MLD 2018 Judgments

2018 M L D 1136

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Syed Muhammad Farooq Shah, JJ

CHANGEZ---Appellant

Versus

SHAHID and another---Respondents

Cr. Appeal No.06/P of 2011, decided on 20th April, 2018.

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

----S. 17(3)---Penal Code (XLV of 1860), Ss.458, 148 & 149---Criminal Procedure Code (V of 1898), S.417---Haraabah, lurking house-trespass or house-breaking by night, rioting, common object---Appeal against acquittal---Reappraisal of evidence---Complainant, had neither given the description of culprits in the FIR, nor had identified the offenders at the time of commission of offence by their features---Complainant had stated in evidence that he had been informed by someone regarding involvement of the accused---Identification of robbed properties allegedly recovered from the accused, was not held in accordance with law---Currency Notes, allegedly recovered, could not be identified as stolen money because, neither any number, nor any other mark of identification of the currency notes was given by the complainant---Gold ornaments allegedly robbed from the house of complainant, were not recovered from the possession of accused, rather gold weighing four and a half tola was recovered by the Investigating Officer, which could not be identified as the ornaments stolen from the house of the complainant---Identification parade of accused, as well as identification of recovered alleged robbed property, was not conducted---Inordinate delay of 33 days in lodging FIR had not been explained---Allegations levelled in the FIR would be presumed to be result of deliberation, negotiation, discussion and afterthought with mala fide intention and ulterior motive to get accused convicted---Prosecution evidence, appeared to be fabricated, which could not be considered trustworthy---Counsel for the complainant, could not substantiate that the impugned judgment of acquittal recorded by the Trial Court was against the law and facts and that the judgment of acquittal suffered from non-reading or mis-reading of the evidence available on record---Prosecution had failed to prove its case against accused beyond the shadow of reasonable doubt---Trial Court, had correctly extended benefit of doubt in favour of accused---Appeal against acquittal having no merits, was dismissed.

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

----S. 417---Appeal against acquittal---Scope---Narrow and limited scope existed for interference in appeal against acquittal because after acquittal, presumption of innocence of accused was double---Law required that judgment of acquittal, would not be disturbed, even though second opinion, could be reasonably possible---Settled parameters for interference in the judgment of acquittal, was the substitution of opinion, which was not permissible, until and unless conclusion was perverse or arbitrary and if two views were possible, view in favour of accused had to be given preference.

[Case law referred].

(c) Criminal trial---

----Benefit of doubt---Principle---If single circumstance, would create a reasonable doubt in a prudent mind about the guilt of accused he would be entitled to such benefit, not as a matter of grace, but as a matter of right.

[Case law referred].

Khalid Rehman for Appellant.

Gul Daraz Khan for Respondent.

Wilayat Khan Assistant A.G. KPK for the State.

2018 M L D 1573

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

TARIQ HUSSAIN and another---Appellants

Versus

The STATE and 4 others---Respondents

Criminal Appeal No.8-I of 2018, decided on 30th May, 2018.

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

----Ss. 302(c) & 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, haraabah---Appreciation of evidence---No ocular evidence was in the case and prosecution case mainly rested upon circumstantial evidence, there being no eye-witness of the occurrence or last seen evidence---Accused persons came on surface initially on the basis of C.D.R. of the mobile SIM, which was inadmissible and was unworthy of credence as same could not be considered either substantive or corroborative piece of evidence---Paramount reliance of prosecution case was on recovery of allegedly stolen mobile phone; neither the mobile number, its type or other mark of identification, were furnished it would, therefore, be unsafe to believe that recovered mobile was the same which was stolen---Alleged stolen vehicle was recovered on pointation of two accused persons jointly from an abundant place---Joint recovery had no evidentiary value, being inadmissible---Postmortem report of the deceased, only furnished opinion with regard to the cause of death of the deceased and not identified the culprits in any manner---Medical evidence, in circumstances, had added nothing in the prosecution version, rather had diminished the prospect of collecting evidence in line to dig out real culprits of the occurrence---Prosecution had failed to prove the charge against accused persons beyond any reasonable doubt---Accused, were acquitted from the charges in circumstances.

2008 SCMR 1064; 2011 SCMR 1142; 2012 YLR 2026; 2016 MLD 1363; 2016 PCr.LJ 250; 2015 PCr.LJ 1171; 2016 PCr.LJ 380; 2002 SCMR 1885; 2009 YLR 1526; PLD 2016 Pesh. 26; 2016 YLR 1291; 2016 PCr.LJ 257; 2016 MLD 1 and 2008 SCMR 1221 ref.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; The State v. Behram Khan 2016 MLD 63; Shabbir Ahmed v. The State 2011 SCMR 1142; Ghulam Akbar and another v. The State 2008 SCMR 1064 and Tanveer alias Rabail and another v. The State 2012 YLR 2026 ref.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Circumstantial evidence---Scope---Chain of circumstantial evidence, must be complete in all terms, leaving no reasonable grounds to conclude innocence of an accused---Such chain must be natural, conclusive and consistent not only in respect of hypothesis of the guilt of accused, but the cumulative effect of such circumstantial evidence must lead to a conclusion that accused was definitely the perpetrator and murderer of the deceased---Chain of circumstantial evidence, must not be short of any fault, which could lead to believe that the link between the deceased and murderer was missing in any manner---If a link, in a case based upon circumstantial evidence, was missing in connecting the occurrence of murder with accused, then pyramid of such evidence would fall on ground, which would entitle the suspect of the acquittal.

Hashim Qasim and another v. The State 2017 SCMR 986; Kabir Shah v. The State through Advocate General, Khyber Pakhtunkhwa and another 2016 YLR 1291 and Imran alias Dully and another v. The State and another 2015 SCMR 155 ref.

Syed Abdul Haq for Appellants.

Wilayat Khan, Assistant Advocate-General, K.P.K. for Respondent No.1.

In person Respondent No.3.

2018 M L D 1714

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Syed Muhammad Farooq Shah, JJ

Mst. RIAZ BEGUM alias RAZIA---Petitioner

Versus

Mst. FARZANA and 3 others---Respondents

Cr. P.S.L.A. No.1/P of 2006, decided on 17th April, 2018.

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

----Ss. 200, 249-A, 265-K, 417(2) & 439(5)---Penal Code (XLV of 1860), Ss. 454 & 380---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 14---Lurking house-trespass or house breaking in order to commit offence punishable with imprisonment, theft in dwelling house, theft liable to tazir---Private complaint, dismissal of---Petition for special leave to appeal against acquittal---Revision petition---Maintainability---Petitioner had filed complaint under S.200, Cr.P.C. against her daughter and others under Ss. 454 & 380, P.P.C. and S. 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and alleged therein that she was induced by respondents, as a result of which, she had entered into Nikah with respondent without her consent---Said respondent, thereafter entered into her house and took away with them golden ornaments, clothes and cash---Trial Court after preliminary proceedings, dismissed the complaint---Validity---Order of dismissal of private complaint could not be equated with the order of acquittal as neither the Trial Court applied the provisions of S.249-A or 265-K of Cr.P.C. nor the acquittal was recorded after full dressed trial---Petition being not tenable in law, was dismissed in limine.

Abdul Wahab Khan v. Muhammad Nawaz and 7 others 2000 SCMR 1904; 1996 PCr.LJ 1615; 1988 PCr.LJ 864; PLD 1984 Lah. 323; PLD 1964 Kar 316; AIR 1963 SC 1430; AIR 1927 Mad. 19; AIR 1926 Sindh 188 and AIR 1963 SC 1430 rel.

(b) Constitution of Pakistan---

----Art. 35---Right to marry---Article 35 of the Constitution provided safeguard, guarantee and protection to the right of marriage, as Muslim adult female being sui juris could exercise her right to marry without the consent of wali.

1999 PCr.LJ 638; PLD 1981 FSC 308; PLD 1977 Lah. 301 and 2006 MLD 298 rel.

Qaisar Husain for Petitioner.

Gul Daraz Khan for Respondents.

Wilayat Khan Asstt. A.G., K.P.K. for the State

2018 M L D 1102

[Supreme Appellate Court Gilgit-Baltistan]

Before Dr. Rana Muhammad Shamim, C.J. and Javed Iqbal, J

SUHAIL KAMAL and others---Petitioners

Versus

The STATE---Respondent

Cr. Appeal No.4 of 2015 in Cr. PLA No.30 of 2014, decided on 31st January, 2018.

Penal Code (XLV of 1860)---

----Ss. 324, 34, 341, 147, 148, 149 & 427---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-L---Attempt to commit qatl-i-amd, common intention, act of terrorism, wrongful restraint, rioting, mischief causing damage---Reappraisal of evidence---Benefit of doubt---Trial Court convicted and sentenced the accused person---Chief Court, upheld their conviction/sentences in appeal---Validity---Prosecution witness had not attributed any specific role to the accused persons in commission of the alleged offence---No material was available on record except the confessional statements of accused persons, which were not admissible unless corroborated by independent witnesses, or supported by strong circumstantial evidence---Both courts below had failed to consider said facts therefore, judgments so delivered by the courts below were the result of misreading, non-reading and non-appreciation of the evidence on record---Prosecution had failed to prove the case against accused persons beyond the shadow of doubt---Accused persons were acquitted by giving them the benefit of doubt---Judgments of Trial Court and Chief Court, were set aside, in circumstances.

Amjad Hussain for Petitioner.

Advocate General along with Ali Nazar Khan Advocate-on-Record on behalf for Respondent.

2018 M L D 253

[Gilgit-Baltistan Chief Court]

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

WANG JIAN QIU---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.30 of 2016, decided on 7th September, 2016.

(a) Pakistan Arms Ordinance (XX of 1965)---

----S. 13---Foreigners Act (XXXIX of 1946), Ss.3 & 4---Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(i) & 7(h)---Criminal Procedure Code (V of 1898), Ss.265-E & 412---Possessing unlicensed arms, act of terrorism---Appreciation of evidence---Pleading guilty---Accused who was a foreigner, at the time of framing of charge, pleaded guilty and showed reluctance to produce any defence---Show-cause notice as per S.265-E, Cr.P.C., was served upon the accused---Accused submitted reply to said notice and requested the court to take lenient view---Trial Court held that offences against accused had fully been proved and accused had voluntarily confessed his guilt in the open court in presence of his counsel as well as public prosecutor---Trial Court convicted accused under S.7(7) of the Anti-Terrorism Act, 1997 and sentenced him to undergo imprisonment for five years---Accused was also convicted under S.13 of Pakistan Arms Ordinance, 1965 and sentenced to undergo for four years---Validity---Conviction recorded on admission of guilt could not be challenged in appeal as provided under S.412, Cr.P.C., except about quantum of sentence---Accused was provided opportunity to defend---Accused was found in possession of huge quantity of arms/ammunition at the Pak-China border---Keeping of such a huge quantity of arms/ammunition, had shown ill-intention of accused; if he would not have arrested before hand, it could have created a big dent in Pak-China relations and defame Pakistan at international level--Court could not sit in isolation and could take notice of changing surroundings and its approach must be dynamic and not static---Conviction of accused recorded under S.7(h) of Anti-Terrorism Act, 1997, was set aside as he was apprehended before execution of his design, while the sentence of 4 years' imprisonment recorded under S.13 of Pakistan Arms Ordinance, 1965, was maintained----Weapons recovered from accused, were confiscated in favour of the State.

(b) Jurisdiction---

----Question of jurisdiction could be raised at any stage, even during appeal, but it must be supported legally/factually---Jurisdiction upon a court, could not only be vested by the consent of the parties, but at the same time, a party could not only be allowed to choose the forum of his choice for trial of a particular case.

Zafar Iqbal and Zubair-ur-Rehman for Appellant.

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

2018 M L D 314

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Malik Haq Nawaz, JJ

The STATE---Petitioner

Versus

ZAHEER-UD-DIN---Respondent

Cr. Misc. No.44 of 2016, decided on 19th September, 2016.

Penal Code (XLV of 1860)---

----S. 377---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 12 & 23---Criminal Procedure Code (V of 1898), Ss.417(2-A) & 345---Sodomy, act of terrorism---Appeal against acquittal---Appreciation of evidence---Compromise---Accused was booked for offence under S.377, P.P.C., but during investigation Ss.6 & 7 of Anti-Terrorism Act, 1997, were also added and after completion of investigation, challan was sent to the Court of Anti-Terrorism---Trial Court recorded statements of father, mother, one uncle of the victim and some Jirga members to the effect that a compromise had been effected between the parties---Trial Court on the same date, acquitted accused from the charges---Validity---Trial Judge, had accepted the compromise, illegally and passed acquittal judgment in excess of his jurisdiction; because the offence was not one of 'Terrorism' and Trial Judge wrongly and illegally took cognizance of the case under S.12 of the Anti-Terrorism Act, 1997---Trial Court should have sent back the case to ordinary court of jurisdiction, even if no application under S.23 of Anti-Terrorism Act, 1997 was filed by the either party---Trial Court instead of laying off its hands, jumped into the case and assumed jurisdiction and despite resistence from State Counsel that case of sodomy was not compoundable, accepted compromise and acquitted accused from the charges on the same day---Such urgency, was because of some extraneous considerations and not to advance the cause of justice---Appeal filed by the State was accepted by the Chief Court and impugned judgment passed by the Anti-Terrorism Court, was set aside---Provisions of Ss. 6 & 7 of Anti-Terrorism Act, 1997, being not attracted to the case, same were deleted from the challan and case was transferred from the Anti-Terrorism Court to the Sessions Judge for assuming adjudication and to start trial of accused.

Dy. A.G. for Appellant/State.

Islam-ud-Din for Respondent.

2018 M L D 378

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

NIAT BAIG---Petitioner

Versus

The STATE---Respondent

Cr. Misc. 121 of 2016, decided on 26th September, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.376, 457 & 202---Rape, lurking house-trespass or house breaking by night in order to commit offence punishable with imprisonment, intentional omission to give information of offence by person bound to inform---Bail, grant of---Further inquiry---Victim lady raised her finger against many persons of the village, who were arrested but later on were released by the local Police---One other person was also arrested in the case, but Police file was silent as to what happened with the said person later on---When doubt would lurk in the mind of the court regarding complicity/ involvement of an accused, the hands of the court, could not be tied up to refrain from perusing the record, if dictates of justice so demanded---Counsel for accused repeatedly requested that DNA test was the sole test to determine the involvement of accused, which Police had not bothered to get done without any reason---Inordinate delay in lodging FIR and arrest of that said other person in the case and his mysterious release, without assigning any reason had made the case as one of further inquiry---Accused was admitted to bail, in circumstances.

2006 YLR 730; 2014 PCr.LJ 456 and 2011 PCr.LJ 1619 rel.

Raja Shakeel Ahmad for Petitioner.

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

2018 M L D 405

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

NAZRAB KHAN---Petitioner

Versus

ASSISTANT SETTLEMENT OFFICER, GILGIT and 3 others---Respondents

Civil Revision No.11 of 2014, decided on 7th March, 2016.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Both courts below had passed judgments/orders, partly in favour and against plaintiff---Defendants did not assail judgment/order passed by the Trial Court---Both orders of the two courts below were operative against defendants, as many parts of the findings of the two courts below were against the defendants---Appellate Court had found claim of the plaintiff beyond certain area of suit land was unfounded and not proved---Said remarks of the Appellate Court had shown that claim of the plaintiff was correct to the extent of said area out of the suit land, but as to the remaining part of the suit land same was unfounded---Plaintiff failed to point out any evidence showing his title to remaining area of land which was in possession of defendant No.2.

Ali Khan for Petitioner.

Additional Advocate General and Deputy Attorney General for Respondents.

Syed Kamal-ud-Din, rep. for Metrological Department.

2018 M L D 505

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

IKRAM ULLAH---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No.103 of 2016, decided on 29th July, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 34 & 188---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Arms Ordinance (XX of 1965), S.13---Qatl-i-amd, common intention, disobedience to order duly promulgated by public servant, act of terrorism, possessing unlicensed arms---Bail, grant of---Further inquiry---Accused was not directly charged in the FIR for opening fatal shots on the deceased---Indiscriminate firing was opened by accused party, one of the bullets hit the deceased---Identity of main culprit, whose fire shot hit the deceased, remained doubtful and debatable; as all the accused persons were attributed general firing and no specific allegations of firing were attributed to the accused---Accused, though remained absconder for a considerable long time, but abscondance alone, without any overt act, would not by itself be sufficient to sustain conviction on a capital charge---All the four co-accused arrested in the present case with similar allegations, had already been released on bail---Case of accused, was also one of further inquiry under S.497(2), Cr.P.C.---Accused, was admitted to bail, in circumstances.

PLD 1964 SC 26; 1991 SCMR 322; 1992 PCr.LJ 412 and PLD 1985 SC 402 ref.

Muzaffar Ud Din for Petitioner.

Dy. A.G. for the State.

Imtiaz Hussain for the Complainant.

2018 M L D 555

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

Mst. SHAH ZANAN and another---Petitioners

Versus

HADI HUSSAIN and 10 others---Respondents

Civil Revision No.34 of 2016, decided on 4th November, 2016.

Civil Procedure Code (V of 1908)---

----O. VII, R. 7---Suit for declaration and permanent injunction---Claim of ownership on the basis of partition---Defendants claimed possession---Partial decree up to the extent of share of plaintiffs---Grant of decree not prayed for---Effect---Petitioners/plaintiffs contended that they were rightful owners on the basis of partition of common properties out of common business between husband of petitioner and his (husband's) brother---Respondent/defendant contended that Trial Court had wrongly decreed the suit of plaintiffs for declaration and permanent injunction as suit property was in possession of the respondent/defendant---Appellate court set aside the decree passed by the Trial Court---Validity---Decree showed that Trial Court had declared petitioners/plaintiffs entitled to their shares in the suit land while in plaint, petitioners/plaintiffs had sought declaration coupled with permanent injunction regarding the suit property---Trial Court, in circumstances, did not decree the suit throughout and rather passed a partial decree to the extent of share of petitioners/plaintiffs---Petitioners/plaintiffs were bound to prove that suit property was common property of the partners who were admittedly real brothers inter se and petitioners/plaintiffs were responsible to prove that suit property fell in the share of their predecessor---Statements of witnesses of plaintiffs were hearsay regarding the suit property and they were not witnesses of the title of suit property---Petitioners/plaintiffs had filed unattested copies of mutations which were not admissible having not been exhibited---No evidence was available to the effect that suit property fell in share of predecessor of plaintiffs or any of his legal heirs---Trial Court had granted a remedy very clearly different from that prayed in the plaint---Exercise of powers of the Trial Court under O. VII, R. 7, C.P.C. were incorrect, because said provision of law empowered the court for grant of a remedy different from the remedy prayed by the party only when a different remedy was established---In the present case, petitioners/ plaintiffs had failed to establish their title to the suit property, impugned order of appellate court was not result of any misreading or non-reading of evidence---Revision petition was dismissed accordingly.

Manzoor Hussain for Petitioners.

2018 M L D 577

[Gilgit-Baltistan Chief Court]

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

The STATE---Petitioner

Versus

SHAH RAEES KHAN and 9 others---Respondents

Criminal Miscellaneous No. 45 of 2016, decided on 4th August, 2016.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324, 506 (2), 147, 149 & 109---Anti-Terrorism Act (XXVII of 1997), S. 6 & 7---Terrorism, attempt to commit qatl-i-amd, criminal intimidation, rioting, unlawful assembly, abetment---Petition for cancellation of bail, dismissal of---Accused persons were arrested for raising slogans, using filthy language and for firing upon rival group---Nothing was pointed out persuading to exercise discretion in favour of complainant---Petition for cancellation of bail was dismissed.

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

----S. 497(5)---Bail, cancellation of---Scope---Very strong and exceptional grounds were required to withdraw the concession of bail.

Dy. A.G. for the Petitioner/State.

Arif Nazeer for Respondents.

2018 M L D 700

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

AHLIAN-E-MURTAZA ABAD through Representatives---Petitioners

Versus

AHLIAN-E-NASIR ABAD through Representatives---Respondents

Civil Revision No.49 of 2015, decided on 7th September, 2015.

Civil Procedure Code (V of 1908)---

----O. I, R.10---Impleadment of necessary party---Scope---Subject matter of present suit was mining of stones from the suit area---Courts below did not pass any direction for impleading the Provincial Government as party to the suit---Provincial Government being necessary party to the case, Trial Court was directed to implead Provincial Government as defendant and proceed with the suit---Revision was dismissed in circumstances.

Manzoor Ahmed for Petitioners.

2018 M L D 724

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

KHURSHID and 3 others---Petitioners

Versus

The STATE---Respondent

Cr. Misc. No.190 of 2016, decided on 19th December, 2016.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 336, 337-A(i), 506(ii), 147 & 34---Attempt to commit qatl-i-amd, itlaf-I-salahiyyat-i-udw, shajjah-i-khafifah, criminal intimidation, rioting, common intention---Bail, grant of---Further inquiry---Allegation against the accused petitioners, seven in number, was that they called son of complainant, belaboured him and in consequence thereof he was critically injured---Record showed that accused petitioners were directly charged in the FIR but two co-accused with similar role had been released by the Investigating Officer under S. 169 Cr.P.C.---Complainant had not raised any objection before any competent authority for redressal of his grievances regarding release of two co-accused by the police nor had filed any private complaint in that regard---Opinion of police was not binding on the court, but when there were large number of accused nominated in FIR and some were found innocent and released by police was not challenged by the complainant then benefit of doubt should be resolved in favour of co-accused petitioners---No weapon of offence had been recovered from any of the co-accused petitioners except accused petitioner---Circumstances suggested as to whether the role assigned to all the accused persons was result of exaggeration to rope in as many persons, as he could or in fact all the accused persons participated in the occurrence required consideration and would be thrashed after recording of some evidence---Co-accused petitioners were allowed bail in circumstances.

1998 PCr.LJ 143; 2005 YLR 2508 and 2014 PCr.LJ 740 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 336, 337-A(i), 506(ii), 147 & 34---Attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, shajjah-i-khafifah, criminal intimidation, rioting, common intention---Bail, refusal of---Allegation against the accused petitioners, seven in number, was that they called son of complainant, belaboured him and in consequence thereof he was critically injured---Record showed that accused petitioners were directly charged in the FIR---Case of co-accused was distinguishable from the accused petitioners---Medico Legal Report of victim along with final police report showed that injuries on the person of the victim were caused with a sharp-edged weapon---Weapon of offence (knife) had been recovered from accused petitioner---Victim had charged the accused petitioner for inflicting injuries on his neck/throat---Accused petitioner was declined bail accordingly.

Raja Shakeel Ahmad and Atta-ur-Rehman for Petitioners.

Dy.A.G. for the State.

2018 M L D 815

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

MUHAMMAD AYAZ and 2 others---Petitioners

Versus

The STATE---Respondent

Cr. Misc. No.54 of 2017, decided on 24th April, 2017.

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

----S. 561-A----Penal Code (XLV of 1860), Ss. 337-F(i) & 337-F(iv)---Damiyah, madihah---Notices for appearance---Application under S.561-A, Cr.P.C. for quashment---Complainant got registered case against the petitioners and their co-accused with the allegation that they intruded into his house and injured the ladies---Investigating Officer after investigation released the petitioners under section 169 Cr.P.C. and submitted challan to the extent of co-accused---Court issued notices to the petitioners for appearance---Validity---FIR showed that petitioners along with their co-accused were charged for causing injuries to the two ladies---Complainant got prepared site plan on his pointation, where the place of occurrence had been shown a thorough fare instead of dwelling house, as claimed in FIR---Site plane showed the presence of co-accused only, while the presence of petitioners was found missing---Statements of the injured ladies showed that they had nominated only co-accused and had categorically stated that they had not seen anybody else at the place of occurrence---Said circumstances suggested that summoning of petitioners would be a futile exercise---Petition for quashment of notices issued to the petitioners was allowed.

PLD 2013 Pesh. 16 and PLD 2012 Pesh. 39 ref.

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

----S. 169---Release of accused by police---Scope---Investigating Officer could only release an accused if there was no incriminating evidence against him---If the situation was otherwise, no unfettered powers were conferred upon the Investigating Officer and his action would always be subject to judicial scrutiny by competent court.

Raja Shaeel Ahmad and Raja Zia-ur-Rehman for Petitioners.

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

2018 M L D 822

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

STATE through District Public Prosecutor and another---Appellants

Versus

FAQIR ALAM---Respondent

Criminal Appeal No.33 of 2012, decided on 28th September, 2016.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Prosecution case was that accused along with his co-accused committed murder of the deceased---Complainant disclosed in FIR the circumstances in which the occurrence of murder of deceased took place---Case of prosecution was based on the alleged dying declaration of the deceased and statements of two prosecution witnesses, who had directly charged the accused and co-accused for committing the murder of deceased---Medical Officer and two private persons were witnesses in whose presence the deceased gave his statement, termed as dying declaration---Prosecution did not examine Medical Officer and one private person as witnesses---Prosecution opted to record the statement of one witness to establish the dying declaration as correct---Said witness had charged only accused for the occurrence but the dying declaration showed that accused and his co-accused were responsible for opening fire on the deceased---Dying declaration showed that deceased had taken name of one prosecution witness, who accompanied him, while prosecution cited two witnesses as eye-witnesses of the occurrence---Such kind of contradictions in the statement of witness and in the dying declaration were material contradictions and on the basis of such material contradictions, it could be said that prosecution had failed to establish the dying declaration---Appeal against acquittal was dismissed in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account was furnished by two prosecution witnesses---Witness of ocular account stated that deceased died due to falling from the mountain and not by the firing of the accused---Record showed that statement of other witness of ocular account was recorded after two days of the occurrence---No explanation for said delay in recording statement of witness had been furnished---Circumstances established that statements of witnesses of ocular account were doubtful---Appeal against acquittal was therefore dismissed accordingly.

Deputy Advocate General for Appellant No.1/State.

2018 M L D 942

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

Haji GULZAR HUSSAIN---Appellant

Versus

AKHON ALI and 8 others---Respondents

Criminal Appeal No.03 of 2016, decided on 19th August, 2016.

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

----Ss. 395, 341, 337-A & 34---Dacoity, wrongful restraint, hurt, common intention---Appreciation of evidence---Appeal against acquittal---Complainant had alleged that accused stopped them on road and snatched a cell phone and amount of Rs. 145,000---First Information Report was lodged with a delay of twenty four hours without any proper explanation---Statement of complainant under S.161, Cr. P. C. was recorded after eight days of the occurrence---Alleged witnesses were not produced during trial---Material contradictions existed in the statements of all the prosecution witnesses---Appeal lacked the criteria to upset a judgment of acquittal which was dismissed.

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

---Art. 129(g)---Best evidence not produced---Effect---If best evidence was withheld by a party, adverse inference was to be drawn against the defaulting party.

Khadim Hussain for Appellant.

Akhun Ali, Wazir Walayat and Wazir Askari for Respondents Nos.1 to 9.

2018 M L D 971

[Gilgit-Baltistan Chief Court]

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

MUHAMMAD NABI---Petitioner

Versus

The STATE through ANF, DISTRICT GILGIT---Respondent

Criminal Miscellaneous No.125 of 2016, decided on 5th October, 2016.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic drugs exceeding one kilo-gram---Bail, dismissal of---Complainant (police) alleged that accused was apprehended in possession of charas (drug)---Accused was caught red-handed and huge quantity of narcotic was recovered from him---Accused was habitual offender and concession of bail could not be decided in favour of such type of criminal---Bail was declined accordingly.

Burhan Wali for Petitioner.

Manzoor Hussain, Special Prosecutor ANF for the State.

2018 M L D 1005

[Gilgit-Baltistan Chief Court]

Before Malik Haq Hawaz, J

ATTA-UR-REHMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 17 of 2015, decided on 3rd October, 2016.

(a) Pakistan Arms Ordinance (XX of 1965)---

----S. 13(d)---Criminal Procedure Code (V of 1898), S. 154---Possession of unlicensed weapon---Appreciation of evidence---Delay of about twenty four hours in lodging FIR---Effect---Fact remained that FIR was lodged after the delay of twenty four hours of the recovery of unlicensed weapon---No explanation was provided regarding inordinate delay in lodging the FIR---Such unexplained delay was fatal for prosecution case---Accused was acquitted.

(b) Pakistan Arms Ordinance (XX of 1965)---

----S. 13(d)---Possession of unlicensed weapon---Appreciation of evidence---Benefit of doubt---Recovery of weapon was effected one day prior to the lodging of FIR, which made the story of prosecution doubtful, benefit of which would be extended to the accused---Accused was acquitted in circumstances.

(c) Criminal trial---

----Appreciation of evidence---Prosecution had to prove its case on the strength of its own evidence---Prosecution would not be entitled to take advantage of any weakness of defence.

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

----S. 103---Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Possession of unlicensed weapon---Appreciation of evidence---Benefit of doubt---Recovery proceedings---Non association of private witness---Effect---Unlicensed weapon was recovered from the possession of accused---Prosecution witnesses were police officials---No private witness had been associated at the time of alleged recovery despite of the fact that many people were present at the place of recovery---Said act of prosecution was violation of mandatory provision of law, which could not be waived in the absence of any valid or convincing reason---Such circumstances created doubt about the veracity of prosecution story, benefit of which would be extended in favour of accused---Accused was acquitted in circumstances.

Jahanzeb Khan for Appellant.

2018 M L D 1023

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

AQIB---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.133 of 2016, decided on 4th October, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 377, 448, 449 & 452---Unnatural offence, house trespass, house trespass in order to commit offence punishable with death and house trespass after preparation for hurt, assault or wrongful restraint---Bail, refusal of---Allegation against the accused was that he committed the offence of sodomy with the victim aged 10/11 years---Victim gave an account of his ordeal, in the FIR, which was further corroborated by the medical evidence---Offence was heinous one and fell within prohibitory clause of S.497, Cr.P.C.---Bail was therefore, refused in circumstances.

Basharat Ali for Petitioner.

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

2018 M L D 1146

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

JAVEED---Petitioner

Versus

The STATE---Respondent

Cr. Misc. 139 of 2016, decided on 27th October, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 320, 322, 337-G, 427 & 279---Qatl-i-khata by rash or negligent driving, qatl-bis-sabab, hurt by rash or negligent driving, mischief and rash driving on public place---Bail, refusal of---Accused was charged in the FIR with specific role of rash and negligent driving and because of his said act, a valuable life was lost---Accused was not in possession of driving license---Act of the accused could not be ignored, which made a young lady widow and her minor children orphans---Circumstances had made, prima facie, case against the accused---Bail was declined to accused, accordingly.

Raja Zia-ur-Rehman for Petitioner.

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

2018 M L D 1185

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

MUHAMMAD AQEEL---Petitioner

Versus

The STATE through FIA---Respondent

Cr. Rev. No.10 of 2016, decided on 26th August, 2016.

Penal Code (XLV of 1860)---

----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, public servant committed misconduct---Bail---Direction to surrender before Trial Court and move fresh bail application---Accused was allowed bail by the Trial Court for two months on medical ground, with the direction to surrender before the Trial Court after completion of medical treatment---Accused did not turn up after completion of period of two months---Bail allowed to the accused was recalled by the Trial Court---Prosecution had alleged that accused was still under medical treatment---Keeping in view the circumstances that accused was still under medical treatment in a hospital and to secure the ends of justice, bail recalling order was suspended---Accused was directed to surrender himself before the Trial Court within a period of one month---Accused would be at liberty to move fresh bail petition before the Trial Court---Revision petition was disposed of accordingly.

Basharat Ali and Muhammad Iqbal for Petitioner.

Javed Akhtar, Dy. Attorney General for the State.

2018 M L D 1324

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SHAREEF-UD-DIN---Petitioner

Versus

Mir AFZAL and 2 others---Respondents

Criminal Miscellaneous No. 96 of 2016, decided on 24th August, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Attempt to commit qatl-i-amd, common intention and possession of unlicensed arm---Petition for cancellation of bail, dismissal of---Accused were directly charged of the offence but no overt act was attributed to them---Prosecution story as per FIR was that the accused opened fire on the complainant party---Record showed that no crime empty was recovered from the place of occurrence---Alleged firing was ineffective and question of intention to kill the complainant party would be determined by Trial Court after recording evidence---Strong and exceptional grounds were required for cancellation of bail---No infirmity was found in bail granting order---Petition for cancellation of bail was declined, in circumstances.

Raja Zia-ur-Rehman for Petitioner.

Abdul Nasir for Respondents Nos.1 and 2.

Malik Sherbaz, Dy.A.G for Respondent No.3.

2018 M L D 1346

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

FARAMOSH---Petitioner

Versus

MEHBOOB and another---Respondents

Cr. Misc.127 of 2016, decided on 30th September, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.324, 34 & 114---Attempt to commit qatl-i-amd, common intention, abettor present when offence was committed---Bail, confirmation of---Three co-accused, had been discharged by the Police under S.169, Cr.P.C., due to deficient evidence---Role of accused, was similar to one attributed to accused persons released by the Police---Accused was attributed the role of only abetment in the FIR---Rule of consistency though did not attract in the case as the finding of the Police was not binding on the court, but propensity demanded that person, placed/attributed similar role, to be treated alike---Complainant failed to make out a case for recalling the well reasoned judgment of the Trial Court, which was accordingly upheld and cancellation of bail was declined.

Raja Shakeel Ahmad and Irfanullah for Petitioner.

Malik Sherbaz, Deputy Advocate General for Respondent No.1.

Shabaz Ali and Basharat Ali for Respondent No.2.

2018 M L D 1352

[Gilgit-Baltistan Chief Court]

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

SHER JAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 106 of 2016, decided on 5th October, 2016.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 34 & 114---Anti-Terrorism Act (XXVII of 1997), Ss. 21-L & 7---Qatl-i-amd, common intention, abscondance, abettor present when offence was committed, terrorism---Bail, grant of---Order sheet revealed that prosecution after rejection of first bail petition made no substantial progress to complete the case---Co-accused were already on bail---Bail was allowed to accused.

Shahbaz Ali for Petitioner.

Dy. A.G. for the State.

2018 M L D 1406

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SHAMSUL ISLAM---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.120 of 2016, decided on 20th September, 2016.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), Ss. 420, 464, 468 & 471---Cheating and dishonestly inducing delivery of property, making of a fake document, forgery for the purpose of cheating, using as genuine of forged document---Quashing of FIR---Accused had sought quashing of FIR mainly on the ground that a civil case regarding the same dispute was pending adjudication before the civil court and respondent, just to exert pressure on accused and his family, had resorted to criminal proceedings to achieve his nefarious ends---Contents of the plaint filed in the civil court, showed that the criminal matter and civil suit were so interlinked that result of one would affect the fate of other---Criminal proceedings, were not normally postponed till disposal of civil litigation, except where criminal liability was dependent upon the result of civil litigation or so intimately connected with the same as to cause damage and grave injustice---No invariable rule existed to stay proceedings, and the matter was one of discretionary---Criminal proceedings were stayed by the Chief Court till the decision of civil suit pending adjudication.

Raja Shakeel Ahmad for Petitioner.

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

2018 M L D 1545

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

AMIR KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.134 of 2016, decided on 30th September, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.73---Qatl-i-amd, common intention---Bail, grant of---Trial Court, failed to obey the clear direction of Chief Court to the effect that the "trial of the case would be concluded within 90 days by conducting trial on day to day basis" with further direction not to grant any unnecessary adjournments to either of the parties---To facilitate the Trial Court, the directions were also issued to summon the Investigating Officer of the case; who was to be directed to ensure production of the prosecution witnesses on each and every date of hearing, but the Trial Court did not follow the clear directions of the Chief Court---Whenever any direction was issued by Chief Court, all the Judges of District Judiciary were bound to obey the same in letter and spirit to maintain the discipline in judiciary; even otherwise under Art.73 of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, the decisions of Chief Court were binding on subordinate courts---Clear directions of Chief Court having not been followed by the Trial Court, bail was allowed to accused, irrespective of merits/demerits of the case, in circumstances.

Imtiaz Hussain for Petitioner.

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

2018 M L D 1556

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

GUL FARAZ and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No.124 of 2016, decided on 6th September, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.354, 392, 458 & 34---Assault or criminal force to woman with intent to outrage her modesty, robbery, lurking house-trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint, common intention---Bail, grant of---Trial Court, was directed to hear the arguments and dispose of the case before 31 August 2016, but Trial Court failed to follow the direction of Chief Court---Deputy Advocate General also did not instruct the District Prosecutor to ensure compliance of orders of Chief Court---Chief Court observed that whenever direction was given by a superior court, it must be acted upon, or at least some effect seemingly should have been made to achieve the object---If any direction given by Chief Court, was not complied with by District Judiciary, it could expose the responsibilities for disciplinary action---Trial Court, was directed to submit compliance report to the Registrar of Chief Court by 31 August, 2016, but no such report had been received, which was another glaring defiance of the orders of the Chief Court---Staff of the Trial Court was bound to inform predecessor Judge about the direction of the Chief Court, which they failed---Chief Court did not initiate disciplinary action against the delinquent officials of the staff of the Trial Court, but warned them to be careful in future---Further adjournment of the bail application, in circumstances, would negate the very spirit of the order of Chief Court---Accused persons, were admitted to bail, in circumstances.

Shahbaz Ali for Petitioner.

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

2018 M L D 1582

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

The STATE through Advocate-General and another---Petitioners

Versus

MIRZA HUSSAIN---Respondent

Criminal Miscellaneous No.30 of 2018, decided on 24th April, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Cheating, forgery and using as genuine a forged document---Cancellation of bail application for---Accused being authorized agent of company allegedly submitted property documents during bidding on behalf of the company, but said documents on verification were found forged---Complainant contended that Sessions Court had wrongly granted pre-arrest bail to the accused/respondent---First Information Report had been lodged by a responsible Government official having no personal grudge against the accused to falsely implicate him in the case---Involvement of the accused in submission of forged documents had not been denied by the respondent---Sessions Court had allowed bail before arrest without keeping in view the fact that bail before arrest was only to be granted, when the registration of the case was based on enmity, apparent malafide, or where no offence was either shown to have been committed or where from bare reading of FIR, no offence was made out---Such ingredients were completely lacking in the present case---Chief Court recalled the order granting pre-arrest bail, passed by the Sessions Court---Application for cancellation of bail was allowed, in circumstances.

Dy. A.G. assisted by Anis Ullah Khan, Legal Advisor Food Department G.B. for Petitioners.

Islam-ud-Din for Respondents.

2018 M L D 1604

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

ZAHEER-UD-DIN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.171 of 2016, decided on 5th December, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 377 & 337-F---Unnatural offence, hurt---Bail, grant of---Remand of accused was not taken after he was committed to judicial custody on 19-09-2016 on the order of Chief Court---Detention of accused from 19-09-2016 till 05-12-2016 was illegal---No option was left with the court except to release the accused on bail---Bail was granted accordingly.

1985 PCr.LJ 603; 1990 PCr.LJ 1831; PLD 1984 Pesh. 45 and 1979 PCr.LJ 1069 rel.

Burhan Wali for Petitioner.

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

Superintendent Jail Ghizer along with record present.

2018 M L D 1728

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

IMRAN and another---Petitioners

Versus

The STATE---Respondent

Cr. Misc (B) Nos.14 & 16 of 2018, decided on 23rd January, 2018.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking narcotics---Bail, grant of---Further inquiry---Prosecution case was that 456 grams charas was recovered from the accused and co-accused---Police had discharged the co-accused hence rule of consistency would apply to the case of accused---Co-accused-petitioner had not been nominated in the FIR and nothing had been recovered from his possession, hence case to the extent of co-accused-petitioner required further inquiry---Meagre quantity of narcotic was allegedly recovered from the possession of accused as such, his case did not fall within the ambit of prohibitory clause of S.497, Cr.P.C.---Grant of bail, in such like cases, was a rule and refusal an exception---Accused were admitted to bail in circumstances.

Nadeem Ahmed for Petitioners.

Dy. Advocate General for the State.

2018 M L D 1755

[Gilgit-Baltistan Chief Court]

Before Muhammad Umar and Ali Baig, JJ

NIZAM-UD-DIN and 2 others---Petitioners

Versus

The STATE through NAB---Respondent

W.Ps. Nos.50, 59 and 62 of 2018, decided on 7th June, 2018.

National Accountability Ordinance, (XVIII of 1999)---

----Ss. 9(a)(iv) & 9(b)---Bail, grant of---Prima facie case---Delay in filing reference---Diabetic patient---Petitioners were government servants and were arrested by National Accountability Bureau on allegations of embezzling huge funds causing loss to national exchequer---Petitioners raised the plea that there was delay in filing of reference and one of the petitioners was diabetic---Validity---Competent authority constituted inquiry committee which concluded that petitioners had misappropriated funds/public money meant for completion of various projects by misusing their authority which subsequently led to their arrest---National Accountability Bureau authorities found petitioners prima facie connected with commission of alleged offence---Petitioner who was diabetic, failed to produce valid medical certificate or opinion of Medical Board with regard to his ailment---Writ petitions were dismissed in circumstances.

Asadullah Khan and Raja Shakeel Ahmed for Petitioners.

Amin Khan, Special Prosecutor for respondent/NAB.

2018 M L D 1777

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

AMIR KHAN---Petitioner

Versus

The STATE and another---Respondents

Cr.Misc. No.35 of 2018, decided on 16th March, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 496 & 561-A---Penal Code (XLV of 1860), S. 337-A(ii)---Application for quashment of order---Administrative order passed by Judicial Magistrate---Station House Officer of a Police Station had conducted investigation in a case and released the accused on bail as he was juvenile at the time of occurrence---Judicial Magistrate passed order that SHO had released the juvenile accused on bail though accused had committed non-bailable offence and thus he had misused his power, therefore FIR be registered against him (SHO)---Validity---Admittedly, accused was juvenile at the time of commission of alleged offence---Under S. 496, Cr.P.C., the SHO could release the accused person in bailable offence on his furnishing bail bonds---Record showed that juvenile accused had allegedly committed offence under S.337-A(ii), P.P.C. and punishment provided for the said offence was five years imprisonment---Under provision of S.10(5) of Juvenile Justice System Ordinance, 2000, offence allegedly committed by the juvenile accused was bailable---If the SHO had no power to grant bail to the accused then at the most, bail granting order of SHO could be cancelled by the competent court of jurisdiction---In such situation, Judicial Magistrate could not issue order for lodging FIR against the petitioner/SHO as he had not committed any offence---Judicial Magistrate, in the present case, had travelled beyond his jurisdiction while passing impugned order, which was found arbitrary---Petition for quashment was allowed by the High Court and impugned order was set aside.

2006 PCr.LJ 518 and 1997 SCMR 1503 rel.

Raja Shakeel Ahmed for Petitioner.

Sarfraz Ahmed Dy. Advocate General for the State.

2018 M L D 1909

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

Mst. SHUKOOR BI---Petitioner

Versus

The STATE---Respondent

Cr. Misc. No.126 of 2018, decided on 6th August, 2018.

Criminal Procedure Code (V of 1898 )---

----Ss. 497(1), first proviso & 103---Prohibition (Enforcement of Hadd) Order, (4 of 1979), Arts. 3 & 4---Possession of 40 litres local liquor---Bail, grant of---Lady accused---Effect---Exclusive possession of intoxicant---Effect---Absence of independent witness---Effect---Selling/ transportation of liquor was not alleged in the FIR---Police raided the house of the petitioner (female) and recovered liquor from a bath room---Contention of accused lady was that no respectable inhabitant of the locality was present at the time of alleged recovery---Contents of FIR transpired that the local liquor was allegedly recovered from a bath room of house of the petitioner which was not in the exclusive possession of the petitioner as other family members of the petitioner were also residing in the said house at the time of alleged recovery, as such liquor was not recovered from the exclusive possession of the petitioner lady---Admittedly, the petitioner was not selling or transporting any intoxicant substance---Prosecution for the purpose of proving charge of selling intoxicant/local liquor was bound to procure the purchaser, and purchased intoxicant---Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 being bailable and petitioner was a female she was entitled to concession of bail under the first proviso of S. 497(1), Cr.P.C---Police was duty bound to have made efforts for securing independent person from vicinity of crime to act as recovery witness but it had failed to do so, hence violated the mandatory provision of S. 103, Cr.P.C.---Recovery of liquor from the house of petitioner had become doubtful---Petitioner was admitted to bail, in circumstances.

Irfanullah for Petitioner.

Dy. Advocate General for the State.

2018 M L D 1931

[Gilgit-Baltistan Chief Court]

Before Muhammad Umer and Ali Baig, JJ

The STATE---Petitioner

Versus

MANZOOR HUSSAIN---Respondent

Cr. Misc. No.132 of 2018, decided on 15th August, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Control of Narcotic Substances Act ( XXV of 1997), Ss. 9(c) & 21---Possession of one kilogram of Charas and five grams of opium---Bail, application for cancellation of---Border line offence---Scope and effect---Contention that post-arrest bail was wrongly granted by the Trial Court in the offence which fell under prohibitory clause of S.497, Cr.P.C. and that accused/respondent was directly charged in promptly lodged FIR---Admittedly, only 1000 grams of Charas was recovered from the possession of the accused as evident from the contents of FIR---Where recovery of contraband did not exceed the limit between 900 grams to 1500 grams the case, being border-line between Ss. 9(b) and 9(c) of Control of Narcotic Substances Act, 1997 , prima facie, did not fall within the ambit of prohibitory clause of S. 497(1) Cr.P.C and grant of bail in such case was a rule and refusal was an exception---Record revealed that Head Constable had lodged the FIR against the accused and arrested him which was a gross violation of provision of S. 21 of Control of Narcotic Substances Act, 1997, hence case of the accused was one of further inquiry---When bail was granted by the Court of competent jurisdiction on the basis of valid reasons, the same could not be cancelled until and unless exceptional grounds were established by the prosecution---Trial Court had rightly granted bail to the accused and no valid grounds were available to cancel the same---Application for the cancellation of post-arrest bail was dismissed accordingly.

PLD 2013 Peshawar 32 ref.

Dy. Advocate General for Petitioner.

2018 M L D 2092

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

LEGAL HEIRS OF LATE SARWAR KHAN and others---Petitioners

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, Gilgit-Baltistan, Gilgit and 8 others---Respondents

Civil Revision No.95 of 2014, and Civil Revision No.8 of 2015, decided on 9th September, 2016.

Civil Procedure Code (V of 1908)---

----O.VIII, R. 10 & S. 80---Written statement---Filing of---Limitation---Defendants did not file written statement---Trial Court struck off defence of defendants but Appellate Court set aside the said order---Validity---Trial Court afforded ample chance to the defendants for filing written statement but they did not file the same---Court was not bound to adjourn the case for ninety days or even thirty days enabling the defendants to file written statement---Defendants seemed to be not interested in progress of the case---Impugned order passed by the Appellate Court was set aside---Revision was allowed accordingly.

Mir Akhlaque Hussain for Petitioners.

Additional Advocate General for Respondents Nos. 1 and 2.

2018 M L D 93

[High Court (AJ&K)]

Before Muhammad Sheraz Kayani, J

INHABITANTS OF VILLAGE NAROL through L.Rs.---Petitioners

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 5 others---Respondents

Writ Petition No.570 of 2001, decided on 2nd June, 2017.

(a) Azad Jammu and Kashmir Land Revenue Act (XVII of 1967)---

----Ss. 161 & 162---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 44 & 4(14)---Writ petition---Mehfooz Kahcharai land converted to Shamilat deh by the Settlement Commissioner---Transfer of land by the Government to the Development Authority without assailing the order of Settlement Commissioner---Effect---Orders of Settlement Commissioner had not been challenged before proper forum within prescribed period of limitation---Authorities (Government) were provided remedy of appeal before the Board of Revenue within ninety days which was not done---Orders of Settlement Commissioner after expiry of prescribed period of limitation had attained finality---Findings of any Court/forum of competent jurisdiction could not be nullified by exercising administrative powers---Authorities had attempted to resolve the controversy by exercising administrative powers of the Government---When land in question was Shamilat deh, the same was property of villagers proportionate to their ownership and they could not be deprived of their lawful right---Government had no right of ownership or even possession on the suit land---Land in question could not be transferred by the Government to the Development Authority---Any person or institution living outside the limits of village could not claim any title upon the Shamilat deh---Impugned notification had been issued without lawful authority having no legal effect which was set aside---Proceedings conducted in furtherance of said notification stood quashed---Writ petition was allowed in circumstances.

PLD 1963 SC 322; PLD 1963 Lah 575; PLD 1984 SC(AJ&K)77; PLD 1985 SC(AJ&K)56; PLD 1985 SC(AJ&K) 6; PLD 1987 SC 344; PLD 1981 Lah. 336; 2004 SCR 435; 2014 SCR 921 and 2005 SCR 109 ref.

2012 CLC 1655 and Muhammad Akram and another v. Custodian Evacuee Property and 7 others 2003 SCR 442 rel.

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

----S. 4(14)---Protection of property---No one could be deprived of his property without adopting due process of law and providing compensation.

(c) Administration of justice---

----When basic order was void, all the superstructures built on the same would be deemed to be void.

PLD 1969 SC 430; PLD 1992 SC 184 and PLD 2004 Lah. 815 rel.

(d) Administration of justice---

----If a Tribunal or Court having jurisdiction had decided a matter, same could not be reversed through executive orders.

(e) Words and phrases---

---'Mehfooz Kahcharai'---Meaning.

Ch. Amjad Ali for Petitioners.

A.A.G. for the Respondents.

2018 M L D 196

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C.J.

MUNEER AHMED ABBASI and 5 others---Petitioners

Versus

SESSIONS JUDGE/JUSTICE OF PEACE BAGH, DISTRICT BAGH and 5 others---Respondents

Writ Petition No.129 of 2015, decided on 22nd July, 2017.

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

----Ss. 154 & 155(1)---Classes of criminal cases---First Information Report---Scope---Two classes of criminal cases namely cognizable and non-cognizable were categorized by the Code of Criminal Procedure, 1898---Information relating to the commission of cognizable offence was dealt with under S. 154, Cr.P.C., whereas, information relating to commission of non-cognizable offence was dealt with as per S. 155(1), Cr.P.C.

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

----Ss. 154 & 155---First information report---Scope---Incharge of police station was required to lodge FIR in the relevant book kept at the police station under S. 154 of the Code of Criminal Procedure, 1898, if according to the information given to him, prima facie, a cognizable offence was made out---If such information disclosed a non-cognizable offence, Incharge of police station was required under S.155(1), Cr.P.C. to enter substance of such information in the relevant book kept at the police station and refer the information to the concerned Magistrate---Police Officer could not refuse to enter information in the relevant book.

Muhammad Azam v. The State and 2 others, 2005 PCr.LJ 906; Sajid Iqbal v. Station House Officer, P.S. Miana Gondal, District Mandi Baha-ud-Din and 3 others, PLJ 2010 Lah. 68; Dr. Babar Hussain v. S.H.O., Police Station City Courts, Karachi and another, 2013 PCr.LJ 1002; Shanshah Shamil Paracha v. Ex-Officio Justice of Peace and others, 2013 MLD 674; Miandad Ghanghro v. S.H.O. P.S. Kandhra and others 1989 PCr.LJ 1945; Qudrat Hussain v. The State 1996 PCr.LJ 735 and Altaf Hussain v. Abdul Samad and 3 others 2000 SCMR 1945 ref.

Muhammad Ilyas v. Senior Superintendent of Police and another 1989 PCr.LJ 1129 and Mst. Malka Jan v. I.G. Police N.-W.F.P. Peshawar and 2 others PLJ 2000 Pesh. 3 rel.

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

----Ss. 22-A & 22-B----Application for registration of case against accused persons was allowed by Ex-Officio Justice of Peace---Contention of petitioners was that respondent had moved application against the petitioners before local police stating that his wife was injured by the petitioners---Police entered a report in roznamcha and injured was referred to the hospital for medical examination---After obtaining medical report, a complaint was filed by the police as per order of the Magistrate against the petitioners in the court of competent jurisdiction---Respondent moved application under S. 22-A, Cr.P.C. for registration of FIR before Justice of Peace, which was allowed---Validity---Record showed that application was moved before the incharge of police station, he referred the matter to the Magistrate who directed the police to lodge complaint against petitioners/accused---Order passed by the Magistrate was recorded contrary to scheme of law laid down in S. 155, Cr.P.C.---Paramount duty of Magistrate concerned was to allow the concerned police to initiate investigation---Direction for filing complaint against petitioners-accused, in circumstances, was unlawful, therefore, whole proceedings conducted by the concerned police and Magistrate were liable to be quashed as such---Constitutional petition was dismissed in circumstances.

Syed Shafqat Hussain Gardezi for Petitioners.

Nemo for Respondents Nos. 1 to 4.

2018 M L D 275

[High Court (AJ&K)]

Before Mohammad Sheraz Kiani, J.

TUSEEF AHMED KHAN---Petitioner

Versus

JUSTICE OF PEACE/SESSIONS JUDGE BAGH and 3 others---Respondents

Writ Petition No.26.08(sic) of 2016, decided on 18th October, 2017.

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

----S. 154---First information report---Scope---On receiving information regarding commission of offence, Police Officer/SHO was bound to register a case and after registration of the case, he could investigate the matter---If any of the offences reported was not committed, the Investigating Officer had the authority to delete the same, but he was not authorized to order for further inquiry---Police had the authority to take cognizance of the offence, investigate the matter, collect the evidence and then place same before the Trial Court---Investigating Officer could not give its final finding or opinion with regard to offence or exonerate an accused.

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

----Ss. 22-A & 22-B---Application to Justice of Peace for registration of case against petitioner---Applicant, in the present case, had moved application to the SHO who, in its inquiry, reached to the conclusion that from the contents of application to SHO and the statement of the applicant, no cognizable offence had taken place, therefore, no criminal case could be registered against petitioner---Applicant (respondent) approached the Ex-officio Justice of Peace for direction to police to register case against petitioner which was allowed---Validity---Record showed that allegation made in the application to SHO filed by the respondent, prima facie, constituted offence under S. 341, P.P.C., which was cognizable offence and police was bound to register a case---Police, by not registering the case had violated the statutory law and the Ex-officio Justice of Peace had rightly directed to register a case---Writ petition was dismissed in circumstances.

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

----S. 173---Report of police after investigation---Scope---Police after necessary investigation had to submit report under S. 173, Cr.P.C. to the court.

Saqib Ahmed Abbasi for Petitioner.

2018 M L D 1160

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C.J

MUHAMMAD FAROOQ and 3 others---Appellants

Versus

MUHAMMAD ASLAM---Respondent

Civil Appeal No.10 of 2009, decided on 20th February, 2018.

(a) Islamic Law---

----Gift---Proof of---Lis pendens, principle of---Applicability---Scope---Contention of plaintiff was that matter with regard to land in question was subjudice before Board of Revenue and gift deed was hit by principle of lis pendens---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Gift deed was executed in presence of plaintiff and defendants-donees---Defendants had signed the said gift deed---Execution of gift deed had been proved by the defendants-donees by producing its marginal witnesses---Defendants were in possession of the suit land and they had constructed residential houses over the same---Principle of lis pendens was not applicable in the present case---Impugned judgment passed by the Appellate Court was set aside and that of Trial Court was restored---Second appeal was allowed in circumstances.

Inayat Ali Shah v. Anwar Hussain 1995 CLC 1906; Abdul Aziz v. Mst. Jantay Bibi 1999 CLC 1505; Mst. Gul Bibi and another v. Mst. Sajida Bibi 2000 CLC 399; Chief Engineer Hydel (North) and Project Director WAPDA WARSAK v. Zafrullah Shah and another 2003 SCMR 686 distinguished.

(b) Islamic Law---

---Gift---Revocation of---Scope---Gift could be revoked by the donor at any time before delivery of possession.

Mulla's Muhammadan Law, section 167 ref.

Raja Jahangir Akram Khan for Appellants.

2018 M L D 1402

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

Ch. IBRAR AHMED---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION, THOTHAL, MIRPUR and 4 others---Respondents

Criminal Miscellaneous Application No.111 of 2017, decided on 8th March, 2018.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), Ss. 448, 451 & 34---House trespass, house trespass in order to commit offence punishable with imprisonment, common intention---Quashing of FIR---Scope---Petitioner had alleged that complainant filed a frivolous, vague and mala fide application, on which, the concerned police registered the impugned FIR under Ss.448, 451 & 34, Penal Code, just to humiliate the petitioner---Petitioner, after registration of the case, had applied for pre-arrest bail; however, after addition of the offence under S.14, of Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Ordinance in the challan, the petitioner moved another bail application before the said court---Validity---Record showed that petitioner had not committed any offence and the case was registered due to some mala fide intention---Both questions were questions of facts, which could not be determined at that forum, as it was the function of Investigating Officer and thereafter it was for the Trial Court to resolve the question of facts after recording evidence---First Information Report could be quashed under inherent powers of the High Court if it was considered that the case had been registered with unlawful authority and from contents of the FIR, no case was made out---High Court could not interfere with the investigation of the case under S.561-A, Cr.P.C., which was the domain of the Investigating Authority---Petition for quashing of FIR was not maintainable.

2012 PCr.LJ 630; PLD 2010 Kar. 204; 1999 MLD 1632; Shah Muhammad v. Muhammad Younis and 4 others 2014 SCR 183 and Parveen Azam and others v. SSP District Mirpur and 4 others 2015 SCR 837 rel.

Ch. Jahandad Khan for Petitioner.

A.A.G. for the State.

2018 M L D 1817

[High Court (AJ&K)]

Before Raza Ali Khan, J

MUHAMMAD MUSEEB and 2 others---Appellants

Versus

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

Appeal No.26 of 2008, decided on 29th May, 2018.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement---Agreement to sell---Scope---Agreement to sell did not confer any right in the property---Such document could only be utilized for procuring sale deed by filing suit for specific performance.

Ch. Liaqat Ali v. Mirza Abdul Aziz and 3 others 2001 CLC 1502; Hameedullah and 2 others v. Muhammad Hussain and 2 others 2006 SCR 183; Muhammad Siddique and 6 others v. Abdul Aziz Ratalvi and 7 others 2016 YLR 612 and Muhammad Siddique Khan and another v. Zareen Khan 2016 SCR 1712 rel.

Ch. Riaz Alam for Appellants.

2018 M L D 1942

[High Court (AJ&K)]

Before Raza Ali Khan, J

RIASAT alias SATI---Petitioner

Versus

The STATE through Advocate General Azad Jammu and Kashmir, Muzaffarabad---Respondent

Criminal Revision No.108 of 2018, decided on 25th May, 2018.

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

----Ss. 497 & 498---Bail---Grant and refusal of---Principles---Grant and refusal of bail was discretion of the court, and such discretion could be exercised keeping in view overall circumstances of the case in judicious manner for the ends of justice---Bail application could be decided in routine, rather to form an opinion---Court had to make tentative assessment of contents of FIR, statements recorded under S.161, Cr.P.C., statements recorded in court and other material collected by the Police---Deeper appreciation of evidence at bail stage was not warranted by law, it could prejudice the case of either party at trial.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking narcotics---Bail, grant of---Allegedly, 1200 grams charas had been recovered from accused at day time---Police had not associated any private person as witness of recovery of alleged charas nor made an effort to involve any private person to act as a witness to maintain transparency of alleged recovery; nor furnished any explanation in that regard which had made the story of prosecution doubtful---Benefit of doubt could be extended in favour of accused even at bail stage---Accused was behind bars for two months---Where recovery of substance, did not exceed the limit of 1500 grams, the case being of borderline between clauses (b) and (c) of S.9 of Control of Narcotic Substances Act, 1997, accused was entitled to bail---Challan had been submitted before the court of competent jurisdiction and statements of two prosecution witnesses had been recorded---Prima facie there were contradictions in the statements of prosecution witnesses so recorded; on that ground also, accused was entitled to bail---No recovery had been made from accused, rather he had been involved in a false case---Accused was granted bail in circumstances.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 362; Javed Afridi v. The State Revision Petition No.3 of 2018; Mubarak Ali v. The State PLD 2009 Lah. 632; Muhammad Ashraf v. The State 2000 PCr.LJ 1160 and Ayaz v. The State 2011 PCr.LJ 177 ref.

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

----Ss. 497, 156 & 159---Investigation of cognizable cases---Power of Investigating Agency---Bail, grant of---Purpose to empower the Investigating Agency to arrest an accused and keep him in custody was to provide the Investigating Agency reasonable opportunity to investigate the matter in a free and fair atmosphere; because if after investigation any flaw was found, the benefit of the same would be extended in favour of accused---If the person of accused was no more required to the Police for further investigation; and there was no chance for absconsion of accused and to influence prosecution witnesses, he could not be refused to be released on bail; because it would tantamount to punish him for an offence without regular trial.

Raja Aftab Ahmed Khan for Petitioner.

2018 M L D 26

[Islamabad]

Before Aamer Farooq, J

KHALID NAZIR and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Revision No. 30 of 2014, decided on 11th August, 2017.

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

----S. 203---Dismissal of private complaint---Second complaint---Essentials---Complaint was dismissed after discussing statements of witnesses and the documents placed on record---No bar existed in filing second complaint; however, in the second or subsequent complaint, fresh facts and circumstances were to be disclosed.

Mst. Shamim Akhtar v. Abdul Rauf Dogar 1999 PCr.LJ 1870 and Zahoor v. Said-Ul-Ibrar 2003 SCMR 59 rel.

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

----Ss. 200 & 204---Private complaint---Issuance of process---Scope---Issuance of summons in a criminal complaint should not be exercised mechanically, without application of mind.

Abdul Wahab Khan v. Muhammad Nawaz 2000 SCMR 1904 and Muhammad Saleem v. Fazal Muhammad 2001 SCMR 1738 rel.

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

----S. 200----Private complaint---Limitation---Scope---No limitation prescribed for filing of a criminal complaint; however, the delay in approaching the court cast doubt on the veracity of allegations levelled in the same.

Muhammad Fiaz Khan v. Ajmer Khan 2010 SCMR 105 and Zafar v. Umer Hayat 2010 SCMR 1816 rel.

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

----Ss. 439, 200 & 204---Private complaint---Summoning of accused---Prosecution case was that the daughter of respondent No. 2 found dead in her Madrassa---FIR was lodged under S. 302 Penal Code, 1860 on the complaint of respondent No. 2---No one was nominated as accused in the said FIR---Police submitted report before the Judicial Magistrate, who passed order for cancellation of FIR on the basis of police report---Respondent filed private complaint, in which after preliminary inquiry, it was concluded that no case was made out and the same was dismissed accordingly---Respondent No. 2 filed another complaint, in which matter was entrusted to Judicial Magistrate to conduct inquiry under S. 202, Cr.P.C. and submitted a report---Trial court, seized of matter, summoned the accused in private complaint---Validity---Record showed that trial court while passing the impugned order , issued summons to the accused persons without discussing and appreciating the inquiry report furnished by the Judicial Magistrate---Mere mentioning of the fact in the impugned order that the same had been taken into account did not satisfy the requirements of S. 202, Cr.P.C.---In such circumstances, criminal revision petition was allowed by setting aside the impugned order---Consequently, the complaint filed by the respondent No. 2 would be deemed to be pending before the Trial Court, which would decide the same afresh.

Ghulam Akbar v. Riaz 2006 YLR 286; Ghulam Hussain v. Muhammad Waseem 1999 PCr.LJ 249; Ijaz Javed v. The State 2000 PCr.LJ 595; Mehdi Hassan v. The State 1999 MLD 499; Mushtaq Ahmed v. Khalida Bibi 2014 PCr.LJ 814; Khuda Bakhsh v. Abdur Rehman 2007 YLR 3187 and Muhammad Anwar Ujali v. Asghar Ali 2015 MLD 1145 ref.

Sardar Abdur Raziq Khan for Petitioner.

Yasir Barkat State Counsel for Respondent No.1.

Sheraz Nazir in person.

2018 M L D 176

[Islamabad]

Before Shaukat Aziz Siddiqui, J

YASIR KHAN and others---Petitioners

Versus

The STATE and another---Respondents

Crl. Misc. No.403-B of 2017, decided on 31st August, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 376(2), 377, 394 & 411---Rape committed by two or more persons, unnatural offence, voluntarily causing hurt in committing robbery, dishonestly receiving stolen property---Bail, refusal of---Prosecution case was that three unknown armed persons, entered in the house of complainant, made his family members hostage and tied them with ropes, took cash of more than rupees five lac, four mobiles, registration book of motorcycle with them---Accused persons committed zina-bil-jabr and unnatural offence with all the three ladies present at home---Accused persons were not specifically nominated in the FIR---Accused persons had been identified by the victim ladies at the time of identification parade with a specific role of committing zina-bil-jabr, unnatural offence and preparation of movies of the act committed upon the said ladies---Parties were not previously known to each other, thus no question of either enmity or any kind of malice or mala fide of false implication of accused existed---Delay in lodging the FIR was well explained by the complainant---Offences, except under S. 411, P.P.C. fell within the prohibitory clause of S. 497, Cr.P.C.---Circumstances established that victim ladies had fully implicated the accused persons in commission of offence which was duly supported by the medical evidence and recoveries already effected---Bail was refused in circumstances.

Nasir Hussain v. The State and another PLJ 2015 Cr.C. Lah. 343; Muhammad Imran v. The Sate and others 2014 PCr.LJ 456; Nazar Hussain v. The State and others 2014 PCr.LJ 435; Waqar Shah v. The State 2012 PCr.LJ (Lahore) 866; Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Muhammad Yameen alias Raja v. The State and others 2009 SCMR 84; Muhammad Suleman alias Dagai v. The State and another 2017 PCr.LJ Note 27; Waseem Bashir v. The State and others 2016 PCr.LJ 454; Salman v. The State 2014 PCr.LJ 641; Rasheed Ahmed v. The State 2010 PCr.LJ 398; Arif Ali Ansar and another v. The State 2010 YLR 2019; Zahir Muhammad v. The State and another 2008 YLR 837; Sarfraz alias Sarwar v. The State 1992 PCr.LJ 555 and Ali Gohar v. The State 1989 PCr.LJ 24 rel.

Nasreen Bibi v. Farrukh Shahzad and another 2015 SCMR 825 rel.

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

----S. 497--- Bail--- Appreciation of evidence--- Scope--- Deeper appreciation of evidence was not to be made at the bail stage.

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

----S. 497---Bail---Principle---Observations made in bail matter was tentative in nature and would not affect the merit of the case.

Qaisar Mehmood Awan for Petitioner.

M. Akram Gondal, State Counsel along with Azhar Hussain Shah, DSP(Legal) and Bashir Inspector/I.O. for the State.

2018 M L D 454

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Major ANEES-UR-REHMAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ISLAMABAD and another---Respondents

W.P. No.2039 of 2016, decided on 19th October, 2017.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Suit for recovery of dower and dowry articles---Allegation by wife of snatching gold ornaments---Paying the price of gold ornaments and dowry articles through local commission---Scope---Objections by ex-wife to the report of local commission---Effect---Petitioner/ex-husband contended that Appellate Court had wrongly granted decree of gold ornaments allegedly snatched as he had paid the amount to respondent/ex-wife in lieu of gold ornaments (dower) and the discrepancies in the dowry articles---Respondent/ex-wife contended that gold ornaments snatched by her ex-husband were not included in the said amount so Appellate Court had rightly decreed the same---Respondent/ex-wife in her evidence did not describe that the gold ornaments were snatched from her by the respondent and failed to produce the receipts of the 07 tolas of gold ornaments which she claimed to have been given by her parents---Held, that simply because no payment had been made by the petitioner/ex-husband for the 07 tolas of gold ornaments, the allegation as to snatching of gold ornaments stood proved---Even if it was assumed that the gold ornaments were snatched by the ex-husband from the ex-wife, the fact remained that according to the report of the local commission the dowry articles (with some discrepancies) were returned by the ex-husband through her brother---Said dowry articles included the gold ornaments in the list submitted by the ex-husband as well as the list she submitted---Report of local commission, did not find mention of the discrepancies relating to the gold ornaments---In lieu of the discrepancies, Rs.84,000/- had been paid by the ex-husband---Had the discrepancies in the dowry articles handed over by ex-husband been referable to the gold ornaments, she would have certainly filed objections to the report of local commission---Since ex-wife had not taken any objection to the report of local commission, such fact disentitled her to assert that she had not received the gold ornaments mentioned in the list of dowry articles---Appellate Court had misread the evidence on record, judgment and decree passed by the said court was set aside---Judgment and decree passed by the Family Court was restored by the High Court---Constitutional petition was allowed accordingly.

M. Hussain Bhatti, Jameel Hussain Qureshi for Petitioners.

Mirza Nabeel Tahir for Respondent No.2.

2018 M L D 624

[Islamabad]

Before Aamer Farooq, J

EDUCATIONAL SERVICES PVT. LIMITED (ESL) through Company Secretary and 3 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Capital Administration and Development Division, Islamabad and another---Respondents

Writ Petition No. 2777 of 2016, decided on 19th January, 2018.

(a) Private Educational Institutions (Registration and Fee Determination) Rules, 2016---

----Rr. 3, 4 & 5---Fresh registration---Quantum of fresh registration fee---Petitioners were owners of private educational institutions and were aggrieved of high quantum of fresh registration fee fixed by authorities---Plea raised by Private Educational Institutions Regulatory Authority (PEIRA) was that high rate of fee was due to capacity of Institutions to pay the same and also due to the fact that PEIRA was an autonomous body and needed resources / funds for running its affairs---Validity---High Court declared provisions of Schedule II to Private Educational Institutions (Registration and Fee Determination) Rules, 2016, as unreasonable and struck down the same.

(b) Islamabad Capital Territory Private Educational Institutions (Registration and Regulation) Act (XI of 2013)---

----S.19---Private Educational Institutions (Registration and Fee Determination) Rules, 2016, Rr. 4(6) & 29---Penalty---Scope---Provisions of Rr.4 and 29 of Private Educational Institutions (Registration and Fee Determination) Rules, 2016, provided fine of Rs.3000/- and 2000/- respectively for each day during the period of offence---Validity---Provisions of S.19 of Islamabad Capital Territory Private Educational Institutions (Registration and Regulation) Act, 2013, provided that whoever violated provisions of the Act or Private Educational Institutions (Registration and Fee Determination) Rules, 2016, would be liable to be punished with imprisonment which could extend to one year or with fine which could extend to Rs.5000/- for each day during the period of offence---High Court set aside the provisions of R.4(6) and 29 of Private Educational Institutions (Registration and Fee Determination) Rules, 2016, as the same were ultra vires S.19 of Islamabad Capital Territory Private Educational Institutions (Registration and Regulation) Act, 2013.

(c) Private Educational Institutions (Registration and Fee Determination) Rules, 2016---

----R. 6---Constitution of Pakistan, Art. 18---Conditions for registration---Scope---Provisions of R.6 of Private Educational Institutions (Registration and Fee Determination) Rules, 2016, are unfair and unreasonable and also contrary to Art.18 of the Constitution.

(d) Private Educational Institutions (Registration and Fee Determination) Rules, 2016---

----R. 14---Addition of classes or introduction of additional subject---Scope---Provisions of R.14 of Private Educational Institutions (Registration and Fee Determination) Rules, 2016, were arbitrary and unreasonable---High Court struck down R.14 of Private Educational Institutions (Registration and Fee Determination) Rules, 2016, as application for introduction of a class or a subject, could not be regarded as an application for fresh registration.

(e) Private Educational Institutions (Registration and Fee Determination) Rules, 2016---

----R. 17---Issuance of school leaving certificate---Scope---Laying down parameters of issuance of or asking institution not to deduct any fee tantamount to exercising control in the administration and affairs of institution and the same was not permissible under Islamabad Capital Territory Private Educational Institutions (Registration and Regulation) Act, 2013---High Court struck down R.17 of Private Educational Institutions (Registration and Fee Determination) Rules, 2016, as same tended to interfere in the affairs of institution.

(f) Private Educational Institutions (Registration and Fee Determination) Rules, 2016---

----R. 27---Parent Teacher Syndicate---Scope---Creating Parent Teacher Syndicate and empowering it to perform various functions was ultra vires the Islamabad Capital Territory Private Educational Institutions (Registration and Regulation) Act, 2013---High Court struck down R. 27 of Private Educational Institutions (Registration and Fee Determination) Rules, 2016, as the same was impractical and unreasonable.

(g) Private Educational Institutions (Registration and Fee Determination) Rules, 2016---

----R. 28---Terms and conditions of Teachers---Scope---Supervisory role given to the Authority under Islamabad Capital Territory Private Educational Institutions (Registration and Regulation) Act, 2013, was to ensure that no institution should exploit or put teachers at a disadvantage while entering into agreement of employment but that did not mean that all aspects of agreement were to be provided for by the Regulator---High Court struck down R.28 of Private Educational Institutions (Registration and Fee Determination) Rules, 2016, being not tenable.

(h) Private Educational Institutions (Registration and Fee Determination) Rules, 2016---

----R. 35---Islamabad Capital Territory Private Educational Institutions (Registration and Regulation) Act (XI of 2013), Ss.3 & 4---Constitution of Pakistan, Art. 18---Entering into contracts and ventures, restraint on---Right to trade---Scope---High Court struck down R.35 of Private Educational Institutions (Registration and Fee Determination) Rules, 2016, as the same amounted to restraint of trade and was ultra vires Ss.4 and 5 of Islamabad Capital Territory Private Educational Institutions (Registration and Regulation) Act, 2013.

(i) Private Educational Institutions (Registration and Fee Determination) Rules, 2016---

----Rr. 36, 37 & Sched. V---Constitution of Pakistan, Art. 199---Constitutional petition---Regulation of fee---Scope---Petitioners were owners of private educational institutions and were aggrieved of the provisions regarding charging of fee according to fee structure provided in Sched. V to Private Educational Institutions (Registration and Fee Determination) Rules, 2016---Validity---Authority could not lay down across the board structure for all institutions by providing fee structure---Charging of fee was an individual act of any institution which was based on multifarious factors---Likewise in case of lawyers or doctors, their regulators could not prescribe charging of uniform fee, as the same varied with qualification or experience of the professional---Blanket prescription of fee could not be made by the Authority---Authority under Islamabad Capital Territory Private Educational Institutions (Registration and Regulation) Act, 2013, had the power and authority to regulate fee of an institution but same power had to be exercised for each institution according to its individual needs and circumstances---High Court struck down Rr.36 and 37 of Private Educational Institutions (Registration and Fee Determination) Rules, 2016---Constitutional petition was allowed in circumstances.

[Case-law referred].

Shahid Hamid, Ms. Asma Jahangir, Usama Malik, Syed Hamid Ali Shah, Syed Ishfaq Hussain Naqvi, Husnain Ali Ramzan, Nadeem Ahmad, Khurram M. Hashmi, Muhammad Wajid Hussain Mughal, Munsif Khan alias Mohsin Ghaffar, Misbah un Nabi for Petitioners.

Afnan Karim Kundi, Additional Attorney General and Raja Khalid Mehmood Khan, Deputy Attorney General for Respondent No.1.

Muhammad Faisal Khan and Umer Tariq for Respondent No.2.

Barrister Qasim Wadud, Iftikhar Ahmad Bashir and Muhammad Faisal Khan, Wasi Ullah Khan Surrani for Applicants.

2018 M L D 1176

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD AZAM---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice, Government of Pakistan, Islamabad and 5 others---Respondents

Writ Petition No.3954 of 2017, decided on 5th December, 2017.

Penal Code (XLV of 1860)---

----S. 489-F---Dishonestly issuing a cheque---Petitioner was implicated in three FIRs registered under S. 489-F, P.P.C.; he was arrested and the trial in the said criminal cases commenced---Meanwhile, a suit for recovery was also filed against the petitioner, which was decided against him vide judgment and decree dated 29.9.2011---In the execution proceedings, the petitioner was arrested and he was awarded civil imprisonment on 10.5.2016 for a period of one year---Trial in the criminal cases culminated in conviction of the petitioner and resultantly he was awarded sentence of 15 months---Civil prison of the petitioner commenced from 10.5.2016 and was to be concluded on 10.5.2017---Sentence in the criminal cases commenced on 26.7.2016 for a period of 15 months---After the lapse of 15 months from 26.7.2016, the petitioner was not released---Petitioner filed petition contending that the sentences in the civil prison and criminal cases were to run concurrently, which was dismissed---Validity---Record showed that Judicial Magistrate while passing judgment and awarding sentence, was not aware of order of civil court regarding committing the petitioner to civil prison---Transactions in respect of which the petitioner was convicted and sentenced by Judicial Magistrate and order by executing court committing petitioner to civil prison were the same---Just and proper course was that both terms were to run concurrently---Constitutional petition was allowed in circumstances---Accused-petitioner was directed to be released forthwith.

Mst. Shahista Bibi v. Superintendent, Central Jail PLD 2015 SC 15 rel.

Ghous Bakhsh v. The State 2012 PCr.LJ 1028 ref.

Afzaal Qadeer Satti and Javed Akhtar Kiani for Petitioner.

Raja Khalid Mehmood, Deputy Attorney General for Respondent.

2018 M L D 1374

[Islamabad ]

Before Aamer Farooq, J

ZAFAR IQBAL---Petitioner

Versus

Raja ASIM RIZWAN and another---Respondents

Criminal Miscellaneous No.775/BC of 2017, decided on 2nd April, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 342 & 34---Qatl-i-amd, wrongfull confinement and common intention---Cancellation of bail, application for---Considerations for grant and refusal of bail---Scope---Accused was neither nominated in FIR nor his name was included in interim challan submitted to Trial Court---Petitioner/ complainant contended that concession of bail to the accused must be recalled as in the light of the statement of witnesses the accused was involved in the offence---Considerations for grant of bail were different from the cancellation of bail---Bail granted by the Court of competent jurisdiction was generally not cancelled unless the bail granting order was perverse or there was allegation that the accused had misused the concession of bail which had never been asserted by the complainant---Bail could not be cancelled to wreak vengeance to the complainant ---Supplementary challan had been filed, in the present case, therefore, no useful purpose would be served by sending the accused behind the bars at such a stage---Application for cancellation of bail was declined, in circumstances.

Shahid Imran v. The State 2011 SCMR 1614 and Abdul Rasheed Khan v. Zahoor Ahmed Malik PLD 2011 SC 210 ref.

Basharat Ullah Khan for Petitioner.

Muhammad Ilyas Siddiqui for Respondents.

Malik Awais Haider, State Counsel and Saif Ullah, S.I.

2018 M L D 1453

[Islamabad]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

ADIL AZIZ QAZI, CHAIRMAN UNION COUNCIL-II, MUGHAL, ISLAMABAD---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary---Respondent

Writ Petition Nos. 1593, 1705, 1719, 1735, 1804, 1805 and 1806 of 2018, decided on 10th May, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 4, 5 & 8---Constitution of Pakistan, Arts. 218(3) & 220---Ban on appointments and development funds---Retrospective effect---Election Commission, powers of---Petitioners were aggrieved of the notification issued by Election Commission imposing ban on fresh appointments and development funds as general elections were approaching---Validity---No substantial complaints were on record which amounted to misuse of authority in making appointments or starting projects which resulted the issuance of notification in question---Implications of the notification were drastic as not only commencement of projects had been stopped but completion of existing one had come to a halt---Election Commission, instead, could appoint or issue project specific orders wherever it felt that such was being done to gain advantage in next elections instead of imposition of ban all over Pakistan in carrying out pending projects or commencement of projects and making fresh appointments---Election Commission had given retrospective effect to the notification, as it was issued on 11-4-2018 but had come into effect on 1-4-2018, such notification could not have retrospective effect---High Court set aside the notification in question---Constitutional petition was allowed in circumstances.

Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 396; Amirzada Khan v. The Chief Election Commissioner PLD 1974 Lah. 178; Workers' Party Pakistan through Akhtar Hussain, Advocate General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681 and Khawaja Muhammad Asif v. Federation of Pakistan 2013 SCMR 1205 ref.

Haseeb Hassan and Raja Aamir Shahzad for Petitioners.

Ch. Muhammad Umar for Petitioner (in W.P. No.1735 of 2018).

Adil Aziz Qazi, Proxy Counsel for Petitioner (in W.P. No.1705 of 2018).

Ch. Saleem Murtaza Mughal, A.A.G., Punjab for Petitioner (in W.P. No. 1804 of 2018).

Rashid Hafeez, D.A.G. with Ameen Ullah, S.O., Ministry of Parliamentary Affairs (in W.P. No.1719 of 2018).

Abdul Latif Yousafzai, Advocate General, KPK. for Petitioner (in W.P. No.1805 of 2018).

Khalid Anwar Afridi, for Petitioner (in W.P. No.1806 of 2018).

Ahsan Hameed Dogar for Government of Sindh.

Muhammad Ayaz Khan Swati, Additiona Advocate-General, Balochistan.

2018 M L D 1595

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Messrs PANTHER DEVELOPERS through Ghulam Jillani---Petitioner

Versus

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

Writ Petition No.977 of 2018, decided on 10th April, 2018.

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

----S. 17(9)---Eviction petition---Willful default in payment of monthly rent--- Restoration of eviction petition dismissed for non-prosecution--- Tentative order---Retrospective effect---Scope---Non-compliance of earlier order of Rent Controller to deposit monthly rent in Court---Striking off defence of tenant---Scope--- Petitioners/tenant/company contended that they could not be penalized for non-deposit of the tentative rent by the 15th of July (that year) as the eviction petition of landlord stood dismissed for non-prosecution earlier in the same month and that they deposited rent on 28th July when they came to know about filing of application for the restoration of eviction petition---Landlord contended that two Courts below had rightly passed eviction order as although after three months his eviction petition was restored but the restoration had revived the tentative order to deposit the rent by the 15th of each month---Validity---Defense of tenant could not be struck off due to his failure to deposit the tentative rent during the period when the eviction petition was dismissed for non-prosecution---When eviction petition was dismissed for non-prosecution and the application for its restoration was filed , the Court could pass interim order pending such application---Rent Controller, could pass tentative rent order while entertaining the application for restoration of eviction petition, which would be binding on the tenant only if he was duly served---Where the Rent Controller did not pass tentative rent order while entertaining application for restoration of eviction petition, the tenant could not be penalized under S.17(9) of Islamabad Rent Restriction Ordinance, 2001 for non-depositing rent during the period when the eviction petition stood dismissed for non-prosecution---High Court set aside impugned orders passed by the two Courts below and remanded the matter to the Rent Controller to decide the same afresh---Constitutional petition was allowed accordingly.

Muhammad Usman Khan and another v. Miraj Din and another PLD 1978 Lah. 790 and Anees Ahmed Rushdi v. Mst. Zulekha 1984 CLC 748 ref.

Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33 and M.A. Shami v. Additional District Judge, Lahore 2012 YLR 2058 distinguished.

Sardar Arshad Mahmood Khan for Petitioner.

Syed Asghar Hussain Sabzwari and Syed Qamar Hussain Sabzwari for Respondent No.3.

2018 M L D 1689

[Islamabad]

Before Aamer Farooq and Miangul Hassan Aurangzeb, JJ

MUHAMMAD ZAFAR IQBAL---Appellant

Versus

Malik AURANGZEB and another---Respondents

R.F.A. No.235 of 2004, decided on 22nd May, 2018.

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

----Ss. 12, 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Civil Procedure Code (V of 1908), O. V, Rr. 2 & 10---Suit for declaration, permanent injunction and specific performance---Power-of-attorney---Agreement to sell by the attorney---Fraud---Proof of---Requirements---Defendant appointed his brother as special attorney who sold the suit land to the plaintiff through registered sale agreement---Contention of defendant was that power-of-attorney as well as sale agreement were forged documents---Suit was decreed by the Trial Court---Validity---Defendant had not pleaded the factum of fraud and collusion in execution of alleged documents---Execution of power-of-attorney had been proved in accordance with Arts. 17 & 79 of Qanun-e-Shahadat, 1984---Nothing was on record that sale agreement was a fictitious document---Agreement to sell was not required to be registered---Plaintiff had proved execution of sale agreement by having the original agreement tendered in evidence and its marginal witnesses deposing as to its authenticity---Fraud and forgery must be proved by producing unimpeachable, impartial and confidence inspiring evidence---Mere allegations of fraud and forgery could not partake proof required under the law---Evidence produced by the defendant was not sufficient for holding that the power-of-attorney or sale agreement were forged documents---Defendant had not given full particulars of fraud in his pleadings---Vague, ambiguous and generalized pleas did not fulfill the requirements of O. V, Rr. 2 & 10 of C.P.C.---No infirmity had been pointed out in the impugned judgment passed by the Trial Court---Appeal was dismissed in circumstances.

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

----O. XLI, R. 27---Production of additional evidence at appellate stage---Requirements---Appellant could produce the required documents at the stage of recording evidence before the Trial Court---Additional evidence at appellate stage could be allowed in exceptional circumstances where same was either not available or was beyond the reach of the party concerned at the relevant time---Additional evidence could not be led at an appellate stage to fill in the gapes and lacuna in the case---No effort had been made to produce the required documents before Trial Court---Application for producing of additional evidence was dismissed in circumstances.

Muhammad Siddique v. Muhammad Sharif 2005 SCMR 1231; Shtamand v. Zahir Shah 2005 SCMR 348; Mad Ajab v. Awal Badshah 1984 SCMR 440; Messrs Muhammad Siddiq Muhammad Umar v. The Australasia Bank Limited PLD 1966 SC 684; House Building Finance Corporation v. Muhammad Akhtar Zaman 2005 MLD 112 and Abdul Aziz v. Meehan Khan PLD 1979 BJ 38 rel.

Shaukat Rauf Siddiqui for Appellant.

Samad Mahmood for Respondent No.1.

2018 M L D 1869

[Islamabad]

Before Mohsin Akhtar Kayani, J

ZIA ULLAH SHAH---Petitioner

Versus

MUHAMMAD KHAQAN and 6 others---Respondents

Civil Revisions Nos.92 to 95, Writ Petitions Nos. 1085, 1086, 1345, 1420, 1423, 1486, 1562 and 1984 of 2018, decided on 31st May, 2018.

(a) Islamabad Capital Territory Cooperative Societies (Managing Committee Elections) Rules, 2014---

----R. 3(ii)(a)---Constitution of Pakistan, Art. 199---Constitutional petition---Election dispute---Disputed question of fact---Eligibility criteria---Real estate agent---Nomination papers filed by petitioner were rejected by the Authority on grounds that he was carrying business of real estate---Validity---Petitioner acknowledged that he had been running business of real estate two years ago---Such factual aspect was already adjudicated upon by Election Commission as well as appellate forum---High Court declined to interfere in concurrent findings as contention of petitioner was based upon disputed questions of fact and same had already been resolved by forums below---Petitioner could not discharge his onus by simply placing affidavit as status of affidavit had no value unless its facts and deponent had gone through test of cross-examination before any Authority---High Court declined to interfere in orders passed by two forums below---Constitutional Petition was dismissed in circumstances.

(b) Islamabad Capital Territory Cooperative Societies (Managing Committee Elections) Rules, 2014---

----Rr. 7(1) & 29---Election dispute---Eligibility criteria---Member, selection of---Petitioner was aggrieved of acceptance of nomination papers of respondent by authorities to contest elections of Cooperative Society---Plea raised by petitioner was that respondent was running a company which was providing security services to cooperative society in question, like this he was getting direct benefit from the society---Validity---If such practices were allowed, it would damage entire structure of the Society By-laws and all those individuals who had vested interest would enter into arena which further would damage affairs of society and such interest of members were prejudiced---No one could become member unless his name was confirmed in annual general meeting and respondent got membership of Society in question after holding of last annual general meeting---Completion of one year had yet to take effect therefore, respondent was not qualified to contest elections---High Court set aside orders passed by election authorities---Constitutional petition was allowed in circumstances.

(c) Islamabad Capital Territory Cooperative Societies (Managing Committee Elections) Rules, 2014---

----Rr. 2(j), 3(ii)(b) & 6(v)---Election dispute---Eligibility of voters---Necessary information in voter list---Petitioners assailed election schedule on grounds that voter list was defective and did not contain necessary information---Validity---Provisions of Islamabad Capital Territory Cooperative Societies (Managing Committee Elections) Rules, 2014 provided a different requirement, especially prescribed payment of plot as well as default, if any, as referred in R. 3(ii)(b) of Islamabad Capital Territory Cooperative Societies (Managing Committee Elections) Rules, 2014 for candidates and R. 6(v) of Islamabad Capital Territory Cooperative Societies (Managing Committee Elections) Rules, 2014 for voters---Such information was not reflected in voter list nor in election schedule published in newspaper---Eligibility of voters provided in election schedule gave a precise impression that a member of society who had paid all dues was eligible to vote and his name was to be reflected in voters list with his credentials---Any voters list which lacked information of payments or dues clearance was not a valid voters list---High Court directed Election Commission to notify new election date on basis of previous nomination papers and notified voters list---High Court further directed authorities to conduct elections on fresh notified date---Constitutional petition was disposed of accordingly.

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

----S. 9---Term 'jurisdiction'---Special/general law---Scope---Substantive right of action has been granted under S. 9, C.P.C., to extent of right which exists and civil courts have jurisdiction to take cognizance---Term 'jurisdiction' refers to legal authority to administer justice in accordance with means provided by law and subject to limitations imposed by law---Civil courts have power to hear, determine and adjudicate a cause by exercising its judicial power and authority which has been provided in law---Power to try all kinds of suits of civil nature is available to civil courts and as such dispute concerning to any party relating to society may also fall within such concept---Jurisdiction of S. 9, C.P.C. is only applicable unless a special law is not available in field relating to particular dispute or cause of action which has been raised before civil court.

Rehmat Ali v. Additional District Judge, Multan 1999 SCMR 900 and The State v. Zia-ur-Rehman PLD 1973 SC 49 rel.

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

----S. 70(a)(c)---Civil Procedure Code (V of 1908), S. 9---Elections of Co-operative Society---Jurisdiction of civil court---Scope---Jurisdiction of civil court to entertain suit on question relating to nomination, scrutiny, results, qualification/disqualification of candidates or with reference to voters list or dealing with electoral process is barred and jurisdiction under S. 9, C.P.C. is not vested in civil court to entertain suit in such questions.

Muhammad Munir Paracha, Nauman Munir Paracha and Abdul Wahid Qureshi for Petitioners (in Civil Revisions Nos. 92 to 95 of 2018).

Sheikh Muhammad Suleman and Sheikh Junaid Nadeem for Respondent No.1 (in Civil Revisions Nos.92 to 95 of 2018).

Abdul Hameed Khan Kundi for Respondent No.2 (in Civil Revisions Nos.92 to 95 of 2018).

Naseem Ahmad Shah for Respondents Nos. 3 to 7 (in Civil Revisions Nos.92 to 95 of 2018).

Abdul Wahid Qureshi for Petitioner (in Writ Petition No.1085 of 2018).

Naseem Ahmad Shah for Respondents Nos. 1 to 3 (in Writ Petition No.1085 of 2018).

Abdul Hameed Khan Kundi for J&KCHS (in Writ Petition No.1085 of 2018).

Muhammad Arab Alam Abbasi for Petitioner (in Writ Petition No.1086 of 2018).

Naseem Ahmad Shah for Respondent No. 2 (in Writ Petition No.1086 of 2018).

Abdul Hameed Khan Kundi and Abdul Wahid Qureshi for J&KCHS (in Writ Petition No.1085 of 2018).

Malik Waheed Akhtar for Petitioner (in Writ Petition No.1345 of 2018).

Naseem Ahmad Shah for Respondents (in Writ Petition No.1345 of 2018).

Riaz Hanif Rahi for Petitioner (in Writ Petition No.1420 of 2018).

Naseem Ahmad Shah for Respondents Nos. 1 to 7 (in Writ Petition No.1420 of 2018).

Abdul Wahid Qureshi for Respondent No.8 (in Writ Petition No.1420 of 2018).

Muhammad Shoaib Shaheen and Muhammad Umair Baloch for Petitioner (in Writ Petition No.1423 of 2018).

Malik Waheed Akhtar for Respondent No.1 (in Writ Petition No.1423 of 2018).

Naseem Ahmad Shah for Respondents Nos. 2 and 3 (in Writ Petition No.1423 of 2018).

Abdul Wahid Qureshi for Respondent No.4 (in Writ Petition No.1423 of 2018).

Ch. Naseer Ahmad Gujjar for Petitioner (in Writ Petition No.1486 of 2018).

Naseem Ahmad Shah for Respondent No.1 (in Writ Petition No.1486 of 2018).

Muhammad Arbab Alam Abbasi for Petitioner (in Writ Petition No.1562 of 2018).

Abdul Wahid Qureshi for Respondent No.2 (in Writ Petition No.1562 of 2018).

Abdul Hameed Khan Kundi for Respondent No.3 (in Writ Petition No.1562 of 2018).

Naseem Ahmad Shah for Respondents No.4 (in Writ Petition No.1562 of 2018).

Riaz Hanif Rahi for Petitioner (in Writ Petition No.1984 of 2018).

Naseem Ahmad Shah for Respondents Nos. 1 to 7 (in Writ Petition No.1984 of 2018).

Abdul Wahid Qureshi for Respondent No. 8 (in Writ Petition No.1984 of 2018).

2018 M L D 1975

[Islamabad]

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

MUMTAZ ALI MALIK and another---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman---Respondent

W.P. No.2186 of 2018, decided on 5th July, 2018.

National Accountability Ordinance (XVIII of 1999)---

----S. 9 (a) (ix) & (b)---Constitution of Pakistan, Art. 199---Bail, grant of---Direction, non-compliance of---Petitioners were accused facing trial on the allegation of cheating members of public-at-large---Plea raised by petitioners was that despite lapse of direction given by High Court, Trial Court had not concluded the trial without any fault attributed to them---Validity---No fresh ground was available to the petitioner who was only seeking second post-arrest bail on the ground of non-compliance of direction---Non-observance of direction by the High Court was not a valid ground for grant of bail---Petitioners had deprived innocent people from their hard earned money which resulted into financial loss of Rs.131.58 million---Petitioners were, prima facie, connected with heinous crime and trial was in progress---Bail was declined in circumstances.

Nisar Ahmad v. The State and others PLD 2016 SC 11 and Rehmat Ullah v. The State 2011 SCMR 1332 rel.

Muhammad Amjad Iqbal Qureshi for Petitioners.

2018 M L D 6

[Sindh]

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

NADIR JAN---Petitioner

Versus

The CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and 3 others---Respondents

C.P. No.D-3795 of 2016, decided on 20th March, 2017.

(a) National Accountability Ordinance (XVIII of 1999)---

----S.9(a) & (b)---Pre-arrest bail, grant of---Further inquiry, case of---Petitioner sought pre-arrest bail---Validity---Petitioner was not nominated in original reference but he was implicated in supplementary reference and the same had tentatively given the impression that at initial stage no evidence was available against the petitioner---Amount lying in personal account of petitioner needed evidence whether it was money of Modaraba business or from petitioner's own resources or earnings---Fact that the amount mentioned in investigation report was transferred/credited from the account of main accused was to be established during trial whether the same was really credited to deprive or misappropriate the amount of investors in Modaraba business or there was some dealings between petitioner and main accused---Such aspect of case required further probe during trial---Bail was allowed in circumstances.

Muhammad Fazil alias Bodi v. The State 1979 SCMR 9; Muhammad Daud and another v. The State and another 2008 SCMR 173; Ibrahim v. Hayat Gul and others 1985 SCMR 382; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 and Jafar alias Jafri v. The State 2012 SCMR 606 ref.

(b) Bail---

----Grant or refusal of---Evidence---Deeper appreciation---Scope---Deeper appreciation of evidence cannot be gone into at bail stage---Bird eye view is to be taken to available record before Court to satisfy prima facie whether accused are connected with commission of offence or not---Benefit of doubt goes to accused even at bail stage.

Muhammad Ramzan Tabassum for Petitioner with Petitioner in person.

Akram Javed, Special Prosecutor, NAB.

Ahmed bin Zahid, AD/IO, NAB.

2018 M L D 32

[Sindh]

Before Yousuf Ali Sayeed, J

Malik MOHAMMAD RIAZ and another---Appellants

Versus

Mrs. FARHAT IMRANA and another---Respondents

First Rent Appeal No.70 of 2016, decided on 12th June, 2017.

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

----S. 17---Eviction petition---Wilful default in payment of rent by the tenants---Tenants denied relationship of landlord and tenant---Landlord moved application for payment of arrears of rent---Rent Controller passed tentative rent order and passed eviction order in the wake of failure of tenant to comply with tentative rent order---Non-compliance of tentative rent order---Effect---Tenants contended that they were not liable to pay rent as there existed a dispute between the parties to the effect that subject property could not be converted into commercial use from residential---Landlord contended that Rent Controller was justified in passing tentative rent order and any civil suit had no nexus with the case---Validity---Failure on the part of tenants to comply with the tentative rent order could not be condoned on the basis of a dispute as alleged by the tenants---Existence of a dispute, as raised by the tenants in the civil suit would be determined on its own merits and could not serve to absolve the tenants of their obligation of payment of rent in respect of their continued occupation of the premises---Default in payment of rent on the part of tenants in circumstances was wilful---No illegality or irregularity having been noticed in the impugned order, appeal was dismissed accordingly.

Muhammad Ali Waris Lari for Appellants.

Shahid Ansari for Respondent No.1.

2018 M L D 57

[Sindh]

Before Syed Muhammad Farooq Shah, J

AMJAD ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.445 of 2016, decided on 24th May, 2017.

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

----Ss. 336, 337-A(i), 337-A(ii) & 34---Criminal Procedure Code (V of 1898), S. 154---Itlaf-i-salahiyyat-i-udw, shajjah-i-khafifah, shajjah-i-mudihah, common intention---Appreciation of evidence---First information report---Delay of about twenty one days in lodging of FIR---Effect---Inordinate delay without disclosing any sufficient reasons or plausible cause cast doubt about the veracity of prosecution case.

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

----Ss. 336, 337-A(i), 337-A(ii) & 34---Itlaf-i-salahiyyat-i-udw, shajjah-i-khafifah, shajjah-i-mudihah, common intention---Appreciation of evidence---Ocular account did not support medical evidence---Allegations against accused-appellants were that they along with co-accused persons assaulted the complainant, beat him and caused injury on his right eye---Ocular account was furnished by witnesses including complainant---Complainant being star witness had stated that accused persons inflicted him kick blows, iron rod and churri blows---Neither the use of sharp cutting weapon nor the blunt weapon had been mentioned by the complainant in the FIR nor any knife was secured---Alleged crime weapon had never been produced before the court, which was stated to be churri---Record transpired that there was scuffle in-between the parties due to bitter relations, which later converted into bloodshed by showing use of sharp cutting weapon---Record showed that complainant and his wife at the time of recording deposition, tried to improve their version which created doubt---Material on record showed that the version of prosecution was without corroboration, which adversely affected the credibility of testimonies of prosecution witnesses---Depositions of prosecution witnesses, therefore, were inconsistent---Such circumstances created serious doubts in the prosecution case, which would resolve in favour of accused-appellants---Accused-appellants were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Muhammad Asif v. The State 2017 SCMR 486; Abdul Rahim v. Ali Bux and 4 others 2017 PCr.LJ 228 and Hidayatullah v. The State 2017 PCr.LJ 594 ref.

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

----Ss. 336, 337-A(i), 337-A(ii) & 34---Itlaf-i-salahiyyat-i-udw, shajjah-i-khafifah, shajjah-i-mudihah, common intention---Appreciation of evidence---Medical evidence---Medical certificate showed that neither the organ of body (eye) of the complainant had been destroyed nor vision of the injured had permanently impaired or disfigured---Such circumstances established that the case did not fall under S.336, Penal Code, 1860.

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

----Art. 133(2)---Cross-examination---Scope---Cross-examination was the great legal engine invented for the discovery of truth---Cross-examination was not an empty formality, but a valuable right and best method for ascertaining the truth---Cross-examination was a weapon which could wield the purpose of testing the veracity of the statement made by the witness.

(e) Criminal trial---

----Benefit of doubt---Principles---One substantial doubt would be enough for acquittal of the accused---Rule of benefit of doubt was essentially a rule of prudence, which could not be ignored while dispensing justice in accordance with law---Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, would be resolved in favour of the accused.

Shah Nawaz Sahito for Appellants.

Nadeemul Haq holding brief for S.M. Ahsan Kazmi for the Complainant.

Ms. Rahat Ahsan, DPG, Sindh for the State.

2018 M L D 82

[Sindh]

Before Nadeem Akhtar, J

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) through Chief Resident Representatives--Plaintiff

Versus

Messrs CCI-AG, AN IMI COMPANY, IM LINK-II and 2 others---Defendants

Suit No.906 of 2011, decided on 18th July, 2017.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Rejection of plaint---Adjudication on an application for rejection of plaint under O. VII, R. 11, C.P.C.----Principles----For purpose of rejection of plaint, averments and allegations made in a plaint were to be examined, and if upon bare perusal thereof, and assuming the same to be correct, a cause of action was spelt out from such plaint, then the same could not be rejected----Term "cause of action" represented all requisites and facts which were necessary for plaintiff to prove before such plaintiff could succeed in a suit---Where a cause of action was disclosed, question as to whether the plaintiff would be able to prove the same or not was irrelevant for deciding on an application for rejection of plaint and the accompaniments of the plaint and other undisputed material on record could be looked into for purpose of deciding on an application for rejection of plaint---Where parties were clearly at variance on question of facts, which could not be resolved without recording of evidence, then in such a situation a plaint could not be rejected without affording opportunity to parties to adduce evidence and without providing a chance of hearing to such parties.

British India Steam Navigation Co. Ltd. v. Abdul Razak-Abdul Kader and others, PLD 1967 SC 68; Izzat Bakhsh v. Nazir Ahmad and 13 others, 1976 SCMR 508; Hakim Muhammad Buta and another v. Habib Ahmed and others, PLD 1985 SC 153; Gladstone Wyllie and Co. Ltd. v. Shahidi Trading Corporation Ltd. and another, PLD 1959 Dacca 73; Issak Haji Shakoor-Haji Jamal Co. v. Messers United Oriental Steamship Co. and others, PLD 1960 (WP) Kar. 99; Premier Insurance Company v. China National Foreign, 1999 YLR 781; Swiss Bank Corporation v. Messers Temuka Navigation Company (Pvt.) Ltd. and 5 others, 2003 YLR 3314; Musarat Masood Lodhi and others v. Masood Hameed Lodhi and others, 2003 MLD 9 and Zahid Tabassum Lilak v. Pakistan Defence Housing Authority, Karachi and others 2009 CLC 590 ref.

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

Badar Alam for Plaintiff.

Ms. Saman Raffat Imtiaz for Defendant No.2.

Shaiq Usmani for Defendant No.3.

2018 M L D 109

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

WASH DEV---Appellant

Versus

GANESO MAL---Respondent

1st Civil Appeal No.S-01 of 2010, decided on 31st March, 2017.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S. 118---Summary suit on the basis of cheque---Negotiable instrument---Expert evidence---Scope---Cheque was given status of 'negotiable instrument' which could not be engineered or fabricated as other document (s) declared or qualified as 'negotiable instrument'---Defendant had taken contradictory stance in the present case---No question of issuance of cheque book would arise without having an account opened---Nothing was on record that any FIR was lodged with regard to alleged theft of cheque---Cheque in question belonged to defendant---Defendant could not escape the consequences arising therefrom unless proved contrary which he had failed to do---Mere typographical mistake/error could not decrease the consequences which a 'drawer' had to ensure encashment/payment of amount to the 'holder'---Plea which was not taken before the Trial Court could not be looked into by the Appellate Court---Evidence of an expert was nothing more than confirmatory or explanatory of direct or circumstantial evidence---Such evidence of expert could not be given preference over confidence inspiring and worthy of credence evidence available to prove otherwise---Defendant had not produced any document in support of his claim---Cheque in question was issued by the defendant in favour of plaintiff which was dishonoured by the bank on presentation---Appeal was dismissed in circumstances.

Mohammad Abdullah v. Mohammad Aslam 2014 CLC 1205 and Abdul Rasheed v. Syed Fazal Ali Shah 2016 SCMR 2163 ref.

Taj Muhammad Khan v. Munawar Jan 2009 SCMR 598 and Saadat Sultan v. Muhammad Zahur Khan 2006 SCMR 193 rel.

Bashir Ahmed Dargahi for Appellant.

Gulab Rai "C" Jesrani for Respondent

2018 M L D 122

[Sindh]

Before Omar Sial, J

FARHAN HAIDAR---Applicant

Versus

The STATE---Respondent

Crl. B.A. No.1804 of 2016, decided on 15th April, 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---Further inquiry---No description of accused was given in FIR except that he appeared to be (sindhi) belonging to Sindh Province from his accent---Complainant in his statement under S. 161, Cr.P.C. stated that assailants were either Sindhis or Punjabis---As to how the victim was hit by bullet in itself was confusing and required evidence for clarification---Accused was arrested in a case of possessing unlicensed weapons and was booked on the same day in two blind FIRs---Investigating Officer was asked as to how he could establish that it was the same accused who was required in two other FIRs; he was unable to explain and preferred to stay silent---Extra-judicial confession of accused was of no avail---Accused had stated before the Magistrate that complainant had seen him in Police Station---Complainant was called to Police Station to collect notice under S. 160, Cr.P.C. in connection with identification parade when accused was confined in the Police Station---Delay in holding identification parade and question as to whether prescribed procedure adopted by Magistrate were the issues that could only be decided after evidence---Accused's case fell within S. 497(2), Cr. P. C. as one of further inquiry---Bail was granted accordingly.

Babar H. Mughal for Applicant.

Muhammad Ramzan for the Complainant.

Muhammad Iqbal Awan, APG along with I.O. SIP Naimat Ali.

2018 M L D 129

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar, J

ASGHAR ALI---Applicant

Versus

The STATE---Respondent

Cr. Bail Appl. No.S-46 of 2017, decided on 8th June, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 14 & 15---Possession of narcotic drugs, aiding, abetment or association in narcotic drugs---Bail, grant of---Further inquiry---No private witness was associated in spite of prior spy information---Representative part of recovered narcotic for chemical analysis was sent with delay---Accused was behind the bars since nine months and was no more required for any purpose of investigation---Prosecution had not claimed that accused was previously involved in same nature of cases---All the prosecution witnesses were Police Officials hence there was no question of tampering with the evidence---Prima facie, accused had succeeded to bring his case within purview of subsection (2) of S.497, Cr.P.C.---Bail was granted accordingly.

Muhammad Sulleman Dahri for Applicant.

2018 M L D 142

[Sindh (Hyderabad Bench)]

Before Aqeel Ahmed Abbasi and Yousuf Ali Sayeed, JJ

MUHAMMAD KHAN---Petitioner

Versus

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

C.P. No.D-2073 of 2017, decided on 14th June, 2017.

Criminal Procedure Code (V of 1898)---

----Ss.22-A & 22-B---Registration of criminal case---Civil litigation---Petitioner was aggrieved of dismissal of his application by Ex-Officio Justice of Peace, whereby he had sought registration of criminal case---Validity---Ongoing dispute existed as to status of land in possession of petitioner and others, in as much as the said property was being claimed by Irrigation Department as was its property---Such was crux of dispute and rightly discerned by Ex-Officio Justice of Peace and the same was primary motive for institution of criminal proceedings---Ex-Officio Justice of Peace had rightly not directed registration of FIR---Constitutional petition was dismissed in circumstances.

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

Faisal Nadeem Abro for Petitioner.

Nemo for the Respondents.

2018 M L D 151

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

NAZEER AHMED and 10 others---Petitioners

Versus

AHMED KHAN and others---Respondents

Civil Revision Application No.S-08 of 2015, decided on 17th May, 2017.

Specific Relief Act (I of 1877)---

----Ss.12, 21 & 23---Transfer of Property Act (IV of 1882), Ss.41 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 88, 100 & 129(g)---Sindh Land Revenue Act (XVII of 1967), S. 33---Suit for specific performance---Agreement with vendor who claimed ownership on the basis of KHATOONI/Purcha Taqseem---Genesis of ownership on the basis of KHATOONI---Bona fide of sale agreement---Scope---Protection under S. 41, Transfer of Property Act, 1882---Ingredients---Applicants/ plaintiffs contended that they paid earnest money while entering into sale agreement with the vendor in whose favour KHATOONI was issued but could not be mutated in records-of-rights---Defendants/ owners-in-possession denied the title of the deceased vendor being not in possession and that KHATOONI was not mutated in the record-of-rights---Validity---Status of KHATOONI/PurchaTaqseem was specifically and categorically denied by the defendants---Applicants/plaintiffs having claimed rights and interests in the property only under the same, it was obligatory on the applicants/plaintiffs to first prove the purchase to be bona fide---Protection of S. 41 of Transfer of Property Act, 1882 could be availed if four ingredients were established which were a) that the transferor was the ostensible owner; b) that the transfer was made by consent express or implied of the real owner; c) that the transfer was made for consideration; and d) that the transferee while acting in good faith had taken reasonable care before entering into such transaction---Revenue record showed the ownership in the name other than vendor and on death of the owner Khata was mutated in the name of his successors, thus, if the applicants/plaintiffs had taken reasonable care in going into the genesis of the ownership, and examining the record, which they, as purchasers were required to do so, they would have found that the property being an inherited property was originally owned by someone else than the vendor which devolved upon his legal heirs---Prima facie failure on part of the applicants/plaintiffs to establish their bona fides disentitled them to claim any exception with reference to S. 41 of Transfer of Property Act, 1882---Purchase from an unauthorized person was always "void"---Applicants/plaintiffs had never made any attempt to establish the genuineness of KHATOONI/Purcha Taqseem which they could have done only by producing the official(s) of concerned quarter or least certified copy thereof, as required by Art. 88 of Qanun-e-Shahadat, 1984---Failure of the applicants/plaintiffs would legally allow presumption of adverse inference against the pleaded claim well within meaning and object of Art. 129(g) of Qanun-e-Shahadat, 1984---Even Art. 100 of Qanun-e-Shahadat, 1984 was of no help in such a situation where the beneficiary of a thirty years old document did not prove the same as required by law or least by scribe or custodian of such document---Suit land admittedly neither stood mutated in record-of-rights in the name of deceased vendor nor he was ever in possession of which at any point of time; on the contrary, it appeared that the suit land was in possession of defendants and it was mutated in record-of-rights in their names as ancestral property---Record showed that the successor of deceased vendor did appear before appellate court where they, in their cross-objections, mentioned that their father was neither owner of the suit property nor was in its possession; one cannot give better title than what he holds---Alleged KHATOONI was issued in favour of vendor in 1959, but mutation record-of-rights was not effected in his favour---When legally a mutation was not a proof of title, mere production of KHATOONI would never be sufficient title of person, named in KHATOONI, unless transaction was otherwise proved by the beneficiary or the one claiming under such document---"KHATOONI" was not a title document but was a register of person(s) cultivating or otherwise occupying land and since it was Revenue Officials who were custodian of such record to affirm the same hence if someone claimed such title he must establish entry/mutation thereof in record-of-rights, maintained with reference to S. 33 of the Land Revenue Act, 1967 which, per record, was never established by applicants/plaintiffs nor by Revenue Officials---Trial Court entirely ignored that as per deposition of official witnesses vendor had no title of suit land---In the present case, when deceased vendor was not entered in record-of-rights as the owner of the suit land, he was not legally competent to transfer the same in terms of S. 54 of Transfer of Property Act, 1882; and on the same premises, he had no legal capacity to enter into sale transaction with applicants, thus the alleged contract being void could not be specifically enforced in terms of S. 21 of the Specific Relief Act, 1877---Sale agreement of the applicants/ plaintiffs, if any, was void; relief of specific performance of contract was not available to "void" agreement---No rights and liabilities could be attached to or arise out of a "void contract"---Applicants/plaintiffs having claimed sale agreement with vendor, the right to seek enforcement first securely lay against the seller or his successors as was evident from S. 23(a) & (b) of the Specific Relief Act, 1877 but equally when the applicants/plaintiffs had come to active notice and knowledge of independent title of the respondents/defendants but same was not challenged nor cancellation thereof was sought which omission was sufficient to decline the relief, sought by the plaintiffs because principle of lis-pendens would not be applicable to an already existing independent title---No illegality in the impugned judgment and decree passed by appellate court was noticed---Revision was dismissed accordingly.

Ghulam Rasool and others v. Noor Muhammad and others 2017 SCMR 81; Hajyani Bar Bibi through L.Rs. v. Mrs. Rehana Afzal Ali Khan and others PLD 2014 SC 794; Muhammad Nawaz Magsi v. Nisar Ahmed and others 2010 CLC 407 and Muhammad Iqbal and another v. Mukhtar Ahmed through L.Rs. 2008 SCMR 855 ref.

Gulab Rai C. Jessrani for Applicants.

Rab Nawaz Soomro for Respondents Nos. 1, 2, 4 and 6 to 13.

Nemo for Respondents Nos. 3, 5 and 14 to 18.

2018 M L D 169

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD DILDAR---Applicant

Versus

The STATE---Respondent

Crl. Bail Appln. No.1562 of 2016, decided on 10th May, 2017.

Criminal Procedure Code (V of 1898)---

----S. 498---Gas Theft Control and Recovery Act (XI of 2016), S. 15---Tampering with auxiliary or distribution pipeline of gas connection---Bail, refusal of---Accused had installed rubber pipe to get gas illegally---Accused had failed to produce any document for installation of valid and legal gas connection---Accused had put the Gas Supply Company on heavy losses---Act so committed by accused did not warrant any leniency for confirmation of bail---Photographs with regard to the illegal consumption of gas had proved the act of accused---Accused, after grant of interim pre-arrest bail appeared before the Investigating Officer and recorded the statement under S. 161, Cr.P.C. wherein accused admitted that he had committed the theft---Such aspect of the case led to conclusion that accused was bound under the law to pay the lawful charges with regard to consumption of gas---Ad interim pre-arrest bail earlier granted to accused was recalled in circumstances.

Syed Farooq Ahmed Shah for Applicant.

Malik Sadaqat Hussain, Special Prosecutor SSGC for the Complainant.

2018 M L D 181

[Sindh]

Before Irfan Saadat Khan and Arshad Hussain Khan, JJ

Shaikh ATIF ZIA---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary Government of Sindh and 3 others---Respondents

C.P. No.D-7764 of 2015, decided on 13th June, 2017.

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

----S.417---Appeal against acquittal---When accused was acquitted by a competent court of law after facing agonies and ordeal of a protracted trial, then he earned the presumption of double innocence which could not be disturbed by an Appellate Court unless it was established through cogent and tangible evidence available on record that such acquittal was fanciful, erroneous or had resulted in a grave miscarriage of justice.

Ghulam Sikandar v. Mamraz Khan and others PLD 1985 SC 11; Barkat Ali v. Shaukat Ali and others 2004 SCMR 249 and Captain Abdul Rahim v. Naeem Sagar and others 2009 SCMR 288 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Alternate remedy---Scope----Where alternate remedy was not equally efficacious, or speedy, or where a statutory functionary acted mala fidely, or in a partial, unjust and oppressive manner, which on the face of it, was patently illegal or without lawful authority, or suffered from such legal infirmity which was patent on the face of the impugned order / action, then High Court may, in spite of the existence of the alternate remedy, exercise jurisdiction under Art. 199 of the Constitution and grant relief to the aggrieved party.

Messrs Ocean Pakistan Limited v. Federal Board of Revenue, Islamabad and others 2012 PTD 1374 and Commissioner of Income Tax v. Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279 rel.

Bashir Ahmed Mirani for Petitioner.

Muhammad Rafiue Rajuorvi, Addl. Advocate General.

M. Saleem Shaikh, ETO and Whaeed Sheik, AETO.

Ms. Shahida Jatoi, Spl. Prosecutor, ANF.

2018 M L D 193

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh and Fahim Ahmed Siddiqui, JJ

SARWAR alias GHULAM SARWAR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-64 of 2004, decided on 15th May, 2017.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that 1050-grams hashish (charas) in a plastic bag was recovered from the possession of accused-appellant---Record showed that it was a case of spy information, and it was mentioned in the FIR that complainant left the police station after placing entry in the daily diary of the police station---Said daily diary's entry was an important piece of evidence, which showed the movement of police party before arresting the accused but the same was not produced---Complainant deposed that only a sample of 10-grams of hashish (charas) was sent to the Chemical Examiner which the report of Chemical Examiner showed that sample containing 15-grams of substance was received on 21-4-2003---Incident allegedly had taken place on 28.1.2003, and no explanation was given about the late sending of the sample---Recovery witness deposed that place of incident was a thickly populated area, but the complainant being Police Officer did not try to associate a private witness---Said witness stated that he went with the complainant after the arrest of the accused to the police station, where he stayed for half an hour and then returned to his Police Post---Complainant stated that he sent the witness to his Police Post directly from the place of incident and he returned to the police station with accused and case property---Said contradictions were not minor---Said circumstances had created serious doubt in the prosecution case, benefit of which would resolve in favour of accused-appellant---Accused was acquitted by setting aside conviction and sentence recorded by Trial Court.

(b) Criminal trial---

----Benefit of doubt---Scope---Single doubt in the prosecution story was disastrous for the prosecution case and its benefit would go to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Ali Azhar Tunio for Appellant.

Khadim Hussain Khooharo, DPG for the State.

2018 M L D 422

[Sindh]

Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ

Syed WARIS KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 104 of 2016, decided on 20th September, 2017.

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

----Ss. 6 & 9(c)---Criminal Procedure Code (V of 1898), Ss. 340 (1) & 537---Constitution of Pakistan, Art. 10-A---Federal Capital and Sindh Courts Criminal Circulars, Chapter VII, Circular 6---Possession of narcotic drugs---Appreciation of evidence---Accused's right to be defended by counsel---Ten packets (10 Kg) of charas was allegedly recovered from rear seat of rickshaw driven by accused---Offence under S.9(c) of Control of Narcotic Substances Act, 1997 was punishable for death or imprisonment for life therefore accused was required to be defended by a counsel and trial to be conducted in presence of his counsel---If accused was unable to engage counsel, Trial Court would have provided facility of a counsel on State expenses before framing of charge---In the present case, charge and examination-in-chief of one prosecution witness was recorded in absence of counsel for the accused---Trial in absence of counsel for the accused was an illegality which could not be cured under S.537, Cr.P.C.---One of the duties of Trial Court was to see that accused was represented by a qualified legal practitioner in the case involving capital punishment---Trial Court did not perform its function diligently so as to protect the rights of the accused in the case involving capital punishment---Case was remanded to Trial Court for re-trial after framing fresh charge in presence of the advocate for accused---Appeal was allowed accordingly.

Shafique Ahmed alias Shahjee v. The State PLD 2006 Karachi 377 rel.

(b) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---Accused could not be denied the right to consult and be defended by a legal practitioner of his choice.

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

----Ss. 340(1) & 537---Federal Capital and Sindh Courts Criminal Circulars, Chap. VII, Circular 6---Accused's right to be defended by counsel---Scope---Accused was entitled to be defended by a pleader as a matter of right---Trial in absence of counsel for accused would become illegal and such illegality could not be cured under S. 537, Cr.P.C.---Court would ascertain from the accused as to whether he could engage a legal representative at his own expenses otherwise court would provide counsel on State expenses.

Samsam Ali Khan for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General Sindh for the State.

2018 M L D 440

[Sindh]

Before Nadeem Akhtar and Fahim Ahmed Siddiqui, JJ

MUHAMMAD AQIL ASIM and 2 others---Petitioners

Versus

CANTONMENT BOARD CLIFTON through Chief Executive Officer---Respondent

C.P. No.D-1412 of 2017, decided on 22nd March, 2017.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Playground, conversion of---Petitioners were sportsmen running registered sports clubs and were aggrieved of converting only playground into dumping area of construction material and machinery---Validity---Cantonment Board had no right to allow destruction of football ground in question by permitting to use the same for dumping of building and construction material and machinery, erecting bifurcating wall and/or collecting garbage or debris therein---Playground was meant for purposes of sports and it could not be used for any other purpose permanently or temporarily which could hinder sports activities---High Court directed Cantonment Board to stop all unwarranted activities within playground in question; to remove all construction material, machineries and structure from playground and resume its position within three days and to restore ground to its original position and also restore sports activities as it was continued in the past---Constitutional petition was allowed in circumstances.

Mian Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223; Saeen Muhammad and 2 others v. The Government of Punjab and 3 others PLD 1979 Lah. 79; Muhammad Sharif and others v. Muzaffar Iqbal and others 1983 CLC 3091; Dr. Abdul Rauf and others v. Shaikh Muhammad Iqbal and others 1991 SCMR 483 and Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394 ref.

Atiqu-ur-Rehman Khan for the Petitioners.

Sohail H.K.Rana, for the Respondent.

Rao Nadeem Ahmed, Law Officer, Clifton Cantonment Board.

M. Sajjad Haider, CEO, Clifton.

2018 M L D 450

[Sindh]

Before Syed Muhammad Farooq Shah, J

GHULAM HIADER---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.282 of 2017, decided on 24th August, 2017.

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

----S. 23-(i)(a)---Recovery of unlicensed weapon---Appreciation of evidence---Benefit of doubt---Prosecution case was that an unlicensed .32-bore revolver loaded with three live bullets was recovered from the possession of the accused---Prosecution produced three witnesses in order to prove the charge against the accused---Record showed that examination-in-chief of a prosecution witness was recorded without providing opportunity of cross-examination to the defence---Documentray evidence brought on record transpired that .32-bore revolver with three live bullets were recovered from inside wearing pent of the accused---Said documentary evidence had not been supported by prosecution witnesses---Complainant had stated that .12-bore revolver was recovered from the possession of accused---Recovery witness had stated that .30-bore pistol was secured from the left side of "naifa" of the accused---In the Report of Ballistic Expert, it was mentioned that revolver rubbed number of .32-bore---Record showed that discrepancies, illegalities and material contradictions were found in the statements of witnesses which created reasonable doubt in the prosecution case, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside convictions and sentences awarded by the Trial Court.

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

----Arts. 132 & 133---Cross-examination---Object---Cross examination was the great legal engine invented to unearth the truth from the statement of a witness---Opportunity to cross-examination contemplated by the law, must be real, fair and reasonable---Cross-examination was not the empty formality, but a valuable right and best method for ascertaining the truth.

(c) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt would be sufficient for the acquittal of the accused.

Zakir Hussain for Appellant along with Appellant on bail.

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

2018 M L D 469

[Sindh (Larkana Bench)]

Before Fahim Ahmed Siddiqui, J

GHULAM HAIDER BURIRO---Appellant

Versus

The STATE---Respondent

Crl. Appeal No.S-2 and Crl. Jail Appeal No.S-07 of 2015, decided on 31st May, 2017.

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

----Ss. 324, 337-H(2), 148 & 149---Attempt to commit qatl-i-amd, negligent act as to endanger human life or the personal safety, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Ocular account corroborated by medical evidence---Prosecution case was that accused and co-accused assaulted on complainant party with pistols and causing fire arm injury to one of the prosecution witness---Ocular account was furnished by the complainant and injured witness---Said witnesses were consistent regarding injury sustained to the injured by the hand of the accused---Said witnesses could not be shakened on the vital points of their evidence during cross-examination---Record showed that accused had caused firearm injury to the injured but had not made the second fire on the injured and the injured received injury on non-vital part of his body, which indicated that accused had no intention to kill the injured---Record showed that charge was not properly framed with regard to the injury caused to the witness during the incident---Medical evidence showed that injury was declared as ghayr-jaifah-mutalahimah, which fell under S. 337-F(iii), Penal Code, 1860, but charge was silent about the injury sustained by the injured---Punishment under S.324 Penal Code, 1860, in circumstances, was not justifiable---Prosecution had produced sufficient evidence regarding injury sustained by the injured witness---One of the prosecution witness did not support the prosecution case but did not deny the happening of the occurrence---Evidence of the Investigating Officer had established that empties were recovered from the place of incident and blood was seen on the place of occurrence---Circumstances established that accused was guilty of the offence punishable under S. 337-F(iii), Penal Code, 1860, for causing injury declared as ghayr-jaifah-mutalahimah, while charge framed against him under S. 324, Penal Code, 1860, was not proved---Accused-appellant was therefore, convicted under S. 337-F(iii), Penal Code, 1860, and sentenced for a period already undergone.

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

----Ss. 238, 227 & 535---Alteration of charge---Error, correction of---If the accused was charged for a major offence but the same was not proved, accused could be convicted for a minor offence, as evidence produced by the prosecution so warranted---Section 238, Cr.P.C. empowered the court to convict the accused for a minor offence though charged for a major offence.

Abdul Qudoos and 3 others v. The State 2014 YLR 1473 rel.

Miss Seema Abbasi for Appellant.

Imtiaz Ali Mugheri for the Complainant.

Sardar Ali Rizvi , A.P.G. for State.

2018 M L D 482

[Sindh]

Before Aftab Ahmad Gorar, J

SARDAR ALAM---Applicant

Versus

The STATE---Respondent

Crl. Bail Application 1440 of 2017, decided on 30th October, 2017.

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, refusal of---Accused together with accomplices arrived at the house of complainant and made straight firing; resultantly complainant party sustained injuries---Fire shots were repeated with intention to cause grievous hurt but complainant party had no grievous hurt---Alleged firing was admitted by accused---Five bullets were fired at outer gate of the house of complainant and there was recovery of four pellets and five empty shells of pistol from venue of occurrence---Two accomplices were absconding---Charge had been framed by the Trial Court and case was riped for evidence of prosecution witnesses---Guilt of accused did not come within the domain of subsection (2) of S. 497, Cr.P.C.---Bail was refused accordingly.

2016 YLR 2727; 2009 SCMR 181; 2007 YLR 2818; PLD 2004 SC 477 and 2002 SCMR 1370 ref.

2002 SCMR 1370 rel.

Mustafa Safvi for Applicant.

Safiullah for the Complainant.

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

2018 M L D 498

[Sindh]

Before Muhammad Iqbal Kalhoro, J

Mrs. HIFSA NAWAZ through Special Attorney---Appellant

Versus

MUHAMMAD HAROON ZAMIR KHAN and another---Respondents

F.R.A. No.66 of 2016, decided on 25th August, 2017.

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

----S.15---Ejectment petition---Personal bona fide need of landlord---Landlord had withdrawn eviction petition instituted on the ground of default in monthly rent---Change of cause of action---Scope---Landlady contended that she needed demised property for personal bona fide need in the wake of forthcoming marriage of his son---Tenant contended that landlady had falsely changed the ground of default of payment to personal bona fide need as current accommodation with her was sufficient---Validity---Record revealed that in the ejectment application, the landlady had asserted that marriage of her son (who was also a witness in the case) had been fixed as such she needed the demised premises for use of her son and she affirmed that she had purchased the premises in question as her son's marital house and this fact was conveyed to the tenant at the time of rent agreement---Evidence of attorney of the landlady and her other witnesses including her son had reiterated the same and also that the marriage had been put on hold for vacation of the demised premises as the girl's family had demanded a separate house for their daughter as a precondition for the marriage---All the witnesses of the appellant had unequivocally supported personal need of landlady for her son whom she intended to settle there after the marriage and which was also the demand of her would-be daughter-in-law's family---Such assertions of the witnesses had neither been shattered materially in their cross-examination nor rebutted adequately by the tenant in his reply to the ejectment application---High Court observed that it was not essentially the case of the landlady that her current accommodation was insufficient for her family's residence as her entire case was articulated of her ejectment application where she had asserted that her son's marriage had been fixed, therefore, she needed the demised premises for his use; and that she had purchased the suit property as her son's marital house, where he was to settle after the marriage and such fact was conveyed to the tenant at the time of rent agreement---Landlady, in circumstances, had been able to establish that she required the demised premises for his son---Impugned order was set aside and appeal was allowed---Tenant was directed to vacate the demised premises and hand over its possession to the landlady within 60 days from the date of present judgment for which period he however, shall pay the agreed rent to the landlady---Order accordingly.

Muhammad Mansoor Mir for Appellant.

Rajender Kumar for Respondent No.1.

2018 M L D 516

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD HAROON---Plaintiff

Versus

PROVINCE OF SINDH through Member, Land Utilization Board of Revenue and 5 others---Defendants

Suit No.731 of 2010, decided on 24th March, 2017.

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

----O. VII, R. 11, O. VI, R. 2 & O.II, R. 2---Plaint, rejection of---Relinquishment of claim---Effect---Pleadings---Requirements---Plaintiff while framing suit was to bring all material facts into light and include whole of the claim which he/she was entitled to make in respect of cause of action---Plaintiff could relinquish or omit any claim or part thereof but once he chose so, afterwards he was not entitled to sue for such relinquished/omitted claim or part thereof---Plaintiff, in the present case, was not allotted suit land but some other land---Facts had not been properly worded by the plaintiff in the plaint---Plaintiff was to approach the Court with clean hands---One who seeks equity must come with clean hands---Substitution of another land merely for reason of processed grant of land under some unauthorized possession would bring all the procedural requirements of specific land to nullity---Plaintiff had not approached the Court with clean hands---Plaint should have made it clear that plaintiff was in the knowledge and notice of right, title and interest of defendant---Such deliberate relinquishment would have effect of precluding the plaintiff from suing for the same subsequently, which was sufficient for rejection of plaint---Exchange of land in favour of plaintiff had been cancelled and he had not challenged the said order before any forum---Status of cancellation order could not be determined if same was not part of pleadings and relief sought in the plaint---One could not build his case other than what he pleaded in the plaint nor any such evidence if led would be considered---Plaintiff should seek further relief for cancellation of documents in favour of defendant with regard to suit land but he had omitted to do so and mere declaration of title had been sought---Such declaration could not be made and in consequence of such incompetence the plaint was liable to rejection being barred by law---Board of Revenue was to ensure the title of land allotted in favour of the plaintiff and then possession be restored in his favour---Plaint was rejected in circumstances.

[Case law referred].

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

---O. VII, R. 11---Plaint, rejection of---Scope.

Order VII, Rule 11, C.P.C. squarely brings the Court under a mandatory obligation to reject a plaint, if to the satisfaction of the Court, same is barred by law. This exercise is never dependant upon an application of party but it is the Court which must nib an incompetent suit at its bud else the object of induction of this proviso shall fail which is aimed to save parties and properties from long lasting effects of incompetent litigations.

While exercising jurisdiction under Order VII Rule 11, C.P.C. the Court is not debarred from examining the defence or undisputed documents and to take judicial notice thereof even permissible presumption can be drawn.

Shaukat Ali Shaikh for Plaintiff.

Ziauddin Junejo, A.A.G.

Irshad Ahmed for BOR.

Munir Ahmed Malik for Defendant No.6.

2018 M L D 534

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Tunio, J

ALLAH BUX and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-346 of 2010, decided on 3rd April, 2017.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of two hours in lodging FIR---Effect---Distance between the place of incident and the police station would be about four kilometers---FIR, in circumstances was lodged very promptly and without any undue delay, hence, it could not be considered that the complainant party could have managed to fabricate a false story of incident to implicate the accused persons.

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

---Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account corroborated by medical evidence---Mid night occurrence---Accused was alleged to have fired with gun upon the complainant party which hit on the chest of brother of complainant and he died on the spot; co-accused had flashed the torch---Ocular account was furnished by the witnesses including complainant---Eye-witnesses specifically deposed that the accused made direct fire upon deceased and co-accused flashed torch while challenging the complainant party---Said eye-witnesses had deposed actual facts consistently that the accused caused the death of the deceased---Admittedly, complainant was brother of deceased and his presence at the place of incident could not be said to be unnatural---Evidence of eye-witnesses appeared to be straightforward, inspiring confidence and fair---Medical evidence fully corroborated the ocular evidence on point of injuries found on the body of the deceased, which was sufficient to establish the case of prosecution against the accused---Case of co-accused was distinguishable from the case of accused, particularly in the circumstances, when the co-accused was holding torch and flashed the same by uttering words "do not spare him"---Co-accused was not armed with any weapon---No act was attributed to co-accused except the flashing of torch light---Circumstances suggested that there was background of enmity between the parties and co-accused was relative of accused, therefore, his false implication could not be ruled out---Said circumstances created reasonable doubt regarding involvement of co-accused in the case, benefit of which would resolve in favour of co-accused---Circumstances established that prosecution had proved its case against the accused but not against the co-accused---Appeal against conviction to the extent of accused was dismissed while co-accused was acquitted by setting aside the convictions and sentences recorded by the Trial Court.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Interested witness---Scope---Testimony of interested witness---Reliance---Scope---Merely, relationship of person with deceased, challenged or unchallenged could not necessarily/essentially in all circumstances, he termed as interested witness and was no ground to discredit his evidence if the same was straightforward, fair and confidence inspiring.

Mudassir alias Jamie v. The State 1996 SCMR 2003; Saeed Akhtar and others v. The State 2000 SCMR 383; Noor Mohammad v. The State and others 2005 SCMR 1958; Mohammad Waris v. The State 2008 SCMR 784; Sahib Khan v. The State 2008 SCMR 1049; Zulfiqar Ahmed and another v. State 2011 SCMR 492 and 2001 SCMR 177 rel.

(d) Criminal trial---

----Witness---"Interested witness"---Scope---Defence was to establish that there was a motive for such a witness to falsely involve the accused---If, however, the witness was blood-relative of deceased, the motive had to be so grave that it could in normal course could motivate a blood-relation to substitute a real culprit with an innocent.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence at the instance of accused---Reliance---Weapon of offence was recovered on the pointation of accused---Accused objected that there was violation of S. 103, Cr.P.C.---Section 103, Cr.P.C. was not applicable where the accused had led the police party and produced the crime weapon.

State through A.G. Sindh v. Shankar 1997 SCMR 1000 and Mohammad Akram v. The State 2006 SCMR 1567 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Motive---Scope---Motive was not necessary for the purpose of commission of capital offence.

(g) Criminal trial---

----Motive---Scope---If the accused stood strongly connected with the commission of offence, proof or non-proof of motive became immaterial.

Mohammad Waris v. The State and another 2007 SCMR 1535 and Muhammad Ilyas v. The State PLD 2001 SC 333 rel.

Omparkash H. Karmani for Appellants.

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

2018 M L D 552

[Sindh (Larkana Bench)]

Before Aftab Ahmed Gorar, J

ABDUL RAZAQ---Applicant

Versus

The STATE---Respondent

Cr.B.A. No.S-207 of 2017, decided on 21st July, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 506(2) & 34---Qatl-i-amd, criminal intimidation, common intention---Bail, grant of---Further inquiry---Allegation of carrying pistol and lalkara (challenge) was leveled against accused---No overt act was attributed to the accused particularly qua the deceased---Judicial confession of co-accused had already created doubt in the prosecution case---Case of accused was covered by subsection (2) of S. 497, Cr.P.C. calling for further inquiry into his guilt---Bail was granted accordingly.

1994 SCMR 2161; 1998 SCMR 454; 1999 SCMR 1320; 2004 SCMR 864 and 2014 SCMR 1347 ref.

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

----S. 497---Bail---Scope---Accused could not be deprived of benefit of bail, whenever reasonable doubt arose with regard to prosecution case.

Safdar Ali Ghouri for Applicant.

Khadim Hussain Khooharo, Addl. Prosecutor General for the State.

2018 M L D 563

[Sindh]

Before Adnan-ul-Karim Memon, J

ZEESHAN alias SHANI---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No.975 of 2017, decided on 24th July, 2017.

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

----S. 497---Bail---Court would make tentative assessment of the record while deciding bail application.

Shahzad Ahmed v. The State 2010 SCMR 1221 rel.

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

----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, grant of---Statutory ground of delay---Complainant had alleged that accused caused fatal injuries (knife blows on the right side of neck) to his son which resulted in his death---Accused was in jail since four years---Conclusion of trial was not in sight in a near future because prosecution witnesses were not turning up inspite of coercive process had been issued against them---Accused could not be deprived from timely disposal of trial without any plausible justification---Keeping accused in jail for an indefinite purpose would not serve purpose of justice---Case of accused fell within ambit of S. 497(1), Cr.P.C. and inordinate delay in commencement of trial amounted to abuse of process of law---Bail was granted accordingly.

Imtiaz Ahmed v. The State 2017 SCMR 1194 rel.

Saathi M. Ishaque for Applicant.

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

Tayyab Ali Shah son of Complainant.

2018 M L D 574

[Sindh]

Before Adnan-ul-Karim Memon, J

AMIR BASHIR---Petitioner

Versus

Mst. NOSHEEN FATIMA and another---Respondents

Constitutional Petition No. S-825 of 2017, decided on 8th July, 2017.

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

----Ss 12 & 25---Father having custody of minors---Application for right of visitation for minors by mother---Family Court allowed application of mother---Father contended that family Court had wrongly allowed application of mother for visitation rights for minors as she had not filed proper suit for guardianship as minors were already in his custody---Validity---Admittedly, the applicant was real mother and natural guardian of minors, therefore, she had every right to meet her children which was enforced by the Family Court---Father had failed to point out any irregularity in the impugned order as proposed arrangement made by the Family Court was just, fair and equitable and was not only in the interest of minors but also reasonably protected the rights of both the parties---No illegality or infirmity having been noticed in the impugned order, constitutional petition was dismissed accordingly.

Lutfullah Arain for Petitioner.

2018 M L D 579

[Sindh]

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

RAFIQUE---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad and 2 others---Respondents

Constitutional Petition No.D-3897 of 2016, decided on 12th October, 2017.

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

----S. 2(1)---Constitution of Pakistan, Art. 15---National Accountability Ordinance (XVIII of 1999), S. 9---Removal of name from Exit Control List---Accused was nominated in a case of cheating the public at large in connection with a housing project---Case record showed that the accused had been released on bail by the Supreme Court and he neither caused any delay in the trial court's proceedings nor attempted to abscond during such period---Trial of accused was not likely to conclude in the near future---Moreover the accused had already deposited his share of any potential liability with the concerned Accountability Court---Right of an accused to travel abroad as guaranteed under Art. 15 of the Constitution could not be lightly trifled with even if he was accused in a criminal case---High Court directed the concerned Ministry to remove the name of the present accused from the Exit Control List forthwith---Constitutional petition was allowed accordingly.

Wajid Shamas-ul Hassan v. Federation of Pakistan PLD 1997 Lore 617; Federal Government v. Ms. Ayan Ali 2017 SCMR 1179 and Dr. Asim Hussain v. Federation of Pakistan dated 29.8.2017 ref.

Barrister Fayyaz Ahmed for Petitioner.

Saeed Ahmad Memon, Assistant Attorney General of Pakistan for Respondents.

Muhammad Altaf, Special Prosecutor, NAB.

2018 M L D 587

[Sindh (Sukkur Bench)]

Before Khadim Hussain M. Shaikh, J

MUHAMMAD BACHAL---Petitioner

Versus

Mst. RABAIL---Respondent

C. P. No.S-4351 of 2016, heard on 11th January, 2017.

Family Courts Act(XXV of 1964)---

----S.12---Suit for maintenance allowance for minor---Execution Application---Ex parte decree when father (defendant) absented himself after appearing before the Family Court---Judgment-debtor (petitioner) moved application to set aside ex parte judgment and decree---Appropriate remedy against ex parte decree---Scope---Fair opportunity to contest---Scope---Petitioner/judgment debtor contended that judgment and decree passed behind his back was liable to be set aside by accepting his application to set aside the same---Validity---Record revealed that petitioner, after service of notice, had filed his written statement and with his consent the interim order of maintenance for minor was passed by the Family Court but afterwards he absented himself from contesting the proceedings, resulting in ex parte judgment and decree to become final---When the execution application was allowed, petitioner then moved application to set aside the judgment and decree passed by the Family Court on the ground that the same was passed behind his back---High Court observed that the petitioner after having filed his defence and consenting the interim order of maintenance of minor, could not be allowed to seek setting aside of the judgment, decree and orders passed against him---When a decision was given in any legal proceeding, which emanated from a special statute, against a party, which was duly served then remedy for unsuccessful party was to challenge the same under the same statute---Once contesting party gave up its remedy provided under a special statute, decision attained finality and remained no more open to challenge by an aggrieved party---High Court rejected the contention of the petitioner that he was not afforded fair opportunity to contest the matter---No illegality or infirmity having been found in the impugned order, constitutional petition was dismissed accordingly.

Fayyaz Ahmed Soomro for Petitioner.

2018 M L D 595

[Sindh (Sukkur Bench)]

Before Omar Sial, J

NIZAM alias NIZAMUDDIN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-58 of 2013, decided on 29th May, 2017.

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

----S. 17(4)---Penal Code (XLV of 1860), Ss. 337-H(2), 147, 148 & 149---Haraabah, negligent act as to endanger human life or the personal safety of others, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party armed with Kalashnikovs assaulted on complainant party, made direct firing upon brother of complainant, who died on the spot---Accused party took away twelve buffaloes owned by the complainant party---Ocular account was furnished by three witnesses including complainant---Prosecution version was that the entire incident was said to have been motivated by a dispute over buffaloes---Complainant had given the detail of steeling of twelve buffaloes and its price in the FIR but could not prove at trial---No buffalo was recovered by the Police---All the accused persons were acquitted of the charge of robbery---Prosecution failed to adduce any evidence on that count, which shed a suspicious light on the entire prosecution case---Complainant had stated in the FIR that there were three unidentified persons amongst the assailants---Alleged eye-witness did not identify the said persons and were included in the case later---No explanation was furnished as to why the witness did not identify the said two accused earlier---Such intent cast doubt on the integrity of the prosecution witnesses---Eye-witness had stated that accused persons made firing for about thirty minutes and went away after making aerial firing along with cattle---Other eye-witness deposed that accused persons made firing for twelve to fourteen minutes continuously---Apart from the considerable difference in their accounts as to how long the firing continued, only seven Kalashnikov bullet empties were recovered from the site---In the burst of fire as claimed by the prosecution witnesses, no other person, animal or property was injured or damaged---Complainant did not specify the seat of injuries on the deceased---Complainant deposed during trial that deceased had been hit with two bullets, one on his left shoulder and the other on his right thigh---Eye-witness deposed that deceased was hit by two bullets, one on his left arm and the other on his hip---Post-mortem report, however indicated that the deceased had three injuries, one on the left arm, and one each on the right and left buttock---Report showed the deceased was alive for a period of thirty minutes after receiving injuries, which was in contradiction to the prosecution witnesses' version that the deceased died on the spot after receiving injuries---Medical evidence did not coincide with the ocular version---Cot on which the deceased was brought to hospital was stained with blood but not seized as case property---Blood stained clothes of the deceased did not reveal that there were bullet holes in them---No weapon was recovered from the accused-appellant and neither were the empties ostensibly recovered from the place of occurrence sent to the ballistic expert to determine the type of weapon from which they had been fired---Blood-stained earth and clothes were not sent to the forensic laboratory---Circumstances established that prosecution failed to prove its case beyond reasonable doubt, benefit of which would go the accused-appellant---Accused-appellant was acquitted by setting aside the conviction and sentence recorded by the Trial Court.

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

----S. 161---Statement of witness before police---Delay---Effect---Statements of the prosecution witnesses were recorded after four days of the incident for no apparent reason---Such unexplained delay in recording the statement of eye-witnesses would create doubt on the accuracy and credibility of these witnesses.

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

----S.17(4)---Penal Code (XLV of 1860), Ss.337-H(2), 147, 148 & 149---Haraabah, negligent act as to endanger human life or the personal safety of others, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Motive not proved---Motive for the occurrence allegedly was that there was a dispute on account of buying and selling of buffaloes between the complainant and accused persons---No evidence was led in trial to prove the motive---Circumstances established that prosecution had failed to prove the motive against the accused.

Sher Muhammad Shar for Appellant.

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

2018 M L D 611

[Sindh]

Before Fahim Ahmed Siddiqui, J

KAMRAN AHMED SIDDIQUI and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos.887 and 1040 of 2017, decided on 5th August, 2017.

Criminal Procedure Code (V of 1898) ---

----S. 498---Penal Code (XLV of 1860), Ss. 471, 202, 447, 468, 467 & 34---Co-operative Societies Act (VII of 1925), S. 54(b)---Using as genuine a forged document, intentional omission to give information of offence by person bound to inform, criminal trespass, forgery for purpose of cheating, forgery for valuable security, will etc., common intention---Bail, confirmation of---Complainant had alleged that accused took possession of his plot and managed, prepared, false, fabricated documents of said plot and raised construction upon the same---Names of present accused appeared in Final Report only---Malpractice, in the present case could not be ruled out when Housing Society was under administration of Registrar, Cooperative Societies through 'Administrator'---Officials were also involved in the matter, because construction of house on the plot could not be done in a Society without the active connivance of the Administrator of the society---Case was required to be referred to Anti-Corruption Establishment in such matters---Complainant and accused persons both were claiming to be owner of the plot, because both of them were members of the Housing Society---Such a matter would be referred to the Registrar of Co-operative Societies or his nominee for decision through arbitration under S.54(b) of Cooperative Societies Act, 1925 in case of any dispute among members or past members or persons so claiming---Without approaching to the Registrar, lodging of FIR could not be considered as free from malice---Matter required further inquiry till decision of the Registrar was available to the effect that accused persons were not the members or past members of society---Ad-interim pre-arrest bail was confirmed.

Muhammad Waseem Samo for Applicants (in B.A. No.887/17).

Abdul Samee for Applicants (in B.A. No.1040/17).

Mian Khan Malik for the Complainant.

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

2018 M L D 614

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput, J

SADORO alias KHURSHEED and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-72 of 2017, decided on 4th December, 2017.

Criminal Procedure Code (V of 1898) ---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-A(ii), 337-F(ii), 504, 148 & 149---Attempt to commit qatl-i-amd, hurt, intentional insult with intent to provoke breach of peace, rioting armed with deadly weapon, unlawful assembly---Bail, grant of---Further inquiry---Complainant alleged that accused persons caused firearms injuries to his son---FIR was lodged with delay of thirty four hours with explanation that complainant was busy in treatment of his son but element of deliberation and consultation could not be ruled out because all the male members of same family were implicated in the case---Accused persons were in custody since one year and their trial was not concluded---Enmity between the parties was an admitted fact---Medico Legal Report revealed that injuries Shajjah-i-hashimah and Ghayr-jaifah hashimah were caused by sharp cutting and hard blunt substances; same injuries as per FIR could not be attributed to the accused persons---Two injuries allegedly caused by firearms were declared as Ghayr-jaifah damiyah which being punishable for one year under S.337-A(i), P.P.C. were bailable under the Schedule of offences---Application of S.324, P.P.C. would be determined by trial court because accused persons did not shoot at vital part of body of the injured---Case of accused persons fell within the ambit of further inquiry as envisaged under subsection (2) of S.497, Cr.P.C.---Bail was granted accordingly.

Rashid Mustafa Solangi for Applicants.

Syed Sardar Ali Shah, D.P.G. for the State.

Ghulam Muhammad Barejo for the Complainant.

2018 M L D 663

[Sindh]

Before Muhammad Iqbal Kalhoro, J

ABDUL REHMAN and 3 others---Appellants

Versus

The STATE and another---Respondent

Criminal Appeal No. 154 of 2015, decided on 1st August, 2017.

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

----Ss. 302(b), 114 & 34---Qatl-i-amd, abettor present when offence committed, common intention---Appreciation of evidence---Prosecution case was that accused, at the instigation of co-accused had fired at the deceased which left him critically injured---Co-accused persons fired at the complainant party, as a result of which people of the area assembled at the place of incident and saw the accused persons fleeing away---Complainant party took the injured to the hospital but he could not survive---Complainant and eye-witnesses in their depositions had supported in unambiguous words the role of accused to the effect that he was armed with pistol and fired on the deceased, which caused his death---Lengthy cross-examination of the said witnesses could not extract from them any material contradiction on salient features of the case relevant to the role of the accused and recovery of incriminating weapon from him---Record showed that evidence against the accused had remained unshaken---Prosecution case against the co-accused persons was not confidence inspiring---Eye-witnesses had deposed that co-accused made firing upon them but no spent bullet casings was recovered from the place of incident---No incriminating weapon was recovered from co-accused persons to lend support to the prosecution case about their role of being armed with pistols firing on complainant party---Evidence of eye-witnesses showed that they were 50 to 60-65 feet away from the co-accused at the relevant time and there were many people gathered at the place of incident, in such a situation, the assertion of eye-witnesses that co-accused were armed with pistol and made firing upon them did not appear to be plausible and trustworthy nor was related to the circumstances stated by the prosecution in the case---Role of instigation ascribed to a co-accused by the eye-witnesses was also not credit-worthy because the question would be that if he himself was armed with the pistol and his intention was to kill the deceased, why he did not fire at the deceased and instead instigated accused to do so---Circumstances established that prosecution had proved its case against the accused but had not been able to prove the case against the co-accused persons---Appeal against conviction to the extent of accused was dismissed while co-accused persons were acquitted by setting aside the convictions and sentences recorded by the Trial Court.

1997 SCMR 214; 1985 SCMR 410; 2010 SCMR 97; 2011 SCMR 323; PLD 1983 SC 35; 2009 SCMR 1025; 2010 SCMR 650; 2010 SCMR 1025; 2001 SCMR 1334; PLD 2007 SC 93 and 2009 SCMR 825 ref.

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

----Ss. 302(b), 114 & 34---Qatl-i-amd, abettor present when offence committed, common intention---Recovery of weapon of offence from accused---Reliance---Scope---Pistol was recovered from the accused at the time of his arrest, which was used in the offence---Said pistol was sent along with crime empty recovered from the place of the incident to the Ballistic Expert---Report of Ballistic Expert showed that the said crime empty was fired from the same pistol---Recovery of weapon of offence from accused could be relied.

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

----Ss. 302(b), 114 & 34---Qatl-i-amd, abettor present when offence committed, common intention---Appreciation of evidence---Medical evidence showed the presence of blackening of skin around the wound of entry on the deceased---Evidence of the eye-witnesses revealed that distance between the accused and victim was 10-15 feet---Defence had alleged that since there was blackening of skin around the wound of entry of the deceased, that indicated that deceased was fired at from close range, and not from the distance of 10-15 feet as deposed by the witnesses---Medico Legal Officer stated in cross-examination that blackening would occur, if fire was made from the distance of 10-15 feet and such assertion did not appear to be rebutted by the defence---Mere disclosure of distance of 10-15 feet between the accused and the deceased at the time fire was shot by the accused would not be construed as a conflict between medical and oral evidence in circumstances.

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

----Ss. 302(b), 114 & 34---Qatl-i-amd, abettor present when offence committed, common intention---Appreciation of evidence---Motive not proved---Effect---If prosecution alleged a motive but failed to prove the same, then such failure would be taken as a mitigating circumstance reacting against the sentence of death only---Failure of the prosecution to prove the motive although asserted in the case would in no circumstance be read as a failure of entire prosecution case because it was not the legal requirement to prove motive in all circumstances.

Qurban Hussain v. The State 2017 SCMR 880 rel.

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

----Ss.302(b), 114 & 34---Qatl-i-amd, abettor present when offence committed, common intention---Appreciation of evidence---Principles---Duty of court---Duty of the court was to sift grain from chaff---If one part of the evidence against an accused or a set of accused was found trust-worthy, it could be relied upon---Other portion of evidence, which was dubious, could be rejected against the same accused or against a different accused or a set of accused.

Abdul Ghaffar Ansari v. The State 2016 MLD 546 rel.

Muhammad Ashraf Kazi along with Khalid Ahmed Khan and Irshad Ali Jatoi for Appellants.

Ms. Rahat Ahsan, Addl. P.G. for Respondent.

Muhammad Islam Leghari for the Complainant.

2018 M L D 693

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD ASHRAF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 351 of 2005, decided on 24th May, 2017.

Penal Code (XLV of 1860)---

----S. 320---Qatl-i-khata by rash or negligent driving---Appreciation of evidence---Sentence, modification of---Prosecution case was that the accused-appellant, who was driving motorbike in high speed, rashly and negligently, hit one pedestrian, who became injured and succumbed to the injury at the spot---Ocular account was furnished by the witnesses/police officials including complainant---Both police officials being eyewitnesses had proved their presence at the place of incident as they were performing their duties at the place---Prosecution had succeeded to prove its case by adducing sufficient evidence that the deceased pedestrian was crossing the road and all of a sudden, the accused-appellant/motorcyclist while driving speedily hit the deceased, who died due to injuries---Ocular account of accident furnished by the prosecution was confidence inspiring as both eye-witnesses were natural witnesses and there was no reason or motive for them to make false statement against the accused-appellant---Record transpired that it was a crowded locality and by not reducing speed of motorcycle by using breaks in working condition, the accused-appellant had committed the act of rashness and negligence---Record showed that there was consistency in statement of prosecution witnesses and there was no reason to disbelieve their statements---Circumstances and facts of the case showed that accused-appellant neither attempted to save the victim nor even to control its speed while driving---Accused-appellant had enough time to apply the brakes---Accused-appellant had not taken the plea that he made effort to control the motorbike---Rash and negligent driving of motorcycle resulting in the death of victim was established, however, the punishment of imprisonment, in addition to the payment of diyat amount, was out of proportion---Consequently, appeal was dismissed, however, the order of punishment of imprisonment was modified and accused-appellant was to remain in jail till the payment of diyat.

Ravi Kapur v. State of Rajasthan 2013 SCMR 480 rel.

Umar Farooq Khan for Appellant.

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

2018 M L D 716

[Sindh]

Before Ahmed Ali M. Shaikh and Omar Sial, JJ

GULAB SHAH---Appellant

Versus

The STATE and another---Respondents

Spl. Criminal A.T.A. Jail Appeal No. 302 of 2015, decided on 10th March, 2017.

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

----S. 7(1)(ff)---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Act of terrorism, attempt to cause explosion, or for making or keeping explosive substance with intent to endanger life or property, possessing explosive under suspicious circumstances---Appreciation of evidence---Benefit of doubt---Prosecution case was that thirty three shells of a .17 mm gun in a gunny bag were recovered from the possession of the accused---Record showed that complainant admitted in his testimony that each of the recovered shells had a specific number but he did not write the numbers in the FIR or the memo of arrest and recovery---Report of Bomb Disposal Unit showed the said numbers but in the numbers were mentioned but in the absence of the same being identified in the FIR or the memo. of arrest and recovery, doubt was created as to whether the shells examined by the Bomb Disposal Unit were the same as those recovered from the spot---Bomb Disposal Unit inspection report showed that the police had informed that thirty three grenades had been recovered from the accused---Bomb Disposal Unit, after inspection, stated that thirty three aircraft shells were examined by it---Charge showed that thirty three antenna aircraft shells were recovered from the accused---Complainant stated in his evidence that thirty three shells of a .17 mm gun were recovered---Gunny bag was not produced in evidence---Complainant stated that recovered ammunition were sealed in two bags but Bomb Disposal Unit mixed up the grenades after examination and sealed them in one bag---Said version of complainant was not supported by the testimony of the Bomb Disposal Unit Expert---Record transpired that incident occurred on 3.12.2013 but the Bomb Disposal Unit was summoned on 6.12.2013 by the police to examine the ammunition---Prosecution was silent as to where and how the ammunition was kept for three days---Possibility of the ammunition being tampered with in such a situation could not be ruled out---Evidently, accused was not confronted with the Bomb Disposal Unit report in his statement recorded under S.342 Cr.P.C.---Circumstances established that prosecution was unable to prove its case beyond reasonable doubt, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.

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

-----S. 342---Statement of accused recorded under S. 342, Cr.P.C.---Scope---If the accused was not confronted with any piece of evidence during his statement recorded under S. 342, Cr.P.C. the same could not be used against him.

Qaddan v. The State 2017 SCMR 148; Muhammad Nawaz v. The State 2016 SCMR 267 and Muhammad Shah v. The State 2010 SCMR 1009 rel.

Fazal Karim Durrani for Appellant.

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

2018 M L D 727

[Sindh]

Before Fahim Ahmed Siddiqui, J

Mst. ERAM RAZA and 2 others---Petitioners

Versus

Syed MUTAQI MUHAMMAD ALI and another---Respondents

Constitution Petition No.S-1098 of 2017, decided on 28th July, 2017.

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

----Ss.12 & 47---Family Courts Act (XXXV of 1964),S. 14(1)(3)---Interim custody of minor---Interlocutory order---Right of appeal---Scope---Petitioner/mother contended that order of interim custody of minor being interlocutory in nature could only be challenged under constitutional jurisdiction of High Court---Respondent/father contended that matter of interim custody under Family Courts Act, 1964 was appealable before District Court---Validity---If order was interlocutory one which was not appealable then even constitutional petition was not maintainable---Provision of S. 47, Guardians and Wards Act,1890, provided that order under S. 12 of the Guardians and Wards Act, 1890 was appealable---Provisions of Guardians and Wards Act,1890 could not be read in isolation---Matters pertaining to guardianship would exclusively be triable by the Family Court created under the Family Courts Act, 1964 which was a later enactment than the Guardians and Wards Act, 1890; statute later in time would prevail upon the earlier---According to S.14(1) of the Family Courts Act, 1964 a decision given or a decree passed by Family Court would be 'appealable' in spite of the fact that S. 12 of Guardians and Wards Act, 1890 was not mentioned in S. 47 of the said Act---Appeal could be filed against order passed under S. 12 of Guardians and Wards Act, 1890, being a 'decision' given by Family Court and the same was not hit by subsection (3) of S. 14 of Family Courts Act, 1964 and the appeal would lie before the District Court if the Family Court was not presided by a District Judge or Additional District Judge---Impugned order passed by the Family Court being appealable before the District Court same could not be challenged under constitutional jurisdiction before the High Court----Constitutional petition was dismissed in circumstances.

Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary and another 1996 SCMR 1165; Mumtaz Hussain alias Butta v. Chief Administrator of Auqaf, Punjab, Lahore and another 1976 SCMR 450; Aley Nabi and others v. Chairman, Sindh Labour Court and another 1993 SCMR 328; Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806 and Suo Motu Case No.13 of 2007 PLD 2009 SC 217 ref.

Zahid Hamid for Petitioners.

Irfan Haroon for Respondent No.1.

2018 M L D 745

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

TARIQUE and 3 others---Applicants

Versus

The STATE---Respondent

Cr. Bail Application No.S-42 of 2017, decided on 4th October, 2017.

(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, common intention---Bail, grant of---Delay in recovery of crime weapons and empties---Effect---Further inquiry---Scope---Pendency of criminal cases against any of the accused---Effect---Prosecution had contended that empties and crime weapons had been effected from the accused persons so they were not entitled to bail---Validity---Total 14 empties of pistol, one empty of rifle and 4 empties of Kalashnikov were recovered, but record revealed that said empties were sent to the Forensic Science Laboratory for opinion after a delay of 23 days while crime weapons were allegedly recovered from the accused after two months which were also sent to the laboratory after delay of 3 days for which no plausible explanation had been furnished---Whether said empties and the crime weapons were the same, which were used in the commission of offence or otherwise was yet to be determined at trial---Mere pendency of criminal cases against any of the accused did not ipso facto disentitle the accused for the grant of bail if otherwise they were entitled for bail---Nothing was available on record that accused persons were convicted in other criminal case and conviction was maintained up to the level of superior court---None of the accused persons had caused any injury to the deceased---Matter came, in circumstances, would fall within the ambit of purview of S.497(2), Cr.P.C.---Bail was allowed.

Muhammad Irshad v. Allah Ditta 2017 SCMR 142; Muhammad Faiz alias Bhoora v. State 2015 SCMR 655 and Muhammad Imran v. The State 2016 SCMR 1401 ref.

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

----S.497---Bail---Pendency of criminal case against accused---Effect---Mere pendency of criminal cases against the accused did not ipso facto disentitle the accused for the grant of bail if otherwise he was entitled for bail.

Amjad Ali Sahito for Applicants.

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

Ahsan Gul Dahri for the Complainant.

2018 M L D 761

[Sindh (Hyderabad Bench)]

Before Mohammed Karim Khan Agha, J

MUHAMMAD ASLAM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-126 of 2013, decided on 17th April, 2017.

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

----Ss. 302(b), 324 & 337-F(iv)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah madihah---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that accused made straight firing with his shot gun on brother of complainant and a prosecution witness, due to which brother of complainant died and the witness sustained injuries---Ocular account was furnished by injured witness---Said witness knew the accused and gave direct evidence that she had seen the accused shooting the deceased before firing on her---Injured witness was not a chance witness and her reliability and credibility was not damaged during the cross-examination---Said witness was key witness and her evidence was confidence inspiring, which was corroborated by medical evidence---Injuries of injured witness were corroborated by prosecution witnesses including the Medical Officer---No animus or enmity had been shown against the accused-appellant by any of the prosecution witnesses---Record showed that accused-appellant was arrested on the same day of incident and FIR was lodged on that day---Postmortem of the deceased was carried out on the same day and the accused-appellant got recovered murder weapon from his house---Reports of Ballistic Expert and Chemical Expert supported the prosecution's case---Confessional statement of the accused-appellant was available on record wherein he stated his motive behind the crime---Circumstances established that evidence of the key witnesses which was reliable, trustworthy and confidence inspiring and medical evidence, Ballistic report and Chemical Examiner's report connected the accused-appellant with the commission of offence---Appeal against conviction was dismissed in circumstances.

Muhammad Asif v. The State 2017 SCMR 486; Nasir Javaid and another v. The State 2016 SCMR 1144; Rehman and others v. The State PLD 1963 Lah. 464; Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Nadeem v. The State 2013 PCr.LJ 701; Shahid alias Waris and others v. The State and others 2016 YLR Note 97; Sher Azam Khan v. The State and 2 others 2016 YLR 1166 and Khurram Jalali v. The State 2017 PCr.LJ Note 19 ref.

Naik Muhammad alias Naika and another v. The State 2007 SCMR 1639 and Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

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

----Ss. 302(b), 324 & 337-F(iv)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah madihah---Appreciation of evidence---Discrepancies in the evidence of witnesses---Effect---Admittedly, there were some discrepancies in the evidence of prosecution witnesses, however, such discrepancies were of only minor in nature and when considered against the totality of the evidence to be of little significance in the context of the case.

Inam Ali Malik for Appellant.

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

2018 M L D 777

[Sindh]

Before Salahuddin Panhwar, J

Syed QAMAR SULTAN---Plaintiff

Versus

JAVED IQBAL GOHAR and another---Defendants

Suit No.633 of 2009, decided on 31st March, 2017.

Tort---

----Mental shock and agony---Scope---Actual and special damages---Recovery of---Plaintiff sought recovery of compensation and damages for getting injury at hands of defendant due to his negligent driving---Validity---Documents produced by plaintiff were sufficient to establish injuries suffered by plaintiff in consequence to hit by vehicle---Such were actual payments made by plaintiff for treatment of injury which plaintiff had claimed to have received in result of malfeasance/negligence of defendant---In absence of disproof, plaintiff was entitled for such amount as same fell within meaning of special damages---Special damages/compensation meant material and actual loss capable of assessment in terms of money resulting as a natural or proximate consequence of a wrongful act---Plaintiff assessed such compensation, i.e., medical expenses as Rs. 2,000,000/- which with reference to produced documents was accepted by High Court---As regard claim of damages with respect to mental shock and agony, plaintiff did not produce any other evidence but his own words, therefore, plaintiff could not claim entitlement for a specific sum of his choice---Where 'wrong' on part of defendant was otherwise established, then court could assess fair compensation for 'mental shock'---Nothing was available to dispute the fact that it was the injury which resulted in confining plaintiff to bed therefore, monthly amount equivalent to his salary per month was reasonable---Plaintiff was entitled for such amount from date of injuries till decision---Suit was decreed accordingly.

Tahir Jahangir and another v. Don Waters 2003 CLC 1699 and Malik Gul Muhammad Awan 2013 SCMR 507 rel.

Abdul Majid v. United Chemicals (Ltd.) PLD 1970 Lah. 298; Mujahid Abdur-Rehman v. Mangla Dam Contractor PLD 1969 AJ&K 51; Farzand Raza Naqvi and 5 others v. Muhammad Din through L.Rs. and others 2004 SCMR 400; Ravi Kapur v. State of Rajisthan 2013 SCMR 480 and Steel Mills Corporation v. Malik Abdul Habib 1993 SCMR 848 ref.

Qazi Hifzur-Rehman for Plaintiff.

Javed Iqbal Gohar and another for Defendants.

2018 M L D 794

[Sindh]

Before Adnan-ul-Karim Memon, J

LUTUF ULLAH---Appilcant

Versus

The STATE---Respondent

Criminal Bail Application No.845 of 2017, decided on 27th July, 2017.

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

----Ss.497 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 25 & 51---Possession of Narcotic Substance weighing 3 K.G---Bail, refusal of---Rule of consistency---Applicability---Scope---Accused persons were allegedly found seated in car with narcotic substance hidden beneath the front seat of the car---Contention of accused that co-accused was allowed bail was beside the mark as accused was arrested red-handed with possession of narcotic---Recovery was duly witnessed by the police officials who were as good witnesses as any other person and who had no reason to falsely implicate the accused---Section 25 of Control of Narcotic Substances Act, 1997 excluded the applicability of S. 103, Cr.P.C.---Case of the accused was hit by the prohibition contained in S. 51 of the Control of Narcotic Substances Act,1997 , therefore , no case of further inquiry was made out---Rule of consistency was not applicable as accused had failed to produce any material to suggest that he was falsely implicated in the case---Mere statement of accused that he had been implicated by the Anti-narcotic Force for non-fulfilling of their illegal demand was not sufficient---Bail was refused accordingly.

Socha Gul v. The State 2015 SCMR 1077 ref.

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

----S.497---Bail---Rule of consistency---Applicability---Scope---Co-accused had been granted bail---Accused had failed to produce any material to suggest that he was falsely implicated in the case---Mere statement of the accused that he had been implicated by the Anti-narcotic Force for non-fulfilling of their illegal demand was not sufficient---Rule of consistency was not applicable, in circumstances.

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

----S.103---Control of Narcotic Substances Act (XXV of 1997), S.25---Recovery of narcotic substance by police officials---Effect---Recovery was duly witnessed by the police officials who were as good witnesses as any other person and had no reason to falsely implicate the accused in cases of like nature---Section 25 of Control of Narcotic Substances Act, 1997 excluded the applicability of S. 103, Cr.P.C.

Muhammad Ijaz Tanoli for Applicant.

Shafique Ahmed, Special Prosecutor for ANF for Respondent.

2018 M L D 802

[Sindh]

Before Arshad Hussain Khan, J

H. NIZAM DIN AND SONS (PVT.) LTD. through Authorized representative---Plaintiff

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through Secretary and 2 others---Defendants

Suit No.1768 of 2016, decided on 31st October, 2017.

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

----S.105---Specific Relief Act (I of 1877), Ss. 42 & 56---Easements Act (V of 1882), S. 60---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for declaration---License agreement, nature of---Plaint, rejection of---Scope---Defendant had not transferred any interest or right in favour of plaintiff in the suit property and had retained complete control over the subject property---Permission to occupy the suit premises was personal in nature and was not assignable or transferable---Permission to occupy the premises had been given for a specific business and for no other purpose---Entire conduct of plaintiff in the suit premises was controlled by licensor---Plaintiff had not acquired any right or interest in the suit property---Plaintiff had no cause of action and suit was hit by Ss. 42 & 56 of Specific Relief Act, 1877---Plaint was rejected in circumstances.

Messrs Zaidi's Enterprises and others v. Civil Aviation Authority and others PLD 1999 Kar 181; Gulistan Khan (Mehmand) v. Federation of Pakistan through Secretary Ministry of Railways, Islamabad and 3 others 2009 MLD 322; Aftab Hussain through Attorney v. Government of Sindh through Chief Secretary and 2 others 2015 MLD 1688; Pervaiz Hussain and another v. Arabian Sea Enterprises Limited 2007 SCMR 1005; Noor Muhammad v. Civil Aviation Authority and another 1987 CLC 393; Messrs Sign Source through Partners v. Humayun H. Baig Muhammed 2007 YLR 2287 and Ebrahim Brothers Ltd. v. Whealth Tax Officer Circle III, Karachi and another PLD 1985 Kar 407 ref.

M.A. Naser v. Chairman, Pakistan Eastern Railway and others PLD 1965 SC 83 and Ahmed Din v. Abdullah Bhai and others PLD 1962 Kar 663 rel.

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

----S. 105---Easements Act (V of 1882), S. 52---"Lease" and "license"---Distinction elaborated.

Abdul Rehman v. Haji Mir Ahmad Khan and another PLD 1982 Kar. 532; Muhammad Hashim v. Zulfiqar Ali Khan General Manager, West Pakistan, Road Transport Board and others PLD 1963 Lah. 418; Abdullah Bhai and others v. Ahmed Din PLD 1964 SC 106 and Sajid Ali Khan v. Muhammad Ahmed Farooqui PLD 1959 Kar. 24 rel.

Arshad Tayyabali for Plaintiff.

Malik Naeem Iqbal for Defendants Nos. 1 and 2.

2018 M L D 832

[Sindh]

Before Adnan-ul-Karim Memon, J

MUHAMMAD YOUNUS---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No.977 of 2017, decided on 5th August, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 394---Voluntarily causing hurt in committing robbery---Bail, refusal of---Accused was caught red handed with the weapon and complainant identified him to be culprit of offence---Accused was charged with dacoity/snatching of mobile phone---Investigating Officer recorded statement of witnesses who supported the prosecution case without any ostensible reason to falsely implicate the accused---Forensic Science Laboratory Report about the pistol recovered from accused was positive which, prima facie, connected accused with alleged crime---Prosecution had collected sufficient incriminating evidence to connect accused in the crime---Accused had failed to establish his false implication in the case---Mere saying that there was scuffle between complainant and accused on a certain issue was a factual controversy which could not be determined at bail stage---Accused had failed to make out a case for grant of bail---Bail was refused accordingly.

Ms. Roshna Leghari for Applicant.

Ms. Seema Zaidi, D.P.G. along with I.O. S.I. Moin Khan, Police Station Aziz Bhatti for the State.

Nemo for the Complainant.

2018 M L D 850

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar, J

SUHABAT ALI---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.S-245 and M.A. No.10927 of 2016, decided on 21st June, 2017.

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

----Ss. 324, 337-F(ii), 337-F(vi), 504, 114 & 34---Attempt to commit qatl-i-amd, causing badi'ah, munaqqillah, intentional insult with intent to provoke breach of peace, abettor present when offence is committed, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and co-accused persons, duly armed with pistol and lathies, emerged on the spot and assaulted on the complainant party, made firing, which hit the brother of the complainant on his left leg below the knee---All the accused persons, thereafter, had given lathi blows as well kicks and fists blows to the complainant party---Prosecution had alleged that brother of complainant received injury on his left leg and the witnesses of ocular account stuck to such allegation---Medical evidence furnished by Medical Officer showed that the injured received injury on right leg, hence the medical evidence did not corroborate the ocular version---Prosecution never attempted to justify such material dent---Presumption, in such situation, could be that the complainant was not the witness of incident---Circumstances established that prosecution did not succeed in proving its case beyond reasonable doubt, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 324, 337-F(ii), 337-F(vi), 504, 114 & 34---Attempt to commit qatl-i-amd, causing badi'ah, munaqqillah, intentional insult with intent to provoke breach of peace, abettor present when offence is committed, common intention---Appreciation of evidence---Medical evidence---Scope---Prosecution could seek corroboration to ocular account through medical evidence with regard to receipt of the injuries nature of the injuries, kind of weapons used in the occurrence, but medical evidence did not identify the real culprit.

Ghulam Qadir v. State 2008 SCMR 1221 rel.

(c) Criminal trial---

----Administration of justice---Prosecution would not be entitled for conviction unless the ocular account was established beyond any reasonable doubt and any material dent would be sufficient for acquittal.

Aghis-u-Salam for Appellant.

Mazhar Ali Leghari for the Complainant.

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

2018 M L D 866

[Sindh]

Before Muhammad Ali Mazhar, J

ENGRO FOODS LTD. through duly Authorized Attorney---Plaintiff

Versus

PROVINCE OF SINDH through Secretary, Ministry of Labour and 2 others---Respondents

Suit No.1771 of 2017, decided on 14th December, 2017.

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

----O.I., R.10 & S.107---Suit for declaration---Impleadment of interveners necessary party---Scope---Trans-provincial organization/ establishment---Dispute with regard to applicability of provincial legislation---Labour Union seeking impleadment as a party in the suit---Necessary and proper party---Scope---Intervener Labour Union was one of the stakeholders in the matter---If any judgment/decree was passed to the effect that provincial legislation did not apply to the trans-provincial establishment, it would affect the interest of employees as well as their union---Labour Union must be given right of audience to advance the cause of justice---Union members were engaged in Dairy Farm or manufacturing process but they were employees of one and the same establishment and group of establishments---Court had powers to add any person as plaintiff or defendant in the suit at any stage and even in appeal---Joining of party at any stag was binding in all subsequent proceedings until set aside in legal manner---Even appellate court had discretion to substitute or add any person as appellant or respondent provided they were proper and necessary party to the proceedings---Plaintiffs, in the present case, were dominus litis having real and direct interest in the decision of the case---Plaintiff in a suit might choose the persons against whom he intended to litigate and could not be compelled to sue a person against whom he did not seek any relief---Presence of intervener was necessary to enable the court of completely, effectively and adequately adjudicate upon the question in dispute---Application for impleament as party was allowed and intervener was impleaded as defendant---Plaintiff was directed to file amended title so that newly added defendant might file written statement.

Mst. Farasa Aijaz v. Messrs Qamran Construction (Pvt.) Ltd. 2012 CLC 1477; Aroma Travel Services (Pvt.) Ltd. v. Faisal Al Abdullah Al Faisal 2017 YLR 1579; Jiand Rai v. Abid Esbhani 2010 YLR 1666 and Shams Mohiuddin Ansari v. Messrs International Builders 2010 CLC 1622 rel.

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

----O. I, R. 10 & S. 107---Impleading of necessary and proper party---Principles.

Only those persons are necessary and proper party to the proceedings, whose interests are under challenge in the suit and without their presence matter could not be decided on merits. The necessary party is one who ought to have been joined and in whose absence no effective decision can take place. The object of Order I, Rule 10, C.P.C. is to avoid multiplicity of proceedings and litigation and to ensure that all proper parties are before the court for proper adjudication on merits. Once the court comes to the conclusion that a person applies for becoming a party is a necessary party then the court ought to pass an order directing such person to be impleaded as party in the proceedings. Court is empowered under this provision to add any person as plaintiff or defendant in the suit at any stage and even in appeals. Joining of party at any stage is binding in all subsequent proceedings until set aside in legal manner. Order I, Rule 10, C.P.C. read with section 107, C.P.C. is even applicable to appeals and the appellate court has discretion to substitute or add any person as appellant or respondent provided they are proper and necessary party to the proceedings. The general rule with regard to impleading the parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief but a proper party is a party who, though not a necessary party but is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made.

Mst. Farasa Aijaz v. Messrs Qamran Construction (Pvt.) Ltd. 2012 CLC 1477; Aroma Travel Services (Pvt.) Ltd. v. Faisal Al Abdullah Al Faisal 2017 YLR 1579; Jiand Rai v. Abid Esbhani 2010 YLR 1666 and Shams Mohiuddin Ansari v. Messrs International Builders 2010 CLC 1622 rel.

Ali Almani for Plaintiff.

Jamshed Ahmed Faiz for the Intervener.

2018 M L D 878

[Sindh]

Before Fahim Ahmed Siddiqui, J

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

Versus

S.S.J. BROTHERS---Respondent

IInd Appeal No.115 of 2010, decided on 19th April, 2017.

Civil Procedure Code (V of 1908)---

----O.III, R.2 & O. XXIX, R.2---Suit by Corporation---Suit filed by plaintiff (corporation) was decreed in its favour but Lower Appellate Court reversed the findings of Trial Court and dismissed the suit---Validity---Corporation was a juristic entity, which could take decision or act only through its Board of Directors---Authority or authorization by or on behalf of a Corporation was deemed to be valid and legal only when it had sanction or approval by its Board of Directors---Person who signed pleadings was Manager and could be head of a department of plaintiff Corporation but nowhere it was mentioned that he was 'principal officer' of plaintiff corporation and he had signed and verified plaint in such capacity---Plaint could have been signed and verified under and authorization given to him by Board of Directors as provision of O. III, R. 2, C.P.C. was attracted---Pleadings by or on behalf of a Corporation/Company were not proper and competent if signatory of pleadings and verification was not so authorized by Board of Directors of that Corporation/Company---Person who signed was not competent to initiate suit on behalf of plaintiff and appeal was rightly dismissed by Lower Appellate Court---Second appeal was dismissed in circumstances.

1988 CLC 1381; 2016 CLD 739; 2007 CLC 1811; 2006 CLC 829; 2006 CLD 85; 2005 CLD 1208; 2010 CLC 420; 2014 CLD 415; Khan Iftikhar Hussain Khan of Mamdot (Represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd. Lahore PLD 1971 SC 550 ref.

Mazhar Jafferi for Appellant.

Muhammad Umar Lakhani for Respondent.

2018 M L D 894

[Sindh]

Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ

ARSALAN---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No.179 of 2015, decided on 25th September, 2017.

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

----Ss. 386 & 506---Telegraph Act (XIII of 1885), S. 25-D---Anti-Terrorism Act (XXVII of 1997), S. 7(i)(h)---Extortion by putting a person in fear of death or grievous hurt, criminal intimidation, criminal intimidation by anonymous communication act of terrorism---Appreciation of evidence---Sentence, reduction in---Prosecution case was that accused made telephone calls for extortion of Rs. 500,000/- to the complainant on his mobile phone and extended threats of murder and used abusive language---Complainant had stated that he received a call and Bhatta of Rs. 500,000/- was demanded from him---Calls were repeated with threat of murder---Prosecution witness had deposed that three envelops were handed over to him, which were in the name of complainant and two other persons---Prosecution evidence reflected that accused was working in couriers company and he had sent envelops to the complainant and demanded Bhatta---Cell phone sims were recovered from the possession of accused and call data were obtained, which showed that calls were duly made to the complainant---Prosecution produced sufficient evidence against the accused to connect him in the crime---Record showed that after arguments at some length, accused did not press the appeal on merits and made request for taking a lenient view in sentence---Admittedly, accused was not previous convict in such cases like the present one---Allegedly, accused was supporter of a large family, in such state of affairs sentence could be reduced---Sentence awarded to accused for seven years was reduced to five years---Appeal was dismissed with modification in the sentence.

Niazuddin v. The State 2007 SCMR 206 rel.

(b) Criminal trial---

----Sentence, reduction in---Scope---Court, in a case of some special features relevant to the matter of sentence, could depart from the prescribed norms and standards but in all such cases, court would be obliged to record reasons for such departure.

State through the Deputy Director (Law,) Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi PLD 2017 SC 671 rel.

Kashif Ali for Appellant.

Abrar Ali Khichi, Deputy Prosecutor General Sindh for Respondent.

2018 M L D 901

[Sindh]

Before Nazar Akbar, J

MUHAMMAD LATEEF KHOKAR---Plaintiff

Versus

SALIM AHMED QURESHI---Defendant

Suit No. 1516 and C.M.As. Nos.11799, 14425, 17354 of 2015 and 4478 of 2017, decided on 7th August, 2017.

Registration Act (XVI of 1908)---

----S.17(1)(b)---Partition deed of immoveable property---Registration, question of---City Development Authority had already sud-divided the suit property between the parties---Title documents---Scope---Only grievance of the plaintiff was that after partition of the suit property, since each portion was to be owned exclusively and separately by two persons, the partition deed required to be registered, showing ownership of independent share/portion of the parties, therefore, partition deed was supposed to be reduced into writing and duly registered as the registered partition deed would confer ownership right in favour of the plaintiff and the defendant to the extent of immoveable property in the possession--- Plaintiff was interested in registration of the partition deed for which the defendant cooperation was imperative---Defendant, in his written statement, categorically stated that he had "no objection" to the execution and registration of partition deed at the expenses of the plaintiff---In view of said legal position, High Court directed the defendant to be available and cooperate with the plaintiff for signing the required partition deed before the Sub-Registrar in accordance with law so that the title of the plaintiff in the suit would be preferred---Counsel for the defendant undertook on behalf of the defendant that once partition deed duly prepared by the plaintiff was provided to the counsel for the defendant he would examine the same and within one week from the date of receiving it the defendant would appear before Sub-Registrar and Sub-Registrar would register the partition deed after following all legal formalities such as stamping, etc.---High Court decreed the suit with the consent of the parties accordingly.

Abdul Sattar for Plaintiff.

Mustafa Lakhani for Defendant.

Ms. Rehmat-un-Nisa for K.D.A.

Syed Alley Maqbool Rizvi, A.A.G.

2018 M L D 918

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Zulfiqar Ahmed Khan, JJ

Dr. RAEES M. MUSHTAQUE through General Attorney---Petitioner

Versus

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

Constitution Petition No.D-1584 of 2015, decided on 3rd May, 2017.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Suit for declaration---Rejection of plaint after framing of issues---Scope---Issues had been framed and matter was fixed for evidence but---Defendant moved application for rejection of plaint---Trial Court dismissed the application for rejection of plaint but Revisional Court accepted the same---Validity---Counsel for the parties agreed that issues had been framed and it would be proper to set aside the impugned judgment and remand the case to be decided after recording the evidence---Parties were at issues in the present case---Trial Court was to decide the dispute by referring evidence---Impugned order for rejection of plaint was not warranted in circumstances---Order passed by the Revisional Court was set aside and case was remanded to the Trial Court to decide the same in accordance with law---Constitutional petition was allowed in circumstances.

Mst. Kareem Bibi and others v. Zubair and others 1993 SCMR 2039 rel.

Naimatullah Soomro files Vakalatnama behalf of Petitioner which is taken on record.

Ch. Bashir Ahmed, Assistant A.G. for the Respondents.

2018 M L D 927

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD HANIF---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1669 of 2017, decided on 11th December, 2017.

Criminal Procedure Code (V of 1898)---

----S.497---Foreign Exchange Regulation Act (VII of 1947),Ss. 4, 5 & 23---Penal Code (XLV of 1860),S.109---Indulging in business of hundi hawala---Bail, grant of---Further inquiry---Accused/Foreign Exchange Operator was alleged to be in possession of incriminating articles i.e., mobile sets and account books etc.---First Information Report was registered though after spot inquiry but without any order from Magistrate---Alleged offence did not fall within the prohibitory clause of S.497(2), Cr.P.C.---Investigation Officer had not filed final charge sheet before the Trial Court---First Information Report had been lodged, after spot enquiry, order from concerned Magistrate had not been obtained , therefore, the investigation seemed to be defective which called for further inquiry into the guilt of accused as envisaged under S.497(2), Cr.P.C.---Accused was admitted to bail, in circumstances.

Muhammad Younas v. The State 2016 PCr.LJ 593 and Shamim Ahmed Kashmirwala v. The State 1988 PCr.LJ 136 ref.

Muhammad Ilyas Warraich and Malik Sajid Awan for Applicant.

Muhammad Javed K.K., Assistant Attorney General for the State.

2018 M L D 937

[Sindh]

Before Adnan-ul-Karim Memon, J

Syed IMTIAZ HUSSAIN---Petitioner

Versus

ABDUL AZIZ and 2 others---Respondents

C. P. No. S-1763 of 2016, decided on 19th July, 2017.

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

----S. 15---Eviction petition---Willful default---Personal bona fide need---Scope---Testimony of the landlord not rebutted---Effect---Petitioner/tenant contended that rented premises was actually required for the son of landlord which was hardly ground for eviction---Respondent/landlord contended that tenant had made willful default in payment of monthly rent and landlord needed the premises in good faith---Validity---Sole testimony of the landlord was sufficient to establish personal bona fide need of the rented premises if the lanlord's statement on oath was consistent with the averments made in the eviction application---Sole testimony of the landlord when not rebutted in cross-examination, the burden on the part of landlord stood discharged---Tenant had failed to prove his case before both the Courts below on the said point of determination framed by the Rent Tribunal---Powers under constitutional jurisdiction were limited and confined only to ascertain whether the lower courts had flouted the statute or failed to follow the law relating thereto---No illegality or infirmity having been noticed in the impugned orders passed by both the Courts below---Constitutional petition was dismissed.

Pakistan Institute of International Affairs v. Naveed Marchant and others 2012 SCMR 1498 and Nisar Ahmed Shaikh v. VIIth Additional District and Sessions Judge District South and others 2017 MLD 605 ref.

Muhammad Nadeem Khan, Irfan Aziz and Imtiaz Ali Afandi for Petitioner.

Naqi Ahmed Taha for Respondent No.1.

2018 M L D 948

[Sindh]

Before Mrs. Ashraf Jahan, J

STATE LIFE INSURANCE CORPORATION OF PAKISTAN---Petitioner

Versus

Messrs GROUP MARKETING (PVT.) LTD. and 2 others---Respondents

Constitution Petition No.S-22 of 2008, decided on 3rd January, 2018.

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

----Ss.8 & 9(2)---Application by landlord for increase in monthly rent---Quantum of rent--- Fair rent--- Scope--- Petitioner/landlord contended that he was entitled for periodical increase in the rate of rent during the pendency of litigation spanning decades---Tenants contended that they constructed the rented premises so their case could not be compared with other tenants of the same building---Validity---Admittedly there was no written agreement between the parties---Record revealed that landlord had made specific reference in the evidence of other tenancy agreements with other tenants of the same building and brought on record other facts coupled with documentary evidence to show increase in several taxes payable by the landlord, whereas in the cross-examination such facts had not been specifically disputed by tenants---Tenants had questioned the increase in the rate of rent on the ground that construction was carried out by them but they had failed to produce any documentary evidence to substantiate their assertions---High Court viewed that concurrent findings of both the Courts below on the quantum of rent were not based on proper appreciation of evidence and contrary to the spirit of S.8 of the Sindh Rented Premises Ordinance, 1979---High Court directed to increase the rent @ Rs. 10/- per square feet from the date of institution of case with 5% annual increase after three years from the date of its institution---Constitutional petition was allowed accordingly.

Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 ref.

Zahid Hussain for Petitioner.

Abdul Hameed for Respondent No.1.

2018 M L D 962

[Sindh]

Before Irfan Saadat Khan and Aziz-ur-Rehman, JJ

LUCKNOW COOPERATIVE HOUSING SOCIETY LIMITED through General Secretary ---Petitioner

Versus

IV-SENIOR CIVIL JUDGE, KARACHI (SOUTH) and another---Respondents

Constitutional Petition No.D-7076 of 2017, decided on 20th October, 2017.

Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), Ss. 12(2) & 151 & O. IX, R. 9---Constitutional petition against judicial proceedings---Scope---Allotment of land---Ex-parte decree, setting aside of---Suit filed against the petitioner-judgment debtor was decreed ex-parte and application for setting aside the said decree was dismissed---Petitioner assailed said orders in constitutional jurisdiction of High Court---Validity---Impugned judgment and decree passed in the civil suit was firstly challenged on the basis of fraud and misrepresentation through an application under S.12(2), C.P.C. but same was dismissed---Execution petition against the petitioner-judgment debtor had been allowed by the Executing Court---Petitioner moved another application under O. IX, R. 9, C.P.C. which was also dismissed---Petitioner had earlier filed constitutional petition against the order of Executing Court which was disposed of with the consent of both the parties---Present constitutional petition had been filed with same prayer which was mala fide of the petitioner---Constitutional jurisdiction could only be exercised in aid of justice and not for the purpose of promoting/ advancing injustice---One could not approbate and reprobate under the law---Constitutional petition was dismissed in limine.

Afaq Yousuf for Petitioner.

2018 M L D 976

[Sindh]

Before Abdul Rasool Memon, J

Mrs. ASMA MAKHDOOM---Petitioner

Versus

Mrs. YASMEEN AZAM through Attorney and 2 others---Respondents

Constitutional Petition No.1864 and C.M.A. No.8186 of 2016, decided on 2nd June, 2017.

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

----S. 15--- Qanun-e-Shahadat (10 of 1984), Art. 115--- Eviction petition---Ground of wilful default of rent---Denial of relationship of landlord and tenant---Agreement of sale-cum-tenancy of the rented premises between the parties---Effect---Previous admission by the tenant---Effect---Tenant contended that landlady had an agreement to sell with tenant regarding rented premises which was not fulfilled and thus rent was adjusted in security amount and that a civil suit was pending between the parties so eviction orders by the two courts below were unjustified---Landlady contended that eviction order was rightly passed, as neither tenant had paid the balance sale consideration according to agreement nor had paid monthly rent since long---Validity---Admittedly respondent was the owner of demised premises and the petitioner was in possession of the same---Record showed that the parties had agreed to enter into sale-cum-tenancy agreement in the year 2011---Said agreement revealed that up to the date of full and final payment/settlement the vendee/petitioner had agreed to pay monthly rent and part payment of the sale consideration was also paid and remaining amount of sale consideration was to be paid within one year from the date of execution of agreement---Respondent contended that the petitioner did not pay the balance sale consideration and had also stopped the payment of mutually agreed rent since May 2014, therefore, respondent filed suit for declaration and rescission of contract and also filed eviction petition---Petitioner in her cross-examination had admitted that in a previous civil suit she herself had pleaded that she was bona fide and dutiful tenant in respect of demised premises---Petitioner could not show that she had filed suit for specific performance of contract in respect of demised premises---In view of admissions of the petitioner in acknowledging her as tenant of landlord/respondent, principle of estopple in terms of Article 115 of Qanun-e-Shahadat, 1984 would automatically come into play and thereby the petitioner was debarred from denying relationship as a tenant---Landlord had pleaded that the petitioner had paid her the rent up to April, 2014---Onus placed on landlord to prove the default, stood sufficiently discharged when landlord had deposed on oath that tenant had not paid rent for the given period, burden, therefore, shifted to the tenant to prove affirmatively that she had paid the rent for the period in question---Tenant in her written statement, filed in eviction petition, denied the default in payment of rent and stated the advance payment/security amount paid by the tenant was to be adjusted towards monthly rent amount---Tenant had examined herself and had only spoken about adjustment of advance security towards rent without any documentary proof and independent corroboration---Judgments passed by two Courts below on the point of relationship of landlord and tenant and default were based on admitted facts---No illegality having been noticed, High Court directed the tenant to vacate the demised premises within 60 days---Constitutional petition was dismissed.

Ms. Razia Danish for Petitioner.

Ghulam Mahmood Khan Jadoon for Respondent.

2018 M L D 991

[Sindh (Sukkur Bench)]

Before Omar Sial, J

SAJJAD ALI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-62 of 2014 and M.A. No.3366 of 2015, decided on 10th May, 2017.

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

----S. 302---Criminal Procedure Code (V of 1898), Ss. 161 & 164---Qanun-e-Shahdat (10 of 1984), Art. 38---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused-appellant committed murder of his step-mother on the allegation of being "kari"---Accused confessed his guilt before the Police Officer, and lodged the FIR being complainant of the case---Record showed that accused-appellant was convicted on the basis of his extra-judicial confession and statement of victim recorded under S.161, Cr.P.C. wherein, she stated that it was the accused-appellant who had shot her---Validity---Article 38 of the Qanun-e-Shahadat, 1984, provided that no confession made to a Police Officer shall be proved as against a person accused of any offence---Prosecution witnesses had deposed that accused-appellant made confession that he shot the victim because she was "kari"---Record showed that there was no allegation that deceased had illicit affair with any body---Allegation was without any evidence---Such fact corroded the evidentiary value of the testimony of the complainant and the police---Record showed that statement of victim was recorded under S.161, Cr.P.C. on 6.10.2012, victim was admittedly discharged on the same day and did not die till 2.11.2012---Statement of victim; which was recorded under S.161, Cr.P.C. could not be treated as dying declaration in circumstances---Victim had made application before the Judicial Magistrate to record her statement under S.164, Cr.P.C. on 22.10.2012, which was declined on the ground that the Investigating Officer had applied for the same---Accused-appellant had alleged that victim wanted to make a judicial statement that the police had wrongly recorded her statement under S.161, Cr.P.C.---Said version could not be determined because of death of victim, however, it created doubt in the prosecution case---No recovery was made by the Investigating Officer---None of the relatives of the deceased were cited as witness in the entire process---Father of the accused-appellant was produced as witness by the prosecution but he exonerated the accused-appellant throughout the process---Evidence of the father of the accused-appellant contrary to the prosecution claim in itself created doubt in the prosecution case---Circumstances established that prosecution had failed to prove its case beyond reasonable doubt---Accused-appellant was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

(b) Criminal trial---

----Police officials as witnesses---Scope---Police officials were as good witnesses as any other public witness unless mala fide was proved against them.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused-appellant committed murder of his step-mother on the allegation of being "kari"---Investigating Officer wrote in the inquest report that he had received spy information that victim had died on 2.11.2012 of the fire arm injury inflicted by the accused-appellant---Medical Officer deposed that initially she was not sure about the cause of death of the deceased---Viscera of the victim was sent to the chemical laboratory to determine as to whether she was poisoned but the Chemical Examiner's Report was in the negative---Medical Officer issued final report stating therein that deceased had died of a cardio-respiratory failure---Medical Officer had not opined that cardio-respiratory failure had occurred due to the injuries---Post-mortem report of the deceased showed that fire-arm injury wounds were healed when the examination of the dead body was conducted---Testimony of the Medical Officer showed that deceased had not died due to fire arm injuries---Circumstances established that prosecution failed to prove its case beyond reasonable doubt---Accused-appellant was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Ghulam Mustafa Sahito for Appellant.

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

2018 M L D 1007

[Sindh (Sukkur Bench)]

Before Omar Sial, J

ADAM KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-530 of 2016, decided on 29th May, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 338-A & 34---Qatl-i-amd, isqat-i-haml, common intention---Bail, grant of---Further inquiry---Prosecution case regarding four brothers jointly strangulating deceased required further inquiry as to its veracity---Prima facie, it appeared odd that girl was being jointly strangulated by four adult men and in spite of cries of the deceased only complainant party, had arrived and no other person from the adjoining houses was present to witness the incident or its aftermath---No specific role was assigned to any accused, though FIR revealed that all the four accused were seen strangulating the deceased---Post-mortem report of deceased showed that deceased died due to asphyxiation caused by a rope or a tube---FIR had remained silent on the use of a rope or tube by assailants for the purpose of suffocating deceased---Post-mortem report revealed that only one bruise was found on the neck of deceased; there was no hand marks on the neck or other signs of violence on the deceased---Contention of accused that suicide was the result of death, could not be ruled out---Complainant had narrated in FIR that he reached place of occurrence (house) at 11:00 P.M. after which incident had taken place while post-mortem report showed that death occurred at 10:00 P.M. on the same day---Prima facie it seemed odd that accused would spare eye-witnesses knowing fully well that they would implicate accused in same occurrence---Co-accused with same (alleged) role had already been granted pre-arrest bail by Trial Court---No reason appeared as to why accused would kill his wife who had been married to him for ten years and with whom accused had three children---Case of accused required further inquiry and fell within the ambit of S.497(2), Cr.P.C.---Bail was granted accordingly.

Nisar Ahmed Bhanbhro for Applicant.

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

2018 M L D 1025

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

SADAM HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-29 of 2017 in Special Case No.470 of 2016, decided on 25th May, 2017.

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

----S. 9(c)---Constitution of Pakistan, Art. 10-A---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Fair trial---Prosecution case was that police party upon receiving spy information reached at the place of occurrence and apprehended the accused and recovered 1300-grams charas from his possession---Out of the said contraband item 100-grams were separated for chemical analysis---Despite having spy information and the alleged place of incident being a busy area apparently no efforts had been made by the police to pick up an independent person of the locality to witness the arrest and recovery proceedings which casted doubt on said arrest and recovery---No effort was made to send a fake purchaser to the accused to see if he was actually selling the narcotic---In the present case, it was shown that counsel for the accused had no knowledge/experience of the law, which amounted to violation of the right of accused of fair trial and due process---Circumstances established that prosecution had failed to prove its case against the accused beyond reasonable doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Shafique Ahmed v. State PLD 2006 Kar. 377 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

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

----S. 340---Right of accused to be defended by counsel---Trial Court was legally obliged to ensure that the accused had counsel of his choice or one appointed at State expense, in the cases involving capital punishment, if he could not afford.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Safe custody of recovered substance---Prosecution case was that 1300-grams charas was recovered from the possession of accused---Out of the said contraband item 100-grams were separated for chemical analysis---Record showed that there was an unexplained delay of seven days from the recovery of charas to sending it to the Chemical Examiner---Nothing had come on record to show that the recovered charas was kept in safe custody during said period---No evidence was available to show that the charas was handed over to Incharge Malkhana as no copy of the Malkhana entry was produced---Incharge Malkhana was not examined to prove the safe custody of the charas throughout the said seven days---Witness who sent the sample for chemical examination had not been examined by the prosecution in respect of safe custody or safe transit of the charas---Said aspect showed that sample might have been tampered with/interfered with after its recovery and before it was sent to the Chemical Examiner, which would mean that the report of the Chemical Examiner could not be safely relied upon---Positive report of the Chemical Examiner would not assist the prosecution case in absence of proof of safe custody of the contraband.

Ikramullah and others v. The State 2015 SCMR 1002 rel.

Haji Khan Jamali for Appellant.

Syed Meeral Shah Bukhari, Additional Prosecutor General for the State.

2018 M L D 1054

[Sindh]

Before Nazar Akbar, J

Mst. MUQADDAS and 6 others---Plaintiffs

Versus

KARACHI ELECTRIC SUPPLY CORPORATION LTD. through Managing Director---Defendant

Suit No.1040 of 2007, decided on 19th January, 2018.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Electricity Act (IX of 1910), S.33---Fatal accident---Suit for compensation---Deceased 36 years of age, a Head Constable in Traffic Police, died on account of electrocution by coming into contact with energized pole erected by Electric Supply Company---Plaintiffs being legal heirs of the deceased filed suit for recovery of compensation against the Company---Issues in question were whether the suit was not maintainable; whether no cause of action had accrued to the plaintiffs to file the suit and whether the plaintiffs had alternate remedy under S.33 of the Electricity Act, 1910 to get redressal of their grievances---Burden of proof of said issues, was on the defendant Company---Defendant, having not advanced any arguments on the issues, same were answered against the Company---Burden of proof that deceased died due to electric shock owing to negligence and wrongful act of the defendant company and about deceased's earning was on the plaintiffs---Evidence on record had proved that deceased had died due to electrocution, and there was also a clear evidence that monthly salary of deceased was Rs.9945 as he was Head Constable in Police Department---Documents produced on record had confirmed that the cause of death of the deceased was due to electricity current in the electric Pole---Plaintiffs, in circumstances, were entitled for the relief they had claimed as compensation for the death of the deceased---Plaintiffs being immediate family of the deceased, directly affected by accidental death of the deceased had given well calculated figures to claim quantum of damages amounting to Rs.10,802,220---Defendant company, in cross-examination, had not even disputed the calculation given in the plaint as well as in the affidavit-in-evidence on oath and conceded that the figures of quantum of damage given in the affidavit, were proper calculation---Quantum of compensation had been determined keeping in view life span of the deceased, future benefit with the charge in salary etc.---Plaintiffs, were widow of the deceased, his mother, one son and four daughters---Preamble of the Fatal Accidents Act, 1855 had explained that purpose of the said Act, was to provide compensation to the families for loss occasioned by the death of a person caused by actionable wrong---Suit was decreed with cost and the defendant was directed to deposit, decretal amount with Nazir of the court within 30 days.

None present for Plainitffs.

Ghulam Muhammad Dars for Defendant.

2018 M L D 1085

[Sindh]

Before Adnan-ul-Karim Memon, J

MUHAMMAD MOINUDDIN---Petitioner

Versus

RASHID KHAN and 3 others---Respondents

Constitution Petition No. S-510 and C.M.As. Nos. 2585, 6976 and 6328 of 2016, decided on 14th July, 2017.

Constitution of Pakistan---

----Art. 204---Contempt of Court---Petitioner sought initiating of contempt proceedings against police official for not complying with the directions issued by High Court---Plea raised by petitioner was that contemnor had destroyed valuable articles worth millions of Rupees and committed cognizable offence---Validity---Petitioner was charged with running Ghutka factory, criminal case was registered against him and his factory workers and Chemical Report supported the stance taken by alleged contemnor---Case of petitioner could not be reopened and discussed and at the most factum whether there was any violation of order passed by High Court could be looked into---Petitioner had remedy under the law to approach competent forum against alleged act of alleged contemnor, if he desired so---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Syed Muhammad Akbar for Petitioner.

Zahoor Shah, D.P.G. along with SIP Nazeer Ahmed Arain, Incharge, legal Branch, District Central, Karachi.

2018 M L D 1099

[Sindh]

Before Muhammad Faisal Kamal Alam, J

MUHAMMAD IBRAHIM through Attorney---Plaintiff

Versus

PROVINCE OF SINDH through Chief Secretary, Government of Sindh, Sindh Secretariat, Karachi and 6 others---Respondents

Civil Suit No.2702 and C.M.A. No.18000 of 2016, decided on 17th April, 2017.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & S. 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Cancellation of allotment of land---Collateral proceedings after decision by a competent Court---Res judicata, principle of---Applicability---Plaint, rejection of---Scope---Court had power to reject plaint suo motu if it came to the conclusion that same was hit by any of the provisions of O. VII, R. 11, C.P.C.---Present claim had already been adjudged by the court of competent jurisdiction---Principle of collateral proceedings was a settled rule under which a final decision by a competent court of jurisdiction could not be upset or interfered with---If a party had not preferred a remedy before higher forum then the decision rendered in the case would attain finality---Judgment earlier passed with regard to the dispute had attained finality---Issue having already been decided, could not be reopened through fresh lis, such suit was hit by principle of constructive res judicata and barred by law---Plaint was rejected in circumstances. [pp. 1101, 1102] A, B, C & D

Ghulam Farid alias Farida v. The State PLD 2006 SC 53 and Nek Muhammad and another v. The State PLD 2007 Kar. 62 rel.

Mushtaque Ali Lakhair for Plaintiff.

Bashir Ahmed Qadwai, Attorny of Defendant No.5 is present.

Syed Aal-e-Maqbool Rizvi, A.A.G.

Ms. Naheed Akhter, State Counsel.

2018 M L D 1116

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Mohammed Karim Khan Agha, JJ

IMRAN MALIK---Appellant

Versus

The STATE---Respondent

Cr. Jail Appeal No.D-201 of 2010, decided on 4th May, 2017.

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

----S. 507---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Criminal Procedure Code (V of 1898), S. 103---Criminal intimidation by an anonymous communication, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the police received telephonic calls from unknown person, issuing threat that he would commit suicide bomb attack within city and that before the blast, he would make aerial firing to create terror and would firstly kill prominent doctors by way of target killing and also to kill the general public---Police conveyed the messages on wireless control and put the city police on high alert---Prosecution produced telephone operators, who received telephone calls and put the police on high alert----Complainant, Investigating Officers and witnesses of recovery and arrest of accused were also produced to prove the charge against the accused---Evidence of the telephone operators and complainant was found to be convincing and corroborated not only through their oral evidence but also through their actions and steps as was supported by the various roznamcha entries, which came on record during trial---None of these witnesses were damaged on cross-examination---Statements of said witnesses under S. 161, Cr.P.C. were recorded promptly and no major contradictions were found in their statements---Said factors showed that the calls were that made and received and the contents were that of a threat to the public but did not connect the accused with the commission of offence---Record showed that there was no eye-witness to see the accused while making such calls---No recording of call of accused was available on the basis of which exact words could be captured---None of the witnesses who actually heard the caller over the phone were ever confronted with the voice of the accused to see if the same had likeness---Memo of arrest and recovery did not show that mobile phone and SIM were damaged but when exhibited, the same was found damaged---Representative of the phone company stated that calls had been made through the recovered SIM but he was unable to say whom the SIM belonged to---Investigating Officer proved that phone and SIM were in working order by making a call to the Police Officer/witness but no such call was shown on the computerized record relating to the recovered SIM---Said Police Officer/witness did not confirm that such call was made to him---Neither the phone nor SIM were sealed as admitted by the Investigating Officer but he was contradicted by the evidence of recovery witness, which showed that phone and SIM were sealed on the spot---Record showed that Investigating Officer received secret information that accused was the caller and he was available at railway pattack at the time of his arrest---Investigating Officer after the receipt of secret information had plenty of time to arrange for independent witnesses but he failed to do so---Investigating Officer deposed that accused was arrested in the day time from a busy area and 5 or 6 persons were gathered at the time of arrest of accused but none of them was made as independent witness---Evidence of Investigating Officer showed that he asked the said persons to become witness but all refused---Witness in contradiction of Investigating Officer stated that no person gathered at the time of arrest despite same being a busy road---Witness stated that secret information was received whilst they were out on patrol but Investigating Officer stated that he received secret information whilst they were at the police station---Delay of over three hours in arresting the accused from a place which was only two kilometers away from the police station remained unexplained and did not appeal to reason that the accused had allegedly been giving very serious threats about causing terrorist relating activities---No entry to leave the police station was made by the Investigating Officer, which alone could be fatal for the prosecution case---Record transpired that there was no evidence that a description of appearance of accused was ever given---Newspaper articles produced by the accused at trial were unchallenged and indicated that such threatening calls were still being made to the police after the arrest of the accused, which was the indication that the police might have got the wrong person---Circumstances established that prosecution had not been able to prove that the accused was the person who made the threats to police by telephone---Accused was acquitted in circumstances by setting aside the conviction and sentence recorded by the Trial Court.

Muhammad Asif v. The State 2017 SCMR 486; Mour and 4 others v. The State 2016 PCr.LJ 1706; Long through Central Prison Hyderabad v. State 1999 PCr.LJ 595 and Shaukat Ali v. The State 2004 YLR 356 rel.

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

----S. 507---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Criminal Procedure Code (V of 1898), S. 154---Criminal intimidation by an anonymous communication, act of terrorism---Delay in lodging FIR---Effect---Delay of one day in lodging the FIR was fatal in a case where serious terrorist threat was involved.

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

----S. 507---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Criminal intimidation by an anonymous communication, act of terrorism---Contradictions in the statements of witnesses---Effect---Number of contradictions between the evidence of Investigating Officer and recovery witness regarding the arrest and recovery of the accused existed---Said contradictions would be fatal to the prosecution case---Accused could not be convicted on the basis of said major contradictions and without strong, credible and reliable corroborative evidence.

Zakir Khan and others v. The State 1995 SCMR 1793 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Prosecution had the obligation to prove its case beyond a reasonable doubt---If there was any doubt in the prosecution case, benefit of same would go in favour of accused as of right and not as of concession.

Tariq Pervez v. The State 1995 SCMR 1345 and Hashim Qasim v. State Criminal Appeals Nos.115 and 116 of 2013 rel.

Mian Taj Muhammad Keerio for Appellant.

Shahzado Saleem Nahyoon, Assistant Prosecutor General for the State.

2018 M L D 1142

[Sindh]

Before Adnan-ul-Karim Memon, J

ISRAR AHMED---Applicant

Versus

The STATE---Respondent

Cr. Bail Application No.806 of 2017, decided on 31st July, 2017.

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

----S. 497---Bail application---Adjudication---Scope---While deciding bail application court would consider allegations made in FIR, statements recorded under section 161 Cr. P. C., nature and gravity of charge, other incriminating material against accused, legal pleas raised by accused and relevant law.

[Case law referred].

(b) 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 accused (husband of deceased) had murdered her daughter by strangulation---Accused was arrested soon after the alleged incident---Investigating Officer recovered from place of occurrence, one rope, one string, one hook of iron hanger and piece of cloth with which mouth of deceased was muzzled---Recovery was duly witnessed by private witnesses who had no ostensible reason to falsely implicate accused---Postmortem report supported prosecution case that death of deceased occurred due to cardio respiratory failure due to asphyxia caused by constriction of neck by ligature as in strangulation---Trial was in progress and prosecution had examined three witnesses; trial, as per prosecution, was at the verge of conclusion and could be concluded within a period of two or three months---Case of accused was hit by prohibition contained in S. 497(1), Cr.P.C.---Accused had failed to make out a case for grant of bail---Bail was refused accordingly.

[Case law referred].

Shah Imroz Khan for Applicant.

Ms. Seema Zaidi, D.P.G. along with I.O./Sub-Inspector.

Muhammad Nawaz Chatta, Police Station Docks.

Mst. Razia, wife of Aslam (Complainant) present in person.

2018 M L D 1151

[Sindh]

Before Abdul Rasool Memon, J

MUHAMMAD QAYYUM KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.155 of 2012, decided on 28th April, 2017.

Penal Code (XLV of 1860)---

----Ss.161, 467 & 468---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal misconduct committed by public servant, public servant taking gratification other than legal remuneration in respect of an official act, forgery of valuable security etc., forgery for the purpose of cheating---Appreciation of evidence---Benefit of doubt---¬Accused was charged of receiving bribe from complainant to do a favour and get passed his wife in examinations of 9th and 10th class---Allegedly, accused was caught red handed by raiding party with tainted money and a false mark sheet (for which bribe was obtained by him)---Record showed that bypassing the Magistrate, Assistant Director Anti Corruption Establishment was deputed for supervising the alleged trap---Nothing was in the evidence of prosecution, showing that any attempt was made for obtaining the services of Magistrate to supervise the trap---No reason was furnished as to why Assistant Director was deputed to supervise the alleged trap instead of the Magistrate---Alleged trap was made in the day time and prosecution could have arranged the services of Magistrate to supervise the same but no efforts were made in that connection, which made the deputation of Assistant Director with ulterior motives and mala fide intention---Neither complainant nor private mashir had been examined in the case as the entire prosecution case was based on the evidence of the official employees of Anti Corruption Establishment---Evidence of complainant and mashir showed that the tainted money was never passed on to the accused by complainant within the seen of raiding party nor Assistant Director heard the conversation between complainant and accused before money was handed over to accused---Tainted currency notes were shown to have been recovered from the possession of accused by the raiding Assistant Director but it was not clear as to what had transpired between the parties before the alleged transaction---Record showed that major contradictions in the evidence of prosecution witnesses were found---Investigating Officer had deposed that as per record of Education Board, marks sheet of complainant's wife allegedly recovered from the possession of accused was forged one---Signatory of the alleged marks sheet or even any officer of the Board had not been examined in the case to verify its genuineness---Circumstances established that prosecution had failed to prove the charges against the accused beyond shadow of doubt---Accused was acquitted in circumstances.

Bashir Ahmed v. The State 2001 SCMR 634 rel.

Irfan Bashir Bhutta for Appellant.

Gul Mohammad Farooq, ADPG Sindh for Respondent.

2018 M L D 1164

[Sindh]

Before Omar Sial, J

AIJAZ HUSSAIN---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.275 of 2015, decided on 27th March, 2017.

(a) Evidence---

----Scope---Principle---Quality and not the quantity of evidence was important in either proving or disproving a case.

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

----S.376---Rape---Appreciation of evidence---Sole statement of victim---Evidentiary value---Marks of violence not necessary to prove rape---Prosecution case was that the accused had raped the complainant---Victim remained consistent on all material facts in her statements given to her parents on the day of incident, in the FIR, in the one statement recorded under S. 164, Cr.P.C. before a Magistrate and then in her testimony given during the trial---Victim, in her cross-examination, had been honest and upright and had made no attempt to improve her case; she was examined three days after the incident and the Medical Officer concluded that the hymen was torn and bleeds to touch and that the victim had been subjected to sexual intercourse in the past four days---Medical report showed that the victim was not used to sexual intercourse---Vaginal swab was taken which detected human sperm and blood---Accused had alleged that there was no independent witnesses to the incident---Rape was a crime that was often committed in private, where there was no witnesses to corroborate the claim made by a victim---If the necessity of eye-witnesses was mandatory, no perpetrator would ever be convicted---In the present case, though DNA test was not conducted to establish nexus with the sperm found, but the solitary statement of victim, which was confidence inspiring was sufficient to award conviction---Circumstances established that accused committed rape with the complainant---Appeal against conviction was dismissed in circumstances.

Mst Nasreen v. Fayyaz Khan PLD 1991 SC 412 and Ibrar Hussain v. The State 2007 SCMR 605 rel.

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

----S. 376---Rape---Appreciation of evidence---Delay of two days in lodging FIR---Effect---Incident took place on 5.11.2010 and FIR was lodged on 7.11.2010---Delay in lodging FIR had been explained well by the victim---Victim and her family in such like cases, due to embarrassment and family honour were reluctant in lodging FIR, thus delay was not detrimental to the prosecution case---Delay in lodging of FIR, in circumstances, was inconsequential.

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

----S. 376---Rape---Appreciation of evidence---No sign of violence---Allegation against the accused was that he committed rape with the complainant---Defence had alleged that no signs of violence were noticed on the victim and as such a case of rape was not made out---Validity---Mere absence of injuries on the body of a victim of rape was not enough proof of the crime not having been committed---Rape could be committed without injuries by putting a victim under fear.

Makha v. The State 1975 SCMR 394 rel.

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

----S. 376---Rape---Appreciation of evidence---Defence plea---Scope---Accused had taken a plea in his statement recorded under S. 342, Cr.P.C. that the victim owed him Rs. 10,000/----On asking for the money back, victim had falsely implicated him in the case---Effect---Defence taken by the accused did not appeal to logic---High Court observed that victim would not expose herself to ridicule and shame in the society for the sake of Rs. 10,000/-, when it had been established through medical evidence that she was not used to sexual intercourse---Defence, plea was rejected.

Muhammad Zareen Satti for Appellant.

Fareeda Motan for the Complainant.

Ms. Robina Qadir for the State.

2018 M L D 1173

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar, J

NAEEM AKHTAR and another---Applicants

Versus

Learned CIVIL JUDGE AND JUDICIAL MAGISTRATE and 5 others---Respondents

Cr. Misc. Appl. No.S-659 of 2014, decided on 7th November, 2016.

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

----S. 173---Power of the Magistrate to agree or disagree with police report submitted under S. 173, Cr.P.C.---Scope---Opinion of police was of no binding effect upon the courts, Magistrate could competently agree or disagree with opinion of police while exercising administrative jurisdiction on a report submitted before him within the meaning of S. 173, Cr.P.C.

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

----Ss. 190(2) & 193---Cognizance---Scope---Magistrate would become functus officio when he would send the case to Court of Session within the meaning of S. 190(2), Cr.P.C.---Court of session then would decide either to take cognizance or otherwise.

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

----Ss. 173, 242 & 265-D---Framing of charge upon police report---Effect---Value of order passed on a police report would stand superseded, if after examining all the material, court found the case to be tried further.

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

----Ss. 242 & 265-D---Framing of charge---Scope---Framing of charge would mean commencement of trial.

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

----Ss. 242, 173 & 265-D---Framing of charge, a judicial order---Framing of charge was a judicial order while order passed by the Magistrate on a police report was administrative in nature---Judicial order would prevail over an administrative order.

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

----Ss. 173, 190 & 561-A---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Taking of cognizance and forwarding the case to Court of Session by the Magistrate---Inherent powers of High Court---Magistrate took cognizance as per sections mentioned in the police report as well as under S. 302, P.P.C. and sent the case to Court of Session---Charge against the accused persons had already been framed---Sticking to legality or otherwise of order passed by the Magistrate became infructuous, any comment on merits or demerits of order of the Magistrate might prejudice the case of either side---Accused could claim innocence by resorting to course provided by S.265-K, Cr.P.C.---Petition under S.561-A, Cr.P.C. was dismissed in circumstances.

Parvez Tarique Tagar for Applicant.

Mian Taj Muhammad Keerio for Respondent No.2.

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

2018 M L D 1187

[Sindh]

Before Irfan Saadat Khan and Arshad Hussain Khan, JJ

MUHAMMAD ALI---Petitioner

Versus

HOME SECRETARY SINDH and 3 others---Respondents

C.P. No.D-4276 of 2017, decided on 20th June, 2017.

Constitution of Pakistan---

----Arts. 199 & 18---Constitutional petition---Ban on sale and purchase of toy guns---Restriction on lawful trade---Scope---Contention of petitioner was that there was a freedom of trade and no ban could be imposed on sale and purchase of toy guns---Validity---Ban was imposed on sale and purchase of toy guns as same was causing grievous injuries and negative impact on the minds of children---Toy guns had been used by the robbers for committing street crimes---Impugned action taken by the authorities was with noble cause---Claim of petitioner to declare the impugned notification as null and void appeared to be unwarranted---Impugned ban was for a period of sixty days only---Article 18 of the Constitution allowed a citizen to carry on a lawful trade or business but same was subject to certain qualifications---Said right was not an absolute right but was subject to regulations---No justification existed to declare the said notification as null and void in view of rational behind it---Inconvenience of individuals could not partake the interest of community---Interest of community had to be given preference over the right of an individual---Constitutional petition was dismissed in limine.

K.B. Threads (Pvt.) Limited through Chief Executive and others v. Zila Nazim, Lahore (Amir Mehmood) and others PLD 2004 Lah. 376 distinguished.

Pakistan Muslim League (N) through Khawaja Muhammad Asif M.N.A. and others v. Federation of Pakistan through Ministry of Interior and others PLD 2007 SC 642 rel.

2018 M L D 1196

[Sindh]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD UMAIR alias BHUTTO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.56 of 2015, decided on 24th August, 2017.

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

----Ss. 324, 353 & 34---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention---Appreciation of evidence---Benefit of doubt---Allegation against accused persons was that they made direct firing at the police party with intention to kill them---Delay in lodging the FIR had not been explained by the complainant---Prosecution produced three witnesses in order to prove the charge against the accused persons---Record showed that there were material contradictions amongst the said three witnesses---Recovered crime weapon was sent to Forensic Science Laboratory after the delay of eight days---No plausible reason and explanation was furnished for such delay---No empty bullet was secured from the place of occurrence---Cross-examination of prosecution witnesses revealed that prosecution had failed to establish any case of firing upon the police party with intention to kill---Discrepancies, illegality and contradictions in the statement of witnesses were found which created reasonable doubt in the prosecution case, benefit of which would resolve in favour of accused persons---Accused persons were acquitted in circumstances by setting aside convictions and sentences awarded by the Trial Court.

PLD 2005 Kar. 18 and Qaddan v. The State 2017 SCMR 148 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt would be sufficient for the acquittal of the accused.

Sajjad Ali for Appellant.

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

2018 M L D 1205

[Sindh]

Before Aftab Ahmed Gorar, J

Hafiz MUHAMMAD ISMAIL---Applicant

Versus

TARIQ AKBAR ABBASI and another---Respondents

Crl. Misc. Appln Nos. 135 of 2017, decided on 5th October, 2017.

Agricultural Produce Markets Act (V of 1939)---

----Ss. 6(1), 19 & 26---Agriculture Produce Markets Rules, 1940, Rr. 29 & 30---Criminal Procedure Code (V of 1898), S. 561 A---Sale and purchase of agricultural produce---Market fee, payment of---Quashment of proceedings Prosecution case was that accused/petitioner was conducting sale and purchase of agriculture produce---Accused/petitioner was bound to keep his license up-to-date, keep record of his sale/purchase in a prescribed form, submit his daily transaction of sale/purchase in prescribed form to Market Committee and pay market fee, but he failed to do so thus, was charged---Contention of petitioner was that Agricultural Produce Markets Act, 1939 had been repealed and impugned notifications were not enforceable---Validity---Agricultural Produce Markets Act, 1939 had been repealed by Sindh Wholesale Agricultural Produce Markets (Development and Regulation) Act, 2010 but statutory functions had not been transferred to Market Committees by the Markets notified under Agricultural Produce Markets Act, 1939---Government and Committees were still operating and exercising all the powers under the said Act---Record transpired that petitioner had failed to make payment with regard to the license/renewal of license and payment of market fee---Petitioner was hiding himself from paying to Government exchequer of valid duty levied for obtaining/renewal of license fee as well---Circumstances established that there was no force in the assertions raised by the petitioner in his application under S.561-A, Cr.P.C. for quashing of proceedings while was dismissed.

PLD 2015 Sindh 382; PLJ 2015 Cr.C. 748; 2003 YLR 533; 2006 PCr.LJ 476; PLD 2016 Sindh 201 and SBLR 2015 SC 267 ref.

PLD 2016 SC 55 and Bashir Ahmed v. Zafarul Islam PLD 2004 SC 298 rel.

Ch. Abdul Rasheed for Applicant.

Abdul Shakoor Memon for Respondent No.1.

Ms. Seema Zaidi, Deputy Prosecutor General for the State.

2018 M L D 1220

[Sindh]

Before Naimatullah Phulpoto and Zulfiqar Ahmad Khan, JJ

SIKANDER alias SANI---Appellant

Versus

The STATE---Respondent

Spl. Cr. Anti-Terrorism Jail Appeal No.128 of 2016, decided on 22nd January, 2018.

(a) Criminal trial---

----Evidence---Statement of police official---Evidentiary value---Evidence of police official could not be discarded simply because he belonged to police force.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, possession of arms and ammunition, attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances---Appreciation of evidence---Benefit of doubt---Prosecution case was that the police received a tip-off about the presence of certain members of criminal gang at a chowk with intention to commit crime---Police, on said information, reached and saw the accused along with 4/5 other individuals, who upon seeing the police party, started firing upon them with intention to commit murder---Police party, returned fire in self-defence wherein fifty five rounds were used by the police party---Accused being armed with weapons was apprehended, while other persons made their escape good---One repeater .12-bore with number, loaded with one cartridge in its chamber and two in magazine and one rifle grenade were recovered from the accused---Record showed that the present case was the case of spy information and the alleged encounter took place at 4.00 a.m. where it was stated that 5/6 persons were present at the place of incident---Police party being heavily armed, how a large number of these persons could have made their escape good and only the accused had been arrested---Evidence did not show as to how the accused was identified in the middle of the night since no source of light had been pointed out---Allegedly, in the encounter, more than fifty five rounds were shot but surprisingly none received injuries and the Investigating Officer was unable to even show any signs on nearby buildings or other permanent structures evidenced outcome of such massive exchange of fire---Allegedly, 4/5 bullets hit police mobile, however, neither evidence was brought before the trial court nor the same was presented through expert report---Deposition of Police Officer/witness showed that no sketch of the place of incident was drawn during inspection nor the complainant pointed out any single bullet mark at the place of incident---Said witness admitted in his examination-in-chief that no previous criminal record was found against the accused---Complainant had stated to have handed over the grenade to the Bomb Disposal Unit expert at the place of incident, whereas the Bomb Disposal Unit expert had deposed that he for the first time had seen the grenade in the police station---Record transpired that weapon of offence, repeater, was sent to the expert after twenty two days of the incident---Said delay had neither been justified nor any cogent reason in support thereof had been given, which had given serious jolts in the prosecution case as to the safe custody of the same during that longish period---First Information Report, memo of recovery and seizure and roznamcha entry did not mention any serial number of the rifle grenade, however, the same was mentioned in Bomb Disposal Unit report, thus no sanctity could be attached to such type of recovery---Circumstances established that prosecution had failed to establish its case against the accused beyond reasonable doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused person was acquitted in circumstances by setting aside conviction and sentence recorded against the accused by the Trial Court.

(c) Criminal trial---

----Benefit of doubt---Scope---Benefit of all favourable circumstances in the prosecution evidence would go to the accused.

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

(d) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance had created reasonable doubt in a prudent mind about the guilt of accused, he would be entitled 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.

Shamim Iqbal Soomro for Appellant.

Muhammad Iqbal Awan D.P.G. for the State.

2018 M L D 1237

[Sindh]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

MUHAMMAD AAMIR alias PAPPA---Appellant

Versus

The STATE and another---Respondents

Cr. Appeal No.517 of 2017, decided on 23rd February, 2018.

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

----S. 9(c)---Explosives Act (IV of 1884), Ss.4 & 5---Sindh Arms Act (V of 2013), S.23(1)(a)---Possessing and trafficking narcotics---Recovery of explosive material and arms---Appreciation of evidence---Benefit of doubt---Case of prosecution was that Police had recovered one bomb, one .32 bore revolver containing four bullets and 2200 grams charas from possession of accused---First Information Report registered in that respect was cancelled under "C" class and said summary had been approved by the concerned Magistrate on the ground that Bomb Disposal Officer had furnished report that no bomb/explosive substance was found---Accused who was challaned under S.23(1)(a) of Sindh Arms Act, 2013 and Trial Court after trial had acquitted him from the charge of recovery of revolver along with four live bullets on the basis of material contradictions in the evidence of prosecution witnesses---Benefit of doubt was extended to accused and he was acquitted of the charge of recovery of revolver as well as of bullets---Prosecution had failed to bring home guilt of accused without reasonable shadow of doubt---Police also recovered charas and its sample was sent to Chemical Examiner after about two days of its recovery---Prosecution had failed to establish safe custody of charas at Police Station---Prosecution neither produced any record showing that property was deposited in Malkhana nor had examined Moharrir or the person who deposited the case property in the office of Chemical Examiner---Prosecution having failed to prove its case against accused, conviction and sentence recorded by the Trial Court, were set aside extending him the benefit of doubt and he was acquitted of the charge.

Ikramullah and others v. The State 2015 SCMR 1002 rel.

(b) Criminal trial---

----Benefit of doubt---Not necessary that there should be many circumstances creating doubts, if there was a single substance; which created reasonable doubt in the mind about the guilt of accused, then accused would be entitled to its benefit, not as a matter of grace or concession but as of right.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Liaquat Ali Hamid for Appellant.

Muhammad Iqbal Awan, Addl. P.G. for Respondent.

2018 M L D 1257

[Sindh]

Before Naimatullah Phulpoto and Abdul Maalik Gaddi, JJ

The STATE/ANTI-NARCOTICS FORCE through Deputy Director (Law) (Authorized Officer), Karachi---Appellant

Versus

MUHAMMAD BUX---Respondent

Special Criminal Acquittal Appeal No.375 of 2006, decided on 20th December, 2017.

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

----S. 9(c)---Civil Procedure Code (V of 1908), S.103---Possession of narcotics---Appreciation of evidence---Appeal against acquittal---Prosecution case was that ten bundles of charas each weighing one kilogram were recovered from the bag of accused---Record showed that it was a case of spy information---Evidence of complainant revealed that at the time of arrest of the accused so many people were there, despite that, complainant did not bother to associate any independent person from the place of incident to witness the arrest and recovery proceedings---Provisions of S.103, Cr.P.C. were not attracted in case of personal search of the accused in narcotics cases; however, where alleged recovery was made in a hotel and people were available there, omission to secure independent mashirs, particularly, in the case of spy information, could not be brushed aside lightly by the Court---Number of contradictions existed between the statements of witnesses, which were material and fatal to the prosecution case---Judgment of the Trial Court was based upon sound reasons, which was neither perverse nor arbitrary---High Court would interfere only if the judgment was arbitrary, capricious or against the record---Judgment of Trial Court did not suffer from any mis-reading and non-reading of the evidence---Appeal was dismissed in circumstances.

State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo 1993 SCMR 585 rel.

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

----S. 103---Search to be made in presence of witness---Object and scope---Prime object of S.103, Cr.P.C. was to ensure transparency and fairness on the part of police during the course of recovery and to curb false implication and minimize scope of foisting fake recovery upon accused.

Shafiq Ahmed, Special Prosecutor, ANF for Appellant.

Nemo for Respondent.

2018 M L D 1268

[Sindh]

Before Arshad Hussain Khan, J

Dr. M. RAZA ZAIDI---Plaintiff

Versus

GLAXO WELLCOME PAKISTAN LIMITED, KARACHI---Defendant

Suit No.237 of 1999, decided on 25th January, 2018.

(a) Suit for damages---

----Termination from employment----Compensation for damages on account of mental agony/torture, injury to a person's reputation---Burden of proof---Scope---Burden to lead evidence and proof would lie on person claiming damages on account of mental agony or torture, or injury to reputation---- Determination of general damages for mental torture / agony; defamation and financial loss were to be assessed following "rule of thumb" and such exercise fell in the discretionary jurisdiction of the court which had to decide the same according to facts and circumstances of each case.

Government of Khyber Pakhtunkhwa and others v. Syed Jaffar Shah 2016 MLD 223 and Mubashir Ahmad v. Syed Muhammad Shah through Legal Heirs 2011 SCMR 1009 rel.

(b) Administration of justice---

----Party approaching court for seeking some relief had to stand on its own legs for such purpose and no benefit of any weakness in the case of the party opposite could be extended to such a party.

M.D. Anwarullah Mazumdar v. Tamina Bibi and others 1971 SCMR 94; Haji Muhammad Sarwar Khan v. Hussain Nawab 1992 CLC 1915 and Mst. Zainab and another v. Majeed Ali and another 1993 SCMR 356 rel.

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

----Art. 2(4)---Adducing of evidence---Proof---Existence of a fact as proved----Scope---Assumption was not to be made that any fact was to be provided conclusively in a physical form to be considered as proved and as per Art. 2(4) of the Qanun-e-Shahadat; proof was something falling within scope of positive far short than being conclusive---Degree of clarity of a fact was to bear proximity with probability of likelihood of its existence---All that was necessary in civil cases, was to insist upon that proof adduced in support of a fact was such that it should make a prudent man act upon the supposition that it existed and whether an alleged fact was a fact in issue or a relevant fact, the court could draw no inference from its existence till it believed it to exist and belief of a court in existence of a given fact ought to proceed upon grounds altogether independent of the relation of the fact to the object and nature of proceedings in which its existence was to determined.

Said Wali v. Yaqoot Khan and another PLD 1983 SC 440; Muhammad Monir in his treatise on the Evidence Act, 1872 and Sher Muhammad and another v. Abdul Hakim and another PLD 1994 Pesh. 10 rel.

Zahid F. Ebrahim for Plaintiff.

Danish Nayyar and Aitzaz Manzoor for Defendant.

2018 M L D 1293

[Sindh]

Before Zafar Ahmed Rajput, J

STANDARD CHARTERED BANK (PAKISTAN) LIMITED, KARACHI---Decree Holder

Versus

JOHAR ASSOCIATES (PVT.) LIMITED, KARACHI and 4 others--- Judgment Debtors

Execution Application No.47 of 2015 in Suit B-92 of 2012, decided on 23rd April, 2018.

Civil Procedure Code (V of 1908)---

----O. XXXIV, R. 3----Suit relating to mortgages of immovable property----Execution of decree----Sale of mortgaged property---Compromise decree / settlement between judgment debtor and decree-holder----Execution of decree after default in settlement by a party ---- Scope---Judgment-debtors, if after passing of consent decree, fail to discharge their liabilities as per the settlement, then decree-holder was legally justified to recover the decretal amount through execution in terms of the settlement agreement---Decree, if granted rights to both parties, then such rights had to be enforced in execution proceedings and not by a separate suit.

Abdul Wahid v. Abdul Ghani and other PLD 1963 (W.P) Karachi 990 and Messrs Pakistan Industrial Leasing Corporation Limited through A.V.P. and Manager v. Noorani Industries (Pvt.) Limited through Chief Executive and 5 others 2003 CLD 259 rel.

Peer Dil and others v. Dad Muhammad 2009 SCMR 1268; Shah Rasool and others v. Maulana Ghulam Rahim and others 2015 YLR 89; Samba Bank Ltd. through Authorized Officers v. Messrs Syed Bhais and others 2013 CLD 2080 and Messrs Montgomery Flour and General Mills, Sahiwal through Chief Executive v. MCB Bank Limited and others 2015 CLD 1590 ref.

Waqar Ahmed for Decree Holder.

Abdul Qayoom Abbasi for Judgment Debtors.

2018 M L D 1299

[Sindh]

Before Muhammad Junaid Ghaffar, J

Mst. ANILA JALEES and others---Plaintiffs

Versus

Driver SHAKURULLAH and another---Defendants

Suit No.1528 of 2009, decided on 1st November, 2017.

Fatal Accidents Act (I of 1855)---

----S.1---Fatal accident---Suit for recovery of compensation---Fatal accident---Failure to produce evidence---Husband of plaintiff died due to rash and negligent driving of the driver of vehicle and suit was filed against the driver and owner of the vehicle---Defendants failed to appear in witness box to plead and justify their stance and to rebut claim and contention of plaintiff, except cross-examining plaintiff's witnesses---Averments in plaint as well as evidence led on behalf of plaintiff had gone un-rebutted---Plaintiff, in circumstances, was entitled for compensation as per calculations proved on record---Suit was decreed in circumstances.

Islamic Republic of Pakistan v. Abdul Wahid and others 2001 SCMR 1836 rel.

Dhani Buksh and Ms. Huma Farooq for Plaintiffs.

Nemo for Defendants.

2018 M L D 1311

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Mohammed Karim Khan Agha, JJ

UMED ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-136 of 2010, decided on 18th May, 2017.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that five packets containing five kilograms of charas were recovered from the possession of the accused---Out of the said contraband item 10-grams from each packet were separated for sending the same to the Chemical Examiner for analysis and report---Record showed that present case was a case of spy information and the police had plenty of time to call independent mashirs from thickly populated area which they completely failed to do---Said factor would have given credibility to their case---Time of the arrival and the FIR were the same which was not believable as there ought to be at-least a 10-15 minutes gap in arriving and registering the FIR---Recovery and arrest witness stated that accused told that he purchased the narcotic from a person, but statement of said person was not recorded by the police---Record transpired that in one packet, there were one big piece and three small pieces yet no part of the small pieces were sent for chemical analysis, which made the recovery doubtful---Circumstances established that prosecution had failed to prove its case against the accused beyond a reasonable doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Non-safe custody of recovered substance---Effect---Prosecution case was that five packets containing five kilograms charas were recovered from the possession of accused---Out of the said contraband item 10-grams from each packet were separated for chemical analysis---Record showed that there was no evidence that the recovered narcotics was kept in safe custody between the time of its recovery and sending it to the Chemical Examiner---No Malkhana entry was produced and the keeper of the Malkhana was not examined nor any person concerned to the safe custody and safe transit of the contraband was produced---Chemical report, in circumstances, could not be relied upon.

Ikramullah and others v. The State 2015 SCMR 1002 rel.

Muhammad Jameel Ahmed for Appellant.

Syed Meeral Shah Bukhari, Additional Prosecutor General for the State.

2018 M L D 1322

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar, J

ABDUL SATTAR---Applicant

Versus

THE STATE---Respondent

Cr.B.A. No. S-58 of 2018, decided on 8th February, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25---Possessing and trafficking narcotics---Bail, refusal of---Accused was arrested at the spot and huge quantity of charas (3000 grams) was recovered from his possession, which being costly, could not be foisted---Report of Chemical Examiner revealed that recovered property was charas---Accused, had failed to show enmity with the Police or any reason for his false implication in the case---Witnesses in their statements under S.161, Cr.P.C., had fully supported the version of FIR---Offence for which accused had been charged fell within restrictive clause of S.497(1), Cr.P.C.---Application of S.103, Cr.P.C. in such cases had been excluded by S.25 of the Control of Narcotic Substances Act, 1997---No case for exercise of discretion in favour of accused having been made out, bail application being devoid of merits, was dismissed.

Noshad v. The State 2012 PCr.LJ 1901 distinguished.

Bakhshan Khan Mahar for Applicant.

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

2018 M L D 1329

[Sindh (Hyderabad Bench)]

Before Aqeel Ahmed Abbasi and Yousuf Ali Sayeed, JJ

Mst. MARVI BHATTI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-26 of 2017, decided on 13th July, 2017.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Benefit of doubt---Prosecution case was that 3250-grams charas was recovered from possession of accused contained in a black shopping bag---Evidence of the complainant showed that police party departed from police station on patrol at 6.00 a.m.---Prosecution produced Roznamcha Entry, but the same did not bear any date---Complainant stated that following their departure from the police station, the police party went to Cinema Chowk, where they stayed half an hour---Police party then went to National Highway road, where they stayed half an hour---Police party, thereafter, came from bypass and stopped their mobile for half an hour, received spy information that one lady having charas in a black shopper was standing at the bus stop, and on that basis they proceeded towards the bus stand---Despite the stops/intervals, the police party was shown to have been in place and apprehended the accused at 7.20 a.m., having also called for the lady constable after receiving the tip-off and awaited her arrival prior to heading for the bus stand---Complainant did not say that the identity of the lady had been revealed to him by the informer---Complainant deposed that the memo of arrest and seizure and the mashirnama of place of incident were prepared by him; however, it was evident that the handwriting of both the said documents was different, which was not explained plausibly---Witness conceded in his cross-examination that the handwriting of both the documents was different---Memo. of arrest and seizure was silent as to the manner in which the charas allegedly recovered from the accused was sealed---Nothing was available on record to show as to how case property was kept/handled prior to sending sent to the Chemical Examiner---Prosecution had not been able to establish that after the alleged recovery, the substance so recovered was kept in safe custody and safely transmitted to the office of the Chemical Examiner without being tampered or replaced while in transit---Report of Chemical Examiner showed that one of the pieces of charas received for analysis was said to have been wrapped in a plastic "panni", which was not mentioned in the memo of arrest and seizure---Complainant admitted that one small piece of chars was wrapped in "panni", whereas the witness contrarily stated that the charas was not wrapped in other plastic "panni", which cast doubt on the matter---Circumstances established that many discrepancies were available on record, which created doubt about the veracity of the prosecution case---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 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating doubt in a prudent mind as to the guilt of accused, entitled him to the benefit thereof, not as a matter of grace or a concession, but as a matter of right.

Ikramullah and others v. The State 2015 SCMR 1002 rel.

Riaz Ali Panhwar for Appellant.

Syed Meeral Shah Bukhari, APG for the State.

2018 M L D 1336

[Sindh]

Before Muhammad Shafi Siddiqui, J

MUHAMMAD SALEH and 2 others---Applicants

Versus

MUHAMMAD QASSIM and 3 others---Respondents

Revision Application No.2 of 2017, heard on 8th December, 2017.

Specific Relief Act (I of 1877)---

----S.9---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for possession of immovable property---Application for rejection of plaint---Scope---Plaint was rejected on the grounds that plaintiffs had no legal right, character and title over the suit land and they were not in possession on the suit property---Validity---Relief in a suit filed under S.9 of Specific Relief Act, 1877 was not dependent upon the title of suit property---Said suit was to be decided only on the ground as to whether plaintiffs were dispossessed from the immovable property without their consent and without due process of law---Plaintiffs in such suit could recover possession notwithstanding any other title that might be set up in that suit---Dispute of possession was a bundle of facts which could not summarily be decided while considering an application under O. VII, R. 11, C.P.C.---Impugned orders passed by the Courts below were set aside---Matter was remanded to the Trial Court to frame issues including maintainability of suit and decide the controversy at the earliest within four months---Revision was disposed of in circumstances.

Haji Maqbool-ur-Rehman's case 1991 SCMR 301 distinguished.

Mirza Sarfraz Ahmed for Applicant.

Abdul Hafeez Memon for Respondent.

2018 M L D 1341

[Sindh (Larkana Bench)]

Before Irshad Ali Shah, J

GHULAM AKBAR KHAN through Attorney and 4 others---Applicants

Versus

CHIEF EXECUTIVE OFFICER, THERMAL POWER STATION GUDDU and 12 others---Respondents

Civil Revision No.S-02 of 2018, C.M.As. Nos.4, 5 of 2018 and 6 of 2017, decided on 2nd March, 2018.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Land acquisition---Suit for declaration---Plaint, rejection of---Scope---Defendant moved application for rejection of plaint on the ground that suit property had been acquired by the department---Application for rejection of plaint was accepted concurrently---Validity---Suit land was acquired by the defendant-department through Land Acquisition Officer/Assistant Commissioner---Entry in record of rights could not be cancelled at the instance of plaintiffs being subsequent purchaser---Land acquisition proceedings were neither challenged by the plaintiffs nor by the previous owners to be illegal---Present suit was barred by law in circumstances---Plaint was rightly rejected by the courts below---Revision was dismissed in limine in circumstances.

Habib Bank Limited v. Aizad Hassan and another 2007 MLD 1687; Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356; Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner Khairpur and another PLD 1970 SC 180; Mst. Miraj Bibi v. Additional District Judge and others 1991 CLC 1405; Khadim Hussain v. Jamal Hussain and others 1997 MLD 2952; Moinuddin Paracha and others v. Sirajuddin Paracha and others 1993 CLC 1606; Pir Shah Mardan Shah and others v. Chief Land Commissioner Sindh and others PLD 1974 Kar. 375; Dr. Salahuddin Ahmed v. Ministry of Works and another 1983 CLC 457; Nazir Ali v. Noorabad Co-operative Housing Society Ltd. and others PLD 1987 Karachi 676 and Jewan and others v. Federation of Pakistan through Secretary Revenue Islamabad and others 1994 SCMR 826 distinguished.

Ghulam Dastagir Shahani for Applicants.

2018 M L D 1349

[Sindh]

Before Aftab Ahmed Gorar, J

MEHDI HASSAN---Appellant

Versus

MUHAMMAD SAJID and 2 others---Respondents

Criminal Acquittal Appeal No.388 and M.A. No.9203 of 2017, decided on 11th October, 2017.

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

----Ss. 489-F, 420 & 34---Dishonestly issuing cheque, cheating and dishonestly inducing delivery of property, common intention---Appreciation of evidence---Appeal against acquittal---Accused persons/respondents purchased iron and cement on loan and gave a cheque amounting to Rs. 15,00,000/- to the complainant, which on its presentation was dishonoured---Complainant contended that respondents were directly involved in the commission of offence, they were acquitted by the Trial Court on technicalities and presumption without going through the evidence and material available on record---Validity---Order of acquittal could only be interfered with, if found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non-appreciation of evidence or was artificial and led to gross miscarriage of justice---Mere technicalities in a criminal trial without resulting injustice was not enough for interference---Admittedly, the FIR of the case had been lodged after six months of the incident---Impugned judgment showed that after examining the entire evidence, the benefit of doubt had been extended to the accused persons as the complainant had failed to prove his case---Judgment of acquittal was found to be based on sound and cogent reasons in circumstances which did not warrant any interference, thus, appeal against acquittal was dismissed in limine.

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

----S. 417---Appeal against acquittal---Presumption---Double presumption of innocence was attached to the order of acquittal---Substantial weight was to be given to the findings of the lower court, whereby accused were exonerated from the commission of crime.

Muhammad Ijaz Ahmad v. Fahim Afzal 1998 SCMR 1281 and Jehangir v. Aminullah and others 2010 SCMR 491 rel.

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

----S. 417---Appeal against acquittal---Principle---If there is doubt about guilt of accused, its benefit must go to him---Court will never come to the rescue of prosecution to fill-up the lacuna appearing in its evidence.

Shah Khan for Appellant.

2018 M L D 1361

[Sindh (Larkana Bench)]

Before Fahim Ahmed Siddiqui, J

IMDAD ALI---Petitioner

Versus

Mst. SAKINA and 2 others---Respondents

Constitutional Petition No.S-638 of 2016, decided on 2nd June, 2017.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Application for guardianship by mother of minor daughter was concurrently granted---Visitation rights of father---Scope---Father had alleged that mother could not provide proper education to the minor---Welfare of minor---Scope---Petitioner/father contended that two courts below had not considered welfare of the minor as proper education was not likely to be provided to minor girl in the family of separated mother/respondent---Respondent/mother contended that she had been taking care of two elder daughters properly, concern for non-provision of education to third daughter had no basis---Validity---Record showed that respondent mother had alleged that petitioner had turned her out of the marital abode, with the two minor children while baby girl/ward remained with the petitioner---Petitioner/father though was willing to keep the baby girl, but did not show his eagerness to keep the other two daughters with him---High Court observed that it would be better for the sisters to live together instead of separating them from each other; in this way, they would be enjoying the company of their siblings and would grow up with a sense of sisterhood and a better understanding and harmony with each other---Education of a minor depended upon the maintenance provided by the father---If the petitioner/father was willing to provide a better education for his children, he might do so by bearing the cost of education of his choice---Petitioner/father could not establish that elder daughters were not getting proper education---If respondent/ mother was a good and proper person for keeping the custody of two daughters of the petitioner, she could also be a good and proper person for keeping the third daughter of the petitioner---Upbringing of girl child required that she would remain under the supervision of a matron and a mother was a natural matron for her children---Record showed that after the dissolution of marriage, respondent had not married again and could devote all her time for looking after and upbringing of her three daughters---Maintenance (kifalat) under Islamic Law was the responsibility of father while brooding (hizanat) was the responsibility of mother, and a male child needed the care of his mother up to a certain age but a female child needed the requirement of "brooding" up to her puberty and even up to her marriage---Father had right to enjoy the company of his daughter and to be well acquainted and familiarized with her; Trial Court was directed by the High Court to arrange meetings of the petitioner/father with baby girl twice a month---Place for meeting was to be decided considering the safety and security of minor and facility of the parties---Constitutional petition was disposed of accordingly.

Irfan Baddar Abbasi for Petitioner.

Riaz Hussain Khoso for Respondent No.1.

Mrs. Shamim Akhtar Khokhar, State Counsel

2018 M L D 1369

[Sindh]

Before Adnan Iqbal Chaudhry, J

ZAHID HUSSAIN AWAN---Plaintiff

Versus

UNITED BANK LIMITED through President, Karachi and another---Defendants

Civil Suit No.1572 of 2010, decided on 16th February, 2018.

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

---O. XXII, Rr. 1, 3 & 6---Malicious prosecution---Suit for damages---Death of plaintiff during pendency of suit---Effect---Maxim "actio personalis moritur cum persona"---Scope---Plaintiff died during pendency of suit and an application to make legal heirs of the deceased as plaintiffs was moved---Validity---Civil actions for torts to the person of a plaintiff did not survive his death and would die with him---Maxim "actio personalis moritur cum persona" (a personal right of action dies with the person) was applicable in the present case---Present suit had abated on the death of plaintiff---Right to continue the present suit did not survive to the legal heirs of plaintiff---Suit was disposed of accordingly.

Mir Shakeel-ur-Rehman v. Yahya Bakhtiar PLD 2010 SC 612; A. Majid Sama v. Asbestos Cement Industries 1996 MLD 803; Government of Punjab v. Mst. Kamina 1990 CLC 404; Nasri Begum v. Virgil L. Moore 1989 CLC 511; Mercantile Cooperative Bank v. Habib & Co. PLD 1967 Kar. 755 and Sardar Muhammad Ali v. Pakistan PLD 1961 Kar 88 rel.

(b) Maxim---

----"Actio personalis moritur cum persona"---Meaning---Personal right of action dies with the person.

None for the Plaintiff.

Shahan Kareemi for Defendant No.1.

Muhammad Muzaffar for Defendant No.2.

2018 M L D 1377

[Sindh ]

Before Ahmed Ali M. Shaikh and Omar Sial, JJ

MUHAMMAD SHAFIQ and 2 others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 136, 137, 138, 142, 143, 144, 146, 147 and 148 of 2016, decided on 23rd February, 2017.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, causing explosion likely to endanger life or property, attempt to cause explosion of, for making or keeping explosion with intent to endanger life or property, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Prosecution case was that police party while on patrol duty, had seen three persons walking on foot and signaled them to stop---Persons so signaled instead of stopping opened fire on the police party---Police retaliated and arrested said three persons/accused and three grenades and pistols were recovered from their possession---Allegedly, accused persons fired six rounds directly at the police party from a relatively short distance---Police party discharged one hundred and one rounds directly at the accused persons---Record showed that none of the members of police party, the accused, the police mobile or any other property or vehicle was injured or hit in the encounter---Prosecution had given exact number of bullets fired but only ten empties were recovered which discharged from the weapons of the police party---Facts and circumstances established reasonable doubt about the encounter, benefit of which would resolve in favour of accused persons---Accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, causing explosion likely to endanger life or property, attempt to cause explosion of, for making or keeping explosion with intent to endanger life or property, possessing unlicensed arms---Appreciation of evidence---Recovery of weapons of offence from accused persons---Allegation on the accused persons was that they made firing on the police party---Pistols and grenades were recovered from the possession of accused persons---Reports of Bomb Disposal Unit showed that three recovered grenades were without detonators---Police party returned to the police station at 0140 hours but Bomb Disposal Unit was not summoned till 1224 hours---Prosecution had not been able to explain the delay or where and how the hand grenades were kept during said period---Delay had given rise to the inference that the occurrence, if any, did not take place in the manner projected by the prosecution and the time was consumed in making effort to give coherent attire to the prosecution case---Disparity between the weapons allegedly recovered and the weapons produced in evidence existed---Report of Forensic Science Laboratory showed that three .30-bore test empties were sealed and sent back to the Investigating Officer---None of the witnesses had produced said parcel in evidence---Make, model, color or any identification mark of the seized pistols or the grenades was not mentioned in the memo. of arrest and recovery of the grenades---Circumstances established reasonable doubt about the veracity of prosecution case, benefit of which would resolve in favour of accused persons---Accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Salahuddin Khan Gandapur for Appellants.

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

2018 M L D 1389

[Sindh]

Before Adnan-ul-Karim Memon, J

FARHAN HASSAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.667 of 2017, decided on 1st August, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 392, 109 & 34---Qanun-e-Shahadat (10 of 1984), Art.38---Robbery, abetment, common intention---Bail, grant of---Name of accused was not mentioned in FIR---Accused was charged for snatching mobile phone to contact the co-accused---Prosecution had not collected incriminating material which could attract S.109, P.P.C. against the accused---Mere obtaining of call data recording of snatched mobile phone did not lead, at bail stage, to conclude that accused hatched conspiracy in connivance with co-accused or he abetted the offence of robbery with co-accused---Prosecution had not alleged that accused had robbed the complainant but he was booked under S.109, P.P.C. for abetment---Accused was implicated on the basis of statement of co-accused which was not admissible in evidence under Art.38 of Qanun-e-Shahadat, 1984---Accused was no more required for purpose of investigation and it would not be proper to depend on ipse dixit of police regarding guilt or innocence of accused which would be determined on the basis of evidence---Accused had pointed out mala fide on the part of police---Prima facie, sufficient incriminating material was not available to connect accused with commission of alleged offence---Bail was granted accordingly.

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

----S. 498---Pre-arrest bail---Scope---Grant of pre-arrest bail was extra ordinary relief which would be extended in exceptional circumstances when glaring mala fide was shown on the part of prosecution to cause unjustified harassment and humiliation of person in case of his arrest.

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

----S. 497---Penal Code (XLV of 1860), S. 109---Abetment---Bail---Scope---Concession of bail could be extended in favour of accused where evidence with regard to allegation of abetment or instigation lacked.

Wazir Hussain Khoso for Applicant.

Ms. Seema Zaidi, D.P.G. along with S.I. Fahmeed Shah of Police Station Shah Faisal Colony for the State.

Complainant in person.

2018 M L D 1396

[Sindh]

Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ

SHAKEEL alias HAKLA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.19 of 2015, decided on 28th September, 2017.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that police received spy information that two persons were sitting in suspicious manner at the place of incident---Police proceeded to the place of incident where the accused while seeing the police party started firing upon them, who also fired in self-defence---Police had apprehended the accused, while co-accused ran away---During search of the accused, one 12-bore repeater with five live rounds and a shopper were recovered from his possession, which contained 225 rods of charas/hashish weighing 2980 grams wrapped in blue plastic---Prosecution witness admitted that charas was lying in the street near accused and thereafter admitted that charas was recovered from the house of co-accused---Record showed that it was a case of spy information, and place of arrest was thickly populated area---Presence of the private persons had also come on record but complainant made no effort to associate any independent mashir to give more credibility to the evidence of the police official---Material contradictions in the evidence of the prosecution witnesses were noticed with regard to the availability of the private persons at the time of arrest and recovery---Record transpired that there was no evidence that charas was kept in safe custody from the time when it was recovered until it was sent for chemical examination---Evidence of witnesses showed that charas was handed over to police official but said official had not been examined at trial---No evidence was available to show that recovered charas was deposited to Malkhana---No evidence was available to show safe custody of charas in Malkhana and its safe transit to the Chemical Examiner---Overwriting in the date of entry and in the mashirnama of arrest and recovery with regard to the weight of the charas was noticed---If the chemical report was proved positive, even then the same was of no assistance to the prosecution in circumstances---Circumstances established that prosecution had failed to prove its case beyond shadow of doubt, benefit of which would resolve in favour of accused---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 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---Single circumstance, which created reasonable doubt in a prudent mind about the guilt of the accused, would entitle accused of the benefit of the same, not as a matter of grace and concession but as a matter of right.

Tariq Parvez v. The State 1995 SCMR 1345 rel.

Abdul Razzak for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General Sindh for Respondent.

2018 M L D 1408

[Sindh]

Before Muhammad Shafi Siddiqui, J

ZAKA-UD-DIN---Appellant

Versus

Messrs S. ASHRAFI ABBASI ASSOCIATES through Sole Proprietor and others---Respondents

Second Appeal No.49 of 2011, decided on 18th December, 2017.

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

----O. VII, R. 2---Limitation Act (IX of 1908), Art. 57 & S. 14---Companies Ordinance (XLVII of 1984), S. 316 (1)---Suit for recovery of loan amount---Limitation---Exclusion of time spent before wrong forum---Scope---Point of limitation could be raised at any stage of proceedings even it was not set up as a defence earlier---Computation of limitation would be triggered from the date of loan made---Loan amounts had their own independent computation in terms of their dates---Even if last date of 10-05-1990 was taken to be date of loan then period would expire on 09-05-1993---Plaintiff might be entitled for exclusion of period spent in seeking remedy before wrong forum---Plaintiff claimed to have filed an application in the liquidation proceedings wherein the property was auctioned for which loan amount was required---Said application was filed on 22-10-1992 and was dismissed on 10-02-1993---Only 112 days could be excluded out of computation---Plaintiff was supposed to file the suit on 09-05-1993 whereas suit was filed on 02-02-1994 which was barred by time---Plaintiff could not justify as to how he had suffered loss of Rs. 2 million when only an amount of Rs. 4,60,000/- was paid and an amount of Rs. 4 lac was allegedly spent by him for preparation of structural designs and drawings---Findings recorded by the Courts below were not in conformity with the law---Impugned judgments passed by the courts below were set aside---Second appeal was allowed in circumstances.

Hakim Muhammad Buta v. Habib Ahmad PLD 1985 SC 153; Nazakat Ali v. WAPDA 2004 SCMR 145; Farzand Raza Naqvi v. Muhammad Din 2004 SCMR 400; Muhammad Aslam v. Mst. Ferozi PLD 2001 SC 213 and Pakistan Industrial and Commercial Leasing Ltd. v. Haq Knitwear (Pvt.) Limited PLD 2009 Lahore 52 ref.

National Bank of Pakistan v. Nisar Ahmed 1991 CLC 1958; Habib Bank Limited v. Khalid Akbar 1989 MLD 4098 and United Bank Ltd. v. Jamila Khatoon 1981 CLC 299 rel.

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

----Art. 57---Suit for recovery of loan amount---Limitation---Limitation for filing of suit for recovery of loan amount was three years.

(c) Limitation---

---Point of limitation could be raised at any stage of proceedings even it was not set up as a defence earlier.

Abdul Qadir Khan for Appellant.

Shahensha Husain along with Arshad Ali for Respondents.

2018 M L D 1418

[Sindh]

Before Naimatullah Phulpoto and Abdul Maalik Gaddi, JJ

ZAHEER AHMED---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 68 and 69 of 2015, decided on 12th December, 2017.

(a) Criminal trial---

----Heinousness of offence---Scope---Mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial.

(b) Criminal trial---

----Burden of proof---Scope---Burden is always upon the prosecution to prove its case beyond shadow of doubt.

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

----Ss.324, 384, 385 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, extortion, putting person in fear of injury in order to commit extortion, common intention, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Allegation against the accused was that he while introducing himself as a member of Gangwar, demanded Bhatta of Rs. 5,00,000 from complainant by show of pistol and during altercation, complainant received injury on his hand---Complainant in his examination-in-chief had deposed that he recovered the pistol from accused which was handed over to the police---Nothing was on record to show that pistol was recovered from the accused---Allegedly, during altercation in between complainant and accused, complainant received injuries at his right hand on his thumb and right eye, but neither medical certificate of these injuries was produced nor Medical Officer was examined by the prosecution in evidence; therefore, false implication of the accused in the case could not be ruled out---Record showed that there was only oral version of the complainant that accused demanded Bhatta---No independent corroboration was available on that point---Record transpired that complainant used to supply water in the house of accused and dispute arose between them on the charges of water thus, under the said circumstances, prosecution had failed to establish that act of the accused created sense of fear and terror in the area---Material contradictions existed in the statements of witnesses about the time and preparation of place of mashirnama---Co-accused persons had been acquitted by the Trial Court under S. 265-K, Cr.P.C. on the same set of evidence and the said order had not been challenged before any appellate forum---FIR was registered after the delay of eight hours of the incident---Prosecution had not furnished explanation for causing such delay, as such false implication of the accused in the case with due deliberation and consultation could not be ruled out---Circumstances established that prosecution had failed to prove its case beyond shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded against him by the Trial Court.

Mir Ikhlaq Ahmed and another v. The State 2008 SCMR 951; Ali Hassan v. The State 2009 MLD 1198 and Bashir Ahmed v. The State 2011 MLD 867 ref.

Shahzad Afzal for Appellant.

Zahoor Shah, Deputy Prosecutor General along with Muhammad Ismail Meo, P.S. Saeedabad for Respondents.

2018 M L D 1438

[Sindh (Hyderabad Bench)]

Before Agha Fiasal, J

MUHAMMAD WARIAL---Applicant

Versus

GOVERNMENT OF SINDH through DC and 5 others---Respondents

Civil Transfer Application No.15 of 2016, decided on 27th February, 2018.

Civil Procedure Code (V of 1908)---

----S. 24---Transfer of case---Principle---Bias in a Judge---Scope---Petitioner sought transfer of appeal from one court to another on different allegations including bias in mind of Judge--- Validity--- Mere allegation of bias on part of Judge or restrict the assertion to generalized statements was not sufficient---Issue of bias in a judge was a very serious matter and in very least cogent and specific particulars thereof must be pleaded by an applicant and same could be bolstered with plausible collaboration--- High Court declined to interfere in the matter as unmerited transfer of a case from one court to another would tantamount to expression of no confidence in the Judge--- Application was dismissed in circumstances.

Government of NWFP through Chief Secretary and another v. Dr. Hussain Ahmed Haroon and others 2003 SCMR 104; Asif Ali Zardari and another v. The State PLD 2001 SC 568; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 1 and Messrs Bank of Bahawalpur Ltd. v. Muhammad Yousaf 1994 MLD 1153 ref.

None present for the Applicant.

Wali Muhammad Jamari, Assistant, A.G. for Respondent.

2018 M L D 1462

[Sindh (Larkana Bench)]

Before Fahim Ahmed Siddiqui, J

MOHAMMAD ISMAIL and 9 others---Applicants

Versus

ABDUL JABBAR and another---Respondents

Criminal Miscellaneous Application No. S-383 of 2017, decided on 15th January, 2018.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Criminal Procedure Code (V of 1898), S. 561-A---Illegal dispossession---Dispute between co-sharers---Applicants purchased share of one or some of other co-sharers who put them in possession of the property---Complaint under Illegal Dispossession Act, 2005 filed by respondent against applicants was allowed by Trial Court---Validity---Applicants were in possession of property as co-sharers and they could not be dispossessed from property under the provisions of S.3 of Illegal Dispossession Act, 2005---Respondent tried to give colour of criminal action to a bona fide civil dispute and sought possession in share of land for which adequate and effective remedy was available to him---Applicants being co-owners or co-sharers could not be dragged in proceedings under Illegal Dispossession Act, 2005---High Court set aside order passed by Trial Court---Application was allowed in circumstances.

Muhammad Aslam v. Imamuddin Ahmed and 7 others 2013 MLD 1444 and Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 rel.

Habibullah G. Ghouri for Applicants.

Ali Raza Pathan for Respondent No.1.

Sardar Ali Rizvi, D.P.G. for the State.

2018 M L D 1471

[Sindh]

Before Ahmad Ali M. Shaikh, C.J. and Mohammed Karim Khan Agha, J

MUHAMMAD ASLAM PAREKH---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman and another---Respondents

C.Ps. Nos. D-6754 and D-6819 of 2015, decided on 22nd August, 2017.

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

----S. 498---Pre-arrest bail---Scope---Pre-arrest bail being an extraordinary relief was only available in cases where there was mala fide on the part of the complainant or the police.

Rana Mohammed Arshad v. Muhammed Rafique PLD 2009 SC 427 and Mukhtar Ahmad v. The State and others 2016 SCMR 2064 rel.

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(ix) & 9(b)---Constitution of Pakistan, Art.199---Corruption and corrupt practices---Ad-interim bail, recalling of---Scope---Allegation against the accused petitioner was that he being government officer connived with the co-accused to illegally transfer the plot owned by Municipal Corporation through making fake entries in the record of Board of Revenue showing false and fictitious purchasers through false and fictitious unregistered sale deeds, which led to a huge loss to the Municipal Corporation and gave benefit to the other accused---Record showed that accused petitioners had not been able to make out any case of mala fide against the National Accountability Bureau which was shown by the fact that they initiated the inquiry on a complaint in connection with the said land scam received from Transparency International and not on its own motion---Parallel inquiry was also carried out by the Anti-Corruption Establishment and had challaned all the accused---No mala fide on the part of the National Accountability Bureau having been found, ad-interim pre-arrest bail granted to the accused petitioners was ordered to be recalled on that ground alone.

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

----S. 497---Bail---Principle---Observations made in bail granting order being based on a tentative assessment of the material placed on record would have no bearing on the trial of the accused, which would be decided by the Trial Court on merit.

Muhammad Ashraf Kazi for Petitioner along with Petitioner (in C.P. No.D-6754 of 2015).

Haider Waheed for Petitioner along with Petitioner (in C.P. No.6819 of 2015).

Muhammad Altaf, Special Prosecutor, NAB along with Jawad Hasan, I.O. for Respondents.

2018 M L D 1484

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

Mst. KULSOOM and 3 others---Appellants

Versus

SESSIONS JUDGE, MIRPURKHAS and 5 others---Respondents

Criminal Appeal No.D-32 of 2017, decided on 19th April, 2018.

Criminal Procedure Code (V of 1898)---

----Ss.417(2-A) & 345---Penal Code (XLV of 1860), Ss. 302, 147, 148, 149 & 34---Qatl-i-amd, rioting, common intention---Appeal against acquittal---Compromise between the parties---Parties had entered into compromise during trial and moved applications under S.345(2)(6), Cr.P.C., which was accepted by the Trial Court---Trial Court acquitted the accused persons in view of compromise arrived at between the parties and proceeded with the matter of compromise after confirming/verifying the legal heirs of the deceased---No impediment existed for the Trial Court to refuse the compromise---Compromise between the parties was without any pressure or inducement and the legal heirs of the deceased did not claim any Qisas and Diyat against any of the accused persons---Trial Court, while passing the order of acquittal on accepting the compromise had committed no illegality---High Court declined interference in the judgment/order of acquittal until and unless there were cogent and confidence inspiring reasons---Appeal against acquittal, was dismissed.

Ghous Bux v. Salemm and 3 others 2017 PCr.LJ 836 rel.

Abid Ali Thebo for Appellants.

Jan Muhammad present in person.

Syed Meeral Shah Bukhari, Additional Prosecutor General, Sindh for the State.

2018 M L D 1495

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

SHEHZAD---Appellant

Versus

The STATE---Respondent

Criminal No. S-81 of 2015, decided on 27th October, 2017.

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

----S. 397---Robbery---Appreciation of evidence---First Information Report was lodged after the delay of thirty four days---Effect---Record showed that incident took place on 1.3.2013 at 11.50 p.m., whereas FIR was lodged on 5.4.2013 at 2.50 p.m.---Complainant injured in the incident went to the hospital for his treatment under police letter---Complainant remained in the hospital for nine days, and came back home, but the FIR was lodged after thirty four days of the incident and twenty five days of his discharge from hospital---No plausible explanation was given for said inordinate delay in lodging FIR---Said delay in lodging FIR was fatal to the prosecution in circumstances.

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

----S. 397---Robbery---Appreciation of evidence---Benefit of doubt---Prosecution case was that complainant was present at his cabin, when accused and his co-accused duly armed with deadly weapons came there and robbed him of Rs. 45000/- cash and two mobile phones---Accused made fires from his T.T. pistol which hit the complainant at his arm and thereafter, accused ran away along with robbed property---Record showed that incident took place in the night, but neither crime weapon was recovered from the accused nor robbed money or mobile phones were recovered from him---Place of incident was inspected, after thirty four days of the incident and nothing favourable to the prosecution was found there---No independent person was cited as witness in the case although the place of incident was surrounded by the shops and 20/25 persons allegedly gathered there at the time of incident---No effort was shown to have been made by the prosecution to examine any independent person from the locality---Material contradictions were noticed in the evidence led by the prosecution---Medical evidence was not in line with the ocular account---Co-accused persons had already been acquitted by the trial court on the basis of same evidence---Circumstances established that prosecution had failed to prove its case against the accused beyond a reasonable doubt, benefit of which, would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

[Case-law referred].

Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Ilyas v. The State 1997 SCMR 25; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Ms. Nasira Shaikh for Appellant.

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

2018 M L D 1512

[Sindh]

Before Salahuddin Panhwar and Zulfiqar Ahmad Khan, JJ

MANZOOR AHMED alias MAVIA alias USAMA alias HABIBULLAH---Appellant

Versus

The STATE---Respondent

Spl. Criminal Anti-Terrorism Appeal No. 168 of 2017, decided on 21st November, 2017.

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

----S. 7(ff)---Sindh Arms Act (V of 2013), S. 23(1)(a)---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Act of terrorism, possessing unlicensed arms, attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances---Appreciation of evidence---Benefit of doubt---Prosecution case was that during interrogation in the case registered under S.23(1)(a) Sindh Arms Act, 2013, police recovered two hand grenades on the disclosure of the accused---Prosecution had produced four witnesses in order to prove its case against the accused---Record showed that there were contradictions between the statements of recovery witnesses, which created holes in the prosecution case---Eye-witness of the alleged recovery had not been examined for which omission, no plausible explanation had been put forward---Admittedly, at no given point of time, the accused had possession of the hand grenades---Accused was not found connected with any militant group or financer of or had provided any facility to the militants---Prosecution had failed to associate private mashirs---Police party knew that two hand grenades had been concealed in earth by the accused, there was a looming danger that during excavation an explosion could take place; in such a situation, why the Bomb Disposal Unit was not called at the time of recovery of the hand grenades remained in mystery---Hand grenades were not sent for forensic nor were any efforts made by police to dig as to what the accused was planning to do with these grenades---Circumstances established that the investigation carried out was neither satisfactory nor free from malice and the implication of accused in the present case was not free from doubts, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Naeemullah Niazi v. The State 2017 PCr.LJ Note 147, p.145 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creates reasonable doubt in a prudent mind, its benefit would be given to the accused not as matter of grace or concession but as a matter of right.

Hashmat Khalid for Appellant.

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

2018 M L D 1521

[Sindh]

Before Aftab Ahmed Gorar, J

ZULFIQAR ALI---Petitioner

Versus

The STATE---Respondent

Criminal Bail Application No.1737 of 2017, decided on 29th January, 2018.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, refusal of---Cheque of a huge amount was issued by accused knowingly that the account was dormant---Prima facie, there was element of dishonesty on the part of accused---Provisions of S.489-F, P.P.C., were squarely attracted in the case---Complainant, could not be bound down to seek his remedy by approaching the civil court through a recovery suit, when there was no legal embargo on him to press into service the penal provisions against the delinquent through the registration of FIR---No material was available on file, which could remotely suggest that the matter was out of the ambit of S.489-F, P.P.C. and was of a civil nature---Mere fact that the offence for which accused was charged did not attract the prohibitory clause of S.497, Cr.P.C., could not per se make him entitled to the concession of bail---Grant of bail in such like cases, was not a rule of universal application as each case merited decision on the basis of its own facts and circumstances---Taking a tentative assessment of available record, accused being prima facie linked with the commission of the offence, was disentitled to the concession of bail---Bail application was dismissed, in circumstances.

Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 and Shameel Ahmed v. The State 2009 SCMR 174 ref.

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

----S. 497---Bail, grant of---Principles---Court for decision of a bail application had to observe the tentative assessment---Deeper appreciation of evidence was not required---Going into the merits of the case would not be fair at bail stage.

Saleh Muhammad v. The State PLD 1986 SC 211 and The State v. The Zubair and 4 others PLD 1986 SC 163 rel.

Nazakat Ali Mirani for Applicant.

Ms. Seema Zaidi, Deputy Prosecutor-General, Sindh for the State.

Asif Ibrahim for the Complainant.

2018 M L D 1533

[Sindh]

Before Adnan-ul-Karim Memon, J

JAVED ---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No. 184 of 2016, decided on 22nd July, 2017.

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

----S. 540---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Application for summoning of prosecution witness---Complainant had lodged FIR for offence under S.302/34 Penal Code, 1860 against accused person including the applicant---Applicant who was indicted for qatl-i-amd, moved application under S. 540, Cr.P.C.---Trial Court examined three witnesses including the complainant---Said witnesses were thoroughly cross-examined by the defence---Meanwhile, applicant moved application under S.540, Cr.P.C., to re-call witness on the ground that some material questions were left out which were necessary to ascertain the truth---Trial court dismissed the application---Validity---Record reflected that prosecution examined complainant as well as two witnesses on 5.11.2015 and 9.11.2015 respectively---Deposition of the witnesses were on record, which, prima facie, showed that prosecution witnesses were thoroughly cross-examined by the defence---Record further showed that applicant had filed copy of an affidavit of one of the witnesses dated 7.10.2016---Witness, in the said affidavit had stated that during trial he deposed against the applicant on the instigation of the complainant whereas, examination-in-chief of said witness showed that it was recorded on 9.11.2015 that was, almost eleven months before filing of the affidavit---Prima facie, the application under S.540, Cr.P.C. was an afterthought of the applicant to discard evidence of the case brought on record---In case of granting permission to re-call witness or re-cross the examined witness, who had already been cross-examined thoroughly by the defence, it would amount filling up the lacuna---No sufficient ground was shown by the applicant for re-cross-examination of the witness, thus, application was dismissed.

Muhammad Murad Abro v. The State 2004 SCMR 966; Ansar Mehmood v. Abdul Khaliq and others 2011 SCMR 713 and Pervez Ahmed v. Muneer Ahmed 1998 SCMR 326 ref.

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

----S. 540---Power to summon material witness or examine person present---Scope---Court could exercise power to summon material witness or to examine person present in court and re-examine the witness at any stage of trial, if the evidence appeared to be essential to the just decision of the case.

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

----S. 540---Power to re-call witness---Principle---Power to re-call witness under S. 540, Cr.P.C. could not be exercised as a matter of routine but only when grave illegality or irregularity was shown to have taken place.

Ejaz Muhammad Bangash for Applicant.

Muhammad Ali for the Complainant in person.

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

2018 M L D 1541

[Sindh]

Before Mrs. Ashraf Jahan, J

AMJAD---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.194 of 2017, decided on 27th November, 2017.

Sindh Arms Act (V of 2013)---

----S. 23(1)(A)---Possessing unlicensed arms---Appreciation of evidence---Sentence, reduction in---Prosecution case was that one unlicensed T.T. pistol of .30-bore with magazine containing two live cartridges was recovered from the possession of the accused---Record showed that prosecution had examined three witnesses in support of its case---All the witnesses had supported the case of prosecution on all material points---Prosecution witness, who was the one from whom on gun point, accused along with his other associates had robbed one mobile phone as well as one Than of cloth, which was lying in his office---Defence taken by the accused was that in-fact he was employee of the factory and due to some dispute over the salary, he had been involved in a false case---Said witness was cross-examined by the accused himself but no suggestion was put to him in respect of such evidence, thus it was clear that the allegations leveled in examination-in-chief against the accused connected him with the commission of crime remained unchallenged in the cross-examination---Same was the position with regard to the evidence of other prosecution witnesses, whose evidence could not be shattered in cross-examination on all material points---Admittedly, incident took place in day light and the accused was arrested soon after the incident of robbery, when he was trying to flee away---No enmity or ill will was alleged against the prosecution witnesses as to why they would involve the accused in the case---Recovered crime weapon was sent for examination and report showed that it was in working condition at the time of examination and was loaded with two .30-bore live cartridges---Circumstances established that prosecution had been able to prove the case against the accused, however, no other criminal record of accused was available---High Court in view of the young age of the accused, his record and conduct in jail, reduced his sentence from seven years to four years---Appeal was disposed of with said modification accordingly.

Waqar-ul-Haq for Appellant.

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

2018 M L D 1552

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

NAWAZ HUSSAIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 62 of 2018, decided on 6th March, 2018.

Criminal Procedure Code (V of 1898 )---

----S. 497---Penal Code ( XLV of 1860 ), Ss. 324, 452 & 34---Attempt to commit qatl-i-amd, house trespass, common intention---Bail, refusal of---Specific role---Effect---Complainant (lady) had alleged that petitioner with other co-accused barged into her house where she was present along with her mother and pointed gun at her and she ran to other room in order to save her life while her mother received bullet injuries---Petitioner contended that there was contradiction in version of the complainant in FIR and that of her statement recorded under S.161, Cr.P.C.---Complainant had attributed specific role to the petitioner in the FIR as well as in her statement recorded under S.161, Cr.P.C. ---Admittedly, there was a civil dispute between the parties in respect of property and litigation was pending in the civil court---Record showed that one co-accused had absconded, therefore, Trial Court after completing proceeding against said co-accused , would record evidence of the prosecution witnesses ---Trial Court had not recorded statements of complainant and her injured mother, therefore High Court, at bail stage, could not ascertain whether petitioner was innocent or not---Petitioner could not be set at liberty as the apprehension of his pressurizing the complainant could not be ruled out---Petitioner was not entitled to the concession of bail---Bail was refused to the petitioner, in circumstances.

Muhammad Mohsin Khan and Faizan Peshimam for Applicant.

Shoukat Ali Dhambhro for the Complainant.

Dewan Bhuromal, D.D.P.P. for the State.

2018 M L D 1559

[Sindh]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

BILAL MEHMOOD---Applicant

Versus

The STATE---Respondent

Criminal Applications Nos.122 and 123 of 2018, heard on 8th March, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.353, 324, 186 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S.23(1)(a)---Assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-i-amd, obstructing public servant to discharge public function, act of terrorism---Possessing unlicensed arms---Bail, grant of---Case of prosecution was that encounter had taken place in-between Police and accused; both were armed with deadly and sophisticated weapons, but none from both the sides had received any injury---Accused were armed with pistols and had fired from their weapons to kill the Police personnel---Police, however, arrested them without resistence---Application of S.324, P.P.C., was yet to be determined at the trial---Police had recovered empties of .30 bore pistols from the place of incident, but did not send the same to Forensic Laboratory along with recovered pistols for matching---All the prosecution witnesses being Police Officials, question of tampering with the prosecution evidence did not arise---Case had been challaned and accused was no more required for further investigation---Court in matter of bail, could not go beyond the facts of the case and had to restrict itself to the material placed by the prosecution---Tentative assessment was to be made by the Court and no deeper appreciation was allowed---Accused was in custody since last four months---Prima facie, case for bail having been made out in favour of accused, concession of bail was extended to accused, in circumstances.

Rab Nawaz v. The State 1990 SCMR 1085 and Syed Amanullah Shah v. The State PLD 1996 SC 241 rel.

Muhammad Kashif for Applicant.

Muhammad Iqbal Awan, D.P.G. for Respondent.

2018 M L D 1563

[Sindh]

Before Adnan Iqbal Chaudhry, J

Dr. (Retd.) ZAHOOR AHMED and another---Plaintiffs

Versus

Ch. MUHAMMAD ABID through Legal Heirs and others---Respondents

Suit No.553 of 2009, decided on 9th March, 2018.

Civil Procedure Code (V of 1908)---

----O. XIII, R. 2, O. XVI, R. 1 & S. 148---Qanun-e-Shahadat (10 of 1984), Art. 131---List of witnesses---Filing of---Limitation---Condonation of delay---Plaintiff did not produce evidence and defendants were directed to record their evidence---Plaintiff after recording evidence of defendants moved application for filing of list of witnesses and documents---Contention of plaintiff was that due to bona fide mistake he could not file list of witnesses within time---Validity---Bona fide mistake was not good cause to allow the applicant to submit list of witnesses at belated stage---Application had been filed to prolong the proceedings---Witnesses proposed to be examined by the plaintiff were voluntary---Documents sought to be produced by the plaintiff had already been filed with the plaint and exhibited by the defendants---Court would ensure that parties did not lead irrelevant evidence---Application for permission to file list of witnesses was dismissed with costs---Plaintiff would be entitled to lead evidence by way of affidavit-in-evidence.

Usman Tufail Sheikh for Plaintiffs.

Mirza Nazim Baig for Defendants 1(x) to (xiii).

Sharaf Deen, State Counsel.

2018 M L D 1621

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

MALOOK and 5 others---Appellants

Versus

The STATE---Respondent

Cr. Appeal No.D-437 of 2010, decided on 16th April, 2018.

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

----Ss. 324, 332, 353, 337-H(2), 337-A(i), 337-F(i), 504, 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 6 &7---Attempt to commit qatl-i-amd, causing hurt, assault or criminal force to deter public servant from discharge of his duty, act so rashly or negligently as to endanger human life or the personal safety of others, causing shajjah-i-khafifah, causing damiyah, intentional insult with intent to provoke breach of the peace, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that Military Intelligence arrested an Indian Agent---Said Agent cried by calling helper and thereafter 9/12 persons armed with deadly weapons assaulted on the Military Intelligence team and made firing upon them---Complainant party resisted but as the accused persons were more in number, complainant party received injuries, therefore, the accused persons forcibly took away the Agent from their captivity---Prosecution, in order to establish the case, produced as many as nine witnesses---Record showed that police had charged eleven accused, whereas six were acquitted of the charge and remaining five were convicted---Incident took place at about 2.30 a.m., but the source of identification had not been disclosed by the prosecution witnesses---Despite odd hours and in absence of any source of identification, the complainant party had identified all the accused with parentage under very tense position, particularly when indiscriminate firing had taken place---Admittedly, there was delay of 21-hours in lodging of FIR, which suggested that FIR had been lodged after due consultation and deliberation---Both the parties were armed with sophisticated weapons and they made straight fires upon each other but none from either side had received any single injury, which was unbelievable---Such fact was also denied by circumstantial evidence---Trial Court had acquitted the accused from the charge of firing upon the complainant party---Mashirs of place of the incident, who, was Army personnel, admitted the fact that police did not secure any empty from the place of incident---Evidence of prosecution witnesses appeared to be unreliable, untrustworthy and unbelievable---Trial Court acquitted some of the accused by extending the benefit of doubt and convicted some of the accused from the charge on the same set of evidence without any legal justification---In the present case, fatal injury caused to complainant was attributed to one of the co-accused, who had died during the pendency of the case---Circumstances established that prosecution case was full of doubts, benefit of which would resolve in favour of accused persons---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

(b) Criminal trial---

----Benefit of doubt---Scope---Benefit of even single circumstance creating reasonable doubt in a prudent mind, would go to accused as a matter of right and not as a matter of grace or concession.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Abdul Razzaque Leghari for Appellants.

Shahzado Saleem Nahiyoon Deputy Prosecutor General for the State.

2018 M L D 1649

[Sindh]

Before Adnan-ul-Karim Memon, J

NAYAB ALI---Petitioner

Versus

Mst. HAMEEDA BANO and 6 others---Respondents

C.P. No.S-196 of 2012, decided on 10th July, 2017.

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

----S. 15---Eviction petition---Wilful default in payment of monthly rent---Pendency of civil suit for specific performance filed by the tenant---Effect---Personal bona fide need---Scope---Petitioner/tenant contended that he entered into sale agreement of rented premises with the predecessor of the landlord---Respondent/landlord contended that both the Courts below had rightly passed eviction order in wake of wilful default and personal bona fide need---Validity---Held, that sale agreement did not create any interest or confer any title on the person in whose favour such agreement was executed, therefore, the petitioner on the basis of a sale agreement could not restrain the owner of the subject premises from claiming their legal right arising out of the said property---No proceedings before the Rent Controller could be stopped to wait for the final out-come of the civil suit for specific performance---When eviction application against tenant had been filed by the landlord, the former was no more a tenant---When tenant took up the plea of purchase of the subject property he must vacate the subject property and file a suit for specific performance of the sale agreement---If, however, the tenant would succeed in the suit ,he could be given easy access to the subject premises---When the petitioner was denying the relationship of landlord and tenant which meant that he had not paid the rent---When landlord had made statement of personal bona fide need of the premises which was not rebutted in cross-examination, the burden on the part of landlord stood discharged---Even sole testimony of the landlord was sufficient to establish its personal bona fide need of rented premises if the statement of the landlord on oath was consistent with his averments made in the eviction application---No illegality or infirmity having been noticed in the impugned orders passed by both the Courts below, Constitutional petition was dismissed accordingly.

Ishrat Ghazali for Petitioner.

Chaman Lal for Respondent.

2018 M L D 1661

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

ALLAH JURIO alias JURIO and 2 others---Appellants

Versus

The STATE---Respondent

Cr. Appeal No.D-256 and Confirmation Reference No.13 of 2010, decided on 19th April, 2018.

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

----Ss. 302, 337-H(2), 114, 504 & 34---Criminal Procedure Code (V of 1898), Ss.342 & 364---Constitution of Pakistan, Art.10-A---Qatl-i-amd, hurt by rash or negligent act, abetment, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Trial Court had awarded sentence to accused on the role of abetment/instigation during the occurrence---Validity---Findings of the Trial Court that accused was responsible only for the charge under S.114, P.P.C., was not correct as said section was not an independent one but an enabling section, which was to be read with provisions of main offence---Trial Court, while awarding sentence to accused having not gone through the relevant provisions of law, conviction under S.114, P.P.C., was not sustainable---Trial Court had failed to put forward the specific question to accused regarding incriminating piece of evidence in the shape of report of Chemical Examiner and that of Tapedar---Scheme of law had provided the opportunity to accused to defend himself on the allegation made by prosecution through the evidence as envisaged under S.364, Cr.P.C.---Primary responsibility of the Trial Court was to ensure that truth was discovered---Article 10-A of the Constitution, had provided guarantee for fair trial in order to determine civil as well as criminal rights of any person under the obligation or in any criminal charge---Trial Court while passing the judgment had committed illegality and violated the provisions of S.342, Cr.P.C., and Art. 132 of Qanun-e-Shahadat, 1984---Impugned judgment of the Trial Court was set aside and case was remanded to the Trial Court, with direction to record statement of accused under S.342, Cr.P.C., afresh and decide the matter within two months.

Ghulam Rasool and another v. The State 2013 YLR 1779 rel.

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

----S. 342---Power to examine accused---If any piece of evidence brought by the prosecution on record was not put to accused at the time of recording statement under S.342, Cr.P.C., the same could not be considered against him---Trial Court while recording statement of accused under S.342, Cr.P.C., had not put the relevant questions regarding the reports of Chemical Examiner and that of Tapedar---Statement of accused was recorded under S.342, Cr.P.C., by the Trial Court in a stereotype manner---Relevant and important questions of incriminating pieces of evidence had not been put to accused for their explanation/reply---Trial Court had used such piece of evidence for convicting the accused, which was not legal.

Ishaque alias Kakan v. The State SBLR 2016 Sindh 1157; Muhammad Shah v. The State 2010 SCMR 1009; Muhammad Nawaz and others v. The State and others 2016 SCMR 267 and Qaddan and others v. The State 2017 SCMR 148 rel.

Syed Madad Ali Shah for Appellants.

Bharat Kumar Suthar for the Complainant.

Syed Meeral Shah Bukhari, Additional Prosecutor General, Sindh for the State.

2018 M L D 1685

[Sindh (Larkana Bench)]

Before Amjad Ali Sahito, J

ASHRAF and another---Applicants

Versus

The STATE---Respondent

1st Crl. Bail Application No.S-405 of 2017, decided on 21st May, 2018.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860),Ss, 302, 311, 342, 506(2), 120-A, 120-B & 34---Qatl-i-amd, compounding qatl-i-amd, wrongfull confinement, criminal intimidation, criminal conspiracy, common intention---Post-arrest bail, grant of---Further inquiry---Unexplained delay in nominating the accused persons---Effect---Petitioners were not nominated in the FIR rather their names were disclosed by prosecution witnesses in their statements recorded under S. 161, Cr.P.C. with delay of about three days of the occurrence---Belated examination of witness by the police was not fatal to prosecution but where delay was unexplained and accused had not been named in the FIR and circumstances justified that delay had purposely been maneuvered to name accused later, such managed delay and gaps adversely affected prosecution case---Both parties, in the present case, had visiting terms with each other---Role attributed to the petitioners in commission of offence was only to the extent of facilitating the main accused to commit the murder of the deceased, which required determination at trial---Deeper appreciation of evidence was not permissible at bail stage only tentative assessment was to be made---Petitioners having made out a case of further inquiry into their guilt as envisaged under S. 497(2), Cr.P.C., they were admitted to bail, in circumstances.

Mehmood Akhtar v. Nazir Ahmad 1995 SCMR 310 ref.

Ghulam Sarwar Abdullah Soomro for Applicants.

Sharafuddin Kanher, APG for the State.

Ahsan Ahmed Quraishi for the Complainant.

2018 M L D 1701

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

IRFAN---Appellant

Versus

ABDUL SATTAR and 6 others---Respondents

Cr. Appeal No.D-106, Confirmation Case No.D-04 and Criminal Acquittal Appeal No.D-131 of 2006, decided on 25th April, 2018.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting---Appreciation of evidence---Sentence, reduction in---Evidence of all the eye-witnesses, was identical in detail supporting each other on each and every point---Said witnesses were subjected to lengthy cross-examination, but they deposed in the same line and affirmed their version---Incident having taken place in front of house of the complainant and prosecution witnesses, they could not be said to be chance witnesses---Evidence of said eye-witnesses, could not be discarded only on the ground that they were relatives of the deceased unless and until, it was proved that they had ulterior motive to implicate the accused on account of enmity or other considerations---Evidence of said witnesses was straight-forward and confidence inspiring, particularly, when ocular evidence was corroborated by medical and circumstantial evidence---Weapons, recovered on the pointation of accused persons were sent to Ballistic Expert along with crime empties and report was positive---Prosecution, however, had failed to establish motive against accused party---One of accused persons had served sentence of 17 years, 9 months and 16 days and his co-accused had served sentence of 14 years, 6 months and 18 days---Single fire-shots were received by the injured as well as by the deceased---Three persons, allegedly made fire but one shot each was received by the deceased and injured and it was not clear that as to which one of accused persons was actually responsible for causing the fatal injury to the deceased---All such facts put the court to maximum caution in the matter of sentence of death passed against accused persons---Appeal was dismissed to the extent of conviction of accused persons recorded under S.302(b), P.P.C., but sentence of death on the charge of murder was reduced to imprisonment for life, convictions, sentence and fine, would remain intact---All the sentences of imprisonment passed against the accused persons, would run consecutively and benefit of S.382-B, Cr.P.C., would also be extended---Reference made by Trial Court for confirmation of death sentence, was answered in the negative---Appeal against acquittal filed by the complainant, having become infructuous, was dismissed, in circumstances.

Muhammad Nadeem Waqas and another v. The State 2014 SCMR 1658; Ali Bux and others v. The State 2018 SCMR 354; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Hussain v. The State 2008 SCMR 345; Amin Ali and another v. The State 2011 SCMR 323; Muhammad Zahir and another v. Shah Saeed and 2 others 2016 PCr.LJ 1821; Mondar Khan Babar v. Piyar Ali and others SBLR 2018 Sindh 311; Ali Muhammad and 2 others v. The State 2007 YLR 894; Umer v. The State 2009 PCr.LJ 1119; Saifullah v. The State SBLR 2017 Sindh 163; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596; Tariq v. The State 2017 SCMR 1672; Imtiaz alias Taj v. The State and others 2018 SCMR 344; Muhammad Shah v. The State 2010 SCMR 1009; Zafar v. The State and others 2018 SCMR 326; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Sheral alias Sher Muhammad v. The State 1999 SCMR 697; Qaddan and others v. The State 2017 SCMR 148; Muhammad Nawaz and others v. The State and others 2016 SCMR 267; Hashim Qasim and another v. The State 2017 SCMR 986; Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Tanveer alias Rabail and another v. The State 2012 YLR 2026; Shahbaz and 4 others v. The State and others 2010 PCr.LJ 1719; Ali Dino Kharose v. Ghulamullah Kharose and others 2015 MLD 473; Azhar Ali v. The State PLD 2010 SC 632; Muhammad Arshad v. The State 2015 SCMR 258; Muhammad Mansha v. The State 2016 SCMR 958; Sharafat Ali v. The State 2016 SCMR 28; Niazbullah and another v. Liaq-ur-Rehman and 2 others 2015 YLR 402; Atta-ur-Rehman and another v. The State 2018 SCMR 372 and Muhammad Abbas v. The State 2018 SCMR 397 ref.

Syed Madad Ali Shah for Appellant (in Criminal Appeal No.D-106 of 2006).

Syed Tariq Ahmed Shah for Appellant (in Cr. Acq. Appeal No.D-131 of 2006).

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

2018 M L D 1722

[Sindh]

Before Salahuddin Panhwar and Zulfiqar Ahmad Khan, JJ

HAZOOR BUX and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No.83 of 2014, decided on14th December, 2017.

Penal Code (XLV of 1860)---

----Ss. 365-A & 34---Anti-terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security etc, common intention, act of terrorism---Appreciation of evidence---Prosecution case was that son of complainant and his friend were abducted for ransom---Raid was conducted at the house of co-accused and during the encounter, one of the co-accused died and two abductees were got released---Accused persons had challenged their conviction under S. 365-A, P.P.C. while pleading that their case fell under S.365, P.P.C.---Record showed that two young persons were forcibly abducted---Said act was committed by the accused in association with their deceased brother which resulted in wrongful captivity of the abductees for a period of forty four days---Such charge was not challenged by the accused persons, therefore, kidnapping/abduction stood established---Accused persons present in the Trial Court, were identified by the prosecution witnesses/victims---Manner in which the incident took place, demand of ransom, recovery of abductees and identification of the accused persons were the factors for awarding conviction---Facts and circumstances of the case showed that the requisite demand of extortion money under S. 365-A, P.P.C. was put to the family of abductees, which had been confirmed by the evidence adduced by the prosecution---Said evidence was duly corroborated by the details of telephone calls made from the mobile numbers used by the accused---Circumstances established that there was no reason for transposing the sentence awarded to the accused persons from S. 365-A, P.P.C. to S. 365, P.P.C. as all the ingredients of S. 365-A, P.P.C. were present in the offence committed by the accused persons---Appeal was dismissed, in circumstances.

Mushtaq Ahmed, Raja Hassan Nawaz and Ajab Khan Khattak for Appellants.

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

2018 M L D 1736

[Sindh]

Before Mrs. Ashraf Jahan, J

MUHAMMAD NABEEL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.336 of 2017, decided on 12th January, 2018.

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

----S. 23(1)(a)---Possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Prosecution case was that one .30-bore pistol with magazine and three live bullets was recovered from the possession of the accused---Record showed that prosecution had not examined the complainant, who had lodged FIR, but examined only two mashirs of arrest and recovery---Said witnesses had given contradictory statements in respect of time of lodging the FIR; the distance in-between the place of incident and police station and regarding preparation of memos. of arrest and recovery---Number of pistol recovered from the accused as per sketch was shown as A-9877 while the mashirnama of arrest and Forensic Science Laboratory Report showed the number as A-9811---One of the witnesses, who was among the raiding party of the police and had acted as mashir of arrest and recovery in the case was subsequently entrusted with the investigation of the case---Said act was against the spirit of law---Report of Forensic Science Laboratory showed that two .30-bore empties were sent for examination which did not match with the pistol allegedly recovered from the accused---Circumstances established that prosecution had failed to prove the charge against the accused beyond shadow of reasonable doubt---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded against him by the Trial Court.

(b) Criminal trial---

----Benefit of doubt---Principle---Benefit of doubt arising out of the circumstances of the case, would be extended to the accused as of right and not as a concession.

Saba Khan for Appellant.

Ms. Rahat Ehsan, Additional P.G. along with I.O. SIP Jaseem Khan for the State.

2018 M L D 1748

[Sindh]

Before Aqeel Ahmed Abbasi and Aziz-ur-Rehman, JJ

Syed HASAM UDDIN---Petitioner

Versus

FEDERATION OF PAKISTAN and 12 others---Respondents

Constitution Petition No.D-5617 of 2016, decided on 9th February, 2018.

National Database and Registration Authority Ordinance (VIII of 2000)---

----S.18---National Identity Card, blocking of---Petitioner was aggrieved of blocking of Computerized National Identity Cards of petitioner and his family---Validity---Mere complaint of an individual with whom petitioner claimed enmity on account of some matrimonial dispute, authorities had blocked Computerized National Identity Cards of petitioner and all of his family members, merely on the basis of suspicion---Despite lapse of considerable time since year 2016, no result of such investigation or inquiry was undertaken by the authorities---High Court directed the concerned authorities to de-block Computerized National Identity Cards and passports of petitioner and his family members---Constitutional Petition was allowed accordingly.

Qamar Ahmed Shaikh for Petitioner.

Umar Zad Gul, Deputy Attorney General for Pakistan for Respondent.

Chaudhary Muhammad Farooq for Respondents Nos. 3 and 4.

2018 M L D 1770

[Sindh]

Before Nazar Akbar, J

PAKISTAN STATE OIL COMPANY LTD.---Plaintiff

Versus

Messrs GILLANI (PVT.) LTD. and another---Defendants

Suit No.1725 of 2000, decided on 26th April, 2018.

Arbitration Act (X of 1940)---

----Ss. 8, 20, 25, 32 & 34---Suit for recovery of money---Arbitration clause---Referring matter to Arbitrator---After filing of suit, proceedings were stayed and matter was referred to Arbitrator---Subsequently plaintiff filed application for restoration of suit and sought appointment of Arbitrator under Ss. 8 & 20 of Arbitration Act, 1940---Validity---Once parties were referred to Arbitrator, the purpose / object of Arbitration Act, 1940, was effectively achieved and parties were prevented to obtain a decree from Court contrary to their own agreement that their disputes were to be adjudicated by a private party as provided in arbitration agreement---Order on application under S. 34 of Arbitration Act, 1940, and / or on application under S. 20 of the Act, was one and the same---Purpose of both the provisions was to seek enforcement of an 'arbitration clause/agreement' against the party guilty of avoiding / refusing arbitration for resolution of their dispute---High Court declined exercise of discretion under S. 25 of Arbitration Act, 1940---Plaintiff had repeatedly approached the High Court by suppressing arbitration agreement and attempted to obtain a decree from a civil Court despite the fact that the suit was barred under S. 32 of Arbitration Act, 1940---Suit was dismissed in circumstances.

Satyawan Prasad v. Kunj Behari Lal AIR 1957 Patna 712 ref.

Ghulam Muhammad Dars for Plaintiff.

Nemo for Defendant No.1.

Abdul Razzak for Defendant No.2.

2018 M L D 1789

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

MUHAMMAD HUSSAIN MIRZA---Petitioner

Versus

PROVINCE OF SINDH through Home Secretary, Government of Sindh Karachi and 4 others---Respondents

C.P. No.D-2513 of 2017, decided on 31st May, 3018.

Criminal Procedure Code (V of 1898)---

----Ss.22-A & 22-B---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner had impugned the order passed by Ex-officio Justice of Peace on the application filed under Ss.22-A & 22-B, Cr.P.C., whereby SHO was directed to record statement of applicant and if from such statement cognizable offence was made out, FIR to be registered under relevant provisions of law against the accused persons---Allegation against the petitioner was that he had managed false and fabricated divorce deed---Station House Officer of Police Station had conducted enquiry and submitted report to the court which directed the SHO to record statement of Advocate who did not recognize his signature on the divorce deed---Burden lay on the petitioner who had produced divorce deed---Petitioner, on the one hand had produced copies of affidavit of free-will of the lady for Nikahnama, divorce deed, and on the other hand respondent and the said lady had categorically denied all said facts/pleas taken by the petitioner in his constitutional petition---Disputed questions of facts could not be decided by High Court under constitutional jurisdiction---Constitutional petition was dismissed.

Iftikhar Ali Haidri v. National Telecom Co. and others 2009 YLR 1331 and Rai Ashraf and others v. Muhammad Saleem Bhatti PLD 2010 SCMR 691 foll.

Muhammad Sachal R. Awan for Petitioner.

Mangal Meghwar for Respondents Nos. 4 and 5.

Shahzado Salim Nahyoon, D.P.G. for the State.

Ch. Bashir Ahmed Gujjar, Assistant A.G.

2018 M L D 1796

[Sindh]

Before Syed Muhammad Farooq Shah and Khadim Hussain M. Shaikh, JJ

KHURSHEED AHMED---Petitioner

Versus

UBAID ANSARI and 2 others---Respondents

C.P. No.D-5540 of 2016, decided on 21st March, 2017.

Penal Code (XLV of 1860)---

----Ss. 420, 468, 471 & 506-B---Qanun-e-Shahadat (10 of 1984), Art. 59---Opinion of Handwriting Expert---Criminal and civil proceedings---Scope---Petitioner was complainant of case got registered against respondents for committing cheating, forgery and criminal intimidation and was aggrieved of order passed by Lower Appellate Court with direction that disputed sale agreement be sent to handwriting expert for comparison of signatures---Validity---Two different stances counter to each other existed, therefore, opinion of handwriting expert regarding signatures of parties on sale agreement was relevant, which was always rebuttable by over whelming evidence---Petitioner himself derived his claim on the basis of sale agreement in-question, being beneficiary thereof, was obliged to get an expert opinion about genuineness or otherwise of signatures available on the subject sale agreement instead of un-necessarily disputing such exercise by filing petition and seeking adjournments in Trial Court, causing un-necessary delay in conclusion of proceedings in civil suit before Trial Court---Criminal proceedings in presence of civil proceedings were not barred and proceedings on both sides i.e. criminal and civil could go on simultaneously side by side---High Court declined to interfere in the order passed by Lower Appellate Court as the same did not suffer from any illegality or infirmity---No illegality or jurisdictional defect was found in the orders to attract exercise of Constitutional jurisdiction by High Court---Constitutional petition was dismissed in circumstances.

Sohbat Ali v. Muhammad Alam PLD 2012 SC (AJ&K) 1; Muhammad Kabiruddin v. Muhammad Muniruddin 1993 CLC 747 and Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 rel.

Syed Samiulllah Shah for Petitioner.

Abrar Ali Khichi, APG for the State.

2018 M L D 1806

[Sindh]

Before Syed Hassan Azhar Rizvi and Zulfiqar Ahmad Khan, JJ

ABUZER GHAFFARI COOPERATIVE HOUSING SOCIETY LTD. through Honourary Secretary---Petitioner

Versus

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

C.P. No.D-1673 of 2009, decided on 15th February, 2018.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Housing Society---Demarcation of land---Layout plan, withdrawal of by the Cantonment Board---Petitioner was a Housing Society and its layout plan comprised of three blocks---Grievance of petitioner Society was that Cantonment Board had issued a letter restricting approval of the Society only to the extent of Block-I on the ground that in demarcation of land Block-II and Block-III of the Society had fallen on defence land under the occupation of Pakistan Air Force---Validity---Claim of Pakistan Air Force was only in respect to 2.6 acres forming part of Block-III, no legal justification for suspension of layout plan in respect of Block-II existed---Letter in question issued by Cantonment Board on the ground that both chunks of Society's land designated as Block-II and Block-III were under occupation of Pakistan Air Force was devoid of any merit, as claim of Pakistan Air Force was only in respect of 2.6 acres, which was complete chunk of land comprising of Block-III of the Society---High Court directed to withdraw letter in question issued by Cantonment Board where layout plans in respect of both Block-II and III were withdrawn / cancelled could only apply to the chunk of land admeasuring 2.6 acres in Block-IIII of the Society, therefore, there was no legal justification for withdrawal or cancellation of layout plan in respect of Block-II---Constitutional petition was allowed of accordingly.

Khalid Jawaid Khan for Petitioner.

Abdul Wasay Kakar, Assistant Attorney General for Respondents Nos. 1, 3 and 4.

Muhammad Asif Malik for Respondents Nos. 2 and 5.

Nemo for Respondents Nos. 6 and 7.

2018 M L D 1821

[Sindh]

Before Aftab Ahmed Gorar, J

ABDUL QAYYUM---Appellant

Versus

The STATE---Respondent

Crl. Appeal No.290 of 2013, decided on 1st February, 2018.

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

----Ss. 392, 411 & 34---Robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and co-accused persons entered into the house of complainant and looted household articles---Ocular account was furnished by the complainant---Record showed that in the FIR, complainant stated that accused entered into his house by the roof of neighbour's house, while in his deposition, complainant stated that accused persons duly armed with weapons, after breaking the lock of the door entered into the house---Said two versions led the prosecution case suffering from improvements, which had created reasonable and serious doubts because entrance of assailants in the house remained questionable---No doubt, offence as alleged had been committed inside the house but the manner in which complainant had described the incident had created reasonable doubt in a prudent mind---Record transpired that incident took place on 29.2.2012, FIR was lodged on 30.3.2012 whereas the present accused was arrested on 22.3.2012 much prior to the registration of FIR---Said circumstances indicated that the prosecution story as to the arrest of the accused in the case was flimsy in nature---Mashirs of mashirnama of arrest and recovery were police personnel but no independent person had been cited as mashir when the arrest of the accused was made in thickly populated area---No explanation had been offered by the Investigating Officer for that negligence as to why he kept quiet and did not invite any person to act as a mashir---When no person stood witness, the Investigating Officer was empowered under S. 160, Cr.P.C. to issue notice to such person---Investigating Officer, in the present case, did not observe the mandatory requirement of S. 160, Cr.P.C. as well as S. 103, Cr.P.C.---Complainant was holding numerous household articles but had failed to offer any valid receipt with regard to the purchase of gold, laptop, cameras, wrist watches---Complainant had failed to give correct features and description of the looted articles---Record revealed that "gold biscuit" was recovered from possession of the accused---No evidence was available with the prosecution to justify whether said gold biscuit was looted from the house of the complainant---Trial Court had overlooked the parameters of S. 412, P.P.C. and did not frame the charge in its true spirit by inserting and applying of S. 412, P.P.C.---Such facts made the prosecution case defective---Non-application of S. 412, P.P.C. in the charge would vitiate the prosecution case as a whole---Circumstances established that the prosecution case was not free from doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded against him by the Trial Court.

1999 SCMR 2203; PLD 2006 SC 153 and 2015 MLD 339 ref.

Tayyab Hussain Shah v. The State 2000 SCMR 683 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---Reasonable doubt, if created in the case, benefit of same would go in favour of the accused.

1993 SCMR 550 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Muhammad Hanif Samma for Appellant.

Seema Zaidi, D.P.G. for the State.

2018 M L D 1835

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

SHOAIB ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. D-5 and D-30 of 2018, decided on 29th March, 2018.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Complainant did not associate any private person to witness the recovery proceedings though he had sufficient time to collect and associate an independent person to act as Mashir in the case---Overwriting was noticed in the Mashirnama of arrest and recovery in respect of date of incident; some writing over the Roznamcha entry No.3 had also been noticed---Recovered charas was sent to the Chemical Examiner one day after its recovery---Prosecution, neither produced any entry of Malkhana nor examined Head Moharrar of Malkhana in respect of safe custody of narcotic---Person by whom sample was sent to chemical examiner was not examined---Trial Court overlooked all the material aspects of the case---Prosecution case was full of discrepancies, lacunas, contradictions and against the settled principles---Several circumstances existed in the case which had created doubt in the prosecution story---Prosecution had not discharged its liabilities---Benefit of doubt was extended to accused and conviction and sentence awarded to him were set aside and he was ordered to be released forthwith.

Mahmood Ahmed Butt, Deputy Director, Regional Directorate, Anti-Narcotics Force, Lahore v. Mst. Fazelat Bibi PLD 2013 SC 361; Ikramullah and others v. The State 2015 SCMR 1002; Nazeer Ahmed v. The State PLD 2009 Kar. 191; Khalil Ahmed v. The State PLD 2008 Kar. 8; Khan Muhammad v. The State PLD 2004 Kar. 681; Muhammad Sarfraz v. The State and others 2017 SCMR 1874 and Nadeem v. The State through Prosecutor General, Sindh Criminal Appeal No.6-K of 2008 in Criminal Petition No.105-K of 2016 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---Not necessary that there should be many circumstances, which create doubt---If there is a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused, the accused will 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 ref.

Syed Madad Ali Shah for Appellant.

Muhammad Ayoub Kasar Special Prosecutor for Anti-Narcotic Force.

2018 M L D 1857

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

JAN NISAR ZAFAR---Applicant

Versus

The STATE---Respondent

Cr. Misc. Application No.22 of 2017, decided on 2nd May, 2018.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing cheque---Forfeiture of surety bond---Forfeiture of full surety amount---Scope---Petitioner stood surety for the accused involved in a case registered under S. 489-F, P.P.C. in the sum of Rs. 5,00,000/- and deposited Defense Saving Certificates of the like amount on behalf of the accused when he was granted bail---Held, standing surety for someone was an act of benevolence until it was established that the surety had got the accused released on bail for ulterior motives---Court granted, pre-arrest bail to the accused, he was present in the Court on given date but at 10:30 he left the Court due to illness after giving application for adjournment to the Reader---Court adjourned the case for the next day and on that date of hearing he was absent and the Court recalled his pre-arrest bail order---Accused was absent from the Court for only one day and Court, without giving any warning/notice to surety, cancelled the bail order the very next day---Surety was cancelled in a hurried manner as the surety was not to be treated harshly nor punished severely without having been there extraordinary circumstances calling for full forfeiture of surety bond---High Court set aside the impugned order with the direction that minor penalty commensurating the circumstances be imposed by the Trial Court---Application of the surety was disposed of accordingly.

2009 PCr.LJ 962; 1997 PCr.LJ 554 and 2011 SCMR 929 ref.

Inayat Hussain for Applicant.

Ghulam Abbas, A.P.G. for the State.

2018 M L D 1866

[Sindh]

Before Syed Hassan Azhar Rizvi and Zulfiqar Ahmad Khan, JJ

Mrs. NASREEN JAHAN SIDDIQUI---Appellant

Versus

Mrs. AMBER and 4 others---Respondents

H.C.A. No.53 of 2017, decided on 23rd February, 2018.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Limitation Act (IX of 1908), S. 5---Intra-court appeal---Limitation---Condonation of delay---Scope---Contention of appellant was that she was advised bed rest for ten days by the Medical Officer---Validity---Intra-court appeal was barred by eight days---Reasons for each and every day's delay had to be proved which had not been done in the present case---Chit from Medical Officer produced in support of condonation of delay did not have any seal of the doctor and even the name and sign of patient---Said chit appeared to be a cooked-up document---No due diligence or reasonable explanation had been given for delay in filing of present appeal---Appellant had been avoiding specific performance of contract despite having received initial consideration and the rest having been deposited with the Nazir of the Court---Appeal was dismissed being time barred in circumstances.

Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462; Abdul Rashid v. Director General, Post Offices, Islamabad and others 2009 SCMR 1435 and Market Committee through Administrator/ Secretary v. Haji Abdul Karim and 3 others PLD 2014 Sindh 624 ref.

Sheikh Muhammad Saleem v. Faiz Ahmed PLD 2003 SC 628 and Abdul Majeed and others v. Hamida Bibi and 4 others 2002 SCMR 416 rel.

Ashraf Ali Butt for Appellant.

Syed Haider Imam Rizvi and Ahsan Imam Rizvi along with Abdul Rauf Malik for Respondent No.1.

2018 M L D 1897

[Sindh]

Before Naimatullah Phulpoto and Abdul Maalik Gaddi, JJ

MUHAMMAD SHAHID and another---Appellants

Versus

The STATE through IInd Anti-Terrorism Court---Respondent

Special Criminal Anti-Terrorism Jail Appeal No.272 of 2016, decided on 5th December, 2017.

Penal Code (XLV of 1860)---

----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Anti Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of arms and ammunition, attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused persons were stopped for checking purpose but they started firing upon the police party, which was retaliated with sophisticated weapons, which took place for about three to four minutes and then the police succeeded to arrest both the accused---One .30-bore pistol without number with one bullet stuck in the chamber and three bullets in magazine and hand grenade were recovered from the accused---Complainant stated that encounter continued for about three to four minutes, but surprisingly not a single injury/scratch was caused to either side---Even not a single bullet hit the police mobile---Admittedly, incident took place at main road therefore, the possibility of presence of private persons at road side could not be ruled out---Police failed to make any effort to join any independent person of the locality or passerby to witness the arrest and recovery proceedings---Accused allegedly were armed with hand grenades and pistols, but it was unbelievable that accused persons were arrested by the police without causing any harm to police---Expert of Bomb Disposal Unit in his evidence gave inspection report showing the numbers of hand grenades out of which one was rifle grenade, whereas official witness in his evidence had not mention any such detail---Charge framed by the Trial Court was silent with regard to the numbers, descriptions of the hand grenades and other necessary particulars of case, therefore, no reliance could be placed on the evidence of expert of Bomb Disposal Unit and its report---Complainant (Police official) had deposed that his duty hours were from 8.00 a.m. to 8.00 p.m., whereas, admittedly, the incident took place at 12.30 a.m.---Said facts showed that either complainant was not on duty at the relavent time or he deposed falsely---First Information Report as well as mashirnama of arrest and recovery showed that the recovered .30-bore pistols were without numbers, but Forensic Science Laboratory Report showed the rubbed number of one pistol and the other without number---False implication of the accused persons, in circumstances could not be ruled out---Keeping the version of both the parties put in juxtaposition version of the accused persons seemed to be more plausible and convincing while the version of the prosecution appeared to be doubtful---Circumstances established that prosecution had failed to establish its case against the accused beyond reasonable doubt, benefit of which, would resolve in favour of accused---Appeal was allowed and accused persons were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Rana Khalid Hussain for Appellants.

Muhammad Iqbal Awan Deputy Prosecutor General for the State.

2018 M L D 1912

[Sindh]

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

FAREED AHMED YOUSFANI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman and 2 others---Respondents

Constitutional Petition No.D-4577 of 2017, decided on 5th December, 2017.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Medical ground---Report of Medical Board---Scope---Petitioner was arrested by NAB authorities for committing corruption and corrupt practices by misuse of his authority---Petitioner raised plea of his being suffering from diabetes and hypertension---Validity---Petitioner though was aged and suffering from a number of ailments at the time of examination yet he could be adequately treated in jail hospital---Continued detention of petitioner in jail was not hazardous to his life---High Court keeping in view the report of Medical Board, declined to extend benefit of ill health to the petitioner---Bail was refused in circumstances.

Mohammed Yousafullah Khan v. State PLD 1965 SC 58 rel.

Barrister Mohsin Shahwani for Petitioner.

Mohammed Altaf, Special Prosecutor, NAB for Respondents.

2018 M L D 1928

[Sindh]

Before Muhammad Iqbal Kalhoro and Mohammed Karim Khan Agha, JJ

RAEES IQBAL and another---Petitioners

Versus

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

C.P. No.D-4230 of 2016, decided on 22nd March, 2018.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), Ss. 249-A & 265-K---Dishonoring of cheques---Quashing of FIR---Filing of challan---Petitioners were aggrieved of registration of FIR by respondents against dishonoring of cheques issued for business transactions between both the parties---Validity---Dishonoring of a cheque given either to fulfill an obligation or to repay a loan was cognizable offence under Second Sched. of Cr.P.C. and was punishable under S. 489-F, P.P.C.---If a person reported such matter to duty officer at a police station, he had no option but to lodge an FIR---Ensuing investigation would reveal all matters including validity of cheque, reason for giving cheque etc., which could be determined or the fact that whether or not cheque was given in fulfillment of a loan as alleged---High Court declined to quash FIR registered against petitioners as challan in FIR must have been filed---If petitioners were of the view that there was no material against them and they had been falsely implicated, they could file applications under S.249-A or 265-K Cr.P.C. before Trial Court---Constitutional petition was dismissed accordingly.

Younas Abbas and others v. Additional Sessions Judge Chakwal and others PLD 2016 SC 581; 2016 SCMR 1957; 2011 SCMR 1813 and PLD 2003 SC 401 rel.

Sami Ahsan for Petitioners.

2018 M L D 1937

[Sindh]

Before Aftab Ahmed Gorar and Khadim Hussain Tunio, JJ

MOHAMMED HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.318 of 2017, decided on 30th April, 2018.

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

----Ss.420, 468 & 471---Criminal Procedure Code (V of 1898), S.412---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Appreciation of evidence---Prosecution case was that accused and co-accused fraudulently got ATM card in the name of a account holder maintaining her account in a Bank and after getting her signature in connivance with co-accused persons, had withdrawn the amount of Rs. 107,5000/- from the Bank through ATM card and subsequently transferred to the account of accused maintained with the Bank---Record showed that a formal charge was framed to which the accused pleaded not guilty and claimed to be tried---Prosecution examined a witness and thereafter, accused admitted his guilt and submitted application to that effect and also recorded his statement in that regard---Accused was thereafter convicted and sentenced, which was based upon his on plea of guilt, therefore, he was not entitled to challenge the legality of his conviction by virtue of bar contained in S. 412, Cr.P.C.---Appeal of the accused being not maintainable in law, was dismissed, in circumstances.

Rahid Ali v. The State 2018 SCMR 418 and Mst. Shaista Bibi and another v. Superintendent Central Jail, Mach and 2 others PLD 2015 SC 15 ref.

Muhammad Anwar and others v. The State 1986 PCr.LJ 2164; Biloo Khan and another v. The State PLD 1967 Kar. 608; Bashir Ahmed v. The State 2010 MLD 1159; Muhammad Shafiq v. The State 2018 MLD 106; Wajid Ali v. The State and others 2013 PCr.LJ 1597 and Mrs. Moona Singh Arachige v. The State 1990 PCr.LJ 62 rel.

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

----Ss. 420, 468 & 471---Limitation Act (IX of 1908), S. 5---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Appeal---Limitation---Condonation of delay---Impugned judgment was passed on 3-4-2013 and appeal was filed on 31-7-2017---Inordinate delay in filing of appeal had not been fully explained by the accused as well as no sufficient ground had been furnished by the accused for condonation of delay---Record showed that period of delay in filing the appeal was more than four years, four months and twenty six days---Accused was required to explain the delay of each and every day satisfactorily---Only reason shown for seeking condonation of delay was that the accused did not know technicalities and was already behind the bars---Accused, after his conviction had filed his first appeal and was under the impression that his appeal was already filed before the court---Said ground was not sufficient and could not be termed to be a circumstance of a compelling nature beyond the control of the accused---Nothing had been contended against the conviction---Ground shown for causing delay in filing of appeal was neither reasonable nor cogent---Appeal merited dismissal.

Ms. Abida Parveen Channar for Appellant.

Ashfaq Rafiq Janjua, Asst. Attorney General for the State.

2018 M L D 1947

[Sindh (Larkana Bench)]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD SIDDIQUE---Applicant

Versus

The STATE and another---Respondents

Crl. Misc. Appln. No.S-95 of 2017, decided on 20th February, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 561-A---Application to Justice of Peace for direction to lodge FIR against the proposed accused persons was dismissed---Application under S.561-A, Cr.P.C. for quashing of dismissal order of the Justice of Peace---Contents of proposed FIR, showed that applicant had claimed that proposed accused had filed a case in respect of illegal occupation, which he could not prove and the Trial Court had observed that the dispute between the parties was of civil nature---Facts narrated in the FIR indicated that there was some thing fishing in the entire matter and applicant had not come to the court with clean hands---Entire circumstance of a criminal case had to be considered before passing an order---Proposed accused had specifically pointed out that alleged incident had arisen in the backdrop of a dispute---Story of applicant with regard to constitution of cognizable offence was doubtful---Ex-Officio Justice of Peace, had rightly exercised the jurisdiction vested in him through applying his judicial mind---No illegality or irregularity had been committed by him while passing the impugned order for giving a direction to the applicant for filing a private complaint---Impugned order, did not call for any interference by High Court---Application was dismissed being devoid of any force.

Mushtaq Ahmad case PLD 1973 SC 418 ref.

Munawar Ali Bhatti for Applicant.

Habibullah G. Ghouri for No.1 to 6 and 8.

Aijaz Mustafa, DDPP for State.

2018 M L D 1950

[Sindh]

Before Muhammad Saleem Jessar, J

MUHAMMAD IDREES BUGSRA---Applicant

Versus

The STATE---Respondent

Cr. Misc. Application No. 12 of 2018, decided on 1st February, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 86---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing cheque to the tune of Rs. Fifty million---Interim post-arrest bail, confirmation of---Surety amount, magnitude of---Excessive surety amount---Scope and effect---Accused was produced before the Court on transitory remand and the Court ordered to release him subject to giving surety amount in the sum of Rs. fifty lac---Court dismissed the application of accused for reduction in surety amount---Petitioner/ accused contended that by imposing excessive surety amount, the Court had deprived him of his liberty---Prosecution contended that in the wake of huge amount of Rs. fifty Million, Sessions Court had rightly dismissed prayer of petitioner for reduction of surety amount---Magistrate or Sessions Judge concerned would be competent to release the accused on interim post arrest bail---Confirmation or otherwise, would be subject to satisfaction of Court alone where the accused was to appear---Once the Court was inclined to admit the accused to bail, Court was not to ask for improbable or excessive surety amount---Sessions Court, in the present case, had passed the impugned order in a mechanical manner---High Court directed that accused would be released on bail forthwith on furnishing the solvent the surety in the sum of Rs. five lac---Application of petitioner was allowed accordingly.

Fida Hussain v. State 2000 PCr.LJ 1022 ref.

Javed Ahmed Chhatari for Applicant.

Ms. Rahat Ehsan, Addl. P.G. for Respondent.

2018 M L D 1963

[Sindh]

Before Naimatullah Phulpoto and Abdul Maalik Gaddi, JJ

MUHAMMAD IBRAHIM---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No.252 of 2015, decided on 19th December, 2017.

(a) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that on spy information two suspicious persons found at the place of incident, were apprehended---Personal search of said suspects, in presence of mashirs, resulted in recovery of one hand grenade---FIR was registered against the said person---Case being that of Spy information complainant (police official) had sufficient time to call independent persons either from place of information or from place of incident to join recovery proceedings---Place of incident was a thickly populated area, but no efforts were made by the complainant to call independent person of the locality to witness the recovery proceedings, therefore, false implication of the accused in that case could not be ruled out---No description/ number of the hand grenade was mentioned either in FIR or in mashirnama of arrest and recovery---Expert of Bomb Disposal Unit, while issued clearance certificate and inspection report of hand grenade showing the number of hand grenade and colour without detonator---Record transpired that the hand grenade was recovered from the accused on 13.10.2014, but it was sent to experts on 21.10.2014, after the delay of eight days; during that intervening period, the hand grenade was retained by whom, had not been explained by the prosecution---Clearance certificate and inspection report of hand grenade showed that the alleged hand grenade was without detonator and explosive substance; therefore, it did not appeal to a prudent mind that when grenade could not explode without detonator then why the accused had kept the same with him---Admittedly, incident took place during the midnight---Source of identification had not been mentioned---Circumstances established that prosecution had failed to prove its charge against the accused beyond any reasonable shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed in circumstances and accused was acquitted by setting aside conviction and sentence recorded against him by the Trial Court.

(b) Criminal trial---

----Benefit of doubt---Principle---Slightest doubt arising in the prosecution case, would be sufficient to extend the benefit of doubt to the accused.

Mamoon K. Shirwany and Farkhunda Jabeen for Appellant.

Abdullah Rajput, Additional Prosecutor General for Respondent.

2018 M L D 1971

[Sindh]

Before Aftab Ahmed Gorar and Khadim Hussain Tunio, JJ

REHMAN SHER---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1 of 2015, decided on 13th April, 2018.

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

----Ss. 6, 9(c), 25 & 29---Possessing and trafficking narcotics---Appreciation of evidence---Twenty kilograms of charas was recovered from the diggi of taxi, which was in full control of accused being its driver---Quantity of narcotic exceeding ten Kilograms, case fell under Cl.(c) of S.9 of Control of Narcotic Substances Act, 1997, for which death penalty or imprisonment for life had been provided---Record of taxi in question had shown that registration number affixed on the taxi was false one which had been allotted to a truck---Case of accused fell within four corners of S.6 of Control of Narcotic Substances Act, 1997---No enmity, ill-will or grudge had been alleged against prosecution witnesses---Sufficient material had been brought by the prosecution on the record, including report of Chemical Examiner relating to positive report of narcotic substance---Section 25 of Control of Narcotic Substances Act, 1997 had excluded the application of S.103, Cr.P.C.---Alleged recovery was witnessed by the Excise Officials and accused had failed to bring anything on record that he had falsely been roped in the offence because of any rivalry with the official witnesses---Person who was on driving seat of the vehicle, would be held responsible for transportation of narcotic having knowledge of the same---Evidence led by the prosecution, was in line with the case with no material variation or lapses---Memo of recovery and the FIR, stood fully corroborated and proved to the satisfaction of the Trial Court---No defence evidence at all had been adduced---Prosecution having successfully proved its case against accused, Trial Court had rightly convicted him.

Kashif Amir v. The State PLD 2010 SC 1052 ref.

Fida Muhammad Khan for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General for Respondent.

2018 M L D 1979

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

RAJAB ALI---Appellant

Versus

The STATE---Respondent

CrL. Jail Appeal No.D-3 of 2014, decided on 7th August, 2017.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that police party spotted a rickshaw and motioned to stop---Police Officer identified the driver as accused---Driver, after leaving the rickshaw, ran away in the adjoining street---Said police Officer ran after him and while running, a black colour packet fell down from the apparel of the accused who, however, succeeded in escape---Said packet was picked up and opened wherein charas was recovered, similar packet was also found concealed in the spare wheel of rickshaw---Recovered quantity of charas was weighed and found 2-kilo and 30-grams, from which a sample of 10-grams was separated for chemical analysis and the sample as well as case property were sealed on the spot---Record showed that Police Officer/witness not only claimed to have identified the accused by his name, his parentage as well as residential address, but surprisingly the final report was submitted against the accused under S.512, Cr.P.C. without describing any effort of arrest of the accused---Said conduct on part of the Police Officer/witness was quite strange and even was against the implied duties---Complainant in his examination-in-chief identified the accused present in the court as the same but in cross-examination, he admitted that he did not know the accused prior to the incident and he did not see the accused sitting in the rickshaw and he had seen the accused from his back side, while he was running---Identification of accused by the complainant in such situation was based on hearsay evidence, which was not reliable and the same did not come under the definition of res-gestae---Complainant stated in his examination-in-chief that only 10-grams of charas was separated as sample for sending to Forensic Science Laboratory for chemical analysis---Such sampling first required recovery of narcotics from possession of the sent-up accused and only then a claim of conviction could be examined---Record showed that a person who was running a brothel house had lodged FIR against the accused---After lodging the said FIR, the wife of the accused had lodged FIR against the complainant and said Police Officer---Such circumstances suggested that Police Officer had a motive to involve the accused---Specific allegation of animosity and ill-will was alleged by the accused against the said Police Officer, who admitted to have been prosecuted on complaint of wife of the accused---Such a witness, in circumstances, must have associated private witnesses for alleged recovery particularly when the alleged place of incident was thickly populated area---Admitted enmity/annoyance between accused and the star witness/ Police Officer, safe escape of accused from scene, falling of packet from apparel of accused and recovery of another packet, concealed in spare wheel of rickshaw, were the circumstances, which brought serious clouds over testimony of such interested witness and made recovery doubtful---Recovered quantity of charas was shown as 2-kilo and 30-grams, but only a small sample of the same was sent for chemical analysis---Prima facie, in the present case, the process of sampling was not in accordance with law---Conduct of the star witness appeared to be not consistent and probable, hence no conviction could legally sustain on such testimony---Investigating Officer had admitted in his cross-examination that he had not tried to examine any private person of the locality at the time of site inspection, did not prepare the memo of site inspection, did not try to locate the owner of rickshaw nor the said rickshaw was produced in the court as case property---Delay of five days in sending the allegedly recovered material to Office of Chemical Examiner and there being nothing on record to ensure safe custody of such property during intervening period, prosecution had failed to prove the case against the accused beyond any shadow of doubt, benefit of which, would resolve in favour of accused---Appeal was allowed in circumstances and accused was acquitted by setting aside conviction and sentences recorded against him by the Trial Court.

Muhammad Noor and others v. The State 2010 SCMR 927; Zulfiqar Ahmed and another v. State 2011 SCMR 492; Haji Inayat Ali v. Shahzada 2008 SCMR 1565; Abdul Majeed v. The State 2014 YLR 2050; Ameer Zeb v. The State PLD 2012 SC 380 and Lal Khan v. The State 2006 SCMR 1846 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---Single doubt in the prosecution story was disastrous for the prosecution case and its benefit would go to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Wali Muhammad Jamari for Appellant.

Shahzado Saleem Nahiyoon, APG for the State.

2018 M L D 1998

[Sindh]

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

IMTIAZ AHMED DEV---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU---Respondent

C.Ps. Nos.D-1925 and D-1926 of 2017, decided on12th September, 2017.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iv) & (vi)---Criminal Procedure Code (V of 1898), S.265-K---Constitution of Pakistan, Art. 199---Constitutional petition for quashing the proceedings---Incriminating evidence, absence of---Acquittal during trial---Petitioner was facing trial before Accountability Court---Petitioner was aggrieved of dismissal of his application under S. 265-K Cr.P.C. by Accountability Court despite unavailability of material evidence against him---Validity---Sole piece of evidence against petitioner was audit report which was not corroborated or substantiated in any manner whatsoever---In absence of any tangible evidence against petitioner that implicated him in the offences charged, allowing proceedings to continue would amount to abuse of process of law and would serve no useful purpose in allowing proceedings to continue---High Court, in exercise of its Constitutional jurisdiction, set aside both orders and references pending against petitioner before Accountability Court---Proceedings were quashed in circumstances.

Nisar Ahmed Tarar for Petitioner.

Muhammad Altaf, Special Prosecutor, NAB for Respondent.

2018 M L D 2007

[Sindh]

Before Aqeel Ahmed Abbasi, Muhammad Ali Mazhar and Mrs. Ashraf Jahan, JJ

BUSHRA JABEEN and 367 others---Petitioners

Versus

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

Const. Petitions No.D-6274, D-6376, D-6822, D-6976, D-6977, D-6978, D-7043 and D-7570 of 2017, decided on 3rd September, 2018.

(a) Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001 (II of 2002)---

----S. 6---Sindh Private Educational Institutions (Regulation and Control) Rules, 2005, Rr. 7(1) & 7(3)---Constitution of Pakistan, Art. 18---Freedom of trade, business or profession---Regulation and reasonable restrictions---Section 6 of Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001 and Rules 7(1) & 7(3) of Sindh Private Educational Institutions (Regulation and Control) Rules, 2005---Vires of---Private schools---Tuition fees---Fixation of fee structure/schedule of private schools at the time of their registration and renewal of registration, with the approval of the Government, and enhancement of yearly tuition fee upto 5% of last fee schedule, with the approval of registration authority---Constitutionality---Plea on behalf of private schools that S. 6 of Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001 and Rr. 7(1) & 7(3) of Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 ("the impugned provisions") were ultra vires the Constitution as Art. 18 of the Constitution did not authorize imposition of any restriction upon the right of a citizen to carry on any lawful trade, business or profession---Validity---Right of a citizen to carry on any lawful trade, business or profession had been recognized as a Fundamental Right under Art. 18 of the Constitution, whose enforcement could be sought through process of law, however, such right was not absolute or unfettered, as it was subject to such qualifications, as may be prescribed by law---Private schools had not specifically argued that the 'impugned provisions' were unreasonable---Furthermore the private schools were unable to demonstrate as to how the "impugned provisions" did not qualify the test of reasonableness---By way of "impugned provisions", a mechanism had been provided for the purpose of regulating the private education sector which included registration of a private institution (school), its renewal after three years, fixation of fee structure/schedule with the approval of competent authority, provision for school building, class rooms, laboratory, library, playground, canteen, safe drinking water, pay scale and allowances in respect of teachers and staff, and also the curriculum to be taught in the schools, whereas, annual increase of tuition fee, in addition to its determination after every three years, had also been allowed up to 5% of last fee schedule---Said provisions were neither arbitrary and confiscatory nor contrary to Art. 18 of the Constitution, as no amount of tuition fee or profits to be earned by private schools had been fixed, rather it had been reasonably regulated as public policy---At the time of registration of an institution(school), such institution was at liberty to prepare the entire feasibility, and to calculate and determine the proposed fee structure/schedule to be charged from the students and get its approval from the Government/registration authority, whereas, it could repeat such exercise by revising the fee structure/schedule after every three years at the time of renewal of registration, however, subject to justification and approval by the competent authority---Such authority given to a private institution(school) firstly, at the time of initial registration, and secondly, at the time of renewal of registration after every three years, subject to justification and approval by the competent authority, did not in any manner, violate its right to carry on its business/ profession/occupation of running private institution (schools), as guaranteed in terms of Art. 18 of the Constitution -- Moreover, in addition to the said right to determine and to seek approval of its fee structure/schedule, further opportunity had been provided to a private institution(school) to seek yearly increase in its tuition fee upto 5% of the last fee schedule, subject to justification and approval of the registering authority---Such increase in school fee upto 5% was certainly, an additional benefit made available to a private institution(school), to the disadvantage of its students, as it created an additional financial burden upon the students and their parents every year, therefore, 5% increase could not be treated as an unreasonable restriction upon the right of private institution(school) as guaranteed in terms of Art. 18 of the Constitution---Provisions of S. 6 of the Sindh Private Educational Institutions (Regulation and Control) Ordinance, 2001, and R. 7 of the Sindh Private Educational Institutions (Regulation and Control) Rules, 2005, particularly, sub-rule (3), did not suffer from any constitutional defect or legal infirmity, hence the same were intra vires to the Constitution and the law---High Court declared that any enhancement in the annual tuition fee, over and above 5% from the last fee schedule, by private institutions (schools) was illegal and without lawful authority, therefore, private institutions (schools) shall either refund the amount of tuition fee collected in excess of 5% from the last fee schedule, to the students within three months, or shall adjust the said excess amount against future monthly fee of the students, however not beyond the period of three months---High Court observed that private education sector needed to be regulated in such a manner that, while permitting them to carry on the business/occupation of running private institutions(schools), they shall keep in mind the Constitutional mandate as given under Arts. 18, 25 & 25-A of the Constitution, and shall ensure that they charged a reasonable amount of tuition fee from the students, which shall not only be affordable but shall also commensurate to the services being provided to the students, whereas, "profit motive" must yield to the "service motive"---Constitutional petitions were allowed accordingly---[Shahrukh Shakeel Khan and others v. Province of Sindh and others reported as PLD 2018 Sindh 498 held to be not in conformity with judgments (East and West Steamship C v. Pakistan PLD 1958 SC (Pak) 41, Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44, Tariq Khan Mazari v. Government of Punjab PLD 2016 SC 778 and 7 member judgment of Arshad Mehmood PLD 2005 SC 193, Pakistan Broadcasters Association and 10 others v. Pakistan Electronic Media Regulatory Authority through Chairman and another PLD 2014 Sindh 630 and Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others PLD 2016 SC 692) of the Supreme Court hence of no legal effect.

Pakistan Broadcasters Association and others v. PEMRA and others PLD 2014 Sindh 630; Pakcom Limited and others v. Federation of Pakistan others PLD 2011 SC 44; Pakistan Broadcasters Association and others v. PEMRA and others PLD 2016 SC 692 and Arshad Mehmood v. Government of Punjab PLD 2005 SC 193 ref.

(b) Vires of legislation---

---Constitutionality of a provision---Law should be interpreted in such a manner that it should be saved rather than destroyed---Courts should lean in favour of constitutionality of legislation, therefore, it was incumbent upon the Courts to be extremely reluctant to strike down any law as unconstitutional.

Multiline Associate v. Ardeshir Cowasji PLD 1985 SC 423 and Elahi Cotton Mills PLD 1997 SC 582 ref.

(c) Constitution of Pakistan---

----Arts. 9 & 25A---Right to life---Scope---Right to life included right to education.

(d) Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Law/rule/ regulation regulating right to carry on any trade, business or profession---Such law/rule/regulation could only be declared as unconstitutional, if it was arbitrary, discriminatory or demonstratively irrelevant to the public policy.

Pakistan Broadcasters Association and 10 others v. Pakistan Electronic Media Regulatory Authority through Chairman and another PLD 2014 Sindh 630 ref.

Amar Naseer, for Petitioner. (in (C.P. No.D-6274 of 2017).

Abdur Razzak for Petitioner (in C.Ps. Nos.D-6977, 6978, 7043 and 7570 of 2017).

Ms. Mahreen Ibrahim for Petitioner (in C.Ps. Nos.D-6376 and 6976 of 2017).

Barrister Faizan Hussain Memon for Petitioner (in C.P. No.D-6822/2017)

Kamal Azfar along with Asad Shakil and Dhani Bux Malik for Respondent. (in C.Ps. Nos.D-6376 & 7570 of 2017).

Khalid Javed for Respondent (C.Ps. Nos.D-6822 and 6977 of 2017).

Muhammad Ali Lakhani for Respondent (C.P. No.D-6274/2017)

Ghulam Shabbir Shah, Addl. A.G. Sindh along with Ms. Rukhsana Mehnaz Durrani for the State.

Faisal Naqvi along with Shahan Karimi, Advocates for the proposed intervenor.

2018 M L D 2058

[Sindh]

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

TAISEI CORPORATION---Appellant

Versus

A.M. CORPORATION COMPANY (PVT.) LTD.---Respondent

High Court Appeal No.99 of 2015, decided on 7th October, 2016.

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

----Ss. 6, 3 & 10---Arbitration Act (X of 1940), Ss. 33 & 30---International arbitration---Foreign arbitral award---Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011---Nature and application---Exclusive jurisdiction upon foreign arbitral awards---Scope---Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 was primarily a procedural law, which had not repealed the Arbitration Act, 1940, but had only repealed the Arbitration (Protocol and Convention) Act, 1937; and thus domestic awards had to follow the path of the Arbitration Act, 1940 and after enactment of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011; all foreign awards had to sail through the waters of the said Act---Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 merely changed procedures applicable to certain kind of arbitral awards and such procedural laws had retrospective effect---Notwithstanding the fact that an arbitration commenced before the enactment of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011), if the award for the same was announced after said enactment, then provisions of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 would be applicable to such an arbitral award.

Air League of PIAC Employees v. Federation of Pakistan 2012 PLC (C.S.) 89; Rehan Saeed Khan v. Federation of Pakistan 2001 PLC (C.S.) 1275 and Muhammad Amin Qamar v. Bank of Punjab 2013 PLC 291 rel.

Zahid F. Ebrahim for Appellant.

Malik Muhammad Ejaz for Respondent.

2018 M L D 2079

[Sindh]

Before Adnan Iqbal Chaudhry, J

FAHMINA BUTT: PETITION UNDER SECTIONS 278 AND 372 OF SUCCESSION ACT, 1925 FOR GRANT OF LETTER OF ADMINISTRATION AND SUCCESSION CERTIFICATE IN RESPECT OF MOVABLE AND IMMOVABLE PROPERTIES LEFT BY DECEASED JAVAID BUTT: In the matter of:

S.M.A. No.271 of 2017, decided on 12th April, 2018.

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

----Ss. 278 & 372---Sindh Chief Court Rules (O.S.), R.400---Islamic Law---Radd (Return), doctrine of---Applicability---Letter of Administration and Succession Certificate---Deceased was Sunni Muslim who was survived by only two daughters---Held, if deceased had no son then his two daughters would fall in the category of sharers and inherit two third (2/3) of the estate---If there were no residuaries, the remaining one-third (1/3) of the estate was to return and had become inheritable by the two daughters as sharers under doctrine of Radd---Record did not reflect any residuary and none had come forth, therefore, both the daughters would inherit the entire estate---High Court issued Letters of Administration and Succession Certificate to the petitioner as per Rules to administer estate of deceased in accordance with Muslim Personal Law applicable to the deceased---Application was allowed in circumstances.

Para. 66 of Muhammadan Law by Mulla ref.

(b) Islamic Law---

---Inheritance---Radd (Return), doctrine of---Applicability---Scope.

Para. 66 of Muhammadan Law by Mulla ref.

Syed Ziauddin Nasir for Petitioner.

2018 M L D 1

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan and Mirza Viqas Rauf, JJ

GHULAM QADIR KHAN---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and another---Respondents

W.P. No.1887 of 2017, decided on 9th August, 2017.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iii)(iv)(ix)(x), (b) & 25(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Allegations against accused were that of illegal gratification and pecuniary advantages, cheating and misappropriation with members of public at large---Suspension of sentence---Abscondence---Plea bargain, application for---Accused was convicted and sentenced by Trial Court for imprisonment for five years---Validity---Accused firstly entered into plea bargain agreement with NAB authorities but absconded later on---After filing of Reference, accused did not appear before Trial Court and was declared proclaimed offender---Accused was arrested and sent to judicial lock-up and then Supplementary Reference was filed---Such a long unexplained abscondence of accused was a corroboratory factor which could not be ignored as the same, prima facie, had indicated guilt of accused---Accused was not entitled to be enlarged on bail merely because his co-accused was acquitted by Trial Court---Conduct of accused did not deserve him to be treated with leniency---Entering petitioner into plea bargain agreement himself with NAB authorities tantamount to admission of commission of allegations levelled against him---Accused failed to establish any malice or ill-will on the part of complainant for false implication of accused---Prima facie, there was sufficient incriminating material available on record to connect accused with commission of alleged offences---Accused had failed to make out any ground for suspension of sentence---Constitutional Petition was dismissed in circumstances.

Zahid Ali Noor v. NAB and others 2017 PCr.LJ 147; Rauf Bakhsh Kadri v. The State and others 2003 MLD 777; Rafiq Haji Usman v. Chairman NAB and another 2015 SCMR 1575 and Abdul Aziz Memon and others v. The State and others PLD 2013 SC 594 distinguished.

Fazal-e-Hadi v. National Accountability Bureau Sindh through Director General Sindh and others 2008 PCr.LJ 171; Manzoor Ahmed v. The State PLD 2003 Kar. 197 and Islam-ud-Din Shaikh v. The State PLD 2003 Kar. 266 rel.

Ch. Abdur Rahman Nasir for Petitioner.

2018 M L D 19

[Lahore]

Before Habib Ullah Amir, J

Mst. RASHEEDAN BIBI and others---Petitioners

Versus

ABDUL RAZZAQ---Respondent

Civil Revision No.3378 of 2014, heard on 14th April, 2017.

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

----O. IX, R. 13 & O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 8---Limitation Act (IX of 1908), Art. 181---Suit for possession---Ex-parte order, setting aside of---Limitation---Natural justice, principles of---Applicability---Suit was fixed for arguments on an application and ex-parte proceedings were initiated against the applicants-defendants---Applicants-defendants moved an application for setting aside ex-parte order but same was dismissed---Suit was decreed after recording evidence of plaintiff---Validity---Ex-parte order or proceedings could be set aside any time before conclusion of trial provided application for the same was moved within a period of three years---Disposal of application of defendants in a summary manner without providing an opportunity was unwarranted and not a proper exercise of jurisdiction---No opportunity was provided to the defendants to substantiate their claim in the application for setting aside ex parte order---No period of limitation had been provided for setting aside ex parte order and period of limitation had been provided for setting aside an ex parte decree only---Law favoured adjudication of lis after providing opportunity of hearing to both the parties---Case was fixed for arguments on application when ex-parte proceedings were initiated---Ex-parte order in the suit was not sustainable as applicants-defendants were to be treated in accordance with law---Trial Court could have only passed ex-parte order on the application fixed for arguments---Setting aside of ex-parte proceedings was not necessary as defendants had already filed written statement---Applicants-defendants might join proceedings to contest suit by cross examining the witnesses of opposite side and producing own evidence---Even if the defendants had not filed written statement they could be in a position to secure dismissal of suit by raising objections to the jurisdiction of court orally---No legal bar existed to allow the defendants to take part in the proceedings to defend their right---Applicants-defendants were to be given a chance of hearing before any order was passed against their interest---Applicants-defendants even if their application for setting aside ex-parte proceedings was dismissed could appear and defend the suit---Defendants who had been proceeded against ex-parte could take part in the subsequent proceedings as of right---Trial Court committed illegality by not allowing the defendants to lead evidence---Appellate Court dismissed the appeal in a mechanical manner---Both the Courts below had committed illegality while passing the impugned judgments and decrees---Impugned judgments and decrees were set aside and application for setting aside of ex-parte order was accepted---Matter was referred to the Trial Court with the direction to decide the same on merits after hearing the parties---Revision was allowed in circumstances.

Mohammad Zaman v. Abdul Razzaq and 56 others 2005 CLC 689; Mehmood Hussain Shah and others v. Mst. Paravizi Bibi and others 2013 YLR 1584 and Police Department through Deputy Inspector-General of Police and another v. Javid Israr and 7 others 1992 SCMR 1009 rel.

(b) Appeal (civil)---

----Interim order would merge in final judgment and any party aggrieved of interim order might challenge the same while assailing final judgment in appeal---When appeal was filed against ultimate decision then whole case including interim orders passed in the case would reopen and could be challenged before Court of appeal hearing the appeal filed against final decision.

Shamshad Khan and another v. Arif Ashraf Khan and 2 others 2008 SCMR 269 and Mst. Khurshid Begum and others v. Ahmad Bakhsh and others PLD 1985 SC 405 rel.

(c) Administration of justice---

----No one should be condemned unheard.

(d) Administration of justice---

----Rules or procedure were meant to advance justice to preserve right of litigants and they were not to be interpreted in a way to hamper administration of justice.

(e) Interpretation of statutes---

----Rules or procedure were meant to advance justice to preserve right of litigants and they were not to be interpreted in a way to hamper administration of justice.

Shahzad Mahmood Butt for Petitioners.

Malik Abdul Munir for Respondent.

2018 M L D 43

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Ch. Abdul Aziz, JJ

ADNAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 580 of 2012 and Murder Reference No. 151 of 2012, heard on 16th March, 2017.

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

----Ss. 302, 109 & 34--Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged for the murder of brother of complainant---Ocular account was furnished by the witnesses including complainant---FIR showed that murder was committed by two persons; out of these two persons, one was nominated whereas the other assailant was shown as unknown---No description of the unknown person was mentioned in FIR---Accused/appellant was subsequently implicated in the case in place of unknown person through supplementary statements of complainant and witnesses---Record showed that before moving application for the registration of case, it was within the knowledge of complainant that unknown person was none other than the appellant, however, neither in the FIR nor in the inquest report, the name of appellant was mentioned---Appellant was subjected to identification test, two witnesses, though, according to their claim had nominated accused-appellant in their statement recorded under S. 161, Cr.P.C., however, both of them were made to join the identification proceedings---Prosecution had failed to offer any plausible explanation as to why the identification test was conducted through the said two witnesses---No reliance could be placed on the claim of said witnesses---Accused remained absconded; warrants and proclamation were brought on record through official witness, testimony of which failed to satisfactorily prove the service of warrants and proclamation---Circumstances established that there were many doubts in the prosecution evidence about the involvement of the accused in the commission of offence, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

(b) Police Rules, 1934---

----Ch. 25, R.35---Inquest report---Scope---Inquest Report was a part of method/system to keep a check on subsequent fabrication of record and was to be prepared by the police official, who paid a visit to the crime scene for the purpose of investigation, on the day of occurrence---Inquest report was prepared on the completion of investigation and give some reflection about the witnesses in attendance, the weapon used in the commission of offence, detail of injuries on the body of the deceased, presence of the crime empties at the crime scene, the nature of weapon and the brief facts of the case---Such information could easily be gathered from the perusal of its relevant columns.

Ahmad Nawaz and others v. The State and others 2016 PCr.LJ 1267 and Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54 rel.

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

----Art. 22---Identification parade---Object and scope---Identification test was normally conducted when the accused was not previously known to the witnesses and they had his momentary glimpse---Identification test become imperative to hold if the witnesses claimed that they could identify the accused, if brought before them.

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

----Art. 22---Identification parade---Conditions---Primarily, it would be ensured that accused must not be exposed to the witnesses---Accused would be produced before the Magistrate with muffled face---At the time of identification test, accused was to be mixed up with dummies in minimum ratio of 1-8---Such dummies must be of nearer to similar description of the accused---In order to ensure that the accused was actually mixed up with 8/9 persons or dummies, their names, parentage, address and occupation was to be incorporated in the memo of identification test---If such persons or dummies were under trial prisoners, then the particulars of the case in which they were arrested was to be incorporated.

Shafqat Mehmood and others v. State 2011 SCMR 537 rel.

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

----Art. 22---Identification parade---Significance---Simple identification of the accused had no legal significance---Accused was to be identified with reference to the role played by him towards the commission of offence.

Mehmood Ahmed and 3 others v. The State 1995 SCMR 127; Muhammad Fayyaz v. The State 2012 SCMR 522 and Azhar Mehmood and others v. The State 2017 SCMR 135 rel.

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

----Ss. 302, 109 & 34--Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Identification parade---Reliance---Record showed that the identification parade was not conducted in accordance with law---Accused was mixed up with seven dummies, (under trial prisoners) without disclosing their addresses, occupation and the particular of the cases in which they were arrested---No role was assigned to the accused by any of the witness during identification proceedings---Such identification test was of no evidentiary value, hence could not be considered in any manner for maintaining the conviction and sentence.

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

----Ss. 302, 109 & 34--Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Recovery of crime weapon (rifle .222-bore)---Reliance---Rifle though matched with the crime empties of similar bore secured from the crime scene but its recovery was doubtful---Recovery of rifle was witnessed by the witness, but in his examination-in-chief, he omitted to mention about the recovery of the rifle---Crime empties which were stated to be recovered from the crime scene and subsequently were found to be wedded with the rifle found no mention in the column No. 23 of the inquest report---Report of Forensic Science Laboratory suggested that the crime empties were fired from the rifle, which alone was not sufficient for awarding conviction and sentence to the accused---In order to prove that the shots were fired by the accused, the prosecution had to bring on record confidence inspiring and trustworthy ocular account.

(h) Criminal trial---

----Conviction---Abscondance---Effect---Person could not be convicted on the basis of abscondance alone---Abscondance of the accused could provide corroboration, though frail in nature.

Qamar Sajjad Chaudhry and Javaid Iqbal Saif for Appellants.

Ch. Liaquat Ali Sandhu for the Complainant.

Mian Muhammad Awais Mazhar Deputy Prosecutor General for the State.

2018 M L D 75

[Lahore]

Before Shahid Jamil Khan, J

SAJJAD HUSSAIN and others---Petitioner

Versus

DEPUTY COMMISSIONER and others---Respondents

W.P. No.6594 of 2017, decided on 15th May, 2017.

Constitution of Pakistan---

----Arts. 25 & 199---Wheat Procurement Policy, 2017---Constitutional petition---Discrimination---Violation of policy---Petitioners were agriculturalists and were aggrieved of non-providing of Bardana (Gunny Bags) by the authorities---Plea raised by petitioners was that distribution of Bardana was discriminatory and violative of Wheat Procurement Policy, 2017---Validity---Held, Procurement policy was not capable of being applied discriminately and discretionary powers were used in nontransparent manner---High Court declined to strike down Policy in presence of facts that crop was laying under the sky in open field and delay in its collection could cause loss of crop which was a national asset but grower would also suffer as they were left on mercy of investors who were at liberty to determine forced sale price under compelling circumstances---Provincial government had undertaken and ensured that remaining quantity of Bardana would be distributed in fair and transparent manner, however, High Court directed the Provincial government to ensure that bags would be distributed equally amongst similarly placed growers and that small farmers having minimum cultivated holdings should be given preference and interest of those growers was also be protected who could not approach the High Court---Constitutional Petition was allowed accordingly.

Messrs Mustafa Impex v. The Government of Pakistan PLD 2016 SC 808; Amanullah Khan and others v. The Federal Government of Pakistan PLD 1990 SC 1092; Government of NWFP v. Majee Flour Mills (Private) Limited 1997 SCMR 1804; Muhammad Amin Muhammad Bashir v. Government of Pakistan 2015 SCMR 630; I.A. Sharwani and others v. Government of Pakistan 1991 SCMR 1041; Govt. of Balochistan through Addl. Chief Secretary v. Azizullah Memon PLD 1993 SC 341 and Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and other v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621 ref.

Malik Muhammad Zafar Iqbal, Advocate for the petitioners.

Ch. Abdul Ghani, Mahmood Ashraf Khan and Ch. Muhammad Siddique, Advocates for the petitioners in connected writ petitions.

Messrs Inam Ullah Khan, Malik Abdul Ghaffar Sial, Mian Tahir Iqbal, Mahar Shah Muhammad Sahu, Mahr Allah Bakhsh Hiraj, Haji Tariq Aziz Khokhar and Tariq Mahmood Dogar, Advocates for the petitioners in connected contempt petitions.

Barrister Khalid Waheed and Mirza Muhammad Saleem Baig, Addl. A.-G., Punjab, Malik Muhammad Bashir Lakhesir, Assistant Advocate General, Punjab, Shaukat Ali, Secretary Food, Asif Bilal Lodhi, Director Food, Government of the Punjab and Zahoor Ahmad, Assistant Commissioner, Kot Addu and Gohar Mushtaq Bhutta, Director Anti-Corruption Establishment, Multan for Respondents.

2018 M L D 102

[Lahore]

Before Abdul Sattar, J

KHALID AZIZ and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No.1007 of 2014, decided on 10th May, 2017.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 31---Judgment---"Speaking judgment"---Points for determination---Scope---Appellate Court without discussing oral evidence of parties and points for determination raised during the hearing proceeded to reverse the findings of Trial Court through a half page findings---Judgment rendered by the Appellate Court was not a "speaking judgment"---Oral evidence led on record had been simply ignored and not discussed---Contentions of the parties raised during the hearing of appeal had not been mentioned in the impugned findings---Appellate Court had ignored the basic provision contained in O. XLI, R.31, C.P.C.---Appellate Court should state points arising for determination and its decision thereon and reasons for its decision---'Points for determination' referred to all the important questions involved in the case---Reasons should be given in the judgment for the decision arrived at---Appellate Court was required to state its own reasons for arriving at its conclusion---Appellate Court had failed to mention the points for determination or record his own independent reasons for arriving at its conclusions different from the Trial Court opinion/findings---Impugned judgment passed by the Appellate Court was not in accordance with law which was set aside---Appeal should be deemed to be pending before the Appellate Court and same should be decided afresh in accordance with law after opportunity of hearing to the parties---Revision was allowed in circumstances.

Syed Iftikhar-ud-Din Haidar Gardezi and 9 others v. Central Bank of India Ltd. Lahore and 2 others 1996 SCMR 669; Punjab Industrial Development Board v. United Sugar Mills Limited 2007 SCMR 1394 rel.

Mian Javed Jalal and Saqib Naveed Bhatti for Petitioners.

2018 M L D 117

[Lahore]

Before Shahid Bilal Hassan, J

GHULAM HUSSAIN---Petitioner

Versus

MUHAMMAD RASHEED and 6 others---Respondents

Civil Revision No.2301 of 2011, decided on 20th March, 2017.

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

----S. 13---Suit for pre-emption---Death of original pre-emptor during pendency of suit---Non-appearance of all the legal heirs in witness box---Effect---Name of a legal heir/witness of deceased pre-emptor not mentioned in pleadings---Statement of a legal heir/witness beyond the pleadings---Admissibility---Applicant/defendant contended that the statement of only one legal heir as a witness, without power of attorney on behalf of other legal heirs, was inadmissible and said witness was not present at the time making of Talb-e-Muwathibat as his name was mentioned neither in the plaint nor in the notice of Talb-e-Ishhad---Respondents/plaintiffs contended that first appellate court had wrongly modified the judgment of Trial Court by giving equal rights of pre-emption to both the co-sharers---Validity---In order to succeed a suit for possession on the basis of pre-emption, it was mandatory and imperative as well as essential to prove the performance of Talbs in accordance with law, as elaborated under S.13 of the Punjab Pre-emption Act, 1991 and when Talbs were not proved as per dictates and requirement of law, the same was fatal to the suit---In the present case, only one legal heir/son appeared as pre-emptor on his behalf and on behalf of the other legal heirs of original pre-emptor, but he failed to produce any power of attorney executed in his favour authorizing him to appear on their behalf---Said witness deposed that he was present at the time of making of Talb-e-Muwathibat by his deceased father, but the plaint as well as alleged notice of Talb-e-Ishhad was silent in that regard as neither in the plaint nor in the notice of Talb-e-Ishhad his name emerged, rather name of other witnesses including the informer appeared; meaning thereby that the statement of said legal heir was beyond the pleadings and the same was inadmissible---Right to acquire suit property by exercising right of pre-emption accrued on the date of sale but when at that time the legal heirs did not have such right, coupled with non-appearance at the time of making of Talb-e-Muwathibat, the suit was liable to be dismissed on such single score, as making of Talb-e-Muwathibat had not been proved by the respondents/plaintiffs in accordance with law---Even if right of pre-emption of respondents/plaintiffs was presumed, even then non-appearance of all legal heirs turned fatal to the respondents/plaintiffs, as right of pre-emption was a personal right which could be exercised personally, which was missing in the present case---Respondents/ plaintiffs had failed to prove performance of Talb-e-Muwathibat as per mandate of law, the question of subsequent Talbs lost their value and no decree for possession through pre-emption could be passed in their favour---Two courts below had failed to appreciate evidence on record and impugned judgments were set aside being not sustainable in the eye of law---Revision was accepted accordingly.

Muzaffar Hussain v. Mst. Bivi and 7 others PLD 2012 Lah. 12; Humayun Naseer Cheema and 3 others v. Muhammad Saeed Akhtar and others 2007 CLC 819 and Mst. Sahib Jamala v. Fazal Subhan and 11 others PLD 2005 SC 977 ref.

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

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Preemption suit---Talbs, performance of---Non-appearance of independent witness before whom Talb-e-Muwathibat was allegedly made---Adverse presumption---Scope---Respondents/plaintiffs had failed to produce the witness before whom allegedly the original pre-emptor performed Talb-e-Muwathibat as his evidence could be termed as that of independent witness because the other witness produced was a legal heir of the original pre-emptor and was an interested witness; therefore, adverse presumption under Art. 129(g) Qanun-e-Shahadat, 1984 arose against the respondents/plaintiffs.

Muhammad Hussain and others v. Ehsan Ullah 2008 MLD 382 ref.

Muhammad Anwar Chaudhry for Petitioner.

2018 M L D 127

[Lahore]

Before Abdul Sami Khan, J

SALAMAT---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.15456-B of 2016, decided on 17th March, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 342, 379, 337A(i), 337-F(i), 337-L(2), 148 & 149---Qatl-i-amd, wrongful confinement, theft, hurt, rioting armed with deadly weapon, unlawful assembly---Bail, grant of---Further inquiry---Although accused was named in FIR yet there was unexplained delay of one day in registration of FIR---Initially FIR was registered for offences which were bailable except one which did not fall within prohibitory clause of S. 497, Cr.P.C.---After death of complainant i.e. twelve days after the alleged occurrence provisions of offence under S. 302, P.P.C. were added in the case---Report of Forensic Science Agency showed that death of complainant occurred due to heart disease and not as a result of injuries sustained by him during the alleged occurrence---No specific role in the commission of offence had been assigned to the accused and co-accused and only general allegation of giving beating to the complainant had been levelled against him---Benefit of doubt could be given to the accused at bail stage---Accused was non-convict, behind the bars since almost six months and trial had not yet concluded---Investigation to the extent of accused had already been completed and he was no more required for further investigation---Mere heinousness of offence or commencement of criminal proceedings was no ground to refuse bail if otherwise he had become entitled to the concession of bail---No useful purpose would be served by keeping accused behind the bars at this stage---Case of accused was one of further inquiry covered by subsection (2) of S. 497, Cr.P.C.---Bail was granted accordingly.

Muhammad Afzal Chaudhary for Petitioner.

Irfan Zia, Deputy Prosecutor General for the State and Afzaal, SI with record.

2018 M L D 136

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed, J

SHAHID ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Appeal No.319 of 2014, decided on 13th March, 2017.

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

----Ss. 302(b) & 201---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Accused-appellant was charged for the murder of the deceased---No direct evidence was available to connect the accused with the commission of offence---Witness had deposed that he had seen the accused-appellant leaning over a package of blue color cloth---Statement of witness suggested the presence of accused-appellant with a package at the spot and thus by no stretch of imagination, it could be presumed that package contained the dead body---No blood was seen at the place where witness had seen the accused having package with him---Prosecution did not have any evidence direct or otherwise to establish that accused-appellant had thrown the dead body in the well---If the accused-appellant, as alleged, had committed the murder for nasal pin and earrings of the deceased, there was no need to undertake such exercise---Medical evidence was not in line with the hypothesis introduced by the witness---Record showed that deceased was done to death on 14.9.2013 between 8.00 a.m. to 5.00 p.m. and autopsy of the dead body was done at table at 8.30 p.m. on 16.9.2013; dead body was said to have been rapped in white plastic sack and not in blue cloth in putrefied state---Statement of witness showed that the duration between death and autopsy could not be more than 60 hours, while as per Medical Officer, the time ranged between 50 to 70 hours---Findings of Medical Officer, in such a situation, did not advance the prosecution case being inconsistent with medical report---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused-appellant---Accused-appellant was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

(b) Medical jurisprudence---

----Dead body remaining in water---Putrefaction of dead body---Scope---Dead body lying in water putrefied slowly because, exclusion of air; protection from cloths if any; low temperature of water as compared to atmospheric temperature.

Parikh's textbook of Medical Jurisprudence and toxicology 5th Edition page, 165 for rel.

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

----Ss. 302(b) & 201---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Recovery of gold ornaments of deceased---Effect---Record showed that one gold nasal pin and a pair of earrings were recovered---Said articles were introduced through a supplementary statement of complainant---Record revealed that after the recovery of dead body, complainant on the day one, broke through the deceased's room and searched all her household items---Omission to mention said items in the statement was mind boggling---Said articles were produced by the prosecution witness and not by the accused-appellant himself nor secured pursuant to any disclosure attributed to him---Recovery of articles, was inconsequential in circumstances.

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

----S.161---Supplementary statement---Evidentiary value---Supplementary statement was essentially a statement recorded under S. 161, Cr.P.C. and could not be equated with FIR nor could be read in extension thereof.

(e) Criminal trial---

----Circumstantial evidence---Reliance---In order to sustain the charge, circumstantial evidence could be relied upon only when various links constituted a chain of circumstances to create a nexus between the crime and the culprit, leaving no space to entertain any hypothesis of innocence.

Syed Najeeb Saddat Bokhari for Appellant.

Nemo for the Complainant.

Qaisar Mushtaq, ADPP and M. Ilyas ASI for the State.

2018 M L D 149

[Lahore (Multan Bench)]

Before Abid Aziz Sheikh and Jawad Hassan, JJ

KHALID NADEEM---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

I.C.A. No.96 of 2017, decided on 17th May, 2017.

National Database and Registration Authority Ordinance (VIII of 2000)---

----Ss. 17(1) & 30(1)(d)---Non-Surrendering of CNIC of the deceased---Penal consequences--- Scope---Petitioner under constitutional jurisdiction of the High Court had sought directions to NADRA to get recovered original CNIC of his deceased father from the possession of his brother/respondent---Respondent (brother) denied possession of original CNIC of their late father---Father of petitioner and respondent was undisputedly, holding a CNIC---Section 17(1) of the National Database and Registration Authority Ordinance, 2000 provided that in case of death of holder of a Card, inter alia, the heirs were bound to surrender Card of deceased within 60 days of such death---Refusal or failure to produce or surrender the card entailed penal consequences under S.30(1)(d) National Database and Registration Authority Ordinance, 2000 and in view of clear provisions of Ss. 17(1) and 30(1)(d) National Database and Registration Authority Ordinance, 2000, it was the legal duty of NADRA to direct the concerned person to surrender the original CNIC of the deceased, if same was not already produced---If the legal heirs were not in possession of original Card of deceased, they might satisfy the concerned Authority to that effect---NADRA was directed by the High Court to proceed in the matter strictly in accordance with provisions of National Database and Registration Authority Ordinance 2000---Intra-court appeal was allowed accordingly.

Ijaz Ahmad Toor for Appellant.

Zia ur Rehman Abid for Respondents Nos. 1 and 2.

2018 M L D 162

[Lahore (Multan Bench)]

Before Abdul Rahman Aurangzeb, J

MUREED HUSSAIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.7503 of 2016, heard on 26th April, 2017.

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

----Ss. 15 & 21---Eviction petition---Service of notice to tenant---Procedure---Non-appearance of tenant despite personal service---Ex parte proceedings against tenant---Application of tenant to set aside ex parte proceedings was dismissed---Tenant denied personal service---Mechanism of service---Purpose of legislature---Scope---Petitioner/ tenant contended that he was neither served nor any notice was received by him so the Rent Controller had wrongly dismissed his application for setting aside of ex parte proceedings---Respondent/ landlord contended that due course for the service of tenant was adopted and despite personal service of tenant, he remained unable to appear before the Rent Controller---Question related to the appearance of the petitioner in response to a notice served upon him which was denied---Language of S. 21(1) of Punjab Rented Premises Act, 2009 was clear in terms that the process of appearance for a summary case would be made not only by the Process Server but in addition to this, the notice was to be sent to the tenant through registered acknowledgement-due and courier service---Notice, as prescribed in the Sched., would contain the copies of application and the documents relied upon, annexed with the eviction petition---Scrutiny of the notice, which was allegedly served upon the petitioner (tenant) reflected that same had not fulfilled the requirements of law and only copy of ejectment petition was annexed with the notice, however, other documents filed along with the ejectment petition were not sent to the petitioner thus violating S. 21(2) of Punjab Rented Premises Act, 2009---Record showed that on the very next date after institution of ejectment petition, the respondent produced copy of postal receipt and the Court also observed that the petitioner had been duly served according to the report of Process Serving Agency, and the ex parte proceedings were initiated against the petitioner---Intention of legislature while attaching the condition of registered post acknowledgment-due and courier service was not merely procedural but the real intention behind was that as the matter related to summary proceedings, so the effective service must be accompanied with acknowledgement-due card---Purpose of acknowledgement-due card was that the actual service upon the respondent was to be effected and in response, if the respondent did not opt to appear in the Court, the Court had option to proceed against him ex parte---Although the Rent Controller got receipt of postal envelope cover, but did not observe about the status of acknowledgement-due card whether the same was served upon the petitioner (tenant) or otherwise---Fact of non-submission of acknowledgement-due card was completely overlooked by Rent Controller when the petitioner had categorically denied his personal service and also stated the same in his application supported with affidavit---Record revealed that on alleged notice served upon the petitioner, there was no mentioning of any I.D. card number of either of the petitioner or witnesses from where it could be established that the petitioner was the same person to whom intimation had been sent through the notice, therefore, without any proper identification of the alleged witnesses as well as the person who was served with the notice, could not be considered valid---All such aspects were completely over-sighted by both the courts below---Rent Controller had also not examined that the specification of rented house mentioned in the ejectment petition without having any number of the house and merely stated that the house was situated in particular Khatta with specific share---Such location of residence of petitioner for the purpose of service could not be identified with the mentioned specification---Petitioner who resided in a densely populated area of the city where the streets, roads and other nearby famous places existed, but, the notice, which was allegedly served by the Process Server, did not depict any exact location of the residence---Notice merely mentioned that the petitioner had been served personally---Without ascertaining the exact location of the house where the petitioner resided, it was not possible for the Process Server to identify and that too without any I.D. card or without associating any notable person of the locality, therefore, the service upon the actual person could not be said to be effected---Rent Controller, therefore, did not observe the myth of provisions of S. 21(3)(b) of Punjab Rented Premises Act, 2009 and wrongly accepted the service of notice upon the petitioner as correct, and proceeded with ex parte order, which was against the law and fact and could not be allowed to be sustained on the principle of maxim: "Acommuni observatia non est recedendum"---Provisions of S. 21(4) of Punjab Rented Premises Act, 2009 with the word "may" would provide the tenant to file leave to contest along with the application for setting aside ex parte proceedings but such direction was not mandatory in nature, hence, mere non-filing of the application for leave to contest was not fatal for adjudication of application for setting aside ex parte proceedings---Court could not pass order of its liking solely on the basis of its vision and wisdom, rather it was bound and obliged to render decision in accordance with law---In the present case, the orders passed by both the courts below were in violation of express provisions of law, therefore, the powers of High Court, under constitutional jurisdiction, to interfere in such an order on the touchstone of the grounds laid down and the parameters set forth in Art. 199 of the Constitution was permissible---Impugned orders of the two courts below were set aside and the ejectment petition filed by the landlord would be deemed to be pending before the Rent Controller---Parties were directed to appear before the Rent Controller---Constitutional petition was allowed accordingly.

Ghulam Hassan v. Jamshaid Ali and others 2001 SCMR 1001; In the matter of: Human Rights cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759; Zaffar Iqbal v. Mst. Maqsood Begum and 2 others PLD 1987 AJ&K 156; Ehsan Abbas v. Khush Abbas and others PLD 2011 Lah. 311; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 and Abdul Majeed Khan through L.Rs. and others v. Ms. Maheen Begum and others 2014 SCMR 1524 ref.

Mahmood-ul-Hassan for Petitioner.

Qazi Atta Ullah for Respondents.

2018 M L D 186

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabbir, J

NASIR IFTIKHAR---Petitioner

Versus

NASEER AHMAD---Respondent

Civil Revision No.683 of 2016, decided on 7th February, 2017.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 1 (2) (3), O. VII, R. 11 & O. XXXVII, Rr. 2 & 3---Summary suit on the basis of cheque---Earlier suit on the same cause of action was dismissed as withdrawn on the basis of compromise outside the court---No permission to file fresh suit was obtained from the court---Effect---Plaint, rejection of---Scope---Defendant moved application for rejection of plaint on the ground that earlier suit on the same cause of action had been dismissed as withdrawn unconditionally and subsequent suit was barred---Application for rejection of plaint was dismissed by the Trial Court---Validity---Plaintiff did not ask for permission to file fresh suit while withdrawing the earlier suit---No permission for filing the present suit was granted to the plaintiff---Earlier suit was not withdrawn on the ground of formal defect or likelihood of failure of the same---Said suit was withdrawn on the basis of alleged compromise of matter outside the Court---Terms of compromise were not placed before the Court---Plaintiff was precluded from re-agitating the same cause of action after having withdrawn the earlier suit unconditionally on the basis of compromise---Subsequent suit was barred under O. XXIII, R. 1(3), C.P.C.---Findings recorded by the Trial Court were not in accordance with law---Suit filed by the plaintiff could not be allowed to proceed further---Application for rejection of plaint was allowed and impugned order was set aside---Revision was allowed in circumstances.

Muhammad Yar (deceased) through L.Rs. and others v. Muhammad Amin (deceased) through L.Rs. and others 2013 SCMR 464; Azhar Hayat v. Karachi Port Trust through Chairman and others 2016 SCMR 1916; Ghulam Abbas and others v. Mohammad Shafi through L.Rs. and others 2016 SCMR 1403; Messrs Sindh Engineering (Pvt.) Ltd. v. Otis Elevator Company and others 2004 YLR 59; Shah Walayat and 3 others Muhammad Akram and another 2003 MLD 961 and Rozi Khan Gojar and another v. Mst. Rehmat Bibi 2004 CLC 466 rel.

Ch. Imran Khalid Amratsari for Petitioner.

2018 M L D 320

[Lahore]

Before Jawad Hassan, J

TANZEELA BUTT---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SARGODHA and others---Respondents

W.P. No.38286 of 2016, heard on 6th October, 2017.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Suit for recovery of dower---Third party (brother of wife) executing agreement between the spouses---Effect---Rights and obligations of the third party---Scope---House as dower incorporated in Nikahanma---Scope---Non-mentioning of details of such house---Effect---Petitioner/ex-wife contended that as per agreement executed at the time of marriage she was entitled to recover deferred dower as well as the house incorporated in the Nikahnama---Husband contended that she was not entitled for the house as he had paid the remaining dower---Validity---Record revealed that an agreement was executed between the brother of the petitioner and the respondent and the petitioner was neither party nor signatory of the said agreement---Terms of the agreement showed that after the death of the respondent, the petitioner would be his legal heir and in case of death of the petitioner, her brother would be her legal heir and would become exclusive owner of the legacy of the petitioner---High Court observed that the legal heir could only be determined according to the Shariah and law of inheritance, thus, agreement in question had no legal value in the eye of law since the same was not executed between the petitioner and the respondent---Right of third party could not confer rights or impose obligations on another person except the party thereto---Petitioner neither produced her brother as witness who was alive, so best evidence was withheld by her---No details of the house were given in Nikahnama and wordings were vague and did not specify as to which property it referred to, therefore, the petitioner, who was not even a party to the said agreement, had failed to establish her case---Respondent proved through cogent evidence that at the time of divorce he gave Rs. 100,000/- to the petitioner regarding as unpaid dower and maintenance allowance for Iddat period which was not rebutted rather admitted by the petitioner---By receiving the whole amount mentioned in Nikahnama she had waived off her right of the property in lieu of dower---No illegality or infirmity having been noticed in the impugned judgment of Appellate Court, Constitutional petition was dismissed accordingly.

Lalan v. Maqsood Mai 2014 YLR 2053; Karachi Water and Sewerage Board v. Karachi Electric Supply Corporation 2012 CLD 1225; Mastersons v. Ebrahim Enterprises 1988 CLC 1381; Muhammad Younus v. Kaniz Fatima PLD 2000 Kar. 348; Saadia Usman v. Muhammad Usman Iqbal Jadoon 2009 SCMR 1458 and Syed Shoukat Gillani v. Mst. Ansar Gillani 2017 MLD 1677 ref.

Saira Zulfiqar v. Additional District Judge, Multan 2008 MLD 1673 distinguished.

Petitioner in person.

Azhar Maqbool Shah for Respondent.

2018 M L D 338

[Lahore]

Before Shahid Waheed, J

Messrs AMMAR TEXTILE (PVT.) LTD. through Chief Executive---Petitioner

Versus

KHURRAM MAQSOOD and another---Respondents

Writ Petition No.41528 of 2017, heard on 3rd November, 2017.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Constitution of Pakistan, Art. 10-A---Application under S.12(2), C.P.C.---Judgment, setting aside of---Imposition of condition---Scope---Right of fair trial---Scope---Petitioner filed an application under S. 12(2), C.P.C. assailing judgment and decree passed against him on the plea of fraud and misrepresentation---Trial Court, before deciding application under S. 12(2), C.P.C., directed petitioner to deposit Rs. 1,000,000/- in court on failure to such deposit, application was dismissed---Order passed by Trial Court was maintained by Lower Appellate Court---Validity---No provision of law existed to impose of condition to deposit certain amount for taking cognizance of application under S. 12(2), C.P.C.---Imposition of condition to deposit Rs. 1,000,000/- was not only against Islamic dispensation of justice but also violative of provisions of Art. 10-A of the Constitution which had guaranteed fair trial for determination of rights of parties---Courts below exercised their jurisdiction illegally and with material irregularity while declining application under S. 12(2) C.P.C.---Allegations raised in application under S. 12(2) C.P.C. were serious in nature and Trial Court was required to apply its mind to such allegations and could have determined the same by giving cogent reasons---Failure to determine allegations and dismissal of application on technical grounds was nothing but negation of justice and spirit of law; that was to resolve dispute between parties on merits---High Court set aside orders passed by two courts below and remanded matter to Trial Court for decision afresh---Constitutional petition was allowed under circumstances.

Syed Shahab Qutab for Petitioner.

Mian Muhammad Abbas for Respondents No.1.

2018 M L D 401

[Lahore]

Before Atir Mahmood, J

NAVEED RUKHSAR and another---Appellants

Versus

MUHAMMAD SALIM LAKHANI---Respondent

F.A.O. No.298 of 2015, heard on 4th May, 2017.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 1 & S. 10---Withdrawal of suit---Subsequent suit---Maintainability---Plaintiff, while filing the suit disclosed in the plaint with regard to pendency of an earlier suit---Plaintiff contended that earlier suit would be withdrawn---Subsequent suit was not hit by provisions of S. 10, C.P.C. as earlier suit had been withdrawn by the plaintiff---Section 10 of Civil Procedure Code, 1908 was not attracted as there was no lis pending before another Court---No bar existed to file subsequent suit in presence of earlier one---When earlier suit was withdrawn after institution of subsequent suit then provisions of O. XXIII, C.P.C. were not attracted and fresh suit could not be declared to be barred by law---Findings recorded by the Trial Court did not suffer from any mis-reading or non-reading of record---Appeal was dismissed in circumstances.

Muhammad Saleem and another v. Messrs M. Yousaf ADI Saleem and Co. through Muhammad Yousaf Adil and 6 others 2011 YLR 3016; Muhammad Hussain and 12 others v. Mst. Arifa Begum and 2 others 2008 YLR 157 and Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 rel.

Mian Muhammad Shakil Ahmad for Appellant.

Ahmad Farooq Mir for Respondent.

2018 M L D 410

[Lahore (Bahawalpur Bench)]

Before Ch. Abdul Aziz, J

MUHAMMAD RIZWAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.426 and Criminal Revision No.183 of 2014, decided on 21st July, 2017.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---FIR was registered with unexplained delay, which probably was used for consultation and fabrication of facts---Both prosecution witnesses were residents of different 'chak' far away from the vicinity where occurrence took place and both failed to satisfactorily explain their presence at the crime scene at the relevant time---Conduct of prosecution witnesses, whereby they provided a safe passage to accused and his acquitted co-accused to have a swift escape from the crime scene, was also found to be contrary to natural human behaviour---Despite there being an admission on part of the prosecution witnesses that the deceased died approximately fifteen minutes thereafter, they made no effort to save her life---Such conduct of the prosecution witnesses cast big doubt regarding their presence at the crime scene---Opinion of Medical Officer that shot was fired from a distance of three meters, being contrary to the well-settled principles of medical jurisprudence as well as ballistic science, was to be discarded---Both witnesses made improvements while appearing in the court---Complainant, neither made reference to any previous incident nor produced any other witness in support of the motive---Allegation of physical violence alleged to have been caused against the deceased at the early hours of the same day remained unproved---Matter was investigated by as many as three Investigating Officers and all of them unanimously concluded that deceased was not murdered and instead died a suicidal death---Conviction and sentence recorded by the Trial Court against accused, were set aside; he was acquitted of the charge levelled against him by extending him benefit of doubt and he was ordered to be released forthwith.

Nasarullah alias Nasro v. The State 2017 SCMR 724; A Text Book of Forensic Medicine and Toxicology" authored by Dr. S. Siddiq Husain; Jaising P. Modi in his book Medical Jurisprudence and Toxicology 24th Edition and Amin Ali and another v. The State 2011 SCMR 323 rel.

(b) Criminal trial---

----Dishonest improvements made by witness---Such improvements before the court, were to be discarded from consideration.

Muhammad Naeem Inayat v. The State 2010 SCMR 1054 ref.

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

----S. 157(2)---Police Rules, 1934, R.24.4(1)---Procedure where cognizable offence suspected---Simple saddling a person with accusation of having committed a crime and even registration of criminal case against him was not enough to arrest him---Police Officer to arrest such person was required to collect some incriminating material---In absence of such a material, Police Officer was legally competent to dispense with the arrest of accused.

Sarwar and others v. The State and others 2014 SCMR 1762 ref.

(d) Criminal trial---

----Opinion of Police---No legitimate exception could be taken regarding the opinion expressed by the Police---Opinion of Police, though was not binding on the court, yet could be taken into consideration for valid reasons---Police Officer was the person who had visited the crime scene immediately after the occurrence; came across different persons and interrogated them, inspected the crime scenes; probes the circumstances of the case from different persons, who opt not to become witness and then form opinion---If declaration of the investigator of innocence had some support from the attending circumstances of the case, there was no reason to brush it aside without assigning any reasons.

(e) Criminal Trial---

----Evidence---When two interpretations of evidence were possible, the interpretation or theory which favoured the defence, was to be accepted.

Medical Jurisprudence and Toxicology by Jaising Modi and Qurban Hussain alias Ashiq v. The State 2010 SCMR 1592 ref.

(f) Criminal trial---

----Benefit of doubt---Primarily the prosecution was obliged to prove its case against accused beyond doubt---If there was a single circumstance creating a doubt regarding the veracity of the prosecution case, its benefit was to be extended to accused---Benefit of doubt could best be extended to a person facing criminal prosecution by acquitting him from the case and not through lesser punishment.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

Malik Sadiq Mahmood Khurram for Appellant.

Muhammad Sharif Bhatti and Hafiz Ijlal Haider for the Complainant.

Khalid Pervaiz Uppal, Deputy Prosecutor General for the State.

2018 M L D 432

[Lahore]

Before Qazi Muhammad Amin Ahmed and Asjad Javaid Ghural, JJ

MUHAMMAD RAFIQUE---Appellant

Versus

The STATE of and others---Respondents

Criminal Appeal No.1716 and Murder Reference No.465 of 2012, heard on 28th April, 2017.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Ocular account was not corroborated by medical evidence---Prosecution case was that accused and eleven co-accused persons had entered the house of complainant, and committed murder of three persons including the son of complainant---Ocular account was furnished by three witnesses including the complainant---Complainant had narrated the details of each and every injury attributed to the accused and his co-accused at the specific parts of the bodies of each deceased---Accused had been attributed two fire shots at the armpit of deceased son of complainant and at the right ear of other deceased---Co-accused persons had been attributed the role of causing firearm injuries at the waist, left buttock and left thigh of deceased son of complainant---Eye-witness had supplemented the complainant as to the mode and manner of the occurrence and the locale of injuries to each deceased as well---Mode and manner narrated by the complainant was highly improbable because she had firstly alleged one fire to each of five accused on the person of her deceased son, then to other deceased persons, which was impossible for a human being to count such number of fire shots of each assailant with the specification of locale of injuries attributed to the accused and his co-accused---Record showed that each and every injury sustained by each deceased had been mentioned by the complainant in the form of entry wounds including the exit wounds, which had been counted and attributed to the accused persons---Eye-witness had attributed each injury including the exit wounds on the person of each deceased to the accused and his co-accused in his deposition---Prosecution case was of indiscriminate firing and almost five dozens of empties had been secured by the Investigating Officer at the time of his first visit of the place of occurrence but none of the eye-witnesses had received even a single scratch on their bodies during the occurrence---Medical Expert had observed three injuries at the area of left shoulder and armpit of deceased son of complainant, which were attributed to the accused and as per his opinion, it was a result of one fire shot---Presence of the eye-witnesses at the venue of occurrence like counting spectators clearly showed that when the occurrence was over, after visualizing the number of injuries on the person of each deceased, the crime report had been lodged after due deliberation, consultation and fabrication and even exit wounds had been attributed to the accused persons---Both the eye-witnesses had narrated specific injuries to the co-accused, who had been charged and tried along with the accused but they had been acquitted by the Trial Court while disbelieving the deposition of the eye-witnesses to the extent of said co-accused having identical role to that of the accused---Accused, in such situation, deserved the same treatment as to his acquitted co-accused---Medical evidence was not in-line with the ocular account and both the injuries attributed to the accused did not exist---Motive part of the occurrence had been attributed to co-accused and the accused had no link in any manner with the motive---No weapon of offence had been recovered at the instance of the accused during investigation---Circumstances established that there was no evidence which could connect the accused with the murders in issue---Accused was acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.

(b) Criminal trial---

----Benefit of doubt---Scope---Single doubt as to the ocular account would sufficient to give benefit to the accused.

Ali Zia Bajwa for Appellant.

Fahad-ur-Rehman and Tipu Zafar for the Complainant.

Rana Muhammad Shafique, Deputy General Prosecutor, Akram, ASI for the State.

2018 M L D 448

[Lahore]

Before Jawad Hassan, J

Dr. SAMINA ANAYAT---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

W.P. No.54757 of 2017, decided on 24th November, 2017.

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

----S.12---Family Courts Act (XXXV of 1964), S.14(3)---Constitution of Pakistan, Art.199---Interim custody of suckling minor---Review of visitation hours---Scope---Petitioner/mother contended that both Courts below had failed to consider that it would be hard to bring the minor of 1½ years of age to the court twice a month for meeting with the father---Respondent/father contended that meetings with minor in tender age was necessary to develop affiliation with the father---Validity---While passing the impugned order, the Guardian Court had exercised his jurisdiction vested in it and nothing in the said order was contrary to law and beyond his jurisdiction---Parties also confirmed that said order had been complied with and since then the meetings were being conducted---Order passed by Guardian Court was interim in nature and constitutional petition would not lie before the High Court---Section 14(3) of Family Courts Act, 1964 showed that no appeal or revision would lie against interim order passed by the Family Court---Family Courts Act, 1964 had explicitly barred the remedy of appeal or revision against such an order, therefore, in case a constitutional petition was entertained against such order, the same would amount to circumventing the intention of the legislature and frustrating the express provision of law---No illegality or infirmity having been noticed in the impugned order passed by the Appellate Court---Constitutional petition was dismissed accordingly.

Muhammad Anwar Khan v. Mst. Yasmin Zafar 1987 SCMR 2029; Ms. Quratulain Aleem v. Muhammad Rehman Khan and another 2006 YLR 2604 and Mst. Noor Jehan alias Tasleem Begum v. Muhammad Arshad and another 1986 CLC 442 ref.

Mrs. Alia Hina for Petitioner.

2018 M L D 460

[Lahore (Multan Bench)]

Before Ch. Abdul Aziz, J

Rana SHAHBAZ AHMAD---Petitioner

Versus

SESSIONS JUDGE and another---Respondents

W.P. No. 5633 of 2017, decided on 13th July, 2017.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), Ss. 174 & 176---Police Rules, 1934, Chap. XXV, R.34---Disinterment of body for medical examination---Seat of injuries, determination of---Petitioner was complainant of a criminal case in which his real brother was murdered with firearm injuries---Allegation in FIR was that two accused persons fired two shots which landed on right eye and on left side of cheek of deceased but postmortem report showed only one entry and one exit wound---Complainant filed application for disinterment of dead body of deceased for medical examination but the same was dismissed by the Magistrate as well as the Trial Court---Validity---Held, it was never too late to hold an autopsy or to pass an order for disinterment for the purpose of re-examination of a corpse---When controversy between parties lay at the injury on occipital bone of deceased, the same could be discovered even after a decade---Medical jurisprudence did not provide any time limit for exhumation of dead body---Body of deceased in the present case, though was buried in grave but blame of his death was alive, awaiting decision from court---Skeleton of deceased was a mute witness, examination of which could narrate true tale of injuries present on the body---Disinterment and its medical re-examination was likely to advance the cause of justice and to remove all doubts arising out of conflicting versions---If injuries, as claimed by petitioner were not found on the back of skull of deceased, the same would help accused persons---High Court directed the authorities to constitute a Medical Board for re-examination of dead body and set aside orders passed by two courts below---Constitutional petition was allowed in circumstances.

A Text Book of Forensic Medicine and Toxicology by Dr. Siddiq Hussain, Chapter III titled; Medico-Legal Post Mortem Examination and Faryad Ali v. The State 2008 SCMR 1086 rel.

Sardar Usman Sharif Khosa, for Petitioner.

Rana Shahzad Ullah Khan, for Respondents Nos.4 and 5.

Mahar Nazar Abbas Chawan, Assistant Advocate General, Punjab.

2018 M L D 479

[Lahore]

Before Qazi Muhammad Amin Ahmed, J

KAMRAN KHAN and another---Petitioners

Versus

The STATE and another---Respondents

Crl. Misc. 95103-B of 2017, decided on 8th November, 2017.

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

----S. 497---Arms Ordinance (XX of 1965), Ss. 9 & 13---Unlicensed possession of arms etc.---Bail, refusal of---Accused persons allegedly were found with huge cache of arms and ammunition in their vehicle by the Police---Contention that weapons and ammunition were being transported under a valid licence was beside the mark because licensee never came forward to lay forth any claim---Offences punishable with imprisonment for ten years or above would not fall out of the ambit of prohibition on the basis of lower sentence of the same offence mandated as minimum ceiling however, its benign impact could be considered favourably in an appropriate case having regard to the facts and circumstances of the case---No legal compulsion existed to grant bail to an accused in offences punishable with imprisonment of less than ten years because court could decline discretionary relief depending upon nature of accusation and material in support thereof---Volume of cache with potentially awful lethality of the consignment pointed inexorably upon the accused persons and reliance upon a valid license was a position which could not be attended within the restricted scope of tentative assessment in absence of any tangible material---Bail was refused accordingly.

Saif Ullah v. The State 1994 PCr.LJ 2340; Sheroz and another v. The State 2006 YLR 3167; Muhammad Sharif v. The State and another 2014 PCr.LJ 97; Abid alias Abbi Arain v. The State 2016 PCr.LJ note 109 and Abdul Latif v. The State 2016 PCr.LJ note 122 ref.

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

----S. 497---Bail---Prohibitory clause---Scope---Offences punishable with imprisonment for ten years or above would not fall out of the ambit of prohibition on the basis of lower sentence of the same offence, its benign impact could be considered favourably in an appropriate case having regard to the facts and circumstances of the case---No legal compulsion existed to grant bail to an accused in offences punishable with imprisonment of less than ten years because court could decline discretionary relief depending upon nature of accusation and material in support thereof.

Ch. Abdul Ghaffar for Petitioners.

2018 M L D 489

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

ALLAH WASAYA---Petitioner

Versus

The STATE and 8 others---Respondents

Criminal Revision No.718 of 2016, heard on 21st February, 2017.

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

----S. 540---Summoning of witness---Scope---Law empowered the court to summon any person as a witness or examine any person in the attendance even if he had not been summoned as a witness---Court could recall and examine any person already examined---Said powers could be exercised at any stage of an inquiry, trial or proceedings under the Cr.P.C.---Courts was to summon and examine or recall and re-examine any such person if it appeared that his evidence was imperative for a just decision of the case.

Maulvi Hazoor Baksh v. The State PLD 1985 SC 233; Abdul Salam v. The State 2000 SCMR 102; The State v. Muhammad Yaqoob and others 2001 SCMR 308; Muhammad Murad Abro v. The State through A.G. Balochistan 2004 SCMR 966; Shahbaz Masih v. The State 2007 SCMR 1631 and Nawabzada Shah Zain Bugti and others v. The State PLD 2013 SC 160 rel.

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

----S. 540---Words 'shall' and 'may, used in S.540, Cr. P.C.---Scope---Word "may" was used in first part of the section and word "shall" was used in second part of the said section---Word "may" was used for discretionary purpose and word "shall" was used for obligatory purpose.

Mehrzad Khan v. The State PLD 1991 SC 430; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 and The State v. Muhammad Yaqoob and others 2001 SCMR 308 rel.

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

----Ss. 265-A, 493 & 540---Authorised person to conduct trial on behalf of prosecution before Court---Scope---Complainant was a necessary party in cases involving murder and hurt to body, which fact did not make him incharge of the prosecution---Section 265-A, Cr.P.C. carried a specific stipulation that in every sessions trial initiated upon a police report, the prosecution was to be conducted by the Public Prosecutor---Section 493, Cr.P.C. laid down that the Public Prosecutor would plead in all cases under his charge before any court and the pleaders privately instructed were to act under his direction---Public Prosecutor had the authority to give up any witness in the case, though he was to consult the complainant/petitioner and his counsel in that regard---Statement recorded by the counsel for the complainant to give up a witnesses in the case which was contrary to the statute, had no legal effect and was not binding on the prosecution---Record transpired that application under S. 540, Cr.P.C. was filed by complainant and not by the prosecutor; such application was not maintainable in view of Ss. 265-A & 493, Cr.P.C.

Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203 rel.

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

----S. 540---Material witness, re-summoning of---Scope---Application filed by complainant for re-summoning of two witnesses, who were earlier given up, was declined by Trial Court---Record showed that the trial court dismissed the said application on two grounds, first, it was made to fill up lacuna in the prosecution case and secondly, to delay the conclusion of the trial---Trial Court did not address the basic question as to whether the evidence of summoned witnesses was necessary for the just decision of the case---Section 540, Cr.P.C. empowered the court to call or re-call any witness "at any stage" of the trial, it did not provide any limitation with respect to time---Omission of Trial Court had rendered its order unsustainable under the law---Circumstances established that said application was not filed by proper person, as such was not maintainable---If such application was filed by a proper person, the same would be decided on merits---Revision petition was disposed of accordingly.

Rana Shaukat Hayat Noon for Petitioner.

Muhammad Ashraf Qureshi for Respondents Nos.2 to 9.

Muhammad Sarfraz Khan Khichi, D.D.P.P. for the State.

2018 M L D 496

[Lahore]

Before Jawad Hassan, J

MUHAMMAD SHAMAS-UL-HAQ---Petitioner

Versus

Mst. FAUZIA PARVIN and others---Respondents

W.P. No.107664 of 2017, decided on 20th November, 2017.

Family Courts Act (XXXV of 1964)---

----S.14---Suit for recovery of maintenance allowance---Ex parte decree---Appeal---Scope---Application to set aside judgment instead of preferring appeal---Effect---Invoking constitutional jurisdiction against interim order---Maintainability---Petitioner(defendant) contended that his application to set aside the ex parte judgment and decree should have been accepted---Validity---Record revealed that the petitioner maintained in his application to set aside ex parte judgment and decree that he had paid Rs.70,000/-, which fact denoted that the petitioner had accepted the validity of the judgment and decree being satisfied---Petitioner had submitted application for setting aside ex parte judgment and decree and record manifested that he had actively participated in the proceedings in question---Petitioner in his constitutional petition had challenged the order passed by Executing Court which was an interlocutory/interim order---When the Legislature had specifically prohibited the filing of appeal or revision against an interim order and if the constitutional petition was allowed to be filed against said order, that would tantamount to defeating the intent of the legislature---Petitioner had adequate remedy available to him by challenging impugned order in appeal which, he might file against the ultimate order/judgment if the same would be against him---No illegality or irregularity having been noticed in the impugned order passed by the Family/Executing Court---Constitutional petition was dismissed accordingly.

Aman Ullah Khan v. District Judge and 3 others 2012 CLC 679; Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and others 1996 SCMR 1165 and Muhammad Sabir v. Mst. Azra Bibi and 2 others 2011 CLC 417 ref.

2018 M L D 508

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

REHMAT ALI---Appellant

Versus

The STATE and another---Respondents

Crl. Appeal No.55 of 2014, heard on 25th January, 2017.

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

----Ss. 365-B & 376---Kidnapping, abducting, or inducing woman to compel for marriage, rape---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused had abducted the daughter of complainant on gunpoint and raped her---Ocular account was furnished by the victim herself---Victim deposed that when she was going to school, accused abducted her on gunpoint and made her sit on his motorcycle and took her to a Chak where he confined her in a room and raped her---Victim disclosed that it took the accused three to four hours to reach the Chak---Victim did not raise any alarm or call for help at any point of time during that long journey---Prosecution witness, who was a Wajtakar witness appeared but his conduct was not natural---Said witness deposed that he knew that accused had abducted the victim but still he did not make any effort to stop him---Said witness did not inform the complainant immediately, his statement could not corroborate the allegation that victim was abducted on gunpoint---Prosecution's stand was that victim was recovered through the mediation of the panchayat, however no member of the panchayat was produced as witness, who could testify that victim was recovered from the accused---Investigating Officer did not interrogate any member of the panchayat---Investigating Officer did not visit the place where the accused had allegedly kept the victim for one month and committed rape with her---Investigating Officer did not interview any witness of that locality to verify as to whether that place was owned by the accused or was otherwise available to him for use---Victim deposed that she had been going out in the fields during the time when she was in the custody of accused---No body met her or at least saw her during that long period---Prosecution did not produce any witness in that respect---Said facts cast serious doubt on the prosecution version, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.

Nadeem Bhatti alias Sanni v. The State 2016 PCr.LJ 558 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

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

----Ss. 365-B & 376---Criminal Procedure Code (V of 1898), S. 103---Kidnapping, abducting, or inducing woman to compel for marriage, rape---Appreciation of evidence---Recovery of weapon of offence---Reliance---.12-bore carbine along with live cartridge were recovered from the accused which he used in the commission of the crime---Record showed that Investigating Officer did not associate any independent witness with the recovery proceedings which was mandatory under S. 103, Cr.P.C.---Investigating Officer did not call the person to join proceedings, from whose property, the said recovery was made---No exceptional circumstances were available to dispense with the said provision of law---Motorcycle allegedly used in the occurrence was not recovered---Said recoveries did not lend any credence to the prosecution case in circumstances.

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

----Ss. 365-B & 376---Kidnapping, abducting, or inducing woman to compel for marriage, rape---Appreciation of evidence---Medical evidence---Scope---Woman Medical Officer, who examined the victim deposed that she did not observe any tears, laceration, bruises, abrasions, swellings or hyperemia---Hymen of the victim was old ruptured but there were no seminal stains---During cross-examination, Woman Medical Officer specifically stated that no symptoms of Zina were present at the private parts of the victim---Circumstances established that the medical evidence did not support the case of prosecution.

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

---Ss. 365-B & 376---Kidnapping, abducting, or inducing woman to compel for marriage, rape---Appreciation of evidence---Delay of about 35 days in lodging FIR---Effect---No adverse inference was to be drawn against the prosecution on that sole ground---In such like cases, the victim and her family members were hesitant in reporting the matter to the police immediately---However, in the present case, during the time, when victim was in the confinement of the accused, witness and complainant had visited the police station and moved the application to the police---Circumstances established that there was inordinate delay in registration of FIR, which remained unexplained affecting the prosecution case.

Ghulam Husain Soomro v. The State PLD 2007 SC 71; Muhammad Imran v. The State and others 2014 PCr.LJ 456; Ihsanullah alias Sanu v. The State through Additional Advocate General and another 2015 YLR 2592 and The State and others v. Abdul Khaliq and others" PLD 2011 SC 554 rel.

Muhammad Zawar Shah Qureshi for Appellant.

Mian Abdul Qayyum, A.P.G. for the State.

Sardar Abdul Qayyum Khan for the Complainant.

2018 M L D 531

[Lahore]

Before Shahid Hameed Dar, J

SHAGUFTA IFTIKHAR---Petitioner

Versus

The STATE and others---Respondents

Crl Misc No13635 of 2017, decided on 30th June, 2017

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 395 & 412---Dacoity, dishonestly receiving property stolen in commission of dacoity---Bail, grant of---Further inquiry---Female accused---Complainant had alleged that accused persons committed robbery in his house and decamped with the looted property---Accused's name was introduced by the complainant through his supplementary statement which revolved around extra-judicial confession of co-accused who allegedly disclosed names of alleged accused persons---Statement might have been relevant against the co-accused but exonerating statement of complainant in favour of co-accused during course of investigation did no good to his case---No other source of information was available with the prosecution to name the accused in the case---Contents of FIR revealed that veiled-female actively participated in the occurrence with a pistol in hand but a question mark hanged on issue of her identity---Accused was arrested in this case since one and a half year and nothing was recovered from her, till she remained with the police---Mere commencement of trial might not impede grant of bail to accused , if otherwise she was entitled to such relief---No one could be left to rot in jail as a matter of premature punishment---Bail was granted accordingly.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Muhammad Ahan Farooqi for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General Punjab with Muhammad Zulfiqar ASI for the State.

2018 M L D 559

[Lahore (Multan Bench)]

Before Ahmad Raza Gilani, J

MUHAMMAD RAMZAN and another---Petitioners

Versus

The STATE and another---Respondents

Cr. Revision No.283 of 2014, decided on 13th February, 2017.

Penal Code (XLV of 1860)---

----Ss. 324, 337-F(iii) & 337-F(v)---Attempt to commit qatl-i-amd, causing mutalahimah, causing hashimah---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Prosecution case was that accused persons armed with fire-arm weapons assaulted on the complainant party---Accused made a fire which hit the injured/son of complainant on his left thigh and also his penis---Co-accused made fire with his rifle which hit the left thigh of the injured---Accused persons did not challenge the conviction and submitted that both the accused persons had served 3-1/2 years as substantive sentence---If the remissions earned were included in the period of imprisonment, they would be released---Record showed that both the parties earlier were not on inimical terms; occurrence had erupted over a petty matter---Evidence of Medical Officer showed that injuries caused to the injured could be caused with one fire---Said circumstances and facts could be considered as mitigating circumstance, as such, sentences awarded to the accused persons by the Trial Court were reduced to already undergone in circumstances.

Ch. Saghir Ahmad for the Petitioners.

Abdul Wadood, Deputy Prosecutor General for the State.

2018 M L D 569

[Lahore]

Before Qazi Muhammad Amin Ahmed and Asjad Javaid Ghural, JJ

KHALID FAROOQ and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.463-J of 2013 and Murder Reference No.2 of 2014, heard on 26th April, 2017.

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---Prosecution case was that two sons of complainant were murdered by the accused-appellant and co-accused persons---Ocular account was furnished by the complainant and injured witness---Record showed that except co-accused, remainder of the nominated accused were real brothers inter se---Both the deceased collectively received three stab wounds, two by accused-appellant and one by co-accused/appellant respectively, which could have possibly come about by awls, (weapon of offence), distributed one each amongst three real brothers/accused persons which admitted enough space to entertain the hypothesis of a wider net---Identically placed co-accused had since been acquitted from the charge with no petition to question his acquittal---Circumstances suggested that it was inconceivable as to why three real brothers each of age with sufficient strength would jointly incur the risk of consequences when any single of them could accomplish the task---Investigative details pointed upon solitary role---Participation of some of the accused persons was suspicious---Recovery of bloodstained awls (weapon of offence) after twenty days of the occurrence was far from being confidence inspiring as there was no point for both the accused-appellants to keep awls (weapon of offence) as souvenirs of the crime, that too, smeared with the blood of their victims without disintegration despite flux of time defying forensic parameters---Sealed parcels were re-opened to find two identical instruments with their virgin handles seemingly procured same day---Obscure motive assigned to all the assailants and suspected recoveries could not provide requisite independent corroboration to the prosecution case---Circumstances established that occurrence did not take place in the manner as alleged in the crime report and the investigative conclusions were not favouring the complainant as well, which created doubt about the prosecution case---Accused-appellants were acquitted after extending benefit of doubt to them by setting aside conviction and sentence recorded by Trial Court.

Ayan Tariq Bhutta for Appellants.

Naseer-ud-Din Khan Nayyar for the Complainant.

Humayun Asghar, Deputy Prosecutor General, Punjab with Mehdi, S.I. for the State.

2018 M L D 581

[Lahore]

Before Jawad Hassan, J

LAHORE DEVELOPMENT AUTHORITY---Petitioner

Versus

Ch. ASGHAR ALI BHUTA and others---Respondents

Writ Petition No. 33756 and C.Ms. Nos.3 and 4 of 2017, decided on 13th December, 2017.

Civil Procedure Code (V of 1908)---

----O.VIII, Rr. 1 & 10---Constitution of Pakistan, Art. 199---Constitutional petition---Written statement, non-filing of---Striking of defence---Concurrent findings of facts by two courts below---Despite repeated opportunities provided by Trial Court, defendant failed to file written statement under O.VIII, Rule 1, C.P.C.---Trial Court struck off right of defendant to file written statement and the order was maintained by Lower Appellate Court---Validity---Both the Courts passed concurrent findings against defendant---High Court declined to interfere with findings of facts arrived at by primary courts when it was satisfied that findings of both the courts below were reasonable and were not arrived at by disregarding any of the provisions of law or any accepted principle concerning appreciation of evidence---Defendant could not point out that findings of fact recorded by two courts below were against law or were patently improper or perverse that to accept it could amount to perpetuating a grave miscarriage of justice---Constitutional jurisdiction was ordinarily discretionary in character---High Court maintained orders of courts below, as defendant could not point out any infirmity or illegality in the same---Constitutional petition was dismissed in circumstances.

Muhammad Salim v. Abdul Shakoor 1994 CLC 1911; Abdur Rasheed v. Rafeeq Muhammad 2016 CLC 21; Raja Rehmat Khan v. Muhammad Aamir Tastee and 2 others 2015 YLR 2220; Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365 and Riaz ul Haq and others v. Muhammad Asghar and others 2017 SCMR 1841 rel.

Syed Imtiaz Hussain Shah for Petitioner.

2018 M L D 601

[Lahore]

Before Abdul Sami Khan, J

SAEID and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.96869/B of 2017, decided on 13th November, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 337-A(i), 337-A(ii), 337-F(i), 337-L(2), 337-H(2), 447, 511, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, hurt, criminal trespass, attempt to commit offence punishable with imprisonment for life or shorter term, rioting armed with deadly weapon, unlawful assembly---Bail, grant of---Further inquiry---Role attributed to accused persons (two) was that of causing injury to two injured persons---FIR was lodged with a delay of three days---Offence of causing said injuries by accused were bailable in nature---No accusation of repetition existed on part of accused persons---Accused party also sustained injuries during the incident, which fact was concealed by complainant party while lodging the FIR---Co-accused persons had already been granted pre-arrest bail---Question of vicarious liability or sharing common intention for committing murder of deceased would be determined by trial court after recording evidence---Accused persons were no more required to the Police for investigation which to their extent was complete---No useful purpose would be served by keeping accused persons behind the bars for indefinite period---Case of accused persons called for further inquiry into their guilt under subsection (2) of section 497 Cr. P. C.---Bail was granted accordingly.

Liaquat Ali Malik for the Petitioners.

2018 M L D 617

[Lahore (Multan Bench)]

Before Muhammad Ali, J

TEHSEEN ASGHAR and another---Petitioners

Versus

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

Writ Petition No. 9274 of 2011, heard on 8th May, 2017.

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

----S. 9---Suit for possession of immovable property---Requirements---Plaintiff purchased suit property from joint Khata---Relief under S.9 of Specific Relief Act, 1877 was discretionary in nature and could not be granted to a person who had approached the court with unclean hands or had fabricated the story---Plaintiff had failed to prove that he was dispossessed from the suit property---Stance taken by the plaintiff in his suit was contradicted by the evidence he led---No one could be allowed to adduce evidence which was never pleaded and decision of the case could not rest on such evidence---Courts below had based their findings on title document of plaintiff---Court in a suit under S.9 of Specific Relief Act, 1877 was only required to examine as to whether the plaintiff was in possession of property when he was dispossessed by the defendant---Plaintiff, in order to succeed in such suit was required to prove that he was in possession of the immovable property and was dispossessed without his consent and such dispossession was otherwise than due course of law---Object of S.9 of Specific Relief Act, 1877 was to discourage people from forcibly occupying immovable property by taking law in their own hands---Plaintiff was never in possession of the suit property---Court in a suit under S.9 of Specific Relief Act, 1877 could decide only the claim of possession and was not required to decide title, right or legal character of claimant of suit property---Question of title was ancillary to the proceedings under S.9 which could not be looked into for restoring the possession---Orders passed by the courts below were illegal and violative of law which were set aside---Suit of the plaintiff was dismissed---Constitutional petition was allowed in circumstances.

Combined Investment (Pvt.) Ltd. v. Wali Bhai PLD 2016 SC 730; Essa Engineering Company (Pvt.) Ltd. v. Pakistan Telecommunication Company Limited 2014 SCMR 922; Muhammad Nawaz alias Nawaza v. Member Judicial Board of Revenue 2014 SCMR 914; Canal View Cooperative Housing Society v. Javed Iqbal and another PLD 2004 SC 20 and Muhammad Anwar v. Mst. Illyas Begum and others PLD 2013 SC 255 rel.

(b) Constitution of Pakistan---

----Art. 199---Writ of certiorari---Scope---High Court in its constitutional jurisdiction did not undertake to re-appreciate evidence in the matter to disturb the findings of fact but when such findings were based on mis-reading or non-reading of evidence, erroneous assumption of facts, mis-application of law, excess or abuse of jurisdiction and arbitrary exercise of powers then such findings could be interfered with by issuing writ of certiorari to correct the wrong decision.

Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338 rel.

(c) Pleadings---

----No one could be allowed to adduce evidence which was never pleaded.

Syed Kabir Mahmood for Petitioner.

M. Bilal for Respondents.

2018 M L D 661

[Lahore]

Before Abdul Sami Khan, J

SULEMAN SULTAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 53140/B of 2017, decided on 16th November, 2017.

(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, common intention---Bail, grant of---Further inquiry---Case of two versions---Medical evidence not corroborating---Although accused was named in FIR with the role of causing firearm injury on left wrist of deceased, yet no firearm injury was observed during postmortem examination; injuries were observed around his left elbow---During investigation, accused was shown just present at the spot at the time of occurrence; he was empty handed and did not cause any injury to the deceased---Case, in circumstances, became a case of two versions---Accused was previous non-convict and was behind the bars for seven and half months without any fruitful progress in his trial---Investigation of the case to the extent of accused was complete and accused was no more required for further investigation---Mere heinousness of offence or absconsion of accused were no grounds for refusal of bail, if otherwise accused was entitled for the same---Benefit of doubt could be given to accused even at bail stage---No useful purpose would be served by keeping accused behind the bars at present stage---Bail was granted accordingly.

Pir Bux v. The State 2012 SCMR 1955; Ehsan Ullah v. The State 2012 SCMR 1137 and Zaigham Ashraf v. State and others 2016 SCMR 18 rel.

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

----S. 497---Bail---Benefit of doubt---Scope---Benefit of doubt could be given to accused even at bail stage.

Mehram Ali Bali for Petitioner.

Ms. Tahira Parveen, D.D.P.P. for the State and Tariq Awan Inspector with record.

2018 M L D 684

[Lahore (Multan Bench)]

Before Shehram Sarwar Ch., J

MUHAMMAD ASIF and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 391 of 2013, heard on 8th September, 2016.

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

----Ss. 302(b), 366-A, 376(2), 379 & 34---Qatl-i-amd, procuration of minor girl, committed rape by two persons in furtherance of common intention, theft, common intention---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Prosecution case was that accused and co-accused after enticing away daughter of complainant, committed rape with her and murdered---Evidence of Wajtakkar produced by the prosecution witness stated that he and witness, since given up, had seen accused persons while going on a motorcycle towards a Nala along with a sack of jute and at that time they were in perplexed condition---Witnesses suspected that there was a dead body of daughter of complainant in the said sack and the same was thrown in the Nala by the accused persons---Said witnesses informed the complainant about seeing of the accused persons after two days---No plausible explanation on the record as to why the witness remained quite for two days and did not inform the complainant---Said witness was close relative of the complainant and his silence about the incident for a long time cast doubt about the veracity of the prosecution case---Circumstances established that the prosecution case was doubtful in nature, benefit of which would resolve in favour of accused not as a matter of grace but as of right.

Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Muhammad Hussain v. The State 2011 SCMR 1127; Ibrahim and others v. The State 2009 SCMR 407 and Sh. Muhammad Amjad v. The State PLD 2003 SC 704 rel.

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

----Ss. 302(b), 366-A, 376(2), 379 & 34---Qatl-i-amd, procuration of minor girl, committed rape by two persons in furtherance of common intention, theft, common intention---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Scope---Prosecution case was that accused and co-accused after enticing away daughter of complainant, committed rape with her and murdered---Allegedly, accused persons had made extra judicial confession before the prosecution witnesses including father of deceased---Said extra judicial confession was not reliable as the same was a joint confession---Record showed that there was no occasion for the accused persons to make such confession before the complainant party because at that time, there was no strong evidence against the accused persons regarding their involvement in the crime---Extra judicial confession was a weak type of evidence, which was insufficient to maintain conviction on such charges.

(c) Criminal trial---

----Extra judicial confession---Scope---Extra judicial confession could not be considered sufficient for recording conviction on a capital charge unless same was strongly corroborated by tangible evidence coming from unimpeachable source.

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

----Ss. 302(b), 366-A, 376(2), 379 & 34---Qatl-i-amd, procuration of minor girl, committed rape by two persons in furtherance of common intention, theft, common intention---Recovery of different articles---Reliance---Scope---Allegedly, a pair of softi shoes, belonging to the deceased, at the instance of co-accused were recovered, which were ordinary shoes and easily available in the market as such, was inconsequential---Pair of ear rings, belonging to the deceased, recovered at the instance of accused, did not advance the case of prosecution because the complainant did not produce any evidence with regard to the ownership of the said ear rings---No receipt about the purchase of said ear rings by the goldsmith had been produced during investigation---Recovery of motorcycle at the instance of accused was not of much help to the prosecution because accused was not the owner of the said motorcycle---Said motorcycle was allegedly obtained by the accused on rent from prosecution witness but the prosecution had not produced the registration book of the said motorcycle to prove as to who was the owner of the said motorcycle---Circumstances established that recovery of said articles was inconsequential.

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

----Ss. 302(b), 366-A, 376(2), 379 & 34---Qatl-i-amd, procuration of minor girl, committed rape by two persons in furtherance of common intention, theft, common intention---Appreciation of evidence---Medical evidence---Scope---Prosecution case was that the accused persons committed the murder of daughter of complainant after committing rape with her---Record showed that DNA report was in the negative---Woman Medical Officer, who conducted postmortem examination on the dead body of deceased stated that as per report of DNA, she could not say that accused persons had committed sexual intercourse with the deceased.

(f) Criminal trial---

----Medical evidence---Scope---Medical evidence was only a supporting piece of evidence and relevant only if the primary evidence was confidence inspiring.

Malik Amir Manzoor Awan for Appellants.

Sarfraz Khan Khichi, D.D.P.P. for the State.

Sheikh Abdul Samad for the Complainant.

2018 M L D 720

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

SALMAN AKHTAR alias SALMANI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 100867-B of 2017, decided on 27th December, 2017.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 148 & 149---Qatl-i-amd, rioting, common object---Bail, grant of---Further inquiry---Accused was not named in the crime report, despite both the parties were residents of same area and were members of the same bratheri; coupled with the fact that the occurrence had taken place in broad day light---Out of four nominated accused persons three were declared innocent by the Investigating Officer and their names were placed in column No.2 of the report prepared in terms of S.173, Cr.P.C., which had not been challenged---Gross contradiction existed between the statements of the prosecution witnesses recorded under S.161, Cr.P.C., and the version advanced by the complainant in the FIR, as well as in the supplementary statement with regard to the role ascribed to accused---Crime empties having been dispatched to the concerned quarter at a belated stage, authenticity of the recovery of Kalashnikov allegedly affected from accused, would be determined during the course of trial after recording the prosecution evidence---Investigation in the case being complete, person of accused was no more required by the Police for further investigation---Sufficient grounds existed calling for further probe into the guilt of accused; case of accused fell within the ambit of S.497(2), Cr.P.C.---Accused was admitted to bail, in circumstances.

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

----S.497---Bail---If statement of prosecution witness was at variance to the version advanced by the complainant; it would be dangerous to rely upon such statement.

Muhammad Din v. The State PLD 1959 Supreme Court (Pak.) 491 rel.

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

----S.497---Bail---Benefit of doubt---Scope---Benefit of doubt, could be extended at bail stage.

Amir v. The State PLD 1972 SC 277 and Manzoor and 4 others v. The State PLD 1972 SC 81 rel.

Dr. Khalid Ranjha and Ali Zia Bajwa for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General for the State.

Aazer Latif Khan for the Complainant.

Saeed, S.I. with police record.

2018 M L D 739

[Lahore (Multan Bench)]

Before Abdul Rahman Aurangzeb, J

Mst. PATHANI MAI through L.Rs.---Petitioner

Versus

AHMED BAKHSH and others---Respondents

Civil Revision No. 650-D of 2010, heard on 27th September, 2017.

(a) Gift---

----Valid gift---Requirements---Gift mutation on behalf of illiterate pardanashin lady---Proof---Procedure---Defendant being beneficiary of gift mutation was bound to prove the pre-conditions of a valid gift i.e. offer, acceptance and delivery of possession through independent evidence---Co-beneficiaries had denied the factum of gift by their mother---Defendant only appeared in the witness-box and his stance that mother herself had gifted suit property to him and his two sisters was not substantiated with cogent proof---If executant of document was a pardanasheen or illiterate lady and she denied the execution of said document then burden to prove would shift to the party placing reliance on such execution---Original transaction could only be independently proved with the production of original record along with attesting and official witnesses---Neither Patwari who made entries of mutation nor the Revenue Officer was produced in the Trial Court---Attesting witnesses of gift mutation were also not produced in evidence to substantiate the claim of defendant---Defendant had failed to discharge the initial burden of proof in the present case---Mere affixation of thumb impression of an illiterate pardanashin lady without any corroborative piece of evidence could not be said to be a valid execution of Tamleek---Plaintiff was illiterate and pardanashin lady and was ignorant with regard to transaction of gift mutation---Essential and valid contents of gift mutation were not expressly conveyed to the donor with independent advice---Mutation was not a proof of title and beneficiary was bound to prove the original transaction---Impugned judgments and decrees passed by the courts below were set aside and suit was decreed---Revision was allowed in circumstances.

Ghulam Muhammad v. Farooq Ahmad and others 2002 SCMR 1801; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others 2007 SCMR 1884; Arshad Khan v. Mst. Reshman Jan and others 2005 SCMR 1859; Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi and others 2013 SCMR 868; Ghulam Farid and another v. Sher Rehman through L.Rs. 2016 SCMR 862; Peer Bakhsh through LRs and others v. Mst. Khanzadi and others 2016 SCMR 1417 and Abdul Rahman v. Mst. Majeedan Bibi alias Majeedan 2017 SCMR 1110 rel.

(b) Islamic Law---

----Gift---Ingredients---Ingredients of a valid gift are offer, acceptance and delivery of possession.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings could be interfered with by the High Court in revisional jurisdiction if courts below had acted with material irregularity and legal infirmity.

Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 rel.

Muhammad Maalik Khan for Petitioners.

Muhammad Irfan Arbi for Respondents Nos.1 and 2.

2018 M L D 757

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD YOUSAF and 5 others---Petitioners

Versus

MUHAMMAD SIDDIQUE and 9 others---Respondents

Civil Revision No. 630 of 2014, heard on 12th October, 2017.

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

----Ss.42 & 54---Suit for declaration and injunction---Concurrent findings of facts by two Courts below---Fraud, limitation against---Ex-parte evidence---Plaintiffs assailed mutation of oral sale in favour of defendants on the plea of collusiveness and fraud etc.---Suit was decreed in favour of plaintiffs and appeal was dismissed by Lower Appellate Court---Plea raised by defendants was that during ex-parte evidence Trial Court did not allow defendants to cross examine witnesses and the suit was barred by limitation---Validity---Defendants despite having been proceeded against ex-parte could join proceedings and cross-examine witnesses of their adversary if they desired so---Prosecution witnesses were recorded in presence of counsel of defendants and they were not subjected to cross examination, who had relinquished such right and thereafter Trial Court was perfect in declining them to cross examine those witnesses---Power of attorney was procured through impersonation on identification of uncle of the agent---When it was proved beyond any shadow of doubt that power of attorney was outcome of fraud, such document could not be perpetuated and could be assailed at any point of time---High Court in exercise of revisional jurisdiction declined to interfere in judgments and decrees passed by two Courts below as defendants failed to point out any irregularity or illegality as well as misreading and non-reading of evidence---Revision was dismissed in circumstances.

Ch. ZuIfiqar Ali v. Mian Akhtar Islam and Mian Bashir Ahmad PLD 1967 SC 418; Baqa Muhammad v. Muhammad Nawaz and others PLD 1985 Lah. 476; Lal Khan and others v. Khizar Hayat and others 1994 SCMR 351; Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Mst. Bandi v. Province of the Punjab and others 2005 SCMR 1368; Muhammad Taj v. Arshad Mehmood and 3 others 2009 SCMR 114 and Mst. Naila Kausar and another v. Sardar Muhammad Bakhsh and another 2016 SCMR 1781 rel.

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

----Ss. 17 & 60---Registered document---Presumption---Principle---Whenever execution or validity of purportedly registered document is denied, such registered document loses sanctity of being presumed to be correct---Lawful veracity of such document depends upon quantum and quality of evidence to be produced to prove its lawful execution.

Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others 2006 SCMR 1144; Abdul Majeed and 6 others v. Muhammad Suhhan and 2 others 1999 SCMR 1245; Gopal Das v. Siri Thakir Gee and others AIR 1943 PC 83 and Siraj Din v. Jamila and another PLD 1997 Lahore 633 rel.

Ch. Abdul Majeed for Petitioners.

Asif Iqbal Khan Shahani for Respondents.

2018 M L D 771

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

MAHMOOD-UL-HASSAN---Appellant

Versus

MUNIR AHMAD and 3 others---Respondents

Intra-Court Appeal No. 442 of 2016, decided on 31st January, 2018.

(a) Pleadings---

---Principles in relation to pleadings elucidated.

Following are the principles relating to pleadings:

(i) Courts could not go beyond the pleadings of the parties.

(ii) Parties had to take proper pleadings and establish a particular irregularity/illegality.

(iii) As a rule relief not founded on the pleadings should not be granted. Thus, a decision of the case should not be based on grounds outside the pleadings of the parties. Relief given beyond the pleadings or at variance with the pleadings would not be admissible. When there was no prayer for a particular relief and no pleadings to support such a relief, and when the opposite party had no opportunity to resist or oppose such a relief, and the Court considered and granted such a relief, it would lead to miscarriage of justice.

(iv) No party should be permitted to travel beyond its pleadings and parties were bound to take all necessary and material facts in support of the case set up by them. Pleadings ensured that each side was fully alive to the questions that were likely to be raised and they may have an opportunity of placing the relevant evidence before the Court for its consideration.

(v) Prayer not specifically made could not be considered by the Court. Where a party did not put forth such a contention, the Court could not obviously make out such a case not pleaded, suo motu.

(b) Administration of justice---

---Court could not exercise discretion of ordering to set aside any order which was not before it as a subject matter.

(c) Constitution of Pakistan---

---Art. 204---Contempt of court---Contempt petition---Scope---Under the contempt laws no further jurisdiction had been conferred to the Court except to punish the contemnor and to sentence him with imprisonment and fine or otherwise---Court had not been bestowed with the jurisdiction to set aside an order in contempt petition which was not the subject matter before it.

Mrs. Razia Yaqub v. Malik Mohammad Ashiq and 2 others PLD 2003 Lah. 486 ref.

Ch. Bashir Ahmad for Appellant.

Talat Farooq Sheikh, Ashfaq Ahmed Kharal, Assistant Advocate General for Respondents.

Abid Ali Ex Patwari, Halqa Ichhra, Lahore.

2018 M L D 785

[Lahore (Multan Bench)]

Before Abdul Sattar, J

BASHARAT ALI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 4 others---Respondents

W.P. No.9345 of 2015, decided on 21st March, 2017.

Family Courts Act (XXXV of 1964)---

----S. 17-A---Suit for maintenance allowance for minors---Striking off defence of the defendant for non-payment of interim maintenance allowance---Scope---Excessive maintenance allowance---Financial position of the defendant---Scope---Petitioner/father contended that Family Court had awarded maintenance allowance without keeping in view his financial position---Validity---Interim maintenance allowance was tentative amount, which was to be fixed after careful examination of available evidence as such the amount could be either enhanced or reduced at the time of final adjudication of the matter---Interim maintenance allowance was subject to variation and adjustment at the time of final decision, which was to be given after recording evidence of the parties---Penal provision under S. 17-A of Family Courts Act, 1964 was directory in nature and not mandatory---Legislature had used, the word" may " in the said provision for the Court to consider many things, while striking off the defence of the defendant and decreeing the suit---Such things obviously included reasonable determination of relief claimed by litigant---Family Court, in the present case, had failed to observe balance as initially an amount of Rs. 1000/- per month for each child was fixed as interim maintenance allowance and after striking off defence of the petitioner awarded Rs.5000/- per month to each child on a yardstick not clarified---Family Court was expected to look upon social status of the parties, expenses required, source of earnings and the income of the defendant and his possessions---Maintenance allowance determined by Family Court for four minors having been found to be quite excessive, which required to be modified reasonably, High Court reduced maintenance allowance from Rs.5000/- to Rs.3500/- for each child---Constitutional petition was disposed off accordingly.

Muhammad Maalik Khan Langah for Petitioner.

2018 M L D 798

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

SHAHADAT ALI---Petitioner

Versus

Mst. SHAZIA BIBI and others---Respondents

Writ Petition No.64857 of 2017, decided on 13th February, 2018.

Family Courts Act ( XXXV of 1964 )---

----S.13(3)---Civil Procedure Code (V of 1908), O. XXI, R. 66---Maintenance allowance for minors---Execution proceedings---Powers of the Executing Court---Scope---Applicability of C.P.C.---Scope---Recovery of the decretal amount as arrears of land revenue---Conduct of father---Effect---Petitioner/father contended that auction proceedings were taken in violation of mandatory provisions of O. XXI, C.P.C. as he had deposited full decretal amount---Respondent/decree-holder contended that provisions of C.P.C. were not applicable to family matters and judgment debtor had not paid anything since the grant of decree about decade ago---Validity---Section 13(3) of Family Courts Act, 1964 stipulated that for enforcement of money decree the Executing Court was empowered to recover the decretal amount as arrears of land revenue---While various modes for recovery of land revenue were provided under the law and one of the mode was to sale out the property of the defaulter which, in the present case, was adopted by the Executing Court, therefore, procedural provisions of C.P.C. were rightly not followed by the Family Court in execution of money decree---Record revealed that judgment debtor adopted every delaying tactic and after about nine years of passing of the decretal amount, when the sale became absolute, the petitioner deposited the decrertal amount with intention to frustrate the auction proceedings; that at such a belated stage when pursuant to the execution proceedings the sale had become absolute, the deposit of decretal amount by the petitioner could not be taken into consideration---Petitioner, for years, had been trying to pose that he was incapable to pay maintenance to his children but at last his property was put to auction for recovery of outstanding decretal amount, which led to the conclusion that he was capable to pay the maintenance allowance to the minors according to the decree but deliberately and intentionally left them to starve---Such callous attitude towards discharge of his parental obligation did not entitle petitioner for discretionary relief---Constitutional petition was dismissed accordingly.

Amjad Iqbal v. Mst. Nida Sohail 2015 SCMR 128 and Muhammad Arif v. Uzma Afzal and others 2011 SCMR 374 ref.

M. Khawar Saeed for Petitioner.

2018 M L D 818

[Lahore ]

Before Qazi Muhammad Amin Ahmed and Sardar Ahmed Naeem, JJ

MUHAMMAD ASHRAF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1472 of 2012 and Murder Reference No.334 of 2013, heard on 27th September, 2017.

Penal Code (XLV of 1860)---

----Ss. 302(b), 365-B & 34---Qatl-i-amd, kidnapping, abducting or inducing woman to compel for marriage, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case as alleged by the complainant was that he along with his deceased sister after fetching grocery items were on way to visit their sister at 7.30 p.m. when accused accompanied by co-accused persons intercepted them on a car and took away the deceased on gun point as they were persuading the deceased for marriage, but she had declined the proposal---Co-accused exhorted the accused, pursuant whereto, the accused repeated fired upon the deceased---Occurrence was viewed in the headlights of vehicle---Deceased succumbed to the injuries at the spot---Motive for the crime was deceased's refusal for marriage---Record showed that all the co-accused were acquitted from the charge of abduction, which had not been challenged either by the State or the complainant---Said factor destroyed the very genesis of the prosecution case, as on its own showing, the deceased was forcibly picked by the accused and his co-accused in vehicle---Said vehicle was never recovered---Record was silent as to how the accused and co-accused anticipated/knew the location of the deceased wherefrom she was allegedly abducted was far from being clear and so was the arrival of the prosecution witnesses at the place where she was taken in speeding vehicle, that too, exactly at a point of time when the assault commenced---Occurrence took place around midnight and it was reported at the Police Station located at a distance of three kilometer at 7.30 a.m. following morning---Complainant stated that after he had seen the occurrence he went to inform his relatives and returned at the crime scene before visit to the Police Station, which appeared an attempt to hush up the delay---Autopsy was conducted at 11.30 a.m. when rigor mortis was found partially developed---Deceased in her prime youth had met homicidal death in a sizzling hot weather, thus symptoms of rigor mortis suggested an earlier point of time---Recovery of a motorbike and negative Forensic Report did not advance prosecution case either---Occurrence did not appear to have taken place, as suggested by the witnesses, though they were in a comfortable unison with each other---Narrative furnished by the witnesses being extremely improbable merits rejection for being far away from evidentiary certainty, thus it would be perilous to maintain the conviction---Circumstances established that prosecution had failed to prove its case beyond shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.

Ms. Saiqa Javed and Hamza Hassan Tiwana for Appellants.

Muhammad Waqas Anwar, Deputy Prosecutor General, Punjab for the State.

Nemo for the Complainant.

2018 M L D 830

[Lahore]

Before Abdul Sami Khan, J

Rana KHURRAM SHEHZAD and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.91603-B of 2017, decided on 2nd November, 2017.

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

----S. 498---Penal Code (XLV of 1860), S. 365-B---Kidnapping, abducting or inducing woman to compel for marriage---Bail, confirmation of---Complainant (father) alleged that accused along with three co-accused abducted his two daughters---FIR was registered with a delay of thirteen days and present accused persons were not named therein as culprits of alleged offence---One abductee in her application under Ss. 22-A & 22-B, Cr.P.C. stated that she had contracted marriage with co-accused with her free will and consent and nobody had abducted her; but after joining her parents she filed a suit for jactitation of marriage---Nikahnama (marriage certificate) establishing the factum of marriage between said abductee and co-accused was also available on record thus allegation of zina-bil-jabr did not sustain---Contention of counsel for complainant that other abductee supported the prosecution version in her statement under S. 164, Cr.P.C. was of no force because her statement was recorded at the time when she had already joined her parents; possibility could not be ruled out of consideration that she recorded her statement under the influence of her parents---Benefit of doubt could be extended to accused even at bail stage---Accused persons were previous non-convicts and never involved in any other case; they had already joined investigation which was complete to their extent---No useful purpose would be served by sending them behind the bars---False implication of accused persons by complainant with mala fide intention and ulterior motive after joining hands with Police could not be ruled out of consideration---Ad-interim pre-arrest bail was confirmed accordingly.

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

----S. 498---Bail---Benefit of doubt---Scope---Benefit of doubt could be extended in favour of accused even at bail stage.

Muhammad Anwar Bhaur for Petitioners with Petitioners in Person.

Irfan Zia, Deputy Prosecutor General for the State and M. Irshad, SI with record.

2018 M L D 845

[Lahore]

Before Qazi Muhammad Amin Ahmad and Sardar Ahmad Naeem, JJ

MUHAMMAD DANISH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.394 and Murder Reference No.72 of 2012, decided on 5th September, 2017.

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

----Ss. 302 & 109---Qatl-i-amd, abetment---Appreciation of evidence---Benefit of doubt---Ocular account was not supported by medical evidence---Prosecution case was that the accused on the abetment of his brother murdered the husband of complainant by firing---Motive for the crime was cited as previous dispute over a piece of land---Ocular account of the occurrence had been furnished by the complainant and his son---Said witnesses were unanimous over solitary shot fired during the occurrence by a .30-bore handgun---Half a dozen casings of different calibers on the place of occurrence was not believable---Medical evidence showed dimension of entry wound as 3 x 3 cm in front of abdomen 4-cm below the umbilicus and presence of pellet embedded in the wound, was not in consonance with the theory of single fire shot with pistol---Allegedly, accused emerged from a roadside cotton field and made firing upon deceased; in such a situation, fire shot simply could not have landed on abdominal front below umbilicus as that position of the body in the given position of the deceased would not expose to the accused allegedly confronting him from the point located on south eastern side from the deceased with inter se distance of 5 ½ feet---As per medical evidence, it was a case of massive bleeding---Complainant as well as Investigating Officer contended that the dead body remained at the crime scene till the arrival of the police---Surprisingly, not a single drop of blood was spotted at the scene---Record showed time between death and postmortem as three hours---Recovery of one pellet from inside the wound of the deceased was a serious blow to the prosecution---Motorbikes used by the deceased as well as the witnesses were not taken into possession---Recovery of pistol with three casings found to have been fired therefrom on the basis of forensic report in the wake of even dated dispatch did not improve upon prosecution case either---Both the eye-witnesses were reticent about arrival of Rescue Ambulance (1122) at the scene as well as cross firing admitted by Investigating Officer---Alleged emergence of accused from a cotton field would not admit much space for an ambush---As to how the accused hide himself in a field by roadside was inconceivable and anticipated arrival of the deceased, was unnoticed---Case of prosecution was fraught with doubts, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 302 & 109---Qatl-i-amd, abetment---Appreciation of evidence---Motive not proved---Scope---Motive behind the occurrence was old land dispute---Vaguely formulated motive in application improved in its context by complainant during trial, failed to plausibly suggest any grudge that possibly actuated the accused to take life of the deceased---Complainant alleged that accused and his brother wanted to purchase a piece of land from her father which was taken by the deceased in exchange---Said improved narration was not in line with any existing land dispute between the parties---Circumstances established that prosecution had failed to prove the motive of the occurrence.

Bashir Ahmad Rai for Appellant.

M. Waqas Anwar, D.P.G. for the State.

Nemo for the Complainant.

2018 M L D 862

[Lahore]

Before Jawad Hassan, J

FAISAL MUSHTAQ---Petitioner

Versus

SUMERA SAFDAR and others---Respondents

W.P. No.99058 of 2017, decided on 15th February, 2018.

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

----S. 25---Application of father for custody of his minor daughters---Re-marriage of mother of minor daughters ---Entitlement of mother for retaining custody---Scope---Poor financial status of mother---Effect---Welfare of the minor---Scope---Petitioner/father contended that two courts below had wrongly granted the custody of minor daughters to the mother as she had contracted second marriage with a stranger to the minors---Mother contended that there was no substitute to real mother---Validity---Record revealed that father filed application for custody of minors after fixation of maintenance allowance by the Court against him, therefore, he filed the present application to frustrate the decree of maintenance allowance ---Evidence showed that mother had been upbringing minor daughters well since their birth who were studying in a private school---Mother was an educated lady; there was no substitute of mother and association of female children with their mother was more important as compared to the father---Court while determining the custody of minors always considered the welfare of the minors---Father being Government employee had to remain at the place of his posting all day long and could be transferred at any time---Poverty or poor financial status of mother did not disentitle her from the custody of minors---High Court declined interference in concurrent findings of two courts below on the point of fact ---No illegality or infirmity having been noticed in the impugned judgments and decrees passed by the two courts below, constitutional petition was dismissed accordingly.

Mehmood Akhtar v. District Judge, Attock and 2 others 2004 SCMR 1839; Mst. Rabia Bibi v. Abdul Qadir and others 2016 CLC 1460; Amjad Masih v. Mst. Bushra Bibi 2010 YLR 1468; Mst. Naziran Bibi v. Additional District Judge, Mianwali and 2 others 2006 MLD 493; Mst. Naziran Bibi v. Additional District Judge, Mianwali and 2 others 2006 MLD 493 and Waqar Haider Butt v. Judge Family Court and others 2009 SCMR 1243 ref.

Syed Ali Awais Tirmizi for Petitioner.

2018 M L D 875

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

AZHAR BAKHTIAR KHILJI---Appellant

Versus

PROVINCE OF PUNJAB and others---Respondents

I.C.A. No.109415 of 2017, decided on 23rd November, 2017.

Punjab Prohibition of Expressing Matters on Walls Act (II of 1995)---

----S. 2---Expressing matter on walls---Appellant assailed registrations of FIRs against his workers for campaigning against Riba, corruption and obscenity in society by wall-chalking and using banners with translation of Quranic verses---Single Judge of High Court declined to interfere in the matter---Validity---No one could be let at liberty to use property, either private or that of government, without prior permission because where law guaranteed rights of appellant it had also protected rights of other side, i.e., private persons and government by not allowing anyone to use their property without any prior permission---Single Judge of High Court had rightly held that if appellant was entitled to undertake such act without prior permission from government, same would give a license to other persons to follow suit and to express an opinion that what he presumed was right and to fill public walls with all kinds of advertisement and manners of expression---Division Bench of the High Court declined to interfere in order passed by Single Judge of High Court as there was no illegality or perversity in the same---Intra-court appeal was dismissed in circumstances.

2018 M L D 887

[Lahore]

Before Qazi Muhammad Amin Ahmed and Sardar Ahmad Naeem, JJ

ZAHEER ABBAS and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.367-J, 1838 and Murder Reference No.442 of 2011, heard on 4th October, 2017.

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

----Ss. 302(b), 324, 337-F(iv), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, causing mudihah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused party along with three unknown persons, variously armed, arrived at the scene on motorbikes, made fire shots on complainant party, as a result of which, four persons of complainant party including three ladies died at the spot---Prosecution witnesses had witnessed the occurrence in the light of a lantern---Motive for the occurrence was that the daughter of an accused contracted marriage with prosecution witness without family approval---Record showed that two deceased ladies came to visit the family 4/5 days before the occurrence from their village situated at a distance of seventy kilometers from the venue---Targeted assault on said ladies in the backdrop of alleged motive was inconceivable and in their presence alongside the others during the occurrence at an odd point of time during the night to discuss matrimonial proposals at 1.00 a.m., was hardly an opportune time to negotiate the subject that too in the presence of young girls---Complainant had alleged that they took meal at Maghrab time and slept at Esha time; in such situation, the script was far from being plausible---Prosecution case was that the assault was mounted to avenge insult in the wake of complainant's marriage with daughter of co-accused without family blessing, but he survived assault unscathed---Attending circumstances of the case suggested that it was hard to believe that nine assailants armed to the tooth who came all the way to settle the score would spare the choice target and instead play havoc with the lives of the deceased, with no axe to grind; in such state of affairs, occurrence could not be said to have taken place in the manner as alleged nor the said witness was present at the crime scene---Lantern, the solitary feeble source of light had not been taken into possession, thus question of identity of assailants was inexorably lurking beneath the prosecution case---Investigating Officer recorded complaint at the spot at 1.55 a.m. while first postmortem examination was conducted as late as 3.30 p.m. after more than nine hours---Medical Officer stated in his cross-examination that he conducted postmortem examination on the dead body of male deceased without any delay and same was the case with the other deceased---Said delay spaced possibility that inquest reports as well as complaint were recorded subsequent to the point of time mentioned therein, presumably after deliberations and consultations---Night occurrence with scanty source of light reinforced the hypothesis of guesswork by the family in the wake of a sudden surprise assault---Medical evidence showed that some pellets were found in some of the wounds---Presence of pellets in some of the wounds suggested use of a shotgun while the prosecution was solely relying upon 222-caliber weapon---In the absence of recoveries, prosecution case sans forensic support as well---Four accused were real brothers inter se whereas two accused were sons of a co-accused---One of the co-accused, inducted subsequently through supplementary statement, was nephew of co-accused whereas lady co-accused was a sister, which showed that entire clan had been roped in---In the presence of unknown assailants, accused party did not need to participate in the occurrence themselves, as the needful could be conveniently done by them without corporal consequences for the family---Prosecution case could not be accepted in the absence of solid foundations merely on the ground that the family would not substitute the innocent with the real culprits---Circumstances established that case against the accused was not free from doubt and as such they could not be visited with ultimate corporal penalty merely on the basis of suspicion or moral satisfaction in the absence of evidentiary certainty---Appeal was allowed and accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.

(b) Criminal trial---

----Witness---Testimony of injured witness---Scope---Injuries were not a proof into the realm of truth and, thus, narrative must ring true to merit reliance.

Syed Zahid Hussain Bokhari, Ali Muhammad Zahid Bokhari, Muhammad Ashraf and Ms. Khalida Parveen for Appellants.

Zahid Aslam Malik, Aftab Ahmad Toor and Zafar Zulqarnain for the Complainant.

Muhammad Waqas Anwar, D.P.G. for the State.

2018 M L D 899

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD BILAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.98293/B of 2017, decided on 8th November, 2017.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 365-B---Kidnapping, abducting or inducing women to compel for marriage---Ad-interim bail confirmation of---Mala fide intention---Accused was nominated in FIR with specific allegation that he along with co-accused abducted sister of complainant for immoral purpose---FIR was registered with unexplained delay at ten days---Alleged abductee recorded her statement before the Magistrate that she with her free will and consent contracted marriage with co-accused and complainant alongwith others assaulted on her in the house of her husband but she was saved by her husband and inhabitants of the locality---Nikahnama and Computerized Marriage Certificate of alleged abductee were placed on record which showed that she was legally wedded wife of co-accused---Complainant had stated before the High Court that alleged abductee had filed a suit for jactitation of marriage against co-accused---Court of competent jurisdiction would determine that whether alleged abductee had contracted marriage with co-accused validly or not---Vicarious liability of accused in commission of alleged offence would be determined by trial court after recording evidence---Prima facie, possibility of false involvement of accused in the case due to mala fide and ulterior motive of complainant after joining hands with police, could not be ruled out---Ad-interim pre-arrest bail already granted to accused was confirmed accordingly.

Khurram Shahzad for Petitioner.

Ms. Tahira Parveen, District Public Prosecutor with Zaheer, A.S.I.

2018 M L D 915

[Lahore]

Before Abdul Sami Khan, J

FAIZ AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.25331-B of 2017, decided on 8th September, 2017.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-F(v), 337-A(iii), 337-L(2), 342, 147 & 149---Hurt, wrongful confinement, rioting, unlawful assembly---Bail, confirmation of---Case of two versions---First Information Report was registered with unexplained delay of four days---Accused was assigned the role of causing iron-rod blow on the face of the complainant and initially the injury attributed to the accused was declared by the doctor as shajjah-i-hashimah but later on same was deleted---During the course of investigation the accused was held liable only to the extent of offence under S.342, P.P.C. which was bailable in nature---Prima facie case against the accused had become a case of two versions in view of the allegations contained in FIR and the facts emerging during the course of investigation---Question of sharing common intention and vicarious liability of accused would be determined by Trial Court after recording evidence---Accused was previous non-convict, neither he was hardened, dangerous, desperate criminal nor had committed the alleged occurrence on the pretext of honour---Recovery of weapon of offence after the lapse of about four months and twenty days would be of little help to the prosecution---Accused had already joined investigation which was complete, therefore, no useful purpose would be served by sending him behind the bars so as to enable him to come out of jail on post arrest bail after a few days---Ad-interim pre-arrest bail was confirmed accordingly.

Ehsan Ullah v. The State 2012 SCMR 1137; Zaigham Ashraf v. State and others 2016 SCMR 18 and 2014 SCMR 1349 rel.

Ghulam Hussain Awan with the Petitioner in person.

Irfan Zia, Deputy Prosecutor General for the State and Muhammad Hussain, A.S.I. with record.

2018 M L D 923

[Lahore]

Before Shujaat Ali Khan, J

Mst. Hafiza SAMINA SULTAN---Petitioner

Versus

MUHAMMAD ABID and 2 others---Respondents

Writ Petition No.31866 of 2016, decided on 15th February, 2018.

Family Courts Act (XXXV of 1964)---

----S. 9---Family Courts Rules, 1965, R. 13---Suit for dissolution of marriage and recovery of dower and dowry articles---Ex-parte decree, setting aside of---Limitation---Petitioner/ex-wife contended that Appellate Court had wrongly accepted the time-barred application of the respondent/judgment debtor to set aside ex-parte decree as he intentionally avoided appearance before the court---Respondent/ex-husband contended that he was not aware of the case and that if matter was not re-opened he would not be able to receive back the gold ornaments given by him in lieu of dower---Validity---Record revealed that respondent/judgment debtor refused to accept the service, therefore, warrants for arrest were issued against him---Bailiff faced grave resentment and he requested for provision of Police assistance and succeeded to execute the warrants of arrest with the assistance of Police---Said events showed that the respondent was well aware about passing of decree and when he was produced before the court, he paid Rs. 25,000/- towards part satisfaction of decree---Rule 13 of Family Courts Rules, 1965 stipulated that judgment debtor was bound to move for setting aside the ex-parte judgment and decree within 30 days from the date of passing of the same whereas, in the present case, respondent filed such application after more than five months of passing of the same---High Court observed that the dissolution of marriage was decreed on the ground of cruelty, and not on the basis of Khula, so there was no question of return of dower---High Court set aside the impugned judgment passed by the Appellate Court---Constitutional petition was allowed accordingly.

Ch. Zahid Javed for Petitioner.

2018 M L D 934

[Lahore]

Before Abdul Sami Khan, J

MOHSIN ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.94159-B of 2017, decided on 21st December, 2017.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Accused was not named in FIR---Complainant and prosecution witnesses, while identifying accused during identification parade, assigned joint role of giving beating to the deceased, but postmortem report of the deceased reflected that except the fracture of hyoid bone, there was no mark of violence on the body of deceased---Co-accused who had been assigned the role of pressing neck of the deceased, had already been declared innocent; which had prima facie created doubt qua the story of incident---Accused, after arrest was kept in Police Station for one day and thereafter was lodged in jail for the purpose of identification parade---Complainant and prosecution witnesses also did not assign any specific role to accused in the occurrence during the proceedings of identification parade---Evidentiary value of identification parade against accused, would be determined by Trial Court after recording evidence---Case had become of two versions i.e. one put forwarded by the complainant in FIR and the other coming on record during investigation; question as to which version was correct, would be determined by the Trial Court after recording evidence---Questions of sharing common intention and vicarious liability of accused in commission of alleged offence, would be determined by Trial Court after recording evidence---Accused was previous non-convict and never involved in any other case of such nature---Accused was behind the bars since 26-7-2017, but his trial had not progressed---Investigation to the extent of accused was complete and he was no more required for further investigation---No useful purpose would be served by keeping accused behind the bars---Case of accused having become one of further inquiry covered by subsection (2) of S.497, Cr.P.C., he was granted bail, in circumstances.

Zaigham Ashraf v. State and others 2016 SCMR 18 rel.

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

----S. 497---Bail---Benefit of doubt---Benefit of doubt, could be given to accused, even at bail stage.

Pir S.A. Rashid for Petitioner.

Ms. Tahira Parveen, D.P.P. for the State and M. Akhtar, S.I. with record.

2018 M L D 945

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD YAR SADAF and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos.93558-M and 98905-M of 2017, decided on 8th December, 2017.

Penal Code (XLV of 1860)---

----Ss. 337-L(2), 337-N(2) & 34---Criminal Procedure Code (V of 1898), S.561-A---Causing hurt liable to punishment of Daman---Common intention---Petitioners, were nominated in Rapt under S.337-L(2), P.P.C., with the role of causing injury with fist and kiks on the person of injured/complainant---Trial Court on the basis of confessional statements of the petitioners, convicted the petitioners and sentenced them to pay Daman in sum of Rs.3000 for each injury---Said quantum of Daman was enhanced and fixed Rs.10,000/- for each injury---Petitioners, challenged said enhancement, whereas, injured/ complainant, filed petition for awarding sentence of imprisonment to the petitioners---Petitioners, having confessed their guilt voluntarily, their conviction on the charge of offence under S.337-L(2), P.P.C., was maintained---Petitioners were previously non-convicts---Nothing had been brought on record by the prosecution to show involvement of the petitioners in any other case to consider them hardened, dangerous criminals---In all cases of hurt provided for in Chapter XVI, P.P.C., the normal punishment to be awarded to the offenders, was payment of 'Arsh' or 'Daman', and the optional additional punishment of imprisonment as Tazir, provided for the relevant offence, could be awarded to the 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---In the case of such an offender the sentence of imprisonment as Tazir, would not be less than one-third of the maximum imprisonment provided for the hurt caused---Trial Court had rightly extended benefit of S.337-N(2), P.P.C., to the petitioners---No reason existed to enhance the amount of Daman imposed on the petitioners by the Revisional Court---Order, enhancing amount of Daman, was set aside, and that of Rs.3000 was upheld and maintained.

PLD 2009 Lah. 312 and Ali Muhammad v. The State 2012 PCr.LJ 104 ref.

Malik Allah Bakhash Shakeel for and with the Petitioners in person.

Rana Muhammad Asif Iqbal, A.D.P.P. for the State.

2018 M L D 959

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jehangir, J

MUHAMMAD AHMAD FAROOQ and another---Petitioners

Versus

PROVINCE OF PUNJAB through Member Judicial-VII, Board of Revenue Punjab, Lahore through DCO/Collector District Sahiwal and 12 others---Respondents

Civil Revision No.60 of 2017, heard on 19th April, 2017.

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

----O. XXXIX, Rr. 1 & 2---Suit for declaration---Temporary injunction, grant of---Ingredients---General Power of Attorney on the basis of which impugned mutation was attested was a fake document---Ingredients for grant of temporary injunction were prima facie case, balance of convenience and irreparable loss---Court was required to weigh said elements while considering whether plaintiff had approached the Court with clean hands or grant of injunction would result into an undue advantage to the party---Plaintiffs had not approached the Court with clean hands as their case was based on a forged and fictitious document---Mere possession of suit property could not be made basis to equip the plaintiffs with the injunction for an indefinite period---Plaintiffs had failed to make out a prima facie case while the other two factors did not tilt in their favour---Revision was dismissed in circumstances.

Muhammad Ali v. Mahnga Khan 2004 SCMR 1111 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.

Syed Athar Hassan Bukhari for Petitioners.

Charagh Muhammad Maan and Ihsan Ahmad Bhindar for Respondents Nos.4 to 7.

Malik Bashir Ahmad Lakhesir, A.A.G. for Respondents Nos.1 to 3.

2018 M L D 1044

[Lahore]

Before Shahid Waheed, J

WALI MUHAMMAD through L.Rs. and others---Appellants

Versus

GHULAM NABI---Respondent

Regular Second Appeal No.221 of 2014, heard on 29th November, 2017.

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

----S. 13---Civil Procedure Code (V of 1908), S. 96---Talbs, performance of---Requirements---Discrepancy qua time of performing Talb-i-Muwathibat---Effect---Appellate Court, duty of---Scope---Pre-emptor to claim right of pre-emption was bound to prove formalities of performing talbs---Date, time and place were essential components to prove Talb-i-Muwathibat---Discrepancy in the statements of pre-emptor and his witnesses with regard to time to perform Talb-i-Muwathibat was on record which could not be ignored---Convincing, reliable and consistent statement of witnesses was mandatory requirement of law as from the date and time of performing Talb-i-Muwathibat the period for sending notice of Talb-i-Ishhad had to be calculated---Pre-emptor had not performed first Talb immediately on getting information with regard to sale of suit land---Talb-i-Ishhad was to be performed by sending a written notice under registered cover acknowledgement due attested by two truthful witnesses---Pre-emptor was required to first aver in his plaint that notice of Talb-i-Ishhad was sent under cover along with acknowledgement due request---Contents of plaint and statements of witnesses appeared on behalf of plaintiff were silent with regard to sending of said notice with acknowledgement due---Plaintiff unless permitted by the Trial Court could not have produced any evidence on the point of notice under registered cover being posted with acknowledgement due---Acknowledgement due card was tendered without getting permission of Trial Court in the statement of counsel but not through any witness---Said acknowledgement due card could not be considered in evidence in circumstances---Pre-emptor had failed to discharge his burden to prove that notice of Talb-i-Ishhad as required under S.13(3) of Punjab Pre-emption Act, 1991---Vendee had denied the receiving of any notice of Talb-i-Ishhad in the present case---Pre-emptor was bound to prove that notice of Talb-i-Ishhad was served upon the vendee---Service of notice of Talb-i-Ishhad was not personally effected upon the vendee---Pre-emptor had failed to perform Talb-i-Ishhad in accordance with law---First appeal was a right in which both questions of law and facts had to be considered---First Appellate Court was bound to deal with all the issues of law and facts itself and decide them by rendering discreet reasoning---Appellate Court without recording its own reasons had just repeated the findings of Trial Court and dismissed the appeal---Appellate Court had failed to exercise jurisdiction while rendering impugned judgment and decree---Pre-emptor, to be entitled to the right of pre-emption, was bound to perform Talb-i-Muwathibat and Talb-i-Ishhad---Plaintiff had failed to perform talbs in accordance with law in the present case and he was not entitled to decree as prayed for---Impugned judgments and decrees passed by the Courts below were not sustainable in the eye of law---Suit filed by the pre-emptor was dismissed---Second appeal was allowed in circumstances.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Ghulam Abbas and another v. Manzoor Ahmad and another 2008 SCMR 1366; Abdul Majid Mia v. Moulvi Nabiruddin Pramanik and 3 others PLD 1970 SC 465; Khan Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160; Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Abdul Qayyum v. Muhammad Rafique 2001 SCMR 1651; Basharat Ali Khan v. Muhammad Akbar 2017 SCMR 309; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Bashir Ahmad v. Ghulam Rasool 2011 SCMR 762; Allah Ditta through his L.Rs. and others v. Muhammad Anar 2013 SCMR 866; Khan Afsar v. Afsar Khan and others 2015 SCMR 311 and Munawar Hussain and others v. Afaq Ahmad 2013 SCMR 721 rel.

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

----S. 96---Appeal---Scope---Appeal under S. 96, C.P.C. was a substantive right conferred by the statute.

Saif Ullah Maan for Appellants.

Mian Shah Abbas Iqbal for Respondent.

2018 M L D 1072

[Lahore (Multan Bench)]

Before Raja Shahid Mehmood Abbasi and Asjad Javaid Ghural, JJ

BASHIR AHMAD and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos.10, 1-J of 2014 and Murder Reference No.7 of 2016, heard on 18th October, 2017.

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

----Ss. 302, 337-A(ii), 337-L(2), 148 & 149---Qatl-i-amd, causing shajjah-i-mudihah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that complainant, his son and paternal uncle were irrigating crop, when accused persons armed with deadly weapons assaulted upon them---During the occurrence, the complainant and his son sustained injuries, son of complainant succumbed to the injuries on the spot---Motive of the occurrence was dispute over landed property and civil cases were pending and due to irrigating the land, accused lady with the assistance of his son and son-in-law, murdered son of complainant and caused injuries to the complainant by hired assassins---Ocular account of the occurrence was furnished by the complainant, father of the deceased and son of complainant---Complainant had claimed that soon after the occurrence, he had covered the distance of hardly one acre for reporting the matter to the police that the police met him and reached at the place of occurrence---Record showed that occurrence took place at 12.30 a.m. and police reached there soon after the occurrence---Other eye-witness had deposed that the police reached at the place of occurrence after about 2½ hours of the murder---Said variation to meet the delayed reporting of the matter to the police had lost the credibility of the eye-witnesses---Eye-witness had not uttered about the source of light at the place of occurrence---Admittedly, it was a dark night occurrence, which had taken place in open field where no source of light was available---Availability of source of light was neither stated by the complainant nor by the eye-witnesses in the crime report nor in their examination-in-chief before the Trial Court---Complainant had admitted during his cross-examination that it was a dark night occurrence but deposed that he had a torch with him at the time of occurrence and witnessed the occurrence in the light of torch---Eye-witness had negated the improved version of the complainant and deposed that neither he nor the complainant had any torch at the time of occurrence---Neither the complainant party had produced any torch nor the Investigating Officer had made any effort to collect torch during investigation---Mode of occurrence as narrated by the complainant explaining each and every injury one-by-one with the specific location against the accused persons by names with specific weapons including the number of injuries was not possible for a human being---Circumstances suggested that it could not be expected from a father to count each and every injury on the person of his real son as a silent spectator instead of making any attempt to rescue him---Complainant party, five in number, had claimed to be present at the place of occurrence---Members of complainant party were equal to the number of male accused persons as mentioned in the crime report, who were not armed with conventional weapons, but the complainant party could not cause any injury to any of the accused persons or even to the women folk---Accused was medically examined and the Medical Officer had observed three incised wounds on his person, which corresponded to the date of occurrence---Injuries sustained by the accused were suppressed by the prosecution and the Medical Officer, who conducted medico legal examination, was not produced before the Trial Court---Crime report was registered against five nominated and an unknown accused person---Unknown accused person was subsequently known as a close relative of both the eye-witnesses---Said fact indicated that unknown accused was not a stranger to the witnesses---If the prosecution witnesses failed to identify their close relative then how they succeeded to identify rest of the accused persons including those who were not residents of the vicinity and had no business whatsoever to be present at the place of occurrence---Said eventualities showed that the witnesses of ocular account were neither present at the place of occurrence nor had witnessed the occurrence---Prosecution had alleged that the injuries on the person of the complainant duly supported by the medical evidence established his presence at the venue of occurrence, but as to how and who had caused these injuries, had to be proved by the prosecution beyond shadow of doubt---Record showed that it was a dark night occurrence and keeping in view the unnatural conduct of the eye-witnesses, the deposition of injured witness could not be taken as gospel truth---Ocular account furnished by the prosecution witnesses in the given circumstances, merited outright rejection---Circumstances established that prosecution had failed to bring home guilt of the accused beyond shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.

Muhammad Pervez v. The State and others 2007 SCMR 670 rel.

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

----Ss. 302, 337-A(i), 337-L(2), 148 & 149---Qatl-i-amd, causing shajjah-i-mudihah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Postmortem examination---Object---Purpose of Postmortem examination was to ascertain the number of injuries, nature of injuries, kind of weapon used but such report by itself did not raise finger towards the actual culprit.

Faqeer Muhammad v. Shahbaz Ali and others 2016 SCMR 1441 and Muhammad Pervez v. The State and another 2007 SCMR 670 rel.

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

----Ss. 302, 337-A(i), 337-L(2), 148 & 149---Qatl-i-amd, causing shajjah-i-mudihah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Blood-stained dagger was recovered from the accused---Effect---Recovery of blood stained dagger from accused with the positive report of the Forensic Science Laboratory though provided corroboration to the ocular account yet the same alone being corroboratory piece of evidence, was of no avail to the prosecution in absence of confidence inspiring ocular account.

Faqeer Muhammad v. Shahbaz Ali and another 2016 SCMR 1441 rel.

Ch. Muhammad Naeem and Mian Khalid Hussain Mitru for Appellant.

Syed Nizam-ud-Din Shah for Appellants on state expenses.

Nasir Mehmood Qureshi for the Complainant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

2018 M L D 1090

[Lahore]

Before Atir Mahmood, J

MUHAMMAD MUSHTAQ BHUTTA through legal heirs---Petitioner

Versus

Ch. MUHAMMAD JAMEEL and 6 others---Respondents

Civil Revision No.1204 of 2011, heard on 13th September, 2017.

(a) Gift---

----Proof of---Fraud and misrepresentation---Burden of proof---Contention of plaintiff was that gift deed in favour of defendant was illegal, void and inoperative upon his rights---Suit was dismissed concurrently---Validity---Beneficiary of document was bound to prove its execution but when same was challenged on account of some fraud and misrepresentation then initial burden to prove such fraud and forgery would rest upon the party who alleged as such---Plaintiff could not prove through any cogent evidence that deceased was under any mental disability at the time of execution of gift deed---Defendant had established execution of impugned gift deed in his favour through production of marginal witnesses---Plaintiff had failed to produce any doctor who treated the deceased nor any medical record was produced---Revision was dismissed in circumstances.

Ashiq Hussain and another v. Ashiq Ali 1972 SCMR 50; Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403; Rab Nawaz and others v. Ghulam Rasul 2014 SCMR 1181; Syed Niamat Ali and 4 others v. Dewan Jairam Dass and another PLD 1983 SC 5; Messrs A.R. Builders (Pvt.) Ltd. v. Faisal Cantonment Board and 4 others PLD 2004 Kar. 492; Alam Khan and 3 others v. Pir Ghulam Nabi Shah and Company 1992 SCMR 2375 and Industrial Development Bank of Pakistan v. Messrs Naqi Beverages (Pvt.) Ltd. and 7 others 2002 CLD 712 ref.

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

----O. VIII, R. 6---Claim for set-off---Requirement---Claim for set-off could only be made in a suit for recovery of money.

Tasawar Hussain Qureshi for Petitioners.

Muhammad Waheed Akhtar Mian for Respondents Nos.1 to 6.

Syed Ali Imran Naqvi and Ms. Shah Bano Bukhari for Respondents Nos. 2 to 7.

Ms. Saima Aslam for Respondent No.7, present in person.

2018 M L D 1131

[Lahore]

Before Jawad Hassan, J

MOHAMMAD SHAHZAIB---Petitioner

Versus

MISHAL FATIMA and others---Respondents

Writ Petition No.161497 of 2018, decided on 22nd February, 2018.

Family Courts Act (XXXV of 1964)---

----Ss. 5 & 14---Constitution of Pakistan, Art.199---Constitutional petition---Alternate and efficacious remedy---Interim order---Striking of defence---Suit for recovery of maintenance---Petitioner (husband) failed to cross-examine witnesses of plaintiff (wife) despite lapse of more than three years, therefore, Trial Court closed his right to cross examine the witnesses---Validity---Legislature specifically prohibited filing of appeal or revision against an interim order---If constitutional petition was allowed to be filed against such order, same would tantamount to defeating and diverting intent of Legislature---Petitioner had adequate remedy available to him by challenging order in question in appeal, which he could file against ultimate order / judgment if the same was passed against him---High Court declined to entertain constitutional petition as the same was hit by Art. 199(1) of the Constitution---No illegality or material irregularity existed in the order passed by Family Court calling interference in Constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Aman Ullah Khan v. District Judge and 3 others 2012 CLC 679; Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and others 1996 SCMR 1165 and Muhammad Sabir v. Mst. Azra Bibi and 2 others 2011 CLC 417 rel.

Ch. Zulfiqar Ai for Petitioner.

2018 M L D 1148

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD NAZEER AHMAD and others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos.125654-B and 126970-B of 2017, decided on 12th February, 2018.

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

----S.498---Penal Code (XLV of 1860), Ss. 379 & 447/511---Theft and attempt to commit criminal trespass---Ad-interim bail, recalling of---Accused was nominated in FIR with specific allegation that he sold out plot of the complainant to co-accused persons and he tried to hand over possession of the said plot to the said persons---Record revealed that before selling the plot in dispute, the accused had taken away bricks from there, thus, accused had not only committed fraud with the complainant, but had also defrauded co-accused---Statement recorded under S. 161, Cr.P.C. prima facie connected accused with the present case---Accused had failed to establish mala fide of the complainant or local police for his false implication in the present case---Accused did not deserve the extra-ordinary concession of pre-arrest bail---Ad-interim bail already granted to the accused was recalled, in circumstances.

Mukhtar Ahmad v. The State and others 2016 SCMR 2064 ref.

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

----S. 498---Penal Code (XLV of 1860), Ss. 379 & 447/511---Theft and attempt to commit criminal trespass---Ad-interim bail, confirmation of---Co-accused persons had purchased the disputed plot from principal accused and prima facie they were bona fide purchasers with value and without having information of any defect qua the ownership of the said accused whose bail application had been rejected---Possibility that co-accused persons had been falsely involved in the case with mala fide intention and ulterior motive and also after due deliberation in order to put pressure upon them to withdraw their claim of ownership over the disputed plot could not be ruled out---Ad-interim bail already granted to co-accused persons was confirmed accordingly.

Malik Munsaf Awan with Muhammad Nazeer Ahmad for Petitioner (in Criminal Miscellaneous No.125654-B of 2017).

Malik Muhammad Tabraiz Khokhar with Sajjad Kashif and Hamza Kashif for Petitioners (in Criminal Miscellaneous No.126970-B of 2017).

Ms. Nuzhat Bashir, Deputy Prosecutor General for the State and Nawaz ASI with record.

2018 M L D 1215

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD ASHRAF and 3 others---Petitioners

Versus

MUHAMMAD BOOTA and 3 others---Respondents

Civil Revision No.2108 of 2009, decided on 2nd February, 2018.

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

----Art.120---Suit for declaration---Limitation---Contention of plaintiff was that impugned sale deed in favour of defendants was against law and facts---Suit was decreed concurrently---Validity---Suit land purchased by the defendants was subsequently entered into revenue records---Present suit was filed after about twenty years while limitation for the same was six years---Nothing was on record as to why plaintiff remained mum for such a long period rather a vague plea of having cause of action accrued about one month earlier had been taken---Plaintiff having admitted the contents of sale deed, was bound to challenge the same within time---Plea of plaintiff that he was not aware of the facts was not believable---Courts below had failed to appreciate evidence on record---Material illegality and irregularity had been committed by the Courts below while passing the impugned judgments and decrees, which were set aside and suit was dismissed---Revision was allowed in circumstances.

Lal Khan (Decd.) through His LRs. v. Muhammad Yousaf (Decd.) through His LRs. and another PLD 2011 SC 657 and Muhammad Amir and others v. Mst. Beevi and others 2007 SCMR 614 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings cannot be considered as inviolable and High Court is competent to interfere if such findings are based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous presumption of facts and consideration of inadmissible evidence.

Muhammad Sami v. Additional District Judge, Sargodha and 2 others 2007 SCMR 621; Muhammad Aslam v. Mst. Ferozi and others PLD 2001 SC 213; Barkat Ali v. Muhammad Nawaz PLD 2004 SC 489 and Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149 rel.

Malik Muhammad Arshad Awan and Ms. Saima Hanif Mughal for Petitioners.

2018 M L D 1231

[Lahore]

Before Jawad Hassan, J

ASGHAR ALI---Petitioner

Versus

TANVIR AHMAD and others---Respondents

W.P. No.45165 of 2017, heard on 9th April, 2018.

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

----Ss.5, 6, 7, 9 & 15---Ejectment petition---Oral tenancy agreement between landlord and tenant---Penal consequence---Payment of fine---Tenancy might not be necessarily through a written document but could be oral---Punjab Rented Premises Act, 2009 did not debar entertainment of ejectment petition in case of oral tenancy---Object of the law was to compel the parties to enter into a tenancy agreement within the view and scope of the provisions of Ss.5, 6 & 7 of the Act (read together)---Penalty had been provided by the law for the breach of the obligations, envisaged thereby, in that, where the tenancy agreement was not so entered and a landlord or the tenant approached the Rent Tribunal for the enforcement of his right(s) under the Act, he had to pay a fine, the non-registration of the rent agreement---Oral tenancy was an irregularity that entailed penal consequences---Ejectment petition could be entertained subject to payment of fine as enshrined in S. 9 of the Act.

Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another PLD 2009 SC 453; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45; Standard Chartered Bank (Pakistan) Limited and others v. Additional District Judge, Karachi and others 2016 YLR 1750 and Abdul Hamid Jalib v. Addl. District Judge, Lahore PLD 2013 SC 775 rel.

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

----S. 15---Qanun-e-Shahadat (10 of 1984), Art.115---Ejectment petition---Estoppel, principle of---Applicability---Title of landlord, challenge to---Scope---Once a tenant was always a tenant---Tenant, during the subsistence of tenancy, had no right to challenge the title of landlord.

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

----S.15---Ejectment petition---Ownership of landlord---Presumption---Landlord may not be essentially an owner of the property and ownership may not always be a determining factor to establish the relationship of landlord and tenant between the parties; however, in normal circumstances in absence of any evidence to the contrary, the owner of the property by virtue of his title is presumed to be the landlord and the person in possession of premises is considered tenant.

Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 rel.

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

----S.15---Qanun-e-Shahadat (10 of 1984), Art.115---Once relationship of tenancy was proved; Art.115 of Qanun-e-Shahadat, 1984 would come into play.

Amin and others v. Hafiz Ghulam Muhammad and others PLD 2006 SC 549; Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern, Ltd., and others AIR 1937 PC 251: 1937 (64) L.R.-I.A.311); Ahman Shah Muhammad v. Emperor AIR 1937 Lah. 243; Krupasighu Routra and another v. Purna Chandra Misra and others AIR 1973 Orissa 44; Muhammad Anwer through his legal representatives v. Abdul Shakoor 1982 SCMR 1120; Messrs Muhammad Ismail and Bros. v. Malik Muhammad Tahir and others 1981 SCMR 139 and Ismail Brothers v. Keval Ram PLD 1981 SC 545 rel.

Malik Noor Muhammad Awan for Petitioner.

Mehr Atta-ur-Rehman for Respondents.

2018 M L D 1253

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MALIK BOARD AND PAPER INDUSTRIES (PVT.) LTD.---Petitioner

Versus

TARIQ SAEED and others---Respondents

C. R. No.4088 of 2016, heard on 6th March, 2018.

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

----O. VIII, R. 10 & S. 115---Malicious prosecution---Suit for recovery of damages---Defendant having not been delivered copy of the plaint---Effect---Non-filing of written statement---Striking off defence---Revision---Limitation---Defendant was directed to submit written statement but same was not filed and right of defence was struck off---Revision was filed within time which was entertained but was returned when it was fixed for final argument being beyond pecuniary jurisdiction of the Court---Validity---District Judge was contributory to the delay for presentation of revision before High Court; had he objected at the very first point of time while realizing that Court lacked jurisdiction to entertain the revision petition, revision might have been filed within time before the High Court---Suit was instituted by the plaintiffs without fixation of court-fee on the plaint---Suit was not competent to be proceeded any further without fixation of court-fee---Suit was adjourned in routine without specifically requiring the filing of written statement and delivery of copy of plaint---Only four days time was provided to the defendant to file written statement which was not sufficient---Trial Court while delivering copy of plaint had not specifically required to do the needful---Period of ten months was allowed to the plaintiffs to furnish court fee to make their suit competent---One chance was to be afforded to the defendant to submit written statement---Law favoured adjudication on merits---Impugned order was set aside subject to payment of costs of Rs. 15,000/---Trial Court was directed to proceed with the suit from the stage when defence was struck off---Revision was allowed in circumstances.

Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365; The Secretary, Board of Revenue, Punjab, Lahore and another v. Khalid Ahmad Khan 1991 SCMR 2527; Col. Retd. Ayub Ali Rana v. Dr. Carlite S. Pune and another PLD 2002 SC 630; Ghulam Hussain v. Shahzada Khurram Nazir 2011 YLR 763; Adil Textile Mills through Chief Executive and another v. Sui Northern Gas Pipeline Limited through Authorized Officer PLD 2012 Lah. 300; Chief Secretary/Provincial Government G.B. Gilgit and 3 others v. Abdur Raziq 2017 YLR 863 and Riaz ul Haq and others v. Muhammad Asghar and others 2017 SCMR 1841 rel.

(b) Administration of justice---

----Law favours adjudication on merits.

Mian Tahir Maqsood for Petitioner.

Waqas Qadeer Sh. for respondent No.1, whereas Respondent No.2 was proceeded against ex parte on 06.12.2016.

2018 M L D 1265

[Lahore (Multan Bench)]

Before Asjad Javaid Ghural, J

HABIB ULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1321-B of 2017, decided on 5th April, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment and common intention---Bail, grant of---Further inquiry---Accused remained absconded for five years---Accused contended that there was difference in number of injuries on the person of deceased as claimed by the complainant in FIR and that of injuries observed by the medical expert at the time of post-mortem examination of the deceased---Complainant had claimed that four accused persons had made firing with respective firearm weapons whereas the deceased and the injured had received total three fire shots---Fact that which of the accused persons had not made firing could not be specified at bail stage---Bail could not be withheld on account of mere absconsion of the accused if his case otherwise called for further inquiry into his guilt as envisaged under S.497(2), Cr.P.C---Accused was admitted to bail, in circumstances.

Muhammad Shahid and another v. The State PLD 2007 Lah. 633 and Qamar alias Mitho v. The State and others PLD 2012 SC 222 ref.

Ch. Faqir Muhammad for Petitioner.

Sardar Mehboob for the Complainanat.

2018 M L D 1296

[Lahore]

Before Jawad Hassan, J

JAVED IQBAL---Petitioner

Versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No.190734 of 2017, decided on 4th April, 2018.

Family Courts Act (XXXV of 1964)---

----Ss. 13 & 14(3)---Maintenance allowance---Execution proceedings---Unpaid decree---Liability of surety vis-à-vis judgment debtor---Scope---Petitioner/judgment debtor contended that as his surety was behind the bars therefore, the Executing Court could not send him to judicial lock-up for implementation of decree against him---Validity---Surety was as much bound by his undertaking as was the judgment debtor, and both were collectively and severally liable to make payment to the decree-holder---Surety would not be absolved of his liability if judgment debtor was sent behind the bars---Surety would have been conscious of his liabilities and he would not be allowed to evade from the same---Record revealed that surety was arrested and sent to prison but after the arrest of the petitioner (Judgment debtor), executing Court released him (surety)---Said action taken by the Executing Court was in accordance with law---Impugned order passed by the Executing Court was interim in nature and constitutional petition would not lie before the High Court as S.14(3) of the Family Courts Act, 1964 showed that no appeal or revision would lie against the interim order passed by the Family Court---No illegality or infirmity having been noticed in the impugned order passed by the Executing Court---Constitutional petition was dismissed accordingly.

Muhammad Amin v. Judge Family Court, Sahiwal and 3 others 2015 YLR 316; Muhammad Anwar Khan v. Mst. Yasmin Zafar 1987 SCMR 2029; Ms. Quratulain Aleem v. Muhammad Rehman Khan and another 2006 YLR 2604 and Mst. Noor Jehan alias Tasleem Begum v. Muhammad Arshad and another 1986 CLC 442 ref.

2018 M L D 1303

[Lahore]

Before Jawad Hassan, J

Mrs AMNA NAWAZ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.38793 of 2016, heard on 4th April, 2018.

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

----O. XLI, R.27---Additional evidence, production of---Powers of Appellate Court to take additional evidence---Scope---Additional evidence could be allowed to be produced if the court considered that the same was required to reach the just decision of the case---Main factor involved for producing the additional evidence was the satisfaction of the court---Additional evidence could not be allowed to be produced in routine just to fill up the lacunas or cover-up the weaknesses of the case of a party.

Rana Abdul Aleem Khan v. Idara National Industrial Co-Operative Finance Corporation through Chairman Punjab Cooperative Board for Liquidation, Lahore and another 2016 SCMR 2067; Mst. Nasreen Akhtar v. Mohsin Ali 2011 CLC 1206; Muhammad Sadiq v. Allah Ditta and 6 others 2017 CLC 1040; Salat and 15 others v. Wadi Hussain and 3 others 2014 SCR 1097 and Muhammad Siddique v. Abdul Khaliq and 28 others PLD 2000 SC (AJ&K) 20 rel.

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

----O. XLI, R.27---Additional evidence, production of---Powers of Appellate Court to take additional evidence---Principles---Additional evidence could be allowed to be produced only where the Trial Court had improperly refused to admit or that evidence which ought to have been admitted or that Appellate Court required such document or witness and could not pronounce judgment without such additional evidence and that the Appellate Court required such evidence for any other substantial cause.

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

----S.107 & O.XLI, R.23---Remand of case---Principles---Remand was to be resorted only where it was absolutely necessary for a fair and proper adjudication of case---Unnecessary remand resulted in undue delay and hampered inexpensive and expeditious justice---Power of remand was not to be exercised lightly but sufficient care be taken in remanding the case---Remand of the case was to be ordered in exceptional circumstances.

Messrs Shah Nawaz Khan and Sons v. Government of NWFP and others 2015 SCMR 945; Rehman Shah and others v. Sher Afzal and others 2009 SCMR 462; Habib Ullah v. Azmat Ullah PLD 2007 SC 271; Mst. Muhammad Dervaish Al-Gilani and 14 others v. Muhammad Sharif and others 1997 SCMR 524 and Mst. Shahida Zareen v. Iqrar Ahmed Siddiqui 2010 SCMR 1119 rel.

Rai Muhammad Yousaf Muaz for Petitioner.

Raja Jehangzeb Akhtar along with Respondent No.2.

2018 M L D 1315

[Lahore]

Before Jawad Hassan, J

Syed HAMID HASSAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

W.P. No.2023 of 2012, decided on 11th April, 2018.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.17 (3)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Suit for recovery of maintenance allowance---Family Court fixed maintenance allowance @ Rs. 3,000/- per month for each plaintiff (wife and children) with 15% annual increase---Contention of husband/father was that plaintiff-wife prayed for increase of 10% per annum but Family Court had granted 15% increase per annum in the maintenance allowance without any reason---Validity---Defendant being father of child could not deny the maintenance allowance fixed by the Family Court which was not harsh or excessive---Assessment and appraisal of evidence was the function of Family Court---Courts below had fixed maintenance allowance after considering needs/requirements of plaintiffs and financial status of the defendant---Defendant being a retired employee and except pension he had no other source of income, annual increase in the maintenance allowance was reduced to 10%---Courts below had recorded concurrent findings with regard to maintenance allowance---No illegality or irregularity had been pointed out in the impugned judgments passed by the Courts below---Constitutional petition was dismissed in circumstances.

Lt. Col. Nasir Malik v. Addl. District Judge, Lahore and others 2016 SCMR 1821; Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through L.Rs. and others 2015 SCMR 1081; Mst. Nusrat and others v. Dr. Cap. Shahzad Riaz and others 2011 SCMR 1325; Waqar Haider Butt v. Judge, Family Court and others 2009 SCMR 1243; Muhammad Habib v. Mst. Safia Bibi and others 2008 SCMR 1584 and Mst. Sarwar Mai and another v. Judge Family Court, Muzaffargarh and others 2010 YLR 1234 rel.

(b) Constitution of Pakistan---

---Art.199---Constitutional jurisdiction of High Court---Scope---High Court in its extraordinary jurisdiction could not go behind concurrent findings of facts unless it can be shown that the finding is on the face of it against the evidence or so patently improbable and illegal, or perverse that to accept same could amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication of principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physically impossible.

Lt. Col. Nasir Malik v. Addl. District Judge, Lahore and others 2016 SCMR 1821 rel.

Syed Muhammad Hussain Shah for Petitioner.

2018 M L D 1371

[Lahore]

Before Amin-ud-Din Khan, J

Mst. TAHIRA BATOOL and another---Petitioners

Versus

IRSHAD HUSSAIN---Respondent

Civil Revision No.51833 of 2017, heard on 13th April, 2018.

Civil Procedure Code (V of 1908)---

----O. IX, R. 13---Suit for declaration---Ex-parte proceedings, setting aside of---Affidavit---Scope---Trial Court dismissed application for setting aside ex-parte proceedings without framing issues---Contention of applicants was that their predecessor had died and they had no knowledge of the suit---Validity---No opportunity had been afforded to the applicants to substantiate their version pleaded in the application---Said application was supported by the affidavit which was to be accepted by the Court; if Court was of the view that affidavit was not worth consideration, applicants must have been afforded an opportunity to substantiate their case pleaded in the application---Impugned order for ex-parte proceedings and ex-parte judgment and decree passed by the Courts below were set aside---Suit filed by the plaintiff was directed to be deemed to be pending before the Trial Court to be decided in accordance with law---Revision was allowed.

National Bank of Pakistan v. The Additional District Judge, Lahore and 2 others PLD 1985 Lah. 327; Hassan Din and another v. Jalal Din and 2 others 1991 CLC 33; Sajjad Ahmad v. Canon How Thomas 2007 CLC 1017(2)) and Qazi Laeeq v. Najeebur Rehman and others 2012 MLD 50 rel.

Tariq Masood for Petitioners.

Khurram Abbas Jafri for Respondent.

2018 M L D 1386

[Lahore]

Before Muhammad Qasim Khan, J

HAIDER ABBAS BHINDAR---Petitioner

Versus

DISTRICT POLICE OFFICER, SHEIKHUPURA and 5 others---Respondents

Criminal Miscellaneous No. 19096-H of 2018, decided on 12th April, 2018.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Contracting marriage without consent/knowledge of parents---Jurisdiction of High Court under S.491, Cr.P.C.---Scope---Abduction of wife of petitioner/husband by her parental family members---Petitioner contended that his wife had been forcibly abducted by her parental family members as she contracted marriage against their wishes---High Court observed that it had become trend in the society, rather it had shaped into well thought practice that girls come out of their houses for couple of hours on any pretext; enter into marriage without the consent of their parents; file complaint alleging harassment; return back to their parental home and thereafter, the entire exercise was followed by petition under S.491, Cr.P.C. before the High Court which was managed with a view to use High Court as a stage of "Rukhsati"---Such indecent activity was nothing less than menace which required to be plugged as far as practicable as the same was not only destroying character of youth but also stigmatizing and diminishing moral values---No evidence had been cited by the petitioner for the purpose of proceedings under S.491, Cr.P.C. to lend support of his assertion about immediate and forcible abduction of his wife---Girl who was major and allegedly abducted but none of the locality got glimpse of the incident---Petitioner had alleged to have been informed about forcible abduction by his wife telephonically but no cellular or landline number had been given to establish the same---Wife of the petitioner was, admittedly, with her parents---Petitioner could resort Family Court for the restitution of conjugal rights---Petitioner had not made out a case for handing over custody of alleged abductee---High Court declined to exercise jurisdiction under S.491, Cr.P.C. to effect "Rukhsati"---Habeas Corpus petition was dismissed, in circumstances.

Mukhtar Ahmad v. Ghafoor Ahmad and 3 others PLD 1990 Lah. 484; Irfan Ahmad v. SHO and 6 others 2011 PCr.LJ 597 and Muhammad Javed Sagar v. Station House Officer and 2 others 2011 PCr.LJ 674 ref.

2018 M L D 1416

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar and Asjad Javaid Ghural, JJ

MUHAMMAD ZAFAR---Petitioner

Versus

The STATE and others---Respondents

Crl. Misc. No.6676-B of 2017, decided on 15th November, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997),Ss. 9(c) & 2(d)(ii)---Prohibition ( Enforcement of Hadd) Order (4 of 1979), Art.4---Possession of narcotic substance weighing 3 kilograms---Bail, grant of---Recovery of "Bhang"---Recovery of "Bhang" from the accused, was without specifying parts thereof---Trial Court would determine as to whether the case against the accused fell within ambit of S. 2(d)(ii) of Control of Narcotic Substances Act, 1997 or under the Prohibition (Enforcement of Hadd) Order, 1979----Accused was first offender having no criminal antecedents and was behind the bars for the last about one month---Investigation of the case was complete and person of the accused was no more required by the police for the purpose of further investigation---Conclusion of trial was not in sight, therefore, further detention of accused in jail would serve no useful purpose---Accused was admitted to bail, in circumstances.

Fazeelat Bibi v. The State 2007 YLR 3021; Ali Asghar v. The State and others 2016 MLD 621 and The State v. Muhammad Sarwar and others 2017 SCMR 1993 ref.

Mian Babur Saleem for Petitioner.

2018 M L D 1434

[Lahore]

Before Atir Mahmood, J

LAHORE DEVELOPMENT AUTHORITY through Director General and another---Petitioners

Versus

MANZOOR HUSSAIN---Respondent

Civil Revision No.36715 of 2017, heard on 12th June, 2018.

(a) Lahore Development Authority Building Regulations, 2016---

----Regln. 7---Site plan, approval of---Period of approval---When a site plan was submitted for its sanction before the (Lahore) Development Authority along with the payment of requisite fee and the same remained pending without any objection by the Development Authority for 60 days, it would automatically stand approved.

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

----S.115---Revisional jurisdiction of the High court---Scope---Concurrent findings of law and fact---Such findings were immune from interference by the High Court in its revisional jurisdiction unless there was some gross illegality, jurisdictional defect, misreading or non-reading of evidence.

Mian Tahir Maqsood for Petitioner.

Mohsin Mehmood Bhatti for Respondent.

2018 M L D 1449

[Lahore]

Before Shahid Waheed, J

GHULAM MUHAMMAD---Petitioner

Versus

ASHIQ HUSSAIN and 13 others---Respondents

Writ Petition No.206544 of 2018, decided on 30th April, 2018.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 12---Colonization of Government Lands (Punjab) Act (V of 1912), S. 19---Allotment of colony land---Oral agreement to sell by the allottee---Suit for specific performance---Temporary injunction, grant of---Scope---Contention of plaintiff was that he was in possession of the suit land---Application for grant of temporary injunction was dismissed by the courts below---Validity---Convincing and reliable evidence was required to be produced by the plaintiff to establish the alleged oral sale---Prior to recording evidence it could not be held that plaintiff had established prima facie case in his favour---Temporary injunction could not be granted as a matter of course in such cases where evidence was yet to be produced to establish prima facie case---Plaintiff had failed to make out a prima facie case and there was no need to attend other two consideration i.e. balance of convenience and irreparable loss---Monetary value was attached to the suit land and there was no question of irreparable loss---No illegality or jurisdictional defect had been pointed out in the exercise of discretion by the courts below---Constitutional petition was dismissed in circumstances.

Mirza Nazim Baig v. Government of the Punjab through Chief Secretary and others 2008 SCMR 291; Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through L.Rs. and others 2015 SCMR 1081; Fazal Din v. Mst. Robeena Aurgangzeb and 2 others 1983 CLC 1280; Chairman, Municipal Committee, Taxila v. Mohammad Jan and 4 others 1987 CLC 2416 and Aijaz Hussain Bhatti and another v. Haji Bagh Ali and 9 others 1985 CLC 261 ref.

2018 M L D 1480

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

KHIZAR HAYAT---Petitioner

Versus

JUDGE FAMILY COURT, SARGODHA and another---Respondents

Writ Petition No.171788 of 2018, decided on 1st March, 2018.

Family Courts Act ( XXXV of 1964)---

----S. 5, Sched. & S. 14(2)(b)---Suit for recovery of dowry articles---Scope---Production of evidence in shape of Compact Disc ('CD')---Admissibility---Admission by the witness of the party---Effect---Petitioner/husband contended that respondent/wife was not entitled to decree of Rs. 50,000/- as no dowry article was given to her at the time of marriage and she had failed to produce any receipt of the same---Respondent/wife claimed that in previous conversation between the parties, petitioner had admitted possession of certain dowry articles which conversation was adduced by her in evidence in shape of CD and written dialogue---Validity---Held, in most of the suits for recovery of dowry articles, both the parties try to conceal true facts, therefore, it was duty of the Court to decide the controversy in such a manner that no injustice could be done to either side---Family Court being quasi judicial forum could draw and follow its own procedure in order to fulfill said obligation provided it was not against the principles of fair hearing, trial and enquiry---Petitioner though had, denied the conversation, produced by wife in shape of CD, but his own witness had identified his (petitioner's) voice---In presence of such admission from the witness of the petitioner , there was no need for seeking forensic report---Family Court, in circumstances was not justified in discarding the vital piece of evidence---Even if it was presumed that CD was not admissible in evidence, even then the Court could not, ignore the admission on the part of witness of petitioner and Family Court could exercise its authority in the interest of justice---High Court observed that the articles produced by respondent, contained in the list ( except gold ornaments ) were of ordinary nature and usually given to bride at the time of marriage, so non-submission of receipts were not fatal---Family Court while passing impugned judgment and decree had caused grave injustice to the respondent-lady, who being weakest segment of the society could not be able to challenge the same at the appropriate forum---Petitioner having failed to defend his stance, therefore, in exercise of its supervisory powers and parental jurisdiction, High Court rectified the same in order to do substantive justice---High Court modified the impugned judgment and decree passed by the Family Court in the terms that respondent was entitled to recover dowry articles as per list exhibited by her, except gold ornaments , or its alternate price of Rs. 250000/- ---High Court directed the office to send copy of present judgment to the respondent for information---Constitutional petition was dismissed accordingly.

Muhammad Tabish Naeem Khan v. Addl. District Judge, Lahore and others 2014 SCMR 1365 and Muhammad Habib v. Mst. Safia Bibi and others 2008 SCMR 1584 ref.

2018 M L D 1503

[Lahore (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

Mst. KHADIJA KAUSAR and another---Petitioners

Versus

NAZIR AHMED and others ---Respondents

Civil Revision No.45-D of 2007, heard on 6th December, 2017.

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

----S. 42---Contract Act (IX of 1872), S. 215---Suit for declaration---General power of attorney---Transfer of property by the attorney in favour of his close fiduciary relation---Principle---Plaintiff got registered general power of attorney in favour of defendant/ex-wife with regard to suit property---Defendant on the basis of said power of attorney transferred suit property in favour of her brother---Contention of plaintiff was that general power of attorney and subsequent transfer of property were based on fraud and ineffective upon his rights---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Defendant-attorney had failed to establish that before transferring suit property in favour of her brother either she sought or was granted express permission by the plaintiff-principal for such transfer---Transfer of property made by the attorney as agent of plaintiff in favour of her own brother without permission of principal was hit by S.215 of Contract Act, 1872---Defendant being ex-wife of plaintiff had unauthorizedly transferred suit property of principal in favour of her brother which was not valid under the law---Appellate Court had rightly set aside the transfer of suit property in favour of defendant's brother---Findings by the Appellate Court were based on proper appreciation of evidence---No mis-reading or non-reading of evidence had been pointed out in the impugned judgment and decree passed by the Appellate Court---Revision was dismissed in circumstances.

Chief Engineer, Irrigation Department, NWFP Peshawr and 2 others v. Mazhar Hussain and 2 others PLD 2004 SC 682; Shazia Qamar and others v. Bashiran Bibi and others 2016 CLC 15; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Muhammad Taj v. Arshad Mehmood and 3 others 2009 SCMR 114; Maqsood Ahmad v. Salman Ali PLD 2003 SC 31; Haji Faqir Muhammad and others v. Pir Muhammad 1997 SCMR 1811; Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341; Muhammad Yousaf Khan v. Mst. Iqbal Bibi through LRs and others 2005 CLC 1839; Wali Muhammad v. Muhammad Ibrahim and others PLD 1989 Lah. 440; Mst. Hajran Bibi and others v. Suleman and others 2003 SCMR 1555; Abdul Rahim v. Mukhtar Ahmad and 6 others 2001 SCMR 1488; Saif Ullah Khan v. Javed Iqbal and another 1997 SCMR 1210 and Muhammad Younis v. Atta Muhammad and 2 others 1999 SCMR 2574 rel.

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

----O. XLI, R. 33---Conflict between judgments of Trial Court and First Appellate Court---Effect---Normally judgment of First Appellate Court would be given preference over the judgment of Trial Court.

Hakim-ud-Din through LRs and others v. Fazil Karim 2007 SCMR 870 rel.

(c) Pleadings---

----Facts not pleaded could not be allowed to be proved, any evidence adduced beyond pleadings could not be read.

Sardar Muhammad Naseem Khan v. Returning Officer PP-12 and others 2015 SCMR 1698 and Zahoor Ahmad v. Mohammad Siddique 2017 CLC 704 rel.

Abdul Rehman Khan Laskani and Syed Tajammul Hussain Bukhari for Petitioners.

Nafees Ahmad Ansari for Respondent No.1.

Malik Muhammad Ashraf for Respondent No.2.

2018 M L D 1524

[Lahore]

Before Amin-ud-Din Khan, J

ATTA MUHAMMAD through L.Rs. and others---Petitioners

Versus

MUHAMMAD KHAN and others---Respondents

C. R. No. 141 of 2008, heard on 15th March, 2018.

(a) Limitation---

---Contention that limitation never runs in matter of inheritance is incorrect.

Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446 rel.

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

----Art. 120---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Inheritance---Limitation---Limited owner sold property on 15.06.1923 and died in the year 1938---Plaintiffs filed suit to challenge such transfer of ownership rights on 14.10.1996---Validity---Held, plaintiffs remained silent at the time of attestation of mutation of sale and in the year 1938 when finally the cause of action accrued to them---Filing the suit 58 years thereafter was certainly barred by time and limitation even in the matter of inheritance could not be ignored---Revision was allowed in circumstances.

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; Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910; Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513; Commissioner of Income Tax, Companies Zone-IV, Karachi v. Hakim Ali Zardari 2006 SCMR 170; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153 and Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696 rel.

Malik Noor Muhammad Awan and Ijaz Khalid Khan Niazi for Petitioners.

Zubair Ahmad Kundi for Respondents.

2018 M L D 1547

[Lahore (Multan Bench)]

Before Muhammad Ali, J

ZULFIQAR ALI---Petitioner

Versus

MUHAMMAD IQBAL---Respondent

R.F.A. No. 30 of 2015, heard on 28th September, 2017.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R.3---Limitation Act (IX of 1908), Art.159---Application for leave to appear and defend---Ex parte decree, setting aside of---Summons, service of---Defendant filed application for leave to appear and defend the suit on ninth day of the order of setting aside ex parte judgment and decree---Contention of the plaintiff was that defendant should have moved the application for leave to appear and defend the suit along with his application for setting aside ex parte judgment and decree and once a period of 10 days elapsed from the date of knowledge of the defendant regarding the proceedings, the application was time-barred---Validity---Limitation under Art. 159 of Limitation Act, 1908 started when summonses were served on the defendant---On account of non-service of defendant, the copy of the plaint was not delivered to defendant as required under R. 3, O.XXXVII, C.P.C.---In absence of anything to the contrary, the defendant would be considered to have been served on the date when the suit was revived in terms of Art. 159, Limitation Act, 1908.

Aqeel Ahmed v. Muhammad Akram 2006 YLR 320 and Habib Bank Limited v. Muskrat Ali Khan PLD 1987 Kar. 86 rel.

Malik Muhammad Siddique Dogar for Appellant.

Iftikhar Ibrahim Qureshi for Respondent.

2018 M L D 1592

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

Mst. AYESHA SHAHID---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 63673 of 2017, decided on 26th March, 2018.

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

----S. 12---Interim custody of minor---Visitation schedule of minor with his father---Scope---Overnight stay with father---Welfare of minor---Scope---Meeting of minor with father in Court premises---Effect---Petitioner/mother contended that Appellate Court had wrongly chalked out overnight stay of minor with his father/respondent as the same would affect his growth adversely and he was likely to confront some unpleasant situation there---Mother also apprehended removal of the minor out of territorial jurisdiction of the Court---Father contended that proper growth of the minor required love and affection of parents and Guardian Court had wrongly dismissed his prayer of meeting with his son out of Court premises---Validity---Welfare of minor was prime consideration before the Court, admittedly, respondent was father of the minor and being the natural guardian he had right of his supervision under the Islamic Law, therefore, on separation of the parents the minor could not be permanently deprived from the love and affection of either of the parents---Minor, in the present case, had crossed the age of six years, therefore, he should have maximum interaction with the father even if the custody was with the mother, otherwise, it may cause an estrangement in the mind of the child which may ultimately leave a vacuum in the accomplishment of his personality for deprivation of love, affection and company of his father---Court, in order to achieve such goal, was to make every possible effort to chalk out reasonable visitation schedule in friendly atmosphere---Meeting of the minor in the Court premises with the father was neither conducive nor effective and did not serve the purpose of meeting, therefore, welfare of the minor was in meeting with the father at his residence--- Appellate Court had already imposed condition of submission of surety bonds by the father at the time of taking over custody of the minor which was sufficient to dispel the apprehension of the mother regarding removal of the minor from the territorial jurisdiction of the Court---No illegality or infirmity having been noticed in the impugned order passed by the Appellate Court, constitutional petition was dismissed accordingly.

Sh. Zahid Mehmood for Petitioner.

2018 M L D 1613

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

Malik ARIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.137 of 2015 and Murder Reference No.62 of 2016, decided on 15th January, 2018.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Accused was charged for the murder of uncle of the complainant---Ocular account was furnished by the eye-witnesses including complainant, with graphic details---Said witnesses were in a comfortable unison with each other in their narratives as despite lengthy cross-examination, no flaw, discrepancy or contradiction could be detected that might possibly reflect upon their credibility---Testimonies of said witnesses were found straightforward, consistent and confidence inspiring, and satisfactorily explained their presence at the scene---Firearm injury suffered by complainant went a long way---Incident was reported with a remarkable promptitude and that excluded possibility of consultations or deliberations---Ocular account, medical evidence, recovery and forensic reports were flawlessly synchronized with one and another in terms of durations, nature of injuries and weapon used---Witnesses, seemingly had no axe to grind, thus, exclusion of substitution or mistaken identity had validly been argued---Circumstances established that trial court had rightly placed implicit reliance on prosecution evidence so as to return a guilty verdict therefore, no interference was called for---Complainant, in the crime report, had alleged a chance encounter on the day of occurrence at 9.30 p.m., with the accused, who was blamed as a drug pusher as well as a sodomist---Complainant had stated in his examination-in-chief that the accused ferociously looked upon the witness, who candidly admitted absence of such overture in the past despite multiple face to face encounters---Motive though was not a constituent of the crime and while human reactions and responses in any given situation could not be visualized or deciphered with precision or certainty, nonetheless, once a seemingly apparent cause for the offence was suggested, it became incumbent upon the prosecution to reasonably establish the same---Prosecution evidence reflected that deceased arrived at the crime scene at 2.00 a.m., situated in the front of accused's house, particularly during load-shedding hours, clearly reflected upon the adequacy as well as veracity of motive and the argument that what exactly preceded the occurrence remained shrouded into mystery was not entirely beside the mark and, thus, prosecution's failure to satisfactorily establish the motive constituted a mitigating circumstance---Such circumstance taken together cumulatively made out a case to visit the accused with alternate penalty of imprisonment for life to meet the ends of justice---Appeal was disposed of by altering the penalty of death into imprisonment for life.

Naveed alias Needu and others v. The State and others 2014 SCMR 1464 and Ghulam Mohy-ud-Din alias Haji Babu v. The State 2014 SCMR 1034 rel.

Malik Muhammad Jahan Zeb Khan Tamman, Raja Ghaneem Abir and Shahid Zafar for Appellant.

Taufeeq Asif for the Complainant.

Umar Hayat Gondal, Additional Prosecutor General for the State.

2018 M L D 1618

[Lahore]

Before Shams Mehmood Mirza and Jawad Hassan, JJ

Malik ZAHOOR UL HASSAN---Petitioner

Versus

APPELLATE TRIBUNAL, MULTAN and 2 others---Respondents

Writ Petitions Nos. 222723 and 222722 of 2018, decided on 12th July, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 62 & 63---Constitution of Pakistan, Art. 62(1)(f)---Qualification for membership of Parliament (Majlis-e-Shoora)---Rejection of nomination papers---Scope---Nomination papers of candidate in question were rejected by Returning Officer on the basis that her nomination papers were rejected in previous Bye-elections---Election Tribunal had set aside the order of the Returning Officer---Validity---Appeal against the rejection of nomination papers of the candidate in previous Bye-elections was pending adjudication before the Supreme Court---No declaration as envisaged in Art.62(1)(f) of the Constitution had come on surface---Person could not be prevented from his/ her Fundamental Right to contest the elections till the final outcome of his/her qualification---Constitutional petitions were dismissed.

Sami Ullah Baloch and others v. Abdul Karim Nousherwani and others PLD 2018 SC 405 rel.

Muhammad Ali Siddiqui and Muhammad Saqib Jillani for Petitioners.

Tahir Munir Malik for Respondent No.3.

2018 M L D 1642

[Lahore (Rawalpindi Bench)]

Before Ibad-ur-Rehman Lodhi and Ch. Abdul Aziz, JJ

NAVEED AKHTAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.99-J of 2016, heard on 9th July, 2018.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Sentence, reduction in---Prosecution case was that 1020 grams of heroin was recovered from accused, out of which 5 grams were forwarded to Forensic Science Laboratory for analysis---Forwarded sample of heroin, when weighed in Laboratory, it transpired to be 2.37 grams instead of 5 grams which showed that complainant/Police Officer, used a faulty scale to measure the weight of recovered heroin---Prosecution, was obliged to prove every bit of its case beyond doubt and was obliged to address the difference of said weight---Recovered quantity of 1020 grams of heroin, was to be reduced in same ratio as weighed by Forensic Science Laboratory---Held, that 483.48 grams of heroin was recovered from accused; which quantity of heroin attracted the provisions of S.9(b) of Control of Narcotic Substances Act, 1997---Conviction and sentence of accused under S.9(c) of Control of Narcotic Substances Act, 1997 was set aside and he was convicted under S.9(b) of said Act---Accused was directed to undergo rigorous imprisonment for 1 year and 7 months and to pay fine of Rs.13,000.

State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; Zafar v. The State 2008 SCMR 1254; Zulfiqar Ahmad v. The State 2006 SCMR 800; Muhammad Khan v. The State 2008 SCMR 1616 and Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 ref.

Raja Muhammad Nasarullah Waseem for Appellant.

Sheikh Istijabat Ali, District Public Prosecutor with Tariq, SI for the State.

2018 M L D 1658

[Lahore (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

UMAR ZEESHAN---Petitioner

Versus

The ADDITIONAL DISTRICT JUDGE and 2 others---Respondents

Writ Petition No. 12408 of 2017, decided on 14th September, 2017.

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

----S. 25---Civil Procedure Code ( V of 1908 ), O. XVII, R.3---Custody of minor-Dismissal of suit on failure to produce evidence---Power of Court---Scope---Question before the court was as to whether such power was mandatory or discretionary---Petitioner/father of the minor contended that Trial Court had wrongly exercised its power to dismiss his application for the custody of minor for want of evidence as the said power was not mandatory in nature---Respondent/mother contended that inspite of availing successive adjournments, spanning over two years, father had not produced even a single witness---Effect---Rule 3 of O. XVII, R. 3, C.P.C. was not mandatory rather matter had been left to the discretion of the court---Where the act/conduct of the party appeared to be contumacious/negligent one and it failed to produce its evidence inspite of grant of time, Court was empowered to decide the suit forthwith---Such empowerment had made the provision penal in nature and the same was to be strictly construed and applied by curtailing discretionary powers---Record showed that out of 23 opportunities availed by the father, only on one occasion the petitioner produced his evidence but even on that date he sought adjournment---No illegality or infirmity having been noticed in the impugned judgments passed by the two Courts below, constitutional petition was dismissed accordingly.

Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637 ref.

2018 M L D 1680

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

SULTAN MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.488 of 2015 and Murder Reference No.18 of 2016, decided on 13th February, 2018.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Accused was charged for the murder of his brother---Fratricide and domestic dispute between the two brothers was cited as a motive behind the crime---Real sister and mother of the deceased and accused appeared to prove the guilt of the accused---Circumstances suggested that there was no earthly reason to disbelieve the witnesses so as to entertain any hypothesis of innocence of accused on the basis of theory of suicide---Recovery of wedded pistol was the additional plank to sustain the charge, which proved the guilt of the accused---Motive of the crime was stated to be that deceased had divorced his first wife and desired to go for a second marriage, the accused somehow stood in impediment to the desired arrangement---Position taken by the witnesses was far from being plausible as second marriage of deceased could not be a possible cause for the accused to take life of his real brother, thus, what exactly prompted the accused to gun down his real brother was a mystery hovering above the case---Record revealed that prosecution had failed to satisfactorily establish the motive---Imprisonment for life for accused would meet the ends of justice, as alternate penalty, in circumstances---Conviction was maintained, sentence of accused was altered from death to imprisonment for life.

Haqnawaz v. The State 2018 SCMR 21 and Ghulam Mohy-ud-Din alias Haji Babu v. The State 2014 SCMR 1034 rel.

Muhammad Khaliq-uz-Zaman for Appellant (on State expense).

Umar Hayat Gondal, APG with Saeed Akhtar, S.I. for the State.

Nemo for the Complainant.

2018 M L D 1698

[Lahore]

Before Shams Mehmood Mirza and Jawad Hassan, JJ

Sheikh MUHAMMAD AMIN---Petitioner

Versus

ELECTION APPELLATE TRIBUNAL and 2 others---Respondents

W.P. No.224447 of 2018, decided on 9th July, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 62 & 63---Constitution of Pakistan, Arts. 62(1)(f) & 199---Constitutional petition---Maintainability---Factual controversy---Scope---Qualification for membership of Parliament (Majlis-e-Shoora)---Nomination papers---Objection by petitioner was that in the General Elections 2013 the candidate swore a false affidavit whereby he denied the factum of his second marriage and the children born out of the said wedlock; he having concealed his second marriage and a child therefrom, as such made a false declaration which resulted into his disqualification under Art.62(1)(f) of the Constitution---Allegation was denied by the candidate---Validity---Constitutional Petition raised a factual controversy that could not be resolved by invoking the constitutional jurisdiction of High Court---Election Commission could look into the matter and exercise its powers under Elections Act, 2017, in case a misdeclaration was discovered at any stage---Constitutional petition was dismissed, in circumstances.

Rai Hassan Nawaz v. The Election Commission of Pakistan and others 2013 CLC 1101 rel.

Worker' Party Pakistan through Akhtar Hussain, Advocate General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681 ref.

Ch. Irfan Sadiq Tarar for Petitioner.

2018 M L D 1718

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

MAULA DAD and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.264, 381 and Murder Reference No.34 of 2010, decided on 17th January, 2018.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Accused persons were charged for the murder of father and brother of complainant---Prosecution case was that inauguration of a water supply scheme in the village brought the accused persons and the deceased face to face with no previous background of any serious enmity---Situation had cropped up all of a sudden wherein co-accused persons had reacted under the sway of their father---Ocular account had been furnished by witnesses including complainant---Said witnesses had related graphic details of the occurrence as well as events collateral therewith, in a comfortable unison with each other---Despite lengthy cross-examination, accused had not been able to point out any discrepancy, contradiction or infirmity, which discredited their testimony---Evidence of the said witnesses was straightforward, consistent and confidence inspiring and they had satisfactorily explained their presence at the spot---Witnesses had no animus or grudge against the accused persons as they had no axe to grind against them---Record showed that there was no space to entertain hypothesis of mistaken identity or substitution, otherwise a rare phenomena antithetical to retributive human instinct---Ocular account was duly corroborated by medical evidence---Timings given in the autopsy report coincided with the point of time mentioned in complaint---Casings secured from the spot dispatched earlier to arrest of the accused were found wedded with pistols---Circumstances established that Trial Court had rightly returned a guilty verdict, however, quantum of sentence to be extracted from the accused persons warranted serious consideration---Alternate penalty of imprisonment for life would meet the ends of justice in circumstances---Appeal was dismissed by altering the penalty of death into imprisonment for life.

Ghulam Mohy-ud-Din alias Haji Babu v. The State 2014 SCMR 1034 rel.

Muhammad Adeel Arshad and Raja Ghaneem Aabir for Appellants.

Sardar Imran Rafique (Vice counsel) for the Complainant.

Umer Hayat Gondal, APG with Zafar S.I. for the State.

2018 M L D 1733

[Lahore]

Before Amin-ud-Din Khan, J

SHABBIR HUSSAIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, KASUR and 4 others---Respondents

Writ Petition No.214647 of 2018, decided on 25th May, 2018.

Specific Relief Act (I of 1877)---

----Ss.9 & 54---Constitution of Pakistan, Art.199---Constitutional petition---Suit for permanent and mandatory injunction by person dispossessed of immovable property---Scope---Petitioner filed suit for permanent and mandatory injunction while the respondents had filed suit for possession---Trial Court dismissed the suit filed by petitioner and decreed that of respondents through a consolidated judgment---Petitioner filed revision petition against the consolidated judgment, which was dismissed---Validity---Revision was competent against the judgment and decree passed in the suit filed by respondents and no appeal was competent---Appeal was required to be filed against the dismissal of petitioner's suit which was not done---Petitioner having not challenged the judgment and decree of dismissal of his suit before appellate forum, same attained finality---Petitioner was required to show some jurisdictional defect in the orders impugned but no such defect was pointed out---Constitutional petition was dismissed, in circumstances.

2018 M L D 1746

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD AZAM (deceased) through L.Rs. and others---Petitioners

Versus

BOARD OF REVENUE PUNJAB and others---Respondents

W.P. No.3115 of 2018, decided on 20th June, 2018.

Constitution of Pakistan---

----Art.199---Constitutional petition---Remand---High Court, by an earlier order had referred the matter to the Provincial Board of Revenue and pointed out two distinct issues for determination---None of the said issues were considered by the Board of Revenue---Validity---Held, order being in contravention of the reference made to Board of Revenue was set aside---High court remanded the matter to the Board of Revenue for re-hearing of the case and decision in accordance with the reference by the High Court.

Malik Ghulam Qasim Rajwana for Petitioners.

Muhammad Shaukat Riaz for Respondent No.3.

2018 M L D 1793

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

HAROON RASHID---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

W.P. No.27180 of 2016, decided on 2nd May, 2018.

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

----Ss. 12 & 25---Application for custody of minor by maternal grandmother as mother of the minor had passed away---Interim custody---Visitation schedule of minor with his grandmother---Scope---Overnight stay with grandmother---Welfare of minor---Scope---Guardian Court though dismissed the application for custody of the grandmother but chalked out a schedule of her meeting with the minor---Petitioner/father contended that Appellate Court had wrongly modified meeting schedule by expanding/adding overnight stay of minor with his grandmother on 3rd Saturday of each month as she just wanted to poison the minor against him---Validity--Welfare of minor was prime consideration of the Court---In absence of mother of the minor, maternal grandmother had the right to see and meet the minor---Denial of such legal right would tantamount to deprive the minor from the love and affection of his maternal grandmother and the family of his deceased mother, which was against the welfare of the minor for the reason that minor needed love and affection of both of his paternal and maternal relations---Minor was not to be deprived of love and affection of either of the two blood relations and have maximum interaction with his maternal relations as well, as his permanent custody was with the father, otherwise the same could cause an estrangement in the mind of the child which could ultimately leave a vacuum in the development of his personality---Father was not to create hurdles in enabling the minor to develop a healthy relationship with his maternal side which could only be developed if he was allowed to spend a reasonable period of time with them---No illegality or infirmity having been noticed in the impugned order passed by the Appellate Court, constitutional petition was dismissed accordingly.

Rana Shehbaz Ali for Petitioner.

2018 M L D 1804

[Lahore]

Before Asjad Javaid Ghural, J

GHULAM HUSSAIN---Petitioner

Versus

JUDICIAL MAGISTRATE, 1ST CLASS, JARANWALA, and 8 others---Respondents

Writ Petition No.222995 of 2018, decided on 2nd July, 2018.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Qatl-i-amd, common intention---Application for obtaining samples of blood of accused persons for the purpose of re-analysis through DNA test---Dismissal of application---Validity---Deceased lady had been done to death by some unknown accused persons and accused were implicated subsequently through supplementary statement---Investigating Officer obtained post mortem examination report, which showed that deceased lady was sexually assaulted prior to her death---Accused persons, after their arrest were produced before the Forensic Science Agency for DNA test, in order to ascertain whether said persons were indulged in the act of sexual intercourse with the deceased lady prior to death or not---Report of Forensic Science Agency excluded the accused persons from the sperm fractions being contributed to DNA---Counsel for the petitioner, failed to satisfy the court as to under what circumstances report received from the office of Forensic Science Agency was to be taken as dubious---Nothing was available on record to show that report in question was manoeuvred or any of the relevant officials in the laboratory was biased---In absence of any sound material creating reasonable doubt, report in question could not be discarded at the whims and wishes of the petitioner---Petitioner could not be allowed to fill-up the lacuna just to implicate the accused persons nominated by him at subsequent stage---Impugned order suffered from no illegality, perversity of reasoning or any irregularity of procedure to warrant interference by High Court---High Court directed that Trial Court decide the fate of the case on the material/evidence available on record.

Abdul Khaliq Safrani for Petitioner.

2018 M L D 1828

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

MUHAMMAD ZULFIQAR---Petitioner

Versus

The STATE---Respondent

Criminal Appeals Nos.58-J, 398, 399, Criminal Revision No.143 and Murder Reference No.31 of 2015, heard on 29th January, 2018.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused persons assaulted on the complainant party and made firing upon them, due to which two persons died, while three injured---Ocular account was furnished by the injured persons including complainant---Record showed that wife of prosecution witness gave birth to a baby girl three months prior to the occurrence, but refusal of her father-in-law/deceased to allow her to visit her parents, annoyed the accused persons and co-accused and that served as a motive for the crime---Position taken by accused (since dead) that her daughter was placed under restraint by her in-laws in a room bolted from outside and having found his daughter in a miserable condition he attempted to rescue her when a situation ignited by the deceased side, would merit a thoughtful consideration---Record transpired that seven persons had been arrayed by their names accompanied by 3/4 unknown assailants, each was shown to have carried .12-caliber weapon---Entire family of the accused party was in the dock---Deceased as well as the injured received pellet injuries, most certainly through fire shots by a .12-caliber weapon---Casting of wider net was seemingly not unrealistic inasmuch as it appeared extremely improbable that the entire clan would senselessly jump into a situation which every single of them could have independently tackled so as to achieve desired results, if any---Forensic Report showed that nine empties were found wedded with gun recovered on the disclosure of deceased accused and, thus, possibility of participation by accused persons could not be hypothesized through any contemplative mode without potential risk of error---Accused persons had no earthly reason to undertake extra burden when accused (since dead) had already neutralized his targets with nine fire shots from his semi automatic gun---Medical examination, though belatedly conducted on deceased accused and injured accused unambiguously confirmed receipt of injuries by them with durations in terms of point of time corresponding with the occurrence; though not extensive in nature, nonetheless, in the absence of any plausible explanation, said injuries cast their shadow upon the veracity of prosecution case set up in crime report---Circumstances suggested that the incident appeared to be a one man show, seemingly by no other than accused (since dead) with a reason to sharply reacted given his relationship with his daughter---Circumstances established that prosecution case was fraught with doubts, neither imaginary nor illusory, on the contrary, embedded in stated positions and thus, it would be unsafe to maintain the convictions---Appeal was allowed and accused were acquitted from the charge by extending benefit of doubt.

Raja Ghaneem Aabir Khan for Appellants.

Aamir Shafique Qureshi for the Complainant.

Qaisar Mushtaq Assistant District Public Prosecutor with Hidayat Ali, S.I. for the State.

2018 M L D 1850

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

ZAFAR IQBAL and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE RAWALPINDI and 2 others---Respondents

Writ Petition No.175 of 2018, decided on 14th May, 2018.

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

----Ss. 21 & 22---Eviction petition---Willful default---Failure of the tenant to move for leave to contest within prescribed time---Notice to the tenant was not served as required by law---Trial Court initiated the eviction petition as an ordinary civil suit but passed eviction order under Punjab Rented Premises Act, 2009---Act of the Court---Effect---Petitioner/tenants contended that Trial Court treated the eviction petition as civil suit which caused failure to move application for leave to contest, so eviction order against them was illegal---Landlord contended that eviction order was right as the tenants had failed to move application for leave to contest within time which was mandatory for resisting the eviction petition---Validity---Record revealed that procuring the attendance of the tenants was not in accordance with the law---Section 21 of the Punjab Rented Premises Act, 2009 stipulated that Rent Tribunal would issue notice in the form prescribed as per Schedule appended with the Act, for a date not later than ten days through process server, registered post acknowledgment due and courier and such notice should accompany the copies of the application and the annexed documents---Section 22 of the Act provided that tenants were obliged to submit application for leave to contest within ten days from their first appearance in the Court but the accumulative effect of both the provisions was that consequences would only come into play when the tenants were served with the process as required under S. 21 of the Punjab Rented Premises Act, 2009---Trial Court, while taking cognizance of the proceedings, treated the eviction petition as an ordinary suit and after assigning the same a number of civil suit, proceeded with the eviction petition as civil court---Mandatory provisions of Ss. 21 & 22 of the Punjab Rented Premises Act, 2009 were not taken into consideration so there was possibility that the tenants were under the impression that they were defending the civil suit---Once court itself had treated the eviction petition as civil suit and proceeded as such, the tenants were surely taken by surprise thereafter when the Court shifted to the provisions of the Punjab Rented Premises Act, 2009---No body could be penalized due to the act of the Court and before invoking the penal provisions contained in the Punjab Rented Premises Act, 2009, it was obligatory for the Court, seized with the matter, to adhere to the mandatory provisions of law as contained in S. 21 of the Punjab Rented Premises Act, 2009---Eviction order was, thus, passed in oblivion of the mandatory provisions of law---Appellate Court had dismissed the appeal preferred by the tenants without applying judicial mind---High Court set aside impugned orders passed by the two Courts below, however, landlord would be at liberty to file eviction petition afresh---Constitutional petition was allowed accordingly.

Begum Nusrat Ali Gonda v. Federation of Pakistan and others PLD 2013 SC 829 and Muhammad Ijaz and another v. Muhammad Shafi through L.Rs. 2016 SCMR 834 ref.

Zulfiqar M. Kiani for Petitioner.

2018 M L D 1892

[Lahore]

Before Amin-ud-Din Khan, J

Mst. BHAGAN and others---Appellants

Versus

GHULAM (deceased) through L.Rs. and others---Respondents

R.S.A. No.118 of 2011, heard on 30th May, 2018.

(a) Islamic law---

----Inheritance---Sect---Scope---Contention of plaintiffs was that inheritance mutation had been attested presuming the deceased professing shia faith whereby they had been deprived from their shares in the suit property---Suit was decreed concurrently---Validity---Plaintiffs and their witnesses had stated that deceased and his family were professing sunni faith---Defendants had neither claimed conversion of the deceased from sunni sect to shia sect nor there was any evidence to that effect---Defendants were required to prove conversion of the deceased from sunni faith to shia faith---No receipt for payment of contribution to shia Anjuman had been produced---Sunni Imam had led the funeral prayer of the deceased---No illegality and material irregularity had been pointed out in the impugned judgments passed by the Courts below---Second appeal was dismissed in circumstances.

Pathana v. Mst. Wasai and another PLD 1965 SC 134; Muhammad Bashir and others v. Mst. Latifa Bibi through L.Rs. 2010 SCMR 1915; Haji Khuda Bakhsh v. Muhammad Saleem Akbar Shah and others 1999 CLC 1608 and Allah Bakhsh and others v. Mst. Bhagan 1994 CLC 1942; Fazal Dad and others v. Jehandad and others 1991 CLC 1783; Mst. Surayia Begum and another v. Sardar Saeed Ullah through L.Rs. 2006 CLC 994; Mst. Sarwar Noor v. Ali Haider and another 2009 CLC 400; Mst. Daulan v. Muhammad Hayat 2002 YLR 3247 and Ghulam Shabbir and others v. Mst. Bakhat Khatoon and others 2009 SCMR 644 rel.

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

----S. 100---Second appeal---Scope---Concurrent findings recorded by the courts below on the basis of evidence available on record as well as on law could not be interfered with in second appeal.

Naseer Ahmed Siddique through Legal Heirs v. Aftab Alam and another PLD 2011 SC 323; Bashir Ahmed v. Mst. Taja Begum and others PLD 2010 SC 906 and Amjad Sharif Qazi and others v. Salim Ullah Faridi and others PLD 2006 SC 777 rel.

Ghulam Farid Sanotra for Appellants.

Ch. Umair Ahmad for Respondents.

2018 M L D 1922

[Lahore (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

MOHAMMAD SHARIF---Petitioner

Versus

JAMSHAID ALI and 7 others---Respondents

Civil Revision No.725-D of 2007, heard on 1st November, 2017.

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

----S.13---Suit for pre-emption---Talbs---Proof---Talb-i-Ishhad, notice of---Examination of postman---Necessity---Acknowledgement-due receipt, non-production of---Effect---Pre-emptor neither produced receipt of acknowledgement-due nor produced the postman, who had served the notice of Talb-i-Ishhad upon the vendee; it was mandatory for the pre-emptor to produce the postman to establish the service of Talb-i-Ishhad in compliance with S.13 of Punjab Pre-emption Act , 1991.

Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 and Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 rel.

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

----S. 115--- Revisional jurisdiction of High Court--- Concurrent findings---Scope---Concurrent findings of courts below could not be interfered with in revisional jurisdiction of High Court, when the same were based on proper appreciation of evidence on record.

Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 SC 712; Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469; Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373; Administrator Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 and Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 ref.

Saif Ullah Khan for Petitioner.

Respondent Proceeded against ex parte.

2018 M L D 1933

[Lahore]

Before Shams Mehmood Mirza, J

Messrs SUPER ASIA MUHAMMAD DIN SONS through Company Secretary General Manager---Petitioner

Versus

SNGPL and others---Respondents

W.P. No.93009 of 2017, decided on 6th March, 2018.

Gas (Theft Control and Recovery) Act (XI of 2016)---

----Ss. 4, 7 & 5---Civil Procedure Code (V of 1908), O. VI, R. 17---Suit for declaration and consequential relief by consumer / petitioner against Gas Utility Company---Application for leave to defend by Gas Utility Company---Amendment of plaint enhancing amount of alleged default by consumer / petitioner---Petitioner impugned order of Gas Utility Court whereby it was required to pay a certain amount for restoration of the gas connection---Contention of petitioner, inter alia, was that per S.7 of the Gas (Theft Control and Recovery) Act, 2016, Gas Utility Company had to state exact amount due up to the time of filing of suit, and its amendment of written statement enhancing amount of alleged default was illegal, and thus petitioner was not liable to pay said amount---Validity---Quantum of overdue amount was to be proved by Gas Utility Company subject to grant of leave to defend, and allowing amendment in plaint enhancing overdue amount did not change complexion of defence raised by Gas Utility Company---Section 29 of the Gas (Theft Control and Recovery) Act, 2016 prohibited Gas Utility Court from ordering restoration of gas connection of consumer if such consumer remained in default of amount assessed against him, and thus no illegality existed in impugned order---Constitutional petition was dismissed, accordingly.

Sui Gas v. Sartaj Sizing Industry and others I.C.A. No.486 of 2014 rel.

Jahanzeb Khan Bharwana for Petitioner.

2018 M L D 1955

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD MANZOOR and others---Petitioners

Versus

RIZWAN ULLAH BAIG, MEMBER BOARD OF REVENUE and others---Respondents

Review Petition No. 86 of 2015 in W.P. No.6707 of 2017, decided on 28th June, 2018.

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

----S. 114 & O. XLVII, R. 1---Review---Scope---Plea of petitioners was that the documents produced by them had not been considered while passing the impugned order---Validity---Points raised by the parties had been considered and addressed/answered by the court in the order---Review was not competent where no new and important matter or evidence had been discovered---No mistake or error was apparent on the face of the order sought to be reviewed---Scope of review was limited only to rectify the clerical or arithmetical error or mistake apparent on the face of the case---Re-hearing or re-appreciating of entire evidence afresh could not be allowed in review petition---Petitioners could not point out new and important matter or evidence or any document which had not been discussed at the time of passing of impugned order---Review petition was dismissed in circumstances.

Daewoo Corporation v. Zila Council , Jhang and 2 others 2004 SCMR 1213; Messrs Pakistan International Airlines Karachi v. Inayat Rasool 2004 SCMR 1737; Mirza Tahir Hussain v. The State and another 2005 SCMR 330; Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others 2007 SCMR 755; Majid Mahmood v. Muhammad Shafi 2008 SCMR 554; Sultan through L.Rs. and others v. Said Khan and another 2008 SCMR 562; Mirza Shahjehan Haider Gorgani v. Chairman, Federal Land Commission, Islamabad and others 2008 SCMR 575; Haji Muhammad Boota and others v. Member (Revenue) BOR and others 2010 SCMR 1049; Ghulam Murtaza v. Abdul Salam Shah and others 2010 SCMR 1883 and Haji Muhammad Zaman Khan v. Member, Board of Revenue Punjab and others 2014 SCMR 164 rel.

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

----S. 114 & O. XLVII, R. 1---Review---Scope---Scope of review was limited only to rectify the clerical or arithmetical error or mistake apparent on the face of the case.

Mirza Tahir Hussain v. The State and another 2005 SCMR 330 rel.

Malik Muhammad Nadeem for Petitioners.

2018 M L D 1988

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD FARIQUE---Petitioner

Versus

KANEEZAN BIBI and others---Respondents

W.P. No.398 of 2015, heard on 4th April, 2018.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of maintenance allowance and dowry articles---Maintenance allowance for minors, quantum of---Financial status of father---Scope---Petitioner/father contended that maintenance allowance of Rs. 1500/ for each minor was excessive and beyond his paying capacity and submitted that dowry articles to the tune of Rs.70,000/- was wrongly decreed in favour of respondent/wife as she was not given any dowry articles by her parents at the time of marriage---Respondent contended that the petitioner had more than one source of income---Validity---Evidence of the parties proved that the petitioner was owner of 10 kanals of land and he was also cultivating the same and earned his livelihood---Witness of the petitioner also stated that the monthly income of the petitioner was about Rs. 10,000/12,000/- per month besides cattle business---Petitioner, in view of the statements of his own witnesses could not urge that his paying capacity was inadequate---Petitioner being father of the minors was under legal and moral obligation to maintain them---Findings of the Family Court as well as Appellate Court were well reasoned---Record revealed that wife had failed to produce any documentary proof with regard to dowry articles, however, it was custom of the society that parents gave dowry articles to daughters according to their financial status---Marriage between the parties was solemnized in the year 1996 and was still intact---Fixation of amount of maintenance allowance was finding of fact and High Court in extraordinary constitutional jurisdiction could not re-appraise evidence and substitute the findings of fact recorded by Family Court nor could give opinion regarding quality or adequacy of the evidence---Assessment of evidence was the function of the Trial Court, which was vested with exclusive jurisdiction in such regard---No illegality or infirmity having been noticed in the impugned judgments passed by the two Courts below, constitutional petition was dismissed accordingly.

Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Parveen Umar and 3 others v. Sardar Hussain and 5 others 2003 YLR 3097 and Aqal Zaman v. Mst. Azad Bibi and others 2003 CLC 702 ref.

Tariq Muhammad Iqbal Chaudhary for Petitioner.

Javed Ahmed Khan for Respondents Nos.1 to 4.

2018 M L D 2054

[Lahore (Bahawalpur Bench)]

Before Shahid Waheed, J

NAZIR AHMAD BHATTI and others---Appellants

Versus

M. YOUNAS and others---Respondents

Civil Revision No.19 of 2012, decided on 7th February, 2013.

Court Fees Act (VII of 1870)---

----Ss. 10, 6 & 28---Civil Procedure Code (V of 1908), O. VII, R. 11---Court-fee, determination of---Rejection of plaint on ground of insufficient court-fee---Scope---Plaint or memo. of appeal could not be rejected or dismissed on account of being deficiently stamped unless amount of court fee payable on the same was first determined with exactitude and an opportunity was allowed to the party to pay the deficit amount---Court, on examination of a plaint, if the court found that relief claimed was undervalued, then it was to require the plaintiff to correct valuation within a time fixed by the court, and if plaintiff failed to comply, then the plaint should be rejected under O. VII, R. 11, C.P.C.---Matter of court fee if required investigation, then the court was to record evidence of the parties bearing on such point of court-fee and if it was found the court-fee was insufficient, then court should stay further proceedings in the suit and require plaintiff to make good the deficiency ---Where a court recorded findings on all issues and while dismissing suit on merits also required that court-fee should be paid by plaintiff, in such a case, the said procedure would not be justified.

Mst. Perveen v. Jamsheda Begum and others PLD 1983 SC 227; Mst. Ghulam Sakina and 4 others v. Nishat and 2 others 1992 CLC 87; Walaiti Ram v. Gopi Ram and others (AIR 1935 Lahore 75; Sis Ram v. Sohan Lal and others AIR 1938 Lahore 311; Secretary of State AIR 1933 Madras 321; Kedar Nath Goenka v. Chandra Mauleshwar Parsad Singh AIR 1932 Patna 228; Sri Sri Maharbirji v. Saraswati Devi AIR 1960 Patna 527; Amir Ali v. Gul Muhammad PLD 1968 Pesh. 106; Muhammad Ramzan and 3 others v. Irshad Khanum PLD 1982 BJ 38; Muhammad Yasin v. Muhammad Amin and 4 others 2002 YLR 3339 and Muhammd Nasrullah v. Muhammad Ayaz Khan and another PLD 1975 Lah. 886 rel.

Muhammad Suleman for Petitioners.

Naveed Khalil Ch., A.A.G. for Respondents Nos.138 and 139.

Remaining respondents proceeded against ex parte.

2018 M L D 2070

[Lahore (Multan Bench)]

Before Shahid Waheed and Ali Akbar Qureshi, JJ

Malik ALLAH YAR---Appellant

Versus

Mst. NAZRAN KHATOON and others---Respondents

R.F.A. No.443 of 2014, decided on 9th February, 2015.

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

----Ss. 6 & 28---Civil Procedure Code (V of 1908), O. VII R. 11---Court fee, determination of---Deficiency in court-fee---Rejection of plaint on ground of deficiency in court-fee---Scope---Plaint or any other document without proper court-fee stamp was not of any validity unless and until the same was properly stamped---Where plaint was written upon insufficiently stamped paper, the court was duty bound to first determine the exact amount of court-fee payable, and secondly, to afford plaintiff opportunity to make good for its deficiency and thirdly to take further steps in a suit after getting requisite stamp paper of the court-fee---Court to reject plaint under O.VII, R.11, C.P.C. for non-payment of court-fee, was to first positively and specifically determine amount of deficit court-fee and secondly allow reasonable time to plaintiff to make-up for the same.

Mst. Parveen v. Mst. Jamsheda Begum and another PLD 1983 SC 227; Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289; Sardar Ahmad Yar Jang v. Sardar Noor Ahmad Khan PLD 1994 SC 688; Zulfiqar Ali and others v. Mst. Sajida Begum 1995 SCMR 911 and Faiz Ahmad v. Ghulam Ali 2000 AC 739 rel.

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

----O. VII, Rr. 3 & 11---Rejection of plaint for non-compliance of O.VII, R.3, C.P.C.---Scope---Where time was granted to party at his / her own instance to produce evidence or cause attendance of witnesses or perform any other act necessary to further progress of suit; then in such a case court could not apply O.VII, R.3, C.P.C. to reject a plaint under O. VII, R. 11, C.P.C.

Enatulla Basunia v Jiban Mohan Roy 1914 ILR 41 Cal 956 = 23 IC 769; Jethmal and others v. Mst. Sakina AIR 1961 Raj. 59; Juggi Lal Kamla Pat v. Ram Janki Gupta and another AIR 1962 All 407 and Maulvi Abdul Aziz Khan v. Mst. Shah Begum and 2 others PLD 1971 SC 434 rel.

Malik Abdul Rasheed for Appellant.

Malik Javed Iqbal Ojila for Respondents.

2018 M L D 2082

[Lahore]

Before Shahid Waheed, J

MUHAMMAD MUZAMMIL SAEED---Petitioners

Versus

VICE CHANCELLOR, PUNJAB UNIVERSITY and others---Respondents

Writ Petition No.9284 of 2012, decided on 25th April, 2012.

(a) Educational Institution---

----Disciplinary proceedings---Disqualification of students / candidates from examination---Allegations of using of unfair means in examination---Adjudication of such allegations by Disciplinary Committee(s) and Vice-Chancellor Office of University---Scope---Petitioner impugned order of University's disciplinary committee, whereby petitioner was not allowed to appear in re-examination of a subject due to allegations of using unfair means while appearing for the same subject the first time and it was alleged that handwritten notes were recovered from the petitioner during the examination---Validity---Mere writing of words "disproved" or "rejected" would not suffice in a decision and if decisions were expressed in such terms, then the same shall be termed as arbitrary or autocratic and had the character of being deleterious without consideration of facts, circumstances and rules made to regulate such decisions---In the present case, probe committee constituted by Vice-Chancellor, without hearing petitioner, declared him guilty and did not allow him to sit in re-examination which constituted pre-determination of the issue and the decision of the Disciplinary Committee did not give any reasons to prove that material recovered from petitioner during first examination was relevant to the subject---Such facts showed malice on part of the University---Impugned orders were set aside and matter was remitted to the University 's Disciplinary Committee to pass a fresh and cogent order after affording opportunity of hearing to petitioner---Constitutional petition was allowed, accordingly.

Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another 1995 SCMR 650; Breen v. Amalgamated Engg. Union (1971) 1 All ER 1148; Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 ICR 120; Airport Services v. The Airport Manager, Quaid-i-Azam International Airport, Karachi and others 1998 SCMR 2268 and Abdul Jannan v. University of Peshawar PLD 1996 SC 709 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Judicial review of decisions of domestic tribunals/public adjudicating authority---Scope---High Court, in exercise of its Constitutional jurisdiction, could simply pronounce upon invalidity of an order and declare that the same was made without lawful authority and was of no legal effect, and beyond this, strictly speaking, High Court had no jurisdiction to issue any other direction and substitute its own judgment---High Court under Constitutional jurisdiction had full power to do justice but could not substitute its own decision for the decision of an inferior authority / tribunal and it was more appropriate to return such a case to the authority or tribunal concerned with a decision in accordance with law after quashing order complained against.

Thomson v. The University of London (1966) 2 All ER 338; Begum B.H. Syed v. Mst. Afzal Jhan Begum and another PLD 1970 SC 29; Nawaz v. The Addl. Settlement and Rehabilitation Commissioner PLD 1970 SC 39; Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner, Lahore and others PLD 1964 SC 260 and Naveed Rauf v. Board of Intermediate and Secondary Education, Lahore 2003 SCMR 1250 rel.

Rana M. Ayub Tahir Joyya for Petitioner.

2018 M L D 12

[Peshawar (Bannu Bench)]

Before Ishtiaq Ibrahim and Muhammad Ayub Khan, JJ

SHAMROZ KHAN---Appellant

Versus

The STATE and 2 others---Respondents

Cr.A. No.63-B of 2014, decided on 11th April, 2017.

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

----Ss. 302, 324 & 34---Criminal Procedure Code(V of 1898), Ss. 164 & 364---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Judicial confession---Scope---Accused was charged for committing murder of brother of the complainant---Record showed that accused was arrested on 21.12.2012 and was produced before the Judicial Magistrate on 24.12.2012---Accused had confessed his guilt before the Judicial Magistrate by mentioning in detail the reason of murder of the deceased---Record transpired that the confession was made voluntarily and according to the narration of the occurrence---Accused had disclosed the facts which otherwise were neither known to the complainant nor to the Investigating Officer that the deceased annoyed him by saying that he was having illicit liaison with his nephews---Confession of the accused was recorded not only in accordance with Ss.164/364 Cr.P.C. but also in accordance with the provisions of High Court (Lahore) Rules and Orders---Confessional statement of accused showed that it was not a premeditated murder and the occurrence took place in the heat of passions when the accused became annoyed due to the utterance of the deceased---Medical evidence it showed that the deceased received two firearms injuries, which corroborated the confessional statement of the accused wherein he stated that he fired two shots at the deceased---Circumstances and facts of the case established the guilt of accused, thus appeal against conviction was dismissed accordingly.

Naseer Husain v. Nawaz and others 1994 SCMR 1504 and Ghulam Nabi v. The State 2007 SCMR 808 rel.

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

----S. 164---Judicial Confession---Retracted confession---Validity---Conviction could be based on retracted judicial confession, provided it was true and voluntary and corroborated by some strong piece of independent evidence.

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

----S. 164---Judicial Confession---Evidentiary value---If there was no other evidence, confession or for that matter, statement of accused was to be taken in totality---Court was not left with any choice but to take into consideration the confession of accused in toto.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence---Relevance---Two empties of Kalashnikov were recovered by the Investigating Officer from the place of occurrence---Weapon of offence (Kalashnikov) was recovered from the accused at the time of his arrest---Recovered empties and the Kalashnikov were sent to the Forensic Science Laboratory for expert opinion---Report of Firearms Expert showed that two .222-bore crime empties were fired from 222-bore rifle in question---Rifle in question was foreign made and in working condition---Recovery of Kalashnikov and positive report of Firearms Expert was relevant in circumstances.

Muhammad Rashid Khan Dirma Khel for Appellant.

Shahid Hamid Qureshi A.A.G. along with Shah Hussain Khan for Respondents.

2018 M L D 35

[Peshawar]

Before Waqar Ahmed Sethi, J

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Communication and Works Department, Peshawar and others---Petitioners

Versus

Haji SAFIRULLAH and others---Respondents

C.R. No. 498-P of 2016, decided on 13th July, 2017.

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

----S. 79---Land Acquisition Act (I of 1894), S. 4---Land acquisition---Suit against Government---Requirements---Contention of plaintiffs was that notification under S. 4, Land Acquisition Act, 1894 was illegal and against law---Suit was decreed concurrently---Validity---Government Federal or Provincial was not arrayed as defendant or was sued in the case---Court was bound to examine the legal frame of the suit initially---Objection was raised by the defendants in written statement but same remained unattended due to negligence of defendants or the Court---Present suit was not maintainable due to non-compliance of mandatory provisions of law---Findings recorded by the Courts below were set aside and suit was dismissed---Revision was allowed in circumstances.

Province of the Punjab through Member Board of Revenue Lahore and others v. Muhammad Hussain through legal heirs, reported in PLD 1993 SC 147; Haji Abdul Aziz v. Government of Baluchistan Reported in 1999 SCMR 16 and Government of Balochistan, CWPP & H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others 2010 SCMR 115 rel.

(b) Administration of justice---

----Question of law could be agitated at any time.

2002 CLC 711; 2016 YLR 890; PLD 2007 Kar. 392 and 1999 YLR 1956 rel.

Mian Arshad Jan, A.A.G. for Petitioners.

Muhammad Arif Khan for Respondents.

2018 M L D 72

[Peshawar]

Before Rooh-ul-Amin Khan, J

BAKHTIAR KHAN---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. B.A. No.1434-P of 2017 with Crl. Misc. No.71-P of 2017, decided on 15th September, 2017.

(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, common intention---Bail, refusal of---Accused was directly charged for commission of crime with specific role of firing at the deceased and complainant---Occurrence was reported promptly---Being a broad daylight incident and parties being well known to each other, mistaken identity was not possible---Six empties of pistol were recovered from the crime spot and as per autopsy report the deceased sustained four firearm injuries which resulted his death---Recovery of blood of the deceased from the spot, his last worn attires coupled with postmortem report and noticeable abscondance of the accused, corroborated the version of the complainant---Punishment of alleged offence fell within the prohibitory clause of S. 497, Cr.P.C.---Role of co-accused was similar to that of accused, but he was not granted bail on merits---Rule of consistency, in circumstances, could not be pressed into service in favour of accused---Bail was refused accordingly.

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

----S. 344---Sine die adjournment by Trial Court---Scope.

Code of Criminal Procedure, 1898, does not provide any provision for sine die adjournment, rather by invoking the provision of S.344, Cr.P.C. the Trial Court may postpone or adjourn proceedings, if, from the absence of a witness or any other reasonable cause, it becomes necessary or advisable by order in writing stating the reasons therefrom time to time on such terms as it thinks fit, for such time as it considers reasonable and may by warrant remand the accused if in custody. The words "from time to time" and "for such time as it considers reasonable" (occurring in S.344, Cr.P.C.) are of much significance which provide that such adjournment in the above circumstances will be from time to time and for some specific time as the court thinks fit. High Court quashed the direction of the Trial Court qua sine die adjournment.

Khurshid Ahmad Shahan for Petitioner.

Syed Qaisar Ali Shah, A.A.G. for the State.

Said Nazir for the Complainant.

2018 M L D 90

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

MUHAMMAD ISLAM---Petitioner

Versus

The STATE and other---Respondents

Cr.M.B.A. G No.53-M and G.M. No.51-M of 2017, decided on 3rd March, 2017.

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

---S. 497---Penal Code (XLV of 1860), Ss. 337-A, 337-A(ii), 337-A(iii), 337-L, 354 & 34---Hurt, assault or criminal force to woman with intent to outrage her modesty, common intention---Bail, refusal of---Accused was ascribed the role of inflicting severe injuries on the head and other parts of injured; which were termed to be grievous in nature---Act of causing injuries to an old lady was so brutal that she was admitted to the hospital for treatment and healing process was still underway which might take lot of time in recovery, she being a known diabetic patient---Incident was not a simple case of hurt but allegation was the accused committed qatl-i-amd---Bail was refused in circumstances.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 337-A, 337-A(ii), 337-A(iii), 337-L, 354 & 34---Hurt, assault or criminal force to woman with intent to outrage her modesty, common intention---Application for cancellation of post-arrest bail---Co-accused was ascribed the role of causing injuries upon two persons---Injuries were admitted to be simple in nature---Impugned order of pre-arrested bail did not call for interference---Order accordingly.

Sher Muhammad Khan, Muhammad Raziq Khan and Aziz Muhammad for Petitioners.

Rafiq Ahmad Asstt: A.-G. and Abdul Qayum for Respondents.

2018 M L D 125

[Peshawar]

Before Waqar Ahmad Seth, J

NAWAS KHAN---Petitioner

Versus

The STATE and another---Respondents

Cr.M/B.A. No.706-P of 2017, decided on 15th May, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to qatl-i-amd and abetment---Bail, grant of---Abscondance---Acquittal of co-accused---Effect---Accused remained absconder and was arrested after co-accused was acquitted by Trial Court---Validity---Case of accused was identical to the case of co-accused, who had been acquitted on similar charge and his abscondence could not be treated as a bar to his release on bail---High Court declined to reject the plea of accused of bail at the threshold on the sole ground of abscondence---Fugitive from law was no ground to decline bail, if case of accused was otherwise found fit for bail on merits---Bail could not be refused even if accused had remained absconder because abscondance by itself was not a pointer towards guilt of an accused---Bail was allowed in circumstances.

Jam Sadiq Ali v. State 1989 PCr.LJ 1910; Nawab Ali v. State 2003 YLR 113; Muhammad Iqbal Solangi v. State PLD 2004 Kar. 377; State v. Malik Mukhtiar Ahmed 1991 SCMR 322 and Mitho Pitafi v. The State 2009 SCMR 299 rel.

Barrister M. Zahoorul Haq for Petitioner.

Mian Arshad Jan A.A.G. and Maqsood Anwar Aziz for the State.

2018 M L D 131

[Peshawar]

Before Syed Arshad Ali, J

JAN NOOR---Petitioner

Versus

HIDAYAT SHAH and 2 others---Respondent

Civil Miscellaneous Revision Petition No.224-P of 2016, decided on 19th June, 2017.

Civil Procedure Code (V of 1908)---

----O. XXXIX, R. 4---Specific Relief Act, (I of 1877) S. 54---Suit for injunction---Trial Court granted ad-interim injunction---Delaying tactics applied by the plaintiff in arguing the application---Effect---Recalling of ad interim injunction by the Trial Court---Scope---Petitioner/plaintiff contended that Trial Court had not recalled ad-interim injunction granted by it on merits but on non-compliance of court's orders, to argue the matter---Respondent/defendant contended that ad-interim injunction was rightly recalled by the court as delaying tactics were continuously applied by the plaintiff---Validity---Once Trial Court had granted ad-interim injunction, it would be inappropriate to recall the same without giving any reasons, particularly, when the written statement and other documents were available before the court---Contumacious conduct of the counsel for the petitioner could not be overlooked, however, that did not absolve the Trial Court to decide the matter in accordance with law---Order passed in haste or which lacked reasons was deprecated---High Court observed that jurisdiction vested even in executive authority or quasi judicial authority had to be exercised reasonably and with reasons, hence, the judicial officers were expected to be more cautious and always must apply judicial mind while adjudicating upon any matter---Trial Court had erred by recalling the order of injunction without recording the reasons though respondents/defendants had rightly filed the application under O. XXXIX, R. 4, C.P.C. for vacating the stay order---Where the court had granted ex-parte ad-interim injunction and the defendant felt that the said order had caused great hardship or inconvenience to him, the remedy lay in filing application under O. XXXIX, R. 4, C.P.C.; however it was incumbent upon the court while deciding such application to pass a judicial and well-reasoned order on the said application---High Court while directing the parties to maintain status quo set aside the impugned orders of both the courts below---Application of respondent/defendant under O. XXXIX, R. 4, C.P.C. would be deemed pending and the Trial Court would decide the application strictly in accordance with law---Revision petition was accepted with costs.

Mollah Ejahar Ali v. Government of Pakistan PLD 1970 SC 173; Muhammad Inayat v. Member (Revenue) Board of Revenue Punjab, Lahore and 3 others 1997 MLD 790 and Mst. Parveen Begum v. Habib Gul and another 1997 MLD 2473 ref.

Nawabzada Khan Askar Afridi for Petitioner.

Nasir Khan Khalil for Respondent.

2018 M L D 146

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

Mst. SHAHIDA---Petitioner

Versus

SARDAR SHAH and 2 others---Respondents

W.P. No.502-M of 2016, decided on 28th April, 2017.

Family Courts Act (XXXV of 1964)---

----S. 14(2)(a)---Decree of dissolution of marriage---Condition for payment of amount of Khula to the husband---Appeal to District Court---Competence---Scope---Petitioner contended that District Court had not entertained her appeal calling the same incompetent---Respondent contended that under Family Law appeal was not provided in case of dissolution of marriage on the basis of 'Khula'---Validity---Decree of dissolution of marriage though could not be challenged in appeal except in certain cases, but dissolution of marriage, in the present case, was not absolute as condition of payment of certain amount as consideration of 'Khula' was imposed---Unless amount of Khula was not paid to the husband, dissolution would not attain finality---Such dissolution of marriage being not absolute was not hit by S. 14(2)(a) of Family Courts Act, 1964 and wife had a remedy by way of filing an appeal before the District Court---Logic behind non-providing of appeal in the case of dissolution of marriage was to protect wife from costly and prolonged litigation---Wife could not file appeal against judgment or decision of Family Court where her suit was not decreed on the basis of cruelty or other grounds recognized under Family Laws even if marriage was dissolved on the basis of Khula, appeal, in the present case, filed by wife was competent as she had challenged the condition of payment through appeal---Appellate court was competent to hear the appeal of the petitioner, High Court, directed to re-write the judgment after hearing parties on merits---Parties were directed to appear before Appellate Court---Constitutional petition was disposed of accordingly.

Naila Azmat v. Judge Family Court and others 1999 MLD 3090; Chanzeb and another v. Mst. Yasmeen Bibi and others 2015 MLD 1140 and Abid Hussain v. Additional District Judge, Alipur District Muzaffargrah 2006 SCMR 100 ref.

Farhad Ali for Petitioner.

Atta-ur-Rahman for Respondent.

2018 M L D 173

[Peshawar (Bannu Bench)]

Before Ishtiaq Ibrahim, J

SHABBIR HUSSAIN and another---Petitioners

Versus

The STATE and 2 others---Respondents

Cr.R. No.03-B of 2017, decided on 17th April, 2017.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of bail bond---Accused for whom petitioners stood sureties, having remained absent from court on date of hearing, sureties were summoned---Neither the accused appeared nor his sureties put their attendance, which resulted into forfeiture of bail bonds of accused and petitioners/sureties were held liable for payment of amount of bail bond (Rs. 100,000/-) each---Validity---Record showed that Trial Court without securing the attendance of the sureties, passed order for forfeiture of bail bonds of accused and held the sureties/ petitioners liable to pay the amount of bail bonds---Said order was against the scheme of law relating to forfeiture of bond and realization of amount---Trial Court was bound to first forfeit the bail bond, and serve a show-cause notice---In the present case, no show-cause notices were issued to the sureties, in the absence of which impugned order was not sustainable---Revision petition was accepted by setting aside impugned order and case was remanded to the Trial Court for decision afresh after affording reasonable opportunity to the petitioners.

Shaukat Ali and another v. The State 1984 PCr.LJ 718 and Muhammad Siddique Khan v. The State through Advocate-General Azad Jammu and Kashmir, Muzaffarabad 2014 PCr.LJ 33 rel.

Syed Umer Ali Shah for Appellant.

Shahid Hameed Qureshi, Addl: AG. for Respondent.

2018 M L D 331

[Peshawar]

Before Rooh-ul-Amin Khan, J

RIAZ AHMAD KHAN---Appellant

Versus

DISTRICT LAND ACQUISITION COLLECTOR, MARDAN and 5 others---Respondents

Regular First Appeal No.155-P of 2016, decided on 23rd October, 2017.

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

----Ss. 18, 23, 4, 25 & 9---Reference to court---Enhancement of compensation---Market value---Determination of---Procedure---Fair compensation---Determination of compensation by court notwithstanding the claim of landowner---Scope---Referee Judge enhanced compensation amount from Rs. 1506/- per marla to Rs. 15,000/- per marla along with compulsory acquisition charges and simple interest---Validity---Basic civic facilities were available in the land adjacent to the land under acquisition---Referee Judge had failed to appreciate the principles contemplated in S. 23 of Land Acquisition Act, 1894---Rate of compensation assessed by the Collector Land Acquisition for the land acquired in an award should not be made the basis of the land acquired through another award---Facts and circumstances of each case had to be considered separately for determination of fair rate of the land under acquisition---Land acquired through another award and present land were adjacent to each other having same characteristics---Compensation awarded to the adjacent land owners could not be ignored---Best mode for determination of market price would be to take into consideration the instances of sales of adjacent land made shortly before or after notification under S.4 of Land Acquisition Act, 1894---Price of adjacent land had been assessed to the tune of Rs. 125,000/- per marla by the High Court---When land owner had omitted for sufficient reasons to make such claim, then amount awarded to him by the Court must not be less than that and might exceed the amount awarded by the Collector Land Acquisition---Collector Land Acquisition was bound to prove the service of notice---Penal clause of S.25 of Land Acquisition Act, 1894 could only be invoked if service of said notice had been proved---Court could award amount of compensation over and above what had been claimed by the land owner in a reference provided sufficient material existed to justify the same---Land owner had claimed an amount of Rs. 70,000/- per marla as market value of acquired land in the present case---Reference Court was to consider evidence on record and examine whether Collector Land Acquisition had considered the nature, location and future potentiality of the land acquired in addition to one year average price---Demand of land owners would be immaterial for determination of compensation---Courts were under legal obligation to determine the fair compensation irrespective of claim of land owners---Land owners, in circumstances, were entitled to be paid compensation @ Rs. 125,000/- per marla with 15% compulsory acquisition charges and 6% simple interest from the date of acquisition till final payment---Impugned judgment passed by the Referee Court was modified---Appeal filed by the land owner was accepted whereas that of government was dismissed in circumstances.

Murad Khan through his widow and 13 others v. Land Acquisition Collector Peshawar and another 1999 SCMR 1467; Sher Muhammad Khan and 4 others v. Land Acquisition Collector PLD 1978 Pesh. 138; Province of Punjab v. Jamil Ahmad Malik 2000 SCMR 870; Muhammad Saeed and others v. Collector Land Acquisition and others 2002 SCMR 407; Nisar Ahmad Khan v. Collector Land Acquisition Swabi and others PLD 2002 SC 25 and Province of Punjab through Land Acquisition Collector and others v. Begum Aziza 2014 SCMR 75 rel.

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

----Ss.25 & 9---When the landowner has omitted for a sufficient reason (to be allowed by the Judge) to make claim, the amount awarded to him by the Court shall not be less-than and may exceed, the amount awarded by the Collector.

Abdul Sattar Khan for Appellant.

Muhammad Riaz, A.A.G. for Respondents.

2018 M L D 365

[Peshawar (Bannu Bench)]

Before Muhammad Younis Thaheem, J

HOUSING OFFICER, BANNU and another---Petitioners

Versus

AZIZ-UR-REHMAN through L.Rs.---Respondents

C.R. No.55-B of 2016, decided on 31st March, 2017.

Civil Procedure Code (V of 1908)---

---S. 47---Allotment of plot---Cancellation of---Execution petition---Objections---Scope---Notice was issued to cancel allotment of plot against which suit was filed---Trial Court dismissed the suit but appellate Court decreed the same subject to payment of "admissible compensation" to the Authority---Execution petition was moved and Executing Court fixed Rs. 61,000/- as fair and just compensation---Validity---Judgment passed by the Appellate Court had attained finality---Executing Court had determined "admissible compensation"---Petitioners had participated in the execution proceedings---Possession of plot in question was taken forcibly by the petitioners which was delivered to the plaintiff/respondent---Petitioners had paid prevalent price of plot in question---No illegality, irregularity, mis-reading or non-reading of record had been pointed out---Revision was dismissed in circumstances.

Sardar Naeem for Petitioner.

Masood Iqbal Khattak for Respondents.

2018 M L D 386

[Peshawar]

Before Qaiser Rashid Khan and Muhammad Younis Thaheem, JJ

FAISAL QAZAFI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman and 4 others---Respondents

W.P. No.1188-P of 2017, decided on 13th July, 2017.

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

----S. 498---National Accountability Ordinance (XVIII of 1999), Ss. 9(a) vi, 9(b) & 23---Constitution of Pakistan, Art. 199---Constitutional petition---Corruption, corrupt practice, misuse of authority by a holder of public office---Pre-arrest bail, recalling of---Prosecution case was that accused was involved in the commission of offence and had colluded and connived with the co-accused including his son-in-law from whom he had allegedly purchased a shopping plaza---Record showed that accused purchased shopping plaza through registered sale deed dated 14.5.2014 from his son-in-law and his brother for a sum of Rs. 18 million as against its purchase for a sum of Rs. 73 million in the year 2013---Transaction in question took place on 14.5.2014, a month after the inquiry was initiated in the matter on 17.4.2014, thus S. 23 of the National Accountability Ordinance, 1999 was applicable to the matter---Record transpired that despite the transfer of the plaza in the name of accused in the year 2014, it was the co-accused who had signed rent deeds with the tenants in the year 2015, which, prima facie, established that the entire deal/transaction in respect of shopping plaza had been conducted in a hush-hush manner so as to hoodwink the prosecution---Record showed that after getting ad-interim bail, the accused had not joined the investigation with the National Accountability Bureau Authorities---Circumstances established that accused was disentitled to the grant of pre-arrest bail, ad-interim bail granted to accused was not confirmed by the High Court---Constitutional petition was dismissed accordingly.

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

----S. 498---Bail---Procedure---Observations recorded in the bail order were tentative in nature and would not prejudice the proceedings before the Trial Court where the case would be decided on its own merits after recording evidence.

Malik Tariq Mahmood for Petitioner.

Muhammad Riaz Mohmand, Special Prosecutor, NAB for Respondent.

2018 M L D 398

[Peshawar]

Before Ishtiaq Ibrahim, J

KHALID---Petitioner

Versus

The STATE and another---Respondents

Cr.M.BA. No.1563-P of 2017, decided on 11th August, 2017.

(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, common intention---Bail, refusal of---Accused was directly nominated in FIR along with motive which was not denied---Motive was alleged theft of pistol of accused by brother of complainant---Medico-legal Report of both the deceased supported prosecution version coupled with site-plan and recoveries in shape of empty shells, blood stained earth etc., which on the face of record substantiated charge against the accused---In presence of direct evidence, much weight could not be attached to the opinion of Ballistic or medical experts, such opinion being entirely corroborative in nature having no bearing on direct or circumstantial evidence---Direct evidence was definite, forthright and at the same time creditworthy---Confirmatory evidence was not of much significance and could not at any rate outweigh the direct evidence unless it was for any reason deficient in quality---Offence, in the present case, fell within the prohibitory clause of S.497, Cr.P.C.---Sufficient material was available on record which could, prima facie, connect the accused with commission of offence and exclude the plea of further inquiry---Bail was refused accordingly.

Ghulam Mehdi v. The State 1991 SCMR 60 rel.

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

----S. 497(2)---Bail, grant of---Grant of bail as of right under S. 497(2) Cr.P.C. was possible only when a finding was rendered to the effect that there were no reasonable grounds for believing that accused had committed the alleged offence---Court, if was not convinced of such aspect, mere further inquiry was of absolutely no avail to accused for bail under S. 497(2), Cr.P.C.

Tariq Khan Hoti for Petitioners.

Syed Abdul Fayaz and Malak Akhtar Hussain Awan, A.A.G. for Respondents.

2018 M L D 407

[Peshawar]

Before Shakeel Ahmad, J

Mst. TAHIRA and 4 others---Petitioners

Versus

MUHAMMAD IRFAN and another---Respondents

Writ Petition No.2507-P of 2017, decided on 19th June, 2017.

Family Courts Act (XXXV of 1964)---

---Ss. 5, Sched. & 17-A---Suit for maintenance allowance of minors---Denial of paternity by father---Effect---Family Court accepted the application of the plaintiff/mother for interim maintenance allowance only to the extent of one minor---Interim maintenance allowance---Scope---Constitutional petition against interim order---Maintainability---Petitioner/mother contended that Trial Court should have granted interim maintenance allowance to all the five minors and that interim maintenance allowance granted to one minor be enhanced---Validity---Record revealed that the father had denied the paternity of other minors in his written statement as well as in reply of application for interim maintenance by contending that the said minors were the children of petitioner from her first husband---Since the paternity of the said minors had specifically been denied by the father/respondent, therefore, the question of minors being lawful issues of the respondent/father and whether they were entitled for maintenance allowance could only be resolved after recording for and against evidence, being question of fact---Respondent/father had also disputed the legitimacy of the minor to whom maintenance was being paid on the ground that the plaintiff had contracted yet another marriage without obtaining divorce from him, however, Trial Court had rightly held that there was nothing on the record to support the stance of respondent/father rather the photo copy of Form-B appended with the plaint showed that the said minor was entered as his daughter---Interim maintenance allowance had been fixed by Trial Court temporarily which could obviously be modified later and that was not a final order adversely affecting the minor---Interim order could not be interfered in constitutional petition, the same was dismissed accordingly.

Barkat Ullah Khan for Petitioner.

None for Respondent.

2018 M L D 428

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

MUHSIN ISLAM and another---Petitioners

Versus

The STATE and 2 others---Respondents

Cr.M.B.A. No.131-M of 2017, decided on 26th May, 2017.

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

---S. 497---Bail---Scope---Purpose of bail was to grant liberty to accused if there was further scope of inquiry into his/her guilt, even if alleged offence fell within purview of prohibitory clause of S.497, Cr.P.C.

(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, unlawful assembly---Bail, refusal of---Incident was stated to be a daylight occurrence---Previous enmity existed between the parties---Accused had acted in pre-concert manner and shared commonality of intention with co-accused---Accused persons remained absconder for considerable long period of more than three years and they failed to furnish any plausible explanation---Alleged offence fell within prohibitory clause of S. 497(1), Cr.P.C.---Contention of counsel for accused that bail could not be refused on the sole ground of abscondance was repelled because version of prosecution was supported from other collected material and bail could be declined as an exception---Bail was refused accordingly.

[Case-law referred].

Mushtaq Ahmad Khan for Petitioners.

Sabir Shah, A.A.G. and Hafiz Ashfaq Ahmad for Respondents.

2018 M L D 444

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

Mst. SAIRA BANO---Petitioner

Versus

Syed SAQI HUSSAIN SHAH and others---Respondents

Writ Petition No.590-A of 2017, decided on 26th July, 2017.

Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Suit for recovery of dower, gold ornaments and past maintenance allowance by wife---Family Court decreed cash amount of dower while Appellate Court decreed the past maintenance as well---Wife had also alleged snatching of her gold ornaments by the mother-in-law; such was a personal specific act against her, instead of appearing herself to substantiate the allegation, she opted to appear through her attorney---Effect---Dower amount incorporated in the Nikahnama as well as agreement---Scope---Husband contended that dower amount was not outstanding against him and wife was not entitled for the past maintenance as she had left his house on her own---Record revealed that wife had produced Petition-Writer who wrote the agreement, Nikah Khawan, Notary Public, Stamp Vendor and her attorney and all of them exhibited relevant documents in her favour---Alleged act of snatching of gold ornaments had not been established through evidence recorded by the wife; the act of snatching was absolutely a personal specific act against the wife but she did not opt to appear in support of her contention, and her attorney as a witness had also not stated anything specifically regarding the alleged snatching---Held, that both the courts below had properly addressed the claim of the wife which had rightly been rejected---Husband could not prove through confidence inspiring evidence that the wife was self-deserted---No misreading or non-reading of evidence in the findings of the both courts below, constitutional petition was dismissed accordingly.

Muhammad Jehangir Khan for Petitioner.

Sajid-ur-Rehman Khan for Respondent.

2018 M L D 476

[Peshawar (Mingora Bench)]

Before Muhammad Nasir Mahfooz, J

SHER REHMAN---Petitioner

Versus

Mst. KHARO and others---Respondents

W.P. No.493-M of 2013, decided on 17th October, 2017.

Khyber Pakhtunkhwa Tenancy Act (XXV of 1950)---

----S. 56---Ejectment of tenant---Second revision before Board of Revenue---Scope---Member Board of Revenue had jurisdiction to entertain second revision under S. 56 of Khyber Pakhtunkhwa Tenancy Act, 1950---Tenant, in the present case, was defaulter of payment of produce and had kept the proceedings prolonged to remain in unlawful possession on the suit property---Tenant had denied the relationship of landlord and tenant but failed to prove that someone else was his landlord---Petitioner was in possession of the suit property as a tenant from the last more than a decade without paying a single penny or any produce to the landlord---Tenant was not entitled to any relief and Board of Revenue had rightly allowed revision of the landlord---Constitutional petition was dismissed in circumstances.

PLD 1986 Pesh. 67; 1985 SCMR 770 and 1992 SCMR 2103 rel.

Qazi Midrarullah for Petitioner.

Ziarat Gul for Respondent.

2018 M L D 485

[Peshawar (Mingora Bench)]

Before Muhammad Nasir Mahfooz, J

MALAK ABDULLAH KHAN---Appellant

Versus

MUHAMMAD RASOOL KHAN---Respondent

R.S.A. No.4 of 2016, decided on 23rd October, 2017.

(a) Khyber Pukhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment of tenant---Default in payment of rent---Bona fide personal need of landlord---Scope---Landlord was duly cross-examined but no doubt or mala fide in the grounds so raised in the eviction petition were noticed---Genuineness of ground of personal need of landlord could not be doubted and he had discretion to select any of his property for his own business or for the business of his children---Question of personal use of demised premises had been established on record---Courts below had not given due consideration to the contentions of landlord---Bona fide requirement of demised premises by the landlord was doubted without any convincing reasons and sufficient grounds---Trial Court did not order to the tenant to deposit rent which was illegality when relationship of landlord and tenant had not been denied---Landlord had established the grounds of default and personal use of demised premises in a satisfactory manner---Impugned orders passed by the Courts below were set aside---Tenant was directed to vacate the suit premises within a period of two months---Second appeal was allowed according.

PLD 2007 SC 45; 2013 CLC 562; PLD 2009 SC 453 and 2011 CLC 717 rel.

(b) Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S. 15---Eviction of tenant---Second appeal---Scope---Findings of facts arrived at by the Courts below could be disturbed in second appeal only if they were found to be perverse and not based on record.

Sultan Ali Shah for Appellant.

Respondent in person.

2018 M L D 504

[Peshawar]

Before Qaiser Rashid Khan, J

JEHAN SHARIF---Petitioner

Versus

The STATE---Respondent

Bail Petition No.2288-P of 2017, decided on 24th November, 2017.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Possession of narcotic drugs---Bail, refusal of---Accused was allegedly found carrying contraband heroin in his stomach to Arab country which describe most stringent punishment to the offender and also carrying Pakistan Passport thereby bringing a bad name to the country---Forensic Science Laboratory report was in affirmative which prima facie connected accused with commission of offence---Accused was not entitled to concession of bail even if offence did not attract the prohibitory clause of S. 497, Cr.P.C.---Bail was refused accordingly.

Amanullah Pirzada for Petitioner.

Waqas Chamkani for the State.

2018 M L D 528

[Peshawar (D.I. Khan Bench)]

Before Shakeel Ahmad, J

SALEEMULLAH---Petitioner

Versus

ASMATULLAH and another---Respondents

Cr.M.B.A. No.308-D of 2017, decided on 10th November, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Bail, refusal of---Accused persons allegedly came out from the vehicle and started beating complainant with Danda (stick) and the Bricks, thereafter they took out repeater and pistol from the vehicle and fired respectively---Motive was previous scuffle---Deeper appreciation could not be resorted to at bail stage---Prosecution case, version of FIR, statement of injured witness was supported by Medico Legal Report of complainant and post-mortem report of deceased persons coupled with motive---Crime empties were also recovered from the spot---Counter version revealed that only grandson of complainant sustained firearm injury with no exit wound---Complainant could have gone to Police Station but same was delayed by an hour despite the fact that Police Station was one and half kilometer away from the spot---Accused was specifically named as offender for committing murder of deceased---Mere juvenility of accused was no ground to release the accused on bail---No merit existed in the application---Bail was refused accordingly.

Saifur Rehman Khan and Inam Ullah Khan Kundi for Petitioners.

Ahmad Ali Khan Marwat and Adnan Ali Khan, AAG for Respondents.

2018 M L D 543

[Peshawar (Chitral Bench)]

Before Muhammad Nasir Mahfooz, J

HEADMASTER GHS RESHUN and others---Petitioners

Versus

AKBARUDDIN---Respondent

C.R. No.27 of 2015, decided on 3rd October, 2017.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & O. II, R. 2---Suit for recovery of damages---Subject matter of the suit was substantially and directly in issue in the earlier suit---Effect---Relinquishment of claim---Plaint, rejection of---Scope---If plaintiff noticed that he had left out some aspect for which he had not claimed damages in the earlier suit then present suit was barred under O. II, R. 2, C.P.C.---Court was bound to decide the applicability of O. VII, R. 11, C.P.C. by perusal of plaint only---Courts below had dismissed application for rejection of plaint without keeping in view the relevant provisions of law---Plaint was liable to be rejected in circumstances---Impugned orders were set aside and plaint was rejected--Revision was allowed in circumstances.

1996 SCMR 1110 rel.

Abdul Wali Khan for Petitioners

Shahabuddin for Respondent.

2018 M L D 567

[Peshawar]

Before Rooh-ul-Amin Khan, J

LAND ACQUISITION COLLECTOR and another---Appellants

Versus

KHANA GUL and 6 others---Respondents

F.A.O. No.28-P of 2017, decided on 28th September, 2017.

Land Acquisition Act (I of 1894)---

----Ss. 23 & 34---Execution proceedings---Compulsory acquisition---Compound interest on compensation for compulsory acquisition---Scope---Executing court dismissed application of Judgment-debtors to permit them to submit amended goshwara as they had inadvertently added 6 percent compound interest in their earlier goshwara---Judgment debtors contended that no compound interest could be paid on the compulsory acquisition charges---Decree-holders contended that judgment debtors could not evade their own commitment---Validity---Record revealed that during execution proceedings the judgment debtors submitted goshwara and agreed to pay certain amount to the decree holders as decretal amount which amount was deposited by them in the Court, thus, the decree had already been satisfied but appeal had been filed only for academic purpose which could not be entertained by the executing court---Section 34 of the Land Acquisition Act, 1894 stipulated that Land Acquisition Collector was to allow compound interest on the compulsory acquisition charges---Compound interest at the rate specified by the statue on the subject was payable by the Collector or be awarded by Referee Court on the amount of compensation in excess of amount determined by the Collector---Such interest was to be paid retrospectively with effect from the date the possession of the land was taken over by the Collector and till such time that the excess amount was deposited in the Court---Payment of compulsory acquisition charges was not an excess amount, rather it was part of the market value of the land under acquisition---Section 23 of the Land Acquisition Act, 1894 empowered the Referee Court to award a sum at the rate of 15% to the land owner on account of compulsorily depriving the owner from his land---Impugned order of the Executing Court, was well reasoned and in accordance with law, hence not open to any interference by the High court---Appeal was dismissed accordingly.

Aftab Ahmad Durani for Petitioner.

Ahmad Ali Khan and Gohar Zeb for Respondent.

2018 M L D 671

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah and Syed Arshad Ali, JJ

Mst. MEHREEN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary health, Peshawar and 7 others---Respondents

W.P. No.183-A of 2017, decided on 21st November, 2017.

(a) Educational Institution---

----Admission to medical college---Reserved seats for backward area---Closure of admission---Wong admission---Petitioner candidate applied on seat reserved for backward area but she was not given admission on grounds that she did not get education from school and college situated in the backward area---Plea raised by authorities was that session for which petitioner applied was completed/closed and she could not be given admission---Validity---Relevant clause of Criteria of Eligibility for Admission in BDS as well as MBBS for candidate from Backward Areas of Khyber Pakhtunkhwa did not envisage that candidate having acquired education from educational institution which was near to backward area would be given preference over candidate who obtained education from an area which was considerably placed at remote distance from backward area within the district where backward area was located---If facility of education was available at place near to backward area within district where backward area was located and candidate did not obtain his education from that nearest place, rather had obtained education from other part of district where backward area was situated, such candidate could not be denied admission against reserved seat under criteria in question---Authorities misconstrued proviso to Clause-II (ii) of Criteria of the Eligibility---High Court directed the authorities to give admission to petitioner in any public sector college according to her merit---Plea raised by authorities was no ground to withhold admission to petitioner as nobody could be prejudiced by acts/omissions of government/public sector institution---Petitioner was entitled to be given admission either in ongoing session or in forthcoming session whichever was appropriate keeping in view the policy---High Court further directed that respondent should not be disturbed because of her lower position on merit as she was neither at fault nor had made any misrepresentation or fraud while applying for admission against seat in question as she had already completed her first year of education and a vested right had accrued to her to complete her education---Constitutional petition was allowed accordingly.

Ahad Yusuf's case 1986 CLC 1284; Hakim Ali Bhatti v. Qazi Abdul Hakim 1986 CLC 1784 and Ch. Zulfiqar Ali v. Chairman, NAB and others PLD 2003 Lah 593 ref.

Chairman, Selection Committee/Principal, King Edward Medical College Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 and Mst. Attiya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161 rel.

(b) Words and phrases---

----'Or'---Connotation---Use of word 'or' does not give preference of existence of one eventuality over the other.

Muhammad Naeem Anwar for Petitioner.

Yasir Zahoor Abbasi, A.A.G. for Respondents Nos. 1, 2 and 6.

Fawad Saleh for Respondent No.3.

Sardar Aman Khan for Respondent No.7.

Tahir Hussain Lughmani for Respondent No.8.

2018 M L D 702

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

SHAN---Appellant

Versus

The STATE---Respondent

Cr.A. No.223-P of 2017, decided on 27th September, 2017.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Benefit of doubt---Prosecution case was that ten packets of heroin weighing ten kilograms were recovered from a secret cavity on the driver side of the vehicle driven by the accused---Complainant separated 1/1 gram heroin from each of the ten packets as samples for chemical analysis---Prosecution produced six witnesses in order to prove the charge against the accused---Statements of the prosecution witnesses were not consistent on the point as Investigating Officer stated that the secret cavity was prepared in the door of the driver side of the vehicle---Marginal witness of the recovery memo stated that the secret cavity was available on the right side of the driver---Complainant contradicted them by saying that the secret cavity was made in the rear partition of the vehicle---Such material contradiction with regard to the alleged recovery from the place of vehicle, would prove fatal for the prosecution---Nothing was available on the record to prove that the accused was owner of the vehicle or that he was driving the vehicle at the time of alleged recovery from the said vehicle---Admittedly, neither anything incriminating was recovered from the personal search of the accused nor there was any record of involvement of the accused in such like cases or in any other criminal activity in the past---Circumstances established that prosecution was unable to prove its case against the accused beyond any shadow of doubt, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

(b) Criminal trial---

----Witness---Police official as witness---Police official was as good witness as any other witness but his testimony needed to be accepted with great care and caution, particularly, when there was prior information and the police officer had sufficient time to arrange presence of independent witnesses.

(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 narcotics---Chemical analysis---Appreciation of evidence---Benefit of doubt---Delay in sending samples of contraband for analysis---Effect---Record showed that alleged contraband was received in the Forensic Science Laboratory for analysis after considerable delay of eleven days---No explanation was furnished for such inordinate delay or evidence with regard to safe custody of the samples during the intervening period from the date of recovery up-to the receipt of the samples in the Forensic Science Laboratory---Investigating Officer stated that he recorded statement of Muharrir of the police station regarding sending the samples---Said Muharrir stated that sample had been sent to Forensic Science Laboratory through a constable---Neither the said constable was mentioned as prosecution witness in the challan form nor produced as prosecution witness in the court---Register showing the entry of safe custody of the narcotics was not produced---Unattested photo copies of the said register were produced, which could hardly prove safe custody of the samples while they were lying in the police station before their dispatch to the Forensic Science Laboratory, so as to make report of the Forensic Science Laboratory credible and worthy of reliance---Delay of eleven days in sending the samples for analysis would cast serious doubt about the prosecution case, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Shabbir Hussain Gigyani and Farman Ullah Sailab for Appellant.

Muhammad Riaz Khan Paindakhel A.A.G. for the State.

2018 M L D 734

[Peshawar (D.I. Khan Bench)]

Before Ijaz Anwar, J

MUHAMMAD RIZWAN---Petitioner

Versus

Mst. RUBINA KANWAL and others---Respondents

W.P. No.640-D with C.M. No.660-D of 2014, decided on 6th December, 2017.

Family Courts Act ( XXXV of 1964)---

----Ss.12 & 14---Execution proceedings of decree for dissolution of marriage, recovery of dower amount, articles and maintenance allowance---Decree of gold ornaments or its market value---Prevailing market price, question of---Interlocutory order---Appeal and constitution petition against interlocutory Order of Executing Court---Maintainability---Petitioner/Judgment debtor contended that Executing Court had wrongly directed him to deposit existing price of gold ornaments as prevailing market rate would be the one when the suit was instituted---Respondent/decree holder contended that prevailing market price would be the one when actually payment was to be made and that constitutional petition against order of Executing Court was not maintainable---Validity---Section 14(3) of the Family Courts Act, 1964 provided that no appeal or revision was competent against the interlocutory order of the Family Court---Interlocutory order was not a "decision" within the meaning of S. 14 of Family Courts Act, 1964---Since the execution petition was pending in the present case and the same had not been decided, rather direction was made by the Executing Court for the deposit of the decreed amount, therefore, such order could not be held to be a "decision" within the meaning of S. 14 of the Family Courts Act, 1964---Family Court while awarding the decree, had not mentioned the amount but referred the same as decree of 05 tolas of gold ornaments or its market value---Said gold ornaments remained unpaid for the last about eight years, the execution of the decree to that extent remained delayed---Market value of the gold would not remain static endlessly and the same would be considered at the time when it was actually paid to the decree holder, particularly in family matter---Prevalent market value of 5 tolas gold ornaments had already been deposited, therefore, High Court declined to order payment of market value of the gold when the same had been actually paid---No illegality or infirmity having been noticed in the impugned order of the Executing Court, constitutional petition was dismissed accordingly.

PLD 1999 Lah. 33; 1986 CLC 621; Haji Muhammad Nawaz v. Samina Kanwal 2017 SCMR 321; Aysha Shaheen v. Khalid Mehmood 2013 SCMR 1049 and Noshad Ali v. Mst. Afzanat Rauf and 5 others 2013 CLC 492 ref.

Muhammad Mohsin Ali for Appellant.

Ahmad Ali Khan for Respondent.

2018 M L D 768

[Peshawar (Bannu Bench)]

Before Shakeel Ahmad, J

MUHAMMAD JAMIL---Petitioner

Versus

ZAHIDULLAH alias ZOHAIB and 2 others---Respondents

Cr. Misc. B.A. No.286-B of 2017, decided on 6th September, 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, common intention---Bail, grant of---Rule of consistency---Allegations against the accused-petitioner were that he along with co-caused, during a "jirga" proceedings, opened indiscriminate firing on the complainant party, due to which, five persons lost their lives---Accused-petitioner argued that earlier, the co-accused of the case was allowed bail by the Court---Record showed that role attributed to the accused-petitioner was at par with the co-accused who had already been released on bail---Accused-petitioner was also entitled for equal treatment for having one and the same role attributed to co-accused in the same case---Accused-petitioner was allowed bail in circumstances.

Gul Muhammad and others v. The State and others 2010 PCr.LJ 340 and Nasib Khan v. The State and another 2017 PCr.LJ Note 17 rel.

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

----S. 497---Bail---Further inquiry---Counter-version---Scope---Bail, in case of counter version, could be granted on the ground of further inquiry giving rise to question as to which party was aggressor and who had been aggressed upon.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 rel.

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

----S. 497---Bail---Abscondence---Effect---Mere abscondence or commencement of trial was no ground to refuse bail to the accused.

Safdar v. State and others PLJ 2017 (SC) 115 rel.

Farooq Khan Sokari for Petitioner.

Sultan Mehmood Khan for Respondent.

Qudrat Ullah Khan, A.A.G. for the State.

2018 M L D 789

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah and Syed Arshad Ali, JJ

FARHANA SADIQ---Petitioner

Versus

DIRECTOR COMSATS INSTITUTE OF INFORMATION TECHNOLOGY and 4 others---Respondents

W.P. No.850-A of 2012, decided on 17th July, 2017.

Educational institution---

----Admission in M. Sc. Chemistry Programme---Admission Committee recommended provisional admission of the petitioner-student in the Programme---Petitioner deposited the required admission fee and other dues and started classes and appeared in the mid-term examination---University cancelled admission of the student on the ground that she did not secure requisite marks---High Court allowed the petitioner-student to continue her studies in the university as an interim relief and she appeared in the final examination but her result had been withheld by the university---Validity---University was the sole judge of criteria laid down in the prospectus---High Court normally did not interfere in the discretion of universities---Petitioner was given admission on merit by the competent authorities and she had not only deposited the fees but also appeared in the mid-term examination---Petitioner student could not have been deprived of her vested right which she had acquired on the basis of act of the university---Petitioner had completed the entire course work pursuant to order of High Court and had appeared in the final examination---Impugned order was set aside and university was directed to declare result of petitioner and treat her in accordance with law---Constitutional petition was allowed in circumstances.

Chairman Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Asif Zamir Ahmad 1997 SCMR 15 and University of Karachi and others v. Tariq Hussain and another 2012 SCMR 1694 rel.

Qazi Muhammad Azhar and Nazakat Ali Tanoli for Petitioner.

Muhammad Ali Khan Jadoon for Respondents.

2018 M L D 826

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

SHAN MOHAMMAD---Appellant

Versus

The STATE---Respondent

Cr.A. No.81-P of 2013, decided on 21st September, 2017.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that a vehicle was stopped and three persons were found inside the said vehicle, out of whom, one was sitting on driver seat, one on front seat and one was on the rear seat---Said persons were de-boarded from the vehicle and on search of the vehicle, a plastic sack was recovered from "digi" of the vehicle, from where, ten packets of charas Garda, each weighting 1000-grams, were recovered---On further search, ten packets of charas Garda, each weighing 1000-grams were recovered from secret cavities of both left and right front doors of the vehicle---Two packets weighing 1000-grams each of opium were recovered underneath the driver seat---Complainant separated 5/5 grams from each packet of charas Garda and opium for chemical analysis---All the accused were arrested on the spot---Record showed that complainant despite receiving information 2½ hours before the alleged recovery, did not associate any independent witness---Samples separated from the bulk were received in the Forensic Science Laboratory after considerable delay of eleven days, with no evidence forthcoming about safe custody of the samples during the intervening period---Said circumstances made the report of Chemical Examiner doubtful---Trial Court had acquitted the co- accused persons on the basis of same set of evidence, which had been made basis for conviction and sentence of the accused, on the sole ground that he was found on the driving seat, without proof of his ownership or of being driver of the vehicle---FIR showed that contrabands were jointly smuggled by all the accused persons---Said vehicle was released on superdari to the owner, without bringing anything on record to either show the accused as driver of the vehicle or the fact that the contraband were concealed by him in the vehicle and not by the owner---Prosecution had failed to prove its case, in circumstances thus accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

Ghulam Mohy-ud-Din Malik for Appellant.

Mujahid Ali Khan, AAG. for the State.

2018 M L D 835

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan and Muhammad Nasir Mahfooz, JJ

RAEES KHAN---Appellant

Versus

The STATE---Respondent

Cr.A. No.222-M of 2016, decided on 7th August, 2017.

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

----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S.15-AA---Act of terrorism, attempt to cause explosion or for making and keeping explosives with intent to endanger life and property, making or possessing explosives under suspicious circumstances, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Prosecution case was that during search operation, the accused was found in suspicious condition; from his personal possession, one .30-bore pistol with ten live rounds and one hand grenade were recovered---Prosecution in support of its case had produced four witnesses---Record showed that hand grenade allegedly recovered was in fact taken into possession on 15.1.2016, but by manipulation and overwriting it had been changed to 16.1.2016---Hand grenade allegedly recovered was sent to Forensic Science Laboratory after two days of its recovery and prosecution could not give satisfactory explanation in that regard---Official, who drafted murasila had been abandoned and was not examined so as to explain the position---Record showed that prosecution had failed to bring home the guilt as charged against accused to prove that he had in fact intended to be involved in a case under S.7 Anti-Terrorism Act, 1997---Delay of two days for sending the hand grenade to Forensic Science Laboratory proved that the prosecution had failed to discharge the burden of proof---Accused was acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.

Bashir Ahmed v. Muhammad Siddique and others PLD 2009 SC 11; Aftab Ahmad v. The State 2004 MLD 1337 and Muhammad Ahmad alias Danyal v. The State 2005 YLR 954 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---Benefit of slight doubt in the case of prosecution, would go in favour of the accused and would be sufficient for his acquittal.

Aftab Ahmad v. The State 2004 MLD 1337 rel.

Sahibzada Assadullah for Appellant.

Barrister Asad Hamidur Rehman for the State.

2018 M L D 854

[Peshawar (Bannu Bench)]

Before Syed Afsar Shah and Ishtiaq Ibrahim, JJ

TARIQ ZAMAN---Appellant

Versus

MUHAMMAD SHAFI KHAN and 2 others---Respondents

Cr.A. No.181-B with Murder Reference No.3-B of 2016, decided on 8th February, 2017.

(a) 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---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused and co-accused were brawling with the son of complainant, and on arrival of complainant and his brother at the place of occurrence, accused persons started firing with intention to kill them, resultantly brother of complainant was hit and died on the spot---Motive for the crime was dispute of land---Accused (appellant) had not been shown to have harmed anybody in the FIR---Testimony of complainant showed that accused did not have any firearm at the relevant time rather was empty handed---Prosecution witness/son of complainant with whom grappling was alleged had also attributed the firing to the co-accused---Complainant had not specified the weapons with which the accused persons were equipped at the relevant time, which cast doubt on his presence at the relevant time because he was not a lay man---Complainant being police official was supposed to be well aware of the calibre and type of weapons possessed by the accused persons at the time of occurrence---FIR showed time of occurrence as 8.00 p.m.---Complainant had charged seven accused for indiscriminate firing at him and his deceased brother---Complainant had failed to explain as to how could he identify the bullets coming out from the barrel of the gun of each accused and hitting the deceased in the darkness---Investigating Officer had not collected any evidence with regard to source of light at the relevant time, which created doubt about the identification of accused persons---Circumstances established that complainant was not present at the spot---Mode and manner of occurrence had not been clearly brought on record and ocular account suffered with infirmities---Prosecution, in circumstances, had not been able to prove the charge against the accused---Accused was acquitted in circumstances by setting aside the conviction and sentence recorded by the Trial Court.

(b) Criminal trial---

----Absconsion---Corroborative evidence---Scope---High Court observed that people abscond not because they were guilty, but because of fear and torture of the police---Absconsion was not a substantive piece of evidence, but was a corroborative evidence---Abscondence could neither cure the inherent defect of the ocular account nor by itself was sufficient to sustain conviction.

Taj Muhammad v. Pesham Khan and others 1986 SCMR 823 and Farman Ali and 3 others v. The State PLD 1980 SC 201 rel.

(c) Criminal trial---

----Evidence---Corroboration---Effect---Scope---Where direct evidence failed, corroborative piece of evidence was of no avail.

(d) Criminal trial---

----Benefit of doubt---Scope---If any reasonable doubt had arisen, benefit of the same would be extended to accused not as a grace or concession, but as a matter of right.

(e) Criminal trial---

----Benefit of doubt---Scope---Any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind was sufficient for acquittal of the accused.

Sultan Mehmood and Mehbob Khan for Appellants.

Shahid Hameed Qureshi, Addl: A.G. and Malik Nawaz and Shah Hussain for Respondents.

2018 M L D 870

[Peshawar (Bannu Bench)]

Before Ijaz Anwar, J

Mst. BASMINA---Petitioner

Versus

IMRAN and others---Respondents

W.P. No.643-B of 2015, decided on 5th July, 2017.

Family Courts Act (XXXV of 1964)---

----S.5 & Sched.---Suit for dissolution of marriage and recovery of dower and custody of minor---Cruelty---Scope---Wife leaving the house of her husband on her own and did not demand custody of minor for a long time---Effect---Past maintenance allowance ---Scope---Gold ornaments in lieu of dower---Petitioner/ex-wife contended that Appellate Court had wrongly ordered to surrender half of 7 tolas of gold ornaments in lieu of dower in the wake of dissolution of marriage on the basis of cruelty instead of khula---Respondent/ex-husband contended that the petitioner could not prove cruelty and she was not entitled for custody of minor as she had not demanded post maintenance and custody of minor for a long time---Validity---Record revealed that petitioner though claimed dissolution of marriage on the basis of cruelty but she had stated as witness that she was not ready to live with the respondent and would rather prefer death---Evidence showed that the petitioner remained in the house of respondent for a considerable long time even when the respondent had left for abroad and that father of respondent also took amount during the period the petitioner was living with her father; which demonstrated that petitioner left the house of her husband with her free will---Cruelty, though could not be proved through direct evidence but, in the present case, mere assertion of the petitioner that she had heard disparaging remarks about her on the telephone could not be considered as proven fact about cruelty---Seven tolas gold ornaments was proved as dower of the petitioner and was not denied in evidence---Where wife herself was seeking Khula, she was bound to surrender the dower---Husband, during subsistence of marriage could not be allowed to neglect his wife in paying maintenance to her; it was his legal, moral and social duty under the Islamic Law to maintain his wife to live respectable life till the subsistence of marriage---Family Court had rightly granted past maintenance allowance for one year till the expiry of iddat---Wife when left the house of husband had not asked for the custody of her minor son for a considerable time, therefore, Family Court had dealt judiciously with the issue relating to custody of minor and had recorded observation in details---High Court modified the decree and judgment of Appellate Court regarding past maintenance---Constitutional petition was disposed off accordingly.

Rehmanullah Marwat for Appellant.

Muhammad Saddiq Khan for Respondent.

2018 M L D 882

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

KHAN MUNIR---Petitioner

Versus

The STATE and another---Respondents

Cr.A. No.289-P of 2016, decided on 23rd October, 2017.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused killed the son of complainant by slitting his throat through dagger---Motive was stated to be a verbal altercation, which had taken place between the deceased and the accused on the day of occurrence---Record showed that after commission of offence, accused went into hiding and consequently proceedings under S. 512, Cr.P.C. were initiated against him---Complainant of the case did not appear before the court due to his infirmness and incapability to give evidence---However, Trial Court had allowed the prosecution to bring on record the statement of complainant, which he had recorded in the case during the proceedings under S.512 Cr.P.C.---Prosecution's stance that the complainant could not attend the Trial Court due to his infirmness but there was no material on the case file to support the prosecution's said version---Statement of complainant recorded under S. 512, Cr.P.C. in circumstances, could not be legally considered against the accused---Prosecution had relied upon the testimony of eye-witness---No doubt, said witness was not related to any of the parties, but on record, there was no material, which could corroborate his deposition so as to make it a base for recording conviction---Record transpired that three persons were present in the Hujra when the accused came there, took out dagger from the folder of his Shalwar and killed the son of complainant by slitting his throat---None of the three persons present there prevented the accused from committing the offence nor they raised any hue and cry over the cruel act---Said persons acted like silent spectators, which conduct of theirs' casted serious doubt on their presence on the spot---Two persons were not related to the victim so as to rescue him but the complainant being father, must have come to the help of his son, if he was present on the spot---Deceased was a young man of twenty five years and his slitting could not be the job of one person as reported and deposed by the prosecution witnesses---Slitting of a young man could not be done by a single person, unless he was tied with any rope etc.---Occurrence took place on 3.00 p.m. while the report was made on 3.30 p.m. and as per testimony of the eye-witness, none of the three persons had left the Hujra till arrival of the police on the spot---Police had reached the spot at 3.30 p.m., after thirty minutes of the occurrence---Sitting idle for thirty minutes by all the three persons on the spot after the gruesome murder was indicative of the fact that none of them was present at the crucial time---If they were present on the spot, they must have taken the dead body to the Police Station for legal proceedings or would have raised any hue and cry to attract other people to the spot---Failure to react showed their non-presence on the spot at the time of occurrence---Another prosecution witness had admitted in his cross-examination that father of the deceased had reached the spot after death of the deceased and that he was in his house---Testimony of said witness had negated what eye-witness had deposed about presence of complainant on the spot at the time of occurrence and as such testimony of the sole eye-witness could not be relied upon---Circumstances established that prosecution had not been able to prove its case beyond any shadow of doubt against the accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded by the trial court.

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

----S. 512---Qanun-e-Shahadat (10 of 1984), Art. 46---Recording of evidence in absence of accused---Using evidence earlier recorded in absentia, against absconding accused on his arrest---Scope---Under Art. 46 of the Qanun-e-Shahadat, 1984, statement of a person recorded under S. 512, Cr.P.C. could be transferred to the case subsequently, if he had become incapable to give evidence---In order to give relevance to such statement, it must be proved through reliable evidence that the person was dead, infirm or was incapable to testify---If the said conditions were not fulfilled, the statement recorded under S. 512, Cr.P.C. of a person could not be given any credence for its having remained un-crossed.

(c) Criminal trial---

----Absconsion---Effect ---Absconsion of the accused alone would not be sufficient to record his conviction as for recording conviction of a perpetrator, reliable, tangible and corroborative evidence was required.

Hizar Hayat Khazana for Appellant.

Syed Abdul Fayaz and Bashir Ahmad for the Complainant.

Mian Arshad Jan, AAG for the State.

2018 M L D 920

[Peshawar (Mingora Bench)]

Before Muhammad Ibrahim Khan, J

Mst. REHANA and another---Petitioners

Versus

The STATE through Additional Advocate-General and another---Respondents

Criminal Miscellaneous Bail Application No.160-M of 2017, decided on 3rd May, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 496-A & 109---Enticing or taking away or detaining with criminal intent a woman, abetment---Bail, grant of---Further inquiry---Statement of female accused revealed that she had contracted marriage with co-accused on her free will and consent and nobody had forced her; she had stated that she was not abducted; and had left house of her parents on her free will and had not taken any valuables along with her while leaving the house of her parents---Female accused had lodged complaint under S.200, Cr.P.C. read with Ss.452 & 506, P.P.C. against her parents---Reasons existed to believe that case of accused persons was that of further inquiry into their guilt---Bail was granted accordingly.

Abdul Ghafoor v. The State and another 2011 MLD 1048; Mukhtiar Ahmad v. The State and others 2011 MLD 1020; Said Nawab and 2 others v. The State through Additional Advocate General and another 2013 YLR 990; Imran Bhatti and another v. Province of Sindh 2010 YLR 312; Amir v. The State and another 2010 PCr.LJ 961; Muhammad Zeeshan Zarif v. The State and another 2013 YLR 2220 and Iqra Javed alias Saba v. Station House Officer and others PLD 2013 Lah. 538 ref.

Muhammad Raziq and Aziz Muhammad for Petitioners.

Barrister Asad Hameed-ur-Rahman Counsel and Fazal Ahmad for the State.

2018 M L D 932

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

Mst. SAIRA KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.318-P of 2016, decided on 18th October, 2017.

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

----Ss. 9(c), 33 & 48---Possessing and trafficking of narcotics---Confiscation of vehicle allegedly involved in the commission of offence---Appellant had sought return of the said vehicle claiming that her late husband was last purchaser of the vehicle---Trial Court dismissed the application by holding that partnership of late husband of the appellant with the accused could not be ruled out---Validity---Record showed that there was no rival claimant of the vehicle---Contraband were recovered from the vehicle along with a receipt from Rent-A-Car office, owned by the late husband of the appellant, which showed that accused had hired the vehicle for self driving which fact proved that the vehicle belonged to Rent-A-Car office---Previous owner of the vehicle appeared as court witness and deposed about sale of vehicle by the husband of appellant---Evidence suggested that the cavity from where the narcotic was recovered was not specially created in the vehicle---Declining request of the appellant for return of the vehicle was beyond jurisdiction of the Trial Court---Appeal was allowed accordingly.

Altaf Khan for Appellant.

Muhammad Tariq Kakar for the State.

2018 M L D 954

[Peshawar (Mingora Bench)]

Before Musarat Hilali and Abdul Shakoor, JJ

MIR WAIZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.195-M of 2014, decided on 20th April, 2017.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Prosecution case was that 20,700 grams opium was being carried by the accused---Prosecution produced four witnesses in order to prove charge against the accused---Police after arrest of accused had fulfilled all the legal and codal formalities, which were in line with the version taken by the prosecution---Record showed that Investigating Officer, who had conducted the investigation, supported the prosecution case as taken place in the mode and manner---Accused could not justify his presence at the place of occurrence at night time with such a huge quantity of opium---Huge quantity of contraband could not be planted by the police officials, as admittedly the area where the occurrence had taken place was known for such kind of activities---Prosecution case had further been corroborated by the positive report of Forensic Science Laboratory---Though, there was delay in sending the sample to Chemical Examiner, yet the same would be inconsequential as there was no evidence that the samples were tainted---All the witnesses had deposed in line with the prosecution case---Witnesses were subjected to a lengthy cross examination but the defence failed to shatter their testimony---Circumstances established that the judgment of conviction and sentence passed against the accused was based on correct application of evidence on record---Appeal against conviction was dismissed in circumstances.

(b) Criminal trial---

----Site plan---Evidentiary value---Site plan is not a substantive piece of evidence, but corroborative piece of evidence and its non-preparation by no means dilutes the whole version of the prosecution.

(c) 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 S.103, Cr.P.C.---Scope---Defence had contended that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.---Validity---Application of S. 103, Cr.P.C. had been excluded in such cases in view of S. 25 of Control of Narcotic Substances Act, 1997.

(d) Criminal trial---

----Witness---Police official as witness---Statement of police official could not be discarded on the ground that he belonged to police force unless any animosity on his part for false involvement of accused was established on record.

Naseer Ahmad v. The State 2004 SCMR 1361; Riaz Ahmad v. The State 2004 SCMR 988 and Ismaeel v. State 2010 SCMR 27 rel.

Muhammad Yasir Khattak for Appellant.

Sabir Shah, A.A.-G. for the State.

2018 M L D 973

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

SARDAR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.495-P of 2014, decided on 25th October, 2017.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused along with co-accused duly armed came outside the house of complainant, called his brother and started firing at his brother who died on the spot---Motive for the occurrence was stated to be infuriation of the accused when they were reprimanded by the deceased on their wrong doings---Ocular account was furnished by the witnesses including complainant---Both the said witnesses, though had deposed against the accused in line with the allegations contained in the FIR, but pronounced aspect of the case was that the accused was father of two absconding accused and was an old man of seventy years---Eye-witness had stated in his cross-examination that after firing the accused fled away towards mountains---Accused was a septuagenarian, therefore, his fleeing towards the mountain for hiding after the occurrence could not be believed in view of his infirmness---Record reflected that the job of firing at the deceased was not that of the three persons as had been alleged in the FIR and deposed by the prosecution witnesses---Circumstances suggested that the complainant side had leveled an exaggerated charge so as to enrope therein the accused for his being father of the two absconded accused---Presence of accused on the spot at the time of occurrence had not been proved as per site plan---No empty of shot gun had been recovered, which weapon the accused, as per prosecution witness, was holding at the time of occurrence---Presence of accused and complainant as shown in the site plan, indicated that it was not possible for the complainant to see the accused as in between them there was a hindrance of a room---In view of the facts, circumstances of the case and age factor of the accused, prosecution had not proved its case against the accused beyond any reasonable doubt---Appeal was allowed and accused was acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.

Shahid Naseem Khan Chamkani and Syed Abdul Fayaz for Appellant.

Mian Arshad Jan, A.A.G. for the State.

Imran Khan for the Complainant.

2018 M L D 996

[Peshawar]

Before Yahya Afridi, C.J. and Ijaz Anwar, J

MEHWISH KHAN---Petitioner

Versus

KHYBER MEDICAL UNIVERSITY (KMU) through Controller of Examination (KMU), Hayatabad and 3 others---Respondents

Writ Petition No.4546-P of 2017, decided on 14th December, 2017.

Educational Institution---

----Medical college---Failure to clear examination in four opportunities by the student---Effect---Petitioner was student of MBBS and her registration was cancelled by authorities as she had failed to clear her examination in more than four chances---Validity---Petitioner was illegally retained in the Institution despite having availed more than four chances in the examination---High Court declined to interfere in the notification in question as petitioner had no right to pursue her study and she could avail appropriate remedy claiming fee from Medical College---Constitution petition was dismissed in circumstances.

Munaza Habib and others v. The Vice Chancellor and others 1996 SCMR 1790; Akhtar Ali Javed v. Principal Qaid-i-Azam Medical

College Bahawalpur 1994 SCMR 532; Syed Mufeed Shah and another v. Principal Khyber Medical College, Peshawar and others 2006 SCMR 1076; Maroof Khan v. Principal Ayub Medical College, Abbottabad 1996 SCMR 1101; Lubna Hameed v. Controller of Examination Khyber Medical University 2017 MLD 102 and Shakir Ullah Khan and another v. Khyber Medical University through Registrar and another 2015 YLR 2488 fol.

Muhammad Fakhr-e-Alam Jhagra for Petitioner.

Mansoor Tariq, A.A.G. for Respondents.

2018 M L D 1010

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah and Syed Arshad Ali, JJ

MUHAMMAD UZAIR---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary, Department of Health, Peshawar and 3 others---Respondents

Writ Petition No.645-A of 2017, decided on 23rd November, 2017.

Educational institution---

----Petitioner a student of B.D.S. was declared fail in one subject---Zero marks were awarded to the student by the department in internal assessment---Three marks were awarded to the student in internal assessment (on his application) by the Head of the Department---Student sought addition of said three marks after the declaration of result---Scope---Petitioner was earlier awarded zero marks in the internal assessment and result was submitted to the Controller of Examination for declaration---Student addressed a letter to the Head of the Department complaining about awarding zero marks who wrote to the Controller of Examination wherein three marks were awarded to the student in internal assessment---Contention of petitioner was that university had incorrectly calculated the marks and he was not at fault---Validity---Petitioner-student obtained twenty two marks out of twenty-five marks in oral and practical assessment examination---University had provided the breakup of the marks awarded to the petitioner-student by his College---Subsequent letter issued by the Head of the Department whereby petitioner-student was awarded three marks was an afterthought and had been issued after declaration of result---Said award of marks by the Head of the Department could not be accepted as Internal Examination Rules of the University did not allow the same---If such practice was allowed, it would open the flood gates of the students who could not obtain qualifying marks at the time of their internal assessment and after declaration of result they would maneuver to make good the deficiency---Persons sitting of the helm of affairs of the institute/university were custodians of rights and privileges of all the students for whom universities were established---Said persons were sole judge to interpret and apply the Rules keeping in view the situation arose before them---High Court would decline to interfere in the working of universities unless they had acted arbitrarily, whimsically and in disregard of Rules with mala fide---Constitutional petition was disposed of accordingly.

Muhammad Ilyas v. Baha-ud-Din Zakariya University Multan 2005 SCMR 961 and University of Health and Science Lahore v. Arsalan Ali and another 2016 SCMR 134 rel.

Sardar Aman Khan for Petitioner.

Yasir Zahoor Abbasi, Asstt. A.G. for Respondent No.1.

Mansoor Tariq for Respondent No.3.

Raheela Mughal for Respondent No.4.

2018 M L D 1065

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

ARAB SHAH---Appellant

Versus

The STATE and another---Respondents

Cr.A. No.582-P and Murder Reference No.15-P of 2016, decided on 11th September, 2017.

(a) 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---Prosecution case was that the accused along with his absconded co-accused, came at the place of occurrence and opened fire at the complainant party, as a result of which, brother of the complainant sustained injuries and thereafter, succumbed to the injuries---Ocular account of the occurrence was furnished by the complainant as sole eye-witness---Record showed that in the FIR, the time of occurrence had been reported as 7.30 a.m., whereas the time of report was mentioned as 8.15 a.m.---Contents of FIR showed that deceased, then seriously injured was referred to the Medical Officer after preparation of his injury sheet---Time of examination on the injury sheet had been recorded by the Medical Officer as 8.05 a.m. before the time of report---Murasila showed signature of a person as token of affirmation of the report of the complainant---Said person was not produced as prosecution witness in the case---Neither weapons of offence were mentioned in the FIR, nor any detail of opening of unprovoked indiscriminate firing by all the three accused simultaneously, had been given, and not a single supporting ocular account had been furnished by the people shown present on the spot in the FIR at the time of occurrence---Site plan showed that both the complainant and deceased were at same direction from all the three accused, but only the deceased was seemingly made target for indiscriminate firing by the three accused named in the FIR, while sparing the complainant, who escaped unhurt and did not receive a single scratch in the firing; in such a situation, it was hard to believe that the motive for the offence (unspecified dispute over property) was not imputed to the accused only against the deceased, who was the real brother of the complainant, son of the accused, and brother of absconded accused---Even in the site plan, the vacant plot of deceased had not been shown as the bone of contention between the parties---Medical and postmortem reports showed five out of eight firearms entry wounds on the back side of the deceased, whereas the deceased had been shown in the site plan in front of the accused---Record transpired that complainant reported the occurrence in the hospital, where the report, in the ordinary course, should have been recorded by the Police Officer present on duty in the casualty department---In the present case, scribe of the murasila, reportedly, received information about the occurrence and proceeded to the hospital where the complainant had lodged the report to him---Complainant stated that he had made report in the hospital to the doctor and the doctor reduced his report into writing and obtained his thumb impression on the same and further stated that he had made report to the doctor in the emergency---Such fact created suspicion about the recording of the murasila---Complainant stated that he was running his business on a donkey cart during the days of occurrence, and he did not furnish any explanation, for his presence in his house on the day of occurrence---Circumstances established that the case of prosecution against the accused was replete with doubts, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence---Reliance---Scope---Record showed that Investigating Officer had recovered five empty shells of .30-bore from the place of occurrence---Said empty shells were sent to the firearms expert, who opined that five .30-bore crime empties were fired from one and the same 30-bore weapon---Said circumstances suggested that offence was committed by one person, whereas three persons were charged for firearm injuries to the deceased---Recovery of empties had become inconsequential, in circumstances.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Abscondence of accused---Effect---Abscondence of accused alone could not lead to his conviction unless corroborated by other incriminating evidence against him.

Imtiaz-ur-Rahman for Appellant.

Mian Arshad Jan, AAG assisted by Muhammad Asif, counsel for Complainant.

2018 M L D 1088

[Peshawar]

Before Qaiser Rashid Khan, J

SHOAIB---Petitioner

Versus

The STATE---Respondent

B.A. No.123-P of 2018, decided on 28th February, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking of narcotics---Bail, refusal of---Contention was that in the FIR, charas recovered was 'garda', but the Forensic Science Laboratory report showed the same as 'solid brown', such report could not be looked into at bail stage---Charas 'garda', for all practical purposes, is in semi solid raw form and after going through some baking process, it turns into charas 'Pukhta' and that was how the report had shown 'charas garda' as 'brown solid'---Both the tests were in affirmative; in view of recovery of huge quantity of charas weighing 12 Kgs from the personal possession of accused and the report in respect thereof being in affirmative accused was prima facie connected with the commission of the offence, which squarely fell within the prohibitory clause of S.497, Cr.P.C., holding accused disentitled to bail---Petition for bail was dismissed, in circumstances.

Ms. Farhana Naz Marwat for Petitioner.

Muhammad Sohail, A.A.G. for the State.

2018 M L D 1108

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

WISAL---Appellant

Versus

The STATE and another---Respondents

Cr.A. No. 138-P of 2014, decided on 2nd October, 2017.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Retracted confession---Scope---Accused was charged for the murder of the deceased lady after abduction---Admittedly, the occurrence was unseen, as dead body of the lady was found by a Police Officer as unknown dead body---No one came forward to furnish eye-witness account of the occurrence---Parents of deceased recorded their statements under S.164, Cr.P.C. and disclosed the fact that their deceased daughter had illicit relations with the accused and had eloped with him; they also charged the accused for her murder---Accused was arrested and a shopkeeper handed over to the Investigating Officer a .30-bore pistol on the following day---Accused recorded his confessional statement during police custody thereby confessing his guilt of murder of the deceased, who had married him but she was not of good character---Such confession had no legal value and conviction could not be based on such confession---Neither report of abduction of their daughter was lodged by parents of the deceased for about 4/5 months from her alleged abduction by the accused nor any evidence was brought on the record to show the marriage of the accused with the deceased---Nothing incriminating was available on record to justify conviction of the accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Retracted confession---Scope---Confessional statement of accused was admittedly recorded while the accused was in police custody for three days---Conviction could not be based on such confession, which did not receive any corroboration from rest of the evidence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence and empty---Scope---Benefit of doubt---Weapon of offence, .30-bore pistol, was handed over by a shop keeper to the police---Firearms expert had found one empty shell of .30-bore pistol having been fired from the same---Said pistol was not recovered from the possession of the accused but was handed over to police by a Shopkeeper who was not produced by the prosecution and was given up being unnecessary---Alleged recovery of pistol and report of the firearms expert were doubtful in circumstances, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Munir Hussain for Appellant.

Ms. Abida Safdar, AAG, assisted by Sahibzada Riazat-ul-Haq for the State.

2018 M L D 1128

[Peshawar (Chitral Bench)]

Before Muhammad Nasir Mahfooz, J

PANIN MUHAMMAD and others---Petitioners

Versus

Mst. SAFIA BIBI and others---Respondents

C.R. No.801 of 2007, decided on 28th September, 2017.

Civil Procedure Code (V of 1908)---

----O. XX, R. 18 & O. I, R. 10---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Decree for partition---Necessary party---Suit for declaration and permanent injunction was filed but Trial Court passed decree for partition without any prayer for partition---Applicants moved an application objecting to the final decree for partition on the ground that neither they were party to the original suit nor they had been allowed to associate in the proceedings but same was dismissed---Validity---Decree for partition was passed but same was only inter se the parties to the suit---When there was no prayer for partition then decree for partition could not be passed---When applicants were held to be necessary party then why they were not impleaded as party---If applicants appeared in the Court and requested for objecting to proceedings then they should have been given proper opportunity of hearing---Court could pass a decree for partition in favour and against the parties but not against any person who was not the party---Impugned orders were set aside to the extent of applicants but remaining proceedings inter se were not disturbed having been satisfied---Revision was allowed in circumstances.

Shamsul Islam for Petitioner.

Abdur Rehman for Respondents.

2018 M L D 1156

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

Mst. BIBI HALIMA---Petitioner

Versus

The STATE through Additional Advocate General and 5 others---Respondents

Transfer Application No.14-M of 2017, decided on 27th October, 2017.

Criminal Procedure Code (V of 1898)---

----S.526---Penal Code (XLV of 1860), Ss.354, 506, 148 and 149---Pakistan Arms Ordinance (XX of 1965), S.13---Assault or criminal force to woman with intent to outrage her modesty, criminal intimidation, rioting, common object, possessing unlicensed arms---Application for transfer of case---Cases pending adjudication in the courts at District 'M', were sought by the applicant to be transferred to any other court outside the District 'M'---Applicant, being female was facing hardship at the hands of respondent, a practicing lawyer at District 'M'---Applicant apprehended that respondent could influence and use tactics including pressurizing the courts at "M"---Counsel for the respondents had no objection to such transfer---Transfer application filed by the applicant was allowed and all cases pending adjudication in the District "M", were transferred to the courts of competent jurisdiction situated at place 'T' for the safe administration of justice as well as keeping in view, the interest of both the parties---Transferor courts would immediately remit record of all cases to transferee courts.

Arshad Khan for Petitioner.

Rahim Shah, Astt: Advocate General and Muhammad Raziq for Respondents.

2018 M L D 1170

[Peshawar (Bannu Bench)]

Before Ijaz Anwar, J

MUHAMMAD AYAZ---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc. B.C.A. No.52-B of 2017, decided on 16th August, 2017.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.392 & 34---Robbery, common intention---Application for cancellation of bail---Unexplained delay of about 25 days in lodging FIR---If complainant/petitioner, as stated, had identified accused at the relevant time, there was nothing to prevent him for waiting for such a long time for lodging FIR---Bail could be cancelled, if the order granting bail on the face of it, was perverse and had been passed in violation of principles for grant of bail, or it was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice---Bail granting order was neither perverse nor factually incorrect---Accused was not alleged to have misused the concession of bail---Offence committed did not come within the prohibitory clause of S.497, Cr.P.C.---Bail granting orders, needed no interference, in circumstances.

2010 SCMR 580; 2006 SCMR 1265 and 2007 SCMR 482 rel.

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

----S. 497---Bail---Grant or refusal of---Principles---Facts to be considered by court for granting/refusing of bail enlisted.

2018 M L D 1181

[Peshawar]

Before Shakeel Ahmad, J

GUL HABIB and another---Petitioners

Versus

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

Writ Petition No.4470-P of 2016, decided on 20th October, 2017.

Civil Procedure Code (V of 1908)---

----O. XVI, Rr. 1, 7 & 14 & O. IX, R. 13 & S. 12 (2)---Ex-parte decree, setting aside of---List of witnesses---Omission to file list of witnesses or failure to mention the name of witness in the list of witnesses---Effect---Summoning of witness through Court---Requirements---Good cause---Scope---Application for recording statement of witness appearing before the Court was filed which was dismissed but Appellate Court accepted the same---Validity---Name of witness whose statement was required to be recorded had not been cited in the list of witnesses---Parties were bound to submit list of witnesses in the Court whom they proposed to summon either to record evidence or produce document---No witness could be summoned by Court if list of witnesses was not submitted by the concerned party---Failure of party to submit list of witnesses in the Court would deprive the said party to request the Court to summon his witnesses---Party who did not obey and comply with the requirements of law was not entitled to get support of law to the extent of his own negligence, indolence and failure---Party could not be permitted to summon witnesses other than those named in list of witnesses except with the permission of the Court---Submission of list of witnesses was condition precedent for further request for summoning other persons as witnesses with the permission of Court---Provisions of O. XVI, R. 1(2), C.P.C. would not be applicable when conditions prescribed under O. XVI, R. 1(1), C.P.C. were not complied with---Court was to record reasons for granting permission to summon witness whose name was not mentioned in the list of witnesses---Party was to show good cause for omission of said witness from the list of witnesses---Court had powers to require any person present before it to record evidence or produce any document then and there in his possession or power---Said power of the court could be exercised suo motu or on application or on request of a party---If Court at any stage considered necessary to examine any person other than a party to the suit and not summoned as a witness by any party then such Court could of its own motion cause such person to be summoned as a witness to record evidence or produce any document in his possession on a day to be appointed and examine him as a witness or require him to produce such document---Witness had appeared in the present case and Court was empowered to direct a person present before it to give deposition even though he might not have been named in the list of witnesses---Trial Court had erred in not allowing the party to summon the witness and revisional Court had rightly set aside the said order with direction to summon him as a court witness---Impugned judgment/order passed by the Appellate Court was based on proper appreciation of law---Constitutional petition was dismissed in circumstances.

Asad Jan for Petitioner.

Inamullah Alizai for Respondents.

2018 M L D 1202

[Peshawar (Mingora Bench]

Before Muhammad Nasir Mahfooz, J

TAHIRULLAH---Petitioner

Versus

MUHAMMAD RAFIULLAH and another---Respondents

C.R. No.861-P of 2006, decided on 1st March, 2018.

Malicious prosecution---

----Damages, recovery of---Requirements---Plaintiff filed suit for recovery of damages on the basis of malicious prosecution which was dismissed---Validity---Plaintiff was bound to prove mala fide, unwanted criminal prosecution and that the criminal proceedings terminated in his favour resulting in his honourable acquittal---When a criminal Court acquitted an accused it passed an order by arriving at a definite conclusion that criminal prosecution was falsely lodged and accused was falsely implicated or given benefit of doubt to the accused---When accused was acquitted on account of benefit of doubt, charge could not be considered as mala fide but failed on account of some defective investigation by the police or for any other reason connected therein---Plaintiff, in the present case, was acquitted because of absence of eye-witness which did not provide a cause for claiming damages for malicious prosecution---Findings recorded by the Courts below were based on proper appreciation of evidence on record---Impugned judgments and decrees did not suffer from any mis-reading or non-reading of evidence---No illegality, irregularity or jurisdictional error was pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed in circumstances.

Mazullah Barkandi for Petitioner.

Khawaja Salahuddin for Respondents.

2018 M L D 1210

[Peshawar]

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

HIDAYAT ULLAH---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.664-P of 2014, decided on 16th October, 2017.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Benefit of doubt---Prosecution case was that 7 packets each bundle weighing 1 kilogram, total twenty one kilograms, Garda charas from three doors of the vehicle driven by accused were recovered---Five-grams Charas as samples were separated from each packet---Remaining charas was separately sealed and the accused was arrested---Record showed that present case was registered against the accused on the report of the complainant/Inspector, Excise Department---Despite the fact that the complainant had received prior information about transportation of the narcotic and had sufficient time to inform the local police he did not associate either officials from the police department or witnesses from the general public---Said fact would raise serious question about the alleged recovery of narcotic---Recovery witnesses to the recovery memo. were officials of the Excise Department, therefore, highly interested---Omission on the part of the complainant to hand over samples of the recovered narcotics to the local police along with the vehicle, remaining contraband and the accused cast doubt about result of the Chemical Examiner---Samples were admittedly, sent to the Office of Chemical Examiner, and not to the Forensic Science Laboratory, which was violation of relevant Rules under Control of Narcotic Substances Act, 1997---Record transpired that Inspector Excise and Taxation Department, who took the samples to the Forensic Science Laboratory was not produced---Evidence was not adduced with regard to safe custody of the samples with the Excise Department during the intervening period from the date of recovery (17.09.2012) and receipt of the same in the Office of Chemical Examiner (20.09.2012)---Recovered charas was mentioned as Garda in the FIR and in the case throughout, but the Seizing Officer deposed that contraband were in the shape of slabs---Nothing was available on the record to establish nexus of the accused with the vehicle wherefrom the alleged recovery was made, as he was neither owner nor proved to be the driver of the vehicle---Registration book of the vehicle was though recovered from the vehicle but the owner was not made as accused or prosecution witness---Accused had recorded his statement on oath under S. 340(2), Cr.P.C. about his arrest after a person made good his escape through his house when he was present there---Said fact was established through statements of defence witnesses---Circumstances established that there was nothing on the record to establish recovery of contraband from the possession of the accused, warranting his conviction---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court

Noor Alam Khan for Appellant.

Mian Arshad Jan, A.A.G. for Respondent.

2018 M L D 1227

[Peshawar (D.I. Khan Bench)]

Before Ijaz Anwar and Shakeel Ahmad, JJ

RASOOL KHAN---Petitioner

Versus

KHYBER MEDICAL UNIVERSITY and 5 others---Respondents

W.P. No.1161-D of 2017, decided on 20th February, 2018.

Pakistan Medical and Dental Council Regulations, 2010---

----Regln. 4(ii)---Examination of medical students---First Professional Examination---Four chances--- Principle--- Petitioner was studying in Medical College and his grievance was that authorities did not allow him to appear in the next examination as due to his illness he could not avail third chance to pass First Professional Examination--- Validity--- Petitioner was given four chances but he did not avail third chance, therefore, his un-availed chance was also counted towards fourth chance---Provision of Regln. 4(ii) of Pakistan Medical and Dental Council Regulations, provided that student who failed to clear First Professional MBBS examination in four chances, availed or un-availed would cease to be eligible for further Medical/Dental Education in Pakistan--- High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Munaza Habib and others v. The Vice Chancellor and others 1996 SCMR 1790; Akhtar Ali Javed v. Principal Qaid-i-Azam Medical College Bahawalpur 1994 SCMR 532; Syed Mufeed Shah and another v. Principal Khyber Medical College, Peshawar and others 2006 SCMR 1076; Maroof Khan v. Principal Ayub Medical College, Abbottabad 1996 SCMR 1101; Lubna Hameed v. Controller of Examination Khyber Medical University 2017 MLD 102 and Shakir Ullah Khan and another v. Khyber Medical University through Registrar and another 2015 YLR 2488 rel.

Inam Ullah Khan Kundi for Petitioner.

Salahuddin Khan Gandapur and Kamran Hayat Khan Miankhel A.A.G. for Respondents.

2018 M L D 1242

[Peshawar]

Before Shakeel Ahmad, J

MUHAMMAD ZAMAN and 9 others---Petitioners

Versus

DOST MUHAMMAD and 7 others---Respondents

C.R. No.187 of 2013, decided on 28th March, 2018.

Specific Relief Act (I of 1877) ---

----Ss. 42 & 8---West Pakistan Land Revenue Rules, 1968, Rr. 67-A & 67-B---Demarcation of land by the revenue officer---Suit for declaration and possession---Maintainability---Suit was dismissed on the ground that Civil Court had no jurisdiction to adjudicate the matter---Validity---Plaintiffs moved application for demarcation of suit property before the revenue official which was entertained and adjudicated upon---Mere demarcation of land was the matter within the domain of revenue authorities---Suit with regard to claim of possession of the area demarcated and encroached upon was to be filed in the Civil Court---Plaintiffs had sought the possession of the encroached land by filing suit before the Civil Court---Job of revenue officer was completed after demarcation proceedings and he had no power to restore the possession of the encroached land---Aggrieved person for the said purpose had to file civil suit for possession and Rr.76-A & 67-B of West Pakistan Land Revenue Rules, 1968 were not applicable in the Province of Khyber Pakhtunkhwa having not been adapted---Impugned judgments and decrees passed by the Courts below were set aside---Matter was remanded to the Trial Court for decision afresh on merits---Revision was allowed in circumstances.

2016 CLC Note 53, Page 71 ref.

Mehram Khan and others v. Fateh Khan and others 1983 SCMR 366; Dilawar Khan and 2 others v. Mst. Mehrun Nisa and others 2011 YLR 872 and Ghulam Haider and others v. Masaud and others 2016 CLC Note 53, P. 71 rel.

Ziaur Rehman for Petitioner.

Muhammad Amin Khattak Lachi for Respondent.

2018 M L D 1262

[Peshawar]

Before Qalandar Ali Khan, J

ALAMZEB---Petitioner

Versus

JEHANZEB and 5 others---Respondents

Writ Petition No. 2181-P of 2017, decided on 15th February, 2018.

Civil Procedure Code (V of 1908)---

----O. XXVI, R. 9---Partition Act (IV of 1893), S. 4---Constitution of Pakistan, Art. 199---Application for appointment of Local Commission---Constitutional petition---Maintainability---Suit for possession through partition and mesne profit---Appointment of Local Commissioner---Scope---Defendant moved an application for appointment of local commission to ascertain his improvement/ construction on the suit land---Application for appointment of local commission was dismissed on the grounds that issue with regard to determination of mense profit as per market value had already been framed and evidence of defendant had already been recorded---Validity---Impugned order was based on proper appreciation of facts and circumstances of the case---Powers to appoint local commission was the discretion of the Court---Appointment of local commission was not a vested right of party so as to invoke constitutional jurisdiction of High Court for enforcement of such right---Appellate Court had aptly found that in a suit for possession through partition preliminary decree was passed in the first place and at the stage of final decree party could move the Court for such an order but that stage had not yet come in the present case---Petitioner had alternate remedy of moving application for appointment of local commission---Defendant could not invoke constitutional jurisdiction of High Court for appointment of local commission at a stage when even preliminary decree had not yet been passed---Trial Court did not deem it proper to appoint local commission at the early stage of preliminary decree---Constitutional petition was dismissed in limine.

Javed Ali Ashgar for Petitioner.

Respondents in Motion.

2018 M L D 1319

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

UMAR ZEB---Petitioner

Versus

The STATE and another---Respondents

Cr. Misc.(B.A.) No.315-M of 2017, decided on 9th August, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 200 & 201---Qatl-i-amd, using as true such declaration knowing to be false---Causing disappearance of evidence of offence---Partial compromise---All the legal heirs of deceased had not pardoned accused---Effect---Bail, refusal of---No one was named as to who had caused the murder of the deceased, but upon implication of accused by his own mother, accused had recorded his confessional statement before the court of Judicial Magistrate---Said confessional statement coupled with the recovery of crime weapon on his pointation; led to an inference that accused was a cunning person by nature who could be charged for causing disappearance of evidence to screen himself from legal punishment---When all the legal heirs, had not forgiven accused, benefit of partial compromise, could not be extended to the accused at bail stage---Ample evidence being available in the shape of confession and recovery of weapon of offence, accused could not be released of bail.

Uz-Zaman, J. Mst. Zubaida Khanum v. Muhammad Irshad Hussain and 2 others 1999 YLR 1877; Mst. Zaheera Bibi v. The State and another 2012 MLD 480 and Ameer Qabal v. State of AJ&K 2014 YLR 1771 ref.

Syed Abdul Haq for Petitioner.

Rafiq Ahmad, Astt: Advocate General.

Rashid Ali Khan and Aziz Ahmad Hashmi for Respondents.

2018 M L D 1326

[Peshawar]

Before Waqar Ahmad Seth and Ms. Musarat Hilali, J

KHALID SALEEM MARWAT---Petitioner

Versus

NATIONAL ACCOUNTABILITY BEREAU through Chairman and 3 others---Respondents

W.P. No.886-P of 2018, decided on 3rd April, 2018.

National Accountability Ordinance (XVIII of 1999)---

---- S. 19--- Call up notice--- Harassment--- Petitioner received call up notice issued by NAB authorities to join inquiry against him--- Plea raised by petitioner was that notice was issued to harass and humiliate him--- Validity--- Chairman NAB had the power and prerogative to call for anyone, possessing record or having certain information regarding inquiry / investigation---When NAB authorities had taken cognizance of the matter no one could absolve himself from such proceedings --- Nothing was on record to show any malice or mala fide on the part of NAB--- High Court declined to interfere in inquiry proceedings initiated against petitioner in its initial stage--- Constitutional petition was disposed of accordingly.

Shehnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Baluchistan and another PLD 1971 SC 677; Brig: Imtiaz Ahmad v. Government of Pakistan through Secretary Interior Division and 2 others 1994 SCMR 2142; Muhammad Latif ASI Police Station Sadar, Sheikhupura v. Sharifan Bibi and another 1998 SCMR 666 and Anwar Ahmad Khan v. The State 1996 SCMR 24 ref.

Syed Ghufranullah Shah for Petitioner along with Petitioner.

2018 M L D 1339

[Peshawar (Mingora Bench)]

Before Muhammad Nasir Mahfooz, J

MUHAMMAD SALEEM KHAN through L.Rs. and others---Petitioners

Versus

GHAZI AHMAD and 20 others---Respondents

Revision Petition No.1-C of 2016 with C.M. No.55-M of 2016 in C.R. No. 29 of 2013, decided on 21st March, 2018.

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

----S. 114 & O. XLVII, R. 1---Limitation Act (IX of 1908), Art. 162---Review of judgment of High Court---Scope---Limitation---Review petition was filed after the period of three years and seven months---Application for condonation of delay did not explain the cause of such delay---Exercise of review jurisdiction was limited in scope---Petitioners through review petition wanted to re-open the case which had already been decided---Court, as an appellate Court could not hear the matter of its own judgment even if the same was erroneous---Petitioners had failed to point out any floating error worth consideration for review---Review petition being barred by time, was dismissed in the circumstances.

Sadaqat Ali Khan through LRs and others v. Collector Land Acquisition and others" PLD 2010 SC 878 rel.

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

----Art. 162---Review of judgment of High Court---Limitation---Limitation for filing review petition against the order of High Court was twenty days.

Abdul Wali Khan for Petitioner.

Rafiq Ahmad, Assistant A.G for Official Respondents.

2018 M L D 1365

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

FAIZULLAH and 2 others---Petitioners

Versus

BAKHTULLAH JAN and 4 others---Respondents

Writ Petition No.749-M of 2016, decided on 18th December, 2017.

Specific Relief Act (I of 1877)---

----Ss. 9 & 8---Suit for restoration of possession of immovable property---Essentials---Plaintiff, in a suit under S.9 of Specific Relief Act, 1877 was bound to prove that he was in possession of the suit property and had been dispossessed by the defendant other than in due course of law---Such dispossession should have taken place within six months of filing of suit---Court was not to appreciate the question of title which had been raised or looked into in a case filed under S.9 of Specific Relief Act, 1877---Nothing was on record that plaintiff was in possession of the suit land and had been dispossessed forcibly---Plaint in the present case had been drafted under the provisions of S.8 of Specific Relief Act, 1877---Courts below had erred in law to decree the suit of plaintiff---Impugned judgments and decrees passed by the courts below were set aside---Plaintiff could seek possession under S. 8 of Specific Relief Act, 1877 if he was declared owner of suit the property---Constitutional petition was allowed accordingly.

Abdul Qayyum for Petitioners.

Muhammad Ijaz Khan Sabi and Fazal Wahid for Respondents.

2018 M L D 1383

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

IRFAN ULLAH---Petitioner

Versus

The STATE through A.G. Peshawar and another---Respondents

Criminal Miscellaneous Bail Application No.584-M of 2017, decided on 10th January, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.279 & 427---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Rash driving or rioting on a public way, mischief causing damage to the amount of fifty rupees, possessing and trafficking narcotics---Bail, grant of---Further inquiry---Alleged recovery of charas weighing 6224 grams had not been effected from immediate possession of accused, rather it had been recovered from the motorcar driven by co-accused---Name of accused came to surface on disclosure of co-principal accused who had stated that persons who had decamped from the venue of crime were the accused---Whether said admission on the part of co-accused was a fact or accused had been implicated in the case to settle his own personal terms by co-accused, was to be determined by the Trial Court after recording of evidence---Offences under Ss.279 & 427, P.P.C., which entailed punishment for a term which could extend to two years or with fine or both, did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Even otherwise, applicability of Ss.279 & 427, P.P.C. in respect of accused would come under scrutiny during trial as alleged motorcar was driven by co-accused rashly and negligently due to which mischief was caused to the motorcycle owned by the Police department---Investigation in case was complete and case was ready for trial---Accused was no more required to the local Police for further investigation--- Case of accused fell within the ambit of further inquiry---Accused was entitled to the concession of bail in circumstances.

Qazi Farid Ahmad for Petitioner.

Miss Umaira Shaukat for the State Counsel.

2018 M L D 1393

[Peshawar (Bannu Bench)]

Before Shakeel Ahmad, J

ISMAIL KHAN alias ISMAIL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Petition No.28-B of 2018, decided on 15th February, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, common intention---Bail; refusal of---Deeper appreciation of evidence, could not be resorted to only tentative assessment was permissible at bail stage and mere existence of cross case could not be a ground for grant of bail---Accused, had specifically been named as one of the offenders for committing the murder of the deceased---Reasonable ground existed to believe that accused had committed offence which fell within the prohibition contained in S.497, Cr.P.C.---Bail petition, having no merits, was dismissed in circumstances.

Nasir Muhammad Wasan's case 1992 SCMR 501 and Syed Maqbool Khalid v. The State 2005 SCMR 635 rel.

Anwar-ul-Haq for Petitioner.

Shahid Hameed Qureshi, Addl. A.G. for the State.

Haji Hamayun Khan Wazir for the Complainant.

2018 M L D 1425

[Peshawar]

Before Ikramullah Khan and Qalandar Ali Khan, JJ

MURAD SAEED---Petitioner

Versus

UNIVERSITY OF PESHAWAR through Vice Chancellor, University Campus, Peshawar and 3 others---Respondents

W.P. No.780-P of 2015, decided on 28th February, 2018.

(a) Educational institution---

----Direction for issuance of degree---Inquiry proceedings without participation of delinquent party---Audi alteram partem, principle of---Applicability---Petitioner completed course of Bachelor of Environmental Sciences but degree was not issued due to missing of two papers----University advised the petitioner to repeat the said two papers through makeup examination---Makeup examination was conducted by the University and petitioner was declared successful but he was not awarded degree---Inquiry committee was constituted by the Vice-Chancellor of the University and Controller of Examination was advised to declare the said makeup examination as null and void---Validity---Inquiry proceedings leading to imposition of penalty of declaring makeup examination as null and void were conducted without participation of petitioner---Principles of natural justice i.e. audi alteram partem had been violated in the present case---Matter was sent to the Authority to afford opportunity of hearing to the petitioner and pass speaking order with reasons---Constitutional petition was accepted in circumstances.

PLD 1965 SC 90; 1994 SCMR 2232; 2000 SCMR 1030; PLD 2017 SC 173; AIR 1962 SC 1111 and AIR 1962 Calcutta 694 rel.

(b) University of Peshawar Employees (Efficiency and Discipline) Statutes, 1977---

----Statute. 10 & 11---Disciplinary proceedings---Inquiry on the basis of recommendations of fact finding committee---Principle of audi alteram partem---Applicability---Fact finding committee was constituted and on the recommendations of said committee charge sheet and statement of allegations was issued---Validity---Fact findings proceedings were conducted in absence of petitioner---Principles of natural justice had been violated in the present case---Petitioner should have been afforded an opportunity of hearing---Matter was sent to the Authority to afford opportunity of hearing to the petitioner and pass speaking order with reasons---Constitutional petition was accepted in circumstances.

(c) Constitution of Pakistan---

----Arts. 199, 62 & 225---Election for the seat of Member National Assembly---Allegation of false statement in the nomination papers---Writ of quo warranto---Maintainability---Contention of petitioner was that candidate had made false declaration with regard to his educational qualification in the nomination papers---Validity---Nomination papers filed during election had been challenged in the present case---Petitioner had not challenged the said nomination papers before competent forum i.e. Election Tribunal---No misstatement of candidate with regard to educational qualification was on record---Article 225 of the Constitution barred other forums in election disputes---Petitioner had not approached the relevant forum at the appropriate time---Writ of quo warranto was not maintainable in circumstances and constitutional petition was dismissed.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversy could not be resolved in constitutional jurisdiction of High Court.

Amir Javed for Petitioner.

Waseem-ud-Din Khattak and Khalid Rehman for Respondents.

2018 M L D 1446

[Peshawar]

Before Shakeel Ahmad, J

SALMAN GHAZANFAR---Petitioner

Versus

The STATE---Respondent

Cr. MBA No.2933-P of 2017, heard on 12th January, 2018.

Criminal Procedure Code (V of 1898)---

----Ss.497( 2 ) & 103---Penal Code (XLV of 1860),Ss. 371-A & 371-B---Selling and buying person for purpose of prostitution---Bail, grant of---Prohibitory clause of S. 497, Cr.P.C---Scope---Raid by police at private place without search warrant---Effect---Allegation against petitioners was that two male and female accused persons were found in objectionable position while the rest of accused persons were present inside the flat---Place where raid was conducted on spy information was not public place but was owned and possessed by private individual---Neither any search warrant was obtained nor any effort was made by police in that behalf---No respectable from the locality was associated in the raid---Raid in such a situation could only be termed as intrusion which was prohibited by law---Police Officials by not obtaining search warrant for raiding the house in question had violated the mandatory provisions of S. 103, Cr.P.C.---Sections 371-A & 371-B, P.P.C. were not applicable under the circumstances, therefore, case of accused persons fell within the purview of S. 497(2), Cr.P.C.---Accused persons were admitted to bail, in circumstances.

Kifayat Ullah Shahabkhel, Imran Gul and Sahibzada Anwar Ali for Petitioners.

Arshad Ahmad A.A.G. for the State.

2018 M L D 1491

[Peshawar]

Before Qalandar Ali Khan, J

FIDA HUSSAIN and 3 others---Appellants

Versus

Mst. BAKHAT JAMALA and others---Respondents

Civil Revision No. 117/P of 2015, decided on 14th May, 2018.

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

----S. 9---Suit for restoration of possession of immovable property---Contention of plaintiffs was that defendants had dispossessed them from the suit property---Suit was decreed concurrently---Validity---Question of title was irrelevant in a suit under S.9 of Specific Relief Act, 1877---Title could not be claimed on the basis of an unregistered sale deed---Contradiction with regard to dispossession of plaintiffs was on record---Suit being not maintainable judgments and decrees passed by the Courts below were set aside---Revision was allowed.

2001 SCMR 345 and PLD 1950 Pesh. 35 rel.

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

----Ss. 96 & 115---Specific Relief Act (I of 1877), S. 9---Suit for restoration of possession---Appeal---Maintainability---Appeal did not lie against a judgment and decree passed in a suit for restoration of possession under S.9 of Specific Relief Act, 1877 and revision was only competent before the High Court.

Qazi Muhammad Aqil Khan for Petitioners.

Syed Qalb-i-Abbas for Respondents.

2018 M L D 1518

[Peshawar]

Before Mohammad Ibrahim Khan, J

Mst. GUL MEENA---Petitioner

Versus

The STATE---Respondent

Criminal Bail Application No.2774-P of 2017, decided on 4th January, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of Narcotic Substance weighing 6600 grams---Bail, grant of---Minor son of female accused was also confined in jail along with his mother/accused---Welfare of minor---Scope--- Non-submission of challan by the prosecution---Effect ---Accused (Lady) was allegedly found with charas having been wrapped around her body with her minor son in her lap---Minor son of accused was also, confined in the unpleasant environment of the prison---Guilt or otherwise of accused would be thrashed out by the Trial Court during the course of recording of evidence with special reference to the direct recovery of huge quantity of Charas weighing 6600 grams, yet welfare of the minor could not be brushed aside especially in view of scarcity of basic facilities in prisons and overall impact on the character building of minor---Challan had not been submitted despite lapse of about two months and accused being a lady her minor son was also languishing in jail---Accused was entitled for the concession of bail, in the circumstances.

Sartaj Khan for Petitioner.

Tariq Kakar, Special Prosecutor for the State.

2018 M L D 1537

[Peshawar(Mingora Bench)]

Before Ishtiaq Ibrahim, J

SHERIN ZADA---Appellant

Versus

BAKHT BILAND and 3 others---Respondents

Criminal Appeal No.170-M of 2016, decided on 25th January, 2018.

Penal Code (XLV of 1860)---

----Ss. 419, 420, 468, 471 & 34---Criminal Procedure Code (V of 1898), Ss. 195(2) & 417---Khyber Pakhtunkhwa Board of Revenue Act (XI of 1957), S. 5---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document, common intention, prosecution for contempt of lawful authority of public servant, power of the Board---Appreciation of evidence---Appeal against acquittal---Accused was charged for submitting fake power of attorney on behalf of appellant before the Member, Board of Revenue in a civil matter---Appellant had alleged that accused/respondent had fraudulently produced a fake power of attorney on his behalf before the said forum, which had been attested by respondents, who were equally responsible for committing the offence of fraud/forgery---Appellant had filed private complaint against the respondents before the Judicial Magistrate, but they were acquitted---Validity---Record showed that the present case was originated as a result of the alleged fraudulent submission of forged power of attorney in the matter which was subjudice between the parties before the Member, Board of Revenue---Section 5 of the Khyber Pakhtunkhwa Board of Revenue Act, 1957 described that Board shall be controlling authority in all matters connected with the administration of the land, collection of land revenue, preparation of land records and other matters relating thereto---Appellant had misconceived the legal proposition at the time of directly making complaint before the Judicial Magistrate instead of the court where the matter was subjudice---Main allegation was that of a fake power of attorney which was submitted on behalf of appellant in the court of Member, Board of Revenue---Using of a forged document as genuine was the offence punishable under S.471, P.P.C. for which, the accused were mainly charged whereas the remaining offences were ancillary in nature and appeared to have been levelled malafidely, in order to extend the scope of the complaint and to meet the question of jurisdiction of the Trial Court in the matter---Admittedly, the court wherein, the civil matter was subjudice had not made any complaint, therefore the trial court was not competent within the meaning of S.195(1)(c), Cr.P.C. to take cognizance of the offence---Trial Court had committed no illegality by acquitting the respondents from the charge in the present case, therefore, appeal was dismissed in circumstances.

Ch. Atta Muhammad and 2 others v. The State and another 1981 PCr.LJ 55 rel.

Syed Sultanat Khan for Appellant.

Rafiq Ahmad, Assistant A.G. for the State.

Razi Khan for Respondents.

2018 M L D 1571

[Peshawar (Bannu Bench)]

Before Abdul Shakoor and Shakeel Ahmad, JJ

NISABULLAH alias GULAP---Petitioner

Versus

AWAL HAQ KHAN and 4 others---Respondents

Writ Petition No. 970-B of 2017, decided on 13th February, 2018.

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

----S. 489-F---Constitution of Pakistan, Art.199---Dishonestly issuing a cheque---Constitutional petition---Quashing of FIR---Prosecution case was that complainant had a joint business of construction work with the petitioner and petitioner committed embezzlement of Rs. two crore from the income of said business---Dispute was referred to the arbitrator, who after rendition of account held the petitioner liable to pay Rs. sixty lac to the complainant---Consequently accused-petitioner issued a cheque of Rs. fifty lac to the complainant, but the cheque was bounced when presented in the bank, hence the FIR was lodged---Accused-petitioner had contended that he was innocent and had falsely been implicated in the case; dispute between the parties was of civil nature, thus criminal proceedings could not have been initiated against him---Registration of the case was outcome of mala fide, which was liable to be quashed---Validity---FIR reflected that the allegations levelled against the accused-petitioner were purely factual in nature and rebuttal by petitioner of such allegations required holding enquiry, which could not be done in exercise of power conferred under Art. 199 of the Constitution---FIR was still at investigation stage, and the allegations levelled in the FIR, prima facie, disclosed commission of a cognizable offence---Interference at such stage would amount to throttle the investigation---No case for quashing of FIR was, thus, made out---Constitutional petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Quashing of FIR under constitutional jurisdiction---Grounds.

High Court can quash the FIR in its constitutional jurisdiction on the following grounds:-

(1) When no offence whatsoever has been disclosed by the facts alleged in the FIR or the case is of no evidence; (2) Where on the face of it, investigation of the case is outcome of mala fide; (3) When contents of FIR showed that matter was purely of civil nature and criminal proceeding is not warranted by law to cause harassment to the accused and (4) Where registration of FIR suffers from serious jurisdictional defect.

Habibullah Khan for Petitioner.

2018 M L D 1585

[Peshawar]

Before Qalandar Ali Khan and Ishtiaq Ibrahim, JJ

SALIM KHAN and another---Appellants

Versus

AZAM KHAN and another---Respondents

Criminal Appeal No.256-P of 2013, decided on 13th March, 2018.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, common intention---Appreciation of evidence---Dying declaration---Scope---Prosecution case was that the deceased, then injured, reported to police that accused party on seeing him started firing at him, as a result of which, he sustained injuries (and succumbed to the injuries)---Motive attributed was previous blood-feud---Record showed that report of the deceased was recorded in the emergency room of the hospital by Police Officer, but the Medico-Legal Report was silent regarding the consciousness or otherwise of the deceased, then injured, at that point of time---No separate certificate or endorsement on the report of the deceased was available to fortify the stance of the prosecution that at the relevant time, the deceased, then injured, was in a position to make coherent statement---Medical Officer had stated in his cross-examination that the injured was conscious, well oriented and was talking to him but stated that he neither mentioned that fact in the report nor had any reason to explain as to why he had not done so at the time of his Medico-Legal examination---Documentary evidence in the shape of Medico-Legal Report was available on record, wherein it figured nowhere regarding the condition of the deceased, then injured---Attempt of Medical Officer was just an oral assertion, introduced during the course of cross-examination, would not overcome the documentary evidence prepared at the very initial stage of the case---Prosecution evidence showed that at the time of recording of the statement of the deceased, then injured, private persons were also present there---Dying declaration was recorded in the presence of relatives or private persons, it could not be ruled out that the names of the accused were put in the mouth of the deceased, then injured---Medical evidence showed that all the entry wounds sustained by deceased, then injured, were of the one and the same dimension, which appeared that it was job of one person; however, in the present case, three persons were nominated by names and the fourth unknown accused was charged---No empty was recovered from the place of occurrence---No specific weapon had been attributed to the accused---Circumstances established that the prosecution case was pregnant with inherent defects and material contradictions and as such, prosecution had failed to prove its case against the accused persons beyond any reasonable doubt, benefit of which, would resolve in favour of accused---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded against them by the Trial Court.

Mst. Ghulam Zohra and another v. Malik Muhammad Sadiq and another 1997 SCMR 449; Mst. Miran and another v. Abdur Rahim and another PLJ 2004 SC 294; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Muhammad Latif and another v. Muhammad Hussain and 9 others PLD 1970 SC 406 and Farman Ali v. The State PLD 1980 SC 201 rel.

(b) Criminal trial---

----Evidence of one case to be read in another case---Scope---Evidence of one case could not be read into another case unless that was duly brought on record of the particular case in accordance of law.

Wazid Moral alias Wazid Ali and 13 others v. The State and another 1970 SCMR 256 and Muhammad Gulzar v. Muhammad Ashraf and 3 others 1981 SCMR 435 rel.

Jalal-ud-Din Akbar Azam Khan (Gara) for Appellants.

Mian Arshad Jan, A.A.G. for the State.

Saadatullah Khan Tangi for the Complainant.

2018 M L D 1608

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim, JJ

ALI ASKAR---Appellant

Versus

The STATE through Additional Advocate General and another---Respondents

Criminal Appeal No.246-M of 2017, decided on 6th February, 2018.

(a) Pakistan Arms Ordinance (XX of 1965)---

----S. 13---Possessing unlicensed arms---Appreciation of evidence---Prosecution case was that 30-bore pistol along with magazine and three cartridges were recovered from the possession of the accused and he could not produce any license or permit in respect of said pistol---Record showed that complainant-Police Officer received spy information that proclaimed offender/present accused was present near a petrol pump---Police party proceeded to the spot and arrested the accused and recovered the pistol with magazine and three cartridges---Recovery of pistol was made near the petrol pump and no independent or impartial witness had been associated with the recovery---Accused did not try to escape from the spot on seeing the police vehicle---Inference from the act of the accused, could be gathered that he might have surrendered himself to the local police and thereafter the alleged recovery of pistol might have been attributed to him being proclaimed offender---Recovery witness, during cross-examination, admitted that complainant did not give any instruction with regard to association of any independent or private witnesses with the recovery process---Investigating Officer admitted during cross-examination that in the site-plan there was a reference of the house of someone but the owner of said house had not been examined as witness during court proceedings---Statements of said witnesses had created a serious dent in the version of prosecution with regard to the alleged recovery---Circumstances established that prosecution had failed to bring home charges against the accused for recovery of weapon etc.---Appeal was accepted and accused was acquitted by setting aside conviction and sentence recorded against him by the Trial Court.

(b) Pakistan Arms Ordinance (XX of 1965)---

----S. 13---Possessing unlicensed arms---Appreciation of evidence---Recovery of crime weapon---Corroboration---Recovery of crime weapon and empties were considered to be corroborative piece of evidence---Such kind of evidence by itself was not sufficient to bring home the charges against the accused especially when the other material put-forward by the prosecution in respect of guilt of the accused had already been disbelieved.

Imran Ashraf and 7 others v. The State 2001 SCMR 424 and Dr. Israr-ul-Haq v. Muhammad Fayyaz and another 2007 SCMR 1427 rel.

(c) Pakistan Arms Ordinance (XX of 1965)---

----S. 13---Appeal against conviction---Application for condonation of delay in filing appeal---Accused had served out his sentence of three years awarded under S.13 Pakistan Arms Ordinance, 1965---Appeal was allowed and delay was condoned.

Abdul Ghaffar v. The State 1985 MLD 647 rel.

Sher Muhammad Khan for Appellant.

Malak Sarwar Khan, State Counsel for the State.

2018 M L D 1635

[Peshawar (D.I. Khan Bench)]

Before Ishtiaq Ibrahim and Shakeel Ahmad, JJ

Malik AAMIR SULTAN and 2 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.73-D of 2015, decided on 4th April, 2018.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for the murder of brother of complainant and his friend by firing---Motive behind the occurrence was the result of dispute over water---Ocular account of the occurrence was furnished by two eye-witnesses including complainant---Stance of the said witnesses was that altercation took place on diversion of irrigating water by accused and thereafter firing was made, as a result of which the two persons lost their lives---Site-plan showed that both the witnesses were in the close proximity at the time of firing and they could have easily been targeted by the accused, but their unhurt escape threw doubt on their presence at the spot at the relevant time---Stance of eye-witness was that he had taken meals for the deceased and complainant---Presence of said witness at the spot at the relevant time appeared to be doubtful because no utensils of meals were either noticed by the Investigating Officer during spot inspection nor the same were taken into possession---Evidence showed that the deceased, then injured, were shifted to the hospital in a motorcar of the eye-witness, but neither the said motorcar was taken into possession nor any blood was noticed therein---Testimony of said witness for such reason alone was disbelieved---Record transpired that no instrument of husbandry belonging to the complainant party was taken into possession which they possessed by them at the relevant time---Field irrigated by the complainant had also not been visited by the Investigating Officer at the time of preparation of site-plan---Said circumstances showed that both the eye-witnesses were not present at the spot at the time of occurrence and were procured subsequently, therefore, their testimony was ruled out of consideration---Prosecution version was that the deceased was friend of complainant and his deceased brother---Record revealed that village of complainant and deceased were distantly situated from each other---Occurrence took place in the month of June at almost noon time and it was not possible that a guest would be taken to such a place in hot weather---Apparently, deceased was not only a guest/friend, but he was brought by the complainant party for the accomplishment of some job---Post-mortem report of deceased, showed two fire-arm entry wounds on his person, while deceased brother of complainant, who had direct motive with the accused, sustained solitary injury---All the entry wounds were carrying the dimension of 1/4x1/4 inches, while on the other hand, three real brothers, and two unknown accused were charged for simultaneous firing at the deceased---Number of injuries did not commensurate with the number of accused persons---Injuries observed were of one and the same dimension, which reflected that one person fired at the victims but in order to throw the net wide, the number of accused had been exaggerated---Empties recovered were not sent to ascertain as to whether the same were fired from one or different weapons---Investigating Officer had not sought such opinion, which showed that he was conscious of the fact that number of the accused had been exaggerated and if such report was sought, that would be detrimental to the case of the prosecution---Circumstances showed that there was element of concealment and exaggeration as well which nullified the mode and manner as set out by the prosecution---Circumstances established that prosecution case was full of doubts, benefit of which would resolve in favour of accused---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded against them by the Trial Court.

Gul Faraz alias Paley Khan v. The State 2015 YLR 925; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596; Mukhtasir and 5 others v. The State and another 2017 PCr.LJ 1607 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Sanaullah Khan Gandapur, Salimullah Khan Ranazai, Ahmad Ali Khan, Muhammad Ismail Alizai and Shah Shujaullah for Appellants.

Kamran Hayat Minakhel, Addl. A.G. and Abdul Latif Khan Baloch for Respondents.

2018 M L D 1654

[Peshawar]

Before Qalandar Ali Khan and Ishtiaq Ibrahim, JJ

FAHEEM KHAN---Appellant

Versus

The STATE---Respondent

Cr.A. No.875-P of 2017, decided on 29th March, 2018.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss. 342 & 340(2)---Possession of narcotics---Defence plea---Appreciation of evidence---Benefit of doubt---Prosecution case was that a shopping bag having three packets of charas and weighed 1200-grams each, was found beneath the driver seat of the vehicle driven by the accused---From each packet 10/10 grams were separated for chemical analysis while the remaining narcotic was sealed into separate parcel---Prosecution case was that the occurrence took place on 25.12.2015 whereas the accused was arrested on 24.12.2015, which would disturb the prosecution version---Accused took plea that he was taken by the Anti-Narcotics Force when he parked his motorcar in a patrol station---Accused had exhibited his Mobile Data and Mobile Data of the complainant which negated the version of the prosecution as at the time of arrest accused was not having any mobile with him as stated by prosecution witness---Call Data of the complainant belied the complainant that his mobile was switched off---Location of mobiles did not support the time and place of arrest of the accused---Mobile Data further belied the complainant that he was present at spot for about 3/4 hours---Accused produced Chowkidar of the filling station as witness, who deposed that the vehicle was taken from the filling station by the Anti-Narcotics Force which was being parked by the accused on daily basis---Register of filling station regarding parking of the vehicle was also produced by the said witness---Version of accused appeared to be more plausible and genuine against the version of prosecution---Circumstances established that the case of prosecution squarely rested on the statement of the Anti-Narcotics Force Officials and on the other hand the accused had led defence which created a reasonable doubt in the prosecution case, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded against him by the Trial Court.

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

----Ss. 342 & 340(2)---Defence plea---Scope---If it appeared that defence taken by the accused could be true, even in that eventuality accused was entitled to its benefit.

Nadem-ul-Haq Khan v. The State 1985 SCMR 510 rel.

Muhammad Khalid for Appellant.

Malik Akhtar Hussain, A.A.G. for the State.

2018 M L D 1672

[Peshawar (D.I. Khan Bench)]

Before Ijaz Anwar and Shakeel Ahmad, JJ

MASOOD KHAN---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.12-D of 2016, decided on 19th February, 2018.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for the murder of brother of complainant by firing---Motive as alleged in the FIR was that altercation took place between deceased and accused 3, 4 days prior to the occurrence---Ocular account was furnished by the complainant---Said witness had stated that accused, his uncle, made firing upon his brother, due to which, the deceased sustained injuries on his belly and right wrist---Medical and circumstantial evidence fully supported and corroborated the statement of the complainant---Medico-Legal Certificate, injury sheet and post-mortem report showed that deceased had sustained firearm injuries and seat of injuries were in the right sub-costal region and on right wrist posteriorly---Site-plan revealed that two empties of .30-bore were recovered from the scene of occurrence, which were sent to the Forensic Science Laboratory, wherein, it was opined that they were fired from one and the same crime weapon---Single accused, happened to be uncle of the complainant, was charged for committing the murder of his nephew, which ruled out the possibility of mis-identification---Defence had failed to create doubt about the presence of complainant on the spot---Complainant was also witness of recovery memo, vide which recoveries were made from the spot, which proved his presence on the spot---Undoubtedly, complainant was a witness of the occurrence, which took place in his presence with no possibility of mistaken identity---Being a brother of the deceased, complainant would not allow the real culprit to escape by implicating the innocent person---Complainant was cross-examined at great length, but no dent could be caused in his statement---Cousin of complainant was also eye-witness, but he was not produced as witness just to avoid annoyance/ enmity with the accused---Non-production of said witness or private witness from the locality was not fatal to the prosecution case as the people avoided to poke their nose in the affairs of the other people---Motive as asserted by the prosecution could not be proved and the actual motive remained shrouded in mystery---Circumstances established that the conviction and sentence recorded by the trial court did not warrant interference and sentence of imprisonment for life was sufficient to meet the ends of justice---No illegality, mis-reading or non-reading of evidence was found in the impugned judgment, therefore the same was maintained and appeal being bereft of merits was dismissed.

Mumtaz Khan v. The State 1993 PCr.LJ 333; Awais and another v. The State and another 2004 PCr.LJ 377; Peshawar, Safeer Ahmad and others v. The State 2015 PCr.LJ 1380; Rashid alias Baou Masih v. The State 2006 YLR 2180; Haq Nawaz v. State 2018 SCMR 21; Nadeem Ramzan v. The State 2018 SCMR 149 and Ghulam Muhammad and another v. The State 2017 SCMR 2048 rel.

(b) Criminal trial---

----Witness---Testimony of single witness---Scope---Conviction could be based on the testimony of a single witness.

(c) Criminal trial---

----Witness---Interested witness---Statement of interested/related witness---Scope---Reliance---Mere relationship with the deceased was not sufficient to discard his evidence unless he was proved to have ulterior motive to involve the accused in the case.

Dildar Hussain v. Muhammad Afzaal alias Chala and 3 others PLD 2004 SC 663 rel.

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

----S. 302(b)---Qatl-i-amd---Promptly lodged FIR---Effect---Occurrence took place at the time of evening prayer, which could safely be held to fall in between 7.00 p.m. to 7.30 p.m.---Time of lodging report was given as 7.50 p.m., which showed that FIR was promptly lodged---Said circumstances ruled out the possibility of consultation and deliberation---Facts remained that time could be consumed in taking the deceased to the hospital for providing medical treatment where report was lodged, therefore, it could not be termed as delay.

(e) Criminal trial---

----Absconsion of accused---Effect---Mere absconsion of accused after commission of crime did not serve to establish guilt of accused, however, it would give supportive corroboration to prosecution evidence.

Bashir v. The State PLD 1974 Pesh. 113 rel.

Saleem Ullah Khan Ranazai and Tanveer Ahmad Baloch for Appellants.

Saifur Rehman Khan and Kamran Hayat Khan Miankhel, A.A.G. for the State.

2018 M L D 1731

[Peshawar (Bannu Bench)]

Before Shakeel Ahmad and Syed Arshad Ali, JJ

STATE through Advocate-General, Khyber Pakhtunkhwa---Appellant

Versus

Mst. IRUM and another---Respondents

Cr. A. No.333-B with Cr. Misc. No.212-B of 2016, decided on 22nd August, 2017.

Criminal Procedure Code (V of 1898)---

----S.417---Appeal against acquittal---Delay, condonation of---Requirements---Appellant was required to show that there was sufficient cause and it was beyond his control to file appeal within the prescribed time---Ground agitated for condonation of delay in the case, was neither reasonable nor cogent and confidence inspiring---Nothing had been alleged against acquitted accused that the delay was accrued due to some act of acquitted accused, who had acquired valuable right, which could not be lightly disturbed or destroyed---Delay of each day having not been explained, the delay could not be condoned---State, which had filed appeal against acquittal, could not be treated differently than ordinary litigant---Appeal being barred by time, was dismissed, in circumstances.

The State through Advocate-General Sindh v. Amir Bux 1981 SCMR 410; Government of Punjab v. Muhammad Salam PLD 1995 SC 396 and Muhammad Bashir v. Province of Punjab 2003 SCMR 83 ref.

2018 M L D 1740

[Peshawar (Abbattabad Bench)]

Before Syed Afsar Shah and Syed Muhammad Attique Shah, JJ

YASEEN ALI---Appellant

Versus

The STATE through Junaid Khan S.H.O.---Respondent

Cr. A. No.141-A of 2016, decided on 18th September, 2017.

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

----S. 9(c)---Appreciation of evidence---Benefit of doubt---Prosecution relied upon the evidence of five witnesses, who were Police Officials---Noticeable contradictions and discrepancies were found in prosecution case and in the statements of marginal witness of recovery memo. and the complainant on material aspect which had created serious doubts about recovery of contraband from the possession of accused---Prosecution had failed to prove its case against accused beyond any reasonable doubt---Conviction and sentence awarded to accused were set aside extending him benefit of doubt---Accused was acquitted of the charge levelled against him---Role of co-accused was also not distinguishable from accused, on legal as well as factual premises; it would therefore be inappropriate to withhold the benefit of judgment on the ground that co-accused had not filed an appeal against his conviction before the High Court---Co-accused, was acquitted of the charge levelled against him in circumstances.

Muhabbat Ali and another v. The State 1985 SCMR 662 and Hashim Qasim's csae 2017 SCMR 986 ref.

(b) Criminal trial---

----Benefit of doubt---Even a single doubt, if found reasonable, would entitle accused to acquittal.

Ghulam Qadir v. The State 2008 SCMR 1221; 2009 SCMR 230 and 1995 SCMR 1345 ref.

Malik Amjad Ali and Shehrish Habib for Appellant.

Raja Muhammad Zubair, A.A.G. for the State.

2018 M L D 1801

[Peshawar (Mingora Bench)]

Before Muhammad Nasir Mahfooz, J

MUHAMMAD MUKHTIAR---Petitioner

Versus

PROVINCE OF KHYBER PAKHTUNKHWA through Secretary Land Revenue Civil Secretariat Peshawar and 5 others---Respondents

Civil Revision No.421-M of 2017, decided on 13th April, 2018.

Civil Procedure Code (V of 1908)---

----O. XXIII, Rr. 1 & 2---Suit for declaration---Withdrawal of suit with permission to file fresh one---Scope---Plaintiff moved application for withdrawal of suit with permission to file fresh one but same was dismissed---Validity---If a party felt that suit had some formal defects, it could request for withdrawal of the suit with permission to file a fresh suit---Law of limitation would be applicable to the fresh suit---Present suit was at initial stage of the proceedings, if plaintiff felt that any of his right might be jeopardized and further trial would amount to wastage of time of the Court, same being a good ground, application for withdrawal of suit was to be allowed with permission to file a fresh suit but on payment of cost---Plaintiff was directed accordingly.

Pehalwan and others v. Haji Muhammad Murad and others 2005 SCMR 1405; Ismail v. Fida Ali and others PLD 1965 SC 634; 2017 MLD 1922; PLD 1984 Lah. 230 and 2008 CLC 466 ref.

Sultan Ali Shah for Petitioners.

Rafiq Ahmad, Assistant A.G. for Respondents.

2018 M L D 1811

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

MUHAMMAD ABBASS---Petitioner

Versus

Mst. SAWAIRA and another---Respondents

W.P. No.535-M of 2017, decided on 8th September, 2017.

Family Courts Act ( XXXV of 1964 )---

----S. 5, Sched.---Suit for dissolution of marriage and recovery of dower---Plaintiff/respondent (wife) sought annulment of Nikah or dissolution of marriage on the basis of Khulla---Four tolas gold ornaments in lieu of dower; half paid was kept in custody of third party by the petitioner---Petitioner/defendant (husband) contended that Trial Court had dissolved the marriage on the basis of Khulla but without an order of returning of dower---Respondent contended that as she had developed hatred towards petitioner due to his attitude so she sought dissolution of marriage on the basis Khulla---Validity---Concept of Khulla had been enshrined by the Holy Quran---History of Khulla commenced with two often quoted instances of Khulla ordered by the Holy Prophet (PBUH)---Two Courts below had rightly noticed the demeanor of the petitioner, in the present case, who had given two tolas gold ornaments to the third party for its safe custody while remaining two tolas gold ornaments were never given to the respondent---Petitioner, not only applied delaying tactics during the trial but also dragged the respondent in criminal case---Hatred of wife towards her husband was apparent, thus, when the option of annulment of the marriage on account of Khulla was prayed in the plaint, the same was rightly thought of for its decree--Court had powers to refuse the return of the dowered property/amount to the husband---Respondent/wife in the present case, was lodged in Darul-Aman on account of fear at the hands of the petitioner---Constitutional petition was dismissed accordingly.

Karim Ullah v. Shabana and 2 others PLD 2003 Pesh. 146 ref.

Barrister Asad Hameed-ur-Rehman and Ubaidullah for Petitioners.

Respondent No.1 in person.

2018 M L D 1845

[Peshawar (Mingora Bench)]

Before Muhammad Nasir Mahfooz, J

LIAQAT ALI KHAN---Appellant

Versus

DISTRICT COLLECTOR/DISTRICT REVENUE OFFICER, BUNER and 9 others---Respondents

R.F.A. No.78-M of 2012, decided on 9th February, 2018.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 23---Reference to court---Enhancement of compensation---Market value---Determination of---Procedure---Proximity of property to the surrounding area was the best possible touchstone to ascertain its market value---Suit property was being acquired for construction of Police Lines which was yards away from the judicial complex of the district---Potential value of land in question was much higher than any other area in the proximity---High Court had already fixed Rs. 14,00,000/- per kanal as market value of the property acquired for construction of same Police Lines according to prevailing rate in the year 2013---Award in the said cases was announced on 10-09-2004 which was about nine years earlier---Present award was also issued for construction of Police Lines but it was earlier to the said award of 2013---Rate of suit property prevailing during the year 2004 was to be considered for determination of its market value---Referee Judge had referred a document for determination of market value of suit property but had failed to note that the market value assessed in the said document was different from the rate fixed---Court had either to accept or reject a document as a whole---Referee Judge had committed material irregularity and illegality while fixing Rs. 223190.48/- per kanal as compensation of suit land---Inflationary trends in the market was also to be considered while fixing compensation of acquired land---High Court fixed market value of the land at Rs. 250817.38/- per kanal in addition to 15% compulsory acquisition charges---Impugned judgment passed by the Referee Judge was modified---Appeal was allowed in circumstances.

Sardar Muhammad Ashraf deceased v. Government of Khyber Pakhtunkhwa 2011 SCMR 1244; Government of Pakistan v. Ghulam Murtaza 2016 SCMR 1141 and Province of Punjab through LAC and another v. Begum Aziza 2014 SCMR 75 rel.

Wilayat Ali Khan for Appellants.

Rafique Ahmad Asstt: A.G. for Respondents.

2018 M L D 1860

[Peshawar]

Before Qalandar Ali Khan and Ishtiaq Ibrahim, JJ

MUHAMMAD RAMZAN SHARIF---Appellant

Versus

HUSSAIN GUL and another---Respondents

Cr.A. No.539-P of 2013 and Crl. Rev. 03 of 2014, decided on 29th March, 2018.

Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Appreciation of evidence---Sentence, reduction in---Prosecution case was that the accused reported to the police that when he entered into his house at 9.30 p.m., he found an unknown person with his wife in the room in objectionable/ compromising condition, which made him to take out his pistol and fired at that person, who died on the spot---Record showed that FIR was promptly lodged on the report of the accused, bearing his signature, therein confessed the qatl-i-amd of deceased by him---Recovery of the pistol from his possession, emitting smell of fresh discharge, recovery of one crime empty of .30-bore from the spot matching the result of the firearm expert, confirmation of scene of occurrence situated inside room of the house of the accused through positive result of the Forensic Science Laboratory regarding blood-stained earth secured from the spot and blood garments of the deceased---Post-mortem report showing one firearm entry wound on the deceased; confessional statement of the accused, were overwhelming pieces of evidence to cast any doubt about commission of the offence in the mode and manner disclosed in the FIR by the accused himself---Single shot fired at the deceased by the accused, which caused his death, while he spared the life of his wife, would leave no doubt that it was not a case of honour killing to invoke the provision of S. 302(b), P.P.C. for awarding sentence of life imprisonment---Circumstances and facts of the case suggested that after seeing an unknown person with his wife in the room of his house, the accused was angered and lost control and committed qatl-i-amd, which would fall in the category of grave and sudden provocation, excluding the possibility of premeditated murder, falling under S. 302(c), P.P.C.---While maintaining conviction of the accused, sentence was altered from life imprisonment under S. 302(b), P.P.C. to rigorous imprisonment for ten years under S.302(c), P.P.C. in circumstances.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 rel.

Jalal-ud-Din Akbar-e-Azam for Appellant.

Mian Arshad Jan, A.A.G. assisted by Abdul Qayyum Khan for the Complainant.

2018 M L D 1905

[Peshawar]

Before Waqar Ahmed Seth and Ijaz Anwar, JJ

ATTAULAH JAN---Petitioner

Versus

KHYBER PAKHTUNKHWA EHTESAB COMMISSION through Director General and 4 others---Respondents

W.P. No.2682-P of 2017, heard on 8th November, 2017.

Khyber Pakhtunkhwa Ehtesab Commission Act (I of 2014)---

----Ss. 23 & 42---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Delay in conclusion of trial---Petitioner had been in judicial custody since 18-5-2015 and was facing trial but the same could not be concluded---Validity---Order sheets of Trial Court revealed that majority of adjournments were made due to absence of prosecution witnesses---Presiding officer of the Court did not take any coercive measures either against process server / DFC concerned or prosecution witnesses, who deliberately avoided their attendance before the Court for recording their statements---Nothing was available on record which could reflect that delay occasioned in trial was either on the part of petitioner or any persons acting on his behalf---Presiding officer of the Court was not available due to his retirement from service and post of Judge was lying vacant---Bail was allowed in circumstances.

Hamish Khan v. The NAB Lahore and others 2015 SCMR 1092; Muhammad Jameel Rahi v. DG NAB and others 2012 SCMR 552; Muhammad Nadeem Anwar v. NAB PLD 2008 SC 645; Anwar ul Haq Qureshi v. National Accountability Bureau 2008 SCMR 1135 and Riasat Ali v. Ghulam Muhammad and another PLD 1968 SC 353 ref.

Qazi Jawad Ihsan Ullah for Petitioner.

Zahid Aman, D.P.G. for Respondent.

2018 M L D 1917

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan and Muhammad Nasir Mahfooz, JJ

SIRAJ UD DIN---Appellant

Versus

STATE through Additional Advocate-General and another---Respondents

Cr.A. No.246-M with Cr. M. 244-M of 2016, decided on 14th February, 2018.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that 1069 grams of charas and sale proceed of Rs. 9,000/- were recovered from accused---Out of the recovered charas, five grams were separated for chemical analysis while the rest was sealed into separate parcel---Record showed that the recovery of contraband charas was effected in thickly populated area and that too in view of spy information, but all the prosecution witnesses were police officials---Prosecution was bound to associate some private or independent witnesses with the recovery process in the eventuality when the police party in general and the Seizing Officer in particular was aware of the place of occurrence due to prior spy information---In the present case, on seeing the police, accused did not try to decamp from the spot, as he could easily make his presence whisk off from the place of recovery being thickly populated area---No test purchase was obtained from accused---Police official had negated the version of the prosecution to the effect that the alleged contraband charas was recovered from the pocket of "Bunyian" of the accused, whereas it was case of the prosecution that the recovery of charas was effected from the packet wrapped up in the plastic bag held by the accused---Sample of the recovered contraband was sent to the Forensic Science Laboratory for chemical analysis through Police Official---Said person had not been examined by the prosecution in order to further authenticate the veracity of Forensic Science Laboratory Report, which was positive---Prosecution witnesses stated that accused was apprehended at 9.00 a.m. whereas the recovery witness stated that police party had come to the place from where the accused was apprehended at 9.30 a.m., which showed that time of arrest was a mystery---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded against him by the Trial Court.

Shahid Mehmood v. The State 2016 PCr.LJ 1234 ref.

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

----Ss. 9(c), 21 & 22---Possession of narcotics---Appreciation of evidence---Arrest of accused in violation of S. 21, Control of Narcotic Substances Act, 1997---Effect---Allegation against accused was that 1069-grams of charas was recovered from him---Accused contended that alleged recovery of contraband charas was made by the official of Police Department below the rank of Sub-Inspector in violation of S. 21 of Control of Narcotic Substances Act, 1997---Validity---Record showed that investigation was carried out by Assistant Sub-Inspector, which was violation of Ss.21 & 22 of the Control of Narcotic Substances Act 1997, because an officer below the rank of Sub-Inspector of Police had no authority to search and arrest a person for recovery of narcotics---Said defect was fatal to the prosecution case.

Muhammad Younis v. The State 2008 YLR 1562 and Muhammad Yasir v. The State 2004 YLR 1303 rel.

Qazi Farid Ahmad for Appellant.

Rahim Shah, Astt: Advocate General for Respondents.

2018 M L D 1969

[Peshawar]

Before Lal Jan Khattak and Shakeel Ahmed, JJ

ZAIN KHAN---Petitioner

Versus

ADNAN and 2 others---Respondents

Writ Petition No.536-P of 2017, decided on 20th June, 2017.

Illegal Dispossession Act ( XI of 2005 )---

----Ss. 3, 4 & 6---Complaint against illegal dispossession---Maintainability---Petitioner contended that father of the complainant (respondent) had earlier filed complaint which was withdrawn and in view of withdrawal of earlier complaint, present complaint was not maintainable---Respondent contended that there was no bar on moving the present complaint---Record revealed that case was fixed for arguments on the maintainability of complaint, but on the said date Trial Court instead of deciding the question of maintainability of the complaint proceeded further with the case---High Court, while setting aside the impugned order remanded the case to Trial Court to decide the question of maintainability of complaint through a speaking order---Constitutional petition was disposed of accordingly.

Khalid Anwar Afridi for Petitioner.

Muhammad Siddique for Respondent.

2018 M L D 1993

[Peshawar]

Before Muhammad Nasir Mahfooz, J

AZAD KHAN KHATTAK and 5 others---Petitioners

Versus

MUHAMMAD FAISAL KHAN DURRANI---Respondent

C.R. No.242-P with C.M. No.383-P with C.M. No.641-P of 2018, decided on 11th June, 2018.

Defamation Ordinance (LVI of 2002)---

----Ss. 3, 8 & 12---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for defamation---Limitation---Rejection of plaint---Object of O.VII, R.11, C.P.C.---Defendant sought rejection of plaint on the plea of its being barred by law---Validity---Trial Court was to go through the contents of plaint before proceeding with case---Provision of O. VII, R. 11, C.P.C. was to stop frivolous litigation at initial stage, as it would not only avoid wasting of precious time of court but it also avoided to drag opposite party in an unnecessary litigation---Court was not to proceed with suit under O. VII, R. 11(d), C.P.C., which was barred by law---Suit, in the present case, was barred by S. 3 read with Ss. 8 & 12 of Defamation Ordinance, 2002; it was a pre-requisite to initiate action under Defamation Ordinance, 2002, that plaintiff, within two months after publication of defamatory matter had come to his notice or knowledge, was supposed to give fourteen days' notice in writing about his intention---In absence of such notice no action could lie---If suit without following said procedure was allowed to proceed the same would be a glaring violation of relevant provisions of Defamation Ordinance, 2002---High Court set aside order passed by Trial Court and rejected the plaint filed against defendant---Revision was allowed in circumstances.

Safdar Iqbal Khattak for Petitioners.

Pir Bakhsh Mehtab for Respondent.

2018 M L D 2001

[Peshawar]

Before Qalandar Ali Khan, J

MUHAMMAD ASHAR MALIK and another---Petitioners

Versus

SANA ASHAR and another---Respondents

W.P. No.1795-P of 2018, decided on 28th May, 2018.

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

----Ss. 25 & 12---Family Courts Act (XXXV of 1964), Ss. 5, Sch. & 7---Family Courts Rules, 1965, R. 6---Suit for custody of minors, recovery of dower, dowry articles and personal belongings by mother/ex-wife---Territorial jurisdiction---Scope---Plaint did not include the prayer for dissolution of marriage---Effect---Permanent residence of Spouses---Determination---Marriage had already dissolved on the basis of Khula at "K" and thereafter mother of minors moved from "K" to "P" without minors---Application for interim custody of minors by the mother/plaintiff was accepted---Petitioner/Father raised objection to the territorial jurisdiction of the Family Court at "P" with the plea that both the spouses last resided along with minors at "K" where he was permanently residing with the minors---Respondent/mother contended that petitioner/father was permanent resident of "P" where she had moved the Family Court---Validity---Nikah Nama and marriage registration certificate showed that parties were permanent residents of "P"---Despite husband's claim of permanent residence at "K", the petitioner had brought nothing on record to suggest that he had abandoned his permanent abode at "P" for good and had permanently settled at "K"---For the purpose of determining territorial jurisdiction of Family Court, Family Courts Act, 1964 and Family Courts Rules, 1965, were to be taken into account and not the provisions of S. 25 of the Guardians and Wards Act, 1890---Section 5 & Sched. of Family Courts Act, 1964 included custody of children and visitation rights of the parents to meet them, while proviso to R. 6 of Family Courts Rules, 1965 in case of suit for dissolution of marriage or dower, allowed the wife to move the Court within the local limits of which she ordinarily resided---Second proviso to S. 7(2) of Family Courts Act ,1964 introduced, [in the year 2002], the concept of composite suit/plaint by making the provision that plaint for dissolution of marriage could contain all claims---Plaint did not, in the present case, include the prayer for dissolution of marriage, however, proviso to R. 6 of Family Courts Rules, 1965 would come to rescue of the respondent in the matter of jurisdiction of Family Court at "P" to entertain, hear and adjudicate the suit of the respondent also for custody of minors---Plaintiff, other than for dissolution of marriage, could claim a prayer for the custody of minors---Not only respondent ordinarily resided at "P", rather both the parties had their permanent residences at "P", where their marriage took place, therefore, the Family Court at "P" had jurisdiction to entertain, hear and adjudicate upon suit of the respondent for dower etc. including custody of minors---No illegality or infirmity having been noticed in the impugned order passed by the Family Court, constitutional petition was dismissed accordingly.

PLD 2012 SC 66; PLD 2009 Lah. 484 and 2009 CLC 905 ref.

Abdur Rauf Rohaila for Petitioner.

Atif Ali Khan and Syed Ibrahim for Respondents.

2018 M L D 2075

[Peshawar (D.I. Khan Bench)]

Before Shakeel Ahmad, J

Syed SAADAT HUSSAIN SHAH---Petitioner

Versus

MADIHA BATOOL---Respondent

W.P. No.500-D of 2017, decided on 3rd November, 2017.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Dissolution of marriage on the basis of Khula---Passing the decree by court without touching vital aspects---Effect---Petitioner/husband contended that while dissolving marriage on the basis of Khula', Appellate Court had wrongly passed decree for jactitation of marriage---Respondent/wife contended that under shia fiqah no Nikah could be solemnized in absence of father or guardian of female---Record revealed that in the plaint, respondent had specifically stated that she could not live with the petitioner and that the parties could not live as husband and wife within the limits prescribed by Allah---If Nikah had not been performed between the parties, why the lady had sought dissolution of marriage on the basis of Khula'---Petitioner had produced in his evidence as many as eight witnesses including Nikahkhuwan and marginal witnesess of Nikahnama and got exhibited computerized Nikahnama registered with NADRA and marriage registration certificate---No doubt, neither father of respondent had participated in marriage ceremony nor said ceremony was held openly, rather the same was a love marriage, therefore, Nikah was solemnized secretly---Effect---Appellate Court must have touched the aspects like holding of marriage ceremony, contracting of marriage by adult Shia girl in absence of her father and self-contradictory pleas taken by respondent in her pleadings---High Court set aside the impugned judgment and remanded the case to Appellate Court to decide the same afresh while ascertaining said aspects of the matter within one month---Constitutional petition was disposed of accordingly.

Slaeemullah Khan Ranazai for Petitioner.

Syed Mastan Ali Zaidi for Respondent.

2018 M L D 2089

[Peshawar]

Before Waqar Ahmad Seth and Shakeel Ahmad, JJ

FAZAL RABI---Petitioner

Versus

AKHTAR NAWAB and 6 others---Respondents

W.P. No.2516-P of 2017, decided on 18th October, 2017.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), Ss. 265-K & 403---Constitution of Pakistan, Art. 13---Double jeopardy, principle of---Applicability---Petitioner filed complaint under Illegal Dispossession Act, 2005 against respondents but complaint was dismissed by Trial Court---Validity---Earlier, petitioner lodged FIR at order of Ex-Officio Justice of Peace against respondents for same incident as narrated in the complaint---Trial was conducted in FIR wherein complainant appeared as prosecution witness and respondents were acquitted by Trial Court and order was upheld by High Court---Respondents were acquitted of charges leveled in FIR which were same as mentioned in complaint therefore, subsequent trial on same allegations was hit by embargo placed by S. 403, Cr.P.C.---Trial Court had rightly acquitted respondents under S. 265-K, Cr.P.C. as there was no probability of them being convicted---High Court maintained judgment passed by Trial Court as there was no irregularity or illegality in the same---Constitutional petition was dismissed in circumstances.

Shehr Yar v. Bacha and 4 others 1997 MLD 1672 rel.

2018 M L D 65

[Balochistan]

Before Muhammad Ejaz Swati, J

KHURSHID ASHRAF through Attorney and 3 others---Petitioners

Versus

AFTAB ASHRAF and another---Respondents

Civil Revision No.264 of 2016, decided on 6th April, 2017.

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

---O. I, R. 10 (2)---Partition Act (IV of 1893), S. 4---Suit for possession through partition---Impleadment of a party---Discretion of Court---Exercise of---Scope---Petition for impleadment of party was moved which was accepted by the Trial Court---Validity---Plaintiff in a suit being dominus litis might choose the persons against whom he wished to litigate and could not be compelled to sue a person against his wishes---Discretion under O. I, R. 10(2), C.P.C. could be exercised either suo motu or on the application of plaintiff or defendant or application of a person who was not a party to the suit---Court could add any one as a plaintiff or as a defendant if it found that he was necessary or proper party---Trial Court without having any supporting document had passed the impugned order at premature stage---Impugned order was not sustainable in circumstances---Applicant after filing relevant documents might file fresh application for impleadment as a party---Impugned order was set aside and application for impleadment of party was dismissed---Revision was allowed in circumstances.

PLD 2009 Kar. 227 and 1999 YLR 2559 ref.

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

---O. I, R. 10(2)---'Necessary party'---Meaning.

A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, then an effective decree cannot be passed by the court.

1994 SCMR 2268; 1983 SCMR 849; PLD 1997 SC (AJ&K) 28; Muhammad Shahban and others v. The Flak Sher and others 2007 SCMR 882 rel.

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

---O. I, R. 10(2)---'Proper party'---Meaning and object.

A "proper party" is a party, who, though not a necessary party, but whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he needs not be a person in favour of or against whom the decree is to be made. The object of making such persons parties is to prevent needless multiplicity of suits. Another object is to allow a full and final adjudication of the dispute between the parties.

2013 SCMR 602 rel.

Syed Mumtaz H. Baqri and Ms. Sabira Islam for Petitioners.

Mujeeb Hashmi for Respondents.

2018 M L D 106

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Zaheer-ud-Din Kakar, JJ

MUHAMMAD SHAFIQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.61 of 2017, decided on 5th June, 2017.

Drugs Act (XXXI of 1976)---

----S. 23(1)(c)---Criminal Procedure Code (V of 1898), S. 412---Selling of medical drugs without license---Appreciation of evidence---No appeal lay in certain cases when accused pleaded guilty---Scope---Accused had made confession thereby admitting that he stocked and sold drugs without a license and could not produce any evidence---Trial court had rightly taken lenient view in respect of accused's sentence which was neither illegal nor contrary to the punishment provided in S. 23(1)(c) of Drugs Act, 1976---Accused, in circumstances, was barred to challenge his conviction and sentence under S.412, Cr.P.C. by filing appeal; he could only challenge the extent or legality of sentence which he had failed to challenge---Case was of conviction and sentence of accused on his own plea of guilty, therefore, no interference was called for by High Court---Appeal was dismissed accordingly.

Muhammad Saeed v. The State 1985 SCMR 1405 rel.

Ahsan Rafiq Rana for Appellant.

Abdul Karim Malghani for the State.

2018 M L D 287

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Zaheer-ud-Din Kakar, JJ

The STATE through Prosecutor General, Balochistan---Petitioner

Versus

ABDUL NAFAY and another---Respondents

C.P. No.569 of 2016, decided on 16th June, 2017.

(a) Words and phrases---

----"Aggrieved person"---Connotation---Aggrieved was a person who had got a personal grievance or a person who was deprived of anything to which he was legally entitled---Person was a human, in whom a legal right was vested, and if his personal interest, pecuniary interest or property right was directly affected as a result of court's order, decree or judgment, he would be a person aggrieved---Person in a case could not be considered as aggrieved person unless his right was infringed or adversely affected from the order, judgment or decree.

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

----S. 22-A---Application for registration of FIR---Prosecution had impugned the order passed by Ex-Officio Justice of Peace who had directed the Station House Officer of Police Station to register a criminal case against the accused persons---State being not an aggrieved party from the impugned order and Constitutional petition having been filed by an incompetent person, Constitutional petition was dismissed being not maintainable.

Mrs. Noor Jehan Kahoor, Addition, P.G. for Petitioner.

Tahir Hussain Khan for Respondent No.1.

2018 M L D 355

[Balochistan]

Before Abdullah Baloch, J

JAFFAR KHAN---Appellant

Versus

Syed MOEAD AHMED---Respondent

F.A.O. No.66 of 2015, decided on 30th October, 2017.

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

----Art. 129---Constitution of Pakistan, Art. 10-A---Balochistan Urban Rent Restriction Ordinance (VI of 1959), S.15---Ejectment petition---Right to cross-examination---Scope---Closure of right to produce evidence---Effect---Tenant contended that he was not given fair opportunity to lead evidence---Landlord submitted that tenant failed to cross-examine as well produce his own witnesses---Validity---Article 10-A of the Constitution guaranteed a valuable right to a party to challenge veracity of a witness---If opportunity of cross-examination was declined to the party, such evidence as a general rule was not legally admissible---Contesting parties must undergo test of cross-examination for ascertaining truth or otherwise of their claims failing which adverse assumption could be drawn against them under Art. 129 of Qanun-e-Shahadat, 1984---Maxim " audi alterm partem" would be applicable to the case of the tenant in circumstances---High Court remanded the matter with direction to provide full opportunity to the parties to produce their respective evidence---First appeal was partially allowed.

Muhammad Shah v. The State 2010 SCMR 1009 ref.

Mumtaz Hussain Baqri for Appellant.

Iqbal Ahmed Kasi and Inamullah Kakar for Respondent.

2018 M L D 546

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

STATE through Special Public Prosecutor, Anti Corruption Establishment---Appellant

Versus

ALLAH DINA---Respondent

Crl. Acq. Appeal No.329 of 2011, decided on 15th May, 2017.

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

----Ss. 409, 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Procedure Code (V of 1898), S.417---Criminal breach of trust by public servant or by banker, merchant, agent, cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document, abetment, public servant committed or attempt to commit criminal misconduct---Appreciation of evidence---Appeal against acquittal---Prosecution case was that ex-partner of the complainant with the collusion of accused-respondent got transferred the land of complainant in the name of some other persons through four mutations by putting his fake signatures on the said mutations---Complainant claimed that his fake signatures had been put on the said mutation entries, but the prosecution had failed to get compared the signatures of the complainant through Handwriting Expert---Without such comparison of signatures it could not be safely said that the signatures were genuine or fake one---Even otherwise, on the application of complainant, all the said four mutation entries had been cancelled by the concerned Revenue Authority and the said transfer of mutation entries were no more in the field---Witness of all the four mutation entries appeared as prosecution witness and deposed that three mutation forms of complainant were given to him by the ex-partner of complainant bearing the signatures of purchasers---Said forms were delivered to the accused-respondent on the direction of ex-partner of complainant---Said witness further stated that the forms were blank, which he had delivered to accused-respondent and he put his signatures on the said forms as attesting witness---Said witness admitted that the forms had the signatures of complainant---Statement of said witness was important being attesting witness of the revenue record, which did not support the contention of the prosecution to connect the accused-respondent with the commission of offence---Circumstances established that prosecution had failed to prove its case through confidence inspiring evidence against the accused-respondent---Appeal against acquittal was dismissed in circumstances.

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

----Ss. 409, 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal Procedure Code (V of 1898), S. 417---Criminal breach of trust by public servant or by banker, merchant, agent, cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document, abetment, public servant committed or attempt to commit criminal misconduct---Appreciation of evidence---Appeal against acquittal---Presumption---Double presumption of innocence was attached to the order of acquittal and interference was unwarranted unless the acquittal was arbitrary, capricious, fanciful or against the record---In the present case, the order of acquittal was neither arbitrary, capricious, fanciful nor contrary to the evidence on record, warranting interference, appeal against acquittal was dismissed in circumstances.

Amir Hamza Mengal, Addl. P.G. for Appellant.

Muhammad Saleem Lashari for Respondent.

2018 M L D 591

[Balochistan (Quetta Bench)]

Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ

Mst. FAHMIDA BIBI---Petitioner

Versus

ABDUL BARI and another---Respondents

C. P. No. 926 of 2017, decided on 9th October, 2017.

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

----S. 25---Custody of minors---Principles---Guardian application by the mother with prayer to direct the father to take custody of the minors from her---Marriage between the spouses was dissolved---Guardian judge dismissed the application of mother---Mother contended that she had soleminised nikah and rukhsati was going to be taken place and she would not be in position to look after the minors properly---Held, that while determining the custody of female ward, the question of chastity to be jealously guarded if the mother of female daughter had contracted second marriage with stranger, she had lost her right of hizanat---Father being natural guardian of his minor/minors, Court had to be satisfied about welfare of minor/minors while appointing the father as guardian---Admittedly, the mother had contracted second marriage and it was not possible for her to take the custody of minors with her and father of the minors being in good financial position could easily look after the minors properly rather than the mother---Mother was entitled to the custody of her male child until he had completed the age of seven years and of her female child until she had attained puberty and the right continued though she was divorced by the father of child unless she remarried, in which case the custody belonged to the father---High Court observed that, in the present case, the male minor was about 13 years old and after Nikah with a stranger the mother would loose her right of hizanat to the extent of female minor---Order passed by the Family Copurt was set aside, constitutional pettion was allowed accordingly.

Mst. Nazir v. Hafiz Ghulam Mustafa and others 1981 SCMR 200; Shabana Naz v. Muhammad Saleem 2014 SCMR 343 and para 352 of the Muhammadan Law ref.

Abid Ali Panezai for Petitioner.

Iqbal Hassan Kasi for Respondent No.1.

2018 M L D 603

[Balochistan (Quetta Bench)]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

BAZ MUHAMMAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.121 and Criminal Revision Petition No.14 of 2016, decided on 15th November, 2017.

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

---Ss. 302, 147, 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party assaulted on the complainant party, made firing, as a result of which, two persons of the complainant party were injured and thereafter succumbed to the injuries---Ocular account of the occurrence had been furnished by six witnesses including complainant---Record showed that statements of all the said witnesses were contradictory to each other and the contents of the fard-e-bayan---Some of the witnesses had claimed that they were present at the time and place of occurrence, but they failed to establish or justify their presence at the relevant place---All the said witnesses were interested and closely related with each other and had drawn a different sketch of the occurrence, which created doubts in the case of prosecution---Contradictions in the statements of witnesses as well as the dishonest improvements could not be ignored, which was sufficient to disbelieve the ocular testimony---Circumstances established that prosecution had failed to establish the charge against the accused persons beyond shadow of doubt, benefit of which would resolve in favour of the accused persons---Accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.

(b) Criminal trial---

----Benefit of doubt---Scope---Any reasonable doubt arising out of the prosecution evidence, pricking the judicial mind, was sufficient for acquittal of the accused.

Tariq Pervaiz v. The State 1995 SCMR 1345 and Ata Muhammad v. State 1995 SCMR 599 rel.

Kamran Murtaza and Adnan Ejaz for Appellants.

Abdul Khair Achakzai for the Complainant.

Abdul Mateen D.P.G. for the State.

2018 M L D 706

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

ABDUL MAJEED---Petitioner

Versus

SPECIAL JUDGE ANTI-TERRORISM COURT-I and another---Respondents

C.P. No.960 of 2017, decided on 23rd October, 2017.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 320, 279, 337-G, 337-H & 427---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 23---Qatl-i-amd, attempt to commit qatl-i-amd, qatl-i-khata by rash and negligent driving, rash driving or riding on a public way, hurt by rash and negligent driving, hurt by rash and negligent act, mischief causing damage to the amount of fifty rupees, act of terrorism---Petition for transfer of case from Anti-Terrorism Court to ordinary criminal court with contention that the offences alleged against the petitioner were of rash and negligent driving or in alternate qatl-i-bisabab, ingredients of S. 6(m)(n) of the Anti-Terrorism Act, 1997, therefore, were not attracted; case of petitioner was triable by the ordinary court and the prosecution with mala fide intention, had subsequently inserted S. 7 of Anti-Terrorism Act, 1997, to deprive both the parties from compromise---Validity---Prosecution case was that accused (Member Provincial Assembly) was driving the vehicle speedily---Traffic Sub-Inspector signaled the vehicle to stop but it did not stop and hit the Traffic Sub-Inspector and rider of a bicycle, due to which the cycle rider and Traffic Sub-Inspector were injured but Traffic Sub-Inspector, succumbed to the injuries---Record showed that matter was reported promptly to the police---Accused remained fugitive from law from 20th June, 2017 to 24th June, 2017 and thereafter arrested on public pressure by the police---Record revealed that accused was driving the vehicle without a valid driving license---Accused did not bother to rescue the injured persons---Circumstances showed that it was not a case of simple accident due to rash and negligent driving---Record transpired that there were other FIRs available on record against the accused/petitioner, wherein one of the FIR was lodged against him under Ss. 365, 342, P.P.C. & S.6 of Anti-Terrorism Act, 1997, as such, the past conduct of the accused could be adjudged from the said FIRs---Such act of the petitioner had created a sense of fear and insecurity amongst the police force and the general public---Record revealed that the manner in which the occurrence had taken place appeared repeatedly in news channels and daily newspapers---CDs of the incident were also taken into possession by the prosecution from the official CCTVs and private channels, which further prima facie highlighted the act of accused as that of "terrorism"---Constitutional petition being devoid of merits, was dismissed accordingly.

Kashif Ali v. The Judge, Anti-Terrorism Court-II, Lahore and others PLD 2016 SC 951 rel.

Kamran Murtaza and Naseebullah Tareen for Petitioner.

Naseer Ahmed Bangulzai, Additional A.G. and Saeed Ahmed Kakar for the State.

2018 M L D 751

[Balochistan]

Before Zaheer-ud-Din Kakar, J

SAIFULLAH---Petitioner

Versus

The STATE---Respondent

Crl. Revision No.109 of 2015, decided on 26th September, 2017.

(a) Criminal trial---

----Circumstantial evidence---Value---Scope---Circumstantial evidence was to be considered as a chain, and each piece of evidence, was link in the chain---If any one link had broken, the chain would fail---Circumstantial evidence could only form basis for conviction, when it was compatible with the innocence of accused or guilt of any other person and in no manner be incapable of explaining upon any reasonable hypothesis except that of guilt of accused---Every link in circumstantial evidence had to be proved by cogent evidence and if not then no conviction could be maintained or awarded to accused.

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

----Ss.392 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Robbery, common intention---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Withholding material witness---Presumption---Prosecution case was that accused persons had snatched motorcycle, Computerized National Identity Card and mobile phone on gun point from complainant---Record showed that no ocular evidence was available except the admission and identification of the accused in the case---Prosecution had examined two witnesses with regard to the admission/disclosure and identification of the accused---Record showed that accused had made confession and disclosure in police custody, no weight could be given to such disclosure and confession---Identification parade of the accused was conducted under the supervision of Judicial Magistrate after eleven days of his arrest---No explanation had been furnished for delayed identification parade---Prosecution failed to examine the said Judicial Magistrate before the Trial Court as prosecution witness to substantiate the version of the Investigating Officer---Complainant did not describe the role played by the accused at the time of commission of offence, thus the same had lost its efficacy and could not be relied upon---Adverse inference under Art. 129(g), Qanun-e-Shahadat, 1984 that had the witness been produced before the court, he would not have supported the prosecution case, could safely be drawn against the prosecution---Circumstances and facts of the case created doubt about the prosecution case, benefit of which would resolve in favour of accused---Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Muhammad Rafiq and others v. The State and others 2010 SCMR 385; Lal Khan v. The State 2006 SCMR 1846 and Riaz Ahmed v. The State 2010 SCMR 846 rel.

(c) Criminal trial---

----Circumstantial evidence---Scope---Absence of occular evidence would not result in acquittal of the accused---Conviction could be awarded on circumstantial evidence, if the same connected the accused with commission of offence.

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

----Arts. 38 & 39---Confession/disclosure of accused in custody of police---Effect---Confession of an accused during custody was inadmissible being hit by Arts. 38 & 39 of the Qanun-e-Shahadat, 1984---Extra-judicial confession was a very weak type of evidence and conviction could not be awarded without strong corroboration.

Wazir Muhammad and another v. State 2005 SCMR 277; Liaquat Ali v. The State 1999 PCr.LJ 1469; Tahir Javed v. The State 2009 SCMR 166 and Zafar Iqbal and others v. The State 2006 SCMR 463 rel.

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

----Art. 22---Delay in conducting identification parade---Effect---Delayed identification test both with reference to the date of occurrence and the date when the accused was taken into custody was to be looked upon with the maximum caution by the court.

Asghar Ali v. The State 1992 SCMR 2088 and The State v. Farman Hussain PLD 1995 SC 1 rel.

(f) Criminal trial---

----Burden of proof----Principle---Prosecution had to prove its case against the accused by standing on its own legs and it could not take any benefit from the weaknesses of the case of defence.

(g) Criminal trial---

----Benefit of doubt---Principles---If there was a single circumstance, which created reasonable doubt regarding the prosecution case, the same would be sufficient to give benefit to the accused.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

Naseebullah Tareen for Petitioner.

Naeem Kakar, Additional Prosecutor General for the State.

2018 M L D 904

[Balochistan]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD YOUSAF KHAN---Petitioner

Versus

Haji BARAT and another---Respondents

Civil Revisions Nos. 298 and 299 of 2007, decided on 8th November, 2017.

Specific Relief Act (I of 1877)---

----Ss. 42 & 8---Qanun-e-Shahadat (10 of 1984), Arts. 78, 79 & 84---Suit for declaration and possession---Document, proof of---Procedure---Contention of defendant was that suit property was sold to him and an agreement was executed between the parties---Suit was dismissed concurrently---Validity---Placement of documents on record would not serve the purpose rather their execution was to be proved by evidence as required---Onus to prove the document would be on the person who relied upon the same---Law required to prove not only the document through evidence but also its contents if denied---Proof of signature on the questioned document was mandatory---If document had created financial liability then production of at least two marginal witnesses to prove its execution was necessary---Marginal witnesses should not only identify their signatures but they should witness the execution of document, passing of consideration and signing of document by the parties---Mere signature or thumb impression on a deed was not sufficient to prove its execution---If a party who relied on the document failed to meet with the criteria then said document would not be considered to be proved to shift the onus on other party---Beneficiary of agreement had to establish its execution as required---Two marginal witnesses, author of agreement, stamp vendor and attesting witnesses or the persons who witnessed the transaction were to be produced by the vendee---In the present case, only one marginal witness of the agreement had been produced by the defendant---Findings recorded by the Courts were based on mere presumptions---Agreement which was basic document had not been proved---Instrument if pertained to some financial obligation and rendered in writing should have been attested by two witnesses---Defendant being beneficiary of transaction was bound to establish a legal transaction but he could not succeed---Impugned judgments and decrees were set aside and suit was decreed---Defendant being illegal occupant was directed to hand over vacant possession of suit property to the plaintiff---Revision was allowed in circumstances.

Gul Hassan for Petitioner.

Sheikh Muhammad Ali for Respondent No. 1 and Shai Haq Baloch, Additional Advocate General for respondent No. 2.

2018 M L D 984

[Balochistan]

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

Mst. MARRYAM BIBI---Petitioner

Versus

Mst. MURAD BIBI and 7 others---Respondents

C.P. No.(T) 28 of 2010, decided on 31st October, 2017.

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

----S. 12(2)---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Decree, setting aside of---Application in under S.12(2), C.P.C. alleging fraud having been played upon court---Limitation---Attorney on behalf of defendant had appeared and filed affidavit that defendant had no right in the suit property---Trial Court decreed the suit on the very next day on the ground that defendant had withdrawn from any entitlement in the suit property---Contention of applicant-defendant was that she was unaware of any suit/proceedings and decree had been obtained fraudulently---Validity---If applicant-defendant was ready to forego and withdraw from her proprietary rights at the very first day of hearing, then there was no need to file the suit---Trial Court did not ensure as to whether the defendant had signed the affidavit and executed power of attorney---Order passed by the Trial Court did not disclose the name of attorney---Trial Court should have procured the attendance of defendant to satisfy its conscious with regard to affidavit filed in the Court---Applicant-defendant was owner and share holder of suit property---Had the Courts below been vigilant, attentive, careful and conscious of the facts of the case and alive to legal position, they would have not dismissed the application for setting aside the impugned decree---Fraud vitiates any proceedings howsoever solemn it might be---Impugned decree had been obtained by mis-representing the facts and practicing fraud upon the Court which was ab initio void---No limitation would run against such decree/order---Impugned decree had been passed without lawful authority---Delay was condonable the moment applicant came to know about the decree---Nothing was on record that applicant after coming to know with regard to impugned decree kept quite---Impugned judgment and decree passed by the courts below were set aside---High Court directed that suit was to be treated pending before the Trial Court who should summon the parties and after obtaining written statements should proceed with the matter and decide the same in accordance with law---Constitutional petition was allowed accordingly.

Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549 rel.

(b) Fraud---

----Fraud would vitiate the most solemn proceedings.

Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549 rel.

(c) Limitation---

----Void order---No limitation would run against void ab initio order.

Khalid Ahmed Kubdani and Abdul Shakoor for Petitioner.

Abdul Hameed Baloch and Abdul Lateef Baloch for Respondents Nos.1 to 6.

Zahoor Ahmed Baloch, Asstt. A.G. for Respondents Nos.7 and 8.

2018 M L D 999

[Balochistan (Turbat Bench)]

Before Abdullah Baloch and Muhammad Hashim Khan Kakar, JJ

GHULAM QADIR and another---Appellants

Versus

MUHAMMAD ALI and others---Respondents

R.F.A. No. 47 of 2014, decided on 12th January, 2018.

Defamation Ordinance (LVI of 2002)---

----S. 3---Suit for defamation and damages, dismissal of---Professional/ habitual litigant---Requirement of damage to reputation not proved---Plaintiffs (advocates) filed a suit for defamation against the defendants alleging that they published certain material in newspapers wherein serious allegations were levelled against the plaintiffs to damage their honour in the eyes of society---Said suit was dismissed by the Trial Court; held, that perusal of subject publications did not reveal any material causing damage of reputation and humiliation to the plaintiffs---After publication of such material the plaintiffs did not make any effort to rebut the same---Record also showed that the plaintiffs and defendants were involved in certain other litigation---Moreover the concerned District Judge of the area had issued a list of advocates who were involved in frivolous litigation, and the name of one of the plaintiffs appeared in such list---Trial Court had rightly dismissed the suit of the plaintiffs---Appeal was dismissed accordingly.

Mehrab Khan Gichki for Appellants.

Abdul Hameed Baloch for Respondents.

2018 M L D 1014

[Balochistan]

Before Abdullah Baloch, J

YASIR and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal Revision No.83 of 2017, decided on 20th October, 2017.

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

----Ss. 377, 506(A) & 34---Unnatural offence, criminal intimidation, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Prosecution case was that the accused persons committed unnatural offence with son of the complainant and they made a video---Complainant of the case appeared as a witness and reiterated the contents of FIR and narrated the entire story in line with fard-e-bayan---Victim narrated the whole story with regard to the arrival of accused persons in his house and at the pretext of dating, the accused persons had taken him in the garage and by tightening his mouth and hands committed repeatedly unnatural offence with him and the absconding accused was making a movie by his mobile phone---Statement of the victim was in line with his earlier confessional statement recorded under S.164, Cr.P.C. by Judicial Magistrate---Testimonies of the witnesses were in line with each other on material counts---Said witnesses were cross-examined at sufficient length, but nothing fruitful had come on record in favour of defence---Both the complainant and victim remained consistent and were firm in their depositions---Said witnesses accurately uttered the date, time and manner in which the accused persons took the victim and committed sodomy with him---Ocular testimony produced by the prosecution was direct in nature and the same remained unshaken, consistent, confidence inspiring and supported the case of prosecution---Case of prosecution had been corroborated by the medical evidence---Medical Officer, who examined the victim, had opined that the victim had been sexually assaulted---Medical Officer, who examined the accused persons and found them potent and able to perform sexual act---Medical evidence had remained unshaken and unchallenged---Forensic DNA and Serology Analysis Report was in affirmative---Defence had taken the plea that the shalwar of victim took into possession by the Investigating Officer was received by Forensic Science Laboratory after delay of one and half years---If the Forensic Science Laboratory Report was discarded from consideration in toto, even then sufficient incriminating and direct evidence were available on record connecting the accused persons with the crime---Accused persons had simply denied the allegations without producing any evidence in their defence---Appeal against convictions and sentences was dismissed in circumstances.

(b) Criminal trial---

----Witness---Related witness---Testimony of related witness---Reliance---Scope---Related witness was as much a competent witness, as any other provided he was not inimical towards accused and had a motive to implicate the accused in a false case.

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

----S. 377---Unnatural offence---Solitary statement of victim---Evidentiary value---Solitary statement of victim, case of sodomy or zina, was sufficient to convict the accused, if it was confidence inspiring.

Fayyaz alias Fayyazi and another v. The State 2006 SCMR 1042 and Mushtaq Ahmed and another v. The State 2007 SCMR 473 rel.

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

----Ss. 377, 506(A) & 34---Unnatural offence, criminal intimidation, common intention---Appreciation of evidence---Delay in lodging FIR---Effect---Allegedly, matter was reported to the police after the delay of two days without any plausible explanation---Fact remained that in such like cases, the prestige of family and respect being involved, people were reluctant in filing report to the police---Guardian of the victim in such like case, must have consulted his relatives, whether to file report or not---In the present case, the complainant, soon after receipt of information from the victim, reported the matter---Delay in filing FIR was natural and same was not material to the case.

Kamran alias Kami v. The State 2012 PCr.LJ 1200 rel.

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

----S. 154---FIR---Delay in lodging---Effect---Mere delay in lodging FIR could not be helpful for defence to claim acquittal of the accused.

Sarwar Khan Kakar along with Petitioners.

Abdul Karim Malghani, State Counsel for the State.

Ms. Farzana Khilji for the Complainant.

2018 M L D 1033

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

MUHAMMAD HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.187 of 2009 and Murder Reference No.16 of 2009, decided on 12th June, 2017.

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

----Art. 47---Penal Code (XLV of 1860), Ss. 302(b), 109 & 34---Relevancy of certain evidence for proving the truth of facts therein stated---Qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Ocular account supported by medical evidence---Prosecution case was that accused party had assaulted on complainant party, made firing thereon, as a result of which two persons died and one person sustained injuries---All the victims had sustained injuries by a Pistol---Motive for the incident was business dispute between the parties---Ocular account was furnished by two witnesses including deceased then injured---Accused remained fugitive and the case was tried against him in absentia and he was awarded capital punishment---Accused filed appeal after his arrest, which was accepted and the case was remanded to the Trial Court for commencing de novo trial of the accused---When the case proceeded in absentia, the statement of one injured was recorded by the Trial Court; however, after arrest of the accused, the said injured witness, according to the prosecution, had died---Complainant submitted application along with death certificate of the said witness, with the submission that the statement of said witness be placed on record---Said application was allowed and the statement of said witness was placed on record---Validity---Trial Court relied upon the ocular account furnished by a witness and statement of deceased then injured under Art. 47 of Qanun-e-Shahadat, 1984---Record showed that incident took place on 27.1.2002---Witness had stated to be present at the place of incident, but neither at the time of incident she recorded her statement, nor explained the sufficient reasons for delay in recording her statement---Said witness had appeared after about three months of the incident sworn an affidavit, but no plausible explanation for such inordinate delay had been put forth---Statement of such witness, in circumstances, was not safe to be relied upon---In the present case, only ocular evidence of deceased then injured, which had been taken into consideration under Art. 47 Qanun-e-Shahadat, 1984 was on the record---Record showed that death certificate of the witness had not been challenged by the defence nor rebutted through any cogent evidence---At the time of accepting the application for transfer of statement of witness, evidence regarding death of said witness was already on record, thus the requirement of Art. 47 of the Qanun-e-Shahadat, 1984 was proved with regard to the death of said witness---Evidence of said witness was also put to the accused under S.342, Cr.P.C.---Contention of defence that conviction awarded to the accused, which was recorded in absentia, had been set-aside in appeal and the previous trial was not judicial proceeding, was not tenable---Statement of said witness was recorded in the previous trial in judicial proceedings and counsel for pauper accused cross-examined the said witness, therefore the statement of said witness qualified the requirements of Art. 47 of the Qanun-e-Shahadat, 1984---Deceased, then injured witness, had given a detail account of the incident by attributing role of firing to the accused and co-accused and firearm injuries sustained by him and deceased persons---Evidence of said witness was supported by medical evidence, recovery of empties, bloodstained clothes of deceased and injured, thus was worth of credence, independent, natural and trustworthy---No reason existed to discard his testimony, therefore, the testimony of single witness was found entirely reliable---Prosecution, however, had not been able to prove motive part of the occurrence, which was mitigating circumstance for reduction of sentence---Conviction was maintained but sentence of accused was reduced/altered from death to imprisonment for life in circumstances.

AIR 1945 Kolkata 139; PLD 1958 SC (Pak) 290; AIR 1944 Lah. 206; 2007 YLR 1046; 2013 PCr.LJ 282; PLD 2010 SC 642; PLD 2014 Pesh. 189; 2012 PCr.LJ 768 and PLD 1978 SC 102 ref.

Muhammad Khan v. Muhammad Bakhsh 1998 SCMR 570; Arbab Tasleem v. The State PLD 2010 SC 642; Muhammad Mansha v. The State 2001 SCMR 199 and Muhammad Yaseen v. The State 2011 SCMR 905 rel.

Muhammad Aslam Chishti for Appellant (in Criminal ATA Appeal No.187 of 2009).

Raja Abdur Rehman for the Complainant. (in Criminal ATA Appeal No.187 of 2009).

Yahya Baloch, Deputy Prosecutor General for the State (in Crl. ATA Appeal No.187 of 2009).

Muhammad Yahya Baloch, D.P.G. for the State (in Murder Reference No.16 of 2009).

Muhammad Aslam Chishti for Respondent (in Murder Reference No.16 of 2009).

Raja Abdur Rehman for the Complainant (in Murder Reference No.16 of 2009).

2018 M L D 1112

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

ADDITIONAL CHIEF SECRETARY (DEVELOPMENT) and 2 others---Appellants

Versus

Messrs UNIQUE ASSOCIATES through Project Manager---Respondent

R.F.A. No.118 of 2009, decided on 9th October, 2017.

Civil Procedure Code (V of 1908)---

----O. VII, R. 2---Money suit---Contract for consultancy of construction work---Construction work not completed within specified time by the contractor---Payment of consultancy charges for the extended period of contracts---Scope---Contractor could not complete construction work within specified period---Plaintiff/ consultants rendered further services of consultancy for which suit was decreed by the Trial Court---Validity---Government hired services of plaintiff for consultancy and agreement was executed for completion of work within a period of twenty four months on consideration of fix amount---Terms and conditions were settled and agreed between the parties in the said agreement---Said terms and conditions were binding in nature including terms of responsibilities of the parties---Nothing was on record with regard to extension of carrying out of consultancy for such additional period in written form in lieu of agreement signed between the parties---Parties were not competent to extend the contract of consultancy without reducing the same in written form---Plaintiff had failed to prove its case/claim through documentary evidence---Amount agreed between the parties had been paid---Plaintiff could not be allowed to take benefit/advantage of delay caused by the contractor for completion of work---Impugned judgment and decree passed by the Trial Court suffered from mis-reading and non-reading of evidence which were set aside---Appeal was allowed in circumstances.

Zahoor Ahmed Baloch, A.A.G. for Appellant.

Sheik Muhammad Ali for Respondent.

2018 M L D 1190

[Balochistan (Sibi Bench)]

Before Abdullah Baloch, J

SOOMAR KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(s) 127 of 2017, decided on 18th December, 2017.

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

----Ss. 324 & 34---Attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Charge against accused was that he, along with co-accused persons, armed with Kalashnikov fired upon son of complainant, who received bullet injury on his arm and fell down---Ocular account was furnished by complainant of the case, who reiterated the contents of fard-e-bayan---Statement of the complainant was silent with regard to specific time of the occurrence---Complainant had mentioned the date of occurrence as 10th April, 2017 in her fard-e-bayan and said date was also recorded in the FIR---Complainant, in her cross-examination had admitted that she firstly took the injured to the hospital---Complainant, thereafter went to Tehsil Office, but did not find present the Tehsildar and on the following day again she went to Tehsil Office and met with the Tehsildar by submitting fard-e-bayan for registration of FIR---Admittedly, the occurrence had taken place on 10th April 2017 and according to the statement of the complainant the FIR could not be lodged on the said date due to absence of Tehsildar but the same was registered on the following day, but the date of occurrence and the date of registration of FIR as mentioned in the FIR was 10th April, 2017---Said aspect created doubt in the case of prosecution that if the complaint was filed on the following day of occurrence, then under such circumstances how it was possible to lodge the FIR prior to filing of complaint---Statement of complainant reflected that all the investigation proceedings were carried out by the Investigating Officer on the following day of the occurrence and till that time, the injured was discharged from hospital---Injured witness contradicted the statement of complainant by deposing that on the day of occurrence, the Tehsildar took him to hospital for treatment in his official vehicle---Injured witness, during his cross-examination stated that he was taken to the hospital by police---Injured witness stated that Tehsildar visited the site at 5.00 p.m. while complainant had stated that the Tehsildar visited the site at about 3.00 p.m.---Investigating Officer contradicted the statements of complainant and injured by deposing that on 10th April 2017, he visited the site and took into possession one empty, blood stained earth and blood-stained clothes of injured and thereafter took the injured to hospital---Statements of all the witnesses established the facts that not only the witnesses contradicted each other on material counts, but also they narrated different stories with regard to occurrence---Statement of either of the witnesses was not helpful to the case of prosecution---Witnesses had admitted that previously civil and criminal disputes existed between the parties and FIR had been lodged by the accused party against the complainant party, thus false implication of the accused could not be ruled out for consideration---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

(b) Criminal trial---

----Witness---Impartial and independent witness---Scope---Not necessary that an impartial and independent witness, who was neither related to complainant nor inimical towards the accused, always spoke true----Court was duty bound to scrutinize the statement of witness with utmost care and caution.

Muhammad Saleem v. The State 2010 SCMR 374 rel.

Shah Muhammad Jatoi for Appellant.

Jamil Akhtar Gajani, D.P.G. for the State.

2018 M L D 1246

[Balochistan (Sibi Bench)]

Before Naeem Akhtar Afghan and Abdullah Baloch, JJ

DUR MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Jail appeal No.(s) 12 and Murder Reference No.(s) 2 of 2017, decided on 24th January, 2018.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, common intention---Appreciation of evidence---Dying declaration---Scope---Accused was charged for the murder of complainant and his mother by firing---Evidence produced by the prosecution, was the dying declaration, evidence of widow of deceased, member of police patrolling party, in whose presence, the alleged dying declaration of deceased was recorded and the statement of first Investigating Officer---Scrutiny of statements of all the said witnesses suggested that they contradicted each other on all material counts---Member of the patrolling party and Investigating Officer deposed that deceased, who at the relevant time was in injured condition, had stated that they were injured by the accused by means of firearm when they were sleeping in their house---Alleged dying declaration was silent with regard to motive of occurrence as to why they were injured by the accused who was their uncle and was also residing in their house---Statements of said witnesses as well as the alleged dying declaration were fully contradicted and negated by the widow of deceased---Statement of widow of deceased reflected that the absconded sons of the accused made indiscriminate firing upon her husband as well as her deceased mother-in-law, due to which they sustained injuries and subsequently died---During her cross-examination, she had exonerated the accused from the charge---Sister of deceased lady stated that her sister at the relevant time was in injured condition and disclosed that they had been injured by the brother of deceased---Said witness had not supported the case of prosecution, thus she was declared hostile and was cross-examined by the prosecution, but she remained firm in her deposition and exonerated the accused from the commission of crime---Widow, along with her deceased husband and mother-in-law were allegedly the target of accused and other absconded accused, but her husband and mother-in-law were hit and the widow of deceased was let free---Said fact did not appeal to the logic that by killing two persons in presence of their close relatives, accused would not attempt to cause any injury/kill the prosecution witnesses and would leave them for evidence to be hanged---Statement of accused was recorded on oath under S. 340(2), Cr.P.C., wherein, he had stated that alleged widow of deceased was residing with the deceased illegitimately without Nikkah and that was the reason that deceased was murdered---Prosecution had failed to produce any evidence establishing the motive behind the occurrence---Plea taken by the accused was more plausible---Motive behind the occurrence was shrouded in mystery---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and the accused was acquitted in circumstances by setting aside conviction and sentence recorded against him by the Trial Court.

Sarwan Kumar for Appellant.

Jamil Akhtar Gajani, Additional P.G. for the State.

2018 M L D 1333

[Balochistan (Turbat Bench)]

Before Abdullah Baloch, J

MUHAMMAD HANIF---Petitioner

Versus

SERAJ AHMED and 2 others---Respondents

Civil Revision No.T-37 of 2017, decided on 15th January, 2018.

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

----Art. 79---Suit for declaration---Document, proof of---Procedure---Contention of plaintiff was that he had purchased suit land through sale deed---Suit was dismissed concurrently---Validity---Plaintiff had failed to produce any marginal witness of alleged sale deed as well as any owner from whom land in question was purchased---Alleged sale deed was not exhibited to be taken into consideration---Witnesses produced by the plaintiff were neither marginal witnesses nor sale proceedings had been carried out in their presence---Alleged sale-deed was not attested by any Oath Commissioner or Notary Public to verify the contents of the same---Plaintiff, in circumstances, had failed to prove his case through cogent and inspiring evidence---Judgments and decrees passed by the Courts below did not suffer from any mis-reading and non-reading of evidence---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed in limine.

Rahm Dil Baloch for Petitioner.

2018 M L D 1354

[Balochistan (Sibi Bench)]

Before Naeem Akhtar Afghan and Abdullah Baloch, JJ

GUL SHER KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(s) 17 of 2017, decided on 25th January, 2018.

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

----Ss. 396 & 34---Dacoity with murder, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that on fateful day, accused with his co-accused persons armed with deadly weapons, tried to snatch the motorcycle of complainant, but on resistance of nephew of complainant, accused made firing upon him, due to which he received injuries and later on he succumbed to the injuries---Ocular account of the occurrence was furnished by two witnesses including complainant---Complainant appeared as witness, but he made dishonest improvement and contradictory statement regarding his fard-e-bayan---Said witness deposed that occurrence took place at 3.30 p.m. and they reached the Police Station at 4.20 p.m. and after lodging FIR, they came along with police at the site at about 5.20 p.m.---Said version of complainant was negated by the Investigating Officer, who deposed that he reached at the place of occurrence at 3.30 p.m.---Place of occurrence was at a distance of 18/19 kilometers as narrated by the Investigating Officer, as such, the statement of complainant was contradictory and created doubts---FIR did not contain any such time---Statement of eye-witness was also contradictory to complainant and other witness on material counts---Complainant being inhabitant of the area could identify the accused persons who also belonged to the same vicinity, but the identification of the accused persons were made by eye-witness---Said eye-witness accompanied the deceased in the house of complainant and there was nothing on record that he had been visiting the village and had acquaintance with the people of the area and could identify the real culprits with their names and parentage---Identification of the accused persons by the said eye-witness was highly doubtful in circumstances---Accused did not make any attempt to harm the complainant and the eye-witness---When the complainant along with eye-witness was on the target of the accused party, only deceased was hit and murdered, while the complainant or the witnesses were let free---Said factor did not appeal to the logic that by killing the deceased in presence of his close relatives, accused would not attempt to kill the prosecution witnesses, leaving them for evidence to be hanged--- Contents of fard-e-bayan as well as the statements of both the alleged eye-witnesses showed that three nominated accused persons along with three unknown accused persons had participated in the crime---Accused was arrested and subjected to investigation, but the Investigating Officer failed to interrogate the accused to bring out the names of said three unknown accused persons---Said factor was suggestive of the fact that the contents of fard-e-bayan were false---Even otherwise if the accused could have recorded his disclosure memo to effect the recovery of crime weapon, he could also have named the remaining three accused persons, but that had not been done, which caused serious dent and damage to the case of prosecution---Accused had not only been charged for committing the murder of deceased, but also for snatching motorcycle from the complainant---During investigation, the prosecution had failed to effect recovery of said motorcycle from accused---Record showed that several FIRs had been registered by both the parties against each other and complainant while appearing as witness, could not rebut the existence of tribal enmity in-between the two tribes---Sufficient doubts had been created in the case of prosecution, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded against him by the Trial Court.

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

----Ss. 396 & 34---Dacoity with murder, common intention---Recovery of weapon of offence from accused---Reliance---Scope---T.T. pistol was recovered on the disclosure of accused---Recovery witness deposed in his cross-examination that T.T. pistol bore numbers on its handle while it was having on its upper side---Record further showed that neither the said numbers were deposed by the witnesses nor the same were mentioned in the recovery memo, which created doubts about the alleged recovery---Recovered pistol along with empties and other articles were sent to Ballistic Expert after the delay of one month and two days, which was not explained by the prosecution---Even otherwise, the recovery of crime weapon was a corroborative piece of evidence and in absence of direct ocular evidence, mere recovery of crime weapon could not be based for conviction---Investigating Officer had failed to associate any private witness of the locality to witness the recovery and all the proceedings were carried out in a doubtful manner.

Ellahi Bakhsh Lehri for Appellant.

Jamil Akhtar Gajani for Additional P.G. for the State.

2018 M L D 1466

[Balochistan]

Before Muhammad Ejaz Swati, J

GHULAM FAROOQ---Appellant

Versus

DOLAT KHAN---Respondent

F.A.O. No.20 of 2017, decided on 26th April, 2018.

Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment of tenant---Denial of relationship of landlord and tenant by tenant---Scope---Contention of tenant was that he had purchased the demised premises from the brother of landlord through an agreement---Eviction petition was dismissed for lack of relationship of landlord and tenant between the parties---Validity---Tenant had failed to establish the authority of brother of landlord to enter into an agreement and handover possession of demised premises on the basis thereof---Tenant just to continue his possession had taken the plea of purchase of premises in question through brother of landlord---Landlord was owner of demised premises---Ownership might not be a determining factor to establish the relationship of landlord and tenant between the parties---Relationship of landlord and tenant, however, had been established between the parties---Tenant was first to vacate the premises in question and then seek his remedy if he desired so---Impugned order could not be sustained which was set aside and eviction petition was allowed---Tenant was directed to handover the vacant possession of the premises in question to the landlord within a period of two months subject to payment of monthly rent---Appeal was allowed in accordingly.

Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 and Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320 rel.

Munir Ahmed Langove for Appellant.

Shams-ud-Din Achakzai for Respondent.

2018 M L D 1529

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Abdullah Baloch, JJ

NOOR MUHAMMAD---Petitioner

Versus

SPECIAL JUDGE ANTI-TERRORISM COURT, KHUZDAR and 5 others---Respondents

C. P. No.457 of 2016 and Crl. Revision No.23 of 2017, decided on 27th February, 2018.

Criminal Procedure Code(V of 1898)---

----S. 540---Material witness, re-summoning of---Scope---Four prosecution witnesses had resiled from their statements recorded under S.161, Cr.P.C.---Complainant and Special Prosecutor requested the Trial Court to declare the said witnesses hostile, but the request was rejected---Complainant filed application for calling of said witnesses as well as other witnesses mentioned in the application as their statements were important and relevant for just decision of the case, but was rejected---Validity---Record showed that the statement of four witnesses recorded under S.161, Cr.P.C. to some extent were informative in nature if the same be recorded before the court in its true perspective---Said witnesses had resiled due to the reasons best known to them---Neither the said witnesses had been declared hostile nor any opportunity of cross-examination was afforded to the prosecution---Application under S.540, Cr.P.C. for calling of witnesses of the complainant/ petitioner was declined without stating any reason---Such decline, prima facie, caused prejudice to the prosecution---Petitions were partly allowed by setting aside the impugned orders and case was remanded to the Trial Court with the direction that application under S.540, Cr.P.C. of complainant/petitioner was to be deemed to be pending along with the request of recalling of four hostile witnesses with the opportunity to cross-examine them---Constitutional/revision petitions were disposed of accordingly circumstances.

Habib-ur-Rehman for Petitioner along with Petitioner.

Muhammad Ibrahim Lehri for Respondents.

Ms. Noor Jehan Kahoor, A.P.G. for the State.

2018 M L D 1567

[Balochistan (Sibi Bench)]

Before Abdullah Baloch, J

GULZAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(s) 77 of 2017, decided on 19th January, 2018.

Penal Code (XLV of 1860)---

----Ss. 320 & 279---Qatl-i-khata by rash or negligent driving, rash driving or riding on public way---Appreciation of evidence---Prosecution case was that rash and speedy vehicle driven by the accused, hit the father of complainant, due to which he fell down and got injured---FIR was lodged under Ss.337-G & 279, P.P.C., but subsequently, the injured succumbed to injuries and died, hence S.337-G, P.P.C. was converted into S.320, P.P.C.---Ocular account of the incident was furnished by the witnesses including complainant---Complainant appeared as witness and narrated the story with regard to the occurrence taken place in front of his shop and also mentioned the presence of eye-witness in his shop---Both the said witnesses had confirmed the occurrence in front of the shop---Record showed that both the said witnesses resiled from their earlier depositions and were declared hostile, but the fact remained that both the witnesses in their depositions stated that the deceased was hit by a vehicle---Police arrested the accused from the place of occurrence soon after the commission of crime along with the vehicle---Accused was nominated in the FIR lodged promptly by the complainant---Said circumstances suggested that accused was the real culprit who hit the father of the complainant---Death certificate of the deceased was suggestive of the fact that the deceased had died due to unnatural death---Mere resiling of the star witnesses was not enough to discharge the accused from the commission of crime---From facts and circumstances of the case it appeared that the complainant might have compromised with the accused out of the court and in order to save the accused from the payment of Diyat amount he had made a false statement to deprive the minor as well as the women legal heirs from receiving their share of Diyat amount---Circumstances established that prosecution had succeeded in establishing the charge against the accused through consistent and confidence inspiring evidence---Appeal was dismissed in circumstances.

Rizwan Ali Soomro for Appellant.

Abdul Mateen D.P.G. for the State.

2018 M L D 1758

[Balochistan]

Before Abdullah Baloch, J

MUHAMMAD SADIQ---Petitioner

Versus

The STATE---Respondent

Criminal Revision No.134 of 2017, decided on 28th March, 2018.

Penal Code (XLV of 1860)---

----Ss. 324, 365, 504, 506, 147, 148 & 149---Criminal Procedure Code (V of 1898), S.169---Attempt to commit qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, rioting common object---Cross FIRs---Discharge of accused under S.169, Cr.P.C., by the Investigating Officer---Issuance of summons by the Trial Court for appearance of accused---Petitioner/accused had taken the plea of alibi by producing some evidence---Investigating Officer, discharged accused from the case by exercising his powers under S.169, Cr.P.C. and mentioned name of accused in Column No.2 of the challan and submitted the same in the Trial Court---Trial Court issued summons to accused for appearance---Validity---Cross FIRs had been registered by both the parties against each other the same date and time at the same Police Station---Accused and his companions had been nominated with specific role of firing in the FIR registered against accused---Investigating Officer, during investigation, had discharged accused under S.169, Cr.P.C.---Provisions of S.169, Cr.P.C., empowered the Investigating Officer to discharge any accused, if he would come to the conclusion that sufficient evidence or reasonable ground was not available to justify forwarding of accused to the Trial Court, but had no power to weigh the defence evidence---On receipt of challan and after examination of record, if the Trial Court would be satisfied that there existed two sets of evidence from both the sides, the Trial Court had powers to weigh both sets of evidence on judicial scale by relying upon the one set and to discard the other---In the present case, Trial Court after assessing the material available on record had rightly summoned the accused placed in Column No.2; because the Investigating Officer by exercising his powers and authority had discharged the petitioner from the case, who had specifically been nominated in the FIR with specific role---Investigating Officer had mainly based his conclusion of discharge of the accused on the basis of CCTV footage produced by the accused---Investigating Officer, had no power to weigh the defence evidence qua the prosecution evidence, rather it was the sole discretion of the Trial Court---Investigating Officer while conducting investigation of the matter could not assume the charge of Trial Judge---Authenticity of the CCTV footage and the supporting documents, were required to be controverted by the complainant party after the acid test of cross-examination---Considering such evidence at such a pre-mature stage would amount to abuse of process of law---Accused could approach the Trial Court for his acquittal from the charge prior to recording evidence and if the Trial Court found the prosecution evidence deficient, it had ample powers under S.249-A and S.265-K, Cr.P.C., to acquit the accused---Revision petition being devoid of merits, was dismissed, in circumstances.

Rizwan Ali v. The State 2017 PCr.LJ 1088; Hazar Khan v. State 2013 PCr.LJ 1892 and Muhammad Arastu v. The State 2014 PCr.LJ 802 ref.

Rehmatullah Barech for Petitioner.

Syed Ayaz Zahoor for the Complainant.

Abdul Karim Malghani for the State.

2018 M L D 1781

[Balochistan]

Before Mrs. Syeda Tahira Safdar and Abdullah Baloch, JJ

GHULAM MUHAMMAD---Appellant

Versus

OBAID-UR-REHMAN and 2 others---Respondents

Criminal Acquittal Appeal No. 81 of 2018, decided on 21st May, 2018.

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

----Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appeal against acquittal---Reappraisal of evidence---Complainant, during cross-examination, could not stand on his legs with regard to ocular evidence and defence had succeeded in shaking his testimony---Prosecution witnesses, who claimed to be eye-witnesses of the occurrence, had contradicted each other as well as the complainant---Statement of one eye-witness, had also been contradicted by the medical evidence---Said witnesses had narrated a different story with regard to commission of crime and had exonerated one of accused persons from commission of crime or firing upon the deceased---None of the prosecution witnesses had attributed any overt act to accused persons---Entire prosecution evidence was suggestive of the fact that absconding accused was responsible for the murder of the deceased---Entire prosecution evidence, had established, that though accused persons were present at the relevant time along with main accused (absconded), but no overt act was attributed to them by the prosecution, rather accused persons had played the role of idle or audience at the relevant time---Prosecution had failed to establish through incriminating evidence with regard to common intention of or common object of accused persons to commit murder of the deceased---Accused persons, were rightly acquitted by the Trial Court---Order of acquittal passed by the Trial Court, was neither arbitrary, capricious, fanciful nor contrary to the evidence brought on record, warranting interference by the High Court.

Muhammad Ameer v. Muhammad Imran 2017 MLD 1263; Manthar and 3 others v. The State 2012 PCr.LJ 1263 and Hakim Zafar and another v. The State 2017 YLR 232 rel.

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

----S. 417(2-A)---Appeal against acquittal---Double presumption of innocence, was attached to the order of acquittal and interference was unwarranted, unless the acquittal was arbitrary, capricious, fanciful or against record.

Faizullah Khan for Appellant.

2018 M L D 2066

[Balochistan]

Before Abdullah Baloch and Mrs. Syeda Tahira Safdar, JJ

ABBAS RAZA and others---Petitioners

Versus

The STATE through Director General and others---Respondents

C.P. No.1004 to 1008, 1010 to 1012 and 1017 of 2017, decided on 30th April, 2018.

National Accountability Ordinance ( XVIII of 1999 )---

----Ss. 9(a), 10, 18(g) & 24(b)---Constitution of Pakistan, Art. 199 ---Pre-arrest bail, grant of---Separate references on identical/same allegations---Mala fide---Case of further inquiry---Petitioners being holders of public office were among the accused persons allegedly involved in bogus recruitments of teachers, however separate references were filed by the National Accountability Bureau against them---Petitioners contended that the complainant had filed separate references in order to pressurize and blackmail the accused persons---High Court had already granted bail to most of the accused persons in other references based on same allegations---Said references reflected identical allegations of bogus recruitments of teachers---Petitioners had filed application before the Trial Court for consolidation of all references being identical in nature, which application was yet to be decided by the Trial Court---Trial Court could determine whether or not, all the references pertained to the same period with regard to same allegations---Such determination would require evidence---National Accountability Bureau identified appointment of 125 teachers being bogus one, but instead of filing one reference against all accused persons, deliberately and intentionally, filed different references in piecemeal---Said act of National Accountability Bureau reflected mala fide on its part---Case of the petitioners was of further inquiry---Pre-arrest bail was allowed to the petitioners in circumstances.

Tariq Ali Tahir and Ms. Sarwar Hina for Petitioners (in C.Ps. Nos. 1004 to 1008 of 2017).

Adnan Ejaz and Mudassir Nadeem for Petitioners (in C.P. No.1010 of 2017).

Muhammad Shabbir Rajput for Petitioner (in C.P. No.1011 of 2017).

Wali Khan Nasir for Petitioner (in C.P. No.1012 of 2017).

Arbab Muhammad Tahir for Petitioner (in C.P. No.1017 of 2017).

Riaz Akhtar Tareen, Special Prosecutor, NAB for the State.

2018 M L D 841

[Shariat Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C.J.

Mst. RAFIA RAZZAQ and another---Petitioners

Versus

The STATE through Additional Advocate General, Muzaffarabad and 3 others---Respondents

Criminal Misc. Petition No.136 of 2017, decided on 2nd February, 2018.

Criminal Procedure Code (V of 1898)---

----S.561-A---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985, Ss.10, 11, 16 & 19---Quashing of FIR---Scope---Powers and jurisdiction---Scope---Applicants contented that they were legally married and were being subjected to harassment by police---Shariat Court (AJ&K) had inherent powers under S. 561-A, Cr.P.C. to exercise the same at any stage to do complete justice---Shariat Court (AJ&K) ordinarily, would not interfere in the investigation of criminal case; however, if the court came to the conclusion that accused persons were innocent and his/her conviction was impossible then the Court would quash such proceedings---Consent of adult sane couple was sufficient for "nikah" in Islam--Applicants being sui juris were lawfully married to each other so, the offences alleged in FIR were not made out---Continuation of proceedings in circumstances against the applicants could amount to unnecessary harassment---Applicant/wife, in the present case, had categorically admitted her Nikah with the applicant/ husband so the Shariat Court (AJ&K) declared Nikah between the applicants a valid nikah and proceedings initiated against them through the impugned FIR was liable to be quashed---High Court quashed the impugned FIR against the applicants in the circumstances.

Mst. Kaneez Fatima and others v. The State and others 1995 PCr.LJ 1672; Allah Ditta and 3 others v. The State and 3 others 1995 PCr.LJ 1668 and Syed Azad Hussain Shah v. Syeda Saba Asghar and others Civil P.L.A. No.86 of 2012 ref.

Raja Sajjad Ahmad Khan for Petitioners.

Sardar Javaid Naz, Addl. A.G. for the State/Respondents Nos.1 to 3.

2018 M L D 1764

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C.J. and Ghulam Mustafa Mughal, J

KHANMA BI and 9 others---Appellants

Versus

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

Civil Appeal No.8 of 2018, decided on 24th April, 2018.

(On appeal from the Judgment and decree of the High Court dated 30.03.2017 in Civil Appeal No.400 of 2008)

Land Acquisition Act (I of 1894)---

----Ss. 18, 4, 23 & 24---Reference to court---Enhancement of compensation---Market value---Determination of---Procedure---Valuation table---Scope---Referee Judge enhanced compensation amount from Rs. 5,25,000/- per kanal to Rs. 6,25,000/- per kanal along with 15% compulsory acquisition charges---Validity---Valuation table prepared by the Collector Land Acquisition alone was not sufficient to determine market value of land unless other cogent evidence was not adduced by the parties---Sale deed through which small piece of land in the area had been transferred could not be made basis for enhancement of compensation---Landlord had failed to prove that the acquired land was situated in the same vicinity where the said piece of land was sold and alleged sale deed was executed---Compensation had already been enhanced by the Referee Judge---Further enhancement in the compensation on the basis of available evidence was not justified---Some part of the village where suit land had been acquired was of high potential value but it could not be said that the portion which had actually been acquired had the same commercial and potential value---Commercial and potential value of the land could vary for being located even at a distance of yards---Compensation could not be enhanced on the basis of surmises and conjectures---Appeal was dismissed in circumstances.

Sardar Muhammad Azam Khan, Advocate for Appellant.

Ch. Liaqat Afzal, Advocate for Respondents.