to complaint was exclusively focused upon the accused---Arrival of the witnesses exactly at a point of time when deceased was being done to death by the accused persons required a pinch of salt, such coincidence seldom occurred---Medical evidence was rather inconclusive and did not corroborate ocular account---Medical evidence was inconsistent with the position taken by the eye-witnesses---Circumstances established that culpability of accused was not found entirely free from doubt, benefit of which would resolve in favour of accused---Accused was acquitted by setting aside conviction and sentence recorded by the Trial Court in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapons of offence---Reliance---Prosecution story was that accused had murdered his wife by strangulating with her Dopatta---Recovery of Dopatta was not confidence inspiring as there was hardly any occasion for the accused and co-accused to take along that piece of cloth when they were surprised by the witnesses who followed them---Seemingly, there was no point for the accused to keep Dopatta with him---Recovery of 30-caliber revolver was inconsequential---Circumstances created doubt about the veracity of prosecution story---Accused was acquitted by setting aside conviction and sentence recorded by the Trial Court in circumstances.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 140---Qatl-i-amd, common intention---Appreciation of evidence---Cross examination--Non-confrontation of previous statement---Effect---Prosecution story was that accused murdered his wife by strangulating with her Dopatta---Eye-witnesses had improved their previous positions and implicated co-accused with the same role---Said witnesses were not confronted with their previous statements during the trial within the contemplation of Art. 140 of the Qanun-e-Shahadat, 1984---Nonetheless, omission notwithstanding the shift in respective positions of witnesses in the wake of acquittal of co-accused, not questioned through appeal against acquittal assumed legal significance vis-à-vis the accused, as rejection of these statements qua co-accused warranted independent corroboration for their reliability so as to maintain conviction of accused---Prosecution had not been able to point out even a single circumstance providing corroboration---Accused was acquitted by setting aside conviction and sentence recorded by the Trial Court in circumstances.

Imran Yousaf Goraya and Haji Muhammad Tariq Aziz Khokhar for Appellant.

Nemo for the Complainant.

Malik Riaz Ahmad Saghla, Deputy Prosecutor General for the State.

2017 M L D 1132

[Lahore]

Before Ch. Muhammad Iqbal, J

FARMERS ORGANIZATION OF PEER MAHAL DISTRIBUTARY through V.P.---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary (Irrigation) and others---Respondents

Writ Petitions Nos.3335, 2328, 3293, 3294, 3574, 3575, 3577, 3932, 3995, 3996, 6656, 21028 of 2014, 5343, 5655, 6131, 6334, 6605 of 2015 and 24289 of 2016, decided on 13th February, 2017.

Punjab Irrigation and Drainage Authority (Farmers Organizations) Rules, 2010---

----R. 9---Farmers' Organizations---Failure to conduct elections---Petitioners were office bearers of Farmers' Organizations and they were aggrieved of notification issued by Punjab Irrigation and Drainage Authority dissolving their Organizations---Validity---Right of eligible voter to select his favourite and suitable candidate could not be encompassed or perished on the whims and caprice of those members who had already enjoyed full tenure of holding office for which they were elected---Object of filing petition was tainted with mala fide to debar voters to exercise their right of vote in favour of members of their choice---Period of Farmers' Organizations, under R.9 of Punjab Irrigation and Drainage Authority (Farmers' Organizations) Rules, 2010, was three years---Such were statutory rules and according to the decision of Punjab Irrigation and Drainage Authority period of Farmers' Organizations was settled as three years which period had already lapsed---Authority had rightly passed notification in question and the same was in consonance with the Rules as well as agreement executed between Punjab Irrigation and Drainage Authority and Farmers' Organizations---Petitioners failed to point out any illegality and material irregularity in the order in question warranting interference of High Court in its Constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

M. Abdus Sattar Chughtai for Petitioner (in W.Ps. Nos.3335, 3996 and 6656 of 2014).

R. M. Razzaque for Petitioner (in W.Ps. Nos.2328, 3293, 3294, 3574, 3575, 3577 of 2014 and 24289 of 2016).

Ch. Muhammad Amin Javaid for Petitioner (in W.P. No.3932 of 2014).

Mian Shahid Rasool for Petitioner (in W.P. No. 3995 of 2014).

Mian Khalid Habib Elahi for Petitioner (in W.P. No.21028 of 2014).

M. A. Ghaffar ul Haq for Petitioner (in W.Ps. Nos.5343, 5655, 6334 and 6608 of 2015).

Muhammad Mushtaq Pasha for Petitioner (in W.P. No.6131 of 2015).

Asif Shahzada for Petitioner.

Waqar Ahmad Chaudhary, A.A.G. along with Zulfiqar Ali, Manager, PIDA and Muhammad Arshad Kamboh, Assistant Manager, PIDA Respondents Nos.1 to 3.

Ghazanfar Haider Pasha for Respondent No.4.

2017 M L D 1147

[Lahore (Multan Bench)]

Before Syed Muhammad Kazim Raza Shamsi and Asjad Javaid Ghural, JJ

NIAZ alias NIAZI alias JUMMA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.24-J of 2013, heard on 13th December, 2016.

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

---Ss. 302, 186 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 7, 20-I & 20-J---Qatl-i-amd, obstructing public servant in discharge of public functions, terrorism, common intention---Appreciation of evidence---Complainant (police official) alleged that accused persons fired at deceased (constable) when police inquired about their (accused persons') identity---Eye-witness account had been furnished by two prosecution witnesses who endorsed the contents of crime report unanimously---Accused was not nominated in the crime report, but was implicated on the basis of supplementary statement of prosecution witness on the third day of the occurrence---Said witness had deposed that he along with another person found that the accused suffered injuries on falling from motorcycle while fleeing away soon after the occurrence; that co-accused provided treatment to the accused in their house and assisted him to disappear and that he got recorded his statement before the Investigating Officer in this regard---Said witness, however, did not state as to how he came to know that co-accused provided medical treatment to accused---Said witness admitted during cross-examination that he did not remember as to who informed him about factum of fall of accused from motorcycle soon after the occurrence and received injuries---Story narrated by another prosecution witness regarding implication of accused by naming him with his parentage and address, at his own without any source, did not inspire confidence---Another prosecution witness deposed that he along with other police officials were present when one person (accused) came and identified him as the one who had fired upon the deceased, he arrested him and recovered a pistol from him---Story narrated by said prosecution witness , the way he arrested the accused did not appeal to the man of ordinary prudence as how it was possible that an accused having firearm, came close to the police contingents and that too before an eye-witness of the aforesaid occurrence committed by accused---Both the witnesses maneuvered said story to involve the accused in the case---Accused was arrested and sent to judicial lock-up on the basis of said supplementary statement while conducting identification parade, procedure provided in Volume III, Chapter-11 Part-C of High Court (Lahore) Rules & Orders read with Art. 22 of Qanun-e-Shahadat, 1984 was not followed---Identification parade would be held for two purposes, one to establish the identity of the culprit and second to pin point the role played by him in the commission of offence; none of the said purpose was served---Nomination of accused through supplementary statement had lost the evidentiary value of test identification parade especially when no feature of any of the assailant with regard to age, height, face and general appearance had been mentioned in the crime report and to identify a person in such a situation was hardly possible---Test identification parade had lost its evidentiary value as the same was neither acceptable nor reliable in the eyes of law---Medical evidence was in line with the ocular account mentioned report yet the fact remained that when the prosecution had failed to prove the involvement of accused beyond any shadow of doubt, the same being corroborative piece of occurrence was of no avail to the prosecution---Case of prosecution was that at the time of arrest of accused, a pistol was recovered from his possession but said pistol was neither taken into possession through recovery memo. nor was produced before Trial Court at the time of recording evidence---After test identification parade accused got recovered another pistol through recovery memo. and it was nowhere mentioned as to which of the recovered pistols were sent to Forensic Science Laboratory for expert opinion---Positive report of Ballistic Expert, in circumstances, was also not helpful for prosecution to prove the guilt of accused and was insufficient to convict an accused in absence of substantial piece of evidence---Culpability of accused could not be proved by the prosecution beyond any shadow of doubt as the way he was introduced as one of the assailants in the supplementary statement and was arrested by the eye-witness of the occurrence was highly doubtful---Even a single doubt would entitle the accused for benefit of doubt---Appeal was allowed accordingly and accused was acquitted of the charge.

Riaz Ahmed v. The State 2010 SCMR 846 rel.

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

----Art. 22---Identification parade---Purpose---Identification parade would be held for two purposes, one to establish the identity of culprit and the second to pin-point the role played by him in the commission of offence.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence was a supportive piece of evidence which could prove the locale, seat and nature of injuries, weapon of offence used and duration of injuries but could not raise finger towards the real culprit.

(d) Criminal trial---

----Benefit of doubt---Scope---Even a single doubt would entitle the accused of benefit of doubt.

Muhammad Usman Sharif Khosa for Appellant.

Malik Bilal Ahmad Bohar for the Complainant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

2017 M L D 1161

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

Mst. SHAMSHAD AKHTAR through L.Rs.---Applicant

Versus

MUHAMMAD RAFIQUE THAKAYDA---Respondent

Transfer Application No.340 of 2016, decided on 2nd December, 2016.

Civil Procedure Code (V of 1908)---

----Ss. 24 & 115---Transfer of proceedings by District Judge---Scope---"Case decided"---Scope---Revision---Comptence---Transfer application filed before the High Court under S. 24, C.P.C.---Validity---District Judge had two kinds of jurisdiction to transfer the proceedings first by taking suo motu notice and second on the application of any of the parties involved in the litigation---When District Judge had exercised jurisdiction on suo motu basis, he had passed an administrative direction not effecting the merits of the case or any of the rights of the parties---Such order could not be called 'a case decided' qualifying any aggrieved person to invoke the revisional jurisdiction of High Court---Where District Judge had exercised jurisdiction under S. 24, C.P.C. on the application of any party, such order would qualify to be an order which was a 'case decided'; however when the District Judge was moved by a party to the litigation then revision against such order was competent---Petitioner had opted to withdraw the present petition to avail the alternate remedy under the law---Petition for transfer of proceedings was disposed of accordingly.

American Life Insurance Company v. M.S. Khawaja PLD 1960 Kar. 568; Dayabhai Jiwandas and others v. A.M.M. Murugappa Chettyar AIR 1935 Rangoon 267; Majeeda Begum v. Muhammad Din 1982 CLC 1560; Muhammad Tufail and others v. Nazir Ahmad Khan 1992 ALD 531; Chowdhury Muhammad Sarwar v. Sakhawat Hossain and others PLD 1968 Dacca 849; Qureshi Mahmud Ali v. (K.B) Malik Bashir Ahmad Khan PLD 1953 Bal. 9; Baijnath Prasad Singh v. Dasrath Prasad Singh and another AIR 1958 Patna 9 and Narinjan Singh and others v. Kirpal Singh AIR 1925 Lah. 189 rel.

2017 M L D 1172

[Lahore (Multan Bench)]

Before Syed Shahbaz Ali Rizvi, J

SAJJAD HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc.No.400/B of 2017, decided on 13th February, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (V of 1898), Ss. 337-A(ii), 337-A(i), 337-F(v), 337-L(2), 334, 148 & 149---Shajjah-i-mudihah,shajjah-i-khafifah, hashimah, hurt which endangers life or which causes sufferer for remain severe bodily pain or renders him unable to follow his ordinary pursuits for twenty days or more, itlaf-i-udw, rioting armed with deadly weapon, unlawful assembly---Bail, grant of---Further inquiry---Case of two versions---Allegations against the accused were that he, while armed with club along with co-accused persons equipped with different weapons caused injuries to complainant's mother and others---Blunt weapon injury assigned to present accused on right hand of injured constituted offence punishable under S. 337-F(v) of Penal Code, 1860 that carried maximum sentence of imprisonment exceeding up to five years, being so, did not fall within prohibitory clause of S. 497 of Cr.P.C.---Case was of two versions as accused side had also sustained injuries at the hands of complainant party during occurrence---Accused was having no previous criminal record and was behind the bars since his arrest on 26.10.2016 though not required for investigation purpose---Conclusion of trial was not in sight and keeping accused incarcerated till indefinite period was not likely to serve any useful purpose---Accused was not a desperate and hardened criminal as admitted by Prosecutor during the arguments---Accused had no previous criminal record and offence alleged was not of heinous nature---Absconsion of accused could not disentitle him to grant of post arrest bail---Bail was granted accordingly.

Prince Rehan Iftikhar Sheikh for Petitioner.

Muhammad Sharif Kharki Khera for the Complainant.

2017 M L D 1190

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

FARRUKH AKHTAR and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.24, 119, Criminal Revisions Nos. 62, 63 of 2009 and Murder Reference No.103 of 2011, heard on 29th September, 2016.

Penal Code (XLV of 1860)---

----Ss. 302, 364, 201 & 34---Qatl-i-amd, kidnapping or abduction in order to murder, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Circumstantial evidence---Evidence of last seen furnished by one prosecution witness was not reliable because his silence for about one week being a close relative was mind boggling and his evidence was also outside the ambit of proximity in terms of time and space---Said witness had not seen the deceased leaving the spot in the company of accused---Another witness deposed about the extra-judicial confession of one accused could not establish his presence at the place of occurrence---Reason for making extra-judicial confession by the accused had not been made out---Even date of dispatch of weapon and casing rendered forensic report as inconsequential---Statements of both the witnesses were reticent on motive---Two pieces of circumstantial evidence coupled with recovery of weapons and other articles hardly constitute the chain of circumstances required to impose penalty of death---Murder reference was answered in negative and appeal was allowed accordingly.

Malik Muhammad Saleem and Muhammad Zawar Qureshi for Appellants.

Muhammad Irfan Wayeen for the Complainant.

2017 M L D 1195

[Lahore]

Before Muhammad Ameer Bhatti, J

ALLAH DITTA and 3 others---Petitioners

Versus

IMAM DIN and another---Respondents

C.R. No.810 of 2011, decided on 7th March, 2017.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement---Oral agreement to sell---Non-mentioning of marginal witnesses and fixation of period of completion in the plaint---Scope---Plaintiffs/petitioners contended that though names of witnesses were not mentioned in the plaint but he should have not been non-suited as his witnesses testified payment of earnest money before trial Court---Validity---Deficiency obvious from the plaint was fatal and suit was not maintainable---Non-mentioning of names of witnesses and date of completion of oral agreement specifically in unequivocal manner was fatal; hence incorporation of those two elements in the plaint in unequivocal manner were necessary without which the suit of plaintiffs was not maintainable---Record showed that plaintiffs had not specifically incorporated names of witnesses as well as date of completion of agreement to sell in the plaint, which being fatal entailed penalty of dismissal of the suit---Revision was dismissed accordingly.

2013 SCMR 1300 ref.

Muhammad Zaheer Butt for Petitioners.

2017 M L D 1209

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

MUHAMMAD ASHRAF---Appellant

Versus

ELECTION COMMISSION and others---Respondents

I.C.A. No.400 of 2016, decided on 21st February, 2017.

Punjab Local Government Act (XVIII of 2013)---

----Ss.37, 38 & 39---Punjab Local Government (Conduct of Elections) Rules, 2013, R.38(4)---Election for local government---Notification for returned candidate---Carrigendum, issuance of---Scope---Name of respondent was published as returned candidate in the Official Gazette whereafter an application for correction of result was moved before Returning Officer which was accepted and corrigendum was issued but same was set aside by the Single Judge of High Court---Validity---Once election result was notified, only recourse that an aggrieved candidate had was before the Election Tribunal---Appellant moved an application before Returning Officer after notification of respondent in the Official Gazette as returned candidate---Election Commission issued a corrigendum and notified fresh result which was against the provisions of law---Returning Officer had become functus officio and could not have entertained the application or recommendation to the Election Commission---Election Commission could not have issued a corrigendum to change the notified election result---Respondent filed constitutional petition before the High Court after the corrigendum was issued by impugning the order of Returning Officer and not the corrigendum---Single Judge of High Court set aside the corrigendum and declared the appellant as the winning candidate---Election Commission had acted without jurisdiction as it had no power or authority to set aside a notified election result and declared a fresh result---Election dispute after issuance of a notification in the Official Gazette could only be resolved by way of an election petition before the Election Tribunal---If appellant was aggrieved by the declared result of respondent, his remedy would lie before the Election Tribunal---Intra-court appeal was dismissed in circumstances.

Ghulam Farid Sanotra for Appellant.

Mammon Rashid Pirzada for Election Commission.

Ali Raza Ansari for Respondent No.4.

2017 M L D 1213

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

NAB through D.G. NAB Lahore---Petitioner

Versus

JUDGE ACCOUNTABILITY COURT and others---Respondents

W.P. No.10834 of 2016, decided on 16th November, 2016.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 5(da) & 9(a)---Benamidar, summoning of---Prosecution was aggrieved of order passed by Trial Court declining to summon respondent as Benamindars of accused---Validity---Question of retention of assets/properties by a person other than accused, having no nexus with indictment and believed to have been acquired through corruption or corrupt practice was to be essentially agitated during trial so as to be decided alongside the indictment---High Court directed Trial Court to attend the issue after affording opportunity of hearing to respondents for decision in accordance with law and set aside the order passed by Trial Court---Constitutional Petition was allowed in circumstances.

Syed Qaim Shah v. The State 2009 SCMR 790; Syed Zahir Shah and others v. National Accountability Bureau and others 2010 SCMR 713 and Tariq Sultan and others v. National Accountability Bureau through Chairman and 2 others 2012 PCr.LJ 1983 ref.

Muhammad Rasheed Qamar, D.P.G. and Muhammad Akram Rao, Special Prosecutor, NAB for Petitioner.

Muhammad Nawaz Choudhry for Respondents Nos. 4 and 6.

2017 M L D 1228

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD ASHIQ---Petitioner

Versus

RANI BIBI and 3 others---Respondents

W.P. No.8482 of 2016, decided on 17th March, 2016.

Islamic Law---

----Legitimacy of child---Dispute with regard to legitimacy of minor---Recovery of maintenance allowance---Scope---Wife remained with the husband to perform her marital obligations---Child was born after the period of two months and thirty days of the divorce by the husband---Child would follow the bed (principle of farash) if born during the subsistence of marriage---Legitimacy of child could not be questioned in circumstances---Family Court had rightly held that presumption of legitimacy was attached to the minor---Husband had himself declined to offer for D.N.A. test which had created doubt qua his claim---Minor had attained the age of majority---Minor was born within the wedlock of the spouses and was entitled for maintenance allowance for the period of 18 years---Family Court had fixed the rate of maintenance allowance Rs. 2,000/- per month which was insufficient and inadequate for a young boy having age of more than 18 years---Maintenance allowance was enhanced to Rs. 4,000/- with 10% annual increase---Constitutional petition was dismissed in limine in circumstances.

Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir PLD 2015 SC 327 rel.

2017 M L D 1248

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan and Mushtaq Ahmad Tarar, JJ

MUHAMMAD NAWAZ---Appellant

Versus

ZEWER DAD and 3 others---Respondents

R.F.A. No.286 of 2010, heard on 27th October, 2015.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Closure of evidence---Scope---Only one date was fixed for recording of evidence after framing of issues and thereafter case was adjourned for hearing the parties with regard to miscellaneous applications or Presiding Officer was not available---Invoking of penal provisions of O. XVII, R.3, C.P.C. was not justified in circumstances---Plaintiff was bound to produce evidence when case was fixed for the same but he had failed to do so without any justification---Impugned judgment and decree were set aside and Trial Court was directed by High Court to provide two opportunities to the plaintiff for production of complete evidence---Appeal was allowed subject to payment of cost Rs. 10,000/- in circumstances.

Muhammad Bashir v. Muhammad Raman and another 2008 CLC 252; Javaid Akhtar Nawaz v. Mehr Kabir 1990 CLC 1122; Bagh-e-Rehmat Trust v. Khalid Riaz 1985 CLC 3009; Mubashir Khan v. Javaid Kamran alias Javed lqbal and 8 others 2007 MLD 1072; Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109 and Sheikh Khurshid Mehboob Alam v. Mirza Hashim Baig and another 2012 SCMR 361 ref.

Malik Arab Hassan Asif for Appellant.

Tahir Ejaz Joiya for Respondent.

2017 M L D 1263

[Lahore]

Before Shahid Hameed Dar and Muhammad Qasim Khan, JJ

MUHAMMAD AMEER---Petitioner

Versus

MUHAMMAD IMRAN and another---Respondents

Crl. Appeal No.1619 of 2013, decided on 29th September, 2016.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Acquitted accused was empty handed at the time of occurrence---Accused being empty handed could not help co-accused rather he had put himself in danger of being harmed by other side---Accused and deceased as per the allegation had walked to the place of occurrence, which could hardly be believed that they helped each other to reach the spot---Allegation of raising lalkara (challenge) could not be verified by Investigating Officer and he had opined that accused did nothing at the crucial hour nor held any weapon---Opinion of investigating officer might not be of any consequence during the course of trial, yet its persuasiveness was not lost altogether---Trial court had acted strictly in accordance with law and the principles regulating the safe administration of criminal justice---Appeal against acquittal was dismissed in limine.

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

----S. 417---Appeal against acquittal---Interference---Scope---Judgment of acquittal could not be upset sparingly, as the accused would enjoy double presumption of innocence, one relating to pre-judgment stage that every accused would be innocent till proved otherwise and the other one through a judicial verdict, besides it could only be interfered with, if it looked wholly perverse, capricious, arbitrary, artificial, ridiculous, speculative and based on misreading or non-appraisal of evidence available on record.

Muhammad Sharif's case 2003 SCMR 528; Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Alam Khan v. Swans Khan and 3 others 1996 SCMR 1742; Inayatullah Butt v. Muhammad Javaid and 2 others PLD 2003 SC 563; and Mst.Saira Bibi v. Muhammad Asif and others 2009 SCMR 946 ref.

2017 M L D 1280

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed, J

MUHAMMAD JAHANGIR KHAN---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.2426-B of 2016, decided on 17th January, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-A(i), 337-F(iii), 337-L, 148 & 149---Attempt to commit qatl-i-amd, shajjah-i-khafifah, mutalahimah, hurt, rioting armed with deadly weapon, common intention---Bail, grant of---Further inquiry---Accused along with co-accused were charged for mounting a murderous assault on complainant party, resulting into multiple injuries to members of complainant party---Record showed that three persons from the accused side were armed with semi-automatic repeaters, each of them was assigned multiple fire shots upon the prosecution witnesses--- Investigating Officer had opined that accused arrived at the scene with empty handed and did not participate in the firing---Culpability of accused in the present case, therefore called for further inquiry---Continuous detention of accused was serving no useful purpose for investigation---Accused was allowed bail in circumstances.

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

----S. 497(2)---Bail---Scope---Reasonable grounds---Scope---Grant of bail barring those covered by prohibition structured, on reasonable grounds within the contemplation of S. 497, Cr.P.C., was an interlocutory arrangement as it merely transfer of accused, kept in custody at public expenses, to a surety so as to be produced as and when required by the court when the prosecution had succeeded to bring home charge at the end of the day, interim freedom could be recalled.

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

----S. 497---Bail---Principle---Observations made in bail matter was tentative in nature and would not impact upon the outcome of the case.

Mehmood Azam Balouch for Petitioner.

Ch. Qaisar Mushtaq, DDPP with Shahid DSP and Fayyaz ASI for the State.

2017 M L D 1304

[Lahore]

Before Shahid Waheed, J

NATIONAL TRANSMISSION AND DISPATCH COMPANY LIMITED (NTDC) through Dul Authorized Legal Advisor---Petitioner

Versus

TRUST INVESTMENT BANK LTD.---Respondent

F.A.O. No.117 of 2016, heard on 1st February, 2017.

Civil Procedure Code (V of 1908)---

----O.VII, R.10 & O.XXXVII, R.2---Appeal---Return of plaint---Application of leave to defend---Trial Court without granting leave to defend the suit to defendant company, returned the plaint to be filed before proper court---Validity---Trial Court without deciding application for leave to appear and defend the suit, could not return the plaint under O. VII, R. 10, C.P.C. for its presentation before an appropriate forum---High Court set aside the order passed by Trial Court and remanded the case for decision afresh on application of defendant seeking leave to appear and defend the suit---Appeal was allowed in circumstances.

Cotton Export Corporation of Pakistan (Pvt.) Ltd. v. Messrs Nagina Cotton Industries Ginning Pressing and Oil Mills and 6 others 1993 CLC 2217; Sh. Muhammad Irfan and others v. Sitrar Commission Shop and others 2005 MLD 85 and Naeem Iqbal v. Mst. Zarina 1996 SCMR 1530 rel.

Ashar Elahi for Appellant.

Javaid Mehmood Sandhu for Respondent.

2017 M L D 1319

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad, J

ABDUL WAHEED---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No.12389 of 2016, decided on 27th September, 2016.

Criminal Procedure Code (V of 1898)---

----S.439-A---Sessions Judge's power of revision---Scope---Order by Court of Session accepting revision petition and order passed by magistrate refusing further physical remand, was set aside---Non-granting physical remand by the Magistrate was a judicial function and complainant in a criminal case had locus standi to file revision petition being an aggrieved person---In the present case, misappropriation of huge amount was involved which fact was noted in the impugned order---No valid ground was available to interfere with impugned order under constitutional jurisdiction of High Court---Constitutional petition was dismissed accordingly.

Riaz ul Haq and another v. Muhammad Naveed and another" 2005 YLR 805 rel.

Nasreen Bibi v. Nazir Ahmy and another 2001 MLD 1459; Abid Shah v. The State PLD 1992 Lah. 412; Mazhar Iqbal v. The State 1989 PCr.LJ 2241; Iqbal Hussain v. The State and another 1995 PCr.LJ 1835 and Zawar Hussain v. The State and 3 others 2009 PCr.LJ 705 ref.

Nasreen Bibi v. Nazir Ahmad and another 2001 MLD 1459 distinguished.

James Joseph and Malik Imtiaz Haider Maitla for Petitioner.

Mazhar Jamil Qureshi AAG.

2017 M L D 1331

[Lahore]

Before Ali Akbar Qureshi, J

ZAHIDA BIBI---Petitioner

Versus

MUHAMMAD MUNIR---Respondent

C.R. No.4902 of 2015, heard on 12th April, 2016.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Oral sale---Proof of---Procedure---Transaction with illiterate woman---Requirements---Evasive reply---Effect---"Sale"---Scope---Contention of plaintiff was that she had inherited the suit property and impugned oral sale mutation in favour of her husband was product of fraud and misrepresentation---Defendant moved application for rejection of plaint which was accepted concurrently and plaint was rejected---Validity---Oral sale was to be proved independently irrespective of sale mutation entered in the revenue record by giving time, date, place and names of witnesses in whose presence sale was made---No date, time, place and names of witnesses of oral sale had been mentioned while filing written statement by the defendant---Defendant had failed to prove the transaction of oral sale---Plaintiff was an illiterate lady and law had protected such a lady---Defendant was bound to prove that male family member of plaintiff was present at the time of executing the alleged oral sale mutation and she was identified by a responsible person of the village---No male member of plaintiff was present at the time of executing the alleged oral sale mutation---Even name of identifier had not been mentioned in the impugned mutation---Alleged oral sale mutation was sham transaction and was product of fraud and misrepresentation---Plaintiff had clearly narrated the ingredients of fraud in her plaint---Parawise reply of the plaint filed by the defendant was evasive which would amount to admission on his part---Defendant had played fraud with the plaintiff and after getting the suit land divorced her---Trial Court had accepted application for rejection of plaint on technicalities---Both the courts below should have independently scrutinized the oral sale mutation irrespective of other facts while accepting the application for rejection of plaint---Trial Court should have conducted an inquiry by framing issues and recording evidence---Sale of every kind was to be completed on payment of consideration to the vendor---Defendant was bound to prove the payment of consideration through convincing and independent evidence but same had not been proved---Both the courts below had committed illegality, irregularity, legal infirmity and jurisdictional defect while rendering the findings in the present case---Impugned orders were set aside and suit was decreed with cost of twenty five thousands which should be paid to the plaintiff---Revision was allowed in circumstances.

Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L. Rs. and others 2013 SCMR 1300; Rana Sarbland Khan v. B. K. Enterprises through Director PLD 2015 Lahore 681; Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi 2013 SCMR 868; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 and Muhammad Nawaz alias Nawaza and others v. Member Judicial, Board of Revenue and others 2014 SCMR 914 rel.

Rana Naeem Tahir Khan for Petitioner.

Mian Mumtaz Hussain for Respondent.

2017 M L D 1357

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD IJAZ KHAN---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.6332-B of 2016, decided on 17th August, 2016.

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, common intention---Bail, grant of---Statutory ground of delay in conclusion of trial---Joint trial of accused and co-accused---Delay in conclusion of trial caused by delaying tactis adopted by co-accused---Effect---Record of the Trial Court indicated that some of the co-accused kept playing hide and seek with the Court and did not let it frame the charge against them on one pretext or the other---Sluggish manner of the prosecution almost touched the limits of extremity in the case---Accused could not be penalized, nor could be continuously kept in jail for an indefinite period of time only to satisfy the grudge of the complainant---Attending circumstances of the case conveyed little to believe that the accused was a hardened, desperate or dangerous criminal---Accused had not been involved in an act of terrorism punishable under the Anti-Terrorism Act, 1997 or other allied laws---Case of the accused did not hit by any of the embargos of the fifth or the sixth proviso to S.497(1), Cr.P.C.---Law had to take its own course without being affected by any alien factors---Accused was admitted to bail, in circumstances.

Muhammad Afzal Butt alias Aphi v. The State and others 2015 SCMR 1696 rel.

Azam Nazeer Tarar for Petitioner.

Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab for the State with Ali Sher ASI.

2017 M L D 1369

[Lahore]

Before Amin-ud-Din and Abdul Rehman Aurangzeb, JJ

NAEEM TUFAIL---Appellant

Versus

JUBILEE INSURANCE COMPANY LTD. through Chairman and another---Respondents

Insurance Appeal No. 905 of 2013, heard on 30th March, 2017.

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

----Arts. 78, 79 & 72---Documentary evidence, proof of---Production and admission of documents---Objection against admission of a document---Scope---Although production of a document and admission of a document were two different subjects, a document could be produced in evidence which was always subject to admission as required under Art. 78 of the Qanun-e-Shahadat, 1984---Courts were vested with jurisdiction to ascertain genuineness and authenticity of any document in order to arrive at a just and fair conclusion on the touchstone and parameters of Art. 78 of the Qanun-e-Shahadat, 1984 and when a document had been exhibited in evidence without any objection by the opposite party, the same was deemed to be proven in all respects---Objection as to the authenticity of a document was to be taken at an earlier stage and after a document was admitted in evidence, an objection against admission could not be allowed at any subsequent stage.

Ch. Muhammad Saleem v. Muhammad Akram and others PLD 1971 SC 516 and Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21 rel.

Liaquat Ali Butt for Appellant.

S.M. Mohsin Zaidi for Respondents.

2017 M L D 1373

[Lahore (Rawalpindi Bench)]

Before Abdul Sami Khan, J

MARIA SANAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.220-B of 2016, decided on 21st March, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 376 & 34---Qatl-i-amd, rape, common intention---Bail, grant of---Further inquiry---Incident was an unseen occurrence and nobody had seen accused committing alleged offence---Allegation against accused was that she administered sleeping pills to the deceased and thereafter main accused and his co-accused committed rape with the deceased---Report of Chemical Examiner, prima facie, falsified the story of administering sleeping pills to the deceased---Main accused who along with co-accused (proclaimed offender) committed rape with the deceased, had already been granted bail on the basis of compromise---Vicarious liability of accused for the murder of the deceased, would be determined by the Trial Court after recording evidence---Only material available against accused was in the shape of her extra-judicial confession, that too made in Police custody; reliability and value which would be determined by the Trial Court---Case of accused being a female was covered by First Proviso to subsection (1) of S.497, Cr.P.C.---Accused was previous non-convict and never involved in any other case---Accused was behind the bars for the last nine and half months, but her trial had not seen any fruitful progress---Investigation of the case was complete and accused was no more required for further investigation; her further incarceration in jail, would not serve any useful purpose---Case of accused having become one of further inquiry covered by subsection (2) of S.497, Cr.P.C., bail was allowed to accused, in circumstances.

Zafar-ul-Hassan Joya for Petitioner.

Qaiser Mushtaq, ADPP and SI with record for the State.

2017 M L D 1385

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD YAQOOB---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.10215-B of 2016, decided on 27th September, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 364-A & 375---Qatl-i-amd, kidnapping or abducting a person under the age of ten years, rape---Bail, refusal of---Allegation against the accused was that he had abducted the deceased, aged about 10/11 years, raped her and murdered---Accused had been named in FIR---Specific role of abducting and committing rape and thereafter causing death of deceased, aged about 10/11 years had been attributed to accused in the FIR---Dead body of the deceased was recovered on the disclosure of the accused---Accused had been found guilty during investigation---Prosecution witnesses including the complainant, stood by their statements of blaming the accused as the culprit---Report under S. 173, Cr.P.C. had been submitted---Charge had been framed and four prosecution witnesses had been examined---Sufficient incriminating material was available on record, which connected the accused with the commission of offence---Accused was refused bail accordingly.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 364-A & 375---Qatl-i-amd, kidnapping or abducting a person under the age of ten years, rape---Bail, refusal of---Challan had been submitted by the prosecution--Four prosecution witnesses had been examined---If the trial of the case had commenced and prosecution evidence was being recorded, the court was to be slow to grant bail to accused unless and until a strong case for bail was made out in his favour---Prima facie, in the present case, there was enough evidence against the accused, which disentitled him for bail---Accused was refused bail accordingly.

PLD 2003 SC 525 rel.

Barrister Waqas Farooq for Petitioner.

Irfan Zia, Deputy Prosecutor General for the State with Wajid Ali, ASI with record.

2017 M L D 1397

[Lahore]

Before Ibad ur Rehman Lodhi, J

ASIF MAHMOOD---Petitioner

Versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and others---Respondents

Writ Petition No.16059 of 2012, heard on 8th November, 2016.

Punjab Land Revenue Rules, 1968---

----R. 17---Lambardar, appointment of---Requirements---Respondent was appointed as lambardar by District Collector---Contention of petitioner was that respondent was minor when he applied for the appointment of lambardar and that petitioner had better qualification than that of respondent---Validity---No age limit had been provided to be kept in regard while making appointment of lambardar---Educational qualification was also not a consideration for such appointment---Respondent was minor when he applied for appointment as lambardar but he crossed the said hurdle of minority when he was appointment as lambardar---Respondent had been performing his duties after appointment as of lambardar without there being any complaint as to his working---Recommendations of original Revenue Officer must be given due weight while making appointment of lambardar---Both Tehsildar and Deputy District Officer (Revenue) had recommended the respondent for appointment as lambardar---Additional Commissioner (Revenue) recorded findings in favour of petitioner but said wrong committed by him had been corrected by the Board of Revenue by giving valid and justified reasoning---No illegality, irregularity, or jurisdictional defect had been pointed out in the impugned order---Constitutional petition was dismissed in circumstances.

Ahmad Din v. Member, Board of Revenue, Punjab, Lahore and another 1983 CLC 1385; Maqbool Ahmad Qureshi v. The State Islamic Republic of Pakistan PLD 1999 SC 484 and M. Nazir Ahmad v. Muhammad Aslam and others 2013 SCMR 363 rel.

Malik Noor Muhammad Awan for Petitioner.

Subah Sadiq Watto, Additional Advocate General, for Respondents Nos.1 and 2.

Sameer Ijaz for Respondent No.3.

2017 M L D 1405

[Lahore]

Before Abdul Sami Khan, J

SAQIB ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.15656-B of 2016, decided on 18th November, 2016.

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

----Ss. 497 & 498---Penal Code (XLV of 1860), S. 365-B---Kidnapping, abducting or inducing woman to compel for marriage etc.---Bail, grant of---FIR was lodged without promptitude---Nikkahnama (marriage certificate) produced by accused was verified as correct---Alleged abductee stated that she had contracted marriage with accused with her free will and consent and against the wishes of her parents---Statement of alleged abductee under S. 161, Cr.P.C. supporting the prosecution version made the case of two versions and as to which version was correct would be determined by Trial Court---Investigation was complete to the extent of accused---Accused was neither previous convict nor involved in any other case---False implication of accused by the complainant could not be ruled out---Bail was granted accordingly.

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

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

Sagheer Ahmad for Petitioner with Petitioner in person.

2017 M L D 1415

[Lahore]

Before Abdul Sami Khan and Sadaqat Ali Khan, JJ

MAQSOOD AHMAD---Appellant

Versus

The STATE and others---Respondents

Crl. Appeal No.415-J of 2006, heard on 16th March, 2015.

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

----Ss. 302(b), 324, 353, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, common object, recovery of unlicensed arms, act of terrorism---Appreciation of evidence---Benefit of doubt---Time of occurrence, was neither mentioned in the FIR, nor in the complaint---Two co-accused, who died in Police encounter during the occurrence, were real brothers, but had no relation with accused---No specific role was attributed to accused---Single firearm entry wound was attributed to six accused persons, including accused---Accused, could not be proved to be proclaimed offender prior to the occurrence---Site plan did not show the accused, anywhere---Accused had not received any injury during the Police encounter---Nothing was recovered from accused during interrogation---No overt act was attributed to accused---Prosecution, had failed to produce any evidence showing that accused had shared common object with co-accused for the commission of present occurrence---Mere presence or association with other members of unlawful assembly alone was not per se sufficient to hold every one of them criminally liable for the offences committed by the others, unless there was sufficient evidence on record to show that each intended to or knew the likelihood of commission of any such offending act, which was missing in the present case to the extent of accused---Convictions and sentences of accused, awarded to him by the Trial Court, were set aside; accused was ordered to be acquitted, and was directed to be released forthwith, in circumstances.

K.M. Ravi and others v. State of Karnataka (2009) 16 SCC 337 rel.

(b) Criminal trial---

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

Muhammad Akram v. The State 2009 SCMR 230 rel.

Maqbool Ahmad Qureshi for Appellant at State expenses.

Khurram Khan, D.P.G. for the State.

Nemo for the Complainant.

2017 M L D 1440

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmad and Ch. Mushtaq Ahmad, JJ

JAVED IQBAL and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.811 and Murder Reference No.89 of 2011, heard on 10th May, 2016.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd and common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused persons came at odd hours of night at the house of complainant and called the injured witness at the canal-bank---Injured witness along with others including deceased when reached at the specified place, accused persons made firing on the complainant party, son of complainant was murdered and his brother received injuries during the occurrence---Complainant furnished ocular account of the incident---Prosecution's two witnesses including the injured one came forward to strengthen the prosecution case---Another prosecution witness negated the presence of eye-witnesses at the place of occurrence at the relevant time---Said person was the prosecution's own witness who made statement to the contrary---Neither the prosecution declared said witness as hostile nor he was given-up---Accused persons were found innocent during investigation conducted by Investigating Officer---Complainant contended that accused persons were inimical towards injured witness as they had suspicion that he had developed illicit relation with their sister---Such facts cast serious doubt on the veracity of eye-witnesses qua their presence at the relevant time---Record showed that mobile number mentioned in FIR was of another person against whom it was alleged that sister of accused persons had actually developed illicit relations with him and accused persons also got registered FIR regarding abduction of their sister by the said another person---Story as narrated in the FIR and reiterated before the court appeared to be far away from reality--Facts and circumstances of the case established that testimony of eye-witnesses was not trust worthy and confidence inspiring and created many doubts as to the veracity of prosecution story---Accused were acquitted in circumstances by setting aside conviction and sentences recorded by Trial Court.

(b) Criminal trial---

----Capital charge---Appreciation of evidence---Caution and care---Caution and careful scrutiny of prosecution evidence was required in criminal dispensation of justice, particularly involving capital charge.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Where a single instance created reasonable doubt same was sufficient to record acquittal, giving benefit thereof to the accused---Accused were acquitted in circumstances by setting aside conviction and sentences recorded by Trial Court.

Ghulam Qadir v. The State 2008 SCMR 1221 rel.

Malik Amir Manzoor Awan and Sabir for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Mian Tariq Arain for the Complainant.

2017 M L D 1458

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed, J

MUHAMMAD ASIF---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.3851-B of 2016, decided on 4th November, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Bail, refusal of---Reasonable grounds---Deceased (dying declarant) being a neighbour unambiguously pointed accused as assailant---Occurrence took place in a broad-daylight---Place of injuries as alleged by deceased was confirmed by the Medical evidence---Argument that dying declaration was not attested by Medical Officer and was liable to be excluded from consideration was of no force---Various pieces of prosecution evidence cumulatively constituted "reasonable grounds" within the contemplation of S.497, Cr.P.C.---Bail was refused.

Ijaz Ahmad Toor for Petitioner.

Mirza Abid Majeed, D.P.G. with Asif, ASI for the State.

2017 M L D 1480

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD RIAZ---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.82 and Murder Reference No.17 of 2013, decided on 26th January, 2017.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Ocular account corroborated by medical evidence---Allegation against accused was that he committed murder of his wife---Ocular account was furnished by prosecution witnesses---Accused was arrested at the spot immediately after the occurrence---FIR was lodged promptly---Presence of eye witnesses at the relevant time could not be doubted---Number and nature of injuries sustained by the deceased were in line with the ocular account---Nomination of accused in the crime report could not be a result of consultation or deliberation---Circumstances suggested that accused could be held responsible for the crime, however, his conviction under S. 302(b) Penal Code, 1860 warranted serious consideration---Prosecution case was that the deceased lady left the house of accused and started living in a house arranged by her paramour---Investigation confirmed the hypothesis of accused's surprise arrival while paramour of deceased was present with her---Said circumstances spelled out situation which appeared to have cropped up all of a sudden where-under the accused seemingly lost control over his faculties---Said situation was confirmed by the weapons used in the occurrence---Churri, electric iron, bricks and cord were used by the accused at the time of occurrence, which showed that the accused used whatever object, he found nearby---Violence suffered by the deceased was compatible with the provocation and emotional devastation---Accused's culpability was more squarely covered by the mischief of S. 302(c) of the Penal Code, 1860---Circumstances established that offence of accused fell in the ambit of S. 302(c) instead of under S. 302(b) Penal Code, 1860---Appeal was dismissed, however, conviction of accused was converted from clause (b) of S. 302 of the Penal Code, 1860 into clause (c) of the Code and he was sentenced to fifteen years.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 and Malik Muhammad Mumtaz Qadri's case PLD 2016 SC 17 rel.

Ch. Sajid Ali Baig for Appellant.

Complainant in person.

Ch. Qaisar Mushtaq, Assistant District Public Prosecutor with Pervez Akhtar, S.I. for the State.

2017 M L D 1493

[Lahore]

Before Mahmood Ahmad Bhatti, J

Mst. RUKAYYA PARVEEN and another---Petitioners

Versus

PROVINCE OF PUNJAB through D.O. (R) Pakpattan Sharif and 4 others---Respondents

C.R. No.2039 of 2011, decided on 30th January, 2015.

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

----S. 19----Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2--- Temporary injunction, grant of---Transfer of tenancy rights, pre-requisite for---Plaintiffs filed suit for declaration and perpetual injunction challenging mutation attested in names of defendants claiming that predecessor-in-interest of parties was lessee under Province of Punjab in respect of suit property who had gifted the same in favour of his two grandsons, who were murdered, and, after their death, suit property had devolved upon plaintiffs being their mother and sister---Plaintiffs also filed application under O.XXXIX, R.1 & 2, C.P.C. for grant of temporary injunction which was dismissed---Contentions of plaintiffs were that both courts below had not appreciated controversy in proper perspective as there was a valid motive for making the gift, the mutation was ineffective upon rights of plaintiffs as one of defendants had been convicted for murder of alleged donees and prima facie case existed in their favour---Validity---Held, in terms of S. 19 of Colonization of Government Lands (Punjab) Act, 1912 any transfer with regard to suit property was to be first approved by Collector of the District---Predecessor could not make valid gift with regard to suit property without such approval as no proprietary rights had been granted to him---Plaintiffs had no case for grant of temporary injunction as neither revenue record supported their claim nor was any document produced in proof of alleged gift---Alleged donees had not challenged said mutation on basis of gift in their life---Courts below had exercised jurisdiction vested in them in accordance with law while passing impugned orders---Revision was dismissed.

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

----O. XXXIX, Rr. 1 & 2----Temporary Injunction---Ingredients---Plaintiff for grant of temporary injunction has to prove three ingredients: prima facie case; balance of convenience; and irreparable loss---If any of the ingredient(s) is/are missing, courts will refuse to grant temporary injunction.

Abdul Khaliq Safrani for Petitioners.

Ferman Ahmad Bhatti for Respondents Nos. 2 to 5.

2017 M L D 1510

[Lahore (Bahawalpur Bench)]

Before Atir Mahmood, J

AZHAR BAKHTIAR KHILJI---Petitioner

Versus

DISTRICT CO-ORDINATION OFFICER and others---Respondents

W.P. No.1270 of 2015, decided on 6th April, 2015.

Constitution of Pakistan---

----Arts. 16, 17, 25 & 199---Constitutional petition---Freedom of assembly and association---Discrimination---Grievance of petitioner was that authorities had imposed restriction upon petitioner to hold religious meetings---Validity---Authorities did not impose any restriction upon holding gatherings / processions in the area; therefore, petitioner could neither be treated discriminately nor he could be precluded from holding proposed religious gathering on the pretext of law and order situation prevailing in country---District Administration and law enforcing agencies were duty bound to provide security and protection to the lives of participants of such like meetings/gatherings---High Court allowed petitioner to hold religious gathering at proposed venue and directed the respondent/authorities to arrange security and protection of the participants of gathering in accordance with law---Petition was allowed in circumstances.

Muhammad Arshad Khan Khakwani for Petitioner.

Tahir Saeed Ramay, Assistant Advocate General.

Rao Muhammad Sadiq and Rana Muhammad Rashid, Advocates/Legal Advisor for respondents.

2017 M L D 1529

[Lahore]

Before Shahid Hameed Dar and Sardar Muhammad Shamim Khan, JJ

MUHAMMAD SHABBIR alias GOGA BUTT---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 802 of 2014, heard on 16th December, 2014.

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

----S. 9(b)(c)---Possessing and trafficking narcotics---Appreciation of evidence---Accused, at the time of his arrest, possessed 1250 grams of contraband charas, which was packed in a shopping bag---Complaint, or seizure memo did not mention as to how many slabs/cakes/slices were there in the said packet---Detail appeared on the record when prosecution witness, deposed that contraband, charas contained 10 complete slabs/slices, and one broken piece, which would mean that charas was consisted of 11 slabs/cakes---Recovered substance, 1250 grams, if devided by eleven, an average of the number of pieces/slices, would make it 113.63 grams against each slice/piece thereof---Testimonies of the prosecution witnesses did not reveal that the complainant segregated a sample from each of the slices/cakes/prices; rather he had deposed that he separated 50 grams from the recovered bulk (1250 grams), so as to render it into one packet for chemical analysis---Such act created a pitfall in the prosecution case---Obscurity hovered over the prosecution case, as to whether sample of 50 grams was segregated by the complainant from one slab/slice, or from all of those which gave rise to a crucial question, which had not been viably answered by prosecution during the course of the trial---Estimation could be that one slab had been used by the complainant to segregate sample of 50 grams for transmitting it to the office of the Chemical Examiner for chemical analysis---Nine or ten slices/slabs of the recovered stuff seemed to have gone un-represented---Rest of the material recovered would be rejected as mere junk---Accused, could be held responsible for having only one slice/slab of charas weighing 113.63 grams in his possession at the time of his arrest---Appeal was partly allowed---Conviction of accused recorded for an offence under S.9(c) of Control of Narcotic Substances Act, 1997 was converted into the one, under S.9(b) of said Act---Accused was sentenced to R.I. for one year and three months, with payment of fine of Rs.9,000.

Ameer Zeb's case PLD 2012 SC 380 and Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 ref.

Rana Jamshed Hussain Khan for Appellant.

Hamayoon Aslam, Deputy Prosecutor General for the State.

2017 M L D 1539

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan, J

AMANAT ULLAH---Appellant

Versus

KARAM DIN and others---Respondents

R.S.A. No.39 of 2009, heard on 21st October, 2015.

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

---S. 42---Suit for declaration---Limitation---Benami transaction---Contention of plaintiff was that he was the real owner of suit property and defendants were only benami of the same---Suit was dismissed concurrently---Validity---Plaintiff had failed to prove the case that original transaction was a 'benami' transaction---Ingredients to prove a transaction as 'benami' had not been proved by the plaintiff---Nothing was on record with regard to payment of sale consideration by the plaintiff---Original sale deed was in the possession of defendants---Defendants were in possession of suit property---Reason that plaintiff had purchased the suit property was not plausible---Present suit had been filed after prescribed period of limitation---No defect had been pointed out in the concurrent findings recorded by the courts below---Second appeal was dismissed in circumstances.

Muhammad Nawaz Minhas and others v. Mst. Surriya Sabir Minhas and others 2009 SCMR 124 rel.

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

----S.42---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Limitation---Six years period have been provided for filing a suit for declaration from the date when right to sue accrued had been provided.

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

----S. 39---Limitation Act (IX of 1908), Art. 91---Suit for cancellation of document---Limitation---Three years limitation had been provided for cancellation or setting aside of instrument when same came into the knowledge of a party.

(d) Benami transaction---

----Ingredients---Ingredients for 'benami' transaction were source of income, intention to purchase the property as 'benami', original possession of property and the original document of title.

Muhammad Nawaz Minhas and others v. Mst. Surriya Sabir Minhas and others 2009 SCMR 124 rel.

Syed Najam-ul-Saqib Mumtaz for Appellant.

Syed Kabir Mahmood for Respondents.

2017 M L D 1552

[Lahore]

Before Ibad-ur-Rehman Lodhi, J

WASAB KHAN and another---Petitioners

Versus

Mst. BAGH BHARI and 5 others---Respondents

Civil Revision No. 2083 of 2007, heard on 16th February, 2015.

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

----Ss. 214 & 215---Gift deed---Proof---Principal and attorney, relationship of---Transfer of property in the name of wife by attorney---Plaintiff instituted suit to declare the gift made by defendant to his wife to be ineffective---Plaintiff had appointed defendant as attorney who transferred suit property in the name of his wife---Defence witness, not mentioned in pleadings, had deposed that defendant informed plaintiff of alienation---Trial Court dismissed the suit but Lower Appellate Court allowed the appeal---Validity---Law required that "prior permission" of principal was to be acquired by agent for alienation of principal's property in favour of his close relative---Informing principal about alienation was necessarily an act done subsequently that would not equalize "prior permission"---Principal had a right to repudiate said transaction if it was proved that material facts were dishonestly concealed by agent---Revision was dismissed by High Court.

Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31; Kishwar Iqbal Khan v. Muhammad Ali Zaki Khan and others 2007 CLC 1290 and Wali Muhammad v. Muhammad Ibrahim and others PLD 1989 Lah. 440 rel.

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

----O. VIII, R 5---Allegation of fact, principle---Every allegation of fact in plaint, if was not specifically denied or stated to be not admitted in pleadings of defendant should be taken as admitted except as against a person under disability.

Mohammad Hanif Niazi and Malik Matee Ullah for Petitioners.

Ejaz Ahmad Chaudhry for Respondent.

2017 M L D 1567

[Lahore]

Before Ali Akbar Qureshi, J

MUHAMMAD SIDDIQUE and and others---Petitioners

Versus

Mst. KANIZ FATIMA through L.Rs.---Respondents

C.R. No.4933 of 2016, heard on 29th December, 2016.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Limitation---Inheritance---Custom (Riwaj)---Scope---Bona fide purchaser---Proof---Plaintiff filed suit for her share out of the legacy left by her father---Contention of defendants (brothers) was that no custom existed to give anything from the inheritance to the daughters at the time of death of their father---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Plaintiff was daughter of deceased and sister of defendants---Name of plaintiff (daughter) being legal heir should have been mentioned in the revenue record---Excluding the name of plaintiff in the inheritance mutation was illegal and unlawful---Plaintiff had been deprived from her right of inheritance secured and guaranteed by Islam---Heir of any deceased would become owner to the extent of his/her share by operation of law the moment predecessor died---No limitation would run against claim of inheritance---Suit filed by the plaintiff was within time---Women who were weaker segment of the society should not be deprived from their right of inheritance in the name of custom---If anyone had deprived the sisters from the right of inheritance, he would have to prove through unimpeachable evidence the reason/ground on the basis of which sisters had been deprived from inheritance---Stance of defendants to deprive the plaintiff from the right of inheritance was vague and ambiguous---Defendants had failed to bring anything on record in support of their stance---Subsequent purchasers of suit land could not bring on record that before purchasing the land precautionary measures were taken and they purchased the property in good faith---Alleged subsequent purchasers remained unsuccessful to prove their stance of bona fide purchaser---Sale transactions/alienations or mutations made by the defendants of suit land in favour of subsequent purchasers were sham and were declared illegal, unlawful having no legal effect qua the right of plaintiff---Revision was dismissed with cost of Rs. 25,000/- in circumstances.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869; Mst. Noor-un-Nisa and another v. Ghulam Sarwar and 6 others 1994 SCMR 2087; Muhammad Iqbal through L.Rs. v. Mehmood Hassan and others 2016 MLD 1243 and Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 rel.

Muhammad Zahid-ur-Rehman for Petitioner.

2017 M L D 1573

[Lahore]

Before Abdul Sami Khan, J

RAHIM DAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.775 and Criminal Miscellaneous No.3157-M of 2012, decided on 2nd February, 2017.

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

----S. 337-A(ii)---Hurt---Appreciation of evidence---Accused was nominated in FIR with the role of causing injury with Ganti on the person of complainant---FIR was got registered by complainant, who entered appearance in the witness box before the Trial Court as prosecution witness and supported the story of the incident---Deposition made by complainant before the Trial Court got full support from the statement of eye-witness---Injury attributed to the accused by the complainant was declared as "shajjah-i-mudihah" falling under S.337-A(ii), P.P.C.---Complainant and eye-witness were consistent on material points and had confidentially faced the test of cross-examination and there was nothing on record to rebut the trustworthy and confidence inspiring evidence of said witnesses---Conversely, the defence failed to bring on record any material on the basis of which it could be considered that the accused was involved in the case in furtherance of any ulterior motive, ill will, malice of previous enmity of complainant with him---Case of prosecution against the accused was duly supported by the medical evidence---Prosecution, in view of these eventualities, had successfully proved its case against accused---Conviction of accused on the charge of offence under S.337-A(ii), P.P.C. and sentence to the extent of payment of Arsh equal to five per cent of Diyat were upheld and maintained, however the sentence of rigorous imprisonment for three years imposed upon the accused by the trial court and upheld by appellate court was set aside---Revision was dismissed accordingly.

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

----Chap. XVI [Ss.299-338-H]---Scope---In all cases of hurt normal punishment to be awarded to an offender was payment of Arsh or Daman and the optional additional punishment of imprisonment as Tazir provided for the relevant offence could be awarded to an offender only where the offender was a previous convict, habitual or hardened desperate or dangerous criminal or the offence had been committed by him in the name or on the pretext of honour and in the case of such an offender the sentence of imprisonment as Tazir was not to be less than one third of the maximum imprisonment provided for the hurt caused.

PLD 2009 Lah. 312 and Ali Muhammad v. The State 2012 PCr.LJ 104 rel.

Irfan Qasim Awan for Petitioner with Petitioner in person.

Irfan Zia, Deputy Prosecutor General for the State.

2017 M L D 1586

[Lahore (Multan Bench)]

Before Ali Akbar Qureshi, J

SULEMAN (deceased) through Legal heirs---Appellant

Versus

MUHAMMAD ALI and others---Respondents

Regular Second Appeal No.29 of 2008, heard on 15th January, 2016.

(a) Gift---

----Proof of---Requirements---Inheritance---Scope---Defendants were required to prove gift deed in accordance with the terms of Art. 79 of Qanun-e-Shahadat, 1984---Defendants had not produced second attesting witness of gift deed---Gift deed was not admissible in evidence in circumstances---Findings recorded by the Appellate Court were violative of mandatory command of law which should not remain in field---Defendants took the benefit of illiteracy and simplicity of predecessor of plaintiffs and succeeded to transfer the whole land in their names---Predecessor of the parties had no intention to deprive the daughters from their right of inheritance as he himself filed suit for cancellation of gift deed---Such right of inheritance had been secured and guaranteed by Holy Qura'n---Alleged gift deed was product of fraud and misrepresentation and was nullity in the eye of law---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.

Muhammad Abaidullah v. Ijaz Ahmed 2015 SCMR 394 and 2013 SCMR 1351 ref.

Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 and Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044 rel.

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

----Art. 79---Document, proof of---Requirements---Evidence of two marginal/attesting witnesses at least was required to prove a document.

(c) Administration of justice---

----Courts were required to dispense justice in accordance with law.

Taffazul H. Rizvi for Appellant.

Khalid Saleem Akhtar Awan for Respondents Nos.2 and 3.

Zulfiqar Ali Khan for Respondent No.13.

Nemo for Respondents Nos. 1 and 4 to 12.

2017 M L D 1600

[Lahore]

Before Ali Akbar Qureshi, J

CANAL VIEW COOPERATIVE HOUSING SOCIETY through General Secretary and another---Petitioner

Versus

Mst. NASIM BEGUM and 4 others---Respondents

C.R. No.196 of 2012, C.R. Nos.3754, 3360 of 2011 and C.M.No.2-C of 2016, heard on 30th January, 2017.

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

----S. 52---Suit for declaration---Sale of suit land during pendency of suit---Lis pendens, doctrine of---Applicability---Contention of plaintiffs was that impugned sale deed was result of fraud and misrepresentation---Suit was decreed concurrently---Validity---Plaintiffs were minors at the time when transaction qua suit land took place---Sale deed was executed by the defendant with connivance of transferees in their favour---Suit land was purchased by the transferees during the pendency of present suit---Rule of lis pendens was applicable in the present case---Transferees could not bring on record the precautionary measures taken by them before purchasing the suit land---Mere inquiring from the revenue officials was not sufficient to prove the stance of bona fide purchaser for consideration without notice---Transferees were not entitled to defend the suit independently---Transferees had failed to prove their stance of bona fide purchaser---Transaction to purchase the suit land during pendency of suit was subject to final outcome of the suit---Transferees had to swim and sink with his predecessor in interest i.e. original vendor---Revision was dismissed in circumstances.

Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Usman v. Haji Omer Haji Ayub and another PLD 1966 SC 328; Mst. Allah Ditti v. Settlement and Rehabilitation Commissioner, Lahore and 3 others PLD 1966 (W.P.) Lah. 659; Australasia Bank Ltd. Lahore v. Bashir Barton Stores, Sargodha 2 others PLD 1971 Lahore 133; Ali Shan and another v. Sher Zaman and 8 others PLD 1975 Lah. 388; Shukri and 3 others v. Ch. Muhammad Shafi Zaffar and 2 others PLD 1975 Lah. 619; Muhammad Jan Ghaznavi v. Captain Haji Muhammad Kabir and 3 others PLD 1977 Quetta 60; Malik Muhammad Iqbal v. Ghulam Muhammad and others 1990 CLC 670; Maulana Riazul Hassan v. Muhammad Ayub Khan and another 1991 SCMR 2513; Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others 1999 SCMR 2874; Mukhtar Baig and others v. Sardar Baig and others 2000 SCMR 45; Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others PLD 2002 SC 303; Muhammad Nawaz Khan v. Muhammad Khan and 2 others 2002 SCMR 2003; Muhammad Anwar Khan v. Habib Bank Ltd. and 4 others 2005 CLD 165; Muhammad Afzal v. Matloob Hussain and others PLD 2006 SC 84; Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983; Hafiz Iftikhar Ahmed and 3 others v. Khushi Muhammad and another 2014 CLC 1689; 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) Transfer of Property Act (IV of 1882)---

----S. 52---Lis pendens, doctrine of---Applicability---Scope---Rule of lis pendens would apply till the final adjudication which was given in an appeal or revision at the final level of judicial hierarchy.

Malik Muhammad Iqbal v. Ghulam Muhammad and others 1990 CLC 670 rel.

Imran Muhammad Sarwar, for Petitioners (in C.R.No.196/2012).

Ahmad Waheed Khan for Petitioners (in C.R.No.3754/2011).

M. Baleegh-uz-Zaman Chaudhary for Petitioners (in C.R.No.3360/2011).

Messrs Hassan Nawaz Makhdoon and Javed Gill for Respondents Nos.1 and 2.

Mian Muhammad Hanif, for Applicant (in C.M. No.2-C/2016).

2017 M L D 1611

[Lahore]

Before Hafiz Shahid Nadeem Kahloon, J

ASIF---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Revision No.844 of 2015, heard on 12th October, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 265-F(6) & (7), 340 (2), 342 & 537---Qanun-e-Shahadat (10 of 1984), Art. 47---Constitution of Pakistan, Art. 10-A---Evidence of prosecution---Defence evidence, production of---Scope---Right of person, against whom proceedings are initiated, to be defended and his competency to be a witness---Scope---Power to examine accused---Findings or sentence when reversible by reason of error or omission in charge or other proceedings---Relevancy of certain evidence for proving, in subsequent proceedings, truth of facts stated therein---Right to fair trial---Accused, while recording of his statement under S.342, Cr.P.C., opted to adduce evidence in his defence in terms of S.265-F(6), Cr.P.C. and sought permission to produce documentary evidence in the form of statements of prosecution witnesses and judgment recorded in earlier trial of co-accused under the same FIR, which had resulted in acquittal---Trial Court declined said request of the accused on ground that prosecution witnesses had already been examined in the present case, thus their statements recorded in the earlier trial were not relevant---Word 'shall' in S.265-F(6), Cr.P.C. could not be termed as discretion of Trial Court; rather, some serious obligation was cast upon Trial Court to afford opportunity to accused to adduce his defence evidence---Accused, while recording of his statement under S. 342, Cr.P.C., had answered 'yes' in reply to question 'would you want to produce defence evidence', and as such, he had opted to adduce defence evidence---Trial Court could only refuse to initiate proceedings under S. 265-F (6), Cr.P.C. as envisaged under S. 265-F(7), Cr.P.C.---Impugned order revealed that ground or reason for refusal to adduce evidence to accused as envisaged under S. 265-F(7), Cr.P.C. was missing; the same was, therefore, illegal and without lawful authority---Trial court had not only refused request of accused to adduce defence evidence but also closed defence evidence and as such the accused was not allowed to appear as witness in his own defence, which was violation of S. 340(2), Cr.P.C., and such illegality was not curable under S. 537, Cr.P.C.---Trial Court had gone beyond its jurisdiction, as statement under S. 340 (2), Cr.P.C. read with S. 265-F (6), Cr.P.C. for adducing documents, being defence evidence, was mandatory provisions of law---Trial Court could determine and ascertain said statement and defence documents at time of final adjudication of trial after hearing both the parties---Accused was competent defence witness, and if he wanted to appear in defence as required under S.340(2), Cr.P.C., then refusal of Trial Court, declining the mandatory provisions of law, to let him be his own witness, was illegal---Trial Court, having refused to receive defence evidence of accused, had not only committed illegality but also failed to provide fair trial to the accused as guaranteed under Art. 10-A of the Constitution---Accused had right to give evidence in his defence, as provisions of Ss.340(2) & 265-F(6), Cr.P.C. were mandatory in nature---High Court, setting aside impugned order, allowed accused to adduce evidence in his defence and to make statement under S. 340(2), Cr.P.C.---Revision petition was accepted in circumstances.

Muhammad Siddique and another v. The State PLD 1983 SC 173; Abdul Mannan v. The State PLD 1962 Dacca 334; Farrukh Saryyar and others v. The Chairman, Nab, Islamabad and others 2004 SCMR 1 and Archuleta Tanya Pauline and 2-others v. State through Collector of Customs (Preventive) Customs House Karachi PLJ 1996 Cr.C. Karachi 597 rel.

S.K. Chaudhry for Petitioner.

Rana Muhammad Shafique DDPP for the State.

Rana Muhammad Azim Khan for the Complainant.

2017 M L D 1684

[Lahore (Multan Bench)]

Before Muhammad Tariq Abbasi and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD ASLAM and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.82 and Murder Reference No.33 of 2010, decided on 4th December, 2014.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Complainant, accused and deceased persons were cousins inter se, with no previous bad blood amongst them---Purpose of male deceased's visit to the house of female deceased, was far from being plausible, and a different scenario could be spelt out---Had complainant and other prosecution witnesses, were present at the spot at relevant time it was not difficult for them to apprehend accused, who was not armed with any lethal weapon---Prosecution's position that both the deceased were assaulted with the kasi, was not in line with medical evidence---Subsequent implication of co-accused through a supplementary statement, had vitiated the entire credibility of the witnesses---Mere nomination of accused by witnesses, attribution of injuries to them and support of medical evidence, alone, could not sustain charge involving capital sentence, unless such pieces of evidence, were found confidence inspiring by qualifying the touchstone of probability and truthfulness---Occurrence took place inside the house of accused; that fact ipso facto could not saddle him with the responsibility of that incident, in the absence of positive proof, structured on evidential basis---One could suspect that accused had murdered the female (his wife) for her infidelity, and male deceased for being in liaison with her---Conviction of accused could not safely be maintained, in circumstances---Impugned judgment passed by the Trial Court, was set aside, accused persons were acquitted of the charge, and were set at liberty, in circumstances.

Muhammad Asghar alias Nannah and others v. The State 2010 SCMR 1706 ref.

Tahir Mehmood for Appellant.

Malik Muhammad Jaffar, Deputy Prosecutor General for the State.

Masood Ahmad Riaz for the Complainant.

2017 M L D 1703

[Lahore]

Before Shahid Jamil Khan, J

PEPSI-COLA INTERNATIONAL (PVT.) LTD.---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

W.P. No.72 of 2015, decided on 5th January, 2015.

Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S.11---Constitutional jurisdiction of High Court---Constructive res judicata, principles of----Scope---Filing of second Constitutional petition with same submissions, after dismissal of earlier Constitutional petition----Contention of petitioner, inter alia, was that the second Constitutional petition for enforcement of fundamental right of the petitioners could be filed----Validity----Contention that order in earlier Constitutional petition did not prevent filing of second Constitutional petition was without force---Perusal of order of High Court in earlier Constitutional petition showed that argument for enforcement of fundamental right was not entertained, therefore the same could not be re-agitated before the same Court by filing of second Constitutional petition; and if finding of High Court in earlier Constitutional petition was not set aside, subsequent petition on the same issue would be barred by principle of constructive res judicata----Constitutional petition was dismissed.

Commissioner Inland Revenue, Legal Division, Bahawalpur v. Zulfiqar Ali 2012 PTD 964; Muhammad Aftab Sultan through Authorized Agent v. Government of Pakistan, Ministry of Finance through Secretary Finance and 7 others 2014 PTD 1959; Syed Allah Dost v. Haji Muhammad Alam and 12 others PLD 1987 Quetta 235; Income-Tax Officer and another v. Messrs Chappal Builders 1993 SCMR 1108 and Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279 distinguished.

Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others 2012 SCMR 366; Messrs M.K.B. Industries (Pvt.) Ltd. and others v. Chairman, Area Electricity Board, WAPDA, (Peshawar Electric Supply Corporation Ltd.) (PESCO), Peshawar and others 2005 SCMR 699 and Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 S.C. 511 rel.

Abdul Hafeez Pirzada for Petitioner.

Muhammad Ilyas Khan for Respondent No.3.

2017 M L D 1713

[Lahore]

Before Ali Baqar Najafi, J

ABID HUSSAIN---Petitioner

Versus

JUDGE FAMILY COURT and others---Respondents

W.P. No.30814 of 2012, decided on 2nd June, 2015.

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

----S.5, Sched. & Ss.9(5)(a) & 9(6)----Constitution of Pakistan, Art.199---Constitutional petition---Ex parte judgment and decree---Negligence of counsel---Effect---Application for setting aside ex-parte judgment and decree---Maintainability---Condonation of delay---Suits for maintenance, dower and dowry articles were decreed ex parte against husband for his non-appearance---Husband filed application under S.9(6), Family Courts Act, 1964 for setting aside ex parte judgment and decree, which was dismissed both by Family court and appellate court---Contention raised by husband was that he could not appear due to negligence of his counsel who had neither informed him about date of hearing of suits nor passing of ex parte order---Validity---Husband had been seriously prejudiced due to negligence of his counsel, for which Disciplinary Committee of Bar Council had initiated proceedings against the counsel---Impugned order passed under S. 9(6) of Family Courts Act, 1964 was set aside and suits were remanded to Family Court for decision on merits---Constitutional petition was accepted in circumstance.

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

----S. 5, Sched.----Suit for maintenance---Some amount must be paid by husband to wife immediately, which may be subsequently adjusted by Family Court, if decree is passed.

Amanullah Soomaro v. PIA thorugh Managing Director/Chairman and another 2011 SCMR 1341 rel.

Ch. Muhammad Yousaf for Petitioner.

2017 M L D 1719

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD NAWAZ---Petitioner

Versus

GOVERNMENT OF PUNJAB, through Chief Secretary, Lahore and others---Respondents

Writ Petition No. 2644 of 2014, decided on 10th February, 2015.

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

----Ss. 4, 5, 17, 18 & 48----Punjab Land Acquisition Rules, 1983, R. 14---Acquisition of land for public purpose---Authority competent to de-notify acquisition---Executive District Officer acquired land for public purpose that was for construction of hospital---Notification under S. 4 of Land Acquisition Act, 1894 was published in official Gazette---Notification under Ss. 5 & 5(a) of Land Acquisition Act, 1894 was dispensed with---Notification under S.17(4) of Land Acquisition Act, 1894 was issued and published after deciding objections of landowners---Award was announced and finally mutation was sanctioned in favour of the Department---Parties filed constitutional petitions challenging the acquisition under S. 4 of Land Acquisition Act, 1894, but the same were dismissed---Only few landowners filed references under S. 18 of Land Acquisition Act, 1894---One landowner filed application before Executive District Officer (Revenue) seeking de-notification of his acquired land which was accepted in limine as prayed for---Petitioner contended that land having been duly acquired for public purpose and mutation sanctioned in favour of Health Department, de-notification by Executive District Officer (Revenue) was not legal---Executive District Officer who, had de-notified entire piece of acquired land on application of owner of only fraction of total acquired land was charge-sheeted and Patwari Halqa was dismissed on account of said de-notification---Law Officer contended that under S. 48 of Land Acquisition Act, 1894, only Government was empowered to de-notify acquired land and said de-notification order was illegal---Validity---Under S.48 of Land Acquisition Act, 1894 only Government had exclusive jurisdiction to withdraw acquisition process, and Executive District Officer (Revenue) did not stand anywhere, and no intention of Government to withdraw acquisition proceedings was on record---Government had acquired land for welfare of public-at-large---Executive District Officer passed impugned order without any permission or instructions from Government and the same was without lawful authority---Health Department having received acquired land had never surrendered the same---Under R. 14 of Punjab Land Acquisition Rules, 1983, Collector had power to dispose of acquired land but subject to orders of Government---High Court allowing the petition set aside the impugned order of de-notification declaring the same to be illegal and without lawful authority.

Muhammad Aslam Faiz and 8 others v. Executive District Officer (Revenue), Mandi Baha ud Din and 6 others 2007 CLC 1724 ref.

National Police Foundation Co-operative Housing Society Ltd v. Board of Revenue, Government of Punjab, Lahore and 2 others PLD 1984 Lah. 191; Fida Hussain and 2 others v. Province of Punjab through Secretary, Settlement, Board of Revenue Punjab Lahore and 4 others, 2002 CLC 790; Province of Punjab through A.D Fisheries Sialkot v. Rana Abdul Hameed and others 2014 SCMR 1187; Govt. of Punjab Food Department through Secretary Food and another v. Messrs United Sugar Mills Limited and another 2008 SCMR 1148 and PLD 2010 SC 759 rel.

(b) Maxim---

----Audi alteram partem---Scope---"Audi alteram partem" is one of the most important principles and its violation is always considered enough to vitiate even most solemn proceedings---No order can be passed without notice/hearing of concerned parties.

Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678 rel.

(c) Administration of justice---

----Orders without jurisdiction---Effect---When an order is passed by incompetent person, the order is "no order" in eye of law and the same also cannot be implemented---Where law provides for doing of particular act in a particular manner then same would be done in such particular manner or not at all.

Khuda Bakhsh v. Khushi Muhammad and 3 others PLD 1976 SC 208; Bashir Ahmad v. Meer Aslam Jan 2007 CLC 1544; Messrs East-West Insurance Company Ltd., through Chairman and another v. Messrs Muhammad Shafi and Company through Managing Partner and 2 others 2009 CLD 960; Govt. of Punjab Food Department through Secretary Food and Another v. Messrs United Sugar Mills Limited and Another 2008 SCMR 1148 and PLD 2010 SC 759 rel.

Nazir Ahmad Javed for Petitioner.

Mushtaq Ahmad Ch. II for Respondent.

2017 M L D 1773

[Lahore (Multan Bench)]

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

BASHIR AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.190 and Murder Reference No.29 of 2012, heard on 2nd November, 2016.

Penal Code (XLV of 1860)---

----Ss. 302 & 109---Qatl-i-amd, abetment---Appreciation of evidence---Benefit of doubt---Complainant had alleged that accused, all of a sudden, emerged from the bushes and exhorted the deceased that he would not be spared followed by two fire shots in quick succession hitting him---Motive was suspicion of illicit liaison between deceased and accused's sister---Occular account was not in consonance with the medical evidence which heavily reflected upon the presence of witnesses at the scene---Complainant's avowed position was that he along with one eye-witness were at a distance of one kilometer from their village when they witnessed the occurrence; he had cited no reason for his presence at the scene, however, improved upon his previous statement by citing a purpose---Both the witnesses were discrepant on the proclaimed purpose of their presence---Purpose cited by both the witnesses at a place where ordinarily they were not supposed to be present, were diametrically different which additionally impinged upon the probability of their presence---No doubt, substitution was a rare phenomenon being antithetical to retributive human instinct, nonetheless, it was not an impossible scenario, particularly in situations when a real offender would be swapped with a suspect likely to have committed the crime in an unseen was occurrence owing to an outstanding motive---Case of prosecution was that the deceased was suspected to have a liaison with accused's sister---Various aspects of the prosecution case admitted a reasonable space to admit the position taken by the accused---Accused in order to earn acquittal could squarely rely upon a single circumstance reflecting a doubt upon the veracity of prosecution story; a doubt neither illusory nor imaginary rather emanating from stated prosecution position spelling uncertainty upon truth and factuality of charge and narratives in support thereof, therefore, it would be unsafe to maintain the conviction---Consequently appeal was allowed by extending benefit of doubt to the accused.

Malik Altaf Hussain Raan for Appellant.

Muhammad Waseem Khan Babar and Fayyaz Hussain Laghari for the Complainant.

Malik Riaz Ahmad Saghla, Deputy Prosecutor General, Punjab for the State.

2017 M L D 1787

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan, J

FATEH MUHAMMAD and 11 others---Petitioners

Versus

ALLAH WASAYA and 3 others---Respondents

Civil Revision No.124-D of 2006, heard on 7th May, 2015.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Specific Relief Act (I of 1877), Ss. 12 & 42---Amended pleadings---Time/date of effectiveness---Scope---Plaintiffs had contended that their pleadings was amended with the permission of court, after 15 years of filing of suit as from the day of filing suit for declaration to suit of specific performance---Plaintiffs further submitted that two courts below had disregarded the un-rebutted evidence of the plaintiffs regarding execution of sale deed, payment under the sale deed and delivery of possession etc---Validity---Non-suiting the plaintiffs for the reason that amendment was sought after 15 years of filing the suit, principle of amendment of pleadings was that if the amendment was granted; same would take effect from the day of filing of suit---View that suit was amended after 15 years of filing of the same and on that ground non-suiting the plaintiffs, was not sustainable under the law---Both courts below had wrongly applied the settled law against the plaintiffs---When plaintiffs had fully proved the execution of sale deed, delivery of possession under the sale and payment of consideration amount, they were entitled to the decree for specific performance---No doubt the draft sale deed was not signed by the predecessor of petitioners/original plaintiff and it was not the requirement of law that sale deed should be signed by the vendees, therefore, when it was treated as an agreement to sell the principle that it should be signed by the vendees was not applicable in the circumstances of the case, as the full consideration amount was paid and possession was delivered and no act was required to be done by the vendees/plaintiffs, therefore, it was not a defect---Judgment and decree of the two courts below were set aside---Revision was allowed accordingly..

Case-law referred.

Syed Tajammal Hussain Bukhari for Petitioners.

Ex parte for Respondent.

2017 M L D 1792

[Lahore (Bahawalpur Bench)]

Before Atir Mahmood, J

ABDUL HAQ and others---Petitioner

Versus

IFTIKHAR AHMAD and others---Respondents

Civil Revisions Nos.417 and 418 of 2001, decided on 8th April, 2015.

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

----S. 42--- Tamleek--- Mutation--- Proof--- Non-production of identifier of parties and fingerprint expert as witnesses---Effect---Principles---Plaintiffs/sisters filed a suit for declaration against defendants/brothers that tamleek mutation executed in favour of brothers was based on fraud and forgery---Defendants were in constructive possession of suit property and gave shares in produce to plaintiffs uptill 1990 when they refused share in produce on basis of tamleek mutation---Suit was partially decreed but appeals preferred by plaintiffs was accepted---Contention was that S. 42 of Punjab Land Revenue Act, 1967 was misconstrued---Onus to prove issues was on plaintiffs that had not been properly discharged---Validity---When execution of disputed tamleek was denied by plaintiffs onus to prove the same shifted upon defendants being its beneficiaries---Section 42(7) of Punjab Land Revenue Act, 1967 stated that there must be at least two identifying witnesses including preferably lamberdar of the same village---Record revealed that disputed tamleek was sanctioned in a village eight miles away from the village where suit property was situated---Sanction of tamleek Mutation by lumberdar of another village made case of defendants doubtful and his non-production as a witness by defendant also cast serious doubts about genuineness of tamleek mutation---Plaintiffs had categorically denied execution of tamleek mutation in favour of defendants by denying their thumb impressions---Defendants had never opted to move court for comparison of their thumb impressions which strengthened the version of plaintiffs---Revision was dismissed.

Muhammad Asif Mahmood Pirzada for Petitioners.

Abdul Ghaffar Khan Chughtai for Respondents Nos. 1 to 6.

2017 M L D 1799

[Lahore (Multan Bench)]

Before Shah Khawar, J

SADIA JAMAL---Petitioner

Versus

NATIONAL UNIVERSITY OF MODERN LANGUAGES and others---Respondents

Writ Petition No.7530 of 2014, decided on 24th December, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational Institution---Admission in M. Phil (Eng.) Program---Criteria---Cancellation of admission by the University---Accrual of vested right---Scope---Locus poenitentiae, principle of---Scope---Criteria for admission in M. Phil was obtaining of 2.5 CGPA out of 4.0---Petitioner passed examination in "C" grade---Admission of petitioner in M. Phil (Eng.) Program was cancelled by the respondent-University due to non-fulfillment of criteria of admission---Validity---Petitioner had passed M.A. (Eng.) Examination in four semesters within a duration of two years by securing 1777 marks out of 3000 in "C" grade with overall percentage of 59.23---Marks obtained by the petitioner had not been calculated on the basis of CGPA---Petitioner was allowed to appear in the first semester by the respondent-University---Power to rescind an order passed by the government or an authority was available with the concerned authority but the same could only be exercised till a decisive step in pursuance of such said order had been taken place---Vested right had accrued in favour of petitioner as decisive step had been taken by the University by allowing the petitioner to sit in the first semester---Principle of locus poenitentiae (power to rescind till a decisive step taken) was available to the University---Petitioner was granted admission by the University relying upon educational testimonials submitted by her but University had not observed due diligence---Petitioner had not committed any fraud and transcript and decree appended were genuine---Cancellation of admission at such belated stage could not be approved and the same was held to be illegal on the basis of rule of locus poenitentiae---Impugned order for cancellation of admission in M. Phil (Eng.) passed by the respondent-University was set aside and the same was declared as illegal and void---Respondent-University was directed to issue registration number to the petitioner with retrospective effect---Result of examination passed by the petitioner should be declared and she be allowed to continue course of M. Phil (Eng.) with all consequential liabilities and benefits---Constitutional petition was accepted, in circumstances.

Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Muhammad Bilal v. The Principal, National College of Textile Engineering, Faisalabad 1991 MLD 1605; Chairman, Selection Committee/Principal, King Edward Medical, College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15; Wasif Zameer Ahmed, v. Chairman Selection Committee (The Principal King Edward Medical College), Lahore 1997 MLD 813; Samia Rashid and another v. Vice-Chancellor, Azad Jammu and Kashmir University, Muzaffarabad and others 2000 YLR 1422; Imtiaz Ahmed Lone v. University of Engineering and Technology through Vice-Chancellor, Taxila and 2 others 2003 YLR 556; Muhammad Rafique and another v. Director Inservice Agriculture Training Institute and another 2007 CLC 1492; Ammaris Mehtab Chaudhry v. Vice-Chancellor, Sargodha University and others 2013 CLC 1080; 1995 MLD 1862; 1997 CLC 358; 1997 CLC 350; 2004 MLD 1722 and 2006 CLC 1691 ref.

1995 MLD 1862; 1997 CLC 358; 1997 CLC 350; 2004 MLD 1722 and 2006 CLC 1691 distinguished.

Sh. Jamshed Hayat for Petitioner.

Kareem-ud-Din Khilji for Respondent.

Shaukat Bilal Khan Bangash, Standing Counsel for Federal Government for Respondents.

2017 M L D 1815

[Lahore]

Before Ch. Abdul Aziz, J

SABIHA SARDAR---Petitioner

Versus

ABID JAMEEL and others---Respondents

Crl. Misc. No.17387-M of 2016, decided on 14th February, 2017.

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

----Ss. 435, 476, 6 & 561-A---Family Courts Act (XXXV of 1964), S.5 & Sched.---Suit for dissolution of marriage, recovery of dower, maintenance allowance and dowry---Allegation of producing of forged documents---Revision---Scope---Application under S.476, Cr.P.C., before Family Court was dismissed being incompetent---Order of Family Court was assailed through revision---Maintainability---Revisional court under S.435, Cr.P.C., could examine the correctness, legality or propriety of any finding, sentence or order passed by subordinate criminal court---Subordinate criminal court, for the purpose of S.435, Cr.P.C., meant the "court" as mentioned in S.6 of the Criminal Procedure Code, 1898---Admittedly, the Family Court did not fall within the classes of "criminal courts" as mentioned in S.6, Cr.P.C.---Family Court was established under the Family Courts Act, 1964; decision or decree passed by the Family Court was appealable to the High Court, or to the District court---Family Court could not be termed as subordinate criminal court within the meaning of S.435, Cr.P.C., thus any order or finding of the Family Court could not be called in question through criminal revision---Application filed under S.561-A, Cr.P.C., was allowed by setting aside order passed by the revisional court.

(b) Administration of justice---

----If statute provided a specific procedure or forum to assail the order of a court, party could not be permitted to have recourse to any other forum or procedure.

H. Munawar Ali v. Mst. Sarwar Bano 1989 MLD 4654 rel.

(c) Criminal trial---

----Order, indictment or sentence passed by a court not having jurisdiction was nullity in the eye of law and was coram non judice.

Mst. Neelam Nawaz v. The State 1994 PCr.LJ 1922 rel.

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

----Ss. 561-A & 476---Penal Code (XLV of 1860), S. 193---Family Courts Act (XXXV of 1964), S.5 & Sched.---Petitioner filed suit for dissolution of marriage, recovery of dower, maintenance allowance and dowry articles in the Family Court which was partially decreed in her favour---Respondent moved application under S.476, Cr.P.C., against the petitioner with the contention that petitioner had produced certain receipts, which showed purchase of the dowry articles and those receipts were forged---Respondent applied for making all the owners of shops as party, fromwhere said articles were allegedly purchased---Said application was dismissed by the Family Court being not competent---Respondent challenged the said order through revision petition, which was decided by the revisional court and matter was remanded to the Trial Court for fresh decision---Petitioner challenged the said order passed by the revisional court---Validity---Proceedings under S.476, Cr.P.C., could only be initiated by the Family Court if the said court had arrived at the conclusion that the receipts were dubious in nature or were fabricated---Family Court having not drawn any conclusion, proceedings under S. 476, Cr.P.C., were not warranted in the case---Record showed that respondent had made no serious efforts to challenge the authenticity of receipts as neither he summoned the shopkeepers concerned nor placed on record any material to raise suspicion about their genuineness---Shopkeepers were cited as accused in the petition by the respondent, which showed that proceedings under S.476, Cr.P.C., were aimed at using them as tool to secure positive ends in the litigation arising out of the decision of the Family Court---Application filed under S.561-A, Cr.P.C., was dismissed by the High Court by setting aside order passed by revisional court.

Hakim Muhammad Ahmad v. Shaheen Bibi and others 1991 PCr.LJ 1879 rel.

Shahid Shaukat Ch. For Petitioner.

A.D. Bhatti for Respondent No.1.

2017 M L D 1828

[Lahore]

Before Ch. Abdul Aziz, J

MUHAMMAD RIZWAN---Petitioner

Versus

The STATE and others---Respondents

Crl. Misc. No.953-M of 2017, decided on 7th April, 2017.

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

----Ss. 435 & 439-A---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons---Revision---Scope---Application of petitioner for medical examination of the injuries of the injured witnesses (respondents) had been turned down by the Magistrate---Said order was assailed before the revisional court, which was dismissed---Validity---Record showed that revision petition was aimed at subjecting the injuries of injured witnesses for re-examination through a Medical Board---Crime report transpired that one of the injured witnesses received a fire arm injury on the back of his neck; Medico-Legal Certificate of the injured also showed such two injuries---Out of said injuries one was entry wound while the other was the exit---Difference between the two wounds was hardly an inch---No internal organ of the injured person was damaged---Possibility that injury was not caused by a firearm could not be ruled out---Certain columns of the Medico-Legal Certificate, which were of immense importance, were left blank, which was sufficient to cast doubt about the genuineness of the opinion, expressed by the Medical Officer---Notifications No.SO (H & D) 6-1/90 Dated 12th February, 1990 & SO (H & D) 6-/90 dated 8th February, 1992, issued by the Health Department of the Provincial Government, provided that there was no absolute bar or restriction for the constitution of Medical Board for the purpose of medical re-examination of the injured person---Petition for the constitution of Medical Board was allowed in circumstances by setting aside the orders passed by the Magistrate and revisional court.

(b) Criminal trial---

----Medico-Legal Report---Scope---Report prepared by the Medical Officer containing incorrect data---Effect---Innocent person could be hanged and guilty person escape from the gallows on account of such medical report.

(c) Criminal trial---

----Medico-Legal Report---Limitation---Government of Punjab, Health Department Notifications No. SO (H & D) 6-1/90 dated 12th February, 1990 provided, that order for the medical re-examination would be passed within three weeks of the first examination, however, as per subsequent Notification No. SO (H & D) 6-/90 dated 8th February, 1992 by the said department medical re-examination could be ordered beyond the period of three weeks.

M. Khawar Kalim for Petitioner.

Shahzad Saleem Warraich for Respondents Nos. 2 and 3.

Dr. Ghulam Ghazi, CMO, Jinnah Hospital, Lahore.

2017 M L D 1850

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

Mst. NAWAB BIBI and others---Petitioners

Versus

Ch. ALLAH DITTA and 13 others---Respondents

Civil Revision No.391 of 2004, heard on 24th May, 2016.

(a) Pleadings---

----Object and purpose---Facts not mentioned in pleadings---Evidence produced for such fact---When a material fact was not part of the pleadings, same could not be deposed in evidence---Evidence which was departure from pleadings, was neither admissible nor permissible.

Hyder Ali Bhimji v. VIth Additional District Judge, Karachi (South) and another 2012 SCMR 254; Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236; Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 and Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801 rel.

(b) Inheritance---

----Limitation---Question of limitation in the matter of inheritance could not be pleaded---Dispute of inheritance would not attract question of limitation.

Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869 and Wahid Bakhsh and others v. Ameer Bakhsh and others 2015 CLC 1387 rel.

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

----S. 115---Revisional jurisdiction---Scope---Difference of opinion in judgments of courts below---Interference by revisional court---Principles---Whenever, there was difference of opinion in the judgments of the courts below, ordinarily preference was to be given to the judgment of the lower Appellate Court but it was neither an inflexible rule nor it could be pressed into service in an "omnibus fashion"---High Court while exercising its revisional jurisdiction was supposed to examine the propriety and validity of the judgment in question---Judgment of the lower Appellate Court could never be treated as a sacrosanct.

Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801; Wahid Bakhsh and others v. Ameer Bakhsh and others 2015 CLC 1387; Imam Bux v. Senior Civil Judge/Rent Controller, District Malir, Karachi and others 2002 CLC 876; Messrs Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation 2002 CLC 166 and Messrs Badruddin H. Mavani v. Government of Pakistan, Ministry of Food and another 1981 CLC 339 ref.

Muhammad Ilyas Sheikh for Petitioner.

Munir Ahmad Malik for Respondents Nos. 1 and 8 to 14.

Shiekh Zameer Hussain for Respondents Nos. 2 to 7.

2017 M L D 1861

[Lahore]

Before Ch. Mushtaq Ahmad, J

SHABBIR HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.12125-BC of 2013, decided on 27th July, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Petition for cancellation of bail---Principles---Cancellation of---Accused had issued a cheque for payment of amount, which on being presented to the bank, was dishonoured---In the present case accused was appearing before the court regularly after he was granted bail---Allegation that accused removed original cheque after being released on bail, was mere an accusation which was yet to be proved at trial, which did not provide sufficient grounds for cancellation of bail---Once bail was granted by a competent court, there must be strong and exceptional reasons for cancellation of the same---Grounds required for cancellation of bail, could be that order granting bail, was patently illegal, erroneous, factually incorrect, or it had resulted in miscarriage of justice---None of said grounds, was made out in the present case---Petition for cancellation of bail, was dismissed, in circumstances.

Tariq Bashir's case PLD 1995 SC 34; Subhan Khan v. The State 2002 SCMR 1797; Muhammad Akram v. Zahid Iqbal and others 2008 SCMR 1715; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 and Riaz Jafar Natiq v. Muhammad Nadeem Dar and another 2011 SCMR 1708 ref.

Ghulam Farid Sanotra for Petitioner.

Malik Muhammad Jafar DPG with Dilshad ASI for the State.

2017 M L D 1874

[Lahore]

Before Ali Akbar Qureshi, J

MAHBOOB ALAM and another---Petitioners

Versus

LIAQAT ALI and 4 others---Respondents

C.R. No.283 of 2016, decided on 2nd February, 2016.

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

----S. 12---Suit for specific performance of contract---Non-production of two marginal witnesses of agreement to sell---Effect---Scribe---Evidentiary value of---Plaintiffs could not produce two attesting witnesses of agreement to sell and suit was dismissed---Contention of plaintiffs was that scribe could be a substitute of marginal witness---Validity---Scribe could not be substitute of any marginal witness---No illegality, irregularity or any jurisdictional defect had been pointed out in the impugned judgments and decrees passed by the courts below---Revision was dismissed in circumstances.

Hafiz Tassaduq Hussain v. Muhammad Din through L.Rs. and others PLD 2011 SC 241 rel.

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

----S. 115---Revision---Scope---Concurrent findings on facts and record should not be interfered in routine except jurisdictional error or legal infirmity.

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; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984; Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 and Abdul Ghafoor and others v. Kallu and others 2008 SCMR 452 rel.

2017 M L D 1891

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

WARIS ALI---Petitioner

Versus

The STATE and another---Respondents

Crl. Misc. No.11901-B of 2015, decided on 21st September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.395 & 412---Dacoity, dishonestly receiving property stolen in the commission of dacoity---Bail, grant of---Further inquiry---Accused was not named in the FIR, rather he had been implicated in the case on the basis of belated supplementary statement of the complainant, wherein complainant had failed to mention the source of information---Supplementary statement had no evidentiary value---Accused was in judicial lockup in some other criminal case when he was implicated in the present case---Identification parade of accused, in circumstances, was not helpful to the case of prosecution---Identification parade was conducted later on; and the failure on the part of witnesses to describe the role of accused at the time of identification parade, was an inherent defect, which had rendered the identification parade valueless and unreliable---FIR was registered after delay of about 22 hours without explaining any sufficient reason---Chances of accused's false implication with deliberation after consultation, could not be ruled out---Facts on record, which had made the prosecution case prima facie doubtful, benefit of such doubt, even at bail stage, must go in favour of accused---Alleged complicity of accused in the commission of crime, was necessarily a matter of further inquiry in terms of S.497(2), Cr.P.C.---Accused allegedly was involved in number of cases of similar nature, but, he was not convicted in any case---Despite submission of challan, no proceedings had been concluded, nor there was any reasonable possibility of conclusion of trial in near future---Accused was entitled to the concession of post-arrest bail, in circumstances.

Muhammad Rafique v. The State 2008 YLR 2776; Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Bacha Zeb v. The State 2010 SCMR 1189; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Hadayatullah v. Abdul Hameed and another 1984 SCMR 119; Saeed Ahmad v. The State 2012 PCr.LJ 1293; Muhammad Zafar v. The State and another 2012 PCr.LJ 1549; Shahid Ali Dharejo and another v. The State 2012 PCr.LJ 1601; Abid Aziz Ashrafi and 3 others v. The State 2012 PCr.LJ 1148; Ehsan-ullah v. The State 2012 SCMR 1137; Mitho Pitafi v. The State 2009 SCMR 299; Qamar alias Mitho v. The State and others PLD 2012 SC 222; Jafar Hussain alias Jojo v. The State 2008 PCr.LJ 1444 and Shabeer v. The State 2012 SCMR 354 rel.

Mian Abdul Qadoos for Petitioner.

Muhammad Atif Rao, DDPP with Zafar S.I. for the State.

2017 M L D 1908

[Lahore]

Before Mirza Viqas Rauf, J

GHULAM SARWAR---Petitioner

Versus

DISTRICT JUDGE, HAFIZABAD and others---Respondents

Writ Petition No.12677 of 2012, heard on 6th April, 2015.

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

----O. XVI----Constitution of Pakistan, Art. 199---Constitutional petition---Summoning and attendance of witnesses---Procedure---Dismissal of case in default of producing summoned witnesses---Duty of court to procure attendance of witnesses---Petitioner filed application for summoning of witnesses, which was allowed by Trial Court---Petitioner got recorded his own statement and that of other witnesses, but he could not procure attendance of summoned witnesses on fixed date---Trial Court closed evidence of petitioner and fixed case for evidence of respondents---Petitioner assailed order of Trial Court through revision which was dismissed---Contention raised by petitioner was that impugned order of Trial Court was violative of O. XVI, C.P.C., and the Trial Court having allowed application for summoning of witnesses was bound to adopt all measures for procuring their attendance---Validity---Rule 1 of O. XVI, C.P.C. contemplated that parties should present in court a certificate of readiness to produce evidence along with list of witnesses proposed to call or produce either to give evidence of issues and no party should be permitted to call or produce witnesses other than those contained in said list, except with permission of court and after showing cause for omission of said witnesses from the list---Petitioner had invoked the powers ordained in O.XVI, C.P.C. by moving application to that effect, which was allowed by Trial Court and expenses were deposited by petitioner---Court was bound to move on its own coercive machinery provided under O. XVI, C.P.C. for procuring attendance of witnesses named in the list of witnesses, and the court could not shift responsibility towards petitioner---Trial Court passed impugned order in derogation of mandatory provision of O. XVI, C.P.C.---Revisional court while dismissing the revision petition, failed to rectify the legal error committed by Trial Court in exercise of jurisdiction vested under S. 115, C.P.C.---Impugned orders of courts below could not sustain under the law---High Court accepting petition, set aside orders of courts below, and directed the Trial Court to adopt all possible measures for procuring attendance of summoned witnesses---Petition was accepted accordingly.

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

----O. XVI, Rr.1, 2, 10 & 11---Scope---Summoning and attendance of witnesses---Procedure---Rule 1 of O. XVI, C.P.C. contemplates that parties shall present in court a certificate of readiness to produce evidence along with list of witnesses proposed to call or produce either to give evidence of issues and no party shall be permitted to call or produce witnesses other than those contained in said list, except with permission of court and after showing cause for omission of said witnesses from the list---In terms of O.XVI, R. 1(3), C.P.C., a party may obtain summons for persons whose attendance is required in court by moving application to the court---Order XVI, R. 2, C.P.C. deals with deposit of expenses of witnesses in court whose attendance is required---Rule 10 of O. XVI, C.P.C. provides procedure for court to proceed in matter where witnesses fail to comply with summons and Rule 11 of the Order stipulates consequences of non-appearance of witness to whom summon was issued.

Mst. Bashir Bibi v. Aminuddin and 9 others PLD 1973 SC 45; Muhammad Younas v. Pirzada M.A. Qureshi and others 1993 MLD 336; Abdul Ghani and 2 others v. Abdul Aziz Khan and 2 others 1992 CLC 212; Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 and Hakim Habibul Haq v. Aziz Gul and others 2013 SCMR 200 rel.

Mian Tariq Ahmad for Petitioner.

Ghulam Farid Sanotra for Respondents.

2017 M L D 1931

[Lahore]

Before Atir Mahmood, J

SHEHZAD ALI KHAN---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chairman and 3 others---Respondents

Writ Petition No.40835 of 2016, heard on 16th January, 2017.

(a) Punjab Local Government (Conduct of Elections) Rules, 2013---

----Rr. 12 & 14---Provincial Insolvency Act (V of 1920), S. 6---Punjab Local Government Act (XVIII of 2013), S. 27---Constitution of Pakistan, Art. 199---Constitutional petition---Election for local government---Nomination papers, filing of---Declaration of assets---Objections---Requirements---Parallel proceedings---Scope---Decree passed by Banking Court---Insolvency---Disqualification of candidate being an 'undischarged insolvent' was sought---Scope---Candidate did not return loan to the Bank and decree was passed by the Banking Court---Said loan was not mentioned while filing nomination papers and disqualification was sought on the basis of insolvency---Validity---Respondent-candidate having mentioned while filing nomination papers that there was a house mortgaged with the Bank and amount in this regard was yet to be paid, had actually mentioned the liability of loan to be paid by him although details of loan had not been given---Any person or even a voter of the constituency could raise objection to the nomination papers of a contesting candidate---Such objection should be looked into by the Returning Officer which might lead to acceptance or rejection of nomination papers---Appeal against decision of Returning Officer could be made---Petitioner being voter of concerned halqa could raise objections upon the nomination papers of respondent at the time of scrutiny of the same but he did not do so---Petitioner had not disclosed as to when and how he came to know with regard to the liability of respondent-candidate---Petitioner had not approached High Court with bona fide intention rather he had approached with some mala fide or for the benefit of some other candidate---Any person not approaching the Court bonafidely was not entitled to any relief---Respondent-candidate had challenged the decree passed against him and appeal was still pending decision---Decree passed by the Banking Court could not be said to be final against the candidate---If respondent was disqualified on the basis of said decree but decree was set aside at a later stage then there would be no compensation for the respondent---Election petition on the same allegation was pending adjudication before the Election Tribunal---If the High Court declared the candidate as disqualified for the membership, then election petition would become infructuous---Parallel proceedings for one and the same cause were not permitted under the law---Petitioner was to approach the Election Tribunal for redressal of his grievance or wait for decision of Election Tribunal and then approach the High Court for his grievance if still persisted---Respondent, in circumstances had not committed any act of insolvency and he could not be termed as 'undischarged insolvent'---Candidate could not be disqualified on the basis of insolvency---Constitutional petition was dismissed in circumstances.

Ch. Muhammad Yusaf Kaselia v. Peer Ghulam Mohy-ud-Din Chishti and others PLD 2016 SC 689; Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema and others 2016 SCMR 763; Allied Bank Ltd. through Authorized person v. Inam Ullah Khan and another 2013 CLC 1310;, Worker's Party Pakistan through General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2013 SC 406; Rana Muhammad Hayat Khan v. Rana Imtiaz Ahmad Khan PLD 2008 SC 85; Rana Muhammad Arshad v. Additional Commissioner (Revenue), Multan Divison and others 1998 SCMR 1462; Ch. Tanvir Khan v. President, Cantt. Board, Rawalpindi and 2 others 1999 MLD 721; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, No.A. 158, Naushero Feroze and others 1994 SCMR 1299; Muhammad Mujtaba Abdullah and another v. Appellate Authority/Additional Sessions Judge Tehsil Liaquatpur District Rahim Yar Khan and others 2016 SCMR 893 and Abdul Rasheed and another v. Election Appellate Authority and others 2016 SCMR 1215 ref.

Zahid Iqbal v. Hafiz Muhammad Adnan and others 2016 SCMR 430 and Liaquat Ali and others v. Returning Officer and others 2016 MLD 846 rel.

(b) Appeal---

----Appeal was continuation of proceedings.

(c) Interpretation of statutes---

----Court could interpret statute but could not circumvent the intention of legislature.

Hafeez Saeed Akhtar for Petitioner.

Azam Nazir Tarar, Barrister Lehrasip Hayat Dahar, Mazhar Ali Ghallu and Ch. Naveed Akhtar Bajwa for Respondents.

Nasir Javaid Ghuman and Amer Raza, Returning Officer for Election Commission.

2017 M L D 1947

[Lahore]

Before Ch. Muhammad Iqbal, J

NADEEM TARIQ---Petitioner

Versus

FULL BOARD, BOARD OF REVENUE (MEMBERS JUDICIAL-V & VIII), PUNJAB, LAHORE and 4 others---Respondents

Writ Petition No.1549 of 2015, heard on 22nd January, 2015.

Punjab Board of Revenue Act (XI of 1957)---

----S. 8---Punjab Land Revenue Rules, 1968, R.17---Civil Procedure Code (V of 1908), S. 151, O. I, R.10, O.XXII, Rr. 3 & 6---Constitution of Pakistan, Art. 199---Constitutional petition---Concurrent findings of fact by the Courts below---Second review petition---Scope---Lamberdar, appointment of---Father of petitioner was Lamberdar, who was removed from the office on the ground of his being defaulter of land revenue---Father of petitioner submitted an application for appointment of Lamberdar but not succeeded, he assailed the order through appeal, revision, first review petition which was dismissed and lastly filed second review petition but during second Review Petition father of petitioner died---Petitioner filed applications under O. I, R. 10, C.P.C. and under O. XXII, Rr. 3 & 6, C.P.C. read with S. 151, C.P.C. but the applications were dismissed by Board of Revenue on the ground that petitioner had no vested right to step in the proceedings which had attained finality, as petitioner was alien and stood nowhere in proceedings---Validity---Petitioner challenged concurrent findings of facts passed by revenue hierarchy which need no interference---Matter had become past and closed transaction after the death of father of petitioner and petitioner stood nowhere in the matter---Petitioner could not identify any illegality or irregularity in the concurrent findings of Revenue Courts below and also did not show any jurisdictional defect or error---High Court declined to interfere in concurrent orders passed by the Courts below---Petition was dismissed, in circumstances.

Ghulam Hussain v. Ghulam Muhammad and others 1976 SCMR 75; M. Nazir Ahmad v. Muhammad Aslam and others 2013 SCMR 363; Haji Muhammad Zaman Khan v. Member, Board of Revenue, Punjab and others 2014 SCMR 164; Haq Nawaz v. Member (Colonies), Board of Revenue, Punjab, Lahore 2009 CLC 1247; Ahmed Sher Khan v. Senior Member, Board of Revenue, Punjab, Lahore 2009 YLR 1820; Khan Muhammad v. Member, Board of Revenue PLD 2006 Lah. 615; Allah Wasaya v. Member (Colonies), Board of Revenue, Punjab, Lahore 2006 YLR 2084; Khan Muhammad Khan through L.Rs. v. Member (Judicial-I), Board of Revenue, Punjab, Lahore PLD 2006 Lah. 322; Ghulam Muhammad v. Member (Judicial-III), Board of Revenue, Punjab, Lahore 2005 CLC 1512 and Mst. C. Gabriel alias Shamim (Nau Muslim) v. Member (Judicial-III), Board of Revenue, Punjab, Lahore 2005 YLR 1430 ref.

Ali Muhammad and others v. Abdul Hameed and others 2006 SCMR 899 rel.

Qayyum Javed Khan for Petitioner.

Ms. Asma Hamid, A.A.G. for Respondents.

2017 M L D 1960

[Lahore]

Before Abdul Sami Khan, J

ILYAS RAZA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.11808-B of 2015, decided on 15th October, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.365-B---Kidnapping, abducting or inducing woman to compel for marriage---Bail, grant of---Further inquiry---Allegation against accused was that he abducted the daughter of the complainant for illicit intercourse---Alleged abductee, had contracted Nikah with accused prior to the alleged occurrence as mentioned in the FIR; and in that regard copy of the Nikahnama was attached with petition for bail---Said abductee also filed private complaint before Judicial Magistrate, in which she had stated that she had not been abducted by anybody, rather she had contracted marriage with accused with her free will and consent---Alleged abductee had also filed constitutional petition before the High Court, where she personally appeared, and recorded her statement under S. 161, Cr.P.C., before the Investigating Officer to the effect that she had contracted marriage with accused of her own free will and volition; and that no body had abducted her---Nothing had been recovered from accused during investigation---Accused, was previously non-convict, and was never involved in any other case---Accused was behind the bars since 10-8-2015---Investigation of the case, was complete, and accused was no more required for further investigation---Further incarceration of accused in jail would not serve any useful purpose---Case of accused having become one of further inquiry, he was admitted to bail, in circumstances.

Asif Ali Raza for Petitioner.

Muhammad Zulsabtain, Deputy Prosecutor General and Saif Ullah ASI for the State.

2017 M L D 1970

[Lahore]

Before Shahid Jamil Khan, J

MUHAMMAD NAZIR and others---Petitioners

Versus

GOVERNMENT OF PUNJAB and others---Respondents

W.P. No.8533 of 2012, decided on 21st October, 2015.

(a) State land---

----Sale of State land through private treaty---Permissibility---Laches, principle of---Applicability---Right/title as to grant/allotment of State land---Pre-conditions---Possession, proof of---Petitioners claimed that they, being displaced persons, had been in possession of the State land in question since the year 1947 and therefore sought direction to respondents/authorities for transfer of ownership rights of the land---Respondents took plea that sale of State land through private treaty was no more permissible under the prevailing law and policy---Validity---Petitioners failed to establish that they had been in occupation of the land under any legal authority---High Court denied proprietary rights over State land in absence of any document to establish any right of possession and observed that no person would have any right or title in State land, until a written order had been passed and allottee/grantee had taken over lawful possession---High Court further observed that grant or allotment of State land was not a right of an individual and the same was, in fact, a grace---Factual inquiry regarding possession of the land was not needed---Petitioner could not justify and explain the delay of about ten years in filing present petition after price of the land had been assessed---No vigilant efforts appeared to have been made for deposit of the assessed price---Land in question had never been transferred in the names of the petitioners through any written order---High Court, however, directed that petitioners would be granted a fair chance to participate in the auction---Constitutional petition, along with contempt petition and petition for registration of FIR, were dismissed.

Province of Punjab through Secretary Revenue and others v. District Bar Association Khanewal and others 2014 SCMR 1611; Fazal ur Rehman and others v. Province of Punjab through District Officer (Revenue) Bhakkar and another 2014 SCMR 1351 and Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan through Secretary M/o Law, Islamabad and others PLD 2014 SC 413 rel.

(b) Constitution of Pakistan---

----Art.189---Decision of Supreme Court binding on other courts---Directions or findings issued by Supreme Court were binding on all concerns, including High Courts.

Musharaf Ali Khan for Petitioners.

Muhammad Hammad Khan Rai Assistant Advocate General, Punjab along with Qamar Abbas Sultan, Assistant Director (M&S), Colonies Department, Lahore, Ms. Rafia Haider, A.C. Faisalabad Saddar, Rana Abid Iqbal, Naib Tehsildar and Tariq Iqbal, Patwari for Respondents.

2017 M L D 1981

[Lahore]

Before Abdul Sami Khan and Sadaqat Ali Khan, JJ

ANSAR ALI and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.11-J of 2013 and Capital Sentence Reference No.59-T of 2010, heard on 18th March, 2015.

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

----Ss. 365-A, 392, 411 & 34---Kidnapping or abducting for extorting property, valuable security, robbery, dishonestly receiving stolen property---Common intention---Appreciation of evidence---Sentence, reduction in---Delay of about five and half hours in lodging the FIR, was not fatal, as it had not been consumed by the complainant, to first think over and consult about the matter, and then involve anyone in the case---Complainant and prosecution witnesses, remained unison on each and every minor as well as material aspect of the case; and all of them had emphatically explained the mode and manner of ocular account---Abductees, not only had successfully explained the mode and manner of their abduction, their detention, as well as their release after payment of ransom amount---Abductees were subjected to lengthy cross-examination, but no conflict or contradiction was found between their statements recorded by the Trial Court---Said prosecution witnesses had no enmity, ill-will, malice or grudge against accused persons to entangle them falsely in the case---Evidence of said witnesses being trustworthy and reliable, was believed, in circumstances---Complainant and alleged abductee had successfully identified all accused persons, in identification parade conducted by Special Judicial Magistrate after fulfilling all legal requirements---Identification of accused persons during identification parade, had provided sufficient corroboration to the ocular account furnished by the prosecution witnesses---Recovery of looted articles including car and gold ornaments from accused persons had fully been proved; and were duly identified by the complainant---Recovery of ransom amount from accused persons, had provided corroboration to the ocular account; and was an incontrovertible piece of evidence against accused persons---Prosecution had successfully proved its case against accused persons to maintain their conviction on the charges levelled against them---In view of some discrepancies in the judgment of the Trial Court regarding conviction and sentences of accused persons, their death sentence was converted into imprisonment for life.

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

----Ss. 302(b), 365-A, 392, 411 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Qatl-i-amd, kidnapping or abducting for extorting property, valuable security, robbery, dishonestly receiving stolen property, common intention, act of terrorism---Discrepancies in judgment of Trial Court regarding awarding conviction and sentences to accused persons, rectification of---High Court observed discrepancies in the judgment of the Trial Court, regarding the conviction and sentences awarded to accused persons to the effect that Trial Court had convicted and sentenced accused persons under S.302(b), P.P.C., by reading the same with the offence under S.7(e) of Anti-Terrorism Act, 1997, although both were independent offences; that Trial Court had convicted and sentenced accused persons under Ss.392 & 411, P.P.C., while reading the same with S.34, P.P.C.---Every accused participating in the occurrence of robbery, was liable to be charged and if proved, to be convicted and sentenced only under S.392, P.P.C.---Like-wise, only the person from whom stolen or robed property was recovered, could be convicted and sentenced under S.411, P.P.C.; and common intention, would not exist in such a situation---Trial Court, in circumstances, had unnecessarily convicted and sentenced accused persons under S.34, P.P.C.---Such discrepancies being minor in nature, could be cured by High Court in its appellate jurisdiction---High Court observed that present case having been registered in year 2009, it was not justified to remand the case, only to rectify said discrepancies---High Court by rectifying the discrepancies convicted all the accused persons on charges of offences under Ss.365-A, 392, 411 & 7(e) of Anti-Terrorism Act, 1997---After receipt of ransom amount, both abductees were set at liberty by accused persons, without causing any harm to them---Four persons had been sentenced to death for the abduction of two, sentence of death, seemed too harsh and unjustified---Prosecution, was obliged to exclude every mitigating circumstance from its case; and once it failed to do so, convict could be awarded lesser punishment provided under the law---While deciding question of sentence accused were entitled to the benefit of every mitigating circumstance---Sentence of death awarded to accused persons by the Trial Court, was altered with imprisonment for life---Accused were sentenced accordingly---Sentences awarded to accused persons would run concurrently, and the benefit of S.382-B, Cr.P.C., was also extended to them.

Sharafat Ali Khan v. The State 2010 SCMR 1205 and Haji Muhammad Sadiq v. Liaquat Ali and others 2014 SCMR 1034 ref.

Mirza Mukhtar Baig and Muhammad Islam for Appellants.

Muhammad Sajjad Maitla, Ansar Ali, Muhammad Iftikhar and Muhammad Ilyas for Appellants.

Khurram Khan, Deputy Prosecutor General for the State.

2017 M L D 1997

[Lahore (Rawalpindi Bench)]

Before Amin-ud-Din Khan, J

MUHAMMAD YOUSAF---Petitioner

Versus

FAZAL ELLAHI and 35 others---Respondents

C.R. No.196 of 2009, heard on 24th November, 2015.

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

----S. 42---Suit for declaration---Inheritance---Limitation---Custom---Scope---Present suit had been filed after more than seven decades of the attestation of mutation---Question of limitation could not be considered just a "technicality"---Suit must be filed within the prescribed period of limitation even in the matter of inheritance---Suit of plaintiff was time-barred---Male member who had inherited from a Muslim under custom was to be deemed to have become an absolute owner upon such acquisition---Present suit was not competent in circumstances---Revision petition, in circumstances, was defective and was dismissed.

Muhammad Hussain and others v. Muhammad Shafi and others 2008 SCMR 230 ref.

Gaman and others v. Muhammad Amin and others 2012 MLD 701 distinguished.

Muhammad Islam v. Inspector General of Police, Islamabad and others 2011 SCMR 8; Farman Ali v. Muhammad Ishaq and others PLD 2013 SC 392; Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167 and Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501 rel.

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

----S. 115---Revision, filing of---Requirements---Complete certified documents of the case had to be produced for invoking revisional jurisdiction---Plaintiff was bound to produce complete certified documents of the case to invoke revisional jurisdiction---Non-production of certified copies of the documents which had been exhibited in the Trial Court record was sufficient to non-suit the plaintiff and dismiss the revision petition.

(c) Limitation---

---Question of limitation could not be considered a "technicality".

Malik Muhammad Kabeer for Petitioner.

Mohsin Mehmood Kalyami for Respondents.

2017 M L D 2010

[Lahore]

Before Shahid Mubeen, J

MUHAMMAD YASIN---Petitioner

Versus

JUDGE FAMILY COURT, SHAKARGARH and another---Respondents

W.P. No.28781 of 2015, decided on 30th September, 2015.

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

----S. 5, Sched & S.14(2)(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Recovery of dowry articles---Appeal---Scope---Family Court decreed suit for dowry articles to the extent of Rs. 1,00,000/- as alternate price---Contention of husband was that appeal was not competent before the District Judge---Validity---Appeal was not merely a matter of procedure but same was substantive vested right---Appeal was a continuation of a suit---Institution of suit would carry an implication that all rights of appeal then in force were available to the litigants till the end---Right of appeal was available when suit was filed---Constitutional petition against the impugned judgment and decree was unwarranted---Constitutional petition was not competent which was disposed of accordingly---Husband might file appeal before the court of competent jurisdiction.

Muhammad Saleem v. Muhammad Ali through real mother and 2 others 2007 MLD 1533 and Mst. Ghulam Fatima v. Fazal and others 1986 CLC 2057 rel.

(b) Appeal---

----Appeal was not merely a matter of procedure but same was substantive vested right---Appeal was a continuation of a proceedings.

2017 M L D 2017

[Lahore]

Before Abdul Sami Khan and Sadaqat Ali Khan, JJ

KHURRAM SHAHBAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.244-J of 2013, decided on 19th March, 2015.

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

----Ss.302(b), 186 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Qatl-i-amd, obstructing public servant in discharge of public functions, act of terrorism---Appreciation of evidence---Accused was not named in the FIR, but was implicated subsequently---Both the complainant and prosecution witness had claimed that accused was accompanying convict, who fired at the deceased, but both of them, did not attribute any role to accused---Serious reservations existed on the mode and manner in which accused was put to the test of identification parade---Possibility, could not be ruled out that accused was exposed to complainant and prosecution witness before identification parade---Evidence of identification parade, could not be relied in circumstances---According to prosecution's own case, accused was not armed with any weapon---Accused was not alleged to have instigated and commanded main accused to commit the offence---Incident was not preplanned or premeditated and occurrence took place at the spur of moment, which excluded the attraction of S.34, P.P.C., to the case---Accused could not be made liable for the acts and omissions of his co-accused---Ocular account of prosecution witnesses was not supported by any independent witness---Case to the extent of accused, being of doubtful nature, conviction and sentence of accused, could not be maintained---Accused could not be convicted, merely on the basis of his presence at the spot, especially where he did not share the common intention with the main culprit---Prosecution, having failed to prove its case against accused, beyond any shadow of doubt, impugned judgment of the Trial Court, was set aside---Accused was acquitted of the charge levelled against him, and was released, in circumstances.

Hassan Din v. Muhammad Mushtaq and 3 others 1978 SCMR 49; Muhammad Yaqoob Sub-Inspector v. The State PLD 2001 SC 378 rel.

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

----S. 34---Common intention---Under provisions of S.34, P.P.C., criminal act should be done by several persons, in furtherance of their common intention; which would mean that every accused had to take part in the commission of the offence---Mere presence of accused at the spot, at the time of occurrence, along with co-accused who committed the offence, was not sufficient to attract the provisions of S.34, P.P.C.; and there must be some proof of overt act on the part of each accused, done in furtherance of common intention.

(c) Criminal trial---

----Benefit of doubt---Rule of benefit of doubt, which was described as the golden rule, was essentially a rule of prudence, which could not be ignored, while dispensing justice in accordance with law---If there was an element of doubt as to the guilt of accused, the benefit of that doubt must be extended to accused, instead of prosecution.

Shakeel and 5 others v. The State PLD 2010 SC 47 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Rana Zahid Iqbal for Appellant.

Tariq Javed, District Public Prosecutor for the State.

2017 M L D 2038

[Lahore]

Before Shahid Hameed Dar, J

ANJUM GHAFFAR and others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1 of 2016 in Crl. Appeal No.1181 of 2016, decided on 22nd November, 2016.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Suspension of sentence---Bail, grant of---Evidence needed detailed reappraisal---Convict according to initial allegation as contained in FIR had made a fire shot of his pistol which hit left thigh of deceased, after the same pierced across the wooden door---Prosecution, however, changed its position as regards the said allegation and amended locale of injury to read as right thigh by keeping in view medical evidence, that showed no independent firearm entry wound on left thigh of deceased---Trial Court had observed that eye-witnesses had improved upon their previous statements, recorded by police, by deposing that second fire shot made by convict landed at right thigh of deceased, and that at the same moment that "it is unreasonable to expect photographic memory from the eye-witnesses"---Motive part of prosecution case went unestablished as concluded by Trial Court---Nothing could be recovered at the instance of convict despite he underwent physical remand for fourteen days---Evidence on the basis of which accused had been convicted and sentenced needed detailed reappraisal of evidence at the time of hearing of main appeal---Application was allowed and sentence awarded to convict was suspended---Bail was granted.

Muhammad Afzal and another v. The State 1994 SCMR 453 rel.

Zafar Iqbal Chohan for Petitioner.

Rana Tassawar Ali Khan, Deputy Prosecutor General for the State.

2017 M L D 2048

[Lahore]

Before Shahid Hameed Dar, J

MUHAMMAD IRSHAD---Petitioner

Versus

MAZHAR IQBAL and 7 others---Respondents

W.P. No.20204 of 2015, decided on 1st July, 2015.

Criminal Procedure Code (V of 1898)---

----Ss.200, 202 & 203---Penal Code (XLV of 1860), Ss. 420, 467, 468 & 471---Cheating and dishonestly inducing delivery of property, forgery; forgery for the purpose of cheating, using as genuine a forged document---Private complaint---Dismissal of---Petitioner/ complainant, had called in question orders of courts below, whereby, private complaint filed by him was dismissed---Private-complaint filed by the petitioner, had justly and lawfully dealt with by both courts below for, it being based on frivolous allegations, was not worth a lis, to be kept on file any longer, as an impending item---Case appeared to have been spurned as a ridiculous case by both courts below, and rightly so---Without the alleged victim being in picture, how petitioner could raise the plea that a damaging act towards the said person, had been committed by accused---Trial Court, as well as revisional court had covered up the most relevant and crucial fact, leading to dismissal of complaint-in-issue---Petitioner could be a lawful and dutiful citizen of Pakistan, but, he certainly would not enjoy any such right, whereby he could get a frivolous and malicious case lodged with the Police, or file a private complaint---Case before a court of law, on behalf of a person, envisaging therein; that some wrong had been done to said person by certain individuals; whereas it was not so believed by the said person; nor he intended to wage a legal war against any---Trial Court, as well as the revisional court had delivered judicious verdicts, based on sound reasons, which need not to be interfered with, in circumstances.

Khalid Jameel for Petitioner.

2017 M L D 2066

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan, J

Mst. AFZALA VIRK---Petitioner

Versus

Mian FAZAL HAQ---Respondent

Civil Revision No.134-D of 1997, heard on 14th April, 2015.

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

----O. XLI, R. 31---Judgment in appeal---Duties of appellate court---Plaintiff challenged all issues which were decided by Trial Court---Contention of defendant was that when there was one specific/crucial issue, court was not bound to decide all issues---Validity---Trial Court was duty bound to decide all issues or to frame points for determination in accordance with O. XLI, R. 31, C.P.C. and then to decide said points---When plaintiff had challenged execution of sale deed and appeared before court and stated on oath that she did not get the sale deed registered then onus was shifted on defendant for which specific issues were framed---Appellate court had committed fatal defect by ignoring mandatory provisions of procedure---While exercising jurisdiction under S. 115, C.P.C., court was not to interpret evidence led by parties and it was duty of appellate court to decide issues after preponderance of evidence---Judgment passed by appellate court was not sustainable under the law, same was set aside---Civil revision was allowed accordingly.

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

-----S.115---Revision---Scope---While exercising jurisdiction under S. 115, C.P.C., court was not to interpret evidence led by parties.

Syed Muhammad Ali Gillani, Ch. Abdul Sattar Goraya and Muhammad Rafiq Goreja for Petitioner.

Muhammad Waseem Shahab for Respondent No.2.

Malik Muhammad Tariq Rajwana for Respondent No.2.

2017 M L D 2072

[Lahore]

Before Abdul Sami Khan, J

SHAH BAIG---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.3468-B of 2016, decided on 2nd May, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 337-A(i), 337-F(v), 337-F(vi), 148 & 149---Qatl-i-amd, hurt, rioting armed with deadly weapon, unlawful assembly---Bail, grant of---Case of further inquiry---FIR was lodged with an unexplained delay of six days---Accused was attributed a specific role of inflicting injury with iron rod on the right shoulder of deceased but nothing was recovered from him and he was declared innocent during investigation---Injury attributed to accused fell under S. 337-L(2), P.P.C. which offence was bailable---Accused was previous non-convict---Accused was behind bars since 29.01.2016 and there was no chance of early conclusion of trial---Bail was allowed.

Rana Rashid Akram Khan for Petitioner.

Irfan Zia, Deputy Prosecutor General and Zahid Hussain, ASI for the State.

2017 M L D 2083

[Lahore]

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

WALI DAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.470 and Murder Reference No.143 of 2011, heard on 29th January, 2015.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---FIR, in the case was got registered after about two hours of the occurrence and autopsy on the dead body was performed about twelve hours after alleged occurrence and about nine hours after the registration of FIR---Such delay in postmortem examination, was massive which led to a noticeable curiosity---Bone of contention between the deceased and accused was over turn of tubewell water, but the prosecution, did not produce any direct evidence to prove that particular aspect of the case---Both the witnesses of ocular account rendered divergent statements as to the factum of motive; and they contradicted each other on the said score---Circumstances leading to the murder of the deceased, were clouded in the mystery---Ocular account tendered by the prosecution witnesses, was pregnant with many discrepancies and self-contradictions---Deposition rendered by the complainant and prosecution witness, did not inspire confidence---Rejected testimonies of the prosecution witnesses to the extent of acquitted co-accused, had been believed in and relied on by it without any just cause---Ocular account furnished by other prosecution witnesses, also did not inspire much, nor could be relied on or considered trustworthy to sustain the impugned judgment---Medical evidence, hardly advanced the prosecution case any further---Prosecution had failed to prove the charge against accused---Impugned judgment had been passed merely on conjectures and surmises without having any respect for the evidence available on record---Reasons recorded by the Trial Court in recording conviction and sentence of accused, were not sustainable, rather to be ignored and written off straightaway---Impugned judgment was set aside, accused was acquitted of the charge, and was released from the prison, in circumstances.

Hafiz Khalil Ahmad assisted by Mian Imam Bakhsh for Appellants.

Hamayoon Aslam, Deputy Prosecutor General Punjab for the State.

Complainant in person.

2017 M L D 2095

[Lahore (Multan Bench)]

Before Amin-ud-Din Khan, J

PROVINCE OF PUNJAB through Secretary, Works and Communication and 5 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and 8 others--Respondents

Writ Petition No.5855 of 2004, heard on 1st April, 2015.

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

----Part-V(Ss.31 to 34)---Specific Relief Act (I of 1877), S. 42--­Constitution of Pakistan, Art. 199---Constitutional petition---Land acquisition---Award of compensation---When complete system of compensation under Land Acquisition Act, 1894, was available, adjudicating the matter by civil court in a declaratory suit or during appeal, was neither permissible under the law nor within jurisdiction of civil court---Constitutional petition was allowed, accordingly.

(b) Administration of justice--

----If during proceedings of a suit, parties settled their matter through any mode and subject of that settlement was not subject matter of suit then Court could' not execute that settlement to the extent that it was not subject matter of suit.

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

----S. 42---Execution of declaratory decree---Declaratory decree could be incorporated in record but could not be executed by Court.

Mirza Saleem Baig, Addl. Advocate General Punjab for Petitioners. Tariq Zulfiqar Ahmad Chaudhry for Respondents Nos. 3 to 9.

2017 M L D 2105

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. FIZA NAEEM BUKHARI and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No.9832 and C.M. No.3 of 2015, decided on 7th May, 2015.

Constitution of Pakistan---

----Art.204---Contempt of Court---Unconditional apology---Effect---Unconditional apology was tendered by contemnor in Court through his affidavit, which showed his repentance and remorse in the sincerest manner and merited to be accepted---High Court warned the contemnor to remain careful in future and order issuing notice for contempt of Court was recalled in circumstances.

2017 M L D 27

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

MATI-UR-REHMAN---Petitioner

Versus

MUHAMMAD HAROON---Respondent

C.Rs. Nos.105-A, 106-A and 110-A of 2015, decided on 4th May, 2015.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O. XVII, R. 3---Talbs---Requirements---Proof---Plaintiff filed suits for possession through pre-emption, which was dismissed by trial court for non-production of plaintiff's evidence under O. XVII, R. 3, C.P.C. and for non-fulfilment of requirements of Talbs, and appellate court dismissed appeal---Validity---Plaintiff's witness, who was illiterate and was alleged to be informer regarding sale and witness of Talb-i-Muwathibat and Talb-i-Ishhad, although admitted his thumb impression on Talb-i-Ishhad but, while his statement, he had shown his ignorance as to purpose of giving that thumb impression, and he also denied knowledge of sale transaction---Plaintiff stood nowhere as his own witness had demolished performance of both the talbs---Before striking off right to produce oral evidence, plaintiff had been served with notice under O. XVII, R. 3, C.P.C.---Nothing was available on record showing desire of plaintiff to be examined as his own witness in support of his claim---No illegality or irregularity was found in concurrent findings of courts below calling for any interference in revisional jurisdiction---Revision petition was dismissed in circumstance.

Zulfiqar Ali Tonali for Appellant.

Nemo for Respondent.

2017 M L D 35

[Peshawar]

Before Assadullah Khan Chamkani, J

FAQIR KHAN---Appellant

Versus

The STATE---Respondent

J. Cr. A. No.559-P of 2015, decided on 16th February, 2016.

Penal Code (XLV of 1860)---

----Ss. 324, 337-A (ii) & 337-F (ii)----Attempt to commit qatl-i-amd; shajjah-i-mudihah; ghayr-jaifah/badi'ah---Appreciation of evidence---Minor contradictions/discrepancies in statements of prosecution witnesses---Effect---Sentence, reduction in---Mitigating circumstances---Recovery of blood and three crime empties from the place of occurrence/house of the injured complainant by the Investigating Officer during spot inspection, coupled with the positive Serologist report regarding the blood secured from the spot and the blood over the garments of the injured, had confirmed the crime venue to be the same as alleged by the complainant---Complainant had deposed the same story as set forth by her in her initial report, and she, sticking to the same, had charged the accused for commission of the offence---Complainant, although, had been subjected to lengthy cross-examination, but nothing beneficial could be extracted from her by the defence---Minor discrepancies in statement of the complainant, being the inbuilt proof of her truthfulness, were ignorable, because a human being could not be expected to furnish a tape-recorded statement---Complainant was still the wife of the accused; therefore, she could not have charged her innocent husband by letting off the real culprit---Medical evidence, recovery of blood and crime empties from the spot coupled with noticeable abscondence of the accused whose wife was lying seriously injured had fully corroborated the ocular testimony of the injured and the same indicated towards the guilty conscious of the accused---Trial court, however, had awarded the maximum sentence to the accused provided under S.324, P.P.C. which was 10 years' rigorous imprisonment along with fine---Keeping in view the motive that was sudden flare-up of the accused over a petty domestic matter with his wife/the injured, coupled with the fact that their wedlock was still intact out of which they had minor kids, High Court, taking a lenient view, reduced the sentence of 10 years to 6 years under S. 324, P.P.C., while conviction and sentences passed under Ss. 337-A(ii) and 337-F(ii), P.P.C. were maintained---Appeal against conviction was dismissed accordingly.

Abid Ali Khan for Appellant.

Riaz Khan Painder Khel for the State.

Complainant in person.

2017 M L D 49

[Peshawar]

Before Muhammad Younis Thaheem, J

ZAR WALI KHAN---Petitioner

Versus

SADDIQUE AKBAR and 6 others---Respondent

C.R. No.500-P of 2014, 22nd December, 2015.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession of immovable property---Scope---Suit property was given to the defendant as licensee---Plaintiffs were owners of suit property which was in the possession of defendant---Plaintiffs had successfully proved their case through cogent and reliable evidence---No illegality, 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.

Mut Ali v. Manzoora and another PLD 1994 Lah. 298 rel.

Malik Manzoor Hussain Awan for Petitioner.

Jamal Said for Respondents.

2017 M L D 78

[Peshawar (Mingora Bench)]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

MUHAMMAD INAM and 9 others---Petitioners

Versus

DEPUTY COMMISSIONER/DISTRICT MAGISTRATE, SWAT and 5 others---Respondents

W.P. No.587-M with C.M. 963-M of 2014, decided on 9th February, 2016.

Criminal Procedure Code (V of 1898)---

----S. 144---Danger to human life, health or safety---Ban on business of sale and purchase of old parts of vehicles on security grounds---Scope---Deputy Commissioner was passing recurring order under the garb of security measures and thereby harassing the petitioners not to carry on lawful scrap business in the area---Powers under S. 144, Cr.P.C. could be exercised by Deputy Commissioner with powers of District Magistrate when elections for Local Government had not been held or Local Government was not functional---Local Government was functional in the district and Zila Nazim could only exercise powers under S. 144, Cr.P.C., presently---Impugned orders as well as orders of like nature issued by the District Magistrate were beyond his authority having no legal effect---District Magistrate had no power to pass orders of such nature after expiry of the former two months period---Impugned orders would affect lawful scrap business of petitioners and same would infringe right to life as well as of their families---Petitioners and people of the area involved in the same business had not been treated in accordance with law---Petitioners had been discriminated by the respondents in circumstances---Impugned orders as well as orders of like nature in the field issued by the Deputy Commissioner were declared unlawful, capricious, whimsical and arbitrary having no effect---Impugned orders as well as orders of like nature were set aside---Respondents were directed not to harass the petitioners and public viz-a-viz their lawful business of the like nature---Constitutional petitions were accepted in circumstances.

1984 PCr.LJ 1021; 2003 YLR 893 and PLD 1997 SC 342 rel.

Muhammad Arshad Yousafzai for Petitioners.

Sabir Shah, A.A.G. for the Respondents.

2017 M L D 102

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

LUBNA HAMEED and others---Petitioners

Versus

CONTROLLER OF EXAMINATIONS, KHYBER MEDICAL UNIVERSITY, PESHAWAR and others---Respondents

W.P. No.1026-A of 2015, decided on 9th February, 2016.

Educational institution---

----Candidate having exhausted four prescribed (availed/un-availed) attempts in her B. D. S. First Professional examination---Registration, cancellation of---Scope---Petitioner-student remained unsuccessful in some papers of B. D. S. First Professional examination and her registration was cancelled by the Dental College---Contention of petitioner-student was that a number of other students were allowed to avail more than 8/9 chances but their registrations were not cancelled---Validity---Petitioner-student had already availed seven chances in First Professional Examination of B.D.S. which were beyond prescribed four chances (availed/un-availed)---Extra chances were availed by the petitioner-student under orders of the Courts---Permission of the Court granted to a student was never unqualified and same was at the risk and cost of student---Availing of more chances beyond the prescribed limit would not confer a right on a student to avail further chances---High Court observed that in some of the private Medical and Dental Colleges students availed more than the four prescribed chances in one professional MBBS/BDS examination by securing permission from the Courts not once but at number of times and continued medical/dental education for several years---Authorities were directed to check such practice in the interest of medical/dental education---Constitutional petition was dismissed in limine in circumstances.

Fakhr-e-Alam Jhagra for Petitioners.

Asad Tanveer Qureshi for Respondents.

2017 M L D 117

[Peshawar]

Before Syed Afsar Shah, J

FARID ULLAH---Petitioner

Versus

The STATE through Advocate General and another---Respondents

Cr. Misc. (B.A.) No.1371-P of 2016, heard on 4th July, 2016.

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

----S.497---Penal Code (XLV of 1860), Ss.387 & 506---Telegraph Act (XIII of 1885), S.25---Anti-Terrorism Act (XXVII of 1997), Preamble---Demand of ransom money by accused---Bail, grant of---Rule of consistency---Role of accused was at par with the co-accused released on bail by the Supreme Court---Accused was admitted to bail on furnishing the bail bonds accordingly.

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

----S.497---Second bail application, filing of---Maintainability---Principle---Second bail application would only be maintainable if it was filed on the grounds not available at the time of dismissal of first bail application on merits.

Ali Sheharyar v. The State 2009 SCMR 1448; Muhammad Abid v. The State and another 2012 SCMR 1691; Ghulam Qammber Shah v. Mukhtiar Hussain and others PLD 2015 SC 66 and Muhammad Hanif v. The State and others 2009 PCr.LJ 917 rel.

Gul Rehman Mehmand for Petitioner.

Muhammad Nawaz Khan for the Complainant.

Moeen ud Din Humayun for the State.

2017 M L D 139

[Peshawar]

Before Assadullah Khan Chamkani, J

SAJAD---Petitioner

Versus

ASGHAR KHAN and another---Respondents

Cr. Misc. B.A. No.2235-P of 2015, decided on 25th January, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Penal Code (XLV of 1860), S.342---Haraabah, wrongful confinement---Bail, grant of---Further inquiry---Unknown culprits were charged in the FIR, without disclosing their features and description---Accused and co-accused, had been named by the owner of the alleged snatched currency and prosecution witness in their statement under S.164, Cr.P.C.; recorded after a delay of more than a month from day of incident, and did not disclose the source of their satisfaction about complicity of accused in the commission of offence---No identification parade of accused had been conducted---Accused and co-accused, being unknown to prosecution witness prior to the incident, identification parade was essential---Not a single penny of alleged snatched currency had been recovered, either from direct or indirect possession of accused or on his pointation---Accused had also not confessed his guilt before competent court of law---Participation of accused in the commission of offence, required further probe into his guilt---Co-accused, whose case was on equal footing with that of accused had already been granted bail---Accused was also entitled to concession of bail on the principle of consistency---Accused was admitted to bail, in circumstances.

Asfandyar Khan for Petitioner.

Mujahid Ali Khan A.A.G. for the State.

Complainant in person.

2017 M L D 191

[Peshawar (D.I. Khan Bench)]

Before Ikramullah Khan and Muhammad Ghazanfar Khan, JJ

NEK MUHAMMAD---Petitioner

Versus

ALLAH DEWAYA and others---Respondents

W.P. No.398-D of 2012, decided on 15th December, 2015.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Application under S.12(2), C.P.C.---Compromise decree---Fraud and misrepresentation---Decree, setting aside of---Scope---Suit was decreed on the statement of special attorney of defendants---Validity---Suit was instituted on 30-10-1972 and Trial Court posted it on the same date for 18-11-1972---Neither any application for summoning the case file from the diary of 18-11-1973 was filed nor any order existed that case filed was summoned on the request of either of the parties for adjudication on the basis of compromise---However on 14-11-1972 statement of special attorney for defendants was recorded and compromise decree was passed---Held, trial court should have framed issue and record evidence qua the authenticity of power of attorney and statement recorded with regard to compromise---Inquiry should have been made as to why record was summoned on 14-11-1972---Impugned judgments passed by the courts below were set aside and case was remanded for decision afresh---Constitutional petition was allowed in circumstances.

Abdul Qayum Qureshi for Petitioner.

Rustam Khan Kundi, Ghulam Hur Khan Baloch, Muhammad Wahid Anjum and Salah-ud-Din Khan Gandapur for Respondents.

2017 M L D 209

[Peshawar (Mingora Bench)

Dar-ul-Qaza), Swat]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

ABDUL LATIF and others---Appellants

Versus

SECRETARY, WORKS WELFARE BOARD and others---Respondents

R.F.A. No.92-P of 2004, decided on 25th February, 2016.

Land Acquisition Act (I of 1894)---

----S. 18---Reference to court---Valuation certificate---Scope---Trial Court dismissed the reference on the ground that mutations produced by the landowners for determining the market value of acquired land did not fall within one year average prior to impugned notification---Validity---Mutations produced by the landowners in support of their stance were discredited but the Ausat Yaksala prepared by the government based on the mutations of similar nature was accepted by the Trial Court---Findings of Trial Court being discriminatory and unfair were not sustainable---Valuation certificate was part and parcel of acquisition process---Authenticity of said certificate could not be doubted---Valuation certificate was duly considered by the Deputy Commissioner---Deputy Commissioner had admitted that prevailing rate of acquired land was Rs. 70 to 75 per square foot but said rate was kept aside and price of land was based on Ausat Yaksala---High Court observed that Trial Court should have considered the valuation certificate in the light of mutations produced by the landowners for arriving at just and fair conclusion---Trial Court had failed to apply its judicious mind, in circumstances---Compensation awarded to the landowners being not in accordance with the market value of the land acquired at the relevant time; impugned judgment was set aside and government was directed to pay compensation according to the valuation certificate furnished by the Tehsildar---Appeal was allowed in circumstances.

1992 SCMR 2342 ref.

Mian Hussain Ali for Appellants.

Syed Haziq Ali Shah and Sabir Shah, A.A.G. for Respondents.

2017 M L D 227

[Peshawar]

Before Muhammad Younis Thaheem, J

IZAT SHAH---Petitioner

Versus

INTIZAR GUL---Respondent

C.R. No.236-B of 2011, decided on 21st September, 2015.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement---Description of property---Scope---Nothing was on record to infer as to from which khata, Khasra number or the kind of ownership either Shamilat or otherwise the plaintiff had sought path in lieu of agreement---No Aks Shajra Khishtwar or Khaka Tasveri had been produced from which it could be deduced that such portion of property the plaintiff sought to be mutated in his favour---Case could not be decided in vacuum---Appointment of local commission was necessary to bring on record the factual spot position of the suit property---Case was remanded to the Trial Court for amended plaint and decision afresh in accordance with law---Impugned judgments and decrees passed by both the courts below were set aside---Plaintiff was allowed to submit amended plaint by giving full description of suit property---Both the parties could produce further evidence if they desired---Trial Court could appoint local commission if so needed---Revision was allowed in circumstances.

Sakhi Janan Khan for Petitioner.

Ahmad Jan Khattak for Respondent.

2017 M L D 257

[Peshawar]

Before Muhammad Younis Thaheem, J

Messrs GREEN GROUP OF HOTELS through Attorney---Petitioner

Versus

MUNICIPAL CORPORATION, PESHAWAR through Administrator and 6 others---Respondents

C.R. No.387-P of 2015, decided on 1st April, 2016.

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

----O. XXXIX, Rr. 1 & 2 & O. VII, R. 11---Lease agreement---Temporary injunction, grant of---Ingredients---Scope---Lease property was part and parcel of historical site---Lease agreement had expired which was subject to approval of Provincial Government---Court could not force the parties to re-write some contract or extend the lease period---Essential ingredients for grant of temporary injunction had to be fulfilled before injunction could be granted in favour of a party---When decree for perpetual injunction could not be granted then no question for grant of temporary injunction would arise---Provincial Government had formulated a policy and wanted to restore and preserve the site to its original position---If interim relief was granted then it would be public at large who would suffer and not the plaintiff, of course defendants would also suffer as irreparable loss---Plaintiff had failed to make out a prima facie case in his favour---Plaintiff had no locus standi who failed to disclose cause of action in his suit---Suit would not serve any purpose and being frivolous it was to be buried at its inceptions being not maintainable and barred by law---Application for grant of temporary injunction as well as the suit was dismissed under O. VII, R. 11, C.P.C.

Cocentrate Manufacturing Company of Ireland and 3 others v. Seven-up-Bottling Company (Private) Limited and 3 others 2002 CLD 77; Islamic Republic of Pakistan through Secretary Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508 and Messrs Zaidi Enterprises and others v. Civil Aviation Authority PLD 1999 Kar. 181 rel.

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

----O. XXXIX, Rr. 1 & 2---Temporary injunction---Ingredients---Ingredients for grant of temporary injunction were prima facie case, balance of convenience and irreparable loss.

Aamir Javed for Petitioner.

Sabah-ud-Din Khattak and Syed Qaisar Ali Shah A.A.G. for Respondents.

2017 M L D 275

[Peshawar (Bannu Bench)]

Before Ishtiaq Ibrahim, J

AKHTAR NAWAZ---Appellant

Versus

The STATE and another---Respondents

Cr.Appeal No.65-B of 2016, decided on 20th October, 2016.

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

----Ss.324 & 34---Attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Complainant alleged that he and his brother were moving on motorcycle when accused persons who were on motorcycle fired at him---Motive was previous blood-feud---Evidence regarding lodging of the report by complainant and his medico-legal-examination were irreconcilable and it could safely be presumed that report was not made in the mode and manner as put forth by the prosecution---Injury to complainant was only indicative of his presence at the spot---Assertion of complainant belied the site plan---Complainant had deposed that occurrence took place when victim was taking turn towards the hujra (house) while the eye-witness stated that they were about to take turn on motorcycle to the hujra (house) when the occurrence took place---Alleged motive was not proved because one fire shot was alleged to the accused---Blood and empty were not recovered from the place of occurrence---No blood-stains were found on the motorcycle of complainant---Prosecution failed to prove its charge beyond any shadow of doubt---Accused were acquitted of the charge.

(b) Criminal Trial---

----Site plan---Scope---Site plan consist of two portions; one prepared by investigation officer on pointation of eye-witnesses which was reproduction of statement recorded under S.161, Cr.P.C. and the other was based on observations of the investigation officer.

Tori Singh and another v. State of Uttar Pradesh AIR 1962 SC 399 rel.

(c) Criminal trial---

----Benefit of doubt---Scope---If any reasonable doubt arises in the prosecution case the benefit of same would be extended to accused not as a grace or concession, but as a matter of right.

Tariq Parvez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

(d) Criminal trial---

----Benefit of doubt---Scope---Single shadow of doubt arising out of prosecution evidence was sufficient for acquittal of accused.

Tariq Parvez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Akhtar Nawaz Khattak and Muhammad Rashid Khan Darmakhel for Appellants.

Shahid Hamid Qureshi, A.A.G. for the State.

Aqal Shah Noor for the Complainant.

2017 M L D 294

[Peshawar]

Before Roohul Amin Khan and Mohammad Ibrahim Khan, JJ

Ms. RAHEESA ZEB---Petitioner

Versus

KHYBER GIRLS MEDICAL COLLEGE through Principal/Dean and 5 others---Respondents

W.P. No.2119-P of 2016, decided on 6th September, 2016.

(a) Educational Institution---

----Medical student had failed in Second Professional M.B.B.S. Examination---Striking off name of student from the college roll---Seeking of added marks---Scope---Seeking award of added marks was against the settled principles of good governance---High Court while confronting with matters pertaining to educational institution would be justified to refuse relief until grave injustice was made out---Name of student had already been struck off from the college roll having failed in the relevant subject---Student had ceased to be eligible for further medical education---Petitioner had no locus standi to have addressed the Controller of Examination in this behalf---Award list was secret document which should not be accessible to students or anyone representing nor its re-examination should be allowed in any circumstances---High Court declined to undertake judicial review in such matters---Constitutional petition was dismissed in circumstances.

University of Health Sciences, Lahore v. Arsalan Ali and another 2016 SCMR 134 and 2005 SCMR 961 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Grant of relief in constitutional jurisdiction was discretionary with the High Court---Judges were to act in aid of justice while accepting or refusing any relief and every care and caution to be taken in arriving at a correct conclusion either in acceptance or dismissal of the constitutional petition.

Jehanzeb Muhammadzai for Petitioner.

Mansoor Tariq for Respondents.

2017 M L D 333

[Peshawar (D.I. Khan Bench)]

Before Abdul Latif Khan, J

Haji KHIZAN KHAN and others---Petitioners

Versus

ABDUL QAYUM---Respondent

C.R. No.221 of 2009 with C.M. No.176 of 2010, C.R. No.222 of 2009 with C.M. No.177 of 2010 and C.R. No.223 of 2009, decided on 25th November, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Suit for possession through pre-emption---Transaction whether "Sale" or "exchange"---Proof---Contention of defendants was that transaction was not pre-emptible as same was "exchange" and not "sale"---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Both plaintiff and defendants were co-owners in the suit property but status of defendant was at a higher pedestal than plaintiff---No evidence was on record to prove that colour of exchange was given to the transaction which was in fact a sale---Plaintiff could not be held entitled for decree for possession through pre-emption due to lack of right of pre-emption---Appellate Court had failed to appreciate the legal as well as factual position and had recorded a conclusion which was not warranted by law---Impugned judgment and decree passed by the Appellate Court were set aside and that of Trial Court were restored and suit was dismissed---Revision was accepted in circumstances.

Noor Gul Khan Marwat and S. Mastan Ali Zaidi for Petitioners.

Muhammad Yousaf Khan and Muhammad Hanif Khan Gandapur for Respondent.

2017 M L D 353

[Peshawar]

Before Waqar Ahmed Seth and Ishtiaq Ibrahim, JJ

SAJAHID GUL---Petitioner

Versus

The CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU NAB and 2 others---Respondents

W.P. No.2893-P of 2016, decided on 13th October, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), Ss. 9, 10 & 16-A---Corruption and corrupt practices---Bail, grant of---Statutory ground of delay---Accused was arrested for charges of operating illegal business under the garb of Mudaraba, deceiving public at large and despoiling them of their arduous earnings---Charge was framed on 21.02.2015 and thirty nine witnesses out of one hundred and four witnesses were examined within twenty months while S.16-A of National Accountability Ordinance, 1999 mandated the conclusion of trial within thirty days from its commencement---Objection that court was entertaining petitions for bail under the National Accountability Ordinance, 1999 on the ground of delay in conclusion of trial was overruled---Heinousness of offence or embezzlement of huge amount would not be a good ground for refusal of bail on the ground of non-conclusion of case within statutory period---Bail was granted.

Himesh Khan v. National Accountability Bureau 2015 SCMR 1092; Muhammad Nadeem Anwar v. National Accountability Bureau PLD 2008 SC 645; Anwarul Haq Qureshi v. National Accountability Bureau 2008 SCMR 1135 and Ch. Zulfiqar Ali v. The State PLD 2002 SC 546 rel.

Barrister Waqar Ali for Petitioner.

Muhammad Jamil Khan, D.P.G. for NAB for Respondents.

2017 M L D 378

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Lal Jan Khattak, J

UMAR AYAR---Petitioner

Versus

ABDUL SATAR KHAN---Respondent

C.R. No.116-M of 2014, decided on 21st October, 2016.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, performance of---Requirements---Non-production of informer---Presumption---Pre-emptor did not produce informer to establish that after getting information from him with regard to sale transaction he had performed Talb-i-Muwathibat there and then---Production of informer was vital in the pre-emption case---No reason or explanation for non-producing informer before the Trial Court had been given---Presumption would be that had he been produced he might not have withstood the test of cross-examination qua the fact of his receiving and conveying information regarding sale transaction to the pre-emptor---Pre-emptor had failed to prove his case of pre-emption---Evidence had not been appreciated in its true perspective by the Appellate Court---Impugned judgment and decree passed by the Appellate Court were set aside and suit was dismissed---Revision was allowed.

2007 SCMR 1491 and PLD 2015 SC 69 rel.

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

----S.115---Talb-i-Muwathibat---Revisional jurisdiction of High Court---Scope---Revisional court could reverse an erroneous findings if it was found that same was not borne out of case evidence notwithstanding that such findings remained unchallenged in appeal or cross-objection---High Court, while exercising its revisional jurisdiction could make any order which circumstances of the case might warrant to secure the ends of justice.

2002 CLC 662; 2006 CLC 1827 and 2013 YLR 1013 rel.

Fazli Ghafoor for Petitioner.

Ziaur Rahman, M. Zahir Shah and Habib-ur-Rahman for Respondents.

2017 M L D 414

[Peshawar]

Before Mazhar Alam Khan Miankhel and Qaiser Rashid Khan, JJ

RAIS KHAN---Petitioner

Versus

The STATE through Advocate General KPK and 6 others---Respondents

W.P. No.2610 of 2011, decided on 29th January, 2014.

Criminal Procedure Code (V of 1898)---

----S.22-A(6)---Application for registration of case before Justice of Peace---Dismissal---Complainant had alleged that police officials raided his house, assaulted the women folk and complainant was abducted from his house---Police officials were exonerated during departmental inquiry by the high ups of the department because entry in roznamcha regarding the arrest of the complainant was available---Wife of complainant did not appear before the Justice of Peace as well as the High Court to record her statement---Complainant was unable to make out a case for registration of FIR against the alleged accused persons---Constitutional petition was dismissed accordingly.

Mian Muhibullah Kakakhel for Petitioner.

Waqar Ahmad Khan Addl: A.G. for Respondents.

Muhammad Amin Khattak Lachi for Respondents Nos. 5 to 7.

2017 M L D 435

[Peshawar]

Before Mazhar Alam Khan Miankhel, C.J. and Ikramullah Khan, J

Malik BILAL AHMAD KHAN---Petitioner

Versus

CHAIRMAN, GANDHARA UNIVERSITY, PESHAWAR and 3 others---Respondents

W.P. No.3331-P of 2016, decided on 4th October, 2016.

Educational Institution---

-----Medical College---Student seeking permission to appear in the supplementary examination after passing annual exam in the same year---Validity---Student could not appear in the examination of two professional years in the same academic year; he/she should wait for the next coming annual examination---Constitutional petition had been filed by the student against the Rules and same being frivolous amounting to wastage of time of the court, constitutional petition was dismissed in limine.

Muhammad Ijaz Khan Sabi for Petitioner.

Nemo for Respondents.

2017 M L D 444

[Peshawar]

Before Qaiser Rashid Khan, J

YASIR---Petitioner

Versus

The STATE and another---Respondents

B.A. No.1934-P of 2016, decided on 19th September, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd and rioting armed with deadly weapons---Bail, refusal of---Allegations contained in FIR were that accused along with absconding co-accused, nine in number, had fired at the complainant, his brother, mother and father---Father of complainant died on the spot due to firearm injuries---Accused alleged that complainant party had also made firing on accused party as he also received firearm injury during the occurrence---Accused had also lodged FIR against the complainant party---Question of aggressor or aggressed upon was yet to be determined---Record showed that all the four family members of the complainant received firearm injuries, which resulted in death of father of complainant on the spot---Accused was prima facie linked with the commission of offence, which fell in the ambit of prohibitory clause of S. 497, Cr.P.C.---Accused was refused bail in circumstances.

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

----S. 497---Bail---Grounds---Case of cross version FIRs---Cross version by itself was no ground for bail.

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

----S. 497---Bail---Principles---Observations recorded in bail granting order are tentative in nature, which would not prejudice the proceedings before the Trial Court.

Syed Abdul Fayaz for Petitioner.

Gul Daraz Khan for the State.

Hussain Ali for the Complainant.

2017 M L D 464

[Peshawar]

Before Mazhar Alam Khan Miankhel, C J

NASIR alias IMRAN NASIR---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. B.A. No. 1944-P of 2016, decided on 21st November, 2016.

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

----S. 497---Penal Code(XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd and common intention---Bail, refusal of---Second application for post-arrest bail---Fresh ground---Scope---First application for post-arrest bail filed by accused before the High Court was dismissed as not pressed after arguments on merits by counsel for accused at some length with request for passing direction for expeditious conclusion of the case within specified period---Second application for bail filed by accused before the High Court, on the ground of delay in conclusion of the trial, was not maintainable---Bail was refused in circumstances.

Ghulam Qammber Shah v. Mukhtiar Hussain and others PLD 2015 SC 66; Nazir Ahmad and another v. The State and others PLD 2014 SC 241 and Muhammad Aslam v. The State and another PLD 2015 SC 41 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd and common intention---Bail, refusal of---Fresh ground being the direction issued by the High Court to the trial court to conclude the trial as early as possible but not later than four months---Validity---Non-compliance of such direction by itself was not a valid ground for grant of bail being alien to the law---Bail was refused in circumstances.

Nasir Ahmed v. The State and others PLD 2016 SC 11 rel.

Muhammad Jamil Warsak for Petitioner.

Muhammad Sohail, A.A.G. and Kanwar Kamal for the Complainant.

2017 M L D 475

[Peshawar]

Before Waqar Ahmad Seth and Mohammad Ibrahim Khan, JJ

ZAHIR GUL and 4 others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Additional Chief Secretary FATA and 8 others---Respondents

Writ Petitions Nos.2477-P and 3075-P of 2016, decided on 1st November, 2016.

Frontier Crimes Regulations, 1901---

----Regln. 8 [as substituted by Frontier Crimes Regulations, 2011, dated 25-8-2011]---Reference to Council of Elders---Declaration of ownership---Jurisdiction---Petitioner sought declaration to the effect that he was owner of Nephrite Mines---Validity---Declaration of ownership of Nephrite Mines by filing of representation petition in Mohmand Agency to be that of the owners of Basai Kor or else or it was out of contractual obligations and breach of contractual obligations would clothe petitioner to enforce civil right through special forum, constituted for redressal of such grievance under the provision of Regln. 8 of Frontier Crimes Regulations, 1901 [as substituted by Frontier Crimes Regulations, 2011, dated 25-8-2011]---Constitutional Petition was dismissed in circumstances.

Mst. Rohaifa through her sons and another v. Federation of Pakistan through Secretary, Ministry of Defence and 2 others PLD 2014 SC 174; Rana Aftab Ahmad Khan v. Muhammad Ajmal PLD 2010 SC 1066; Najeebullah and others v. Director NADRA, Balochistan, Quetta and others PLD 2016 Bal. 1; Haider Khan and 10 others v. Additional Chief Secretary FATA and 4 others 2012 MLD 1830; Secretary to the Government of the Punjab v. Ghulam Nabi and 3 others PLD 2001 SC 415 ref.

Abdul Lateef Afridi for Petitioners.

Sohail Akhtar and Barrister Masood Kausar for Respondents.

Jehanzeb Masood for FDA.

2017 M L D 490

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Daud Khan and Haider Ali Khan, JJ

SHALIAR and others---Petitioners

Versus

SAID RAZIQ and others---Respondents

W.P. No.405-M of 2013, decided on 19th November, 2015.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 135---Partition of landed property by Revenue Officer---Private partition---Scope---Contention of respondents was that partition of the property in question had already been held by the parties privately---Validity---Dispute had not been resolved between the parties despite the fact that private partition had been carried out---Impugned order/ judgment of Member Board of Revenue was well reasoned and in accordance with law---No embargo existed on official partition of suit property which would resolve controversy between the parties---No illegality, material irregularity or misapplication of law had been pointed out in the impugned orders---Revenue officer was directed to conduct partition of suit property in accordance with law---Constitutional petition was dismissed in circumstances.

Malak Ahmad Jan for Petitioners.

Nemo for Respondents.

2017 M L D 500

[Peshawar]

Before Ikramullah Khan, J

DUBAI ISLAMIC BANK (PVT.) LTD. through Recovery Officer---Petitioner

Versus

The STATE and another---Respondents

Cr. MQPs Nos.107-P and 118-P of 2016, decided on 18th November, 2016.

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

----Ss. 561-A, 516-A, 523 & 550---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 16(3)---Car financing---Default in payment of installments of lease money---Recovery/re-possession of car by Agent of Leasing Company/Bank---Quashing of order, application for---Interim custody of car---Scope---Customer committed default in payment of the agreed instalment---Bank/petitioner seized the vehicle and gave to the local police---Local police took the said vehicle into possession under Ss. 523/550, Cr.P.C.---Contention of customer was that he was bona fide purchaser of the said vehicle and entitled to get the interim custody of the vehicle---Validity---Local police was not authorized to take over the possession of any movable property seized by the Financial Institution from any customer in terms of S.16(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001---If Financial Institution transgressed its authority as conferred upon it in terms of S.16(3) of Financial Institutions (Recovery of Finances) Ordinance, 2001, in matter of direct power of recovery, such institution would be liable for the consequences as provided by the Ordinance----Local police was directed by High Court to hand over the vehicle to the person, who had handed it over to the police---Petition for quashment was dismissed in circumstances.

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

----Ss. 561-A, 516-A, 523 & 550---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 16(3)---Car financing---Default in payment of instalments of lease money---Custody/re-possession of car by Agent of Leasing Company/Bank---Quashing of order, application for---Court in exercise of its criminal jurisdiction under S.516-A, Cr.P.C., may order for custody and disposal of property pending trial of criminal case, where any property regarding which any offence appeared to have been committed or which appeared to have been used for commission of any offence---Vehicle in question was not subject matter of any offence within the meaning of Penal Code, 1860, petition for quashment was dismissed in circumstances.

Saghir Iqbal Gulbela for Petitioner.

Arshad Ahmad Khan A.A.G. for the State.

Hussain Ali for Respondent (in Cr. MQP 118-P of 2016).

2017 M L D 547

[Peshawar]

Before Mazhar Alam Khan Miankhel, C J

The STATE---Petitioner

Versus

ALI AMIN GHANDAPUR and others---Respondents

C.O.C. No.244-P of 2016, decided on 21st November, 2016.

(a) Contempt of court---

----Apology---Bona fide---Held, it was the satisfaction of the Court about bona fide of the tendered apology.

(b) Contempt of Court Ordinance (IV of 2003)---

----S.3---Constitution of Pakistan, Art.204---Contempt of Court---Unconditional apology---Effect---Contempt notice was issued to a politician who conducted press conference wherein he levelled the contemptuous allegations---Notice was also issued to television channels and Pakistan Electronic Media Regulatory Authority for airing contemptuous allegations against Chief Justice of High Court---Contemnors submitted their unconditional apology on receipt of contempt notices---Validity---High Court was satisfied with unconditional and unqualified apology of contemnors tendered at the first opportunity, accepted the apology and warned the contemnors to remain careful and to act prudently in future---High Court directed the press and electronic media as well as Pakistan Electronic Media Regulatory Authority, who failed to restrict derogatory conference while airing and publishing the same, not to cross their limits under the garb of 'freedom of speech'---High Court observed that Media should exercise fundamental right of freedom of speech within the ambit of ethos and values of Pakistan and that emancipation from the bondage of the soil was no freedom for the tree---Unconditional apology of the contemnors was accepted and contempt notices were withdrawn.

PLD 2007 SC 688 rel.

Abdul Latif Yousafzai for Petitioner.

Abdul Latif Afridi, for Respondent No.1

Asghar Khan Kundi and Shaukat Ullah for Respondents.

2017 M L D 586

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

SHAFIQ---Petitioner

Versus

The STATE and another---Respondents

Writ Petition No.3897-P of 2016, decided on 27th October, 2016.

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

----Preamble & S.6---Object and purpose of the Act---Object to promulgate Anti-Terrorism Act, 1997 was to control the terrorism, sectarian violence and other heinous offences defined in S. 6 of the Act---Speedy trial of such offences was the object of the Anti-Terrorism Court.

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

----Sched. III, Ss. 6, 7 & 23---Explosive Substances Act (VI of 1908), S. 5---Application for transfer of case from Anti-Terrorism Court to the court of ordinary jurisdiction was dismissed---Validity---Prosecution case was that huge quantity of arms, ammunition and explosive substances were recovered from the possession of accused---Offences, falling under the ambit of Sched. III of Anti-Terrorism Act, 1997 and having nexus with Ss. 6, 7 & 8 of the said Act would be triable by the Anti-Terrorism Court---Question of jurisdiction of the Special Court had to be considered with reference not only to the offence mentioned in the Schedule, but allegation contained in the FIR and provision of Ss. 6, 7 & 8 of the Act would be taken into account---If offence committed by a person falling under the definition of "terrorism" as envisaged in S.6 of the Anti-Terrorism Act, 1997 same would be triable by the Anti-Terrorism Court---Record of the present case, showed that accused was found in possession of huge quantity of arms, ammunition and explosive substances without any legal justification---Offence of accused fell within the meaning of S.6(2)(ee) of the Act, which created serious risk to the safety of public or a section of public and created a distress and panic in the masses---Said offence, therefore would be triable by the Anti-Terrorism Court---Constitutional petition was dismissed accordingly.

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

----Sched. III, Ss. 6, 7 & 23---Explosive Substances Act (VI of 1908), S. 5---Transfer of case from Anti-Terrorism Court to the court of ordinary jurisdiction---Application for transfer of case, dismissal of---Validity---Prosecution case was that huge quantity of arms, ammunition and explosive substances were recovered from the possession of accused---Unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substances Act, 1908, was an act of "terrorism"---Said offence would be triable by the Anti-Terrorism Court being empowered under the---Constitutional petition was dismissed accordingly.

2017 M L D 599

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

KHALID---Petitioner

Versus

Mst. AKBAR JAN and another---Respondents

Cr. M. No.735-A of 2015, decided on 1st February, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Allegation in the FIR was that two unknown persons committed murder of son of complainant---Widow of deceased endorsed the said allegation at the time of lodging FIR---Widow of deceased, on belated stage, recorded her statements under S. 161 and S. 164, Cr.P.C. and charged the accused along with another unknown person for qatl-i-amd of her husband due to dispute over property between the deceased and accused---Complainant later on, refuted allegation of widow of deceased against the accused and implicated widow of deceased and her two brothers in the commission of offence through her supplementary statement, and mentioned that brothers of widow of deceased owed rupees five/six lac to deceased---Brothers of widow committed murder of deceased in order to escape the liability of repayment of out-standing amount---Said three accused had been released on bail on the grounds that they were not named in FIR and were charged on belated stage; that nothing incriminating was recovered from their possession to prima facie connect them with the commission of offence and that nothing was available on record in support of alleged monetary dispute of accused persons with the deceased---Accused was also not named in the FIR and was charged subsequently---Investigating Officer had not brought anything on record to prove dispute over property between the accused and deceased, as such accused was also entitled to the concession of same relief---Circumstances suggested that case of accused not only fell within the category of further inquiry but he was no longer required for investigation---Accused was granted bail in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Two sets of accused in one case---Grant of bail to one set of accused in the same case on the basis of one version and refusal of bail to another accused on the basis of another version was something beyond comprehension---Bail was granted to said another accused.

Hamid Ahmad for Petitioner.

Raja Muhammad Zubair, Assistant A.G. and Maqbool Hussain and Arif Hussain Awan for Respondents.

2017 M L D 656

[Peshawar (Bannu Bench)]

Before Muhammad Daud Khan, J

SAJJAD AHMAD and 8 others---Petitioners

Versus

MUHAMMAD KHALID KHAN and others---Respondents

C.R. No.50-B of 2009, decided on 22nd July, 2014.

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

----Ss. 14 & 17----Limitation Act (IX of 1908), Art. 178---Making award rule of court---Condonation of delay---Notice of award---Award not duly signed by parties---Effect---Applicant filed an application for making an award rule of court along with an application to condone delay---Trial Court dismissed application of applicant on ground of limitation that was assailed before appellate court below---Appellate court accepted appeal and remanded case to be decided in accordance with law---Validity---Perusal of Award showed that it was not duly signed by parties---Period of limitation for an award would start from date of service of notice to parties---Law required sending of separate notice in writing by arbitrators notwithstanding the fact that parties had knowledge of arbitration of Award---Award though had been announced much earlier than the application (for making the Award rule of court) which was filed beyond time of limitation, but it was neither signed by parties, nor was there any explanation whether parties were informed of the same---When factum of knowledge of parties regarding award was in controversy and had required pro and contra evidence of parties, Trial Court without giving such opportunity could not dismiss the application---High Court dismissed revision against order of appellate court.

Messrs Waseem Construction Co. v. Province of Sindh and others 1991 CLC 1081 and Mushtaq Ahmad alias Mastay Khan and another v. Ahmad Yar and 9 others 2000 CLC 1518 rel.

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

----Ss. 4 & 9---Exclusion of time---Vacations of court---Appellate court accepted the appeal by extending time of one month by excluding the month when Trial Courts were on vacations---Validity---Appellate court could not condone delay by excluding month of vacations---Limitation Act, 1908 had provided condonation of delay only when court was closed on the day limitation would expire---Once time had begun to run no subsequent disability or inability to sue could stop it---Remand order by Appellate court was legally correct to the extent that it provided both parties opportunity to prove their case but view taken for conodnation of delay was mistaken.

Muhammad Nisar Khan Sokarri for Petitioners.

Syed Fakhrudin Shah and Ali Gohar for Respondents.

2017 M L D 711

[Peshawar]

Before Qaiser Rashid Khan, J

Haji NEK AMAL---Petitioner

Versus

Dr. SUHAIL BALUCH and others---Respondents

Civil Revision No.552 of 2011, decided on 24th March, 2014.

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

----Ss. 42, 8, 54 & 55----Suit for declaration, possession and mandatory injunction---Maxim: Delegatus non potest delegare (delegatee cannot delegate)---Applicability---Power-of-attorney---Rules of interpretation---Actions beyond scope of power-of-attorney---Validity---Plaintiff challenged validity of special power of attorney executed in excess of powers given under general power-of-attorney and of title documents pertaining to suit property executed thereunder---Trial court dismissed the suit, but appellate court decreed the same---Validity---General power-of-attorney was executed by the principal in favour of respondent for management of his property---Under said general power-of-attorney, no authorization had been conferred upon the respondent to sub-delegate authority or to nominate or appoint anyone as special attorney so as to do acts and perform functions as specified in the general power of attorney on behalf of principal---Respondent was only authorized to sell property mentioned in general power-of-attorney, but he, to the detriment of interests of principal, executed special power-of-attorney in favour of another person---Respondent had executed said special power-of-attorney in total departure from explicit language of general power of attorney wherein no authority was given to him by principal for further delegation of the same in favour of any person---Power of attorney was to be strictly construed and nothing could be read in it unless the same was specifically provided therein and the attorney was to act within scope of the authority as described in the instrument---Maxim delegatus non potest delegare was applicable to the case---Both the agent of special power-of-attorney and the delegatee were in league while committing illegal acts---Sales went on during pendency of suit before Trial Court with ulterior motive and the same were hit by principle of lis pendens---No one appeared to support special power of attorney to the delegatee and disputed the title documents which suggested collusion and connivance between agent and delegatee---Judgment of appellate court was based on proper appreciation of evidence and the same did not warrant any interference---Revision was dismissed in circumstances.

(b) Power-of-attorney---

----Delegatus non potest delegare (delegatee cannot delegate)---Scope---Actions beyond scope of power-of-attorney---Validity---Maxim clearly signified that a person to whom an authority had been delegated by someone could not in turn further delegate or sub-delegate the same to another unless original delegation has expressly and explicitly authorized the same---Power-of-attorney or letter of attorney was a written authorization to represent or act on behalf of the principal in respect of subject matter as enjoined in general power of attorney itself---Any departure from explicit language shall be deemed to be against the will and wishes of principal and will be void to that extent.

(c) Power-of-attorney---

----Rules of interpretation---Power-of-attorney shall be strictly construed and nothing could be read in it unless the same was specifically provided therein and the attorney was to act within scope of the authority as described in instrument.

Khalil Ahmad and another v. Mst. Muhammad Jan and others 2004 SCMR 1034; Imam Din and 4 others v. Bashir Ahmad and 10 others PLD 2005 SC 418; Muhammad Yousuf Siddiqui v. Haji Sharif Khan (since deceased) through his legal heirs and others PLD 2005 SC 705; Jamal Din v. Syed Altaf Hussain Shah and others 2005 MLD 1351 and Babu Muhammad Aslam v. Mst. Rehana Parveen PLD 1989 Pesh. 185 rel.

Mian Muhibullah Kakakhel for Petitioner.

Fazal Karim Khan for Respondents.

2017 M L D 739

[Peshawar]

Before Waqar Ahmed Seth and Mohammad Ibrahim Khan, JJ

KHAWAS KHAN---Appellant

Versus

The STATE and others---Respondents

Cr.A. No.51-P of 2014, decided on 1st November, 2016.

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

----Ss. 302(b), 337-A(ii) & 34---Qatl-i-amd, Shajjah-i-mudihah, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Solitary statement of complainant/ injured eye-witness---Evidentiary value---Allegation against the accused was that he committed murder of the deceased by firing and had also assaulted the complainant by giving butt blows---Ocular account was furnished by sole eye witness/complainant/injured---Defence objected to the statement of said witness on the ground that his statement had been disbelieved in another sessions trial---No hard and fast rule existed to disbelieve such witness who during the occurrence had received injuries on head and knee, duly confirmed by the Medical Officer---Medical Officer had been subjected to cross-examination with particularity to the injuries sustained by the injured witness but no contradiction had come into view that the injuries were self trickery---Probity of injured witness was tested on its own merits to be of much intendment---Presence of injured witness at the right time of occurrence was not shattered---Appeal against conviction was dismissed in circumstances.

Abdul Samad v. The State 1973 SCMR 215; Muhammad Nawaz and others v. The State 1969 SCMR 132; Ahmad Khan v. Nazir Ahmad 1999 SCMR 803; Attaullah v. The State 2016 YLR 2148 and Safdar Hayat v. The State 1996 SCMR 1029 rel.

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

----Ss. 302(b), 337-A(ii) & 34---Qatl-i-amd, Shajjah-i-mudihah, common intention---Appreciation of evidence---Identification of accused---Parties were very closely related---Accused was brother-in-law of the complainant/injured witness---Said fact had not been denied by the accused---Circumstances suggested that substitution was beyond falsification---Appeal against conviction was dismissed in circumstances.

Sher Azam Khan v. The State 2016 YLR 1166 and PLD 2001 SC 222 rel.

Waqas Ahmad Chamkani for Appellant.

Rab Nawaz Khan AAG for the State.

Syed Akhtar Durrani for the Complainant.

2017 M L D 757

[Peshawar]

Before Muhammad Ghazanfar Khan, J

PESCO through Chief Executive and others---Petitioners

Versus

RABNAWAZ---Respondent

C.R. No.212-D of 2014, decided on 1st December, 2016.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Electricity Act (IX of 1910), S.26(6)---Civil Procedure Code (V of 1908), S.9 & O.VII, R.1---Suit for declaration and injunction---Detection bill---Civil Court, jurisdiction of---Value of plaint, non fixation of---Authorities were aggrieved of judgments and decrees passed concurrently by two Courts below in favour of plaintiff/consumer---Plea raised by authorities was that jurisdiction of Civil Court was barred in such matters---Validity---Meter was checked unilaterally in absence of plaintiff/consumer and none of the parties moved any application or ever asked Electrical Inspector to resolve dispute between them, therefore, provisions of S.26(6) of Electricity Act, 1910, were not applicable---Primary jurisdiction of Civil Court was dealt with under S.9, C.P.C. and the Court had jurisdiction to try all suits of civil nature excepting suits of their cognizance either expressly or impliedly barred---Authorities could not point out any bar contained in any law except S.26(6) of Electricity Act, 1910---Where jurisdiction was not specifically barred, the Court had the jurisdiction to entertain suit as was obvious from decrees of courts below---Plaintiff itself revealed that it was a case for an amount of Rs.558,101/- which was adjudged against plaintiff, therefore, value for purposes of jurisdiction or Court fee was the same as mentioned in judgments and decrees of two courts below and in plaint itself---Provisions of O.VII, R.1, C.P.C., were procedural in nature and not mandatory, so if any party was not prejudiced by any of the omission mentioned in O.VII, R.1, C.P.C. the case could not be decided on mere technicality---Trial Court adjudged case against the authorities after thorough perusal of record, evidence and going through pros and cons of law and facts available on the subject---Authorities had also availed right of appeal but question raised before High Court as not agitated at the time of filing appeal---Authorities, in circumstances, could not take any benefit of procedural technicalities---High Court declined to interfere in concurrent judgments and decrees passed by two courts below---Revision was dismissed in circumstances.

Abdul Aziz and another v. Saghir Khan 1982 CLC 347 rel.

Arif Rahim Ustrana for Petitioners.

Muhammad Yousaf Khan for Respondent.

2017 M L D 773

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ghazanfar Khan and Ishtiaq Ibrahim, JJ

PAKISTAN TELECOMMUNICATION COMPANY LTD. (PTCL) through President and 8 others---Applicants

Versus

IMTIAZ AHMAD---Respondent

C.M. No.563-D of 2016 with C.M. No.564-D of 2016, decided on 29th November, 2016.

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

----S. 12(2)---Fraud and misrepresentation---Scope---Application for setting aside the judgment---Contention of applicants was that impugned judgment was obtained through fraud and misrepresentation which was without jurisdiction---Validity---All the arguments advanced by the applicants had been discussed in the impugned judgment---Applicants at the time of arguing the main case had never asked the Court for furnishing comments or providing any documentary evidence in their possession---Documents on which the applicants wanted to take benefits were available on file---Applicants had argued the case with full vehemence but failed to point out any mistake in the impugned judgment---Petition for setting aside of judgment was dismissed in limine.

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

----S. 12(2)---Bar to further suit---Scope---Scope of S.12(2) of Civil Procedure Code, 1908 was limited---Court, while exercising jurisdiction under S.12(2) of Civil Procedure Code, 1908 had to restrict itself only to the extent of deciding the matter of fraud, misrepresentation and want of jurisdiction that too in absence of applicant and his counsel.

(c) Words and phrases---

----'Misrepresentation'---Meaning.

Black's Law Dictionary rel.

2017 M L D 825

[Peshawar (Abbottabad Bench)]

Before Qaiser Rashid Khan, J

Syed YASIR SHAH and others---Petitioners

Versus

The STATE and another---Respondents

Cr. Misc. (B.A.) No. 892-A of 2016, decided on 21st December, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, refusal of---Complainant had alleged that his son-in-law, along with his two brothers and father had committed murder of his daughter---No doubt, occurrence was un-witnessed but the chain of events and circumstances linked the accused persons and co-accused with the commission of the offence, whereby a young girl was done to death in a brutal and gruesome manner and her dead body was allowed to decompose till it was recovered---Accused persons, being prima facie involved in the commission of offence, were disentitled to the concession of bail---Bail was refused in circumstances.

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

----S. 497---Bail---Principle---Observations made in bail matter was tentative in nature and trial court would not prejudice while deciding case on merit.

Waqas Raza Khan Swati for Petitioners.

Muhammad Naeem Abbasi, A.A.G. for the State

Riaz Ahmad for the Complainant.

2017 M L D 854

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ghazanfer Khan, J

MUHAMMAD NAWAZ---Petitioner

Versus

MUHAMMAD RAMZAN---Respondent

C.R. No.145-D of 2015, decided on 29th February, 2016.

Civil Procedure Code (V of 1908)---

----S. 47---Decree, execution of---Joint property---Decree holder, not being sole owner, whether could execute decree in joint property---Plea that without proper partition, actual possession could not be given to the decree holder, could not hold the field in the present case, as such plea could only be taken by a co-owner if a decree had been passed against co-owner---Judgment debtor/objector, in the present case, had been found to be encroacher by court of competent jurisdiction and said order had attained finality---Decree holder could not be deprived from fruits of a decree on lame excuses---Judgment debtor/objector was in the knowledge of the order even otherwise judgment debtor could not take benefit of his own misdeeds for condonation of delay---Even if appellate court had resorted to deciding appeal on merits, judgment of appellate court would have been the same as objections taken by objector were such which had already been adjudicated upon by Trial Court---Revision was dismissed.

Haji Salim Nawaz Awan for Petitioner.

Muhammad Sajid Shahzad for Respondent.

2017 M L D 883

[Peshawar]

Before Nisar Hussain Khan and Mohammad Ibrahim Khan, JJ

NIAMAT KHAN---Appellant

Versus

QUDRAT SHAH and another---Respondents

Cr.A. No.258-P of 2016, decided on 4th October, 2016.

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

----S. 512---Qanun-e-Shahadat (10 of 1984), Art. 47---Statement of witness had been recorded in absentia---Transposing statement of witness to a subsequent trial---Court allowed application for shifting the statements of the prosecution witness, who was indisposed due to advance age, feeble and hard of hearing---Validity---Said statement was legal and admissible, which was given during the course of judicial proceedings in a trial held under S.512 Cr.P.C.---Such statement would fall within the category of "substantive evidence".

Dilawar Hussain v. The State PLD 2008 SC 123; Ashfaq Ahmad v. The State 2007 SCMR 641; Mumtaz v. Moin and another 2006 PCr.LJ 1436; Farooq Khan v. The State 2008 SCMR 917 and Arbab Tasleem v. The State PLD 2010 SC 642 ref.

Ali Raza v. Fazl-e-Wahid PLD 2004 Pesh. 20 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Allegation against accused was that he committed murder of the deceased---Complainant narrated the ocular account during the trial in absentia, which was transposed in the subsequent trial---Evidence of complainant did not find any support from the other private prosecution witness---Statement of said witness suffered from many discrepancies with noticeable improvements at different stage of the cross-examination---Judgment passed by the Trial Court was not arbitrary or whimsical---Appeal against acquittal was dismissed.

Akhtar Ali v. The State 2006 SCMR 6 and 2007 SCMR 1885 rel.

(c) Criminal trial---

----Witness---Improvements and contradictions in the statement of prosecution witness---Effect---Improvements made by the witness in order to strengthen prosecution case, could not be relied upon---Improvements once found to be deliberate and dishonest , would cast doubt on veracity of such witness.

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

----Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-i-amd, common intention---Appeal against acquittal---Appreciation of evidence----Withholding best evidence---Benefit of doubt---Prosecution witness who had seen the occurrence and his evidence was of much importance was not produced---Said witness was abandoned without any reason being un-necessary---Strong presumption would be that such witness, if examined, would have not supported the prosecution case---Circumstances established that considerable doubt regarding the veracity of prosecution case had been created, benefit of which would be resolved in favour of accused---Appeal against acquittal was dismissed.

Tahir Khan v. The State 2011 SCMR 646 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appeal against acquittal---Appreciation of evidence---Abscondance of accused---Evidentiary value---Prosecution had alleged that accused was absconder for 15-years and he was liable for conviction for such score alone---Validity---Abscondance was the weakest type of corroboratory evidence---Ocular account having been disbelieved, mere abscondance could not form the basis for conviction---Appeal against acquittal was dismissed.

Muhammad Farooq v. The State 2006 SCMR 1707; Farman Ali and others v. The State PLD 1980 SC 201; Rohtas Khan v. The State 2010 SCMR 566; Shafqat Abbas v. The State 2007 SCMR 162 and Riaz Ahmad v. The State 2016 PCr.LJ 114 rel.

(f) Criminal trial---

----Benefit of doubt---Appeal against acquittal---Presumption of double innocence---Scope---Accused after his acquittal earned for himself the presumption of double innocence; firstly before the trial and secondly after going through the rigors of a protracted trial---Findings of trial court could not be easily set at naught unless the same were found to be arbitrary and whimsical.

2004 SCMR 249; 2009 SCMR 288 and 2009 SCMR 946 rel.

Malik Usman Rahim Khattak for Appellant.

2017 M L D 930

[Peshawar (D.I. Khan Bench) ]

Before Ikramullah Khan and Muhammad Ghazanfar Khan, JJ

ZAHID MOHIBULLAH---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Local Government and 10 others---Respondents

W.P. 508-D of 2015, decided on 19th November, 2015.

Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules, 2014---

----R. 42(2) (3) (4)(5) (10-A)---Notification No. F. 16(I)/2015 dated 15-07-2015---Local bodies elections---Election for reserved seats---List of candidates submitted by political parties---Scope---Election Commission ordered to fill the reserved seats which remained vacant due to either non-filing of nomination papers by any candidate of the respective political parties or exhaustion of priority list of candidates of those political parties who had secured more seats than the priority lists of candidates earlier provided to Returning Officer---Validity---Political parties who had not submitted their party list within the prescribed period as fixed by the Election Commission could not tender fresh list of its candidates---List for reserved seats already submitted by a political party could be revised/altered according to result of election candidates of respective parties or exhaustion of the priority lists of candidates of those political parties who had secured more seat than the priority list of candidates earlier provided to concerned Returning Officer---Constitutional petition was disposed of accordingly.

Muhammad Yousaf Khan, Saleemullah Khan Ranazai and Umer Farooq Khan Miankhel for Appellants.

Kamran Hayat Mainkhel Addl: A.G. for Respondents Nos. 1, 2 and 4 to 8.

Hashmat ul Rehman, Standing Counsel for Respondent No.3.

2017 M L D 957

[Peshawar (Mingora Bench) Dar-ul-Qaza]

Before Muhammad Younis Thaheem, J

TURAB KHAN---Petitioner

Versus

GOVT. OF KHYBER PAKHTUNKHWA through Secretary Local Government and 9 others---Respondents

W.P. No.505-M of 2015, decided on 14th April, 2016.

Khyber Pakhtunkhwa Local Government Act (XXVII of 2013)---

----S. 74---Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules, 2014, Rr.41 & 42---Reserved seats---Filing of nomination papers along with political party ticket after last date---Petitioner was candidate holding ticket of a political party having second position in general elections whereas respondent was a candidate holding ticket of a political party having third position---Election Tribunal declared respondent as returned candidate on the ground that petitioner did not file his nomination papers along with party ticket before last date fixed for submission of nomination forms---Validity---No one had submitted nomination papers having ticket of political party securing second position, against reserved seat of non-Muslims for District Council within prescribed period i.e. 13-4-2015 to 17-4-2015, therefore, the same was kept vacant---Next person in order of precedence provided in prescribed manner through a "list" from a political party within prescribed period under prescribed Rules to Returning Officer under R. 42 of Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules, 2014, were to be declared as returned candidate---Petitioner had filed his nomination papers along with party ticket on 22-7-2015, which by itself were filed after closing date i.e. after 17-4-2015, in violation of law and relevant Rules---Declaring petitioner by Returning Officer as returned candidate of a political party was without legal authority void ab initio and against relevant election Rules---High Court declined to interfere in the order passed by Election Tribunal as it had correctly adjudged the respondent as returned candidate for the vacant seat---Petitioner failed to point out any wrong exercise of jurisdiction by Election Tribunal and miscarriage of justice to petitioner---Constitutional petition was dismissed in circumstances.

Umesh Kumar v. Engineer Basant Lal Gulshan and 9 others 2011 MLD 1360 rel.

Syed Fayaz Muhammad Qazi for Petitioner.

Mian Hussain Ali, Deputy Attorney General, Sabir Shah, A.A.G. and Alam Zeb and Rahimullah for Respondents.

2017 M L D 973

[Peshawar]

Before Irshad Qaiser and Syed Afsar Shah, JJ

HUSSAIN SHAH---Appellant

Versus

The STATE and another---Respondents

Cr. Appeal No.319-P of 2015 with M.R. No.09/2015, decided on 4th May, 2016.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Report was lodged after one and half hours of the occurrence---Site-plan, though was not a substantive piece of evidence, but being the first reflection of the spot as indicated or pointed out by the eye-witnesses, would furnish a panaromic view of the occurrence to scrutinize the evidence tendered at the trial by the prosecution witnesses---Nothing was available on record about the prosecution witness, as to from where he noted the accused while running---Complainant/prosecution witness, at the time of occurrence, was aged about 78 years; how a person of such an age could notice accused armed with 7.62 bore rifle---Prosecution version on said precise issue stood in vacuum---Complainant, had not faced the test of cross-examination---Conduct of solitary eye-witness and brother of the deceased, was not appealable to the prudent mind, especially when he was not present with the deceased at the relevant time---Accused, no doubt had been charged singularly and substitution in the case was rare phenomenon, but it depended from case to case---In the present case, crime was un-witnessed---When ocular evidence was disbelieved, abscondence of accused, alone would not play any role in the conviction of accused, because it was weakest type of corroboratory evidence---Conviction and sentence recorded by the Trial Court, were set aside, accused was acquitted of the charge and was set at liberty forthwith, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Prosecution was duty bound to prove its case beyond any reasonable doubt, and if any single and slightest doubt was created, benefit of the same must go to accused and it would be sufficient to discredit the prosecution story---Any reasonable doubt arising out of the prosecution evidence, pricking the judicial mind, was sufficient for acquittal of accused.

Muhammad Luqman v. The State PLD 1970 SC 10; Tariq Pervaz v. The State 1995 SCMR 1345; Muhammad Khan and another v. The State 1999 SCMR 1220 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Jalal ud Din Akbar-e-Azam Khan Gara for Appellant.

Mian Arshad Jan, A.A.G. for the State.

Sohail Akhtar for the Complainant.

2017 M L D 987

[Peshawar (Abbottabad Bench)]

Before Ikramullah Khan and Qalandar Ali Khan, JJ

ABID AZIZ---Appellant

Versus

WAQAS and another---Respondents

Criminal Appeal No.72-A of 2013, decided on 3rd May, 2016.

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

----Art. 46---Dying declaration---Scope---'Dying declaration', though was an important piece of evidence, but it was equally true that to accord the status of 'dying declaration' to a report of the deceased-complainant, it was an essential pre-requisite to prove that at the time of making the report, deceased-complainant was fully conscious and capable of understanding the nature of his report and that there was no external prompting at the time of lodging the report by the deceased.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Neither certificate of the Medical Officer was available to show that the deceased-complainant was fully conscious and capable of understanding the nature of his report at the time of lodging the FIR; nor the Medical Officer had recorded factum of consciousness of the deceased---Complainant or his capability to understand the nature of his report on the injury sheet when he first examined the deceased, which was incidentally also the time of lodging of report in the Murasila---Opinion of Medical Officer, ran counter to the version of prosecution---Clothes of prosecution witness remained unstained with blood, despite his assertion that he lifted the deceased to the hospital on his shoulder; which also ran counter to the statement of other prosecution witness---Serious doubts being present, benefit of the same was to be extended to accused---Judgment of the Trial Court and conviction and sentence of accused, were based on wrong appreciation of evidence available on record---Same was set aside by extending benefit of doubt to accused---Accused was acquitted of the charge under S.302(b), P.P.C. and he was set at liberty, in circumstances.

Jalal-ud-Din Akbar-e-Azam Gara for Appellants.

Muhammad Naeem Abbasi, A.A.G. and Abdur Razaq Chughtai for Respondents.

2017 M L D 1013

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

NIAZ AHMED KHAN---Petitioner

Versus

The STATE---Respondent

Cr.M. No.94-A of 2017, decided on 8th March, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Statutory ground of delay in conclusion of trial---Accused was behind the bars for the last more than three years and his trial was not concluded as yet---During the said period, only four official witnesses could be examined by the Trial Court, the other material witnesses including the complainant and eye-witnesses were yet to be examined---Said witnesses had not appeared for recording their statements---Adjournments of the case were given due to absence of prosecution witnesses or reasons not attributed to the accused, who was in custody---Few adjournments were made on the request of defence but even on those dates the material prosecution witnesses were not present for recording their statements---Non-production of the accused from jail and abscondance of the co-accused could not serve as a ground for refusal of bail to accused on statutory ground of delay in conclusion of trial---Prosecution was to be blamed for such delay---Circumstances established that a considerable delay took place in conclusion of trial and there appeared no likelihood of conclusion of trial in the near future---Accused, in circumstances had been able to make out a case for post-arrest bail on the statutory ground of delay in conclusion of trial---Accused was admitted to bail.

2015 SCMR 1696; 2000 MLD 1061 and 2012 YLR 477 rel.

Javed Khan Tanoli for Petitioner.

A.A.G. for the State.

2017 M L D 1070

[Peshawar]

Before Nisar Hussain Khan and Muhammad Younis Thaheem, JJ

IN CHARGE SUI GAS---Appellant

Versus

Messrs SWABI CNG FILLING STATION---Respondent

R.F.A. No.56-P of 2015, decided on 10th December, 2015.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Dispute with regard to bill for consumption of natural gas---Contention of plaintiff was that defendants Natural Gas Company had issued bill of excess amount of consumed units---Suit was decreed by the Trial Court---Validity---Plaintiff had been receiving bills for huge amount and which were paid, however, billing suddenly came to the lower end---Gas meter was found defective as per the laboratory report as meter was not recording the correct gas consumption---Plaintiff was using Compressed Natural Gas pump because of defective meter due to which he was fined on the basis of mechanical counter reading during the period in which meter was out of order---Collective bill was sent which was in accordance with law but plaintiff did not pay full amount rather partial amount was paid which was rightly carried forward in the next months---Plaintiff was bound to pay the said amount---Trial Court decreed the suit while committing illegality by mis-reading the evidence---Impugned judgment and decree passed by the Trial Court were set aside and suit was dismissed---Appeal was allowed accordingly.

Muhammad Ibrar Khan for Petitioner.

Tayyab Zaman for Respondent.

2017 M L D 1128

[Peshawar (Bannu Bench)]

Before Ishtiaq Ibrahim, J

SADDIQUE ZAMAN---Petitioner

Versus

AMIR MOHAMMAD KHAN and 2 others---Respondents

Cr.M.B.A. No.489-B of 2016, decided on 19th January, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324 & 34---Attempt to commit qatl-i-amd, common intention---Bail, grant of---Further inquiry---Plea of alibi---Complainant alleged that he along with his brother was riding on a motorcycle and accused persons started firing at them due to which they sustained injuries---Occurrence had taken place on 17.12.2016 at about 1400 hours, whereas the report was lodged at 1445 hours---Primary plea of accused was that he was serving in police department as constable and on 17.12.2016 at relevant time he was present in Police Line---No hard and fast rule existed that plea of alibi would not be taken into consideration at the stage of bail, however, circumstances of each and every case were to be looked into---Tests which were required for genuineness of plea of alibi should be that it had been taken at the earliest, that it appeared to be reasonable and there was no question of manipulation for the same---In the present case accused was arrested on the very day of occurrence from Police Line and had not participated in the commission of offence---Statements of two responsible persons were recorded under S.164, Cr.P.C. who confirmed the stance of accused that at the relevant time he was present in Police Line---Question was as to whether in such like circumstances where two police officers confirm the presence of accused at relevant time, the same could be discarded for the purpose of bail just by holding that plea of alibi was to be determined by Trial Court was not correct---Besides that plea of alibi of accused had not been rebutted by prosecution rather same had been confirmed by Investigating Agency by recording the statements of two witnesses who were categoric on the point that at the relevant time accused was present in Police Line which made the case of accused arguable for the purpose of bail being one of further inquiry---Bail was granted accordingly.

Zaigham Sharif v. The State and others 2016 SCMR 18 and Khalid Javed Gillani v. The State PLD 1978 SC 256 rel.

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

----S. 497---Bail---Plea of alibi---Scope---Tests which were required for genuineness of plea of alibi should be that it had been taken at the earliest, that it appeared to be reasonable and there was no question of manipulation for the same.

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

----S. 497---Bail---Plea of alibi---Scope---No hard and fast rule existed that plea of alibi would not be taken into consideration at the stage of bail, however, circumstances of each and every case were to be looked into.

Syed Fakhruddin Shah for Petitioner.

Qudratullah Khan Gandapur, Asstt: A.G. for the State and Imran Ali Shah for Respondents.

2017 M L D 1167

[Peshawar]

Before Rooh-ul-Amin Khan, J

ZAR FAROSH KHAN and 3 others---Petitioners

Versus

MUQARAB KHAN and 10 others---Respondents

Civil Revision No.269-P of 2015, decided on 13th February, 2017.

Civil Procedure Code (V of 1908)---

----O. I, R. 10 & S. 12(2)---Non-impleading of necessary party by the plaintiff---Effect---Court dismissed application under O. I, R. 10, C.P.C., pending appeal, and maintained the judgment and decree of the civil court---Petitioners had contended that they were actual owners in possession of the suit property which they had purchased from the defendants/appellants long time ago and plaintiff/decree-holder malafidely did not implead them in the suit---Petitioners claimed themselves as necessary party for they had built the houses over the suit property decades back---Respondent/plaintiff contended that as the civil court had cancelled mutations of the defendants/appellants so subsequent mutation by the defendants/appellants in favour of petitioners being subsequent in time had no legal effect and that application under S. 12(2), C.P.C. by the petitioners was also pending adjudication before Appellate Court---Validity---Record showed that Patwari Halqa was examined by the plaintiff who produced the revenue record including Goshwara Malkiat and site plan of the disputed Khasra numbers which showed that petitioners were in possession of the suit property and they had constructed houses thereon---Record manifested that plaintiff was not in possession of suit property which fact was admitted by a witness of the plaintiff---Non-impleadment of such a necessary party would not only be against the principle of Audi Alteram Partem but shall also harmful for the plaintiff as no effective decree could be passed in his favour, even if he proved his entitlement---Petitioners having title on the basis of mutation duly incorporated followed by possession in the shape of constructed houses, fell under the ambit of "necessary parties"---Where a necessary party was not impleaded in the suit, decree was not binding on such party---Appellate Court was to afford an opportunity of hearing to the petitioners instead of knocking them out technically---Order I, R. 10, C.P.C. had vested court with wide discretion to add parties at any stage of suit to avoid multiplicity of the proceedings---Where there was non-joinder of necessary party in whose absence effective decree could not be passed, the suit ultimately failed, unless such necessary party was made party to the suit---Section 12(2) & O.I, R.10, C.P.C. provided two distinct remedies on different grounds and different circumstances---Both those remedies could be availed at the same time by a party---Though the petitioners had availed both the remedies, but none of the two remedies had been fully exhausted by them---Application under S.12(2), C.P.C. in circumstances, at the most would become infructuous, after decision of present revision petition but would not bar the remedy agitated in the petition under O. I, R. 10, C.P.C.---Judgments and decrees of the two courts below were set aside and the petitioners were directed to be impleaded in the panel of the defendants in the suit---Case was remanded to the Trial Court which shall proceed with the case de novo---Revision was accepted accordingly.

Ghulam Ahmad Chaudhary v. Akbar Hussain through Legal Heirs and another PLD 2002 SC 615 ref.

Muhammad Ali for Petitioner.

Yasir Khattak for Respondent No.1.

Mukhtiar Ahmad Maneri for other Respondents.

2017 M L D 1180

[Peshawar (Mingora Bench)]

Before Muhammad Younis Thaheem, J

Mst. SOOCHA and 6 others---Petitioners

Versus

Mst. KHAZUNA BIBI and 15 others---Respondents

C.R. No.646-M of 2011, decided on 13th October, 2016.

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

----S. 41---Inheritance---Limitation---Custom (rewaj)---Scope---Bona fide purchaser---Entries in the revenue record---Scope---Plaintiffs claimed their inheritance rights to the extent of their shari shares---Suit was decreed concurrently---Validity---Suit property was in the ownership of predecessor of the parties which devolved upon his legal heirs including plaintiffs---Trial Court had properly evaluated the evidence on record and decreed the suit---Question of limitation did not arise in the matters of inheritance---Defendants failed to prove that their predecessor had either gifted them the entire suit property or they purchased the same from someone else---Muslim females on the basis of 'Custom (rewaj)' could not be deprived from rights of inheritance---Present plaintiffs became owners on the very day of demise of their father to the extent of their shari shares---Joint owners could file suit when their right was denied by the co-sharer---Rights of subsequent transferees/vendees had been protected under S.41 of Transfer of Property Act, 1882---Transferees/vendees who derived their title from the defendants should be deducted/adjusted from the shares devolved upon them and not from the shares of plaintiffs---Wrong entries in the record of rights could neither confer any right upon the person in whose favour same were made nor such entries would extinguish right of ownership of co-heir---No illegality or irregularity had been pointed out in the impugned judgments passed by the Courts below---Revision was dismissed in circumstances.

PLD 1993 SC 38; 2015 YLR 2443; PLD 2014 SC 167; 2013 SCMR 299; 2014 SCMR 513; PLD 1991 SC 213; PLD 1984 SC 394; 2016 SCMR 1417; 2016 SCMR 763; 2014 SCMR 801; 2014 MLD 1116; PLD 1990 SC 1 ref.

2016 SCMR 910; 2015 SCMR 869; 2010 SCMR 1871; PLD 1978 SC (AJ&K) 75 and Muhammad Idress and others v. Muhammad Pervaiz and others 2010 SCMR 5 rel.

Adil Khan Tahirkheli for Petitioner.

Asghar Ali and Arshad Iqbal for Respondents.

2017 M L D 1220

[Peshawar (Abbottabad Bench)]

Before Ishtiaq Ibrahim, J

FAISAL KHAN and 3 others---Petitioners

Versus

The STATE and another---Respondents

B.A. No.109-A of 2017, decided on 24th March, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Bail, grant of---Counter version---Further inquiry---Prosecution case was that accused party made indiscriminate firing on the complainant party as a result of which two persons died while six persons sustained injuries on different parts of their bodies---Another FIR regarding the same occurrence had been registered by accused against the complainant party, for attempting at the lives of accused and others, wherein five persons including passerby sustained severe injuries on vital parts of their bodies---Time of occurrence and place in both the FIRs was almost the same---Circumstances established that it was a case of two versions arising from the same incident, and as to which version was correct, was to be decided by the Trial Court after recording evidence---FIRs showed that complainant of both the cases remained mute regarding damage caused to the other side and prima facie they had suppressed the real facts, which made the case of accused-petitioners one of further inquiry---Record showed that accused-petitioners of the present case, had been admitted to bail---On the tentative assessment of the record, it could not be said that as to by which accused the injuries had been caused to the injured as well the deceased in both the cases---Accused-petitioners, in circumstances, were found entitled for the concession of bail---Accused-petitioners were admitted to bail in circumstances.

Muhammad Zahid Umer v. The State and another 2016 SCMR 1246 and Ali Sheheryar v. The State 2008 SCMR 1448 rel.

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

----S. 497(2)---Bail---Counter-versions---Further inquiry---Bail, in such like cases, was to be granted on the ground of further inquiry.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 rel.

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

----S. 497(2)---Bail---Counter-versions---Bail had already been granted to one side---If one party in a case of counter-version, was granted bail, other party would also become entitled to the same relief---Accused was allowed bail in circumstances.

Muhammad Shahzad Saddiqui v. The State and another PLD 2009 SC 58 rel.

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

----S. 497(2)---Bail---Prohibitory clause of S. 497(2), Cr.P.C.---Principle---Accused persons could not be kept in jail merely on the ground that they were directly charged for an offence falling under the prohibitory clause of S. 497, Cr.P.C.---Mistaken relief of bail could be repaired by convicting the accused, if proved guilty---No proper reparation could be offered for their unjustified incarceration, albeit, their acquittal in the long run.

Zaigham Ashraf v. The State and others 2016 SCMR 18 rel.

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

----S. 497(2)---Bail---Observations made in bail order were tentative in nature for disposal of petition for bail---Such observations would not influence the mind of the Trial Court rather it would record its own findings on the basis of evidence to be recorded.

M.A. Tahir Kheli and Atif Ali Jadoon for Appellants.

Mohammad Ibrahim Khan for the State.

Fazal-i-Haq Abbasi, Mohammad Arshad and Masood-ur-Rehman Tanoli for the Complainant.

2017 M L D 1272

[Peshawar (Abbottabad Bench)]

Before Muhammad Ghazanfar Khan, J

MUHAMMAD SABIR---Petitioner

Versus

SARDAR ALI and 3 others---Respondents

Civil Revision No.328-A of 2011, decided on 7th April, 2017.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 15---Civil Procedure Code (V of 1908), O. XXIII, R.3---Suit for pre-emption--- Compromise--- Waiver, principle of---Scope---Petitioner/Pre-emptor contended that principle of waiver could only apply to any act or omission of the plaintiff which was prior to the institution of suit---Pre-emptor/plaintiff denied execution of written compromise produced by the respondents in the evidence---Respondents contended that they had duly proved written compromise and plaintiff was estopped legally to press his claim of pre-emption---Validity---Question of Talbs had already been adjudged by the courts below in favour of petitioner/plaintiff and as there was no appeal, revision or cross objection by the opposing side, so that findings of the court had become final---Question before High Court was that as to whether the compromise produced by respondents and relied by the courts below could be considered as a genuine compromise and whether principle of waiver was attracted in the present case---Held, under O.XXIII, R. 3, C.P.C. if it was proved to the satisfaction of the Court that the suit had been compromised, then it would order such compromise to be recorded---Such was not a mere formality but it was a mandatory provision of law which had been made appealable---As far as written compromise was concerned, the compromise would only be acted upon if it was admitted by the parties and after that it had been reduced into writing---Section 15 of Khyber Pakhtunkwa Pre-emption Act, 1987 clearly indicated that any act or omission or acquiescence of the plaintiff at the time of sale would debar the pre-emptor from assailing the sale transaction through pre-emption---Record was silent as to whether compromise agreement was signed or ever consented to by the plaintiff---Even otherwise, once the execution of a document relied upon by a party was denied by the other, onus to prove such document lay on the party which relied on such document---Findings of both the courts below were not only against the law and evidence on the file but also against the dictum of the superior courts, thus, were not tenable in the eyes of law---Impugned judgments and decrees of both courts below were set aside and the suit of the plaintiff/petitioner was decreed---Revision was accepted accordingly.

Umar Bakhsh and 2 others v. Azim Khan and 12 others 1993 SCMR 374; Mst. Khurshid Begum v. Mir Muhammad and 8 others 1990 CLC 1614 and Jam Pari v. Muhammad Abdullah 1992 SCMR 786 ref.

Muhammad Wajid Khan for Petitioner.

Nawaz Khan Jadoon for Respondent.

2017 M L D 1283

[Peshawar (Mingora Bench)]

Before Ikramullah Khan, J

Mst. TAHIRA BIBI and 17 others---Petitioners

Versus

Mst. PAKMIN TAJ and 7 others---Respondents

Civil Revision No.211-M of 2015, decided on 9th February, 2017.

Civil Procedure Code (V of 1908)---

----O. IX R. 13 & O. XX Rr. 6, 7---Limitation Act (IX of 1908), Arts.156 & 164---Ex parte decree---Limitation---Date of drawing decree sheet---Relevance---Petitioners contended that under Art. 156 of the Limitation Act, 1908 period of limitation for setting aside an ex-parte decree would be reckoned from the date of drawing decree sheet---Respondent/decree holder contended that application of petitioners to set aside ex-parte decree was time barred---Validity----Principle envisaged under Art. 164 of Limitation Act, 1908 was that the period for filing an application to set aside an ex-parte decree by a defendant, would be 30 days and same would be reckoned from the date of decree or where the summons was not duly served then from the date of knowledge of the decree of the applicant---In the present case, predecessor in interest of petitioners, was not only served in accordance with law, but one of the present petitioners also appeared but did not contest the suit, thereafter, case was remanded by High Court---Admitted fact alleged by petitioners themselves was that they had been litigating inter se the same property, whereby, same decree had obtained and did not opt to contest the suit---Act and omission of petitioners spoke loudly that they were vigilant with regard to the matter being sub-judice before a competent court of law---Contention of petitioners that the formal decree sheet had been drawn up at later stage and the period of limitation would be reckoned from the date of signing formal decree sheet was misconceived---Limitation provided under Art. 156 of the Limitation Act, 1908 for the propose of appeal, the principle could not be extended to an application under O. IX, R. 13, C.P.C., as in filing appeal a copy of decree and judgment was mandatory to be annexed with the memorandum of appeal and without filing attested copy of decree, appeal could not be treated as competent---No such provision existed to the effect that copy of decree would be annexed with application under O. IX, R. 13, C.P.C. by defendant to set aside an ex-parte decree---No time was prescribed for signing a decree, in view of O. XX R. 7, C.P.C. the decree would bear the date, the day on which the judgment was pronounced---Defendant, irrespective of the fact that whether any decree had been drawn up in accordance with O. XX, R. 6, C.P.C., would move application for setting aside ex-parte decree within prescribed period under Art. 164 of Limitation Act, 1908 and would not wait till formal decree was drawn up, as it was not the requirement of law, to annex attested copy of the decree with application under O. IX R. 13, C.P.C.---As far as the date of decree was concerned, irrespective of the fact, when the decree was signed, it would be construed to have been signed on the day the judgment was pronounced and the period of limitation would be reckoned for the purpose of application under O. IX R. 13, C.P.C., from the date of decree and not from the date of formal drawing up the decree sheet---Parties to the suit, in the present case, were close relatives, therefore, it could not be presumed that they were not aware of the suit---Moreover, predecessor in interest of petitioners was present in the High Court when case was remanded---Application of the petitioners under O. IX R. 13, C.P.C., was time barred by a delay of more or less than seven years---Revision petition was dismissed accordingly.

PLD 1967 SC 271 distinguished.

Humayun Khan for Petitioners.

Muhammad Iqbal for Respondents.

2017 M L D 1326

[Peshawar (Bannu Bench)]

Before Syed Afsar Shah and Ishtiaq Ibrahim, JJ

KARIM KHAN---Petitioner

Versus

The STATE and 2 others---Respondents

Cr. A. 120-B of 2015 with Murder Reference No.09-B of 2015, decided on 13th February, 2017.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 367---Qatl-i-amd---Appreciation of evidence---Contents of judgment---Appeal had not been decided in accordance with the mandatory provisions of S.367, Cr.P.C.---Scope---Defence plea was that judgment delivered by the Trial Court was in violation of S. 367 Cr.P.C. as Trial Court had not evaluated the statement of complainant in judgment nor it was put to the accused during recording his statement under S. 342, Cr.P.C.---Effect---Record showed that while recording statement of accused under S. 342, Cr.P.C., no specific question was put with respect to the transposition of statement of complainant recorded during earlier trial---No finding had been given on the statement of complainant---Evidence of the complainant had not been properly appreciated and discussed with other circumstances of the case---Trial Court was under legal obligation to have discussed each and every point, involved in the case, with reference to evidence produced by prosecution including the statement of complainant---Circumstances established that judgment delivered by Trial Court was violative of the statutory provisions of S. 367 Cr.P.C., therefore, was not sustainable---Appeal was allowed, impugned judgment was set aside and case was remanded for re-examination of evidence.

Sahib Khan and 4 others v. The State and others 1997 SCMR

871; Ashiq Hussain and others v. The State and 2 others 2003 SCMR 698; Khalid Mehmood v. The State 2004 PCr.LJ 984 and Farrukh Sayyar and 2 others v. Chairman NAB Islamanbad and others 2004 SCMR 1 rel.

Muhammad Rasheed Khan Dirma Khel for Appellants.

Qudrat Ullah Khan Gandapur Assistant Advocate General for State.

2017 M L D 1367

[Peshawar]

Before Assadullah Khan Chamkani, J

Mst. JAVERIA---Petitioner

Versus

The STATE---Respondent

Cr.M.B.A. No.2500-P of 2015, decided on 23rd February, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, grant of---Further inquiry---Female accused with suckling baby---Welfare of minor---FIR showed that at the time of arrest, accused was having her 1½ years old suckling baby/daughter in her lap who was with her inside the jail---No doubt considerable quantity of opium had been shown recovered from her possession but her suckling daughter in her lap was languishing in jail with her mother for no sin---Welfare of minor was irreconcilable with life of jail, thus instead of detaining the innocent infant in the jail for the crime allegedly committed by her mother, it would be in the interest of justice as well as welfare of minor, if her mother was released from the jail---Holy Prophet Muhammad (S.A.W.) had suspended the sentence on pregnant woman, not only till delivery of her child, but also till suckling period, i.e. two years, obviously for the welfare of her child, which depicted paramount importance and significance of the right of a suckling child in Islam---Without touching the merits of the case while following the said golden principle of administration of justice, accused was allowed bail in circumstances.

Mukhtiar Ali for Appellant.

Mohammad Iqbal Mohamand for the State.

2017 M L D 1376

[Peshawar]

Before Syed Afsar Shah, J

SIFAT ULLAH---Petitioner

Versus

The STATE---Respondent

Cr. Misc. (B.A.) No.184-P of 2017, decided on 11th April, 2017.

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

----S. 497---Bail---Statutory ground of delay in conclusion of trial---Principles---Accused of an offence not punishable with death, detained for such offence for a continuous period exceeding one year and whose trial for such offence had not been concluded---Court was obliged to release such accused on bail on statutory ground---Court was obliged to release a person, who being an accused of offence punishable with death, detained for a continuous period exceeding two years and whose trial for such offence had not been concluded, provided, that the delay in the trial of the accused would not have occasioned by any act or omission of the accused or any other person acting on his behalf---Fourth proviso of S. 497, Cr.P.C. provided further that statutory right of an accused person to bail on the grounds of statutory delay would not apply to a previously convict, hardened, desperate or dangerous criminal or involved in terrorism.

Gul Zaman v. The State 1999 SCMR 1271; The State through Deputy Director Anti Narcotic Force Karachi v. Mobeen Khan, 2000 SCMR 299 and Deputy Director ANF Karachi v. Syed Abdul Qayum 2001 SCMR 14 rel.

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

----S. 497---Bail---Statutory right of accused---Principle---Statutory right of accused could not be denied under the discretionary power of the court to grant bail---However, if the case had fallen under the fourth proviso of S. 497, Cr.P.C., bail could be refused.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession and trafficking of narcotics---Bail---Statutory ground of delay in conclusion of trial---Prosecution case was that 25-kilograms charas was recovered from secret cavities of the car of the accused-petitioner, 5-kilograms heroin was recovered from the cavities of car of other accused-petitioner, 5-kilograms 200 grams opium was recovered from the car of yet another accused-petitioner---Record showed that the accused-petitioner, in the case of recovery of 5-kilograms 200 grams opium, was arrested on 9.3.2015---Trial of the said accused-petitioner had not been concluded and delay in the conclusion of trial was not attributed to him---No evidence was forthcoming on record, which could show that case of said accused fell within the ambit of fourth proviso of S. 497, Cr.P.C.---Accused-petitioner was therefore, entitled to be released on bail on the ground of statutory delay---Accused was admitted to bail accordingly---Record transpired that none of the accused-petitioners of the other two cases had earned the ground of statutory delay of two years in the conclusion of their trial, thus, they were not entitled to be released on bail on the ground of statutory delay---Both the petitions for bail being premature were dismissed accordingly.

Socha Gul v. The State 2015 SCMR 1077 rel.

Muhammad Ijaz Sabi for Petitioner.

Mian Arshad Jan, A.A.G. for the State.

2017 M L D 1388

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

MUHAMMAD FAREED---Petitioner

Versus

MUHAMMAD AMIR and another---Respondents

Criminal Revision No.10-A of 2016, decided on 12th May, 2016.

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

----S. 540---Summoning of witness---Law vested court with discretion to recall or re-examine any person already examined at any stage of the trial---Said discretion could be exercised only when evidence appeared to be essential for the just decision of the case.

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

----Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), S.540---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Material witness, re-summoning of---Scope---Application filed by accused for re-summoning Medical Officer as witness and providing opportunity to cross-examine to the extent of use of axe by co-accused, was declined by Trial Court---Validity---Record showed that there was allegation of axe blows caused to the deceased by co-accused in the FIR---Cross-examination of the Medical Officer who conducted the postmortem examination, on said point assumed critical importance for just decision of the case---Not only complete evidence of the prosecution was yet to be recorded and closed, but the application for re-summoning of the Medical Officer was moved immediately three days after recording statement of said witness---Applicant could not be suspected for moving the application with the intention to cause delay in conclusion of trial---Right of defence and opportunity of cross examination of prosecution witness were valuable rights of accused facing trial, which could not be denied on technical grounds---Revision petition was accepted in circumstances.

1998 SCMR 326 rel.

2007 YLR 851 and 2007 PCr.LJ 642 ref.

Ghulam Mustafa Khan Swati for Petitioner.

Shad Muhammad Khan for Respondent.

Muhammad Naeem Abbasi, A.A.G. for the State.

2017 M L D 1451

[Peshawar]

Before Ikramullah Khan and Lal Jan Khattak, JJ

Sahibzada ALAMGIR---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman and 2 others---Respondents

Writ Petition No.832-P of 2017, decided on 30th March, 2017.

(a) National Accountability Ordinance (XVIII of 1999)---

----S. 9(b)---Criminal Procedure Code (V of 1898), S. 497---Bail---High Court, jurisdiction of---Scope---No bar existed on the jurisdiction of High Court to entertain, dispose of and decide bail petition filed by any accused in terms of S. 497, Cr.P.C., in cases registered against them under National Accountability Ordinance, 1999---No ordinary court including Accountability Court can exercise such powers envisaged under S. 497, Cr.P.C., National Accountability Ordinance, 1999 being a special law.

Asfandyar Wali Khan's case PLD 2001 SC 607 and Muhammad Saeed Mehdi v. The State and others 2002 SCMR 282 rel.

(b) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iv) & (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Prima facie case---Misuse of authority---Petitioner was Project Director and he was arrested by National Accountability Bureau Authorities on allegation that he advanced 20% mobilization amount even to those companies, persons whose works were dropped and even schemes were not found feasible---Validity---Available record depicted that many schemes for which more than 80% amount was released did not exist on grounds but were commissioned and funds were released with active connivance of the accused---Deep appreciation of facts, while disposing of bail petition or Constitutional petition in a matter of detention was not a requirement of law---Prima facie, inquiry against petitioner revealed sufficient and reasonable documentary proof which made out a case in terms of S. 9 of National Accountability Ordinance, 1999 against the accused---Bail was refused in circumstances.

(c) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iv) & (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Prima facie case---Misuse of authority---Petitioner was Deputy Project Director and was arrested by National Accountability Bureau Authorities on allegation that 20% mobilization amount was advanced even to those companies, persons whose works were dropped and even schemes were not found feasible---Validity---Role of accused was subservient to principal accused who was Project Director---No direct allegation of corruption or misuse or abuse of power was alleged against accused by National Accountability Bureau---Whether accused had acted in violation of any law or rules, benefitted him or other persons, was to be dealt with by Trial Court---Inquiry against accused was already completed wherein he was charged only for connivance---No direct allegation was brought by National Accountability Bureau in view of his position and kind of duties assigned to him---Bail was allowed in circumstances.

Shumail Ahmad Butt for Petitioner.

Riaz Mohmand Special Prosecutor along with Junaid Nasir, I.O. for Respondents.

2017 M L D 1488

[Peshawar (Bannu Bench)]

Before Muhammad Younis Thaheem, J

TARIQ MEHMOOD---Petitioner

Versus

GHULAM MUHAMMAD---Respondent

Civil Revision No.277-B of 2013, decided on 14th September, 2015.

(a) Gift---

----Ingredients--- Proof of--- Procedure--- Inheritance--- Scope---Contention of plaintiffs was that impugned gift mutation was fraudulent, void and ineffective upon their rights---Suit was dismissed concurrently---Validity---Parties were step brothers and sisters inter se in the present case---Donor resided with his family i.e. the parties till his death---Impugned mutation did not bear thumb impression or signature of donee the alleged---Verifying witness of mutation did not belong to the estates of suit land---Rapt Roznamcha had thumb impression of only one witness---Nothing was on record as to whether alleged donor and witness thumb marked the Rapt Roznamcha or not---Said Rapt Roznamcha did not have National Identity Card number and signature of Girdawar Circle and endorsement of revenue officer---Ingredients of gift i.e. offer, acceptance and delivery of possession were not mentioned in the said Rapt Roznamcha---Entry made in Rapt Roznamcha could not be relied upon and same was not sufficient and reliable proof of gift transaction---Defendant/donee being beneficiary of gift mutation was bound to have expressly pleaded that when, where and in whose presence his father offered him the transfer of suit land by way of gift and had independent advice at that time and he (donee) had accepted his offer in presence of witnesses and possession was delivered to him of gifted suit land---Impugned gift mutation had been attested to deprive step brothers and sisters of defendant---Burden of proof was upon donee to prove ingredients of gift vis-à-vis independent advice at the time of alleged transaction of gift which he had failed to discharge---No valid gift had been proved---Courts below had failed to appreciate the evidence on record in its true perspective---Findings recorded by the Courts below were result of mis-reading and non-reading of evidence which were set aside---Suit filed by the plaintiffs was decreed---Revision was allowed in circumstances.

Muhammad Asqhar and others v. Hakam Bibi through L.Rs. and others 2015 CLC 719; Khushi Muhammad v. Liauqat Ali PLD 2002 SC 581 and Mst. Kalsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135 rel.

(b) Pleadings---

----No one could travel beyond the scope of his pleadings.

Aman-ullah-Khan Khattak for Petitioner.

Mukhtiar Ali Khan Khattak for Respondent.

2017 M L D 1548

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan and Syed Muhammad Attique Shah, JJ

RAHEEL---Petitioner

Versus

The STATE---Respondent

W.P. No.1242-A of 2016, decided on 20th April, 2017.

Khyber Pakhtunkhwa Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Arts. 9 & 199---Constitutional petition---Detention---Petitioner was ordered to be detained for 30 days on the grounds of prejudicial to public order, safety, tranquility, constant threat to law and order of the area by indulging in activities to diffuse writ of government---Validity---Grounds on the basis of which detention order of a person could be passed/issued, if had support of sufficient cogent material, would only then satisfy issuance of preventive order---Material/evidence must be of such a nature and character to persuade and satisfy and ordinary prudent person to justify order of preventive detention---Deputy Commissioner, in the present case had not applied his independent mind to alleged material produced before him rather he had mechanically issued order in question on a letter---Such order was untenable under law---Letter in question as well as preventive detention order were violative of Art. 9 of the Constitution---High Court set aside preventive detention order passed by Deputy Commissioner as it was illegal, unlawful and without application of an independent mind---Constitutional petition was allowed in circumstances.

PLD 2003 SC 442; PLD 2016 Pesh. 89; 2004 MLD 1541 and 2004 PCr.LJ 1604 rel.

Sajjad Afzal Khan for Petitioner.

Additional Advocate General for the State.

2017 M L D 1608

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

SAID JABAR---Petitioner

Versus

HABIB-UR-REHMAN and others---Respondents

C.R. No.1493-P of 2005, decided on 20th January, 2017.

Civil Procedure Code (V of 1908)---

----O. XIV, R. 5---Issue, framing of---Scope---If specific issue was required to be framed but was left unframed, same would be miscarriage of justice---High Court framed the issue and remanded the matter to the Trial Court---Trial Court was directed to proceed further giving parties opportunities to produce their evidence---Judgments and decrees passed by the Courts below were set aside---Revision was allowed in circumstances.

Mumtaz Ali v. The State 2013 YLR 1622; Mubarak Ali Shah v. Muhammad Khan and 3 others 2014 CLC 1117; Taweez Badshah v. Abdul Nawaz 2012 CLC 752; Habib Ullah v. Azmat Ullah PLD 2007 SC 271; Muhammad Farooque Jagerani v. Abdul Sattar and others 1997 MLD 903; Muhammad Jamil and others v. The State 2000 YLR 231; Shah Muhammad and 3 others v. Abdul Samad and 6 others 2014 CLC 1609 and Shehzad Muzaffar and another v. Masail Khan Abbasi 2003 MLD 240 rel.

Jehanzeb Bunery for Petitioner.

Sabir Shah, A.A.G. for the Official Respondents and Messrs Mukaram Shah Khan and Abdul Bar Khan for private Respondents.

2017 M L D 1707

[Peshawar (Abbottabad Bench)]

Before Qalandar Ali Khan, J

Syed NAIMAT SHAH and others---Petitioners

Versus

MUSHTAQ ALI TAHIR KHELI---Respondent

C.R. No.157 of 2007, decided on 11th May, 2016.

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

----O. VII, R. 2---Limitation Act (IX of 1908), Arts. 113 &115---Money suit---Limitation---Agreement to conduct cases by legal practitioner---Breach of contract---Suit for recovery of fee---Limitation---Plaintiff filed recovery suit on account of legal fee for conducting cases which was decreed---Validity---Limitation for performance of contract was three years either from the date fixed for performance or if no such date was fixed, in that case when the plaintiff had notice that performance was refused---Plaintiff served letter on the defendants which was not only acknowledged by the defendants but they also showed inability to pay legal fee in their written statement---Present suit was within time---No illegality or legal infirmity had been pointed out in the impugned judgments passed by the courts below---Revision was dismissed in circumstances.

AIR (29) 1942 Calcutta 444; AIR 1933 Allahabad 417; AIR 1930 Madras 132; 2015 YLR 1964; 2006 YLR 711; 2002 YLR 1369; PLD 2008 Lah. 42; PLD 2012 Sindh 293; 2006 PTD 700; 2006 YLR 729; 2000 SCMR 1126; 2011 CLC 284 and 2005 SCMR 975 rel.

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

----Art.115---Breach of contract---Suit for compensation---Limitation---Suit for compensation for breach of contract could be filed within three years to be reckoned when contract was breached.

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

----S. 28---Agreement in restraint of legal proceedings---Scope---Agreement/contract that no fee would be charged for conducting cases would be void.

AIR 1933 Allahabad 417 rel

Iqbal Ahsan Tahir Kheli for Petitioner.

Respondent in person.

2017 M L D 1767

[Peshawar]

Before Ikramullah Khan, J

MUMTAZ MOHAMMAD and others---Petitioners

Versus

KHURSHID through L.Rs. and others---Respondents

Civil Revision No.76-P with C.M. No.96-P of 2013, decided on 24th March, 2017.

Khyber Pakhtunkhwa Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 26, 18 & 18-A---Specific Relief Act (I of 1877), S. 42---Civil Procedure Code (V of 1908), O. VII, R. 11---Consolidation proceedings---Suit for declaration---Maintainability---Bar on civil court to entertain suit against consolidation proceedings---Scope---Defendants moved application for rejection of plaint which was accepted---Suit property had been allotted to the defendants in consolidation proceedings---Plaintiffs challenged consolidation proceedings and mutation attested in favour of defendants before the civil court but failed to obtain any favourable order---District Collector issued warrant of possession in favour of defendants which had been challenged by the plaintiffs in the present suit---Civil court could not entertain any suit or application against the orders passed by the Revenue Officer during course of consolidation---Parties should not be allowed to approach different forums one way or the other with regard to same cause of action which had already been entertained and decided by a competent court of law---Matter in dispute had already been resolved by a competent forum which could not be re-agitated in civil court---Revision was dismissed in circumstances.

Muhammad Taif Khan for Petitioner.

Muhammad Shabir Khan for Respondent.

2017 M L D 1791

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ayub Khan, J

RAFIQ-UR-RAHMAN---Petitioner

Versus

The STATE and another---Respondents

Cr.M.B.A. No.99-D of 2017, decided on 30th March, 2017.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Court of Session had cancelled the bail granted to accused by the Magistrate---Order of cancellation of bail was passed in absence of accused and there was nothing on record to show that accused was ever summoned or his sureties were put on notice---Cancellation of bail by the court of session was not proper in the absence of accused---Order accordingly.

Muhammad Salim Marwat for Petitioner.

Adnan Ali Asstt: A.G. for the State.

Sh. Iftikhar-ul-Haq for the Complainant.

2017 M L D 1842

[Peshawar (Abbottabad Bench)]

Before Qaiser Rasheed Khan and Qalandar Ali Khan, JJ

Dr. FARHAT NAZ---Petitioner

Versus

CHAIRMAN SELECTION/PROMOTION BOARD, AYUB TEACHING HOSPITAL, ABBOTTABAD and others---Respondents

W.P. No.487-A of 2012, decided on 13th December, 2016.

(a) Pakistan Medical and Dental Council Regulations, 2011---

----Reglns. 20 & 21---Constitution of Pakistan, Art. 199---Constitutional petition---Appointment of Senior Registrar Medicines (BPS-18)---Marks of experience---Scope---Five marks of experience were awarded to the respondent and he was appointed as Senior Registrar Medicines---Validity---Respondent was Lecturer Pharmacology in a separate Department of Pharmacology---Experience gained in Pharmacology could not be counted for appointment/ promotion as Senior Registrar Medicines---Award of five marks to the respondent by the Selection Board on account of two years experience after postgraduate qualification was not justified under Regln. 20 of Pakistan Medical and Dental Council Regulations, 2011---Petitioner should not be deprived of her two years experience as Junior Registrar in Medicines---Petitioner had availed earned and maternity leave on full average pay---Petitioner should be treated on duty during said period---Said period could not be excluded from the experience as Junior Registrar Medicines---High Court in constitutional jurisdiction could not perform the function of Selection Committee in service matter---High Court observed that another vacancy of Senior Registrar Medicines was available and authorities should accommodate the aspirants according to their merit under the relevant rules---Constitutional petition was disposed of in circumstances.

2008 SCMR 960; PLD 1956 (WP) Pesh. 121 and 2005 PLC (C.S.) 645 rel.

(b) Administration of justice---

----Employee could not be penalized for a fault/default on the part of an institution/department/authority.

Mushtaq Ali Tahirkheli for Petitioner.

Fawad Saleh and Tahir Hussain Lughmani and Muhammad Naeem Abbasi, A.A.G. for Respondents.

2017 M L D 1871

[Peshawar (Bannu Bench)]

Before Ishtiaq Ibrahim, J

MATIULLAH---Petitioner

Versus

Mst. SADDIQA---Respondent

C.R. No.169-B of 2016, decided on 16th March, 2017.

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

----S. 10---Family Courts Act (XXXV of 1964), S. 5 & Sched.---Suit for recovery of cash and gold ornaments---Contesting parties being spouses---Jurisdiction of civil court/Family Court---Scope---Plaintiff/ husband contended that defendant/wife had taken away cash and gold ornaments which were to be recovered---Trial court dismissed the suit being a family matter---Validity---Witnesses of plaintiff being close relatives, father and uncle of plaintiff were interested witnesses who were not reliable in the eyes of law---Father of the plaintiff, during cross-examination, had admitted that respectables were sent to re-union of the wife with the plaintiff and they were not informed about taking away gold ornaments and cash by the defendant from their house---Similarly, uncle of the plaintiff during cross-examination stated that he visited the house of father of defendant/wife many times to take her back to the house of plaintiff but he neither talked to the defendant nor her father about gold ornaments and cash amount---Contention of plaintiff was not sustainable that the trial was not conducted by the Trial Court under the Civil Procedure Code, 1908---Solitary misdiscription in the judgment i.e. where the Presiding Officer described himself as Judge Family Court besides Civil Judge, would be of no effect upon the legality of trial; such being a misdiscription which was demonstrably incorrect, falling within the maxim falsa demonstratio non nocet---Validity of the proceedings were not effected in circumstances---Revision petition was dismissed accordingly.

Pio Gul v. The State PLD 1960 SC (Pak) 307 ref.

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

----S. 115---Specific Relief Act (I of 1877), S. 10---Family Courts Act (XXXV of 1964), S. 5 & Sched.---Suit for recovery of cash and gold ornaments---Contesting parties being spouses---Jurisdiction of civil court/Family Court---Scope---Revisional jurisdiction---Scope---Revisional jurisdiction was very limited where High Court could not set aside the concurrent findings of facts recorded by courts of competent jurisdiction nor it could upset the same even if on appreciation of evidence a different view could be formed unless such findings were shown patently illegal, without jurisdiction or the result of bare misreading and non-reading of material evidence, based on conjectural presumptions or erroneous assumption---No such infirmity had been pointed out by the petitioner in the impugned judgments, which might warrant interference of High Court.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 ref.

2017 M L D 1884

[Peshawar]

Before Lal Jan Khattak, J

AFSAR ALI---Petitioner

Versus

The STATE and another---Respondents

Cr.M.B.A. No.1554-P of 2017, decided on 31st July, 2017.

Criminal Procedure Code (V of 1898)---

----S.497---Emigration Ordinance (XXVII of 1979), Ss.18(b) & 22(b)---Passports Act (XX of 1974), S. 6---Fraudulently inducing to emigrate, receiving money etc. for providing foreign employment, offence relating to passport---Bail, grant of---Further inquiry---Complainant had alleged that accused received money from him and others for sending them abroad---Agreement between accused and complainant was on record whereunder accused was to handover two cheques and certain amount to complainant---Execution of said agreement was not denied by the complainant, matter in question, therefore, was one of civil nature---Allegation of receiving amount from complainant by accused was in the year 2015 while FIR was lodged in the year 2017---Court while deciding bail application would look into the offence which prescribed a lesser punishment which in the present case could be fine only---Tentative assessment of available record had led to believe that involvement of accused qua his guilt in crime needed further inquiry in terms of subsection (2) of S. 497, Cr.P.C.---Bail was granted accordingly.

Arshad Hussain Yousafzai for Petitioner.

Jehan Afsar for the Complaiant.

Abdul Latif, A.A.G. for the State.

2017 M L D 1922

[Peshawar (Mingora Bench)]

Before Muhammad Younis Thaheem, J

AZHAR SULTAN alias TIPU KHAN---Appellant

Versus

YOUSAF KHAN and 11 others---Respondents

R.F.A. No.33-M with C.M. No.412-M of 2015, decided on 21st October, 2016.

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

----O. VII, R. 11---Plaint, rejection of---Formal defect---Effect---Plaint was rejected due to formal defect in the suit---Validity---Trial Court was to direct the plaintiff to either withdraw his suit to remove formal defects or had provided an opportunity to amend the plaint---Trial Court had not exercised its jurisdiction vested in it---Order passed by the Trial Court being without lawful authority, without just cause or reason was void---Plaint, prima facie, not only disclosed cause of action but plaintiff had shown locus standi to file the present suit---Plaint could not be rejected due to formal defects or wrong fixation of suit value or seeking improper relief or non-fixation of court-fee---Rejection of plaint was against the mandate of law in circumstances---Trial Court was to frame preliminary issue in this regard---Orders passed by both the Courts below were set aside---Case was remanded to the Trial Court with the direction to return plaint to the plaintiff to file a fresh suit with proper pleadings, reliefs, suit valuation by fixing Court-fee under the law---Appeal was allowed accordingly.

Ghulam Abbas v. District Judge Jhang and 10 others 2004 CLC 1193 and Noor Muhammad v. Additional District Judge Mianwali and 2 others 2009 CLC 1042 rel.

(b) Void order---

----No limitation against void order.

PLD 2007 SC 262 rel.

Muhammad Amin Khattak Lachi for Appellant.

Fazal Malik, Sultan Ali Shah and Husn-ul-Maab for Respondents.

2017 M L D 1957

[Peshawar]

Before Ishtiaq Ibrahim, J

MUHAMMAD BILAL ANWAR SHAKIR---Petitioner

Versus

The STATE---Respondent

Cr.M/BA. No.1437-P of 2017, decided on 31st July, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 409, 419, 420, 468 & 471---Foreign Exchange Regulation Act (VII of 1947), Ss. 8 & 23---Criminal breach of trust by banker, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Bail, grant of---Further inquiry---Allegation against accused was that he, alongwith co-accused persons, used account of a friend with active connivance of officials of a Bank and fraudulently transferred amount of Rupees twenty million to their account---Only evidence collected by prosecution was that Rupees one million was transferred from account of co-accused to the account of accused; Trial Court would determine as to whether said transfer was for the reason that accused was privy to offence or there was some bona fide transaction---Statement of accused recorded under S. 164, Cr.P.C. did not disclose him as an accused or witness---Accused was not a public servant, clerk or agent hence applicability of the charges S. 409, P.P.C. would be seen at trial---Rest of the charges against accused did not fall within prohibitory clause of S.497 Cr.P.C.---Case of prosecution also rested on documentary evidence which was in possession of prosecution---Bail was granted accordingly.

Saeed Ahmad v. The State 1996 SCMR 1132; Hakim Khan v. The State 2013 SCMR 699 and The State v. Syed Abdul Qayum 2001 SCMR 14 rel.

Arshad Hussain Yousafzai for Petitioner.

Mujahid Ali, A.A.G. for the State.

Amir Javed for the Complainant.

2017 M L D 2030

[Peshawar]

Before Nisar Hussain Khan, J

MUHAMMAD RASHID and 6 others---Petitioners

Versus

AKHTER ALI KHAN and 15 others---Respondents

C.R. No.904-P of 2014, decided on 28th November, 2016.

Contract Act (IX of 1872)---

----Ss. 214 & 220---Power of attorney---Gift by attorney---Scope---Gift, ingredients of---Proof---Contention of plaintiff was that gift mutations on behalf of attorney were wrong and illegal---Suit was decreed by the Trial Court but Appellate Court dismissed the same---Validity---Attorney had gifted the suit land in favour of his kith and kins---Defendants being beneficiaries of gifts were required to establish valid gift by proving offer, acceptance and delivery of possession---Impugned mutations were not entered on the instructions of donor (principal) rather same were entered by the attorney and later on attested in absence of donor (Principal)---Conditions required for a valid gift were lacking in the present case---Alleged gifts were invalid which did not create any right in favour of donees---Power-of-attorney contained so many deeds to be performed by the attorney---Attorney before transferring the suit property in favour of his kith and kins was required to have fresh instructions from the principal---Gift was a personal act of donor which could only be performed by himself and none else---Alleged transaction had become suspicious as donor had not gifted the suit property himself---If agent had failed to do so then principal could repudiate the transaction so entered by his agent without obtaining his consent which was disadvantageous to him---General power of attorney contained numerous events for which principal had authorized the attorney including transfer of property---Power of attorney was not specific for the purpose for which it had been used by the attorney---Principal even if had given the authority to gift his property yet there was no reference that it should be gifted to the beneficiaries of the suit mutations and that too after long period of 17/18 years---Principal should have been consulted and permission should have been sought for the gift after delay and passage of such a long time---Power of attorney was executed on 27-03-1984---If intention of principal was to gift his property to the beneficiaries of suit mutations, the same would have been gifted in 1984---Purpose of power-of-attorney was not to gift the suit property---Attorney had used the power of attorney for personal gains---Appellate Court had fallen in error in appreciation of evidence for setting aside the well reasoned judgment of Trial Court---Impugned judgment passed by the Appellate Court was based on mis-reading and non-reading of evidence which was set aside---Suit filed by the plaintiff was decreed as prayed for---Revision was allowed in circumstances.

Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal heirs and others PLD 1985 SC 341 and Mst. Naila Kausar and another v. Srdar Muhammad Bakhsh 2016 SCMR 1781 rel.

Khalid Mahmood for Petitioner.

Muhammad Anwar for Respondents Nos. 1 to 4.

Javed Ail Asghar for Respondents Nos. 6 to 13.

Amir Sultan for Respondents Nos. 15 and 16.

2017 M L D 2044

[Peshawar (D.I. Khan Bench)]

Before Muhammad Ayub Khan, J

MUHAMMAD NAEEM---Appellant

Versus

The STATE and another---Respondents

Cr.A. No.77-D of 2016, decided on 13th June, 2017.

Penal Code (XLV of 1860)---

----Ss. 336, 337-N & 337-R---Causing Itlaf-i-Salahiyyat-i-Udw---Appreciation of evidence---Sentence, modification of---Prosecution case was that the accused was wandering in the street while armed with dagger; complainant forbade the accused of his wandering in the street due to which, he attacked on the complainant with dagger, as a result of which, he sustained injury on his left arm---Motive for the occurrence was stated to be money dispute---Ocular account was furnished by the witnesses including complainant---Record showed that occurrence took place in a broad-day-light at 10.00 a.m.; complainant charged single accused in a promptly lodged FIR at 10.15 a.m. for giving dagger blow to him due to which he sustained injury on his left elbow---Injured/complainant had reiterated his version in the statement as mentioned in the FIR---During the cross-examination, nothing favorable to the accused could be brought on record---Witness who had rescued the complainant and witnessed the occurrence, remained consistent about events of the occurrence---Said witness was mohalladar of the complainant and knew the accused prior to the occurrence---Statement of the said witness were found truthful and confidence inspiring---Defence failed to shatter depositions of witness and to point out any contradiction in his statement---Evidence available on record transpired that prosecution had been able to bring home charge of dagger blow against the accused---Record showed that accused was not previous convict, habitual or hardened, desperate or dangerous criminal, therefore as per S. 337-N Penal Code 1860, award of three years imprisonment as ta'zir to the accused was legally incorrect which was set aside---Medical evidence and the ocular account were in juxtaposition; discharge slip of the complainant showed the nature of injury as itlaf-i-Salahiyat-i-Udw---Permanent impairing of the power of one hand was proved---Circumstances proved that complainant had lost his one hand, therefore under S. 337-R, Penal Code 1860, complainant/victim was entitled to Arsh equivalent to one half of diyat amount---Sentence of accused was modified accordingly.

Noor Gul Khan Marwat and S., Tehsin Alamdar for Appellant.

Adnan Ali A.A.G. for the State.

Saif-ur-Rehman Khan for the Complainant.

2017 M L D 2064

[Peshawar]

Before Lal Jan Khattak and Abdul Shakoor, JJ

Sheikh ARIF UR REHMAN and another---Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION KHURAM, TEHSIL AND DISTRICT KARAK and 2 others---Respondents

W.P. No.1019-P of 2017, decided on 24th July, 2017.

Constitution of Pakistan---

----Art.199---Criminal Procedure Code (V of 1898), Ss. 561-A, 249-A & 265-K---Constitutional petition seeking quashment of FIR---Alternate remedy---Scope---Prosecution case was that the petitioners had been charged for enticing the daughter-in-law of the complainant with criminal intent---FIR showed that petitioners had been charged for the commission of cognizable offence---Question as to whether the petitioners had any nexus with the commission of offence or not would be thrashed out by the trial court after recording evidence and at such a stage, it was not fair to quash the FIR, which was under investigation and was at preliminary stage---Besides availing the constitutional remedy, there was also alternate remedy for the petitioners by making application under S. 249-A or 265-K, Cr.P.C.---Such remedy could be availed after submission of challan or by invoking the jurisdiction of competent court under S. 439, Cr.P.C. or by invoking jurisdiction of High Court under S. 561-A, Cr.P.C., if required---Petitioners without availing the appropriate remedy had invoked the constitutional jurisdiction of High Court---Quashment of FIR at that stage would cause injustice/prejudice to the case of complainant party---Constitutional petition bereft of any merit, was dismissed in circumstances.

Muhammad Sadiq Khan for Petitioner.

Syed Qaiser Ali Shah, A.A.G. for Respondent.

Muhammad Ismail Khalil for Respondent No.3.

2017 M L D 2079

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

FAZAL SUBHAN and another---Petitioners

Versus

CHAMNAY and another---Respondents

C.R. No.22-M with C.M. No.48-M of 2017, decided on 25th April, 2017.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Amendment of plaint---Principles---Plaintiff applied for amendment in plaint on the basis of agreement claiming to have discovered during pendency of suit---Dismissal of application for amendment---Status of discovered agreement---Effect of such a document on cause of action and prayer---Plaintiff/petitioner contended that his application to amend plaint was just to add prayer in wake of revelation of agreement in his favour by his late father and that proposed amendment would not change the nature of the suit---Respondents/defendants contended that two courts below were justified as application of the plaintiff was meant to cover loop holes which introduced a new cause of action---Validity---Plaintiff had intended to amend the plaint by insertion of an added prayer under the same cause of action by referring to the agreement by his late father in his favour---Amendment could even be allowed by court where trial was in progress, if not allowed, even in second appeal---Prayer could be asked for in a revision before the revisional court---When an appeal before Supreme Court was preferred amendment could be allowed for the consideration---Amendment, in the present case, was without any alteration of the character of the suit---Mere introduction of fresh matter through amendment which did not alter nature of the suit was not to be refused where the parties seeking amendment had acted in good faith and mala fide was not the intention behind such amendment---Amendments could be sympathetically considered even if counsel drafting the case had left over introducing a matter which must go to the root of the cause of the case---Law permitted the amendment of plaint by insertion of the reference to previous agreement---Specific issue was to be framed regarding declaration of the status of the agreement as to whether same pertained to any type of alienation or transferring the rights by father of the petitioner in favour of his son or on account of sale or by way of gift, if so, the plaintiff had cause of action---Impugned orders were set aside---Revision petition was allowed accordingly.

Masood-ur-Rahman for Petitioner.

Bashir Ahmad for Respondents.

2017 M L D 7

[Balochistan (Sibi Bench)]

Before Muhammad Kamran Khan Mulakhail, and Ghulam Mustafa Mengal, JJ

BHOORAL KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(s) 86 of 2013 and Murder Reference No.(s) 14 of 2002, decided on 24th July, 2014.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.19(10), (12)---Constitution of Pakistan, Arts.9, 10 & 10-A---Qatl-i-amd---Appreciation of evidence---Conviction in absentia---Right to fair trial---Accused after having been declared proclaimed offender, had been sentenced to death and application filed by accused under S.19(12) of the Anti-Terrorism Act, 1997, was also dismissed by the Trial Court---Section 19(10) of Anti-Terrorism Act, 1997, which dealt with trial of a proclaimed offender in absentia, stipulated and made it mandatory for the Trial Court to conduct an inquiry in respect of deliberate absence of accused; without fulfilling the direction made therein, no conviction could be sustained---Accused, who was sentenced to death in absentia, could not be arrested and his non-bailable perpetual warrants remained in field---Accused, was subsequently arrested and he submitted application under S.19(12) of Anti-Terrorism Act, 1997, which was dismissed vide impugned order---Contention of accused was that he did not present himself before the court due to lack of information, and not to evade justice deliberately as according to him he was not aware of the fact that a case had been lodged against him---Accused was not convicted according to law, because the pre-requisites of fair trial were not provided to him---Procedure adopted by the Trial Court, was not in accordance with law and Arts.9, 10, 10-A of the Constitution---Right of fair trial was guaranteed under Art.10-A of the Constitution---Trial Court having passed the conviction and recorded the sentence of accused in hasty manner, without appreciating the evidence on record, conviction and sentence of accused, could not be sustained---Impugned judgment passed by the Trial Court was set aside and case was remanded to the Trial Court for trial fresh.

Arbab Khan's case 2010 SCMR 755 and Mir Ikhlaq Ahmed v. The State 2008 SCMR 951 ref.

(b) Constitution of Pakistan---

----Art. 189---Decision of Supreme Court, binding force of---Judicial dignity demanded that every judgment delivered by the Supreme Court, irrespective of the size of the author bench, deserved and received the highest respect; while any deviation thereof would amount to clear violation of the mandate of Constitution---Determination and deposition made by the Supreme Court, could neither be bypassed, nor the validity and unity thereof be examined by the High Court; as the same had binding force and effect---Right duly recognized by the judgment of the Supreme Court, had to be given effect---Any decision of Supreme Court, to the extent it decided a question of law, or was based upon or enunciated principle of law, would be binding on all other courts in Pakistan.

Hasnain Iqbal and Attaullah Langove for Appellant (in Criminal Appeal No.(s) 86 of 2013).

Abdullah Kurd for the State (in Criminal Appeal No.(s) 86 of 2013).

Abdullah Kurd for the State (in Murder Reference No.(s)14 of 2002).

Hasnain Iqbal and Attaullah Langove for Respondent (in Murder Reference No.(s)14 of 2002).

2017 M L D 158

[Balochistan]

Before Jamal Khan Mandokhail, J

Mir SHAH NAWAZ MARRI---Petitioner

Versus

SUB-REGISTRAR, QUETTA and 2 others---Respondents

Civil Revision No.121 of 2015, decided on 10th October, 2016.

Specific Relief Act (I of 1877)---

----S. 39---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for cancellation of power of attorney---Document, proof of---Principles---Contention of defendant was that plaintiff with her free will and consent signed the power of attorney---Suit was decreed concurrently---Validity---Presumption of correctness was though attached to a registered document but when its execution was denied then sanctity of said document would depend upon the quantum and quality of evidence---Two attesting witnesses must be produced before the Court to prove the execution of a document which was required to be attested---Marginal witnesses were not only required to identify the signature of the executant upon the document but also prove that the signature upon the document was put by the executant in their presence---Plaintiff did not sign the power of attorney in front of Sub-Registrar---Sub-Registrar was bound to verify from independent source that the lady who was brought by the defendant on the day of alleged attestation was actually the plaintiff and signature upon the document was hers---Sub-Registrar who got registered the power of attorney did not appear before the Trial Court as a witness to confirm on oath that plaintiff did appear before him for the registration of document---Author of power of attorney had also not been produced by the defendant in support of his contention---Defendant had not only failed to prove the execution of power of attorney by the plaintiff but had also failed to prove the signature on the said document---No authenticity was attached to the power of attorney---Evidence available before the Trial Court was enough to pass a just and proper judgment---Trial Court had rightly declined to send the specimen of plaintiff to the expert in circumstances---Plaintiff had succeeded in proving that power of attorney was void whereas defendant had failed to prove its lawful execution---Judgments and decrees passed by the courts below were based on law and facts---No illegality, irregularity or jurisdictional defect was pointed out in the concurrent findings recorded by the courts below---Revision was dismissed in circumstances.

Syed Ayaz Zahoor for Petitioner.

Ghulam Mustafa Butt for Respondents.

2017 M L D 288

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

SHAHID DADA---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.15 of 2016, decided on 8th September, 2016.

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

----S.9(c)---Criminal Procedure Code (V of 1898), S.103---Possession of narcotic substance---Appreciation of evidence---Non association of private person as witness---Validity---Contraband was allegedly recovered from a populated area of the locality---Prosecution witnesses were police officials---No private witness had been associated by the Investigating Officer at the time of alleged recovery despite having spy information about the offence---Admittedly, Investigating Officer did not call any private witness to associate the proceedings---Manner of recovery therefore had lost its sanctity---Appeal was allowed and conviction and sentences recorded by trial court against accused were set-aside in circumstances.

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

----Ss.9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Possession of narcotic substance---Appreciation of evidence---Benefit of doubt---Applicability of S. 103, Cr.P.C.---Scope---Contraband was allegedly recovered from a populated area of the locality---No private witness was associated in the recovery proceedings, which was violation of S. 103, Cr.P.C.---Fact remained that S. 25 of Control of Narcotic Substances Act, 1997, excluded the applicability of S. 103, Cr.P.C. in narcotics cases, but there should be some plausible explanation on the record that attempts were made to associate any independent witness from the locality---Record had shown that no such efforts/attempts were made by the Investigating Officer---Accused had pleaded his false implication and also denied his arrest from the place of occurrence---Association of an independent witness was necessary to attest the recovery proceedings---Circumstances of the case had created serious doubt in the case of prosecution, benefit of which resolved in favour of accused---Appeal was allowed and conviction and sentences recorded by trial court against accused were set-aside in circumstances.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)---Seizure of narcotic---Chemical analysis Appreciation of evidence---Benefit of doubt---Prosecution had alleged that 03 kilogram charas was recovered from the possession of accused---Delay of about six months and twenty four days in sending the sample of narcotic to Chemical Examiner for analysis-- Said delay was not explained by the prosecution---Alleged narcotic was whether in safe and secure custody during the intervening period had not been explained by prosecution---Exercise of sending the narcotic for analysis was required to be completed within seventy-two hours of the recovery as per law---Such inordinate delay was fatal to the case of prosecution as there was no guarantee that during the intervening period, the sample was not changed, replaced or tampered---Appeal was allowed and conviction and sentences recorded by trial court against accused were set-aside in circumstances.

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

----S.9(c)---Recovery of narcotic substance---Appreciation of evidence---Narcotic recovered in different packets---Chemical examination---Procedure---Charas in three packets was allegedly recovered from possession of accused but only a "small" and unspecified quantity was taken from every packet as a sample and were mixed up and made into one sample of 20 grams which was sent to Chemical Examiner for analysis---As to from which packet the substance was taken for analysis could not be ascertained---Such circumstances cast serious doubt about the veracity of prosecution case, benefit of which would resolve in favour of accused---Appeal was allowed and conviction and sentences recorded by trial court against accused were set-aside in circumstances.

Amir Zeb v. The State PLD 2012 SC 380 and Muhammad Aslam v. The State 2011 SCMR 820 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Many circumstances creating doubt were not necessarily required, single dent in prosecution case was sufficient to acquit the accused.

Muhammad Khair Mengal for Appellant.

Muhammad Younas, Additional P.G. for the State.

2017 M L D 356

[Balochistan (Sibi Bench)]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

BALOCHISTAN BUS OWNERS ASSOCIATION (Regd.) through President---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN HOME AND TRIBAL AFFAIRS through Secretary and 4 others---Respondents

Constitution Petition No.(s) 110 of 2015, decided on 2nd November, 2016.

Constitution of Pakistan---

----Art.199---Constitutional petition---Bus owners---Law and order situation---Time table and schedule of running of coaches---Meeting of bus owners/petitioners and law enforcement agencies was held wherein it was decided that the buses/coaches would run on convoys system escorted by different security agencies---Schedule and timing of convoy had been decided by the participants of the meeting---Petitioners were reluctant to follow the decision taken by their representatives with the authorities---Nothing was on record to support the claim of petitioners that authorities had issued any adverse order and prevented them from plying the coaches/buses after sunset---Claim of petitioners being baseless and having no force, constitutional petition was dismissed.

Abdul Jalil Lehri for Petitioner.

Naseer Ahmed Bangulzai, Additional Advocate General for Respondents.

2017 M L D 513

[Balochistan]

Before Abdullah Baloch, J

ADAM---Petitioner

Versus

The STATE---Respondent

Criminal Revision (T) No. 3 of 2016, decided on 15th November, 2016.

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

----Arts. 3/4---Seizure of contraband substance---Appreciation of evidence---Sentence, reduction in---Prosecution case was that 4792 cans of beer and 62 bottles whisky were recovered from the possession of accused---Statement of all the prosecution witnesses were in line with each other---Defense had not been able to point out any major contradiction on their statements---Prosecution witnesses had correctly narrated the story with regard to recovery of alleged contraband substance from the possession of the accused---Accused had failed to bring on record any motive for his false implication by the prosecution---Report of Forensic Science Laboratory in respect of recovered contraband was in affirmative---Prosecution in circumstances, succeeded to prove the case against the accused---Allegedly 4792 cans of beer and 62 bottle whisky were taken into possession but only one bottle each from the lots of beer and whisky, total two bottles/cans were separated and sent to Forensic Science Laboratory for chemical analysis---Report of Forensic Science Laboratory though was positive but the fact remained that only two bottles were examined by the Chemical Examiner and in the absence of conducting the examination of remaining recovered contraband, it could not be presumed that the same were beer or whisky---Two bottles of contraband could have been considered against the accused person as recovered substance for conviction and sentence---Conviction of the accused awarded by Trial Court in given circumstances was reduced from two years to that of already undergone---Amount of fine and the sentence awarded in default thereof would remain intact.

Ameer Zeb v. The State PLD 2012 SC 380; Fareed Ullah v. The State 2013 SCMR 302 and Shakeel Ahmed v. The State PLD 1998 SC (AJ&K) 31 rel.

Tahir Ali Baloch for Petitioner.

Muhammad Yahya Baloch, Additional P.G. for the State.

2017 M L D 674

[Balochistan]

Before Abdullah Baloch and Muhammad Hashim Khan Kakar, JJ

MOHSIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.269 of 2015, decided on 19th December, 2016.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Allegation against accused was that 87kgs heroin was recovered from the vehicle of accused---Two hundred grams of heroin was separated for chemical analysis and was sent to Forensic Science Laboratory---Recovered substance, after chemical analysis was found heroin---Prosecution failed to prove that accused was the owner or in possession of the vehicle at the time, when recovery was effected from the said vehicle---Nothing had brought on record that the Investigating Officer had approached the concerned Excise Department, from where the verification of the vehicle could easily have been made---Circumstances established that no investigation in such behalf was carried out by the Investigating Officer---Prosecution had failed to establish that after the alleged recovery, the substance so recovered was either kept in safe custody or that the samples drawn from the substance were safely transmitted to the office of Forensic Science Laboratory without being tampered with or replaced while in transit---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by Trial Court.

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

----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6---Possession of narcotic substance---Appreciation of evidence---Chemical Examiner Report---Safe custody of narcotic substance---Proof---Allegation against accused was that 87-kgs heroin was recovered from the vehicle of accused---Two hundred grams of heroin was separated for chemical analysis and was sent to Forensic Science Laboratory---Relevant law on the subject provided two prescribed form, manner and procedure for certification of test or analysis of narcotic substances---Neither any protocol was mentioned in the report nor any test was referred to on the basis whereof the Chemical Expert had concluded that the samples sent for examination contained heroin---Said report did not contain the signatures of two authorized officers as well as the name of police officer, who had taken the contraband to the office of the Chemical examiner---Admittedly, no such police officer had produced to depose about safe custody of the samples entrusted to him for being deposited in the office of Chemical Examiner---Such report, suffered from legal flaws which could not be considered as conclusive proof and was not to be considered as admissible in evidence---Non-conclusive and non-speaking Laboratory Report, which was not compiled according to mandate of law and rules framed thereunder, could not be relied for conviction---Accused was acquitted, in circumstances by setting aside conviction and sentence recorded by Trial Court.

Ikramullah v. State 2015 SCMR 1002 rel.

(c) Administration of justice---

----If procedure prescribed by law was not complied with, that would amount to violation of law.

Ayaz Zahoor for Appellant.

Shaukat Ali Rakhshani, Special Prosecutor, ANF for the State.

2017 M L D 737

[Balochistan]

Before Zaheer-ud-Din Kakar, J

QURBAN ALI and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.(s)125 of 2016, decided on 14th December, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 489-B & 489-C---Using as genuine, forged or counterfeit currency-notes or Bank-notes, possession of forged or counterfeit currency-notes or Bank-notes---Bail, grant of---Further inquiry----Allegation against the accused persons was that forged Saudi Riyal amounting to 35,500 were recovered from their possession---Record showed that it was a case of mere possession and it was yet to be determined that whether the case against the accused persons fell under the provision of S. 489-B or 489-C, P.P.C. and whether accused persons had or not the knowledge that the recovered notes were forged---Attending circumstances suggested that case of prosecution pertained only to the recovery of forged and counterfeit currency notes, which attracted the provisions of 489-C, P.P.C.---Offence did not fall within the prohibitory clause of S.497, Cr.P.C.---Investigation of the case had been completed---Challan had been submitted before the Trial Court and accused persons were no more required for investigation---Accused persons, in circumstances were allowed bail.

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

----S. 497---Bail---Principle---Observations made in bail matter were tentative in nature and same would not affect the final decision of the case

Adnan Ejaz for Applicants.

Abdul Latif Kakar, Addl: P.G. for the State.

2017 M L D 908

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

GOVERNMENT OF BALOCHISTAN through Secretary Board of Revenue and 2 others---Petitioners

Versus

MUHAMMAD NAJMUDDIN MENGAL and others-Respondents

C.M.As. Nos.4 and 7 of 2010, decided on 15th December, 2016.

Land Acquisition Act (I of 1894)---

----Ss. 4, 6, 18 & 54---Appeal---Acquisition of land---Compensation--­Trees---Dispute between both the parties was with regard to number and rate of trees standing on land acquired---Validity---Landowners proved their case to the extent of number of trees but failed to prove their case to the extent of increase of rate and interest---Trial Court wrongly came to the conclusion on the basis of expert's report that land owners were entitled to receive Rs.16199/- per tree as per expert report---Authorities succeeded to prove price of trees and average rate of tree was given to land owners as per prescribed assessment as given to other land owner, who failed to rebut the assessment and also failed to produce experts as per direction of the Supreme Court---Land owner had received their full and final settlement and nothing remained due to the authorities---Appeal was allowed accordingly.

Naseer Ahmed Bangulzai, Additional A.G. for Appellant.

Kamran Murtaza and Najam-ud-Din Mengal for Respondents.

2017 M L D 965

[Balochistan]

Before Zaheer-ud-Din Kakar, J

SHAKAR KHAN and 17 others---Applicants

Versus

The STATE---Respondent

Crl. Pre-arrest Bail Application No.215 of 2016, decided on 4th November, 2016.

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

----S. 498---Pre-arrest bail, grant of---Scope, procedure, and conditions---Grant of bail before arrest was an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives---Pre-arrest bail was not to be used as a substitute or as an alternative for post-arrest bail---Bail before arrest could not be granted unless the person, sought it, satisfied the conditions specified through sub-section (2) of S. 497, Cr.P.C. i.e., unless he established the existence of reasonable ground leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt---Accused must also show that his arrest was being sought for ulterior motive, particularly by the police; to cause irreparable humiliation to him and to disgrace and dishonor him---Such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive from law---In the absence of a reasonable and justifiable cause, person desiring his admission to bail before arrest, must, in the first instance approach the court of first instance i.e., the court of session, before petitioning the High Court for the purpose.

Rana Muhammad Arshad v. Muhammad Rafiq and another PLD 2009 SC 427; Hidayat Ullah Khan's case PLD 1949 Lah. 21 and AIR 1949 Lah. 77 rel.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 147, 148, 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly, act of terrorism---Pre-arrest bail, recalling of---Scope---Allegations on the accused persons were that they attacked and made indiscriminate firing on complainant party---Accused persons fired 3/4 rocket launchers, due to which panic was created in the area---Accused party taken away one member of complainant party and then killed him---Accused persons had not alleged any mala fide or collusion in particular on the part of Investigating Officer/levies to involve them in false case---Record showed that reasonable grounds were available to believe that accused persons along with co-accused persons committed the offence alleged in FIR, which was hit by the prohibitory clause of S. 497(1), Cr.P.C.---Accused persons were not entitled to the grant of concession of pre-arrest bail---Ad-interim pre-arrest bail granted to the accused persons was recalled accordingly.

PLD 2010 Kar. 110; 2012 PCr.LJ 806; 2010 PCr.LJ 310 and 2004 SCMR 1167 ref.

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

----Ss. 497 & 498---Bail---Deeper appreciation or evaluation of evidence at bail stage was not permissible under the law.

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

----Ss. 497 & 498---Bail---Only tentative assessment could be made at bail stage---Detailed assessment or evaluation of evidence was to be left for the Trial Court.

Bashir Ahmed and another v. The State 2007 PCr.LJ 966 and Akhtar Hussain v. The State 2000 PCr.LJ 315 rel.

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

----Ss. 497 & 498---Precedent---Applicability---Decision of one case in the bail matter was hardly helpful to another case---Each case had its own peculiar facts and circumstances.

Najeebullah Kakar for Applicants.

Asad Ali Tareen for the State.

2017 M L D 992

[Balochistan]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

EID MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.229 and Murder Reference No.5 of 2016, decided on 23rd January, 2017.

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

----Ss. 342 & 364(2)---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Appreciation of evidence---Certificate on statement under S. 342, Cr.P.C., non-availability of---Defence had alleged that certificate of statement under S. 342, Cr.P.C. was not given under own hand of the Trial Court and only typed written statement was signed, thus provision of S. 364(2), Cr.P.C. were not complied with, which vitiated the trial---Validity---Record showed that at the end of the statement of accused, certificate signed by the Trial Court showed that statement was recorded in presence and hearing of the court, therefore, provision of S.364(2), Cr.P.C. had been complied with---Mere fact that such certificate was typed and signed by the Trial Court would not vitiate the trial as it would neither prejudice the accused nor affected the case of prosecution.

PLD 2005 Kar. 177 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Allegation against the accused was that he stabbed the deceased with dagger and injured him who succumbed to the injuries---Ocular account was furnished by two witnesses---Eye-witnesses had narrated that there was exchange of hot words between the accused and deceased, who were relieved---Accused in rage went to his shop and brought a knife and hit on the left thigh of the deceased, as a result of grievous injury, deceased fell down and became unconscious---Said witness with the help of inhabitants of the area had taken the deceased to hospital but he succumbed to the injury on way---Other eye-witness supported the version of the witness, who narrated the ocular account---Defence objected that said witnesses were chance witnesses and failed to justify their presence at the spot---Incident took place at public place, therefore, attraction of inhabitants of the area could not be termed by chance---Admittedly, murder was not committed with previous notice to the witnesses for their presence---Evidence of said witnesses could not be rejected on the ground that they were partisan witnesses, however their evidence had to be carefully scrutinized---Both the said witnesses remained consistent on all material particulars of the prosecution case; their testimony was corroborated by the post-mortem report of the deceased, which was consistent with the ocular account as to the weapon, locale of injury and the time of occurrence---Veracity and credibility of said witnesses had been tested through lengthy cross-examination, but nothing came on record to discredit their evidence or their testimony in any manner---Post-mortem report of the deceased showed that deceased had received single stab incised wound on the left thigh---Wound was deep and femoral artery was found cut in two halves---Death of deceased was homicidal in nature and was caused by means of sharp weapon, which damaged vital blood vessels---Circumstances established that medical evidence had fully supported the ocular account furnished by witnesses---Conviction of accused was maintained and sentence of death was altered to imprisonment for life, in circumstances.

Muhamams Ashraf and another v. The State PLD 1977 SC 538 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Non-mentioning the name of witnesses in FIR---Effect---Names of eye-witnesses were not mentioned in the FIR but their statements under S. 161, Cr.P.C. were recorded soon after the incident---No motive or enmity for false implication of the accused had been attributed to the said eye witnesses---Circumstances established that said persons were natural witnesses and they had brought the true facts of the incident---Evidence of said witnesses could not be discarded merely on the ground that their names were not mentioned in FIR---Occurrence took place at public place when the complainant arrived at the place of incident, there was crowd of people and it was not proper for complainant to mention the names of said eye-witnesses in the FIR, which was an omission and would not discredit the testimony of eye-witnesses---Conviction of accused was maintained and sentence of death was altered to imprisonment for life, in circumstances.

Muhammad Mushtaq v. The State PLD 2001 SC 107 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence reduction in---Mitigating circumstances---No background of previous enmity or deep rooted hostility existed between the accused and deceased---Evidence of eye-witnesses revealed that the act of inflicting single knife blow by accused at deceased was preceded by a dialogue between accused and complainant followed by scuffle---Accused inflicted only single blow of knife and did not repeat---Prosecution case was silent with regard to motive---Such factors cumulatively made out a case for mitigation of sentence---Accused was awarded death sentence for murder, which was undoubtedly a normal penalty for the offence, but benefit could be extended in presence of mitigating circumstances---Conviction was maintained, death sentence of accused was altered to imprisonment for life, in circumstances.

Muhammad Aslam Chishti for Appellant.

Abdul Majeed Kakar for the Complainant.

Abdul Karim Malghani for the State.

2017 M L D 1097

[Balcochistan]

Before Zaheer-ud-Din Kakar, J

NAIMATULLAH and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.1 of 2017, decided on 7th February, 2017.

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

----S. 497--- Bail--- Appreciation of evidence--- Scope--- Deeper appreciation of evidence at bail stage could not be gone into---Court was to see as to whether accused persons were prima facie connected with the commission of offence or not.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)(c)---Possession of narcotic substance---Bail, grant of---Case of further inquiry---Quantity of narcotic---Prosecution case was that 1340 grams narcotic substance was recovered from the garage, where the accused persons were allegedly present---Recovery of narcotic substance did not exceed the limit between 900 to 1500 grams, the case being of borderline between clauses (b) and (c) of S.9 of Control of Narcotic Substances Act, 1997, benefit of such situation was to be extended to the accused persons---Accused persons, in circumstances, were entitled for bail---Investigation had been completed and accused persons were no more required further to the police---Further detention would not serve any useful purpose and there was no apprehension of tampering with the prosecution evidence---Accused persons were therefore, admitted to bail.

Ayaz v. The State 2011 PCr.LJ 177; Taj Ali Khan v. The State 2004 YLR 439; Gulab Hussain v. The State 2009 YLR 189 and Mehboob Ali v. The State 2007 YLR 2968 rel.

Muhammad Akram Shah for Applicants.

Abdul Kareem Malghani for the State.

2017 M L D 1143

[Balochistan]

Before Jamal Khan Mandokhail and Zaheer-ud-Din Kakar, JJ

KHUDAI DAD and 2 others---Petitioners

Versus

RAHIMUDDIN and 6 others---Respondents

Crl. Acq. Appeal No.126 of 2012, decided on13th March, 2017.

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

----Preamble, Ss. 4 & 5(2)---Purpose and scope of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005 was a special legislation to protect the lawful owners and occupiers of immovable property from their illegal and forcible dispossession therefrom by the property grabbers---Object and spirit of the legislation was to curb the activities of land grabbers.

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

----Ss. 3 & 4---Illegal possession of property---Complaint and civil suit---Maintainability---Trial Court dismissed the complaint on the ground that civil litigation was already pending between the parties regarding same property---Validity---Facts of the case showed that the version of the parties about ownership of the disputed land was at variance regarding which civil litigation was already pending involving the title of the land---Admittedly, parties were co-sharers of the land in question being legal heirs of the original owner of the land---Claim of the petitioners was that respondents had occupied 50,000 sq. ft. of the land forcibly by constructing a wall---Record showed that petitioners had filed civil suit against the respondents for the same relief of possession of 50,000 sq ft, which they sought in the complaint---Circumstances of the case showed that an attempt had been made by the petitioners to convert a civil dispute between the parties into a criminal case, which was rightly struck down being abuse of process of law by the Trial Court---Civil dispute could not be allowed to be converted into criminal case for implicating co-sharers of the land in question as this would be misuse of the provisions of the Act---Civil court was a competent forum to resolve the said issues after recording evidence---Appeal was dismissed.

Bashir Ahmed v. Additional Sessions Judge, Faisalabad and others PLD 2010 SC 661 rel.

Muhammad Riaz Ahmed for Appellants.

Bahadur Khan Marwat for Respondents Nos.1 to 5.

Ameer Hamza Mengal, D.P.G. for the State.

2017 M L D 1204

[Balochistan]

Before Zaheer-ud-Din Kakar, J

NABI DAD and another---Applicants

Versus

The STATE---Respondent

Cr. Bail Application No.508 of 2016, decided on 4th April, 2017.

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

----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 147, 148 & 149---Qatl-i-amd attempt to commit qatl-i-amd---Pre-arrest bail---Procedure---Concurrent jurisdiction---Person, against whom a case was registered, at the first instance, would approach the original court having jurisdiction i.e. sessions court in the matter of bail before arrest---Said rule was not absolute as depending upon the compelling circumstances of each case, accused could approach directly to the High Court by invoking the concurrent jurisdiction.

Sh: Zahoor Ahmed v. The State PLD 1974 Lahore 256; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Rafiq Ahmed Jilani v. The State 1995 PCr.LJ 785 and Sharnrez Khan v. The State 1999 PCr.LJ 74 rel.

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

----S.498---Penal Code (XLV of 1860), Ss. 302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Pre-arrest bail, confirmation of---Ulterior motive and mala fide intention---Prosecution case was that accused-petitioners along with co-accused armed with firearm weapons, made discriminate firing upon the complainant party, due to which three persons sustained bullet injuries while two persons died at the spot---Admittedly, there was previous enmity between the parties and they had registered several FIRs against each other, in which accused-petitioners were admitted to pre-arrest bail---Complainant nominated the present accused-petitioners along with 21 co-accused persons, but no specific role had been assigned to them---Check-in and check-out report of the accused-petitioners in the High Court, duly verified by the Assistant Security Officer of that Court, were available on record, which showed that accused-petitioners remained present in the premises of High Court in respect of hearing of their criminal cases, on the day of alleged incident---Distance between High Court and place of occurrence was about more than 300 kilometers and it was not possible that after leaving the Court premises, they reached to the place of occurrence and committed the alleged offence---Record showed that accused-petitioners appeared before the Investigating Officer for recording their statements under S. 161 Cr.P.C.---Said act of accused-petitioners showed that they had cooperated with the Investigating Officer for the completion of investigation---Circumstances established that the case of the accused-petitioners required further inquiry in term of S. 497(2) Cr.P.C.---Interim pre-arrest bail granted earlier was confirmed by the High Court in circumstances.

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

----S.498---Bail---Appreciation of evidence---Scope---Deeper appreciation of the record could not be gone into at bail stage---Only tentative assessment was to be made just to find out, as to whether the accused was connected with the commission of offence or not.

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

----S. 498---Bail---Principle---Observations rendered by the High Court while disposing of bail application were not to be considered during trial of the accused.

Shuaib Mehmood Butt v., Iftikhar-ul-Haq 1996 SCMR 1854 rel.

Najeebullah Kakar for Applicants.

Ameer Hamza Mengal, D.P.G. for the State.

2017 M L D 1235

[Balochistan]

Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ

GHULAM MURTAZA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.97 and Murder Reference No.7 of 2007, decided on 2nd January, 2017.

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

----Ss. 302(b) & 364-A---Anti-Terrorism Act (XXVII of 1997), S.7---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Qatl-i-amd, kidnapping or abducting a person under the age of ten, act of terrorism, zina-bil-jabr liable to tazir---Appreciation of evidence---Medical evidence---Medical Officer examined the dead body of the deceased female and opined that "sexual assault was roughly done" that death had occurred due to strangulation with piece of cloth and that death had occurred way book 50/60 days---Medical report was supported by the circumstantial evidence---Appeal against conviction was dismissed.

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

----Ss. 302(b) & 364-A---Anti-Terrorism Act (XXVII of 1997), S.7---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Qatl-i-amd, kidnapping or abducting a person under the age of ten, act of terrorism, zina-bil-jabr liable to tazir---Appreciation of evidence---Circumstantial evidence---Prosecution case was that the accused kidnapped the deceased minor girl, committed zina-bil-jabr with her and done to death---No one witnessed the occurrence except the admission of accused and circumstantial evidence---Accused had made disclosure in the presence of private witnesses about the commission of offence---Consequent upon the disclosure made by accused, Rickshaw used for kidnapping the deceased minor girl, her clothes and seat cover were recovered---Weapon of offence (knife) used in the commission of offence was recovered on the pointation of accused---Accused pointed out the place where after the commission of offence, he had thrown the dead body---Prosecution sent all the incriminating articles to Forensic Science Laboratory and the expert confirmed that there was human blood inside the Rickshaw---Expert confirmed that knife was stained with human blood---Accused got recorded confessional statement---All the prosecution witnesses not only supported the prosecution version but even in cross examination, they could not be shaken---FIR, recovery of dead body of deceased minor girl, confessional statement, disclosure made by accused followed by certain incriminating articles and the medical evidence proved that prosecution had successfully built a chain starting from the foot of the deceased and touching the neck of accused---Neither the accused had denied unnatural death of deceased minor girl nor it was the case of accused that he had been involved in the commission of offence due to previous enmity with police or complainant of the case or he had been substituted with that of the real culprit---Appeal against conviction was dismissed in circumstances.

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

----S.164---Confession---Voluntariness---Scope---Even sole confessional statement could be made basis for recording conviction against the accused if same was truthful, confidence inspiring and qualified the test of voluntariness.

Manjeet Singh v. The State PLD 2006 SC 30; Anwar Khan and another v. The State 2006 SCMR 1343 and Murad Ali v. The State 2007 SCMR 146 rel.

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

----Art. 40---Disclosure of accused---Admissibility---Disclosure if followed by recovery of certain incriminating articles was admissible.

Qadan alias Qadir Bakhsh and another v. The State PLD 2015 Sindh 426 rel.

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

----Ss. 302(b) & 364-A---Anti-Terrorism Act (XXVII of 1997), S.7---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Qatl-i-amd, kidnapping or abducting a person under the age of ten, act of terrorism, zina-bil-jabr liable to tazir---Appreciation of evidence---Weapon of offence was recovered at belated stage---Evidentiary value---Knife, weapon of offence was recovered after more than three months of the occurrence---Record showed that initially for about two months, it was not known to any body that abductee had been killed---Factum of her death for the first time exposed when her dead body was recovered---Statement of medical officer indicated that deceased minor girl was murdered 50/60 days before her medical examination---Accused was arrested later---Accused admitted in the presence of private persons, about the commission of offence and on his disclosure, police recovered the knife, as such, recovery of weapon of offence after 2/3 months of the occurrence was not fatal to the prosecution case---Appeal against conviction was dismissed.

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

----Ss. 302(b) & 364-A---Anti-Terrorism Act (XXVII of 1997), S.7---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Qatl-i-amd, kidnapping or abducting a person under the age of ten, act of terrorism, zina-bil-jabr liable to tazir---Appreciation of evidence---Sentence, quantem of---Accused had abducted a minor girl, thereafter committed zina with her and done her to death---Trial Court had rightly awarded the normal penalty of death sentence---Appeal against conviction was dismissed accordingly.

Hamid Mahmood and another v. The State 2013 SCMR 1314 rel.

Shaukat Ali Rakhshani for Appellant.

Yahya Baloch, D.P.G. for the State.

2017 M L D 1276

[Balochistan]

Before Jamal Khan Mandokhail and Zaheer-ud-Din Kakar, JJ

ABDUL AHAD and 19 others---Appellants

Versus

GOVERNMENT OF BALOCHISTAN through Secretary C & W and others---Respondents

Regular First Appeals Nos.170 to 189 of 2014, decided on 22nd December, 2016.

Land Acquisition Act (I of 1894)---

----Ss. 18, 23 & 4---Land acquisition---Reference to court---Compensation, determination of---Onus to prove---Market value---Reference filed by the landowners was dismissed by the Trial Court---Validity---Offer of compensation by Collector Land Acquisition would prevail unless the claimant before the Reference Court could prove by cogent evidence that said offer was inadequate---Burden of proof would be upon the landowner claiming more compensation than the amount of award---If landowner was not satisfied with the award and had moved for reference then he had to prove that amount of compensation in the award was inadequate---Government as well as any other department for whose benefit land was being acquired had right to produce the evidence to prove the fair compensation that was payable to the landowner---Court while determining compensation was to take into consideration the market value of the land on the date of publication of notification under S.4 of Land Acquisition Act, 1894---Compensation must be determined by reference to the price which willing vendor might reasonably expect to obtain from a willing purchaser---Collector must keep in mind the status of property with reference to place where it was situated, its future prospects towards the development of area, damages which vendor would sustain if portion of his land was acquired and factors that on acquiring such portion of land the utility of his remaining property would impair or improve---Landowners, in the present case, had failed to produce any documentary evidence in support of their claim with regard to market rate prevailing in the locality during acquisition proceedings or before the Trial Court---Verbal assertions carried no weight in the eye of law---Appeal was dismissed in circumstances.

PLD 1960 Lah. 469 and PLD 1976 Pesh. 50 rel.

Rehmatullah Barech for Appellants.

Abdul Latif Kakar, Addl: A.G. for Respondents.

2017 M L D 1344

[Balochistan]

Before Jamal Khan Mandokhail and Zaheer-ud-Din Kakar, JJ

GHULAM QADIR---Petitioner

Versus

Mst. ZAINAB alias ZEENA and another---Respondents

C.P. No.663 of 2014, decided on 21st March, 2017.

Family Courts Act (XXXV of 1964)---

----S.7 & Schd.----Dissolution of marriage on the basis of Khula---Ex parte decree---Scope---Husband (petitioner) contended that wife (respondent) had obtained Khula through court by ex parte evidence which was based on mis-appreciation of law and facts---Respondent contended that petitioner lived abroad who had turned her out from his house fifteen years back---Validity---Requirement of law was to be satisfied that the spouses could not live as husband and wife within the limits prescribed by Allah Almighty---Maintaining limits ordained by Allah by husband and wife---Scope---Limits prescribed by Allah would mean the directions regarding happy social life---In the present case, respondent (wife) through ex parte evidence proved her case that petitioner (husband) had failed to provide maintenance to her and the children for the last 15 years and also had turned her out from his house---Fact that husband and wife had lived separately for a long time without maintenance could be a strong factor to assess as to whether the spouses could live together within the limits ordained by Allah---Family Court had rightly reached to conclusion in favour of grant of Khula on consideration, inter alia, of such factors---Constitutional petition was dismissed accordingly.

Mst. Khursheed Bibi v. Babu Muhammad Amin PLD 1967 SC 97 and Muhammad Rafi v. Attaullah Kauser and others 1993 CLC 1364 ref.

Najam-ud-Din Mengal for Petitioner.

Habib-ur-Rehman for Respondent No.1.

2017 M L D 1407

[Balochistan (Sibi Bench)]

Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ

SHAFI MUHAMMAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.(S)123 and Criminal Revision Petition No.(S)41 of 2015, decided on 21st March, 2017.

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

----Ss. 302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Prosecution case was that accused party had demanded extortion in lieu of renovation work at canal, otherwise to stop the work, accused party made firing upon the complainant party on refusal which resulted in instant death of two sons of complainant and injuries sustained by his driver---Ocular account was furnished by witnesses, including complainant and injured---Complainant reiterated the contents of FIR---Said witnesses not only supported the prosecution version but even during cross-examination, they remained firm and their testimony could not be shaken nor the defence had been able to extract anything favorable to it---Medical evidence was in line with that of ocular account---Evidence of eye-witnesses was in line with that of complainant---Witnesses had supported each other in respect of date, time weapon used in the commission of offence and firing made by the accused persons along with their other companions---Defence failed to point out any material contradiction, omission, improvement and discrepancy in the statements of prosecution witnesses---No misreading, non-reading, illegality or irregularity could be pointed out by the defence either in the investigation or in the impugned judgment---Allegedly, nothing was recovered from the possession of accused persons, but non-recovery of crime weapon neither absolved the accused persons from the commission of offence nor was of any help to the prosecution because accused persons had made their escape good from the spot and later on were arrested from another city---Accused persons had not only been nominated in FIR with specific role of firing but were also identified by the eye-witnesses at the spot---Accused persons by committing double murder of two innocent persons and injured a person had proved themselves to be oppressive and hardened criminals, as such did not deserve leniency---Circumstances had established that prosecution successfully built complete chain starting from feet of deceased and touching the neck of accused by producing tangible and trustworthy evidence---Appeal against conviction was therefore, dismissed.

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

----Ss. 302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Interested witness---Testimony of closely related witness---Reliance---Scope---Prosecution case was that accused party demanded extortion in lieu of renovation work at canal, otherwise to stop the work and on his refusal, accused party made firing upon the complainant party, which resulted in instant death of two sons of complainant and injuries sustained by his driver---Defence had alleged that eye-witnesses being closely related to the deceased persons, their testimony was not above board---Evidence furnished by close relatives, if rang true, straightforward, confidence inspiring and corroborated by other material pieces of circumstantial evidence as well as medical evidence could well be taken into consideration---Appeal against conviction was dismissed in circumstances.

2016 YLR 1166 rel.

Adnan Ejaz and Ali Hassan Bugti for Appellant.

Ahsan Rafique Rana for the Complainant.

Jameel Akhter, A.P.G. for the State.

2017 M L D 1471

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ

MUHAMMAD YOUSAF---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.33 of 2015, decided on 25th April, 2016.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6---Seizure of narcotic---Appreciation of evidence---Report of test or analysis---Scope---Ninety kilograms charas was alleged to have been recovered in three bags from the car of accused, out of which, one kilogram from each bag was separated and sent for chemical analysis---Control of Narcotic Substances (Government Analysts) Rules, 2001 provided two prescribed Forms i.e. Form-1 and Form-2; Form-1 had been prescribed as per Rule-5, which provided procedure and manner for sending the sample to the laboratory and receipt in the laboratory and the examination of sample with reference to the test memorandum and Form-2 described the manner and procedure for certification of test or analysis of narcotics substance---Form-1 was not available on the record; three reports were produced by the prosecution as three parcels of the chars were dispatched for chemical analysis---Said three reports had only one signature of the analyst, whereas Form-2, stipulated signatures of two authorized officers of the laboratory---Signatures of two authorized officers on the chemical analysis report were mandatory under the Rules and it was necessary that the report would contain the necessary protocol and procedure/tests applied for in reaching the conclusion that the sample received by the laboratory was narcotic substance---Report which suffered from legal flaws could not be considered as conclusive proof and would not be termed or considered as admissible in evidence---Non-conclusive and non-speaking laboratory report, which was not compiled according to mandate of law and rules framed thereunder, could not be relied for sustaining the conviction---Accused was acquitted in circumstances, by setting aside conviction and sentence recorded by the trial court.

Ikramullah and others v. The State 2015 SCMR 1002 and Ameer Zaib's case PLD 2012 SC 380 rel.

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

----Ss. 9(c) & 29---Seizure of narcotic---Burden of proof---Section 29 of the Control of Narcotic Substances Act, 1997 provided that, after successfully discharging the initial burden of proof by the prosecution, the accused had to discharge the onus of his innocence through cogent and reliable evidence---Burden could not be shifted to the accused, when the prosecution had either failed to establish the recovery or to prove that the recovered articles were contraband items---Section 29 of the Act did not absolve the prosecution from the primary duty to prove its case beyond any reasonable doubt---Burden on prosecution to prove its case could not be shifted to the accused in an artificial manner---Law contemplated and provided a procedure for doing any act, when such procedure was not complied with, that would amount to violation of law---Circumstances established that, in the present case, prosecution had failed to discharge the onus---Accused was acquitted in circumstances, by setting aside the conviction and sentence recorded by the Trial Court.

Muhammad Shabir Rajpoot for Petitioner.

Shaukat Ali Rakhsani, Special Prosecutor ANF for Respondent.

2017 M L D 1508

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

NAJEEBULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.50 of 2017, decided on 17th April, 2017.

Drugs Act (XXXI of 1976)---

----Ss. 23(1)(c) & 27---Penal Code (XLV of 1860), S. 34---Criminal Procedure Code (V of 1898), S. 412---Selling drugs without license, common intention---Appreciation of evidence---Sentence, modification of---Accused was found selling the drugs recovered from his store/shop without drug selling license---Show-Cause Notice was issued to the accused but the same was not replied---Information report along with complete documents were sent to Provincial Control Board and after grant of sanction for prosecution, the complaint was filed---Record showed that at the time of framing the charge, accused pleaded guilty and placed him at the mercy of Trial Court---Trial Court had awarded conviction for two months to the accused---Validity---By virtue of provision of S. 412, Cr.P.C. accused who pleaded guilty to the charge had no right of appeal against his conviction, however, legality of the sentence passed against him, being harsh, by the Trial Court, could be challenged through appeal---Fact remained that accused was juvenile and a student and suffered the anguish of criminal trial and remained in jail for few days---Accused had voluntarily confessed his guilt and placed him at the mercy of the court, besides, recovered drugs/medicines were not foreign made, forged or substandard---Keeping in view the overall impact of the case and particularly the age of the accused being juvenile and student, sentence of the accused for two months was reduced to that of already undergone by the High Court---Appeal was dismissed with modification of sentence.

Abdul Kabir for Appellant.

Yahya Baloch, Deputy Prosecutor General for Respondent.

2017 M L D 1660

[Balochistan]

Before Jamal Khan Mandokhail and Nazeer Ahmed Langove, JJ

NOOR AHMED and another----Petitioners

Versus

DEPUTY COMMISSIONER, KHARAN and 3 others----Respondents

C.P. No.255 of 2017, decided on 17th May, 2017.

Constitution of Pakistan---

----Art.199---Constitutional petition---Permanent resident certificate---Authorities declined to issue permanent resident certificate to petitioners for their admission in Medical College---Plea raised by petitioners was that their family had been residing in Kharan District (Balochistan) since their forefathers---Validity---Petitioners were able to prove that they were bona fide residents of Kharan and had been residing there since their forefathers---Old Identity Cards of petitioners wherein permanent residence of fathers and mothers of petitioners was shown as of Kharan City which cards were issued in years 1995, 1975 and 1990, besides issuance of local certificate on 24-07-1994 to one of the petitioner's brother---Petition was allowed accordingly.

S.A.M. Quadri for Petitioners.

Muhammad Riaz Ahmed for Respondents.

Shai Haq, A.A.G. for the State.

2017 M L D 1691

[Balochistan]

Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ

Haji MUHAMMAD UMAR---Appellant

Versus

TAJ MUHAMMAD and another---Respondents

Criminal Acquittal Appeal No.98 of 2015, decided on 17th April, 2017.

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

----S. 489-F---Dishonestly issuing cheque---Appreciation of evidence---Appeal against acquittal---Prosecution case was that accused in consideration of sale transaction of buffaloes with connivance of his co-accused/brother, since acquitted, had issued four cheques of different amounts, which were bounced on presentation---Record showed that cheques in question were not presented within due date---Witness/Bank representative stated that cheques were produced after the lapse of two years whereas the maximum period for presentation of the cheques was six months---Iqrarnama was executed between the parties, at the time of sale transaction, but cheques in question were not mentioned therein---Admittedly, there was civil litigation between the parties, initiated by the complainant---False involvement of accused-respondent along with his family members to settle down the civil liability, if any, by filing criminal case could not be ruled out in circumstances---Prosecution failed to prove the guilt of the respondent to the hilt because presenting cheques after the date of its expiry showed mala fide intention only to drag the respondent along with his family members in criminal case---Appeal against acquittal was dismissed in circumstances.

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

----S. 489-F---Dishonestly issuing cheque---Appreciation of evidence---Appeal against acquittal---Presumption---Double presumption of innocence was attached to the order of acquittal---Interference would be declined with the findings of acquittal, unless it was proved that the acquittal order was shocking, ridiculous, artificial or based on misreading and non-reading of evidence---In the present case, the appellant had failed to prove any such defect---Appeal against acquittal was dismissed in circumstances.

Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 rel.

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

----S. 417(2-A)---Appeal against acquittal---Assessment of evidence---Scope---Standards of assessing evidence in appeal against acquittal and that of appeal against conviction were quite different---Assessment of evidence in appeal against conviction was done strictly and in appeal against acquittal, such rigid method of appreciation of evidence was not to be applied as there was already findings of acquittal by the trial court after proper analysis of evidence on record.

Sher Umer Khan v. Khan Pur alias Khaney and 2 others PLD 2015 Pesh. 143 rel.

Mohi-ud-Din Achakzai for Appellant.

Yahya Baloch, D.P.G. for Respondents.

2017 M L D 1778

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

ABDUL WASAY and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.107 of 2014, Criminal Acquittal Appeal No.122 of 2014 and Murder Reference No.3 of 2014, decided on 5th June, 2017.

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

----Ss. 302, 337-A, 337-D, 337-F, 147, 148 & 149---Qatl-i-amd, shajjah, jaifah, ghayr-jaifah, rioting, rioting armed with deadly weapon unlawful assembly---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Ocular account corroborated by medical evidence---Prosecution case was that accused and co-accused equipped with knives attacked upon the complainant party---Accused repeatedly inflicted knife blows upon the son of complainant, due to which, he died at the spot---Co-accused attacked upon brother of complainant and repeatedly inflicted knife blows to his brother, due to which, he sustained injuries---Co-accused persons had beaten the complainant with kicks and fists---Motive behind the occurrence was a landed dispute---Ocular account was furnished by three witnesses including injured persons---Both the injured witnesses in identical manner narrated the story of their departure from the house, their interception by the accused persons near Thana and second attack was launched against them in front of the hospital---Both the said witnesses had attributed specific role to the accused being equipped with knife and inflicting repeated knife blows upon the person of deceased---Said witnesses remained firm in their deposition with regard to date, time, place of occurrence and the manner in which repeated occurrence had taken place---Said witnesses were cross-examined at sufficient length, but nothing advantageously had come on record giving serious dent to the case of prosecution and overall the defence had failed to shake their testimony---Both the parties resided in the same vicinity and had civil and criminal disputes with each other and they knew each other prior to the present incident, thus mistaken identity of the accused with the real culprits was ruled out---Prosecution had established the presence of both the witnesses at the spot and witnessing the crime---Record showed that accused party had also lodged FIR against the complainant and others with regard to the incidents of said date of occurrence, claiming that said occurrence had taken place prior to the incident reported in the present case---Co-accused, nominated in the FIR, had already been acquitted by the Trial Court, thus mitigating circumstances could not be ruled out---Circumstances established that prosecution succeeded in proving the guilt of accused-appellant but in view of mitigating circumstances, his sentence of death was converted into life imprisonment.

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

----Ss. 302, 337-A, 337-D, 337-F, 147, 148 & 149---Qatl-i-amd, shajjah, jaifah, ghayr-jaifah, rioting, rioting armed with deadly weapon unlawful assembly---Appreciation of evidence---Interested witness---Scope---Testimony of closely related witness---Reliance---Witnesses were related to the deceased being his father and uncle---Validity---Mere relationship of witnesses inter se with the deceased was not enough to term them to be interested witnesses.

Irshad alias Shada v. The State 1992 PCr.LJ 2273 rel.

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

----Ss. 302, 337-A, 337-D, 337-F, 147, 148 & 149---Qatl-i-amd, shajjah, jaifah, ghayr-jaifah, rioting, rioting armed with deadly weapon unlawful assembly---Appreciation of evidence---Recovery of crime weapon---Effect---Accused-appellant was arrested at the spot by the Police officials along with the crime weapon (knife)---Statement of recovery witness was impartial and worth credence as he had no motive or grudge to substitute the real culprit with the innocent within short span of time---Recovery of knife corroborated the medical evidence, which showed that the deceased was murdered due to injuries inflicted with sharp weapon---Circumstances established that prosecution proved the guilt of the accused.

Akhter Ali v. State 2011 SCMR 937 rel.

Sohail Ahmed Rajpoot for Appellant (in Cr. Appeal No.107/2014 and for accused/respondents in Criminal Acquittal Appeal No.122 of 2014).

Muhammad Aslam Chishti and Muhammad Akram Shah for the Complainant (in Criminal Appeal No.107 of 2014 and for Appellant (in Criminal Acquittal Appeal No.122 of 2014).

Muhammad Yahya Baloch, D.P.G. for the State.

2017 M L D 1808

[Balochistan]

Before Muhammad Hashim Khan Kakar and Nazeer Ahmed Langove, JJ

JALAL KHAN---Appellant

Versus

ABDUL RAUF and 4 others---Respondents

Criminal Acquittal Appeal No.(s) 101 of 2016, decided on 10th, January, 2017.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Prosecution case was that unknown persons murdered the son of complainant by cutting his neck through sharp edged weapon---Accused/appellant and respondents were implicated in the case after the lapse of eleven months---Validity---Admittedly, the unnatural death of deceased with sharp edged weapon was not a matter of dispute---Record showed that prosecution had introduced two eye-witnesses of the incident after an unexplained delay of eleven months, so inference could safely been drawn that the ocular evidence was managed and said witnesses were planted after due deliberation and consultation---Conduct of said witnesses was against the human nature because they came forward with the claim that they were close relatives of the deceased but at the time of incident, neither they resisted the unnatural death of deceased at the hands of culprits, nor intimated the matter either to the police or complainant timely---Said witnesses even did not shift the dead body of the deceased to the hospital---Record transpired that it was a blind murder with no evidence---Alleged eye-witnesses were planted later on, so reliance on their testimony without strong, independent and unimpeachable corroboration was not safe---Circumstances established that prosecution failed to prove the case beyond reasonable doubt, therefore appeal against acquittal was dismissed accordingly.

Rahat Ali v. The State 2010 SCMR 584 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---Prosecution was duty bound to prove its case against the accused beyond shadow of any reasonable doubt---Benefit of doubt, if any, would be extended in favour of accused.

Adeel and another v. The State 2016 YLR 2212 and Fazal Maula v. The State through Additional Advocate General, Khyber Pakhtunkhwa and another 2016 MLD 42 rel.

Jameel Akhter Ganjani, D.P.G. for the State.

2017 M L D 1894

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

NASEEBULLAH KHAN---Appellant

Versus

ABDUS SAMEE BABAR---Respondent

Regular First Appeal No.123 of 2009, decided on 22nd June, 2017.

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

----S. 2(9), O. XVII, Rr. 1, 2 & 3 & O. XX, R. 4---Decision of court---Term 'decide the suit forthwith'---Scope---Term 'decide the suit forthwith' occurring in O. XXVII, R.3, C.P.C. refers to decision (if there is evidence on record) within meaning of O.XX, R. 4(2), C.P.C. and S. 2(2) & (9), C.P.C.---Decision referred in such provision means judicial determination in accordance with evidence before Court---Provision of O. XVII, R. 3, C.P.C. contemplates that Court has to decide suit which means material and evidence brought on record is to be considered in order to decide suit, if there is no evidence then Court may proceed the same either under R. 2 or R. 1 of O. XVII, C.P.C.

Amanullah Khan and 3 others v. Mst. Akhtar Begum 1993 SCMR 504 rel.

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

----O. XVII, R. 3---Suit for damages---Trial Court closed the right of defendant for producing evidence and suit was decreed in favour of plaintiff---Validity---Defendant filed list of witnesses on 06-08-2009, matter was fixed after two days on 08-08-2009 and then on 15-08-2009, his right of adducing evidence was closed and matter was fixed for 18-08-2009 and 03-09-2009; while closing statement of defendant suit was decreed under O. XVII, R. 3, C.P.C.---Proper opportunity either producing or recording his statement was not afforded to defendant particularly in a case of damages of Rs. 5 billion and suit was decreed without discussing any evidence or giving any reason for the same---High Court set aside judgment and decree passed by Trial Court and remanded case to Trial Court for decision afresh.

Gee Corporation of Pakistan Ltd. and 2 others v. Habib Bank Ltd. PLD 1984 Lah. 421; Provincial Government through Collector, Kobar v. Shabbir Hussain PLD 2005 SC 337 and Kamran Co. and others v. Messrs Modern Motors and another PLD 1990 SC 713 ref.

Mujeeb Ahmed Hashmi for Appellant.

Muhammad Akram Shah for Respondent.

2017 M L D 1941

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

SAEED AHMED and another---Appellants

Versus

Mst. ANWAR SULTANA and 4 others---Respondents

R.F.A. No.137 of 2010, decided on 30th May, 2017.

Specific Relief Act (I of 1877)---

----Ss. 42, 39 & 54---Suit for declaration, cancellation of mutation entries and permanent injunction---Plaintiffs claimed their shares being widow and son of deceased who contracted three marriages---Properties left by the predecessor were incorporated in revenue record as gifted to the defendants by the predecessor---Proportionate share of each legal heir---Scope---Plaintiffs/appellants contended that as per Sharia, they were equally entitled to the legacy of deceased who had never gifted property to the defendants rather defendants managed to transfer revenue record in their favour when the predecessor was paralysed---Respondents/defendants contended that the predecessor willingly gifted the properties in their favour in his lifetime---Validity---Parties did not dispute the immovable property left behind their late predecessor, but however being the legal heirs the appellants/plaintiffs claimed their proportionate shares from the property in question while the respondents/defendants denied their claim with the assertion that the said property was gifted to them by their predecessor during his lifetime---Appellants/plaintiffs, to substantiate their case, produced six witnesses and also recorded statements of their attorneys but none of the witnesses produced and exhibited any relevant document with regard to the property except a witness who exhibited a fatwa bearing the share of distribution of each legal heir and another witness who produced and exhibited copy of domicile of late predecessor containing the names of the parties and yet another witness produced and exhibited copy of FIR which was lodged by predecessor against his son/plaintiff---Perusal of all such evidence did not disclose any relevancy with the property in question even none of the witnesses mentioned a single word with regard to the description and title of disputed property, meaning that evidence produced by the plaintiffs was hearsay---Respondents/defendants produced three witnesses in rebuttal and also recorded the statements of their attorneys---One witness stated to have witnessed the exhibited document which was inteqal executed by the predecessor in the presence of said witness and he also witnessed the entries and signatures made by the predecessor in the name of legal heirs/defendants---Other inteqal in favour of defendants was produced by representative of Tehsildar concerned as defendant witness, and the said document also had the signature and thumb impression of the predecessor in presence of witness who identified the donees---Property in view of said documents though was transferred in the name of respondents, but during the cross-examination the witnesses of defendants showed their ignorance regarding the rest of legal heirs of the predecessor and also admitted in cross-examination every legal heir having its legal share in the legacy of the predecessor---Relationship between the parties and existence of property left behind by the predecessor of the parties as legacy was not disputed and it was admitted fact of law that each legal heir would be entitled for proportionate share from the legacy of his/her predecessor, irrespective of the fact that the same was gifted without the consent of other legal heirs, whereas appellants/plaintiffs disputed the gift executed in the name of respondents in a doubtful manner, even no separate gift deed was executed and registered to prove the genuineness of gift effected by the donor---Appellants, on the other hand contended that their predecessor suffered from chronic disease of diabetes since long and became paralyzed in the year 2006 and was unable to exercise writing, signing and putting thumb impression on any document or capable for movement to visit revenue office; which strengthened the version of appellants that except one defendant witness no other independent witness of identification of the parties to the revenue record was produced---Even otherwise, on comparison of both documents (Inteqal), the thumb impression of the donor significantly differed, while one Inteqal bearing signature and thumb impression of the predecessor without his CNIC number whereas, other Inteqal bearing only thumb impression and CNIC number of the predecessor, but there was no signature on the same---Attorney of the respondents had stated that when the predecessor died none of his legal heirs gathered to participate in his funeral---Prima facie, it appeared that the respondents had illegally and unlawfully transferred the property in their names with connivance of revenue authorities, as such the legacy left behind the predecessor as stated in the plaint was yet to be partitioned amongst his legal heirs as per their proportionate shares in accordance with Sharia---Impugned judgment and decree passed by the Trial Court suffered from material illegalities and irregularities, which was not sustainable and was set aside---Appellants were entitled to receive their shares and possession of the property in accordance with Sharia---Revenue authorities were directed by the High Court to enter the names of the appellants in the revenue record as per their shares---Appeal was accepted accordingly.

Muhammad Akram Shah for Appellant.

Mian Badar Munir for Respondents.

2017 M L D 2068

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Zaheer-ud-Din Kakar, JJ

NASEER AHMED---Petitioner

Versus

KHAIR BIBI and 3 others---Respondents

C.P. No.1083 of 2016, decided on 10th May, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), Ss. 302 & 34---Application for registration of case against petitioner for the murder of daughter of respondent was accepted by Ex-Officio Justice of Peace---Contentions of petitioner was that no evidence was available on record, which could connect him with the commission of alleged offence; that deceased lady herself had taken poison and committed suicide, and that impugned order was liable to be set aside---Validity---Record transpired that SHO concerned submitted report before the Justice of Peace, which showed that the deceased committed suicide---Police Officer on receipt of intimation in respect of suicide should have intimated the matter to the Magistrate empowered to hold inquiry as required by S.174, Cr.P.C. and thereafter proceeded to the spot and investigate the matter in the presence of two or more respectable persons from the place and draw a report of apparent cause of death describing full details, mode and manner of commission of crime and weapon used---Police Officer, in case of doubt was to refer the dead body for examination by the Civil Surgeon---Inquiry report showed that said requirements of S. 174, Cr.P.C. were not fulfilled which were mandatory as per law---Circumstances established that Justice of Peace had passed a well reasoned order, keeping in view the facts and circumstances of the case, thus no interference was required by the High Court---Constitutional petition was dismissed accordingly.

Muhammad Bashir v. Station House Officer, Okara Cantt: and others PLD 2007 SC 539 rel.

Tahir Hussain Khan for Petitioner.

Miss. Shakar Bibi for Respondent No.1.

Mrs. Noor Jehan Khaoor, Additional PG for the State.

2017 M L D 2106

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

RAHIM MUHAMMAD alias ROHI MUHAMMAD---Appellant

Versus

Syed NOOR SHAH---Respondent

Regular First Appeal No.5 of 2015, decided on 29th May, 2017.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Limitation Act (IX of 1908), Art. 110---Suit for recovery of amount---Arrears of rent in wake of previous eviction proceedings under Rent Restriction law---Defendant had denied relationship of landlord and tenant and had challenged maintainability of the suit and suit being time barred---Maintainability of suit for recovery of arrears of rent---Scope---Appellant/tenant contended that exorbitant arrears of rent without any documentary proof of the rate of rent was illegally claimed by the respondent/plaintiff which was not maintainable and also time barred---Respondent/landlord contended that in previous eviction proceedings against appellant/tenant, the rate of rent was determined by Rent Controller which order was .upheld up to the Supreme Court and that the suit was not time barred as recovery of arrears of rent was governed by Art. 110 of Limitation Act, 1908-­Validity---Perusal of evidence indicated that no relevant provision of law had been pointed out by the appellant to indicate that under which law, the filing of suit for recovery of arrears was barred---Rent Controller while passing eviction order had passed comprehensive judgment and decree which was upheld up to the Supreme Court, therefore, the suit filed by the respondent was maintainable---Appellant had also challenged the existence of relationship of landlord and tenant between the parties and rate of rent, which was decided by the Rent Controller so the relationship between the parties existed and the rate of rent had also been determined by the Rent Controller---Findings of Rent Controller on the question of relationship/title, could not be challenged in civil suit---Rent Controller in his order had specifically observed that "the applicants might approach civil court for arrears of rent at the rate of Rs. 16000/- per month from Jane 2007"---Such findings of the Rent Controller were upheld by the High Court and Supreme Court, therefore, the evidence produced in the present case by the respondent with regard to rate of Rs. 16000/- per month and arrears of rent from June 207 was based on proper appreciation of evidence---Objection raised by appellant for limitation was not tenable as Art. 110 of Limitation Act, 1908 was relevant provision with regard to limitation for arrears of rent, which provided period of three years when the arrears became due---Suit for recovery filed by respondent was within time, though, the respondent had claimed recovery of Rs. 1,475,750/-, but the trial court after proper appreciation of evidence decreed the suit only to the extent of arrears of rent total 87 months at the rate of Rs. 16,000/- per month---Findings of the trial court neither reflected misreading or non-reading of evidence, hence warranted no interference by the High Court-Regular first appeal was dismissed accordingly.

Mir Salah-ud-Din v. Qazi Zaheer-ud-Din PLD 1988 SC 221 and State Life Insurance Corporation of Pakistan v. MesSrs Plasticrafters (Pvt.) Ltd. 2013 SCMR 1623 ref.

Abdul Rasheed Awan for Appellant.

Gul Hassan Tareen for Respondent.

2017 M L D 836

[Shariat Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

SOHAIL ZUBAIR and 3 others---Petitioners

Versus

DILDAR ALI KHAN and another---Respondents

Criminal Revision No.161 of 2016, decided on 14th December, 2016.

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

----Ss. 497 & 498---Bail---Duty of court---Bail matters, were to be decided in the light of the material collected by Police during investigation of the case---Credibility, scrutiny and truthfulness of the witnesses were to be adjudged by the Trial Court---Shariat Court, while deciding bail application had to look into the FIR, the statement recorded under S.161, Cr.P.C. of witnesses and other incriminating material brought by the prosecution including the recoveries---Court while dealing with the question of bail, could assess tentatively the incriminating material and the evidence brought by the prosecution---Court was not supposed to conduct anything in the nature of a preliminary trial to consider the probability of accused's guilt or innocence---Court had to see whether there existed reasonable grounds upon which belief could be founded that accused was connected with the crime.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 341, 147, 148, 149, 427, 337-A(iii), 337-F(iii), 114 & 34---Qatl-i-amd, wrongful restraint, rioting, common object, mischief, causing Shajjah-i-Khaffifah, Shajjah-i-Mudihah, Damiyah, Badi'ah, abetment, common intention---Bail, grant of---Further inquiry---Statement of the complainant was recorded after rejection of previous two bail applications---Previously, Shariat Court had not given any finding in that regard---Accused persons could not be banned for filing fresh bail application on fresh ground, or which had not been considered in previous application---Challan had been submitted before the court and only the statement of the complainant had been recorded---Deceased died during the occurrence and according to the FIR, accused persons had given fists and kicks blows which caused his death---Deeper appreciation of evidence was neither permissible nor required, but tentative assessment of evidence and most importantly the medical report, was to be considered to reach just conclusion of the case---Opinion of the doctor, had made cause of death as doubtful and benefit of doubt could be given to accused even at bail stage---Trial Court would determine after recording the evidence; whether "cardiac arrest" of a person was possible due to some kicks and fists blows---Post-mortem of the deceased was also conducted, wherein it was written that no visible injury was found; no mark of ligation or dissection, no bruise or contusion mark; no laceration on whole body of the deceased, were found---Case of accused persons, in circumstances, fell within the purview of S.497(2), Cr.P.C.---Being case of further inquiry, accused persons, were entitled for the concession of bail---Offence under S.302, P.P.C., required further probe---Other offences pertaining to injuries, were not an impediment for bail, as under S.337-N(2), P.P.C., in all the cases of injuries the basic punishment was of arsh or daman and imprisonment could be awarded only to those offenders, who were previous convicts, hardened or desperate criminals---No such allegation was on record against the accused persons---Bail, could not be withheld as punishment and where the court would feel that it was a case of further inquiry, the bail, could not be withheld---Petition was accepted by setting aside impugned order and accused persons were ordered to be released on bail, in circumstances.

1994 SCR 212 and 2004 PCr.LJ 58 ref.

Ch. Jahandad Khan for Petitioners.

Khalid Rashid Chaudhary for Respondent No.1.

2017 M L D 1116

[Shariat Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

MUHAMMAD AFZAL---Appellant

Versus

PARVEEN BIBI---Respondent

Civil Appeal No.75 of 2015, decided on 8th February, 2017.

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

----Ss. 17 & 25---Custody of minor---Welfare of minor---Preference of minor---Scope---Contention of father was that mother could not take care of children---Application for custody of minors was dismissed---Validity---Right of custody of minor was not an absolute right rather it was subject to welfare of minor---Father being natural guardian of minor had right of custody of minor if a male child had exceeded the age of seven years and a female child had attained puberty but this rule was subject to welfare of minor---Minors, in the present case, were living with their mother since long and they had now developed love and affection for her as compared to the father---If minors were old enough to form an intelligent preference then court might consider that preference---Minors, in the present case, were matured enough and trial court had given sound reasons for dismissing the application for appointment of guardian---Minors were being looked after properly by their mother and they did not like to live in the company of their father---Preference in selection of a guardian made by the minor who was matured enough could be rejected when it was found that minor had been tutored or preference expressed was not intelligent or against the interest of minor---Welfare of minor, in circumstances, was with the mother---Father was a working person and it would not be possible for him to give time to his children particularly his daughter---Mother had not contracted second marriage and she remained in the company of her children---Separation of minors from their mother would not be in the interest of justice or in their welfare---Nothing was on record to show anything which might adversely affect the well being of minors while they were in custody of the mother---Mere allegation of general nature that mother was acquainted with some other persons who did not come within the prohibited degree of relation with her did not incur disqualification to her unless it was shown that such acquaintance had turned into closeness, intimacy and finally in immoral relation---No such evidence had been brought on record by the father---Impugned judgment passed by the Trial Court was in accordance with law---No mis-reading or non-reading of evidence had been committed by the Court below while passing the impugned judgment---Appeal was dismissed in circumstances.

Manzoor Hussain Raja and Riffat Aziz for Appellant.

2017 M L D 1677

[Shariat Court (AJ&K)]

Before Azhar Saleem Babar, J

Syed SHOUKAT GILLANI and another---Appellants

Versus

Mst. ANSAR GILLANI and others---Respondents

Family Appeals Nos.81 and 84 of 2015, decided on 8th February, 2016.

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched.---Dissolution of marriage on the basis of Khula---Scope---Concept of marriage in Islam was to commence a marital life within the limits ordained by Allah---Marriage required mutual trust and understanding between the spouses---If a partner had lost trust in her counterpart then spouses could not live within the limits fixed by Shariah---In the present case, house fixed as prompt dower was never transferred in the name of wife---Payment of gold ornaments was not proved from the evidence of husband---No chance for rehabilitation existed between the parties as spouses---Court below had no option but to dissolve the marriage on the basis of khula---Decree for dissolution of marriage on the basis of khula had rightly been passed by the Court below---Wife was entitled to dissolution of marriage on the basis of khula in lieu of house fixed as dower---Appeal was dismissed in circumstances.

PLD 2007 SC (AJ&K) 56 rel.

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

----S. 25---Custody of minor---Welfare of minor---Scope---Prime consideration in guardianship cases was welfare of minors---Mother, in the present case, was a better educated lady---Mother was natural guardian of minor children and should be given preference between the parents---Father had remarried and mother had not done so---Minor children could not be left to the mercy of step-mother---Minors were not old enough and their consent could not be given much significance---Welfare of minors was with the guardianship of their mother---Mother was entitled to guardianship of minor children---Impugned judgment passed by the Court below was not sustainable---Shariat Court (AJ&K) observed that minor son should remain in the custody of mother until he attained the age of seven years and minor daughter should remain in her custody until married---Appeal was allowed in circumstances.

2008 CLC 1146; 2010 MLD 1313; 2010 CLC 1281 and 2008 CLC 654 rel.

(c) Islamic law---

---Dower---Dower could either be prompt or deferred---Prompt dower was either paid at the time of Nikah or was payable at the demand of wife whereas deferred dower was payable when marriage was dissolved between the spouses because of divorce or death of husband.

(d) Evidence---

----Oral evidence could not be given priority in presence of documentary evidence.

Syed Shujahat Ali Gillani for Appellant.

2017 M L D 1914

[Shariat Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

SHAZIA NOREEN---Appellant

Versus

SAJID MEHMOOD---Respondent

Family Appeal No.92 of 2016, decided on 25th March, 2017.

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched. & S.14---Suit for custody of minor---Rejection of application for temporary custody of minor---Interlocutory order---Appeal---Scope---Pending suit for custody of minor, plaintiff (mother) filed application for temporary custody of minor till decision of the case---Guardian Judge rejected said application---Validity---Decree or a decision passed by a Judge, Family Court, had been made appealable before the Shariat Court under S.14 of Azad Jammu and Kashmir Family Courts Act, 1993; whereas in the present case it was interlocutory order which was not appealable before Shariat Court---Shariat Court observed that interim order having no scope of appeal, further indulgence into the matter, would be a futile exercise---Appeal being not available against interim-order, same was dismissed, in circumstances.

1991 CLC 239 and 2001 SCMR 2000 ref.

1995 CLC 614; 2010 MLD 340 and Mst. Nasim Bashir v. Abdul Jabbar 2003 SCR 526 rel.

Syed Nishat Kazmi for Appellant.

2017 M L D 84

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

Dr. MUNAWAR AHMED and 4 others---Appellants

Versus

MUHAMMAD ASLAM and 23 others---Respondents

Civil Appeal No.141 of 2014, decided on 19th May, 2016.

(On appeal from the judgment of the High Court dated 25.03.2011 in Writ Petition No.1

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

----S. 43(6)---Custodian of Evacuee Property---Power to review its order more than once---Scope---High Court had found that petitioner could have the order of Custodian reviewed more than once---Validity---Mere non-mentioning the number of permissible reviews in the relevant statutory provision would not give power to the Custodian of Evacuee Property to exercise review powers more than once---Custodian of Evacuee Property, in the present case, had already exercised powers of review and its review powers had been exhausted---High Court was not justified to hold that second review before the Custodian of Evacuee Property was available---Only limited powers had been vested in the Custodian of Evacuee Property to review an order---Impugned judgment passed by the High Court was set aside and matter was remanded for decision afresh---Appeal was allowed accordingly.

Mumtaz Hussain and 11 others v. Muhammad Fazil Khan and another 2001 YLR 3248; Shaukat Ali and 6 others v. Custodian, Evacuee Property, Azad Jammu and Kashmir, Muzaffarabad and 2 others 2013 SCR 1021; Sahibrai v. The Custodian of Evacuee Property South Zone, West Pakistan, Karachi PLD 1957 SC (Pak.) 63; Manzoor Ilahi Awan v. (1) The Rehabilitation Authority (2) The Custodian, Lahore PLD 1957 (W.P.) Lah. 228 and Ghazi Muhammad v. The Custodian Evacuee Property, West Pakistan PLD 1960 (W.P.) Lah. 862 ref.

Muhammad Shafi v. The Member (Cons) Board of Revenue, etc. 1995 CLC 966; Ghulam Nabi and 12 others v. Custodian Evacuee Property and 10 others 2000 YLR 2433; Sardar Ali and others v. Karamat Ali Khan and others 1992 CLC 1861; Azmatullah and another v. Ali Bahadur and another 1996 CLC 254 and Muhammad Akram and 4 others v. Custodian Evacuee Property and 3 others 2010 SCR 426 rel.

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

----S. 42-D---Azad Jammu and Kashmir Supreme Court Rules, 1978, O. XLVI, Rr. 9 & 1---Review of judgment by Supreme Court---Second review petition---Scope---Second review petition before the Supreme Court could not be entertained---Supreme Court had no unlimited powers to review its judgment/orders---Powers of review could be exercised only to correct errors which should not be invoked repeatedly---Review proceedings could not partake re-hearing of a decided case---If court had taken a conscious and deliberate decision on a point of law or fact then review could not be obtained on the ground that court had taken an erroneous view or that another view was also possible---Review could not be allowed on the ground of discovery of some new material if same was available at the time of hearing of the matter but was not produced---Ground which was not urged or raised at the time of hearing the matter could not be allowed to be raised in review proceedings---Error which was floating on the surface and had a material bearing on the final result of case could only be reviewed.

Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1997 SC 865; Sikandar Abdul Karim v. The State 1998 SCMR 908; Dr. M.Fazil Zahir and others v. Mst. Begum Jand and others PLD 1966 (W.P) Lah. 53; Lily Thomas v. Union of India, AIR 2000 SC 1650; Raja Mohammad Arif Khan and another v. Regional HR Chief NBP and 3 others 2014 SCR 564 and Secretary Azad Jammu and Kashmir Council and another v. Muhammad Munir Raja and 2 others 2015 SCR 474 rel.

Sardar Ejaz Nazir for Appellants.

Malik M. Zaraiat Khan for Respondents.

Raja Hassan Akhtar Amicus Curiae.

2017 M L D 163

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Masood A. Sheikh, J

WAPDA through Legal Advisor WAPDA/Director (Legal) WAPDA and others---Appellants

Versus

Mst. INAYAT BEGUM and others---Respondents

Civil Appeals Nos. 193, 159, 194, 161, 195, 160, 197 and 162 of 2014, decided on 4th June, 2015.

(On appeal from the judgment and decree of the High Court dated 12.04.2014 in Civil Appeals Nos. 163, 164, 172, 180 of 2008 and 188 of 2006).

Land Acquisition Act (I of 1894) ---

----Ss. 18 & 4---Reference to court---Enhancement of compensation---Market value--- Determination of--- Procedure--- Valuation table--- Scope---Land in question was situated within the territorial limits of Municipal Corporation---Valuation table could not be made a sole yardstick however same could be considered one of the helping factors coupled with others for determination of market value---Best evidence for determination of market value might be sale deeds executed prior to the issuance of S. 4 of Land Acquisition Act, 1894 and sale deeds executed thereafter within 12 months period in the same vicinity---If sale deeds of the land situated in the same village were not available then sale deeds executed in the adjoining village could be considered while determining the market value---Valuation table issued by the Collector Land Acquisition was relevant for determination of market value of the acquired land---District Collector, in the present-case, had determined the value of agricultural land as Rs. 42,000/- per marla which would come to Rs.8,40,000/- per kanal---Valuation table and sale deeds were to be considered side by side for determination of market value---Compensation of awarded land should be determined while taking into consideration the average value of the land prescribed in the valuation table and sale deeds which would come to Rs. 53,166/- per marla---Compensation of land was fixed as Rs. 10,63,333/- per kanal on the basis of average value of sale deeds and valuation table---Appeal was accepted accordingly.

Akhtar Hussain and others v. Azad Govt. and others 2014 MLD 179 rel.

Haji Ch. Muhammad Afzal for Appellant (in Civil Appeal No.193 of 2014).

Ch. Muhammad Akhtar for Respondent (in Civil Appeal No.193 of 2014).

Ch. Muhammad Akhtar for Appellants (in Civil Appeal No.159 of 2014).

Haji Ch. Muhammad Afzal for Respondents Nos. 2 and 3 (in Civil Appeal No.159 of 2014).

Respondents Nos. 1 and 4 ex parte (in Civil Appeal No. 159 of 2014).

Haji Ch. Muhammad Afzal for Appellant (in Civil Appeal No.194 of 2014).

Ch. Muhammad Akhtar for Respondents (in Civil Appeal No.194 of 2014).

Ch. Muhammad Akhtar for Appellant (in Civil Appeal No.161 of 2014).

Haji Ch. Muhammad Afzal for Respondents Nos. 2 and 3 (in Civil Appeal No.161 of 2014).

Respondents Nos. 1 and 4 ex parte (in Civil Appeal No.161 of 2014).

Haji Ch. Muhammad Afzal for Appellant (in Civil Appeal No.195 of 2014).

Ch. Muhammad Akhtar for Respondent No.1 (in Civil Appeal No.195 of 2014).

Nemo for the proforma Respondents (in Civil Appeal No.195 of 2014).

Ch. Muhammad Akhtar for Appellants (in Civil Appeal No.160 of 2014).

Haji Ch. Muhammad Afzal for Respondents Nos. 2 and 3 (in Civil Appeal No.160 of 2014).

Ex parte for Respondents Nos. 1 and 4 (in Civil Appeal No.160 of 2014).

Haji Ch. Muhammad Afzal for Appellant (in Civil Appeal No.197 of 2014).

Ch. Muhammad Akhtar for Respondents (in Civil Appeal No.197 of 2014).

Ch. Muhammad Akhtar for Appellants (in Civil Appeal No.162 of 2014).

Haji Ch. Muhammad Afzal for Respondents Nos. 2 and 3 (in Civil Appeal No.162 of 2014).

Respondents Nos. 1 and 4 ex parte (in Civil Appeal No.162 of 2014).

2017 M L D 240

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD RAFIQUE---Appellant

Versus

QURBAN HUSSAIN and another---Respondents

Civil Appeal No.340 of 2014, decided on 14th May, 2016.

(On appeal from the judgment and decree of the High Court dated 06.02.2014 in Civil Appeal No.52 of 2008).

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

----Ss. 4 & 6---Suit for right of prior purchase---Partial pre-emption, doctrine of---Scope---Suit was dismissed on the ground that land had been sold along with trees and rights in Aar-Banna but plaintiff had not pre-empted the sale as a whole---Validity---Trees and Aar-Banna were attached with the land and were not separate entity to be sold separately---Plaintiff had pre-empted the sale as a whole---Non-mentioning of trees and Aar-Banna in the plaint would not affect the suit of plaintiff---Suit of plaintiff was not hit by the partial pre-emption---Impugned judgments passed by the courts were not maintainable---Defendant had claimed costs of the improvement and he was entitled for the same as decided by the Trial Court---Impugned judgments passed by the courts below were set aside and suit was decreed---Plaintiff was directed to deposit the decretal amount plus expenses incurred on execution of sale deed and costs of improvement within sixty days failing which suit should be deemed to be dismissed---Appeal was allowed in circumstances.

Khawaja Umar Joo v. Muhammad Hussain and others PLD 1963 (AJ&K) 44; Mohammad Zaman v. Nazir Ahmed PLD 1982 SC (AJ&K) 53; Muhammad Latif Khan and others v. Lal Khan and others PLD 1979 SC (AJ&K) 123; Malik Iftikhar Ahmed v. Ali Asghar and another PLD 1981 SC (AJ&K) 47 and Abdul Aziz v. Abdul Hameed and 10 others 2004 YLR 2301 ref.

Malik Muhammad Saleem and another v. Commissioner, Rawalpindi Division, Rawalpindi and 3 others PLD 1976 Lah. 1233; Muhammad Bashir and another v. Alma Bibi and 4 others PLD 1993 AJ&K 168; Ghulam Muhammad and 3 others v. Khushi Muhammad and another PLD 1973 SC 444; Muhammad Latif Khan and others v. Lal Khan and others PLD 1979 SC (AJ&K) 123 and Shamsher Khan v. Muhammad Sawar and others 1986 MLD 521 rel.

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

----Ss. 4 & 6---Right of pre-emption---Scope---Right of pre-emption had been recognized by the statute and it was a right of substitution---Pre-emptor must take over the whole bargain.

Sardar Muhammad Azam Khan for Appellant.

Ch. Muhammad Afzal for Respondents.

2017 M L D 299

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

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

Versus

NIZAM DIN and 14 others---Respondents

Civil Appeal No.165 of 2014, decided on 14th March, 2015.

(On appeal from the judgment of the High Court dated 24.12.2013 in Writ Petition No.72 of 2005)

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

----Ss. 4 & 44---Writ petition---Acquisition of land without payment of compensation---Scope---Petitioners filed writ petition that their land had been acquired for construction of road but no compensation had been paid---Contention of government was that landowners themselves had given land voluntarily for construction of road without compensation---High Court directed the government to pay compensation of land to the landowners---Validity---Right of property had been recognized by the Constitution which was the supreme law of the land and no deviation could be made from it---Nothing was on record that landowners had given their free-will/consent for construction of road without paying them compensation---Petitioners could not be deprived of their right of property without following the procedure provided under the law---Cabinet decision could not be given the preference over the Constitutional provisions---Law did not warrant to take away the fundamental rights of the people enshrined in the Constitution---No one could be deprived of possession of his property without lawful means---Landowner could not be deprived of compensation of his property on the ground that he remained silent for a long time---High Court had not committed any illegality while passing the impugned judgment---Appeal was dismissed in circumstances.

Azad Govt. and 2 others v. Muhammad Arif Khan and 2 others 2003 SCR 456; Custodian Evacuee Property AJ&K and another v. Fatima Bibi and 15 others 2003 SCR 88; Messrs Dawood Yamaha Limited, Al-Shahab Building Jinnah Road, Quetta v. Government of Balochistan through Secretary Local Government, Quetta and 3 others PLD 1986 Quetta 148 and Arsala Khan v. Province of Sindh through Secretary, Government Sindh, Karachi and 3 others PLD 1976 Kar. 848 rel.

Ch. M. Manzoor for Appellants.

Mrs. Bilqees Rasheed Minhas for Respondents.

2017 M L D 318

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Masood Ahmed Sheikh, J

MUHAMMAD AYUB and 3 others---Appellants

Versus

MUSHTAQ HUSSAIN and 12 others---Respondents

Civil Appeal No.301 of 2014, decided on 24th June, 2015.

(On appeal from the judgment of the High Court dated 13.6.2014 in Writ Petition No.817 of 2008).

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

----S. 5---Azad Jammu and Kashmir Board of Revenue Act, 1993, Preamble---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Maintainability---Shamilat deh---Ejectment order passed by the Revenue Officer---Tehsildar/Assistant Collector passed ejectment order against which appeal was dismissed by the Board of Revenue---High Court remanded the matter before the Tehsildar/Assistant Collector for disposal after considering the mutation in accordance with law---Validity---Mutation was required to be sanctioned by the Settlement Officer or Assistant Officer---Tehsildar/Assistant Collector could not sanction the mutation without the approval of Settlement Officer---No alternate remedy against the decision of Board of Revenue was provided in Azad Jammu and Kashmir Board of Revenue Act, 1993 and the rules framed thereunder---Writ petition filed before the High Court was competent---Respondents had rightly challenged the findings of revenue authorities before the High Court to seek efficacious and alternate remedy---Revenue Courts had not considered the alleged mutation in favour of respondents which was mis-reading of record---Concurrent findings of Revenue Courts suffering from legal errors were not maintainable---Judgment of High Court did not adversely affect the rights of the parties as case was remanded to the Tehsildar/Assistant Collector for disposal after considering the mutation in accordance with law---Impugned judgment passed by the High Court was based on facts and record---No illegality or irregularity was pointed out in the impugned judgment---Appeal was dismissed in circumstances.

Arif Mehboob and 7 others v. Zahir Ahmed alias Muhammad Zahid and 10 others 2007 SCR 410 and Muhammad Irshad Khan v. Azad Jammu and Kashmir Council and 3 others 2007 SCR 419 ref.

Syed Mushtaq Hussain Gillani for Appellants.

Nasir Masood Mughal for Respondents.

2017 M L D 402

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

SHAMEEM AKHTAR and 14 others---Appellants

Versus

DISTRICT JUDGE POONCH, RAWALAKOT and 2 others---Respondents

Civil Appeal No.246 of 2015, decided on 18th April, 2016.

(On appeal from the judgment of the High Court dated 22.04.2015 in Writ Petition No.29 of 2011).

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

----Ss. 4 & 6---Civil Procedure Code (V of 1908), O. VI, R. 17 & O. XX, R. 14---Specific Relief Act (I of 1877), S. 42---Suit for right of prior purchase (pre-emption)---Amendment in the prayer for seeking decree of possession---Scope---Application seeking amendment in the plaint with regard to prayer for possession was dismissed---Validity---Present suit was on the basis of right of prior purchase and mere phrase of "declaratory right" did not make it declaratory suit---Issue with regard to right of prior purchase had been decided in favour of plaintiff---Suit had been dismissed on the ground that under S. 42 of Specific Relief Act, 1877 the prayer of consequential relief of possession had not been made---Courts below had fallen in error of law and had not appreciated the statutory provisions of pre-emption suit---Court was bound to grant decree of possession on establishment of right of pre-emption---Pre-emption suit could not fail merely on the ground that in the plaint "prayer for possession" had not been made---Mere insertion of words "declaration" did not bring the suit within the purview of section 42 of Specific Relief Act, 1877---Term 'pre-emption suit' was basically a suit for possession---Impugned judgments of courts below were not consistent with the statutory provisions of law which were set aside---Trial Court was directed to decide the suit on merit---Appeal was accepted in circumstances.

Ilahi Bakhsh and others v. Mst. Bilqees Begum PLD 1985 SC 389 rel.

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

----S. 42---Suit for declaration---When initially prayer of possession was not made in the declaratory suit then seeking such amendment due to subsequent events did not make the suit self-contradictory or amount to new cause.

Alam Din alias Alam Sher and others v. Alam Din PLD 1990 SC (AJ&K) 1 rel.

Barrister Humayun Nawaz Khan for Appellants.

Maqsood Ahmed Sulehria for Respondent No.3.

2017 M L D 519

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Malik MUHAMMAD YOUSAF and others---Appellants

Versus

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

Civil Appeals Nos.209, 210 and 216 of 2014, decided on 11th May, 2015.

(On appeal from the judgment and decree of the High Court, dated 24/5/2014 in Civil Appeals Nos. 170, 234 and 235 of 2008)

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

----Ss. 18, 4, 23 & 24---Reference to court---Compensation---Factors for determination---Valuation table---Scope---Market value---Determination of---Procedure---Compensation price was enhanced to the extent of Rs. 7,00,000/- Hael and Rs. 6,00,000/- for Mera Awal, per kanal along with 15% compulsory acquisition charges---Validity---Suit land was situated within the municipal limits---Land in question was highly precious being utilized as agricultural land---Collector, Land Acquisition while assessing the compensation had failed to consider all the factors i.e. the location of land; the potential of the land for which it was being used; its use to which it could be put---Notification under S. 4 of Land Acquisition Act, 1894 was issued on 27-01-2005 and award was issued on 17-05-2007---Method for determination of market value of the land was to take into consideration the sale deeds pertaining to the same village which had been registered prior to issuance of said notification or immediately thereafter---Reliance upon the sale deeds registered during the period of one year prior to the issuance of notification under S. 4 of Land Acquisition Act, 1894 was not a sole criterion rather sale deeds registered after the said notification were also relevant and compensation had to be assessed in the light of said sale deeds---Landowners had been deprived of the source of income after acquisition of said land---Large pieces of land were not available for sale in the said municipal limits and small pieces of land had been acquired---Sale deeds of small pieces of land could validly be relied upon for determination of market value for the purpose of determination of compensation---Valuation table was the best method for determination of market value of the land---Market value of the land according to valuation table issued by the District Collector was Rs. 1,10,000/- per marla in the village---Landowners were entitled to the compensation at the rate of Rs. 1,10,000/- per marla irrespective of kind of land along with compulsory acquisition charges---Appeal was allowed accordingly.

Land Acquisition Collector, Sargodha and another v. Muhammad Sultan and another PLD 2014 SC 696; Special Land Acquisition Officer v. Maharani Biswal and others 2012 SCMR 1179; Land Acquisition Collector and another v. Abdul Wahid Chaudhry and 3 others 2004 YLR 608; Akhtar Hussain and and 2 others v. Azad Government of the State of Jammu and Kashmir through its Chief Secretary, Muzaffarabad and 2 others 2014 MLD 179; Azad Govt. of the State of Jammu and Kashmir through its Chief Secretary, having his office at New Secretariat Complex Muzaffarabad and 7 others v. Sahibzada Raja Muhammad Hanif Khan and others 2013 YLR 969 and Marawat Khan and 4 others v. Collector Land Acquisition, Mangla Dam Raising Project, Zone-1 Mirpur and 2 others 2013 SCR 1224 ref.

(b) Words and phrases---

---'Market value of the land'---Meaning---Value of land means, the value on which a willing buyer is ready to purchase and willing seller is ready to sell.

Arshad Mehmood Malick for Appellants (in Civil Appeal No.209 of 2014).

Javed Najam-us-Saqib for Respondents (in Civil Appeal No.209 of 2014).

Arshad Mehmood Malick for Appellants (in Civil Appeal No.210 of 2014).

Nemo for Respondents (in Civil Appeal No.210 of 2014).

Javed Najam-us-Saqib for Appellants (in Civil Appeal No.216 of 2014).

Arshad Mehmood Malick for Respondents (in Civil Appeal No.216 of 2014).

2017 M L D 552

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUHAMMAD SALEEM KHAN---Appellant

Versus

MUHAMMAD RASHAM KHAN and 4 others---Respondents

Civil Appeal No.22 of 2015, decided on 23rd June, 2016.

(On appeal from the judgment and decree of the High Court dated 28.10.2014 in Civil Appeal No.43 of 2012)

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

----Ss.4, 6 & 14---Suit for right of prior purchase---Preferential right---Scope---Land of defendants was adjacent to the pre-empted land whereas land of plaintiff was bifurcated from the same---Preferential right of purchase of plaintiff had not been proved from the record---Pre-emptor had failed to prove his claim---Appellate Court was justified to dismiss the suit filed by the pre-emptor---No mis-reading or non-reading of evidence or illegality had been pointed out in the impugned judgments---Appeal was dismissed in circumstances.

Sardar Muhammad Ejaz Khan for Appellant.

Muhammad Asif Kiyani for Respondents.

2017 M L D 724

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

ZAKIA BEGUM---Appellant

Versus

MUSHTAQ KHAN and 5 others---Respondents

Civil Appeal No.103 of 2013, decided on 22nd October, 2013.

(On appeal from the judgment of the High Court dated 14.6.2013 in Writ Petition No.101 of 2008)

Civil Procedure Code (V of 1908)---

----O. XVII, Rr. 1 & 3 & O. XVIII, R. 2---Specific Relief Act (I of 1877), S. 54---Suit for permanent injunction---Closure of evidence---Scope---Defendants failed to produce their evidence---Trial Court closed evidence of defendants except the statement to be recorded by the attorney and witnesses who were to be summoned by the Court---Contention of defendants was that Trial Court had provided only two or three opportunities for production of their evidence---Validity---Impugned order passed by the Trial Court was self-speaking---Defendants despite availing several opportunities failed to produce evidence---Trial Court was constrained to close the evidence of defendants which was to be produced by them except the statement of attorney and witnesses to be summoned by the Court---Impugned order did not suffer from any legal infirmity or illegality---Case could not be kept pending for an indefinite period---Adjournments could not be granted without any sufficient reason---Parties were to be vigilant and ready to produce evidence without unnecessary delay---Adjournments could only be granted for sufficient cause and that also with costs if so deemed proper by the Court---Hearing of the suit should continue from day to day and adjournment for recording evidence only be made for the reasons to be recorded by the Court---Court had power to decide the suit under O.XVII, R.3, C.P.C. if the party failed to produce evidence or to cause attendance of his witnesses---Trial Court had to keep the scale of justice even in exercising the discretionary powers while granting adjournments in the proceedings and discourage practice and tactic of procrastination which would result into miscarriage of justice---Courts below had not violated any provisions of law while passing the impugned orders---Appeal was dismissed.

Ch. Javed Iqbal v. Mst. Zainab Bibi and 8 others 2005 CLC 197; Allah Bakhsh v. Additional District Judge-I D.I. Khan and 2 others 2005 CLC 1422; Abdul Ghani and 2 others v. Muhammad Salim and 3 others 1986 CLC 1217; Manzoor Hussain Shah and 15 others v. Allah Bachaya Khan and 5 others 1986 CLC 1813 and Allah Wasaya and others v. Province of Punjab through Collector Vehari and others 1987 MLD 2549 rel.

Ch. Muhammad Afzal for Appellant.

Ex parte for Respondents.

2017 M L D 779

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Ch. Muhammad Ibrhaim Zia, J

Sardar MUHAMMAD HUSSAIN KHAN---Petitioner

Versus

Dr. NAJEEB NAQI KHAN and 12 others---Respondents

Civil Misc. No.174 and Civil PLA No.220 of 2013, decided on 21st August, 2013.

(On appeal from the order of the Election Tribunal, dated 4.7.2013 in Election Petition No.1 of 2013).

Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970---

----S. 63 (3)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 (2) (12) & 47 (3)---Election to the seat of Azad Jammu and Kashmir Legislative Assembly---Interlocutory order was passed on election petition by the Election Tribunal---Petition for leave to appeal to Supreme Court---Scope---Election Tribunal had accepted petition for recounting of votes to the extent of one polling station and local commission was appointed to recount the votes---Validity---Appeal could lie before the Supreme Court only against the final order of Election Tribunal---Impugned order was interlocutory and not a final order---No petition for leave to appeal could lie against interlocutory order of Election Tribunal in the Supreme Court---Petition for leave to appeal could not be filed against the order of a Tribunal which did not fall under S. 47(1)(a), (b) & (c) of the Interim Constitution or which did not cover under the said section---Petition for leave to appeal was competent only against the judgment, decree, order or sentence of the High Court and the administrative Courts and Tribunal and not the Election Tribunal---Petition for leave to appeal was dismissed being incompetently filed.

Bhagwandas v. The Returning Officer and others 1990 SCMR 1228; Mian Ejaz Shafi v. Syed Ali Ashraf Shah and 12 others PLD 1994 SC 867 and Maulvi Abdul Ghani and another v. Election Tribunal Balochistan and others 1999 SCMR 1 rel.

Sardar Shamshad Hussain Khan for Petitioner.

Nemo for Respondents.

2017 M L D 942

[Supreme Court (AJ&K)]

Present: Mohammad Azam Khan, C.J. and Masood Ahmed Sheikh, J

MUHAMMAD RAFIQUE---Appellant

Versus

DISTRICT JUDGE, KOTLI and 4 others---Respondents

Civil Appeal No.253 of 2014, decided on 3rd August, 2015.

(On appeal from the judgment of the High Court dated 20.12.2013 in Writ Petition No.15 of 2011).

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

----Ss. 4, 6 & 21----Suit for right of prior purchase---Non-deposit of 1/5th amount of total value of the price of the land---Effect---Trial Court ordered to deposit 1/5th of the ostensible price on or before 28-10-2010 otherwise suit should be deemed to be dismissed---Plaintiff did not deposit the said amount till the date fixed and he moved an application for depositing the same which was allowed by the Trial Court but Appellate Court dismissed the suit while dismissing the application for deposit of 1/5th amount---Validity---Plaintiff had not deposited the 1/5th amount till the date fixed by the Trial Court which would mean that suit was automatically dismissed under the condition laid down by the Trial Court---No sufficient cause had been explained by the plaintiff for non-depositing the 1/5th amount or sufficient reason for non-filing the application on or before the date fixed---Time for depositing the said amount could be extended if plaintiff had filed application for extension before the trial court on sufficient cause but said application was not moved---No hurdle existed to file application for extension of time to deposit the said amount by the plaintiff---Plaint was liable to be rejected on the date fixed for deposit of 1/5th amount by the Trial Court---Order passed by the Trial Court was without jurisdiction and reason---Appellate Court had rightly set aside the order of Trial Court and dismissed the suit for non-deposit of 1/5th amount---Plaint of plaintiff should have been rejected instead of dismissal of the same---Judgment of Appellate Court was modified to this extent and plaint was rejected---No illegality had been pointed out in the impugned judgment passed by the appellate court---Appeal was dismissed in circumstances.

Mst. Zulaikha Khatoon v. Ch. Muhammad Yasin and 5 others

2004 CLC 1443 and Abdul Rashid Abbasi v. Jamil Ahmed Malik and 4 others 2015 YLR 1187 rel.

Sardar Shahzad Ahmed Khan and Javed Najam-us-Saqib for Appellant.

Raja Khalid Mehmood Khan for Respondents.

2017 M L D 1055

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

MUHAMMAD AZAM TAHIRI---Appellant

Versus

MIRPUR MUNICIPAL CORPORATION, MIRPUR, through Administrator and 5 others---Respondents

Civil Appeal No.108 of 2012, decided on 23rd May, 2013.

(On appeal from the order of the High Court dated 16.8.2012 in Writ Petition No. 109 of 2011)

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

----S. 44---Azad Jammu and Kashmir High Court Procedure Rules, 1984, R. 38---Writ petition---Maintainability---Factual controversy---Dispute with regard to inheritance---Scope---Administrator, Municipal Corporation dismissed petition for transfer of legacy---Writ petition was also dismissed by the High Court on the ground that declaration had been sought with regard to disputed matter in which civil court had jurisdiction---Validity---Impugned order passed by the Administrator, Municipal Corporation was arbitrary, capricious and without application of mind---High Court had not referred the material produced before it in the impugned judgment---Impugned judgment passed by the High Court was not sustainable on such sole reason---Verdict of High Court that declaration could only be sought from the civil court was also not in consonance with the Constitutional provisions as well as principles of administration of justice---High Court could declare any act as without lawful authority---Petitioner's main grievance was with regard to the proceedings conducted by Municipal Corporation---Actions of Municipal Corporation were subject to judicial review of High Court---No hard and fast rule existed that writ petition could not be granted on the question of fact---High Court had power to determine all the questions arising for determination in the writ petition ordinarily on affidavits and documents---Where some complicated, intricate and complex question of facts which could not be determined or required detailed inquiry were involved, High Court could decline to exercise discretionary writ jurisdiction---No proof was required to declare the order of Administrator, Municipal Corporation as illegal and invalid---Municipal Corporation was bound to settle the relevant question of entitlement of the person as allottee or as legal heirs in a judicious manner while transferring any property falling within its domain---Municipal Corporation had failed to discharge its duties according to law---Impugned judgment passed by the High Court was without proper appreciation of material and application of mind which was set aside---Supreme Court set aside order of Municipal Corporation and directed the corporation to determine the question of legal heirs of the deceased within specified period---Appeal was allowed in circumstances.

Ch. Muhammad Mahmood v. Aurangzeb and 6 others 1997 CLC 1708; Muhammad Aslam v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 3 others 2005 CLC 1979 and Riaz Ahmed v. Mipur Development Authority Mirpur through Chairman and 4 others 2000 YLR 2050 rel.

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

----S. 44---Writ jurisdiction of High Court---Question of fact---Scope of writ jurisdiction.

If any question of fact on the basis of material available with the Court can be determined or through evidence can be ascertained, in such cases, exercise of writ jurisdiction cannot be declined merely on the ground that the question of facts are involved. However, where some complicated, intricate and complex question of facts which on the basis of available material cannot be determined or require detailed inquiry are involved, in such like cases, some times, the Courts declined to exercise their discretionary writ jurisdiction.

Ch. Shah Wali Advocate for Appellant.

M. Ramzan Dutt Advocate for Respondents.

2017 M L D 1157

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C J and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD IQBAL and another---Appellants

Versus

MUNIR HUSSAIN and 2 others---Respondents

Civil Appeal No.92 of 2011, decided on 31st May, 2013.

(On appeal from the order of the High Court 30-1-2010 in Application No.29 of 2009)

Civil Procedure Code (V of 1908)---

----O.XLI, R.17---Appeal dismissed for non-prosecution---Restoration of---Sufficient cause---Scope---Petition for restoration of appeal was moved but same was dismissed---Contention of appellants was that their counsel was busy in other Court at the time of calling the case---Validity---Appellants had vigilantly prosecuted their case---Petition for restoration of appeal was supported by affidavit---No counter affidavit or objections had been filed by the respondents---Affidavit filed by the appellants remained un-rebutted---Un-rebutted affidavits had to be believed and treated as sufficient proof of stated fact---Reason advanced in the application should be treated as correct---Engagement of counsel before other Courts was always treated as sufficient cause for non-appearance---Impugned order passed by the Appellate Court was vacated and appeal was restored to be decided on merits.

Muhammad Sharif Khan v. Mirza Fazal Hussain and others 1993 SCR 88; Public Health Engineering Division and another v. Aurangzeb Khan 2008 SCR 590 and Salamat Bibi and others v. Settlement and Rehabilitation Commissioner Multan PLD 1986 SC 467 rel.

Ch. Muhammad Ilyas, Advocate for Appellants.

Abdus Salam Chaudhry, Advocate for Respondents.

2017 M L D 1560

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C J and Raja Saeed Akram Khan, J

WAPDA through Director Legal WAPDA House, Lahore and 2 others---Appellants

Versus

ZAFAR IQBAL 8 others---Respondents

Civil Appeal No.170 of 2015, decided on 3rd March, 2017.

(On appeal from the judgment and decree of the High Court dated 28.5.2015 in Civil Appeal No.354 of 2008).

Land Acquisition Act (I of 1894)---

----Ss. 18 & 4---Reference to Court---Enhancement of compensation---Scope---Referee Judge dismissed reference on the ground that land owner did not appear in the witness-box---High Court, however, enhanced compensation amount from Rs. 4,00,000/- per Kanal to Rs.7,00,000/- per Kanal---Validity---No provision existed in Land Acquisition Act, 1894 which might make obligatory that landowner must appear in the witness-box---If a case was otherwise proved then mere fact that a party did not put itself in the witness-box could not detract from the other proof on the record---No sale-deed was executed in the vicinity from where land was acquired after issuance of notification under S.4 of Land Acquisition Act, 1894 or prior to the same---When there was no sale-deed in the relevant village then sale-deed executed in the adjacent village could be relied by the Collector Land Acquisition for determining the compensation---Collector Land Acquisition recorded the findings that the prices of land in the village were very high due to the strong financial condition of people---Referee Judge also observed that the compensation determined by the Collector Land Acquisition was inadequate---High Court had rightly enhanced compensation in the present case---Appeal was dismissed in circumstances.

Muhammad Suleman v. Mst. Razia Bi and others 1992 SCR 265; Mst. Farooq Bibi v. Abdul Khaliq and 26 others 1998 SCR 244 and Abdul Latif v. Safarish Ali Khan 2004 YLR 1663 ref.

Muhammad Mehrban v. WAPDA through Chief Engineer/Project Director Mangla Dam Raising Project, Mirpur and 3 others 2013 SCR 635 rel.

Javaid Najam-us-Sadiq, Advocate for Appellants.

Raja Inamullah Khan, Advocate for Respondents.

2017 M L D 1761

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

MUHAMMAD PARVEZ and others---Appellants

Versus

MIRPUR DEVELOPMENT AUTHORITY through Chairman/Director General, Mirpur Development Authority and others---Respondents

Civil Appeals Nos. 73 and 92 of 2016, decided on 31st March, 2017.

(On appeal from the judgment and decree of the High Court dated 18.03.2016 in Civil Appeals Nos.39 and 49 of 2014).

Land Acquisition Act (I of 1894)---

----S. 18---Acquisition of land---Reference to Court---Enhancement of compensation---Scope---None of the land owners stated that land sold through sale-deeds exhibited and acquired land was of same potential value, nature, location or adjacent to each other---Tendering of any document in evidence was not sufficient until the landowners had not proved that the location, nature or potential value of land sold through said document and acquired land was the same---Sale-deeds produced by the landowners could not be made basis for enhancement in the compensation---Oral evidence produced by the plaintiffs was hearsay evidence---Nothing was on record that Collector Land Acquisition had properly assessed the market value of land in question---High Court after computing expenditure incurred on the development had rightly fixed the compensation---No mis-reading or non-reading of evidence had been pointed out in the impugned judgment passed by the High Court---Appeal was dismissed in circumstances.

Ch. Muhammad Afzal, Advocate for Appellants (in Civil Appeal No.73).

Muhammad Reaz Alam Advocate for Respondents (in Civil Appeal No.73 of 2016).

Muhammad Reaz Alam for Appellants (in Civil Appeal No.92 of 2016).

Ch. Muhammad Afzal for Respondents (in Civil Appeal No.92 of 2016).

2017 M L D 1885

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Ghulam Mustafa Mughal, J

BARKAT HUSSAIN through L.Rs.---Appellants

Versus

CHIEF ADMINISTRATOR AUQAF, AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 5 others---Respondents

Civil Appeal No.238 of 2016, decided on 17th April, 2017.

(On appeal from the judgment of the High Court dated 9.5.2016 in Civil Appeal No.32 of 2009)

Limitation Act (IX of 1908)---

----S. 14---Azad Jammu and Kashmir Waqf Properties Act (IX of 1960), S. 7---Administrator of Auqaf---Control of Waqf property---Notification---Application for cancellation of notification---Limitation---Exclusion of time of proceedings in court without jurisdiction---Requirements---Wrong advice of counsel---Sufficient cause---Condonation of delay---Scope---Administrator Auqaf took control of suit property against which petition was moved which was dismissed on the ground of limitation---Validity---Extension in limitation could be given only to the party who had been prosecuting his case with due diligence---Petitioners filed writ petition though an alternate efficacious remedy was available to them---Time consumed in prosecution of writ petition till the withdrawal of same could not be said to have been consumed bonafidely---Even wrong advice of counsel did not constitute sufficient cause for condonation of delay---Application filed on behalf of applicants was time barred and had rightly been dismissed---Appeal was dismissed in circumstances.

Administrator Auqaf v. Ghulam Abbas and other 1993 MLD 2086; Al-Haj Mian Ghulam Yasin v. Managing Director, Aklasc, Muzaffarabad and another 1987 CLC 1307; Qurban Ali and another v. The State PLD 1984 SC (AJ&K) 104; Sarwar Khan v. Mir Ali and 10 others 1980 CLC 110; Akbar v. Sadiq and 15 others 1972 SCMR 23; Baladeb Jew Thakur v. Dhaneswar Misra AIR 1961 Orissa 54 and Kilachand Devechand and Co. (Pvt.) Ltd. v. Messrs Sh. Mian Mohamed Allahbux PLD 1962 (W.P.) Kar. 510 ref.

Mirza Lal Hussian v. Custodian of Evacuee Property and others 1992 SCR 214 and 1998 MLD 416 rel.

Sardar Abdul Hamid Khan, Advocate for Appellant.

Sardar Javed Naz, Additional Advocate General for Respondents.

2017 M L D 1954

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Ghulam Mustafa Mughal, J

MUHAMMAD MAJEED and another---Appellants

Versus

FARZAND ALI and 8 others---Respondents

Civil Appeal No.157 of 2016, decided on 8th July, 2017.

(On appeal from the judgment of the High Court dated 28.4.20016 in Civil Appeal No.85 of 2013).

Civil Procedure Code (V of 1908)---

----O.IX, Rr.3 & 4---Limitation Act (IX of 1908), Art.163---Suit dismissed in default---Application for restoration of suit---Limitation---Petition for restoration of suit was dismissed being barred by limitation---Validity---Plaintiffs applied for setting aside the dismissal order after prescribed period of limitation---Nothing was on record that plaintiffs had no knowledge with regard to dismissal of their suit---Order passed under O.IX, R.4, C.P.C. with regard to restoration of suit was not appealable---Appeals filed before the District Judge and High Court were not competent---Order passed by the Trial court was upheld by the Supreme Court and appeal was dismissed in circumstances.

Imtiaz Hussain Raja for Appellants.

Ch. Nazar Hussain Nazar for Respondents.

2017 M L D 2051

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan, ACJ and Ghulam Mustafa Mughal, J

Mst. CHANAAN BI and 2 others---Appellants

Versus

MUHAMMAD SHAHPAL and 2 others---Respondents

Civil Appeal No.73 of 2015, decided on 16th June, 2017.

(On appeal from the judgment and decree of the High Court, dated 19.11.2014 in Civil Appeal No.93 of 2011).

(a) Gift---

----Inheritance---Contention of plaintiffs was that gift deed had been obtained fraudulently and they were deprived of right of inheritance---Suit was dismissed by the courts below---Validity---Gift deed in question was executed on 09-03-1999 but had been entered in the revenue record on 05-01-2003 after the death of the donor---Gift, held, was obtained by practicing fraud---Defendant had failed to appear in the witness box to support her claim of being donee; she was bound to appear and explain that gift deed in question was voluntarily executed in her favour by excluding the other legal heirs---Legal heirs/daughters had been excluded by execution of gift deed without showing any reason---Impugned gift deed could not be approved---Judgments and decrees passed by the courts below were recalled by the Supreme Court and decree was granted in favour of plaintiff in the terms that impugned gift deed would be inoperative against the rights of plaintiffs---Appeal was allowed in circumstances.

Muhammad Ashraf v. Bahadur Khan and others 1989 SCMR 1390; Raj Muhammad v. Zinat Begum and 8 others 2004 CLC 1768; Khurshid Ahmad and 7 others v. Zeenat Begum, widow and others PLD 2003 AJK 25; Rashid Ahmad and others v. Sardar Bibi and others 1994 MLD 467; Azmat Hussain Kayani and 2 others v. Ansa Bibi and 4 others 2016 SCR 496 and Muhammad Sadiq v. Muhammad Rafique and 19 others 2016 SCR 525 ref.

Muhammad Sharif Khan v. Ismat Bibi and 4 others PLD 1982 SC (AJ&K) 76 rel.

(b) Azad Jammu and Kashmir Supreme Court Rules, 1978---

----O. XIII, R. 3---Concurrent findings---Civil petition for leave to appeal---Scope---When findings of courts below were not based on proper appreciation of record and were perverse, interference by the Supreme Court was justified.

Sardar Ahmed Khan v. Mst. Zamroot Jan PLD 1950 Pesh. 45 rel.

Sheikh Masood Iqbal, Advocate for Appellant.

Abdul Razzaque Chaudhary, Advocate for Respondents

2017 M L D 2101

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan, Actg. C. J. and Ghulam Mustafa Mughal, J

MUHAMMAD HABIB---Appellant

Versus

WALI MUHAMMAD---Respondent

Civil Appeal No.192 of 2016, decided on 16th June, 2017.

(On appeal from the judgment of the High Court dated 27.5.2016 in Civil Appeal No.128 of 2013).

Malicious prosecution---

----Damages, recovery of-Requirements-Plaintiff filed suit for recovery of damages on the basis of malicious prosecution which was decreed-Validity-Criminal case was got registered by the defendant against plaintiff-Plaintiff was arrested however later on he was released on bail---Defendant did not nominate the plaintiff directly in the case rather he had expressed his doubt due to previous enmity--­Police challaned the plaintiff which culminated into his acquittal--­Mere registration of case against someone was not sufficient for awarding of dainages until and unless it was proved that same was registered with intention to defame the person or his family---Plaintiff was bound to prove that his prosecution was without any reasonable and probable cause-Investigating agency was bound to conduct inquiry/investigation in a lawful manner-Mere acquittal from a case on the ground of doubt would not entitle the plaintiff to recover damages-Plaintiff had claimed lump sum amount of damages without giving its detail---Evidence produced by the plaintiff in support of his claim was defective---Detail given by the' party in his Court statement could not be considered unless same was mentioned in the plaint and the other side had a chance to rebut the same---Courts below had erroneously awarded decree for damages to the plaintiff-Impugned judgments and decrees were vacated and suit was dismissed---Appeal was allowed in circumstances.

Mst. Shamim v. Sarfaraz 2013 MLD 1585 ref.

Muhammad Latif Khan and 2 others v. Muhammad Afsar Khan PLD 2000 SC (AJ&K) 31 rel.

Ch. Manzoor Ahmed Khan, Advocate for Appellant.

Khalid Rasheed Chaudhry, Advocate for Respondent.