MLD 2019 Judgments

2019 M L D 162

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah, J

QUTIB---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.17/I of 2017, decided on 8th August, 2018.

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

----Ss. 324, 353 & 398---Offences against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(1)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, attempt to commit robbery or dacoity when armed with deadly weapon, haraabah--- Appreciation of evidence---Benefit of doubt---Prosecution case was that police received spy information that some offenders were present on a link road, in order to commit robbery---Police proceeded at the pointed place and had seen firing between culprits/accused and villagers---On interception of police, the culprits started firing upon the police---Encounter lasted for fifteen minutes and two culprits succumbed to firearm injuries at the spot and accused was apprehended in injured condition---Illicit weapons used by the dead and injured culprits were secured and FIRs were lodged---Ocular account of the occurrence had been furnished by three prosecution witnesses---Case neither fell within the ambit of S.17(1) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, nor S.398, P.P.C. was attracted in the peculiar facts and circumstances of the case---Record showed that eyewitnesses of the prosecution had not supported the prosecution version, narrated in the FIR---All three eye-witnesses who were examined, stated that inhabitants of the locality or any private person were not asked by the complainant or the Investigating Officer to act as a witness---Two accused were killed in the firing of villagers and accused sustained injuries at the hands of villagers but villagers did not participate to act as witness of the occurrence---Prosecution had failed to prove the ingredients of "attempt to commit robbery or dacoity" as no villager with whom the alleged encounter of the accused persons during robbery had taken place was examined---Prosecution failed to bring on record convincing evidence that the accused persons deterred the police party from discharging their duty, as neither single empty shell was secured from the place of occurrence nor the police party or their vehicle sustained any kind of injury or bullet mark---Ingredients of S.324, P.P.C. were not attracted in peculiar facts and circumstances of the present case---Record transpired that it was a day time incident, and the Investigating Officer had also seen the place of occurrence during noon time but neither the complainant (SHO) of the concerned police station nor the Investigating Officer examined any inhabitant of the locality or independent person to act as a witness, though they had spent sufficient time at the place of incident---Cross-examination of all three eyewitnesses reflected that the police conducted the investigation in a manner which created reasonable doubt, such as lodgement of FIR by not associating villagers, who allegedly had fought with the culprits/accused---By not associating any independent respectable inhabitant of the locality in order to ensure proper investigation at the time of preparation of memo. of recovery of incriminating fire-arm weapons and arrest during investigation of crime created plausible dent in the case of prosecution---Circumstances established that prosecution had failed to prove the charges against the accused 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 sentences recorded by the Trial Court.

(b) Criminal trial---

----Cross-examination---Scope---Cross-examination was the great legal engine invented for the discovery of truth---Opportunity to cross-examine contemplated by the law must be real, fair and reasonable as the cross-examination was not empty formality but a valuable right and best method for ascertaining the truth---Cross-examination was a weapon, which could be used for the purpose of testing the veracity of the statement made by the witness.

(c) Criminal trial---

----Benefit of doubt---Principle---Prosecution was duty bound to prove its case beyond the shadow of reasonable doubt---If any single or slightest doubt was created, benefit of same would go to the accused, regardless of fact whether accused had taken such plea or not.

Tariq Pervaiz v. The State 1995 SCMR 1345; Muhammad Akram's case 2009 SCMR 230 and Faryad Ali's case 2008 SCMR 1086 rel.

Siraj Ali Chandio for Appellant.

Ms. Rahat Ahsan, Additional Prosecutor General Sindh for the State.

2019 M L D 225

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

Syed SAJJAD HAIDER NAQVI and another---Petitioners

Versus

Mst. SADIA BIBI and 2 others---Respondents

Cr. P.S.L.A. No.1/I of 2018, decided on 15th November, 2018.

(a) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)---

----S. 7---Criminal Procedure Code (V of 1898), S.417(2-A)---Commission of offence of Qazf---Acquittal of accused---Appeal against acquittal---Special leave to appeal---Petitioners/complainants alleged that respondents had levelled allegations of zina against them, who were wedded couple, which caused mental torture/stress and agony to them---Respondents, in their statements alleged that petitioners/ complainants were continuing merital tie after execution of divorce deed---Said statements of the respondents were based on good faith, as after divorce deed spouses could not fulfil their matrimonial affairs as husband and wife---Under S.3 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, there must be specific allegations of "imputation of zina"---Petitioners had failed to prove the requisite ingredients of the "Offence of Qazf"---Statement of petitioner recorded during preliminary inquiry of the complaint case, had absolved the respondents of levelling allegations of adultery or zina---Statement by respondents during court proceedings that relations in between spouses/petitioners, after execution of divorce deed were against the principles of 'Shariah', by no stretch of imagination could constitute the offence of qazf---If the defence had taken a specific stance in their statements under S.342, Cr.P.C. even then it was duty of the prosecution to prove the entire case at their own strength---Even inconsistent pleas taken by accused would not give any benefit to the prosecution as it was settled duty of the prosecution to prove the guilt of accused beyond any shadow of reasonable doubt---Once reasonable doubt in the prosecution case was entertained its benefit must be extended to accused, not as a grace but as a right---Testimonies of all examined prosecution witnesses were full of contradictions with each other on material points---Trial Court rightly dismissed complaint of petitioners---Impugned judgment passed by Trial Court was speaking order after thrashing grain from chaff and correctly reached at the conclusion that the prosecution had failed to bring home the charge against the respondents beyond reasonable doubt---Impugned judgment did not call for interference; resultantly petition for leave to appeal was dismissed.

PLD 1997 FSC 5; 2015 PCr.LJ 305; PLD 2005 Kar. 344 and Sayyadah Ayshah (R.A.) reported that Allah's Messenger (Peace Be Upon Him) said ref.

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

----S. 417(2-A)---Appeal against acquittal---Scope---Scope of appeal against acquittal was considerably limited---Impugned judgment passed by the Trial Court being based on correct appreciation of evidence, would not warrant interference in appeal as accused earned double presumption of innocence with the acquittal.

Qazi Shams-ud-Din and Saeed Ahmad Awan for Petitioners.

Saeed Ahmed Shah for Respondents.

Walayat Khan, Assistant Advocate General, KPK for the State.

2019 M L D 1094

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah, J

AHMED ALI and another---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 15/K and 16/K of 2018, decided on 4th February, 2019.

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

----Ss. 392 & 34 ---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Robbery, common intention, haraabah---Appreciation of evidence---Benefit of doubt---Accused were charged with the offence that they had forcibly snatched motorcycle on gun point from the complainant when he was plying the said motorcycle and witness was sitting on rear seat---Ocular account was furnished by two witnesses including complainant---Complainant had alleged that he had identified the accused by name at the time of commission of robbery---Such fact was not disclosed during investigation, conducted about 14 days prior to registration of crime report---Complainant had admitted in cross-examination that the accused were not known to him prior to the incident---Identification of the accused, after their arrest, by the complainant and prosecution witness in the presence of Magistrate was necessary, as no legal sanctity was attached to the identification of the accused before the Trial Court---Statement of witness under S.161, Cr.P.C. was recorded after about nineteen days of the incident---Complainant had alleged that the incident had taken place near weighbridge whereas witness had stated that the place of incident was situated near a colony---Three miles distance existed in between colony and weighbridge---Complainant had stated in cross-examination that he informed the police on telephone number 15, whereas witness had contradicted the version of the complainant and stated that the father of the complainant informed police on telephone number 15---Witness had further stated in cross-examination that the name of the accused was disclosed to them by the police---Circumstances proved that the complainant did not know the accused persons prior to the incident and the concerned police informed the names of the accused persons to the complainant party---Investigation did not reflect any sufficient cause or plausible reason of not making the recovery of incriminating article (robbed motorcycle) including crime weapon from the accused persons---Father of the complainant being owner of alleged robbed motorcycle and his participation in investigation just after 15 minutes of the incident was very material to be a prosecution witness, but he was not examined by the prosecution---Said circumstances of the case created doubts in a reasonable and prudent mind about guilt of the accused persons, therefore, they were entitled to such benefit not as a matter of grace but as a matter of right---Appeal was allowed and accused were acquitted, in circumstances, by setting aside the impugned judgment.

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

----Ss. 392 & 34 ---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Robbery, common intention, haraabah---Appreciation of evidence---Delay of about fourteen days in lodging the FIR---Effect---Record showed that occurrence took place on 6.10.2005 while FIR was registered on 20.10.2005---Police conducted investigation for about fourteen days prior to registration of the FIR, without showing any plausible explanation and sufficient cause of such inordinate delay---Consultation and deliberation in lodging the FIR could not be brushed aside, in circumstances.

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

----Art. 22---Identification during trial---Scope---Identification during the proceedings of trial was not a substitute of identification test before the Magistrate.

Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 and Gulfam and another v. The State 2017 SCMR 1189 rel.

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

----S.154---First Information Report---Investigation by police in cognizable offence without registering case was against the canon of law.

Iftikhar Hussain and others v. The State 2004 SCMR 1185; Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; Mst. Shehnaz alias Asma alias Rani and another v. The State 2010 PCr.LJ 231 and Ghulam Qadir v. The State and another 2002 PCr.LJ 2007 rel.

Khadim Hussain Khooraho, Additional Prosecutor General, Sindh for the State.

2019 M L D 1466

[Federal Shariat Court]

Before Mehmood Maqbool Bajwa and Shaukat Ali Rakhshani, JJ

TABASSAM ZIA---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 65-L of 2007, decided on 12th March, 2019.

Penal Code (XLV of 1860)---

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12---Sodomy, kidnapping or abducting in order to subject person to unnatural lust---Appreciation of evidence---Quantum of sentence awarded to the respondent while recording conviction under S. 377, P.P.C. had been challenged by the complainant---Validity---Record showed that the convict and acquitted accused were real brothers---Respondent as per his statement under S. 342, Cr.P.C. was approximately 42-43 years of age at the time of making statement, while acquitted accused was 30 years old---Both were mature and it did not appeal to the reason that a younger brother having sufficient maturity would be an instrument to facilitate the commission of such like offence---Accused-respondent admittedly did not prefer appeal against his conviction---Accused-respondent had served out his whole sentence---Enhancement of sentence at that stage, which for the reasons recorded would not be justifiable, would be un-fair and unjust---Even otherwise, sentence awarded to the respondent was justified commensurating with the nature of offence committed---Petition was dismissed, in circumstances.

Ch. Fayyaz Hussain Dhariwal for Petitioner.

Saeed Ahmad Shaikh, Addl. Prosecutor General, Punjab for the State (Respondent No.1).

Malik Hamid Hussain Awan for Respondent No.2.

2019 M L D 1910

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

GHULAM YAHYA---Appellant

Versus

ASIF KHAN alias KAKU and 3 others---Respondents

Criminal Appeal No.82/P of 2003, decided on 2nd April, 2019.

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

----S. 17(4)---Haraabah----Appreciation of evidence---Appeal against acquittal---Prosecution case was that respondents/accused persons committed murder of the deceased/son of the complainant and snatched Rs. 2,55,000/----Record reflected that the complainant had involved the accused persons through his supplementary statement, without disclosing any source of information---Complainant had clarified in cross-examination that the person who informed him regarding the occurrence was an unknown boy and police reached at the spot after thirty minutes of his arrival at the place of occurrence---Complainant had not mentioned in his report nor informed the Police Officials that the deceased had an amount of Rs. 2,55,000/----Similarly he had not stated in his report that he was informed by unknown boy at his house regarding the occurrence---Investigating Officer had admitted that he did not collect any ocular evidence during the investigation---Judicial Magistrate, who recorded the confessional statement of co-accused under Ss. 164/364, Cr.P.C., had admitted in his cross-examination non-mentioning the name of Police Official, who brought the accused for recording his confessional statement---Findings recorded by the Trial Court were neither perverse, illegal, leading to miscarriage of justice nor artificial or suffered from jurisdictional defects---Order of the acquittal was based on proper appreciation of evidence---Appeal was dismissed accordingly.

(b) Criminal trial---

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

(c) Criminal trial---

----Two views---If two views were possible, view in favour of accused had to be given preference.

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

----S. 417---Appeal against acquittal---Scope---Appellate jurisdiction under S. 417, Cr.P.C., could be exercised by the court if gross injustice had been done in the administration of criminal justice.

Muhammad Eisa Khan for Appellant.

Walayat Khan, Assistant Advocate General, KPK the State.

2019 M L D 1966

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

JUMO and 4 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.11-K of 2015, decided on 23rd April, 2019.

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

----Ss. 302, 324, 147, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), S. 17(3)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, haraabah---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party made firing upon the complainant party, due to which two of their persons died and one was injured---Culprits took away licensed pistol, cash amounting to Rs. 100,000/- and two mobile sets from uncle of the complainant---Motive of the occurrence was that in the year, 1992 an encounter took place between the police and the dacoits, wherein two dacoits were murdered---One of the appellants had blamed and held responsible the complainant party for such incident---Deposition of the complainant, eye-witness and injured were not confidence inspiring---Complainant, obviously had enough time in hospital, when he met Police Officer/witness to make statement about the occurrence and nominated the culprits, but he did not do so at the earliest---Eye-witness/brother of complainant, who had not been produced without any cogent reason, had informed the contingent of police station on phone, about the occurrence, also did not name the accused-appellants---Nomination of the accused-appellants after six hours did culminate in grave suspicion, leading to deliberation and consultation---Witness had stated not to be sure that from which hospital he was discharged---Complainant, eye-witness and other witness (not produced) had stated to have witnessed the occurrence from a distance of 40/50 paces, not too far from the place where the deceased persons were done to death and looted---Said witnesses had furnished a detail account of firing made by accused-appellants, receipt of the injuries by the deceased persons as well as by the injured but no attempt was made to rescue them---Complainant had testified that after the occurrence injured told them that the culprits had taken away the motorcycle, a licensed pistol and two mobile sets of his father but when injured appeared in court, he did not utter a single word with regard to the fact that the culprits took away the aforementioned articles---If complainant had witnessed the occurrence then as to why he stated that injured told him regarding taking away of the said articles by the culprits, raising questions with regard to his presence on the crime scene---During investigation on the basis of insufficient evidence one of the culprits who had allegedly made direct firing was let free for being innocent---Complainant party did not challenge his release or findings of innocence recorded by the Investigating Officer at any forum, albeit eye-witness in cross-examination voluntarily stated that since accused had brought "Quran", therefore, they had forgiven him in the name of Allah---Accused was specifically nominated and attributed role of firing by the eye-witnesses and injured then how come on the basis of false oath in the name of Allah his plea was accepted, when the witnesses had seen him committing the crime as charged---Furthermore, the eye -witnesses of the occurrence had deposed that the accused-appellants encircled them all and after alighting the deceased from the motorcycle made direct firing upon the deceased persons and injured---None of them including brother of complainant (not produced) received a slightest harm in the occurrence, making the entire story and their presence doubtful because it was absolutely against human conduct not to harm the prosecution witnesses and let them go to subsequently become witnesses against them in the court of law---Unexplained delay in recording the statements of eye-witness and injured under S. 161, Cr.P.C. had diminished the evidentiary value of their deposition---Un-injured prosecution witnesses had failed to justify their presence on the crime scene---Witnesses had even failed to give the details of the motorcycle of the culprits, deceased and of their own---Undeniably, culprits were not on visiting terms with the eye-witnesses including injured---Occurrence lasted more or less for five minutes and that too when indiscriminate firing was made by the perpetrators as such identification of the accused-appellants in such a situation also raised suspicion upon the probability of the ocular account furnished by them---Moreover, there were material contradictions in the statements of eye-witnesses and injured with regard to arrangement of pickup and shifting of the dead bodies and the injured to the hospital---Neither the driver of the Pickup nor the passengers holding aboard were associated as witnesses to prove the factum of presence of the eye-witnesses---Testimony of the eye-witnesses and injured was absolutely untrustworthy as they had manipulated and tailored the prosecution version---Prosecution had failed to prove its case beyond any shadow of doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the trial court, in circumstances.

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

----Ss. 302, 324, 147, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), S. 17(3)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, haraabah---Appreciation of evidence---Delay of about six hours in lodging FIR---Effect---Admittedly, there was delay of six hours in lodging the FIR with the explanation that after shifting the dead bodies to village for burial, complainant went to police station and lodged the FIR---First Information Report was required to be registered as soon as possible, delay diminished its evidentiary value---Explanation offered seemed natural to the extent of lodging FIR, had no adverse effect upon the case of prosecution.

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

----Ss. 302, 324, 147, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), S. 17(3)---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, haraabah---Appreciation of evidence---Delay in recording the statement of witnesses by police---Effect---Statement of eye-witness was recorded after two days---No explanation had been offered by said witnesses as well as the Investigating Officer---Eye-witness, admittedly had not received any injury and was available but despite being available his statement was not recorded---Injured witness had received a kissing wound by firearm on his chest and on the very next day he was discharged from the Hospital so there was again no reason for recording his statement with a delay of almost six days, inspite of the fact that the police had come for condolence---Said delay in recording the statement of witnesses was fatal to the prosecution case.

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

----Ss. 302, 324, 147, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), S. 17(3)---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, haraabah---Appreciation of evidence---Medical evidence---Post-mortem reports and the certificate of injuries could only be used as a confirmatory evidence with regard to kind of weapon, duration and angle of injuries, but it could not be considered as an instrument of identifying and connecting the accused with the crime.

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

----Ss. 302, 324, 147, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), S. 17(3)---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, haraabah---Appreciation of evidence---Motive---Scope---Motive alleged by the complainant party had not been substantially proved through any documentary or any other independent corroborative evidence---Motive itself was not proof of a crime rather a cause of a crime, which needed to be proved through coherent and tangible evidence---Prosecution had failed to establish the crime therefore, motive itself lost its worth.

(f) Criminal trial---

----Benefit of doubt---Principle---For the purpose of extending benefit of doubt to the accused more than one infirmity was not required rather a single doubt was enough to extend such benefit not as a matter of grace and concession but as a matter of right.

Aijaz Shaikh for Appellants.

Zafar Ahmad Khan, Additional Proseutor General Sindh for the State.

2019 M L D 27

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

NASEERULLAH---Petitioner

Versus

PROVINCIAL GOVERNMENT through Chief Secretary Gilgit-Balistan, Gilgit and 5 others---Respondents

Civil Revisin No.40 of 2018, decided on 20th August, 2018.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Suit for declaration and permanent injunction---Temporary injunction, grant of---Scope---Plaintiff claimed that he was awarded contract of improvement and widening of road---Defendant authorities, after completion of work, did not take over possession of the road and his deposit made with the authorities was not returned---Validity---Neither any copy of written agreement regarding award of contract had been annexed with the plaint nor any other document in the name of plaintiff was available on record---Plaintiff had failed to demonstrate prima facie arguable case, balance of convenience was also not in his favour and he would not suffer irreparable loss if temporary injunction was not granted---Revision petition, being devoid of merits, was dismissed.

Naseem Akhtar for Petitioner.

Addl. Advocate General/Dy. A.G. (Civil) for Respondents.

Raja Shakeel Ahmed for Respondents Nos. 4 to 6.

2019 M L D 54

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

JANAT WALI and another---Petitioners

Versus

The STATE---Respondent

Criminal Revision No. 26 of 2018, decided on 3rd September, 2018.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of bond---Surety, responsibility of---Scope---Petitioners/sureties contended that they along with the accused came to appear before the Trial Court but the Police arrested and produced them before the Trial Court who wrongly committed them to judicial lock-up---Validity---Record revealed that when the accused did not appear before the Trial Court; his bail facility was cancelled /recalled by the Trial Court---Notice under S.514, Cr.P.C. was issued to the petitioners and the case was adjourned for the next month---Petitioners and the accused again remained absent and the Trial Court forfeited the surety amount of petitioners without obtaining reply to the notice under S.514, Cr.P.C.---Petitioners appeared on the next date of hearing before the Trial Court, but were arrested---Trial Court had committed the petitioners to judicial lock-up in a hasty manner and without following the laid down procedure---Purpose of standing surety of the accused was the production of the accused for whom surety was given---When the accused had appeared before the Trial Court, the liability of the surety was over and the matter rested between the Trial Court and the accused---Trial Court ought to have expunged/recalled its previous order as the accused was committed to judicial lock-up and responsibility of the sureties ended---No valid ground was available to the Trial Court to commit the petitioners to judicial lock-up after appearance of the accused in the Court--High Court set aside impugned orders passed by the Trial Court to the extent of the petitioners/sureties---Revision petition was allowed accordingly.

Raja Zia ur Rehman for Petitioners.

Dy. Advocate General for the Respondent/State.

2019 M L D 92

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam and Wazir Shakeel Ahmed, JJ

FAZAL REHMAN---Petitioner

Versus

SECRETARY DEFENCE, MINISTRY OF DEFENCE, ISLAMABAD and 13 others---Respondents

Writ Petition No.144 of 2014, decided on 17th August, 2016.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 1(3)---Two suits with regard to same cause of action---Withdrawal of one suit---Effect---Estoppel---Scope---Trial Court conducted proceedings in two suits with regard to same cause of action and thereafter allowed plaintiff to withdraw one suit---Defendant moved application that withdrawal of suit would operate as estoppel---Trial Court dismissed the said application but Appellate Court accepted the same---Validity---Impugned order was result of mistake on the part of Trial Court---Trial Court could either consolidate the two suits or continue proceedings on one of the two suits staying proceedings on the other---Impugned order passed by the Trial Court was set aside by the Chief Court with direction to continue with the trial proceedings on either of the two suits pending trial on the other, till result of trial of one of the suits---Trial Court would be free to add any party to the case to either of the two suits if found necessary---Writ petition was allowed in circumstances.

Shafqat Wali for Petitioner.

Mohammad Shafi for Respondents Nos.1 to 4.

2019 M L D 125

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SHER AWAN and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No.02 of 2017 in Criminal Appeal No.21 of 2015, decided on 4th January, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 426 & 345(2)---Penal Code (XLV of 1860), Ss. 302, 324, 337-A, 114 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, hurt, abettor present when offence committed, common intention---Bail, grant of---Suspension of sentence on basis of compromise---Accused was convicted by Trial Court but a valid and genuine compromise had been effected between the parties and statements of legal heirs/victims of the occurrence had been separately recorded and placed on the file---Offences of murder and hurt were compoundable by virtue of S.345(2), Cr.P.C. and there was no legal hitch to accept the compromise---Court was to give effect to a compromise so as to encourage the parties who effected compromise only to maintain peace, tranquility and harmony in the area in general and between effected parties in particular---Bail was granted accordingly.

Munir Ahmad and Imtiaz Hussain for Petitioners.

Burhan Afandi, A.A.G. on Court Notice.

2019 M L D 191

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

GULAB KHAN---Petitioner

Versus

ABDULLAH KHAN and others---Respondents

Criminal Miscellaneous No.167 of 2016, decided on 8th December, 2016.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 395 & 291---Police Rules, 1934, R. 24.7---Dacoity, continuance of nuisance after injunction to discontinue---Application under S.561-A, Cr.P.C. for quashmant of order of Magistrate---First Information Report was initially registered under Ss.395 & 291, Penal Code, 1860 and after completion of necessary investigation the case was sent for trial which was onward submitted by Judicial Magistrate to the Court of Session who returned the same to the Judicial Magistrate for trial under S.379 Penal Code, 1860---Magistrate cancelled the FIR under R.24.7, Police Rules, 1934---Validity---Case was sent back to the Judicial Magistrate without any legal justification and Judicial Magistrate without any sanction of law cancelled the FIR under R. 24.7, Police Rules, 1934 which was illegal and unwarranted---Orders of the Judicial Magistrate and Court of Session were set aside by invoking inherent jurisdiction under S.561-A, Cr.P.C. as from the statements of prosecution witnesses recorded under S.161, Cr.P.C. a prima facie case was made out---Case was sent back to Court of Session for trial---Application for quashment was allowed accordingly.

Shah Faisal Khan for Petitioner.

Arif Nazir for Respondent.

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

2019 M L D 304

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

Mst. MAZAGI and 3 others---Petitioners

Versus

Mst. ASHRAF BIBI and 2 others---Respondents

Civil Revision No.67 of 2016, decided on 9th December, 2016.

Specific Relief Act (I of 1877)---

----S.42---Suit for declaration---Inheritance---Will---Proof---Contention of defendants was that they were in possession on the part of suit land on the basis of a Will---Validity---Defendants were bound to prove a valid Will---Material contradictions were on record in the statements of witnesses produced by the defendants---Plaintiffs were entitled to their shari share in the suit property---Suit property was subject to partition between all the legal heirs of the deceased---Suit was decreed accordingly. in favour of plaintiffs---Revision was allowed in circumstances.

Shahzada Alam and Islam-ud-Din for Petitioners.

Basharat Ali and Abdul Khaliq for Respondents Nos.1 and 2.

2019 M L D 348

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

MIR GHULAM---Petitioner

Versus

The STATE---Respondent

Criminal Revision No.07 of 2017, decided on 4th May, 2017.

(a) Juvenile Justice System Ordinance (XXII of 2000)---

----S. 7---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Age of accused, determination of---On joint request of parties, petitioner was referred to Hospital for assessment of age---Medical Board was constituted and board assessed the age of petitioner above 19 years---Petitioner contended that he was minor as per his matriculation certificate and the findings of the Board were against the facts---Validity---Section 7 of Juvenile Justice System Ordinance, 2000, provided the mechanism of assessment of age of accused to the effect that if a question arose as to whether an accused before the court was a child for the purpose of the Juvenile Justice System Ordinance, 2000 then the court would record a finding after such inquiry which would include a medical report for determination of age of the child---Record showed that petitioner was referred to a Medical Board with consent of both the parties for the assessment of his age---Medical Board assessed the age of accused as 19 years---On receipt of opinion of Medical Board, petitioner produced matriculation certificate showing his age less than 18 years---Matriculation certificate was not conclusive proof of age---Petitioner challenged the order of Trial Court belatedly---No application for condonation of delay was filed---Trial Court had passed order after due application of mind, thus revision petition was dismissed.

2002 SCMR 629; 2002 PCr.LJ 2034 and 2002 PCr.LJ 633 ref.

(b) Juvenile Justice System Ordinance (XXII of 2000)---

----S.7---Age, determination of---Principle---Report of Medical Board---Scope---School leaving certificate and Form "B" would not have any preference over the report of Medical Board.

Raja Zia-ur-Rehman for Petitioner.

Dy. Advocate General for the State.

2019 M L D 365

[Gilgit-Baltistan Chief Court]

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

SAIFULLAH---Appellant

Versus

MALIKAN BOTOKHAIL through Representatives and others---Respondents

C.F.A. No.7 of 2017, decided on 4th April, 2017.

Land Acquisition Act (I of 1894)---

----S. 18---Reference to Court---Compensation amount, payment of---Reference was sub judice before the Reference Court wherein amount of compensation fixed was disputed between the parties---Reference Court was yet to determine as to whether amount of compensation fixed was correct or not---Landowner, who had already received the amount of compensation, was directed by the Chief Court to deposit the said amount in the account of Reference Court who failed to comply with the order of Chief Court nor filed any appeal against the order before the Supreme Appellate Court---Proceedings before the Chief Court, in appeal, could not continue unless the landowner complied with the order of the Chief Court---Appeal of landowner was based on mala fide and was frivolous, he was using delaying tactics---Reference Judge was directed to use coercive steps for enforcing the order of Chief Court for deposit of amount received by the landowner---Appeal was dismissed in circumstances.

Shahid Abbas Junior to Counsel for Appellant.

Johar Ali for Respondents Nos.1-12.

Additional Advocate General for Respondent No.13.

2019 M L D 501

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

NASEEM ULLAH and 2 others---Petitioners

Versus

The STATE and another---Respondents

Cr. Misc. No.17 of 2017, decided on 24th March, 2017.

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

----S.561-A---Penal Code (XLV of 1860), Ss. 365-A, 365-B & 494---Kidnapping or abducting for extorting property, valueable security etc., kidnapping, abducting or inducing woman to compel for marriage, marrying again during life time of husband or wife---Application for quashing of FIR---Alleged abductee left the house of her husband leaving behind two minor children and performed nikah (marriage) with accused while her prior marriage subsisted---Divergent statements of alleged abductee were on record---Court while carrying out summary proceedings under S. 561-A, Cr.P.C. could not decide the factual controversies involved in complicated cases which could only be resolved by the respective parties before competent Court of law after adducing pro and contra evidence---Such unwarranted act of accused could not be blessed on the grounds that there had been some technical defects in the orders passed by a competent Court---Little deviation from the procedure was permissible provided the object of the Court was to achieve the ends of justice, and no prejudice was caused to either party---Application filed under S. 561-A, Cr.P.C. for quashing of FIR was dismissed accordingly.

(b) Criminal trial---

----Minor deviation from procedure---Scope---Little deviation from the procedure was permissible provided the object of the Court was to achieve the ends of justice, and no prejudice was caused to either party.

2016 PCr.LJ 1918 rel.

Raja Shakeel Ahmad and Arif Nazir for Petitioners.

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

2019 M L D 531

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel, C.J. and Ali Baig, J

The STATE through District Public Prosecution and another---Appellants

Versus

IMRAN-UL-HAQ and 3 others---Respondents

Cr. Appeal No.6 of 2014, decided on 13th September, 2018.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Prosecution case was that paternal uncle of complainant was done to death by unknown culprits---Accused persons were involved on the basis of suspicion---Motive was stated to be that about 7/8 months prior to the occurrence, one person belonging to the family of complainant party had allegedly abducted/eloped sister of co-accused and it was alleged that the deceased had abetted/facilitated by writing the amulet---Accused persons were acquitted after trial---Validity---Record transpired that prosecution had cited total fifteen witnesses, out of which only nine witnesses were examined/produced in the Trial Court and remaining were abandoned by the prosecution---Record showed that said witnesses had not attributed specific role to the accused persons---Said witnesses had not witnessed the accused persons while opening fire shot at the deceased---Five witnesses were close relatives of the deceased as admitted by them in their cross examination---Weapon of offence was allegedly recovered on the joint pointation of the accused persons---Recovered .30-bore pistol and empty shells were not sent to Arms Expert for analysis---Three witnesses had seen the accused persons near the place of occurrence---Occurrence was unseen and no identification parade was held---No evidence was produced by the prosecution to connect the accused persons with the commission of alleged offence---Prosecution had failed to point out any material misreading, non-reading of evidence, illegality or irregularity in the impugned judgment, which warranted interference---Circumstances established that prosecution had failed to prove its case against the accused persons beyond any reasonable doubt---Appeal against acquittal was dismissed being devoid of merit.

Deputy Advocate General for the State/Appellant.

Amjad Husain for Respondents.

2019 M L D 570

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmad and Malik Haq Nawaz, JJ

MUHAMMAD QAYUM KHAN and others---Petitioners

Versus

The STATE---Respondent

Cr. Misc. Nos.160, 213, 214, 215, 216 of 2016 and 28 of 2017, decided on 4th April, 2017.

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

----S. 497---Penal Code (XLV of 1860), Ss. 120-B, 123-A, 124-A & 153-B---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Pakistan Arms Ordinance (XX of 1965), S. 13---Criminal conspiracy, condemnation of the creation of the State and advocacy of abolition of its sovereignty, sedition, inducing students, etc. to take part in political activity, act of terrorism, possessing unlicensed weapons---Bail, refusal of---Allegation against the accused-petitioners was that they were members of anti-State organization, got subversive books/material containing anti-State and hatred material against the State and integrity of the country---Material collected during investigation, prima facie suggested that accused-petitioners were active members of an anti-state organization---In order to constitute a prima facie case against them, it was not necessary as to what part had been played by each of them and who was the principal offender and who was offender of lesser degree---Determination of degree of offence would tantamount to prejudice their case at that stage, when their trial had yet to take place---No ill-will or malice was attributed by the accused-petitioners against the Investigating Agencies---Act of the accused-petitioners fell within the definition of FITNA, which had been termed graver offence than murder---Accused-petitioners advertently wanted to crucify the interest of State at the altar of personal gains and did not deserve any concession---Bail petitions were dismissed in circumstances.

PLD 1969 Lah. 209 rel.

(b) Interpretation of statutes---

----General and special law---Inconsistency---Applicability and scope---Special law would prevail in case of inconsistency between the general and the special law.

Muhammad Kumail for Petitioner (in Cr. Misc. No.160 of 2016).

Dy. Advocate General for the State (in Cr. Misc. Nos.160, 213 to 216 of 2016 and 28 of 2017).

Amjad Hussain for Petitioner (in Cr. Misc. Nos.213 to 216 of 2016).

Burhan Wali for Petitioner (in Cr. Misc. No.28 of 2017).

2019 M L D 718

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

MUHAMMAD GHANI---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.64 of 2017, decided on 18th May, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.365-B & 34---Kidnapping, abducting or inducing woman to compel her for marriage---Common intention---Bail, grant of---Further inquiry---Plea of alibi was not raised by accused in his bail application before the Trial Court, but was raised for the first time before the Chief Court---No such embargo existed to argue a ground before Chief Court, if same was not taken in the bail application, but any such ground which had a material bearing on the fate of the case, if was waived and not raised before the Trial Court, appellate court could ignore the same---Plea of alibi could not be entertained and same could be agitated before the Trial Court, if so needed---Allegations of abduction were attributed to one of the co-accused, who though was real brother of accused, but question of involvement of accused was one of further inquiry, and no useful purpose would be served by keeping accused in jail as his co-accused were at large---No allegation was on record that it was the accused who kidnapped or abducted alleged abductee with intent to compel her for marriage to a person against her will---Statement of alleged abductee under S.161, Cr.P.C. was recorded after a period of 3 months, without any reason for such a long delay---Alleged abductee in her said statement had not raised any incriminating allegation against accused---Case of accused had become one of further inquiry---Accused was admitted to bail, in circumstances.

1998 PCr.LJ 196 and PLD 2008 SC 376 ref.

Burhan Wali and Usman Ghani for Petitioner.

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

2019 M L D 729

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SAIF-UR-REHMAN alias SHOYA---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 79 of 2017, decided on 22nd June, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324 & 34---Attempt to commit qatl-i-amd, common intention---Bail, grant of---Further inquiry---Complainant who claimed to be an eye-witness his presence was established as he was allegedly injured at place of occurrence---Co-accused and one other accused who were attributed effective firing on the person of the complainant had been released by the Police under S.169, Cr.P.C., due to insufficient evidence---Stamp of injuries on the person of a witness could establish his presence at the spot; but whatever he stated regarding the occurrence, could not be accepted as a whole truth---Release of co-accused, would create a serious doubt about the authenticity of version of the complainant, which would be thrashed at the time of trial after recording of some evidence---Narration of occurrence by the complainant, where he had told half the truth, case would become as one of further inquiry, he was admitted to bail, in circumstances.

2001 PCr.LJ 80; 1999 PCr.LJ 810; 2008 SCMR 173 and 2002 SCMR 1412 ref.

Naseem Akhtar Mian and Muazaffar-ur-Din for Petitioner.

Sarfraz, Dy. Advocate-General for the State.

2019 M L D 786

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

DIN ULLAH and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous Nos. 71 and 73 of 2017, decided on 25th May, 2017.

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

----S. 365-B---Kidnapping, abducting or inducing woman to compel her for marriage---Offence---Essential ingredients---For constituting the offence under S.365-B, P.P.C., two essential ingredients must be fulfilled i.e. firstly, removal of a woman from one place to another place, and secondly, the object behind such removal should be to compel her to marry against her will or that she would be seduced to sexual intercourse against her will.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 365-B & 376---Kidnapping, abducting or inducing woman to compel her for marriage---Rape---Bail, grant of---Further inquiry---Major portion of the prosecution story was falsified from the conduct of the alleged abductee, who with her free will and implied consent accompanied accused persons and co-accused and neither raised any alarm or resisted, when the principal accused booked a room of a hotel and allegedly committed zina with her against her will---From tentative assessment of the material collected during investigation, it could safely be gathered that alleged abductee was a consenting and willing party to whole the affair---Case of accused persons was distinguishable from the case of co-accused, against whom there were serious allegation of commission of zina, and their case would be dealt with according to its own merits---Culpability of accused persons required further inquiry and their case for grant of bail had been made out---Person would be presumed to be innocent till proven guilty---Fundamental Right of a person to enjoy life and liberty could only be curtailed, save in accordance with law---One could not be kept in detention as a matter of advance punishment---Accused persons were admitted to bail, in circumstances.

2012 SCMR 647; 2009 PCr.LJ 312 and 2008 PCr.LJ 1082 ref.

Malik Kefiayat-ur-Rehman for Petitioner (in Crl. Misc. No.71 of 2017).

Shebaz Ali for Petitioner (in Crl. Misc. No.73 of 2017).

Additional Advocate General for the State (in Crl. Misc. Nos.71 and 73 of 2017).

2019 M L D 808

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

The STATE---Appellant

Versus

SHABRANG---Respondent

Criminal Appeal No. 19 of 2017, decided on 9th May, 2017.

Penal Code (XLV of 1860)---

----S. 457---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.9 & 14---Criminal Procedure Code (V of 1898), S.417---Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, theft liable to 'Hadd' and 'Tazir'---Appeal against acquittal---Appreciation of evidence---Jirga was convened to settle the matter out of court and accused deposited amount in question in the State Treasury---Main contention of the Deputy Advocate General was that deposit of such heavy amount by accused persons was a proof of their guilt and they should be convicted accordingly and deposit of money should be considered as an implied extra-judicial confession---Validity---Compromise entered by the parties by no stretch of imagination could be taken as an incriminating piece of evidence/circumstance against accused, nor same could be termed as implied extra judicial confession---Sometimes the parties though innocent, effect compromise to avoid the rigors of long and protracted trial---Accused persons in the present case had suffered the agonies of long/protracted trial for over 7 years---Material contradictions existed in the statements of prosecution witnesses, which were duly considered and an appropriate judgment had been passed by the Trial Court, which did not merit interference by the Chief Court---Prosecution had failed to point out any legal flaw in the impugned judgment---Appeal was dismissed.

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

2019 M L D 916

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

ZAIGUM ABBAS through real paternal uncle and another---Petitioners

Versus

GOVERNMENT OF GILGIT-BALTISTAN through Chief Secretary, Gilgit Baltistan and 4 others---Respondents

Writ Petition No.215 and Implementation No.291 of 2018, decided on 3rd December, 2018.

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

----Art. 71 (2)---Writ petition---Educational institution---Admission in MBBS Programme against reserved quota of disabled persons---Scope---Contention of petitioner was that respondent had obtained less marks from the petitioner and he was not entitled for nomination in MBBS Programme against reserved quota of disabled persons---Validity---Respondent was disabled as his eye was blind---Chief Court had already allowed writ petition of respondent with the direction to consider him for nomination in the next academic year i.e. this year on disabled quota---Authorities, in compliance of said order, had allocated/reserved one seat of MBBS for the respondent out of total 43 reserved seats of MBBS---Respondent was entitled to be nominated against one seat of MBBS reserved for the disabled persons, in circumstances---Present petitioner could not be considered against the one seat of MBBS meant for disabled persons regarding which judgment had already been passed---Authorities were directed to consider the case for nomination of present petitioner on merit in the next academic year on disabled quota in accordance with their nomination policy/rules---Authorities were directed to nominate respondent against the reserved seat of MBBS meant for disabled person for the academic year 2018---Writ petition filed by the petitioner was disposed of accordingly.

Muhammad Saleem, Masood and Shahbaz Ali for Petitioners.

Assistant Advocate General assisted by Basharat Ali and Muzaffar Ali, Legal Advisors for Respondents.

Nisar Ahmed D.D., Legal Affairs for Education Department.

Jamsheed Khan D.D., Nomination for Education Department.

Date of hearing: 12th November, 2018.

2019 M L D 946

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, C.J. and Ali Baig, J

ABDUL GHAFFAR---Petitioner

Versus

The STATE through FIA Gilgit---Respondent

Criminal Miscellaneous Bail Application No.203 of 2018, decided on 14th December, 2018.

Criminal Procedure Code (V of 1890)---

----S. 497---Prevention of Corruption Act (II of 1947), S. 5(2)---Penal Code (XLV of 1860), S. 409---Criminal breach of trust by public servant or by banker or merchant or agent etc, public servant committed or attempted to commit criminal misconduct---Bail, refusal of---Petitioner, in-charge cash (head cashier of a branch of Bank), allegedly indented/made formal request to Main Branch to collect required cash from the said branch, but instead of using the security vehicle of the security company, he himself collected the cash---Subsequently, Branch Manager (complainant ) found shortage of amount to the tune of Rs.28,700,000/=---Petitioner contended that allegations against him were of financial corruption/obligation which would be thrashed out after conclusion of trial---Complainant/Branch Manager contended that the petitioner had embezzled a huge amount---Validity---Petitioner was directly charged in the FIR with specific role of embezzlement of a huge amount---Federal Investigation Agency authorities had recovered from the petitioner Rs. 1,13,97,000/= out of total embezzled amount of Rs.2,87,00,00/=, therefore, prima facie, reasonable grounds existed to believe that the petitioner was involved in the offence punishable with imprisonment for life or for an imprisonment which could be extended to 10 years---Offence fell within the ambit of prohibitory Cl. of S.497, Cr.P.C---Record revealed that the petitioner, while making admission, submitted his affidavit/ undertaking to return the misappropriated amount but he had failed to return the whole said embezzled amount---Petitioner had failed to make out a case for grant of bail as he, being public servant, had committed an offence of criminal breach of trust which amounted to moral turpitude---Bail was refused to the petitioner, in circumstances.

Amjad Hussain for Petitioner.

Dy. Attorney General assisted by Syed Dildar Hussain Shah for Respondent.

Date of hearing: 6th December, 2018.

2019 M L D 999

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

ALI DAD---Petitioner

Versus

MUHAMMAD HUSSAIN and 8 others---Respondents

C. Rev. 55 of 2018, decided on 17th October, 2018.

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

----Art. 163---Oaths Act (X of 1873), Ss. 9 & 10---Acceptance or denial of claim on oath---Administration of oath, acceptance of---Scope---Plaintiff, during pendency of appeal, filed application offering defendant to take oath in rebuttal of his claim---Defendant contested the application by filing its reply---Appellate Court dismissed the application of plaintiff---Validity---Party could offer the oath to the other party, but the opposite party could either accept or reject such offer---Court could not compel/force defendant to take oath in rebuttal of plaintiff's claim without an agreement between the contesting parties for disposal of the dispute through special or general oath---Revision petition was dismissed, in circumstances.

PLD 2004 Pesh. 30 fol.

Latif Shah for Petitioner.

Johar Ali and Ghulam Nabi for Respondents Nos.1 to 7.

Additional Advocate General and Dy. A.G. (Civil) for Respondents Nos.8 and 9.

Date of hearing: 5th October, 2018.

2019 M L D 1034

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

SADDAM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 16 of 2018, decided on 10th December, 2018.

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

----Ss. 395 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Dacoity, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused along with his co-accused equipped with weapons broke into the check post with rope and looted official weapons and other articles on gunpoint---Record showed that none of the witness of the ocular account had stated a single word about the involvement of the accused nor identified him either in any identification parade or even in the trial court---Circumstantial evidence was also not worth reliance---No recovery had been effected on the pointation of the accused---Confessional statement of the accused was recorded by the Police Officer, which was not admissible in evidence---Circumstances established that no evidence worth reliance was available against the accused and all the evidence produced by the prosecution were defective---Appeal was accepted and accused was acquitted from the charges, in circumstances.

(b) Criminal trial---

----Abscondence---Scope---Abscondence of the accused could not rescue the prosecution when there was no other corroboratory evidence to connect the accused with the crime.

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

----Ss. 395 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 21-H---Criminal Procedure Code (V of 1898), S. 164---Dacoity, common intention, act of terrorism---Confessional statement of accused---Procedure---Accused must be produced before a Judicial Magistrate for recording his confessional statement---Statement under S.21-H of the Anti-Terrorism Act, 1997, howsoever transparent, could not be a substitute of confessional statement recorded under S.164, Cr.P.C.---Confessional statement recorded under S.21-H of the Anti-Terrorism Act, 1997 was always treated as suspected piece of evidence, until and unless it was shown by the prosecution that there were some compelling circumstances which were beyond the control of the Investigating Agency to produce the accused before a judicial Magistrate---No such compelling circumstances had been stated by the prosecution---Confessional statement of the accused recorded under S.21-H of Anti-Terrorism Act, 1997 was of no consequence, in circumstances.

Jahanzeb Khan for Appellant/convict.

Dy. Advocate General for the State.

2019 M L D 1070

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

Mst. ZAREENA BEGUM and another---Appellants

Versus

Haji FAQEER MUHAMMAD through L.R. and 3 others---Respondents

C.S.A. No.5 of 2017, decided on 10th September, 2018.

(a) Islamic Law---

----Gift---Essentials---Contention of plaintiffs was that they were entitled for the suit land gifted to them by their father---Suit was dismissed concurrently---Validity---Possession of suit land was not delivered to the plaintiffs during life time of their late father---Essential ingredients of gift were declaration of gift by the donor; acceptance of said gift by the donee and delivery of possession of subject matter by the donor to the donee---If said conditions were fulfilled then gift was complete---Plaintiffs, in the present case, had not accepted the gift and possession of gifted property had not been delivered to them by their father/donor in his life time---Alleged gift was not complete in accordance with law---Plaintiffs had filed the present suit after lapse of more than forty nine years which was time barred---Suit land had been gifted in favour of defendant and he had become owner of suit property during life time of his father---No illegality, irregularity or infirmity had been pointed out in the impugned judgments and decrees passed by the Courts below---Second appeal was dismissed in circumstances.

(b) Islamic Law---

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

Khalid Mehmood for Appellants.

Amjad Hussain for Respondents.

2019 M L D 1118

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

MUHAMMAD NASIR---Petitioner

Versus

STATE through National Accountability Bureau, Islamabad---Respondent

Writ Petition No.165 of 2018, decided on 22nd October, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9 & 16---Bail, grant of---Corruption and corrupt practices---Delay in conclusion of trial---Effect---Petitioner was arrested by National Accountability Bureau on 4-2-2016---Petitioner had filed writ petition in Chief Court for grant of bail, which was allowed vide order dated 28-6-2016---National Accountability Bureau filed criminal petition for leave to appeal in the Supreme Appellate Court, which was allowed and bail granted to petitioner was re-called vide order dated 8.11.2016---Supreme Appellate Court had directed the Trial Court to conclude the trial within a period of six months---Trial Court failed to comply with the order of the Supreme Appellate Court, which provided a fresh ground to the petitioner to file a fresh petition in the Chief Court---Chief Court accepted the petition on 21-6-2017 mainly on the ground that the directions of Supreme Appellate Court had not been complied with---National Accountability Bureau filed criminal petition for leave to appeal in Supreme Appellate Court, which was again allowed and bail granted to petitioner was re-called vide order dated 29-9-2017---Trial Court was directed by Chief Court on 25-6-2018, in another petition, to complete the trial of case within a period of two months---Petitioner contended that the direction of Supreme Appellate Court contained in order dated 8-11-2016 and of Chief Court in order dated 25-6-2018 had not been followed and so the spirit of S.16 of National Accountability Ordinance, 1999 had also been defeated---Validity---Petitioner was arrested on 4-2-2016 and despite clear directions contained in the judgment of Supreme Appellate Court dated 8-11-2016 to conclude trial within a period of 6 months, Trial Court failed to complete the trial even after lapse of one year and ten months---Trial Court also failed to honour the direction of Chief Court contained in order dated 25-6-2018---Conclusion of trial was not in sight, therefore, a case for grant of bail was made out---Petitioner was admitted to bail, in circumstances.

Raja Shakeel Ahmed for Petitioner.

Muhammad Amin, Special Prosecutor for NAB.

2019 M L D 1160

[Gilgit-Baltistan Chief Court(Skardu Bench)]

Before Muhammad Umar and Ali Baig, JJ

Haji FIDA ALI---Appellant

Versus

Chowdary MUHAMMAD YOUNAS and another---Respondents

C.F.A. No. 7 of 2016, decided on 11th October, 2018.

Civil Procedure Code (V of 1908)---

----S. 20 & O.VII, R.11---Suit to be instituted where defendants reside or where cause of action arose---Plaint, rejection of---Scope---Plaintiff had filed suit for recovery of money claiming that as per verbal agreement, plaintiff had been sending bags of potatoes at defendant's address at place "L" and certain amount was outstanding against him---Defendant filed application for rejection of plaint on the ground that civil court at place "S" lacked territorial jurisdiction as one agreement between the parties was executed at place "G" and another agreement at place "L"---Trial Court rejected the plaint---Validity---One defendant was resident of place "L" and the other of "N"---One agreement between the parties having been executed at place "G" and another at place "L", therefore, plaintiff could have filed suit either at places at N, G or L but civil court at place "S" had no jurisdiction to adjudicate the controversy upon the subject matter---Trial Court had rightly rejected the suit of plaintiff under O. VII, R.11, C.P.C.---Appeal was dismissed, in circumstances.

Muhammad Ali and Wazir Walayat Ali for Appellant.

Safdar Ali for Respondents.

2019 M L D 1207

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmad, C J and Ali Baig, J

The GILGIT PRESS CLUB through President---Appellant

Versus

The CHIEF EDITOR/PRINTER/PUBLISHER DAILY NEWS MART and 5 others---Respondents

C.F.A. No. 55 of 2016, decided on 23rd November, 2018.

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

----Ss. 3, 5 & 15---Suit for defamation---Actionable defamation---Scope---Plaintiff filed suit claiming that the defendants published fake, fabricated news and levelled allegations with intention to humiliate him---Plaintiff had not annexed with the appeal the news items which were allegedly published in the newspaper---Perusal of alleged defamatory news items disclosed in plaint transpired that no defamatory words/news items were directly attributed to any person by name which was one of the necessary ingredients constituting defamation---Plaintiff had not produced any oral or documentary evidence in the Trial Court to prove/substantiate his claim---Appeal was dismissed, in circumstances.

(b) Administration of justice---

----Plaintiff had to prove his case on its own strength by producing evidence; he could not claim that his suit should be decreed on the weakness of opposite party/defendant in the suit.

2004 CLC 1847 and 2001 CLC 946 ref.

Gulbaz Khan for Appellant.

Arif Nazir for Respondents/Defendants.

2019 M L D 1252

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

WANG XING---Petitioner

Versus

The STATE through Customs Department SRDP Sost---Respondent

Criminal Miscellaneous No. 201 of 2018, decided on 19th November, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Customs Act ( IV of 1969 ), Ss. 156(1), 8, 9, 14, 44, 45 & 171---Imports and Exports (Control ) Act (XXXIX of 1950), Ss. 2(s), 3(1), 3(3)16, 32, 79 & 80---Possession of 302 cartons of Chinese liquor, containing 3366 bottles of 500 milliliter liquor each---Bail, grant of--- Further inquiry---Notice under S.177 of Customs Act, 1969---Scope---Accused, a foreign citizen and Managing Director of Trading Company in whose imported consignment, seized liquor were concealed in the secret cavities ---Petitioner/accused contended that as no mandatory notice under S.177 Customs Act, was issued to him before lodging of the FIR so all the proceedings were coram non judice---Complainant, Customs authorities contended that the petitioner had conscious knowledge that contraband items were being imported and he, being Managing Director, was vicariously liable for act of any of his authorized agent, acting on his behalf---Trial of the case was yet to take place, therefore, any deeper appreciation of material so far collected during investigation could prejudice the case of either party at trial---No notice under S.171 of Customs Act, 1969 had, admittedly, been served upon the petitioner before lodging of FIR---Implications of non-service of notice under S.171 of Customs Act, 1969 would be taken up by the Trial Court during trial---No positive opinion, at bail stage ,could be formed regarding conscious involvement of the petitioner in the commission of the offence till recording of some evidence by the Trial Court---Case of the petitioner called for further inquiry as envisaged under S.497(2), Cr.P.C---Petitioner was admitted to bail, in circumstances.

Raja Shakeel Ahmed for Petitioner.

Dy. Advocate General assisted by Syed Riaz Kazmi for Respondent/State.

2019 M L D 1424

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, C J and Ali Baig, J

The STATE---Appellant

Versus

IMRAN HUSSAIN and 2 others---Respondents

Criminal Appeal No. 51 of 2017, decided on 22nd November, 2018.

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

----Ss. 324, 114 & 34---Anti -Terrorism Act (XXVII of 1997), Ss. 6, 7 & 21-L---Criminal Procedure Code (V of 1898), S.417---Attempt to commit qatl-i-amd, abettor present when offence was committed, common intention, act of terrorism---Appeal against acquittal---Appreciation of evidence---Prosecution case was that some unknown persons/culprits opened fire on the brother of complainant, which hit his face---Accused persons were acquitted by the Trial Court, whereas proclaimed offender was convicted under S. 21-L of the Anti Terrorism Act, 1997---Admittedly accused-respondents were not directly charged in the FIR rather it was registered against unknown culprits, despite the fact that the occurrence took place in the bazaar at day time as evident from the contents of FIR---No eyewitness had witnessed the occurrence and no weapon of offence had been recovered from the possession of the accused persons or on their pointation---Identification parade of the accused persons was not held after their arrest---In the present case, prosecution had produced confessional statements of the accused persons recorded by a police officer, but said statements were retracted by the accused persons---Possibility could not be ruled out that the confessional statements recorded by the police officer were tutored one, hence the same had no evidentiary value---Appeal against acquittal having no material was dismissed, in circumstances.

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

----Arts. 38 & 39---Confession before police officer---Scope---Such confession was not admissible in evidence unless corroborated by other strong circumstantial evidence.

Dy. Advocate General for the State.

Asadullah Khan and Imtiaz Hussain for Respondents.

2019 M L D 1434

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SHER ALAM---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 195 of 2018, decided on 31st October, 2018.

Criminal Procedure Code (V of 1860)---

----S. 497---Penal Code (XLV of 1868), Ss. 302& 460---Qat-i-amd, qatl or hurt caused by one of several persons jointly concerned, house breaking by night---Bail, refusal of---Circumstantial evidence---Scope---Recoveries effected from the accused---Effect---None was nominated in the FIR, however, police during investigation found the petitioner involved in the commission of murder of his step mother (deceased), with whom he was at daggers drawn---Petitioner contended that circumstantial evidence in the shape of some recoveries was not admissible---Complainant contended that evidence against petitioner was interlinked and was devoid of any legal defect---Record revealed that petitioner was not charged in the FIR and his involvement surfaced during investigation---After arrest of the petitioner police recovered the car owned by him and in which he travelled---One .30 bore pistol had also been recovered from the petitioner , which was allegedly used for the commission of offence---Statements of the prosecution witnesses and the said recoveries clearly linked the petitioner with the commission of offence so a prima facie case, existed against the petitioner---Bail was refused to the petitioner, in circumstances.

Raja Shakeel Ahmed for Petitioner.

Deputy Advocate General for the State.

2019 M L D 1516

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

HUSSAIN SHAH---Petitioner

Versus

PROVINCIAL GOVERNMENT through Chief Secretary, Gilgit-Baltistan and 5 others---Respondents

Writ Petition No. 200 of 2018, decided on 19th November, 2018.

Gilgit Baltistan Seizure and Disposal of Motor Vehicles Rules, 2018---

----Rr. 3(1) & 9(1) ---Confiscation of vehicle---Fake registration documents/certificate--- Vehicle in question was confiscated from the petitioner in favour of the State on the basis that the registration documents submitted by the petitioner were found to be forged---Upon verification of registration papers of the vehicle, the Excise and Taxation Department found the same to be forged---Excise and Taxation Officer was supplied with the necessary proclamation in a daily newspaper under Rule 9(1) of the Gilgit Baltistan Seizure and Disposal of Motor Vehicles Rules, 2018, which was made part of the present writ petition---No one filed any claim in respect of the vehicle before the Excise and Taxation Department, and ultimately the vehicle was confiscated in favour of the State---No illegality had been committed by the Excise and Taxation Department and the vehicle was confiscated after due process of law---Petitioner could not be handed over possession of a vehicle , the registration of which was found to be forged---Writ petition was dismissed accordingly.

Naseem Akhtar Mian for Petitioner.

Assistant Advocate General for Respondents.

2019 M L D 1550

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

SARFRAZ and another---Petitioners

Versus

Mst. NASEEMA SHAHAB and 5 others---Respondents

C. Rev. No.51 of 2018, decided on 19th April, 2019.

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

----Ss. 42 & 8---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration and possession---Temporary injunction, grant of---Discretion---Scope---Plaintiff filed suit for declaration and possession of land wherein she claimed that defendants had illegally and in an unauthorized manner occupied the suit land---Trial Court restrained the defendants from alienating the suit property, however, allowed them to raise construction thereon---Appellate Court set aside the order passed by Trial Court and directed the parties to maintain status quo---Plea of revenue department was that suit land was owned by government and that defendant was not entitled to construct residential house thereon---Validity---Issuance of injunction subject to condition, being a matter of discretion of Trial Court, could not have been interfered with unless condition attached was arbitrary or not in consonance with attending circumstances of the case---Land revenue department had neither filed appeal nor cross-objections in the Appellate Court against the order of Trial Court, therefore, it was estopped by its conduct and admission to challenge the order passed by Trial Court---Order passed by Appellate Court was set aside and that of Trial Court was maintained---Revision petition was accepted accordingly.

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

----Ss. 53 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Temporary and permanent injunction---Scope---Plaintiff cannot seek permanent or temporary injunction through separate application unless he seeks consequential relief of temporary or permanent injunction in the suit/plaint.

Zafar Iqbal for Petitioners.

Addl. Advocate General and Dy. A.G. (Civil) for Respondents Nos. 2 to 5.

2019 M L D 1585

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

FARHAD ALAM---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 173 of 2018, decided on 24th October, 2018.

Criminal procedure code (V of 1898)---

----Ss. 497& 169---Penal Code (XLV of 1860), Ss. 302, 109/114& 34---Qatl-i-amd, abetment, common intention---Bail, grant of---Further inquiry---Commencement of trial---Scope and effect---Complainant lodged FIR against some unknown persons and later nominated four persons in his supplementary statement in which abetment was alleged upon the petitioner---Petitioner/accused contended that out of four nominated persons, Police released two accused under S. 169, Cr.P.C, which showed that there was only guess work on the part of the complainant---Complainant contended that as trial had commenced, the petitioner was not entitled to the concession of bail---Complainant, admittedly, had not filed any application to any higher authorities of police for setting aside the findings of investigating officer nor he opted any other recourse available to him under the law for redressal of his grievances---Case of the petitioner was one of further inquiry and the bail was to be granted to the accused as a matter of right and not as a matter of grace---When case of an accused became as one of the further inquiry, he was entitled for bail even if the trial had commenced or if the same was at the verge of completion---Practice could not be given preference over the right---Courts were custodian of the liberty of the people and it was bounden duty of the Courts to exercise discretion in favour of those, whose cases were covered under S. 497(2), Cr.P.C as there was no concept of advance punishment in criminal justice system--- Petitioner had been charged for abetment of offence and the case of an abettor was always at lower pedestal as compared to the principal accused, who were charged for commission of the offence---All such factors, when taken cumulatively, had made out the case of the petitioner fit for grant of bail---Bail was granted to the petitioner , in circumstances.

Sher Alam and Abid Hussain for Petitioner.

Zia-ur-Rehman for the Complainant.

Dy. Advocate General for the State.

2019 M L D 1655

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

STATE through Special Prosecutor ANF GB, Gilgit---Petitioner

Versus

MUHAMMAD AKRAM---Respondent

Criminal Miscellaneous No. 175 of 2017, decided on 27th March, 2019.

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

----Ss. 497(5) & 103---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 25---Bail, cancellation of---Possession of narcotics---Search to be made in presence of witnesses---Applicability of S. 103, Cr.P.C.---Scope---Anti-Narcotic Force recovered 9500 grams of heroin concealed inside the carpets kept in the godown/basement of a hotel---Heroin was recovered on the pointation of accused---Trial Court granted bail to accused---Validity---Offence under S. 9(c), Control of Narcotic Substances Act, 1997 fell within the ambit of prohibitory clause of S. 497(1), Cr.P.C.---Trial Court while granting bail had observed that Anti-Narcotics Force officials did not record the statements of the employees of the hotel, which was the best evidence available to the prosecution---High Court held that provisions of S. 103, Cr.P.C. did not apply where recovery was not made in pursuance of search of a house but was made elsewhere, for instance on the highways or on the road side or public places like railway station, bus stand, the search of baggage at airport or hotel, etc.---Accused remained in jail for a period of only one and half months whereas he was involved in a heinous crime which entailed capital punishment---Trial Court had wrongly touched the merits of the case---Reasonable grounds existed for believing that accused was prima facie involved in the case which was heinous in nature---Trial Court was not justified in granting bail to the accused---High Court recalled the bail granting order, in circumstances.

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

----S. 25---Criminal Procedure Code (V of 1898), S. 103---Search to be made in presence of witnesses---Provisions of S. 103, Cr.P.C. were not applicable in narcotics cases by virtue of S. 25 of Control of Narcotic Substances Act, 1997.

Manzoor Hussain, Special Prosecutor for ANF.

Raja Shakeel Ahmed for Respondent.

2019 M L D 1730

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SHER DIL---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 111 of 2019, decided on 7th May, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 161---Penal Code (XLV of 1860), Ss. 436 & 457---Mischief by fire or explosive substance with intent to destroy a house, lurking house-trespass or house breaking by night in order to commit offence punishable with imprisonment---Bail, refusal of---Petitioner contended that he was incapacitated person who could not commit such like offence---Petitioner was not charged in FIR and he was found involved in the commission of offence during investigation of the case---Petitioner was on bail in another case/ FIR registered against him under S. 440, P.P.C. and he committed the offence during the said period, when he was on bail and thus, he misused the concession of bail---Offence under S. 436, P.P.C. entailed punishment of imprisonment for life and fell within the prohibitory clause of S. 497, Cr.P.C.---One of the criteria for refusal of bail in the offences, even not falling within prohibitory clause of S. 497, Cr.P.C., was that; if there was a chance that accused would repeat the offence, the Court might refuse the bail---Petitioner committed a more heinous offence than the earlier one, in which he was allowed bail---Petitioner had been charged for commission of offence by two prosecution witnesses in their statement recorded under S. 161, Cr.P.C. on the following day of occurrence---Bail was refused to the petitioner, in circumstances.

Muhammad Kumail for Petitioner.

Dy. Advocate General for the State.

2019 M L D 1846

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

KHUSH BAIG and another---Petitioners

Versus

AZAD ALI and another---Respondents

Civil Revision No. 75 of 2018, decided on 6th May, 2019.

Civil Procedure Code (V of 1908)---

----O. VII, Rr. 2 & 11---Gilgit Baltistan Land Revenue Act (XVII of 1967), S. 181---Revenue Officer having got registered a criminal case against the plaintiffs---Recovery suit on the basis of malicious prosecution---Bar on legal proceedings against Revenue Officer---Plaint, rejection of---Scope---Plaintiff filed recovery suit on the basis of malicious prosecution against Revenue Officer who got registered a criminal case against him---Defendant-Revenue Officer moved petition for rejection of plaint but same was dismissed---Validity---Act of defendant-Revenue Officer was protected by S. 181 of Land Revenue Act, 1967---No suit or other legal proceeding did lie against the Revenue Officer for anything done or ordered to be done in a good faith by him---Present suit filed against defendant-revenue officer was barred under S. 181 Land Revenue Act, 1967---Suit of plaintiffs was liable to be dismissed under O.VII, R.11, C.P.C., in circumstances---Impugned judgment/order passed by the Trial Court was set aside---Suit filed by the plaintiffs was dismissed, in circumstances---Revision was allowed accordingly.

Amjad Hussain for Petitioners.

Johar Ali for Respondents.

2019 M L D 1870

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

IFTIKHAR ALAM---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 64 of 2019, decided on 18th March, 2019.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing charas weighing four kilograms---Bail, grant of---Further inquiry---Quantity of samples taken from each packet was not mentioned---Effect---Scope---Four packets of one kilogram each were allegedly recovered from the possession of the petitioner, however, total fifty grams of charas was separated for sending to the Chemical Examiner---Petitioner was caught red handed on a tip-off information and four Kilograms of charas was recovered from his possession in presence of two marginal witnesses of recovery memo, one of them was an independent private witness---Fifty grams of charas was separated from four packets of charas but the prosecution could not reconcile said separated fifty grams of charas---Record did not show as to how much quantity was taken from each packet---If the samples taken would have been forty grams in total then it was easy to presume that ten grams were taken from each packet but taking of fifty grams from four packets was a question which could be answered by the prosecution at the time of trial and had created a doubt---Case of the petitioner called for further inquiry as envisaged under S.497(2), Cr.P.C.---Petitioner was admitted to bail, in circumstances. [p. 1872] A, B & C

PLD 1997 SC 408 ref.

Mehmood Alam for Petitioner.

Dy. Advocate General for the State.

2019 M L D 1980

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

NADIR ABBAS---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 91 of 2019, decided on 19th April, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860 ), Ss. 324, 353 & 186---Pakistan Arms Act (XX of 1965 ), S. 13---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public function, possessing unlicensed weapon---Bail, grant of---Further inquiry---Discrepancy in statements---Applicability of S. 324, P.P.C.---Scope---Petitioner was directly charged in the FIR with the allegation that he opened fire shots on the police party, who went to arrest him---Statements of the police officials were discrepant about the applicability of S. 324, P.P.C.---Tentative assessment was to be carried out, at bail stage the intention to kill would be thrashed out by the Trial Court after recording of evidence---Case of the petitioner called for further inquiry as envisaged under S. 497(2), Cr.P.C.---Petitioner was admitted to bail, in circumstances.

Abdul Khaliq for Petitioner.

Deputy Advocate General for the State.

2019 M L D 102

[High Court (AJ&K)]

Before Raja Sajjad Ahmad Khan, J

Mst. TANZEELA BIBI and another---Petitioners

Versus

STATE through Advocate-General of Azad Jammu and

Kashmir, Muzaffarabad and 5 others---Respondents

Writ Petition No.1153 of 2017, decided on 5th June, 2018.

(a) Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985--

----Ss. 4, 10, 11, 16 & 19---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 4 & 44---Zina or Zina-bil-jabr liable to Tazir, kidnapping, abducting or inducing woman to compel for marriage, enticing or taking away or detaining with criminal intent a woman---Petition for quashing of FIR---Petitioners had contracted marriage and female got recorded her statement before the Magistrate that she had contracted marriage with her free will---Said statement later on was confirmed by her before the High Court---Both the petitioners were major Muslims and a child had also born out of the wedlock---Petitioners, after Nikah, were living as husband and wife, which was a sufficient proof of valid marriage---Presumption of valid marriage could be ascertained from the acknowledgment by the man or woman being husband and wife---Effort should be made to protect the marriage having taken place---Right to life and liberty had been granted under S.4 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and it could be safely held that impugned FIR had been registered by violating the Fundamental Rights of the petitioners---First Information Report in question was quashed in circumstances.

PLD 1982 FSC 42 and Azad Government of the State of Jammu and Kashmir v. Mohammad Din and others 2017 CLC 1288 ref.

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

----S. 44---Writ jurisdiction---Scope---Exercise of powers under writ jurisdiction, were very limited and could be exercised in extraordinary circumstances, where there was violation of law. [p. 106] D

Mohammad Pervez Mughal for Petitioners.

Raja Ayyaz Ahmad, A.A.G. for the official Respondents.

2019 M L D 287

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

ASIF MAJEED and another---Petitioners

Versus

S. P. KOTLI and 2 others---Respondents

Criminal Miscellaneous No.2 of 2107, decided on 28th June, 2018.

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

----Ss. 195(c) & 561-A---Penal Code (XLV of 1860), Ss. 467, 468, 420 & 465---Prosecution for offences relating to documents given in evidence, forgery, cheating and dishonestly inducing delivery of property---Inherent powers of High Court---Quashing of FIR--- Petitioners invoked inherent jurisdiction of High Court and sought quashing of FIR---Allegation against petitioners was that they, in their capacity as patwaris forged the revenue record---Validity---Civil and criminal proceedings could run simultaneously, it did not affect each other because both the forums had to take cognizance upon the similar matter having different dimensions and parameters, hence, where the forgery or fraud appeared to have been committed during the pendency of suit, the court could under S.195(c), Cr.P.C. direct concerned authority to initiate proceedings but where forgery appeared to have been committed prior to filing of suit then criminal proceedings could not be stopped---Petition was dismissed, in circumstances.

M. Naeem v. The State through Prosecutor-General, Province of Sindh 2010 P.Cr.LJ 1039; Sheikh Muhammad Tahir v. The State and 2 others 2012 PCr.LJ 1075; Abdul Jabbar v. The State through Assistant Advocate General Kotli and 2 others 2014 PCr.LJ (AJ&K) 1 and Gul Muhammad v. The State 2015 PCr.LJ 1329 distinguished.

Shan Muhammad v. Muhammad Younis and 4 others 2014 SCR 183 fol.

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

----S. 561-A---Inherent powers of High Court---Nature and scope---Abuse of process of court---Scope---Jurisdiction of High Court under S.561-A, Cr.P.C. was neither alternative nor additional in its character and had to be rarely invoked only in the interest of justice as to seek redressal of grievance for which no other procedure was available and that provision should not be used to obstruct or divert the ordinary course of criminal procedure---Section 561-A, Cr.P.C. conferred upon High Court inherent powers to make such orders as might be necessary to give effect to any order under Cr.P.C. or to prevent abuse of process of any court or otherwise to secure the ends of justice---Powers under S. 561-A, Cr.P.C. were very wide and could be exercised by High Court at any time---Ordinarily, High Court did not quash proceedings under S. 561-A, Cr.P.C. because the Investigating Agency could only be stopped to proceed in exceptional cases---High Court could not sit as an investigating agency or Trial Court to determine truthfulness or falseness of allegations in the FIR.

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

----S. 561-A---Inherent powers of High Court---Quashing of FIR---Principles.

High Court can quash an FIR under section 561-A, Cr.P.C. in the presence of following ingredients.

(1) If there is any jurisdictional defect;

(2) If there is any patent violation of some provisions of law;

(3) If allegations as contained in the complaint or FIR, even if believed, no case was made out and the continuation of the proceedings would amount to sheer abuse of process of the court;

(4) When an endeavour was made to enforce civil liability through the machinery of criminal court; and

(5) Inordinate delay, amounting to abuse of process of court. [p. 292] C

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

----S. 561-A---Inherent powers of High Court---Quashing of FIR---Circumstances when could not be quashed, enumerated.

High Court cannot quash FIR under section 561-A, Cr.P.C., in the following circumstances.

(1) Where the case is at the stage of investigation;

(2) In presence of cognizable offence;

(3) When the accused person has been found to be guilty and the trial is in motion;

(4) When the challan under section 173, Cr.P.C. has been submitted before the Court of law; and

(5) Where an alternate remedy under section 249-A, Cr.P.C. is available to the accused person.

Mehboob Ellahi Chaudhary for Petitioners.

Raja Masood Khan for Respondent No.3.

2019 M L D 724

[High Court (AJ&K)]

Before Raja Sajjad Ahmad Khan, J

AAMARA AZAM---Appellant

Versus

MOHAMMAD NAWAZ KHAN---Respondent

Family Appeals Nos. 56 and 57 of 2018, decided on 27th November, 2018.

Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 5---Suits for restitution of conjugal rights and jactitation of marriage by husband and wife respectively---Non-production of witnesses mentioned in Column No. 8 of nikahnama---Effect---Wife had denied solemnization of nikah and filed suit for jactitation of marriage---Trial Court decreed the suit for restitution of conjugal rights and dismissed the suit for jactitation of marriage---Validity---Wakil of bride shown in Column No. 6 of nikahnama was not present at the time of execution of Nikahnama as per statements of witnesses---Father of bride, shown as wakil in Nikahnama, got registered an FIR when he got knowledge of forged Nikah---Witnesses of Nikah mentioned in Column No. 8 had not been produced by husband and were not even cited as witnesses---Husband had stated that he did not know the said witnesses while Nikah Khawan did not mention their presence at the time of nikah---Husband's witnesses negated the presence of witnesses of meeting at the time of Nikah---Names of witnesses of nikah, mentioned in Column No. 8, had been written without their presence and their signatures were forged---Time of nikah was shown as 2:00 p.m. whereas witnesses of wife stated that at 2:00 p.m. she was at her home---Prompt dower was shown as ornaments of Rs. 50,000 whereas none of the witnesses stated that it was paid in their presence---Nikah allegedly was solemnized on 12-1-2015, but it was kept secret till November, 2015---Nikah must be proclaimed and proclaimed openly so that it was known to people that spouses were validly married---Nikhanama remained unproved, therefore, it could not be read into evidence and neither a decree of restitution of conjugal rights could be granted on the basis of such Nikahnama---High Court accepted the appeal and passed the decree of jactitation of marriage and dismissed the suit for restitution of conjugal rights, in circumstances.

Sardar Mohammad Suleman Khan for Appellant.

2019 M L D 831

[High Court (AJ&K)]

Before Raja Sajjad Ahmad Khan, J

ZUBAIR---Petitioner

Versus

SHERAZ and 2 others---Respondents

Criminal Revision Petition No. 265 of 2018, decided on 13th September, 2018.

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

----S. 498---Pre-arrest bail, grant of---Preconditions---Pre-arrest bail could not be granted unless the petitioner succeeded in showing that the prosecution had been launched against him by the complainant with mala fide intention and that the police was ought to arrest him with ulterior motives of harassing and humiliating him.

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

----S. 498---Pre-arrest bail, confirmation of---Further inquiry---In absence of allegation of mala fide or ulterior motive on the part of police or complainant, question of further inquiry could not be considered in case of pre-arrest bail.

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

----S. 497---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985, Ss. 10, 11 & 19---Azad Jammu and Kashmir Offences against Property (Enforcement of Hudood) Act, 1985, S. 14---Pre-arrest bail, recalling of ---Allegation against the accused persons was that accused enticed away the sister of complainant for committing Zina---Abductee before leaving took away five tolas gold ornaments of complainant's wife---Accused persons (both male and female) applied for bail before arrest, which was allowed---Record showed that accused developed illicit relations with co-accused (his sister-in-law)---Accused persons entered into Nikah after making fabricated talaqnama for first wife of male accused---Wife of accused had levelled serious allegation that due to illicit relations between accused persons and co-accused became pregnant and in such circumstances, they ran away and after preparing fabricated talaqnama they entered in Nikah---Accused persons, after obtaining pre-arrest bail did not join investigation, so their medical examination could not be conducted and investigation process had been frustrated---Prima facie, the accused persons were connected with the alleged commission of offence, therefore, they were not entitled to the extraordinary concession of pre-arrest bail which was meant only to save innocent persons from undue harassment, humiliation and disgrace---Accused persons had failed to fulfil the ingredients for the grant of such relief---No cogent material was available to show that the complainant and police were motivated with malice or ulterior motive for harassing and humiliating the accused persons---Previous non-conviction was not a ground for the grant of pre-arrest bail---Revision petition was accepted and the ad-interim pre-arrest bail granted to accused persons were recalled, in circumstances.

1999 PCr.LJ 872; 2005 PCr.LJ 1816; PLD 2005 Lah. 316; 2007 PCr.LJ 787; 2006 PCr.LJ 202; 2005 PCr.LJ 604 and 2017 SCR 420 ref.

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

----S. 497---Bail---Principle---Observations made in bail order were tentative in nature and would not prejudice the proceedings before the Trial Court where the case would be decided strictly on its own merits.

Sardar Rizwan Naeem Abbasi for Petitioner.

Raja Ayyaz Fareed, Asstt. A.G. for the State.

Sardar Naveed Hussain Azad for Respondents.

2019 M L D 899

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C J

Mst. ZAHOORA BEGUM---Petitioner

Versus

AZAD JAMMU AND KASHMIR UNIVERSITY through Vice-Chancellor, Muzaffarabad and 6 others---Respondents

Writ Petition No.551 of 2011, decided on 8th February, 2019.

(a) Azad Jammu And Kashmir University Regulations for Master's Degree Examination---

----Chap. 22, Clause 21---Grace marks awarded to the candidate---Withdrawal of---Scope---Candidate passed M.A. examination with 2nd Division and result card was also issued by the University---University issued degree to the candidate in 3rd Division by deducting 04 grace marks already awarded in the result card---Petitioner-candidate applied to the University for issuance of correct degree as per Marks-Sheet but her request was turned down by the University---Validity---Five grace marks could be awarded to a successful candidate to place him/her in higher Division---Petitioner obtained 441 marks out of 1000 and by awarding 04 grace marks she was granted DMC in 2nd Division---No reason was brought on record by the University authorities as to why grace marks granted to the candidate were recalled---No one should suffer due to act of Authority---Functionaries of the State were supposed to work strictly under the law and simply writing in some Statute that errors and omissions were expected could not be given any weight without estimating the loss or damage caused to a party---Result card issued to the petitioner was an official document and same had presumption of truth and could be corrected within a reasonable time by the University---Petitioner in case of 3rd Division could improve her division if intimated within short span of period---Candidate should not suffer due to fault of University---University failed to issue degree to the petitioner till 26-08-2010 without showing any lawful justification---Petitioner was entitled to equitable relief of writ jurisdiction---Impugned order passed by the University was quashed being without lawful authority---University was directed to issue correct degree in favour of candidate forthwith as per result card---Writ petition was allowed, in circumstances.

Nasreen Akhtar and 3 others v. Sameena Bilquees and 3 others 2006 SCR 312 and Ahmed Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education, Lahore PLD 1994 Lah. 3 rel.

(b) Administration of justice---

----No one is to suffer due to act of Authority.

Mirza Kamran Baig for Petitioner.

Raja Amjad Ali Khan for Respondents.

2019 M L D 1268

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C J and Azhar Saleem Babar, J

Syed MANZOOR HUSSAIN SHAH and 5 others---Petitioners

Versus

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

Writ Petition No. 450 of 2018, decided on 18th February, 2019

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

----S. 44---Azad Jammu and Kashmir Legislative Assembly (Salaries, Allowances, Privileges and Pension of the Members) Act, 2014, Ss.12-B, 12-C & 2(ff)---Azad Jammu and Kashmir Legislative Assembly Members Pension Fund Act, 2008, S. 1---Writ petition---Members of Azad Jammu and Kashmir Legislative Assembly---Payment of pension---Scope---Petitioners were not Members of Welfare Fund nor they paid any contribution there to---Petitioners could not claim pension in circumstances---Writ petition was dismissed accordingly.

Mohabat Khan and 77 others v. Road Transport Board, N.W.F.P Peshawar and 4 others 1993 SCMR 833; Akhtar Munir v. Secretary Home and Tribal Affairs KPK, Peshawar and 8 others 2016 MLD 999; Suleman Daud v. Lahore Development Authority 2008 CLC 1251 and Rafiq Ahmed Tahir v. House Building Finance Corporation and another 2001 YLR 38 ref.

Azad Government of the State of Jammu and Kashmir. and others v. Haji Summandar Khan and others 1995 MLD 1350 and Shams Din v. Aman Ullah and 3 others PLD 1987 Lahore 471 rel.

(b) Interpretation of statutes---

----Retrospectivity of statute---Statute could not be construed to have a retrospective operation unless such a construction appear in the terms of the Act.

Zila Council Jehlum through District Coordination Officer v. Messrs Pakistan Tobacco Company Ltd. and others PLD 2013 SC 398 and Zakaria H.A. Sattar Bilwani and another v. Inspecting Additional Commissioner of Wealth, Range-II, Karachi 2003 SCMR 271 rel.

Kh. Imtiaz Ahmad Ahmed for Petitioners.

2019 M L D 1301

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C J

Raja MUMTAZ AHMAD KHAN---Appellant

Versus

Mst. FOZIA ISMAIL---Respondent

Family Appeal No. 305 of 2018, decided on 25th January, 2019.

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----Ss. 5, Sched., 13(3)(5) & 14(1)---Suit for recovery of dower---Execution petition---Instalments of decretal amount were sought by judgment-debtor---Scope---Interlocutory order passed by Family Court---Appeal---Competency---Judgment debtor filed objection petition with the request to fix instalments for payment of decretal amount---Family Court directed the judgment debtor to pay entire decretal amount in lump sum and dismissed the objection petition---Validity---Family Court in its judgment directed the judgment debtor for lump sum payment of decretal amount which observation was upheld by the Supreme Court---Observation of Family Court for payment of lump sum decretal amount had attained finality---Executing Court did not commit any illegality while refusing fixation of instalments---Impugned order was passed at the stage of execution proceedings which did not fall within the definition of a "decision" or decree rather it was an interlocutory order---Only a decision or a decree passed by a Family Court was appealable before Shariat Appellate Bench of High Court---Family Court had discretion to fix instalments if it deemed fit---Instalments could not be claimed as a matter of right---No appeal or revision had been provided under Azad Jammu and Kashmir Family Courts Act, 1993 against such direction for making payment of decretal amount---No appeal or revision had been provided against an interlocutory order passed by the Family Court---Appeal was dismissed, in circumstances.

Mst. Shahnaz Bibi and 2 others v. Munawar Din 2005 SCR 409; Mst. Nasim Bashir v. Abdul Jabbar 2004 MLD 510 and Ijaz Ahmed Siddique v. The District Judge, West Pakistan and 2 others 1988 CLC 634 ref.

Safina Chaudhary and another v. Zafar Iqbal 2017 SCR 1620; Mst. Amreen v. Muhammad Kabir 2015 YLR 710 and Noreen Akhtar v. Liaquat Hussain 2004 CLC 1397 distinguished.

Mst. Nasim Bashir v. Abdul Jabbar 2004 MLD 510 and Firdos Bakhat v. Javed Khan through Attorney and another 2012 YLR 2231 rel.

(b) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 14(1)---Interlocutory order passed by Family Court---Appeal---Maintainability---No appeal or revision had been provided against an interlocutory order passed by the Family Court---Only a decision or a decree passed by Family Court was appealable before Shariat Appellate Bench of High Court.

Mst. Nasim Bashir v. Abdul Jabbar 2004 MLD 510 rel.

Muzaffar Hussain Mughal for Appellant.

2019 M L D 1502

[High Court (AJ&K)]

Before Raja Sajjad Ahmad Khan, J

MOHAMMAD ZIKRIA BUTT---Appellant

Versus

Mst. MOHINAT-UL-ISLAM---Respondent

Family Appeal No. 109 of 2017, decided on 27th February, 2019.

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

----Ss. 25, 7 & 17---Custody of minor---Welfare of minor---Preference of minor---Scope---Appellant/father assailed order passed by Family Court whereby his application for custody of minors was dismissed---Validity---Minors had remained with their mother from the childhood; therefore, they were more familiar and akin to their mother as compared to their father---Subsection (3) of S.17 of Guardians and Wards Act, 1890 postulated that if minor was old enough to form an intelligent preference, the court could consider his/her preference---Minors, in the present case, had preferred to live with their mother, therefore, it was not in their interest to give them in the custody of father---Appellant/father was a professor, busy in college during day time, and nobody was available in his house to look after the minors---Mother was looking after the minors in an appropriate manner and they were studying in a best school of the city---Nothing had been brought on record indicating that minors were being brought up and looked after in a bad manner---Appeal was dismissed.

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

----S. 17---Appointment of guardian by Court---Considerations---Preference of minor---Scope---If a minor is old enough to form an intelligent preference, the court can consider his/her preference while deciding custody of minor.

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

----S. 25---Custody of minor---Application for guardianship by relative of minor---Relationship with minor---Scope---Mere relationship of minor with applicant is not sufficient to hand over custody of minor.

Mohammad Shabbir Sharif for Appellant.

2019 M L D 1999

AJ&K High Court [Shariat Appellate Bench]

Before Raja Sajjad Ahmad Khan, J

MAJID HUSSAIN and others---Appellants

Versus

FARAH NAZ and others---Respondents

Family Appeal Nos. 110 and 117 of 2018, decided on 15th May, 2019.

(a) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 5 & Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), Ss. 2(ii), 2(iv) & 2(viii)---Suit for dissolution of marriage---Non-payment of maintenance allowance---Non-performance of marital obligations by husband---Cruelty---Non-production of medical evidence of violence---Effect---Wife claimed dissolution of marriage on the grounds of cruelty, non-payment of maintenance allowance and non-performance of marital obligations---Validity---Under the Dissolution of Muslim Marriages Act, 1939 if the husband neglected or failed to provide maintenance for a period of two years or he failed to perform, without reasonable cause, his marital obligations for a period of three years then wife was entitled for decree of dissolution of marriage---Period of non-payment of maintenance and non-performance of marital obligations had not completed in the present case, therefore, wife was not entitled for dissolution of marriage on said grounds---Wife had failed to prove the allegation of cruelty through cogent and convincing evidence as her witnesses did not support her claim nor she produced medical evidence regarding violence---Statements of husband's witnesses revealed that he had made his best efforts to settle his wife but she was not ready to live with him---Wife had even got recorded her statement wherein she categorically deposed that she did not want to live with her husband---Trial court had rightly appreciated the evidence of the parties and had rightly passed the decree for dissolution of marriage on the ground of 'khula' in consideration of dower---Appeals were dismissed.

(b) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 5 & Sched.---Recovery of deferred dower and gold ornaments---Nikahnama entries---Presumption of truth---Scope---Wife claimed recovery of dower amount along with twenty five tolas ornaments---Trial Court decreed the dower amount---Validity---Perusal of nikahnama revealed that dower of Rs. 2,00,000/- was fixed as deferred dower---Entries made in the nikahnama had presumption of truth---Wife had failed to prove regarding bringing ornaments at the time of marriage and snatching of the same, however, she deposed that the ornaments were stolen away---Wife was not entitled for recovery of stolen ornaments---Husband deposed that he had paid the dower but could not produce any evidence of payment of dower---Trial court had rightly passed the decree of dower in favour of the wife---Appeals were dismissed.

(c) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 5 & Sched.---Restitution of conjugal rights---Scope---When wife is not willing to live with her husband at any cost then to grant a decree for restitution of conjugal rights would amount to compel for force union, which is not permissible under law.

(d) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 5 & Sched.---Recovery of maintenance allowance---Scope--- Husband is bound to pay maintenance allowance to wife till she is faithful and lives with him---Where the wife voluntarily leaves the house of her husband, she is not entitled to maintenance allowance---Wife's refusal to live with her husband without lawful excuse, desertion or otherwise willful failure to perform marital duties, would result in loss of her claim for maintenance.

Miss Zobia Badar for Defendant/Appellant.

2019 M L D 2077

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

MUMTAZ BEGUM and 14 others---Petitioners

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 8 others---Respondents

Writ Petition No. 1058 of 2013, decided on 24th May, 2019.

(a) Land Acquisition Act (I of 1894)---

----S. 23---Acquisition-Evacuee Property---Allotment of land without putting the allottees (petitioners) into possession---Petitioners having no proprietary rights and possession of acquired land---Compensation, grant of---Entitlement---Right to hold and possess property was a fundamental right of all the state subjects---Nobody could be deprived of his property without compensation---No authority could be allowed to snatch the property of any person without due process of law---Petitioners, at the relevant time, were not complete owners of suit land and were not entitled to any compensation---If, in due course of time, petitioners succeeded to get proprietary rights of the property in question then they would be at liberty to file fresh petition for requisite relief---Writ petition, at present stage, was premature---Petitioners could apply for grant of proprietary rights to the Custodian of Evacuee Property---High Court could not pre-empt the Custodian to discharge his functions---Petitioners had an alternate remedy with them---Relief could be granted to the petitioners on the basis of allotment order only which was issued without putting the petitioners into possession---Petitioners in absence of any proprietary rights could not be declared as owners of suit land---Writ petition was dismissed, in circumstances.

Nizam Din and others v. Azad Government and others 2017 MLD 299 distinguished.

(b) Administration of justice---

----When an act was prescribed by law to be done in a particular manner, it should be done in that manner or not at all.

Bilqees Rasheed Minhas for Petitioners.

2019 M L D 34

[Islamabad]

Before Aamer Farooq, J

FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDATION through Director and others---Appellants

Versus

BASHIR AHMED and others---Respondents

F.A.O. No. 138 of 2016 and F.A.O. No.21 of 2017, decided on 10th October, 2018.

Civil Procedure Code (V of 1908)---

----O. IX, R. 13---Limitation Act (IX of 1908), Arts. 164 & 181---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Ex-parte decree, setting aside of---Limitation---Substituted service---Scope---Defendants appeared in the suit but proceedings were adjourned sine die on the statement of plaintiff---Plaintiff thereafter got the suit reactivated but no one appeared on behalf of defendants and ex-parte decree was passed---Petition for setting aside of ex-parte decree was moved but same was dismissed being time-barred---Validity---Summonses were issued in the suit filed by the respondent-plaintiff which were served upon the petitioners-defendants---Article 181 of Limitation Act, 1908 was applicable in the present case---Application filed by the petitioners-defendants was not barred by limitation---Nothing was on record with regard to service of summons upon the petitioners after reactivation of the suit---Service through substituted mode was always indirect service and if a party/person appeared before the Court and showed that he had no personal knowledge of filing of the lis then Court should recall the ex-parte proceedings/order---Impugned order was set aside in circumstances---Application moved by the petitioners-defendants was to be deemed to be pending and decided on merits after satisfaction as to whether at the time of reactivation of case notices were served upon the petitioners---Appeal was allowed.

Hashim Ali Shah v. Syed Akhtar Ali Shah 1993 MLD 889 and Messrs Rehman Weaving Factory (Regd.) v. Industrial Development Bank of Pakistan PLD 1981 SC 21 rel.

Altaf Hayat Khan for Appellants (in F.A.O. No. 138 of 2016).

Ahmed Abdul Rafay for Appellants (in F.A.O. No. 21 of 2017).

Syed Javed Akbar Shah for Respondents (in F.A.O. No. 138 of 2016).

Imtiaz Anwar Cheema for Respondents (in F.A.O. No. 21 of 2017).

2019 M L D 61

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Haji Raja MUBARAK HUSSAIN---Petitioner

Versus

MASOOD ALAM---Respondent

C.R. No.211 of 2016, decided on 26th September, 2018.

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

----S. 12---Suit for specific performance of agreement to sell---General power of attorney by the son in favour of his father---Sale agreement by the father on the basis of said power of attorney---Photocopy of a document---Evidentiary value---Remand of case---Scope---Evasive denial in written statement---Effect---Contention of defendant was that alleged agreement to sell was forged one---Suit was decreed by the Trial Court but Appellate Court remanded the matter for decision afresh on the ground that impugned decree was not executable---Validity---Defendant in his written statement had pleaded that he had no knowledge of alleged agreement but during evidence had admitted the same to the extent of some land---Defendant had adopted contradictory position during the proceedings before the Trial Court and created doubt on truthfulness of his version---Evidence beyond pleadings could not be taken into consideration---Defendant had also admitted the execution of general power of attorney in favour of his father and execution of agreement to sell by his father to the extent of some land---Defendant's brothers and sisters had transferred their respective shares in the suit land in favour of plaintiff---Plaintiff was in possession on the suit land and no suit for possession had been filed by the defendant---Appellate Court had not properly appreciated the facts of the present case---General power of attorney had been executed with regard to entire land owned by the defendant---Photocopy of a document had no evidentiary value---No particulars of alleged fraud had been given either in written statement or in the defendant's evidence---Remand of case could only be made where it was necessary and inevitable due to insufficient evidence for deciding the points in controversy---Remand of case for technical reason was not appreciated---When an evasive denial was given in written statement to a fact pleaded in the suit then same should be treated as an admission---Impugned judgment passed by the Appellate Court was set aside and that of Trial Court was restored---Revision was allowed in circumstances.

State Life Insurance Corporation of Pakistan v. Javaid Iqbal 2011 SCMR 1013; 2005 SCMR 152; Muhammad Hussain v. E.D.O. (Education) 2007 SCMR 855; Ghulam Abbas v. Manzoor Ahmed PLD 2004 Lah. 125 and United Bank Limited v. Ali Muhammad B. Rajani 1994 CLC 173 rel.

(b) Pleadings---

----Evidence beyond pleadings could not be taken into consideration.

(c) Pleadings---

----Party could not make departure from its pleadings.

(d) Pleadings---

----Party was bound by its pleadings.

Sardar M. Ashfaq Ahmad for Petitioner.

Mian Abdul Razzaq for Respondent.

2019 M L D 97

[Islamabad]

Before Muhammad Anwar Khan Kasi, C J

Dr. NUMAN MUHAMMAD KHAN---Petitioner

Versus

CA&DD through Secretary and others---Respondents

Writ Petition No.4404 of 2012, decided on 27th May, 2013.

Constitution of Pakistan---

----Arts. 24-A & 25---Right to education---Discrimination---Petitioner was Dental Surgeon registered with Pakistan Medical and Dental Council and was aggrieved of not being granted admission in Master of Dental Surgery (MDS)---Validity---Petitioner obtained highest marks in National Testing Service and was ahead of selected candidates---Distinction certificates of petitioner were not taken into consideration while preparing merit list---Every citizen had a Fundamental Right to be treated in accordance with law without discrimination on basis of equality---Right to get education was basic right of every citizen and courts were under obligation to protect such rights---High Court directed the authorities to allow admission of petitioner in MDS without disturbing candidates already selected by making special arrangements admissible under law---Constitutional petition was allowed accordingly.

Naeem Ahmad Shah for Petitioner.

Qazi Rafi ud Din Babar, Deputy Attorney General for Respondents.

2019 M L D 276

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD IBRAR KHAN and another---Petitioners

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and another---Respondents

Writ Petition No.452 of 2014, decided on 23rd October, 2018.

Capital Development Authority Ordinance (XXIII of 1960)--

----S. 12(5)---Islamabad Capital Territory (Zoning) Regulations, 1992, Rglns. 2(14) & 4(3)(a) & (e)---Illegal construction---Development of private Housing Scheme---Modalities and procedures---Petitioners had started development work on their land falling in Zone-3 of Islamabad Capital Territory for Housing Scheme---Petitioners assailed notice issued by Capital Development Authority on such development---Validity---Before carrying out development work on their land, petitioners did not obtain concurrence of Capital Development Authority in terms of S. 12(5) of Capital Development Authority Ordinance, 1960---Such construction and development activity carried out by petitioners on their land in Zone-3 of Islamabad Capital Territory had come within meaning of 'illegal construction' as defined in Rgln. 2(14) of Islamabad Capital Territory (Zoning) Regulations, 1992---Modalities and procedures framed under provisions of Islamabad Capital Territory (Zoning) Regulations, 1992 for development of private Housing Schemes in Zones 2 and 5 of Islamabad Capital Territory Zoning Plan, provided that Housing Scheme could be sponsored by a registered company or a cooperative society for an area not less than 100 acres falling within Zone-2 and 50 acres falling within Zone-5 of Islamabad Capital Territory Zoning Plan---No regulations were framed for housing scheme to be sponsored or developed in Zone-3 of Islamabad Capital Territory where land of petitioners was situated---Petitioners did not obtain permission from Capital Development Authority to construct buildings on their land, therefore, they had carried out developmental work in violation of prohibition contained in Regln. 4(3)(a) and (e) of Islamabad Capital Territory (Zoning) Regulations, 1992---High Court declined to declare notice issued by Capital Development Authority illegal and without lawful authority as to grant such relief to petitioners would tantamount to validating development and construction works carried out in stark violation of law---Petition was dismissed in circumstances.

Abdul Qadeer Khan v. Chairman, C.D.A. 1999 YLR 247; Capital Development Authority v. Dr. Abdul Qadeer Khan 1999 SCMR 2636; Salah ud Din v. Collector, Land Acquisition, Peshawar 1999 CLC 776; East and West Steamship Co. v. Pakistan PLD 1958 SC 41; Gadoon Textile Mills v. WAPDA 1997 SCMR 641; Pakistan Broadcasters Association v. Pakistan Electronic Media Regulatory Authority PLD 2016 SC 692; Muhammad Mubeen-us-Salam v. Federation of Pakistan through Secretary, Ministry of Defence PLD 2006 SC 602; City School Private Limited v. Government of the Punjab PLD 2018 Lah. 509; D.G. Khan Cement Company Ltd. through its Chief Financial Officer v. Federation of Pakistan through Secretary Ministry of Law PLD 2013 Lah. 693; Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. v. Federation of Pakistan through Secretary Ministry of Interior PLD 2007 SC 642; Government of the Punjab through Chief Secretary, Punjab, Lahore v. Naseer Ahmad Khan through L.Rs. 2010 SCMR 431; Suo Motu Case No.10 of 2007 PLD 2008 SC 673; Arshad Mehmood v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore PLD 2005 SC 193; Pakistan Refinery Limited v. International School of Choueifat through Principal Officer 2009 YLR 2000; Ch. Muhammad Ishaque, Advocate v. Cantonment Executive Officer, Chunian, District Kasur PLD 2009 Lah. 240; Dr. Miss Hajira Abdullah, Professor of Paediatrics (Rtd.) F.J. Medical College, Lahore v. Lahore Development Authority, Lahore PLD 1997 Lah. 464; Karachi Building Control Authority v. Hashwani Sales and Services Limited PLD 1993 SC 210; Messrs Shaheen Cotton Mills, Lahore v. Federation of Pakistan, Ministry of Commerce through Secretary PLD 2011 Lah. 120; Suo Motu Case No.13/2009 PLD 2011 SC 691; Park View Enclave (Pvt.) Limited v. Capital Development Authority 2018 CLC 947; Ummatullah v. Province of Sindh PLD 2010 Kar. 236; PLD 2011 SC 619 and Lahore Development Authority v. Ms. Imrana Tiwana 2015 SCMR 1739 ref.

Ms. Ayesha Hamid for Petitioners.

Muhammad Nazir Jawad for Respondents.

Rashid Hafeez, Deputy Attorney-General.

Ms. Sitwat Jehangir, Assistant Attorney-General.

2019 M L D 393

[Islamabad]

Before Athar Minallah, C.J. and Miangul Hassan Aurangzeb, J

SULEMAN KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.201 of 2016, decided on 17th December, 2018.

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

----S.9(c)---Recovery of narcotic substance---Appreciation of evidence---Representative sample---Scope---Quantum of sentence---Charas packed in 226 packets, each packet contained 3 or 5 slabs, total weighing 285 kilograms was alleged to be recovered from accused---Samples from one slab each from all packets was taken and sent to Chemical Examiner and the same was declared as narcotic substance---Trial Court convicted the accused and sentenced him to imprisonment for life---Validity---Entire quantity of recovered substance was said to have weighed 285 kilograms but as the samples for chemical examination were not taken from each of the slab contained in 226 packets and as each of the slab was not separately weighed, therefore, it could not be assumed that the entire 285 kilograms of the recovery was narcotic substance---Sample taken from one slab in each of the 226 packets could not be considered to be a 'representative sample' of all 3 or 5 slabs contained in each of the 226 packets---Slabs from which samples were not taken could not be considered as narcotic substance as sentence under Control of Narcotic Substances Act, 1997, depended on the quantity of recovered narcotic substance---Quantity of Charas recovered from the possession of accused did not exceed 10 kilograms, therefore, he could not be sentenced to undergo imprisonment for life---Accused had been behind the bars for more than 5½ years---High Court maintained the conviction but reduced to the sentence to one already undergone---Appeal was dismissed accordingly.

Ameer Zeb v. The State PLD 2012 SC 380 and Taeb Hussain v. The State (Criminal Appeal No.63 of 2013) ref.

Ajmal Khan Khattak for Appellant.

Malik Awais Haider, State Counsel for the State.

2019 M L D 590

[Islamabad]

Before Mohsin Akhtar Kayani, J

SHUJA AHMED---Petitioner

Versus

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

W.P. No.4341 of 2017, decided on 26th October, 2018.

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

----Ss. 17, 24 & 25 (3)---Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005, Cl. 2.17.3---Capital Development Authority Ordinance (XXIII of 1960), S. 49-C---Ejectment of tenant---Lease agreement, violation of---Expression "inquiry"---Scope---Eviction petition was moved on the ground of violation of lease agreement but same was dismissed---Validity---Relationship of landlord and tenant between the parties and lease agreement had been admitted---Tenant was running school in the demised premises in violation of lease agreement---Courts below were to consider each and every document brought on record while holding an inquiry---Oral evidence could not exclude the documentary evidence---Tenant had acknowledged the general terms of lease agreement except the usage of premises---Rent Controller had to decide the matter within four months and it was not required to frame issues and record evidence in every case in the eviction proceedings---Capital Development Authority had imposed fine upon the landlord for non-confirming use of the demised premises---Courts below were to afford due opportunity of hearing to the parties while holding inquiry in the matter---If S.17 of Islamabad Rent Restriction Ordinance, 2001 was attracted in the matter then judgment in summary manner was to be passed as in the cases of default or expiry of lease---Tenant had indulged in the activities which were causing nuisance to the neighbour---Demised premises could be used for the purpose of living and not to run any commercial activity---Commercial usage of residential buildings was illegal and no premium could be given to any tenant to enjoy such illegality under the garb that landlord had permitted him to use the same---Findings recorded by the Courts below were against the law---Impugned judgments and decrees passed by the Courts below were set aside and eviction petition was allowed---Appeal was accepted, in circumstances.

Waqar Zafar Bakhtawari v. Haji Mazhar Hussain Shah PLD 2018 SC 81 rel.

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

----S. 24---'Inquiry'---Meaning---Word "inquiry" means investigation, examination, exploration, probe, search, scrutiny, scrutnization, study, inspection, inquest and hearing.

Oxford Thesaurus of English Dictionary and Ashfaq Ahmad Khan v. PTCL and others PLD 2016 Isl. 112 rel.

Muhammad Naseer for Petitioner.

2019 M L D 708

[Islamabad]

Before Athar Minallah and Shaukat Aziz Siddiqui, JJ

ALLIED BANK LTD.---Petitioner

Versus

Messrs FAZAL VEGETABLE GHEE MILLS and others---Respondents

E.F.As. Nos. 7 and 8 of 2013, decided on 17th December, 2015.\

Civil Procedure Code (V of 1908)---

----Ss. 47 & 2(2)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) Ss. 17 & 19---Execution of decree of Banking Court---Jurisdiction of Executing Court---Claims by liquidators and employees of a judgment-debtor company---Scope---Appellant impugned order of Executing Court, which whilst executing decree of Banking Court, allowed applications seeking payment of liquidators fee and claims of the Employee's Oldage Benefit Institution (EOBI) contribution of judgment-debtor's employees; from the decree-holder Bank---Question before High Court was whether the Executing Court while executing a decree of Banking Court, could go beyond the scope of such decree---Held, that after a decree had been drawn up, the same had to be executed and such decree was separate and distinct from the judgment---Decree was an expression of conclusively determining matters placed before a Trial Court for adjudication---Even if a judgment and decree were pursuant to an agreement, but terms thereof were not mentioned in the decree, though recorded in the judgment, then such terms could not be read in the decree as having been granted---Executing Court could not extend its jurisdiction to go behind the decree and question its correctness---Exceptions to said rule only existed when a decree was silent regarding as to what property was subject matter of execution or if an execution of the decree was nullity in the eye of law, or the same had been passed by the Court having no jurisdiction or, if execution of such decree would not infringe the legal rights of a decree holder if it was refused to be executed---Applications upon which impugned orders were passed were therefore neither competent nor had any nexus with the execution of the decree and such orders were set aside---Appeal was allowed, accordingly.

Ghulam Muhammad v. Sultan Mahmud and others PLD 1963 SC 265; Mst. Ashraf Bibi v. Barkat Ali PLD 1956 Lah. 27; Syed Riaz Ahmad Shah and another v. Dayal Singh College Trust Society and another 1972 SCMR 237; Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640; Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Ltd. and 2 others 1994 SCMR 22; Fakir Abdullah and others v. Government of Sindh through Secretary to Government of Sindh, Revenue Department Sindh Secretariat and others PLD 2001 SC 131; Allah Ditta v. Ahmed Ali Shah and others 2003 SCMR 1202; Rehmat Wazir and others v. Sher Afzal and others 2005 SCMR 668 and Muhammad Ali v. Zakir Hussain PLD 2005 Lah. 331 rel.

Malik Ghulam Sabir and Barrister Suleman Khan for Petitioner.

Ch. Fayyaz Ahmed Padana, Ms. Shabih Zehra for EOBI.

Muhammad Tariq Khan for Respondents.

2019 M L D 824

[Islamabad]

Before Miangul Hassan Aurangzeb, J

ABDUL KHALIQ---Petitioner

Versus

MUHAMMAD YOUNAS and others---Respondents

Civil Revision No. 181 of 2013, decided on 14th December, 2018.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Civil Procedure Code (V of 1908), Ss. 35(1) & 115---Suit for specific performance of agreement to sell---Agreement, proof of---Fixation of costs---Failure to produce scribe and original document---Effect---Owner of land entered into agreement for sale of land to plaintiff but prior to date of execution landowner sold his land to defendant through registered sale deed---Plaintiff filed suit for specific performance of agreement---Trial Court dismissed suit but same was decreed by Lower Appellate Court---Validity---Agreement in question placed bilateral obligations on plaintiff to pay remaining sale consideration and on landowner to transfer suit land in favour of plaintiff by agreed date---Essential particulars of specifically enforceable agreement were not lacking in agreement to sell therefore, agreement was not unilateral in nature---No pleadings in written statement filed by defendant and landowner as to execution of registered sale deed in question was not produced in evidence---Registered sale deed did not even find mention in list of documents on which defendant and landowner wanted to place their reliance---Defendant and landowner were both proceeded against ex-parte and prior to being so proceeded both were given warnings and were also burdened with costs for not producing their evidence---Defendant and landowner were given ample opportunities to produce their evidence, they could have done so and in such process registered sale deed could have been produced as evidence---Any seller by entering into agreement to sell his land with one party and then by simply ignoring his obligations under such agreement conveyed same land long with possession to another party exposed himself to a claim by subsequent purchaser to present market value of land including all expenditures incurred thereon---To hold otherwise would amount to encouraging such sellers to succeed in their nefarious designs---High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court and imposed heavy costs under S. 35(1), C.P.C.---Revision was dismissed in circumstances.

2006 CLC 571, 2005 MLD 364; PLD 1976 Lah. 6; Farid Bakhsh v. Jind Wadda 2015 SCMR 1044 and Hafiz Tassaduq Hussain v. Muhammad Din PLD 2011 SC 241 ref.

Zulfiqar Ali Abbasi for Petitioner.

Malik Babar Hameed for Respondent No.1.

Faiz Akhtar for Respondent No.2.

Date of hearing: 19th November, 2018.

2019 M L D 870

[Islamabad]

Before Athar Minahllah, J

Messrs ATTOCK GEN LTD.---Petitioners

Versus

ADDITIONAL COMMISSIONER (AUDIT), LARGE

TAXPAYER UNIT, ISLAMABAD and 3 others---Respondents

W.P. No.4066 of 2012, decided on 9th July, 2015.\

(a) Show-cause notice---

----"Show cause"---Meaning---Show cause was a demand to produce a satisfactory explanation or excuse in connection with a motion or application to a court.

Black's Law Dictionary 8th Edition rel.

(b) Notice---

----Meaning--- Various types of notices---Notice was defined as legal notification required by law or agreement or imparted by operation of law as a result of some fact (such as recording of an instrument), definite legal cognizance, actual or constructive, of an existing right or title---One had notice of a fact or condition if such person had actual notice of it or had received information about it or had reason to know about it and knew about a related fact---Due notice was defined as sufficient and proper notice that was intended to, and likely to, reach a particular person or public and a notice that was legally adequate given the particular circumstance---Reasonable notice was notice that was fairly to be expected or required under particular circumstances---Notice could be described as intelligence by whatever means communicated, information, knowledge or Constitutional requirement of due process which included allegations, opportunity to answer and trial according to some settled course of procedure.

Black's Law Dictionary, 8th Edition and Words and Phrases, Vol. 28-B rel.

(c) Constitution of Pakistan---

----Art. 10A---Fundamental right to fair trial and due process of law---Issuance of show-cause notice---Scope---Show-cause notice was essentially an instrument whereby authorized person under law informed a person regarding allegation or facts which may form basis for proceedings against such person and may eventually culminate in an adverse order---Show-cause notice was the first requirement of compliance with due process and its purpose was to put a person to notice by giving sufficient information so as to provide an adequate opportunity of submitting an explanation---Authorized person after issuing a show-cause notice, was under mandatory obligation to provide a purposive and meaningful opportunity of hearing to the person to whom such notice was sent---Depending on facts and circumstances of each case, all such persons were to be provided opportunity to produce evidence and where necessary , an opportunity of cross-examination, and such requirement under Art. 10-A of the Constitution were an integral part of Fundamental Right of due process.

(d) Constitution of Pakistan---

----Art. 199---Income Tax Ordinance (XLIX of 2001), Ss.122(9) & 122(5)--- Constitutional petition---Show-cause notice was impugned by petitioner---Constitutional jurisdiction of High Court---Scope---Show-cause notice was not an adverse order unless it could be clearly shown to the satisfaction of the Court that it had been issued by an authority not vested with jurisdiction or it was issued for mala fide reasons---Exception to be made by the High Court for want of jurisdiction did not include every jurisdictional error and a wrong exercise of jurisdiction or interpretation of law could not be treated as want of jurisdiction---Constitutional jurisdiction was exercised if the Court was satisfied that the petitioner was an aggrieved party within context of Art. 199 of the Constitution and no other adequate remedy was provided for in law for such petitioner---If statutory remedies were provided, then the same had to be taken into consideration by the High Court and bypassing or circumventing statutory forums was to be discouraged---High Court was to advance the object and purpose of a statute and every effort should be made to uphold sanctity of Legislative intent, rather than defeating the same.

The Burmah Oil Company (Pakistan Trading) Ltd., Chittagong v. The Trustees of the Port of Chittagong PLD 1962 SC 113; Messrs Usmania Glass Sheet Factory Ltd. Chittagong v. Sales Tax Officer, Chittagong PLD 1971 SC 205; Messrs Julian Hoshang Dinshaw Trust and others v. Income Tax Officer, Circle XVIII South Zone, Karachi and others 1992 SCMR 250; Attock Cement Pakistan Ltd. v. Collector of Customs, Collectorate of Customs and Central Excise, Quetta and 04 others 1999 PTD 1892; Mir Muhammad Idris v. Federation of Pakistan through Secretary Ministry of Finance PLD 2011 SC 213; Sindh High Court Bar Association through Secretary v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad PLD 2009 SC 789 ref.

Messrs Mutual Funds' case 2010 PTD 1924; Messrs Shahbaz's case PLD 2013 Sindh 449 = 2013 PTD 969; Pakistan Chrome Tannery's case 2011 PTD 2643; Messrs Azgard Nine Ltd. v. Pakistan through Secretary and others PLD 2013 Lah. 282 = 2013 PTD 1030; Associated Industries Ltd., Amangarh Industrial Area, Nowshera and others v. Federation of Pakistan in W.P. No.1425 of 2010; Muhammad Hussain Kazi v. Government of the Punjab PLD 1983 SC 187; Allah Warayo Chana v. Aijaz Ahmad Khan 1999 SCMR 1880; Collector of Customs, Customs House, Lahore v. S.M. Ahmad and Company (Pvt.) Limited, Islamabad 1999 SCMR 138; Commissioner of Income Tax v. Hamdard Dawa Khana (Waqf) Pak PLD 1992 SC 847; Commissioner of Income Tax v. Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279; Muhammad Akram v. The State PLD 1996 SC 246; Gatron (Industries) Ltd. v. Government of Pakistan and others 1999 SCMR 1072; The Murree Brewery Co. Ltd. v. Pakistan through Secretary to GOP, Works and Division and 2 others PLD 1972 SC 279; The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha, and others PLD 1958 SC 437; Messrs Amin Textile Mills (Pvt.) Ltd. v. Commissioner of Income Tax and 02 others 2000 SCMR 201; Muhammad Ismail v. Fazal Zada PLD 1996 SC 246; Union of India and another v. Kunisetty Satyanarayana (2006) 12 Supreme Court Cases 28; Secretary, Min. of Defence and others v. Prabhash Chandra Mirdha AIR 2012 SC 2250; Union of India v. Hindalco Industries (2003) 5 Supreme Court Cases 194; Special Director and another v. Muhammad Ghulam Ghouse and another (2004) 3 Supreme Court Cases 440 and Union of India and another v. Kunisetty Satyanarayana AIR 2007 SC 906 rel.

Shaukat Ali Qureshi for Petitioner (in W.Ps. Nos. 4066/2012, 2241/2013, 3896/2013, 4474/2013 and 307/2014).

Hafiz Muhammad Idrees for Petitioner (in W.Ps. Nos. 2481/ 2013, 305/2014 and 306/2014).

Nadeem Anjum for Petitioner (in W.P. No.562/2014).

Muhammad Bilal, Saeed Ahmed Zaidi, Hafiz Munawar Iqbal, Babar Bilal, Dr. Farhat Zafar and Sheikh Anwar ul Haq for Respondents.

Date of hearing: 9th June, 2015.

2019 M L D 1026

[Islamabad]

Before Athar Minallah, C J

MAZHAR MUNIR---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Housing & Work and 2 others---Respondents

Writ Petition No. 726 of 2018, decided on 5th March, 2019.

Pakistan Council of Architects and Town Planners Ordinance (IX of 1983)---

----S. 3---Function test---Applicability---Petitioner was member of Pakistan Council of Architects and Town Planners and assailed summoning of annual general meeting of Council for Architects and Town Planners---Validity---Federal Government did not exercise either administrative or financial control over the Pakistan Council of Architects and Town Planners---Function test was applied in case of statutory bodies to determine whether they were to be treated as a 'person' or not---Pakistan Council of Architects and Town Planners was not a 'person' for purposes of Art. 199 of the Constitution on touchstone of "function test"---High Court declined to exercise Constitutional jurisdiction---Constitutional petition was dismissed in circumstances.

Pakistan Defence Officers Housing Authority and others v. Lt.-Col Syed Jawaid Ahmed and others 2013 SCMR 1707 and Pakistan International Airlines v. Tanweer-ur-Rehmani PLD 2010 SC 676 rel.

Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010; Acces Solar (Pvt.) Ltd and 2 others v. Federation of Pakistan and 3 others 2017 CLC 1259; Dr Farzana Bari v. Ministry of Law, Justice and Human Rights through Secretary and 3 others PLD 2018 Islamabad 127 and Aitchison College, Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326 ref.

Riaz Hanif Rahi for Petitioner.

Syed Muhammad Tayyab, Deputy Attorney General for the State.

2019 M L D 1178

[Islamabad]

Before Miangul Hassan Aurangzeb, J

PAK GULF CONSTRUCTION PRIVATE LIMITED and another---Appellants

Versus

ABDUL HAMID BAIG and another---Respondents

F.A.O. No.116 of 2016, decided on 15th January, 2019.

Arbitration Act (X of 1940)---

----Ss. 14, 17 & 30---Limitation Act (IX of 1908), Art. 158---Award---Application for making award as rule of Court---Objections---Limitation---Commencement of---Expression "notice in writing"---Scope---Objections against award were dismissed and award was made rule of the Court---Validity---Limitation period of thirty days had been provided under Art. 158 of Limitation Act, 1908 for filing of objections from the date of service of notice of filing of the award---Court was to give notice to the parties of the filing of award---Purpose of giving notice was to ensure that parties had knowledge of filing of award in the Court---Objections, if any, to the award were to be filed within a period of thirty days of such knowledge---Party in whose presence award was filed in the Court would have knowledge as to its filing and notice to such party would be a futile exercise---Such party could not claim that the limitation period for filing of objections to the award had not commenced---Limitation period for such a party for filing objections to the award would commence from the date when award was filed in the Court---Award, in the present case, was not filed in the presence of the parties or their counsel---Court issued a notice to the parties for their intimation accordingly---Limitation period for filing objections to the award would commence from the date on which respondent received notice from the Court as to filing of the award---Nothing was on record to show as to when notice with regard to filing of award was received by the respondent---Trial Court was not correct in holding that respondent's objection were time-barred---Arbitrator had ignored the arbitration agreement between the parties---Arbitrator had committed misconduct by holding that respondent was entitled to the return of the partial payment made and loss of rent---Alleged award was not sustainable in the eye of law---Respondent's objections were allowed and impugned judgment and decree passed by the Trial Court were set aside---Appeal was allowed, in circumstances.

Mahboob Alam v. Mumtaz Ahmad PLD 1960 Lah. 601; Ashfaq Ali Qureshi v. Municipal Corporation, Multan 1985 SCMR 597; Abdul Waris v. Javed Hanif 1983 SCMR 716; Mian Asmat Shah v. Mian Faiq Shah PLD 2012 Pesh. 181 and Parveen v. Jehana 2007 CLC 1877 rel.

Barrister Talha Ilyas Sheikh for Appellants.

Barrister Junaid Zamurrad Khan for Respondents.

2019 M L D 1217

[Islamabad]

Before Miangul Hassan Aurangzeb, J

RAWAL INSTITUTE OF HEALTH SCIENCES (PVT.) LIMITED through Chairman---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of National Healh Services, Islamabad and 2 others---Respondents

Writ Petitions Nos. 1817 of 2016 and 3953 of 2018, decided on 18th February, 2019.

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

----Ss. 11, 22 & 22-B---Medical and Dental Institutions (Recognition, Eligibility Criteria for Enhancement in Annual Admissions and Accreditation) Regulations, 2012, Rglns. 13 & 15---Medical and Dental Institutions (Recognition, Eligibility Criteria for Enhancement in Annual Admissions and Accreditation) Regulations, 2018, Rgln. 9(4)---Campus inspection---Campus criteria, non-compliance of---Pakistan Medical and Dental Council restrained petitioner, a Medical Institute to give admissions to students after inspection of campus but same was not complied with---Authorities imposed a fine penalty in shape of deposit of tuition fees collected from students for such violation---Petitioner Institute raised allegations against inspectors who conducted the inspection---Validity---Allegations were not just vague and general in nature but were made two weeks after inspection and same could be termed as belated afterthought---If there had been any truth to allegations of irregularity in inspection conducted, petitioner would have lost no time in bringing them to the notice of Pakistan Medical and Dental Council---Petitioner Institute was obliged to have explicitly brought decision of Pakistan Medical and Dental Council to notice of any student seeking admission after inspection---Such vital information was contumaciously withheld by petitioner Institute from two batches of students---Petitioner had not separated its medical college from the hospital so as to house them in separate buildings within three years of making of Medical and Dental Institutions (Recognition, Eligibility Criteria for Enhancement in Annual Admissions and Accreditation) Regulations, 2012---Petitioner had been operating in violation of Regln. 13 of Medical and Dental Institutions (Recognition, Eligibility Criteria for Enhancement in Annual Admissions and Accreditation) Regulations, 2012---No legal infirmity existed in decision of Pakistan Medical and Dental Council to stop petitioner Institute from further intake of students---Decision passed by Pakistan Medical and Dental Council was in consonance with mandate of S. 22(1) of Pakistan Medical and Dental Council Ordinance, 1962---Pakistan Medical and Dental Council rightly approved decision of Executive Committee to stop petitioner from further intake of students in MBBS and BDS until deficiencies pointed out by inspectors were rectified---High Court declared imposition of penalty as to deposit of fees (collected from two batches of students admitted by petitioner Institute after decision of Pakistan Medical and Dental Council) with Pakistan Medical and Dental Council as without lawful authority and of no legal effect---Decision of Pakistan Medical and Dental Council regarding continuation of restriction on further intake of students was in consonance with mandate of S. 22 of Pakistan Medical and Dental Council Ordinance, 1962 and did not suffer from any jurisdictional infirmity---Constitutional petition was allowed accordingly.

Nadir Khan v. Principal, Khyber Medical College, Peshawar 1995 SCMR 421; Faisal Asad v. Secretary, Health, Government of Sindh 1995 MLD 104; G. N. Dalmia v. The State PLD 1963 (W.P.) Lah. 474; Abdul Aziz v. The State PLD 1965 Dacca 98; Pakistan Telecommunication Company Ltd. v. Pakistan Telecommunication Authority PLD 2015 Isl. 184 and Plaza Hotel and Bar v. Federation of Pakistan 1990 CLC 682 ref.

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

----S. 22---Inspection note---Compliance---Scope---Pakistan Medical and Dental Council is under no obligation to conduct inspection of a recognized institution as and when it takes fancy---Medical or Dental Institution, under S. 22 of Pakistan Medical and Dental Council Ordinance, 1962 is required to submit its explanation within period intimated by Pakistan Medical and Dental Council after latter decides to stop further intake of students in such institution; it would be expedient if a re-inspection is conducted soon after an explanation is submitted by the institution requesting for re-inspection.

Malik Qamar Afzal and Mr. Saad Khan Mayar for Petitioner (in Writ Petition No.1817 of 2016).

Khalid Ishaq for Petitioner (in Writ Petition No.3953 of 2018).

Nadeem Khan Khakwani, Deputy Attorney-General.

Hafiz Arfat Ahmed Ch. and Ms. Kashifa Niaz Awan for P.M.&D.C.

Nouman Munir Paracha and Saadia Noreen Malik for Shaheed Zulfiqar Ali Bhutto Medical University, Islamabad.

Shakeel Ahmed, Treasurer, P.M.&D.C.

Dr. Syed Azhar Ali Shah, Assistant Registrar, P.M.&D.C.

2019 M L D 1445

[Islamabad]

Before Aamir Farooq and Mohsin Akhtar Kayani, JJ

Syed KARAM HUSSAIN SHAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 190 and 196 of 2016, decided on 6th May, 2019.

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

----Ss. 9(c)& 15---Possession of narcotic substance, abetment or association in narcotic offences---Appreciation of evidence---Benefit of doubt---Prosecution case was that on spy information, police stopped a vehicle near a petrol station---On search of vehicle, three packets of charas, 1kg each (total 3kg), wrapped in khaki solution tape and momi lifafa was recovered from the bag of accused sitting on front seat of the vehicle, whereupon three samples parcels from the said three packets were prepared---Similarly, the person who was driving the vehicle was co-accused, who disclosed that charas garda had been concealed in front doors of the vehicle and on his disclosure, the front doors were opened and two packets of charas garda each weighing 1- kg (total 2kg) wrapped in khaki solution tape and momi lifafa were got recovered, from which sample of 10 grams was taken from each packet---Investigating Officer, during the course of cross-examination, had acknowledged that marasla did not contain element of colour of vehicle, however he stated that accused driver did not try to accelerate the vehicle when he was stopped by the constables---Said witness made personal search of the accused and he stated that both accused-appellants had disclosed about the charas---Investigating Officer had acknowledged that site plan did not contain the presence of witnesses and on the day of working the petrol station was operational---Said witness had acknowledged that employees of petrol station were called to witness the recovery proceedings, but they refused to become witnesses of narcotics case---Other witness of recovery had narrated the entire story of prosecution, however, he acknowledged during the course of cross-examination that at the time of preparation of parcel, the overwritten date was mentioned and the seal of article was not intact and found broken---On the request of defence counsel, a parcel was de-sealed and on de-sealing three packets wrapped in khaki solution tape were found and it was observed by the Court that three packets had a small cut at the corner from where sample substances were taken out---Said witness had further acknowledged that the substances were present in solid slab shape and not in a powder form---Witness had further acknowledged that seal of other article was also found broken and not intact, therefore, on the request of defence counsel, the parcels were de-sealed, where after recovery witness had acknowledged that two packets were found in same position at the time of recovery other than a corner found cut from where a sample was got separated---Substance was found in a solid slab form and not in a powder form---Said witness had been crossed examined at length, but no material contradiction had been achieved by the accused-appellant's side---Recovery of contraband i.e. 03 kg of charas in black colour shoulder bag with lock from accused had fully been proved, in circumstances---Black colour shoulder bag, lock of the bag and key of the lock had been produced and identified in the court---If seen in the light of results tendered by the Chemical Examiner, it substantially proved that the recovered contraband was charas garda---Similarly, the other recovery of 02 Kg charas from co-accused was also proved on the basis of testimonies of recovery witnesses as vehicle was produced before the Court along with its registration book---Even otherwise, co-accused was driver of the said vehicle and liability of driver in narcotics cases had to be seen with reference to his necessary knowledge---Driver/accused was having conscious knowledge and control of the said vehicle as he disclosed about the contraband concealed in secret cavities of doors of vehicle, which also made him liable for prosecution---Contraband was concealed in front doors of the vehicle, therefore, onus was upon the accused-appellants to prove in terms of Art. 122 of the Qanun-e-Shahadat, 1984 as to how the contraband was concealed in the car---In the present case, both the accused-appellants had got possession of their own charas, which was separately recovered on their pointation, therefore, it could not be presumed that they both were in joint possession of the total recovered charas i.e. 05 kilogram---No ill-will, mala fide or enmity had been demonstrated against the Anti Narcotic Force authorities---Even otherwise, not a single discrepancy had been noted in the evidence of prosecution witnesses---Samples were sent to the laboratory within proper time, whereby the recovered contraband was proved to be charas garda---Accused-appellants themselves raised no objection in the trial court to open up the remaining contraband, which otherwise was properly exhibited---Prosecution, had successfully proved its case against the accused-appellants---High Court observed that accused-appellants were sentenced by the Trial Court on its lower side, which required enhancement, but at the stage, when accused persons had already served their sentences of 03 years and 02 years rigorous imprisonment, respectively, the sentences could not be enhanced---Appeal was dismissed accordingly.

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

Nadir Khan v. The State 1988 SCRM 1899; Muhammad Noor and others v. The State 2010 SCMR 927; Ghulam Murtaza v. The State PLD 2009 Lah. 362; Amir Zeb v. The State PLD 2012 SC 380 The State through ANF Peshawar v. Rashm Ali Khan PLD 2016 SC 471 rel.

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

----Ss. 9(c) & 15---Possession of narcotic substance, abetment or association in narcotic offences---Appreciation of evidence---Benefit of doubt---Driver of vehicle from where contraband was recovered---Burden of proof---Driver of vehicle, against whom the prosecution had discharged its onus, was to be declared responsible person for transportation of narcotics---Possession could be considered exclusive one and joint with other co-accused---Driver of the vehicle, being incharge of the same, it would be considered that all the articles lying in vehicle were under his control and possession---When accused persons sitting in a vehicle individually led to recovery of contraband, they were to be held equally liable for the total quantity of the recovered contraband---Appeal was dismissed accordingly.

Kashif Ameer v. The State PLD 2010 SC 1052 rel.

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

----Ss. 9(c) & 15---Possession of narcotic substance, abetment or association in narcotic offences---Enhancement of sentence, refusal of---If legal sentence had already been completed and offender had been released, his sentence could not be enhanced.

Bahadur Ali and others v. The State 2002 SCMR 93; Mehrban Khan v. Ghulam Murtaza and others 2006 SCMR 1091 and Haji Tahir Hussain v. Saqlain and others 2008 SCMR 817 rel.

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

----Ss. 9(c) & 32---Possessing and trafficking narcotics---Confiscation of vehicle---Scope---Contraband concealed in secret cavity of vehicle---Said vehicle was to be confiscated in terms of S.32 of the Control of Narcotic Substances Act, 1997, in favour of State.

Syed Hamid Ali Bukhari for Appellants (in Criminal Appeal No.190 of 2016).

Ch. Ehtisham-ul-Haq, Special Prosecutor, ANF. for the State (in Criminal Appeal No.190 of 2016).

Ch. Ehtisham-ul-Haq, Special Prosecutor, ANF for Appellant (in Criminal Appeal No.196 of 2016).

Syed Hamid Ali Bukhari for Respondent (in Criminal Appeal No.196 of 2016).

2019 M L D 1630

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Mst. PARVEEN AKHTAR---Petitioner

Versus

Mian SALAH-UD-DIN and 3 others---Respondents

Civil Revision No. 142 of 2016, decided on 15th February, 2019.

Specific Relief Act (I of 1877)---

----Ss. 12, 20 & 27 (b)---Transfer of Property Act (IV of 1882), Ss. 41 & 3---Suit for specific performance of agreement to sell---Subsequent sale of suit property---Bona fide purchaser---Notice---Contention of defendant was that she was bona fide purchaser of suit property---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Defendant was bound to prove that she had no notice of the earlier agreement with regard to suit property---Notice contemplated under S. 27(b) of Specific Relief Act, 1877 was not confined to actual notice but it did include constructive notice---Any person acquiring any immovable property or any share or interest in any such property should be deemed to have notice of the title if any person who was for the time being in actual possession thereof---Where a subsequent transferee of an immovable property acquired it without making any inquiry as to the title of the person in possession then he would take the property subject to the right and title of the person in possession---When a person did purchase property from an owner knowing that it was in the possession of another then he was under a duty to inquire into the nature of that possession and in absence of such inquiry knowledge of title under which possession was held should be attributed to the purchaser---Possession of suit property, in the present case, was with the plaintiff and defendant was bound to enquire about the nature of his possession when she entered into the agreement to sell---Nothing was on record that defendant made inquiries with regard to nature of possession of plaintiff over the suit land---Defendant was deemed to have constructive notice of the agreement in favour of plaintiff, in circumstances---Subsequent transaction of sale of suit property by the defendant could not take precedence over the earlier sale agreement---Protection of S.41 of Transfer of Property Act, 1882 was available to a transferee who purchased the property after reasonable care---Subsequent purchaser seeking benefit of S.41 of Transfer of Property Act, 1882 must plead with clarity in his written statement that before purchasing the property reasonable care had been taken by making enquiries as to the title of seller and status of the person in possession of such property---Defendant had not taken reasonable care by making an inquiry and she could not be termed a bona fide purchaser---Mere additional prayer in a suit for specific performance of an agreement to sell for grant of compensation could not be a ground to deny relief of specific performance---Mere mentioning of an amount in the agreement which was to be paid by a seller in case of its breach did not disable the purchaser from seeking the specific performance of such an agreement---Breach of contract to transfer immovable property could not be adequately relieved by compensation in monetary terms---Impugned judgment passed by the Appellate Court was in accordance with law---Revision was dismissed, in circumstances.

Shah Nawaz through LRs v. Abdul Ghafoor 2008 SCMR 352; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Binyameen and others v. Chaudhry Hakim and another 1996 SCMR 336 and Vinod Kumar v. Aroza AIR 1987 SC 2179; Haji Abdul Majeed and others v. Amjad Khan 2012 CLC 1483; Mushtaq Ahmed and another v. Jaffar and others 2008 SCMR 1018; Niamat Ali v. Hassan Muhammad and others 1987 MLD 30; Haji Akram Rehman v. Noor Ahmed and others PLD 1974 Baghdad-ul-Jadid 25; Vidhyadhar v. Mankikarao AIR 1999 SC 1441; Kishore Singh v. Barij Bihari Singh AIR 1993 Patna 122 and Ramdeni Singh and another v. Gumani Rut and another AIR 1929 Patna 300 ref.

Hafiz Tassadaq Hussain v. Lal Khatoon and others PLD 2011 SC 296; Abdul Jabbar v. Mst. Maqbool Jan 2012 SCMR 947; Ghulam Rasool v. Muhammad Hussain PLD 2011 SC 119; Rasool Bakhsh Naich v. Syed Rasool Bakhsh Shah 2010 SCMR 988; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon 1994 SCMR 2189; R.K. Mohammed Ubaidullah v. Hajee Abdul Wahab AIR 2001 SC 1658; Ghulam Rasool v. Noor Muhammad 2017 SCMR 81; Noor Hassan v. Ali Sher 2015 SCMR 452; Mst. Rubina Badar v. Messrs Long Life Builders 2012 SCMR 84; Abdul Rashid v. Muhammad Yaseen 2010 SCMR 1871; Habib Bank Ltd. v. Syed Muhammad Haroon 2009 CLD 140; Abdul Karim v. Muhammad Sham 1973 SCMR 225; Messrs Pioneer Housing Society (Pvt.) Limited v. Messrs Babar and Company PLD 1999 Lah. 193; Mst. Noor Jehan v. Muhammad Rafique 1995 CLC 43; Haji Abdul Kasim v. Builders Incorporated 1990 MLD 712; Sh. Muhammad Riaz Diwana v. Sh. Muhammad Sharif 1989 MLD 3663; Fakhar-ud-Din v. Muhammad Feroze 2016 YLR 866; Muhammad Saleem v. Muhammad Shafi 2004 YLR 1882; Amanullah v. Sher Afzal 2003 MLD 1142; Abdul Aziz v. Maqsood Ahmed 2000 MLD 1875; Abdul Majeed v. Ghulam Shabbir 2000 CLC 643 and Sohail Ahmed Jan v. Siraj Ahmed Jan 2018 CLC 919 rel.

Syed Hamid Ali for Petitioner.

Manzoor Hussain Malik and Rizwan Shabbir Kayani for Respondents.

Ms. Sitwat Jehangir, Assistant Attorney-General for Respondents.

Date of Hearing: 13th December, 2018.

2019 M L D 1671

[Islamabad]

Before Athar Minallah, C.J. and Miangul Hassan Aurangzeb, J

NOOR HASSAN alias NOORA and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 192, 193 and Murder Reference No.8 of 2016, decided on 12th June, 2019.

(a) Criminal trial---

----Investigation---Object, scope and purpose---Investigation, in criminal justice system, has the most crucial status because it is the foundation for ensuring that actual perpetrators of a crime are prosecuted and sentenced after proving their guilt with certainty---Probability of abuse of criminal justice system at the hands of Investigating Officers cannot be ruled out because the system has repute and tendency of being exploitative and inequitable---Having regard for safe administration of criminal justice system, Court cannot ignore the tendency of forcing confessions and falsely implicating persons by Investigating Officers of ulterior motives, be that for corruption, due to inexperience or merely to show their performance in solving undetected crimes---Lack of accountability of investigating officers, particularly when persons are sent for trial without conducting proper, fair and honest investigations, has serious implications for the society and the rights of citizens to remain safe from being exposed to crime---Accountability of an Investigating Officer is of paramount importance in criminal justice system so as to ensure that an innocent person does not suffer agony of losing fundamental right of free movement and to be dealt with as accused.

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

----S. 396---Dacoity with murder---Appreciation of evidence---Benefit of doubt---Investigating Officer not appearing as witness---Accused persons were arrested and were sent to face trial on basis of their admissions made in some other criminal case---Trial Court convicted accused persons and sentenced them to death---Nothing was available on record to establish as to how one of the accused persons was arrested---Identification of such accused and recovery of crime weapon buried in ground only 100 meters away from the crime scene did not appeal to prudent mind nor was proved through reliable evidence brought on record---Both accused persons were arrested and implicated on basis of their disclosures made to two distinct police officers within days from transfer of investigation---Nothing was on record to show connection of both the accused persons and medical evidence contradicted ocular depositions---Case was investigated by a police officer for three months after occurrence, who never entered witness box and there was no explanation on behalf of prosecution in such regard---High Court set aside conviction and sentence awarded to both the accused persons as prosecution had failed to prove their guilt beyond a reasonable doubt---Appeal was allowed accordingly.

Kamal Din alias Kamala v. The State 2018 SCMR 577 rel.

Atta Ullah Hakim Kundi and Mohammad Sadiq Khan for Appellant.

Malik Awais Haider, State Counsel.

2019 M L D 1772

[Islamabad]

Before Miangul Hassan Aurangzeb, J

FIZZA MAI---Petitioner

Versus

SHAHBAZ HASSAN KHAN and others---Respondents

Writ Petition No. 3169 of 2018, decided on 13th June, 2019.

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

----S. 491---Habeas corpus petition---Custody of minor---'Illegal or improper' custody---Snatching of minor to be an incident of recent past---Lack of urgency---Welfare of minor---- Scope---Petitioner/ maternal grandmother assailed order of Sessions Judge whereby he had temporarily handed over the custody of minor to father---Express reference in the said order was made to earlier judgment passed by Guardian Judge, whereby the petitioner's application for appointment as guardian was dismissed---No specific order regarding minor's custody was, however, passed by Guardian Judge---Validity---Ever since minor was six days of age, her custody had been with petitioner (maternal grandmother)---Nothing was available on record to suggest that minor's upbringing by the petitioner was wanting or deficient in any manner---Father had admitted in proceedings before Guardian Judge that just seven months prior to the recording of his evidence, he had returned from abroad---Minor was cared for by the petitioner/her maternal grandmother for eight long years---Minor could not be said to have lived in 'illegal or improper' custody---Minor was not snatched by the petitioner from her father in the recent past and since there was no urgency in the matter due to the fact that minor had remained in her grandmother's custody for eight years---Ingredients for the exercise of jurisdiction under S. 491, Cr.P.C. lacked in the case---Ever since passing of impugned order (nine months ago), minor had been in her father's custody and had been admitted to school---Petitioner resided in different District and if minor's custody was returned to the petitioner, she would be pulled out from her school and re-admitted to her earlier school---Minor's welfare and interest would not be best served if that were to happen---High Court turned down the prayer for handing over custody of minor to the petitioner/grandmother---Petition was disposed of accordingly.

Mst. Nadia Perveen v. Mst. Almas Noreen PLD 2012 SC 758; Shazia Akbar Ghalzai v. Khurram Mehboob 2019 SCMR 116; Mah Rukh Bajwa v. Aftab Alam 2008 MLD 751; Irshad Bibi v. District Police Officer 2019 PCr.LJ 436 and Ayesha Naseer v. District and Sessions Judge 2011 YLR 78 rel.

Shaukat Masih v. Mst. Farhat Parkash 2015 SCMR 731 fol.

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

----S. 491---Habeas corpus petition---Competence---Scope---Custody of minor---"Illegally or improperly detained"---Summary proceedings---Interim proceedings---Welfare of minor---Scope---High Court, in exercise of its jurisdiction under S. 491, Cr.P.C., can direct that any person 'illegally or improperly detained' in public or private custody within its territorial limits be set at liberty---Petition under S. 491, Cr.P.C. or a writ of habeas corpus is not ordinarily found to be competent where there is no element of illegal custody of a minor---Court can, however, in the interests of the child's welfare, pass an appropriate order in exercise of its inherent jurisdiction---Court while deciding such petitions does not conduct detailed inquiries or go into factual controversies---Such proceedings are summary in nature and aimed at providing immediate and efficacious relief to the aggrieved party---Orders passed in such proceedings are interim in nature and are subject to the final orders passed by a court exercising jurisdiction under the provisions of the Guardians and Wards Act, 1890.

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

----S. 491---Habeas corpus petition---Jurisdiction of Court---Scope---Custody of minor---Restoration of custody---'Illegal or improper' custody---Snatching of minor to be an incident of recent past---Scope---Jurisdiction under S. 491, Cr.P.C. is exercised by court so as to 'restore' the custody of the detenu to the person where it rightfully and lawfully belongs---Before passing an order for the restoration of custody, the court must form a prima facie view that the custody from which the detenu is sought to be recovered is 'illegal and improper', and that there is a real urgency in the matter.

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

----S.491---Habeas corpus---Custody of minor---Maternal grandmother's custody---Snatching of minor---Scope---Court, in exercise of jurisdiction under section 491, CrPC, tend not to interfere with a maternal grandmother's custody over minor where there is no element of snatching of the minor.

Nadeem Iqbal v. Muhammad Kabir Khan 2011 YLR 348 and Muhammad Khurshid v. Ihtisham 2014 PCr.LJ 1249 rel.

Mian Imtiaz Haider for Petitioner.

Muhammad Ayaz Gondal for Respondent No.1.

Date of hearing: 13th June, 2019.

2019 M L D 1861

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD ZAKIR BANDHANI---Petitioner

Versus

MUHAMMAD AMIR BANDHANI and 14 others---Respondents

Writ Petition No. 2978 of 2017, decided on 13th May, 2019.

(a) Interpretation of statutes---

----Rules made under statute---Status---Principle---Rules have status of subordinate and delegated legislation, deriving authority and legal cover from provisions of statute under which they were framed---Rules have same force as provisions of statute under which they are framed and have to be treated as part of parent Act. [p. 1868] A

Khawaja Ahmad Hassaan v. Government of Punjab and others 2005 SCMR 186 and Ubedullah Khan v. Muhammad Ayoob 2003 YLR 1555 rel.

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

----Ss. 44, 46, 71 & 138---Sindh Local Councils (Election) Rules, 2015, Rr. 29, 39, 40 & 60---Re-polling---Petitioner was returned candidate who was aggrieved of recount of votes on 2 polling stations authorized by Returning Officer---Order of Returning Officer was maintained by Election Commission of Pakistan---Validity---Consolidation of results had not taken place and name of returned candidate was not published in official gazette---Question of taking dispute to Election Tribunal by filing election petition had not arisen---Petitioner had acquiesced to recount of votes and participated in process without any demur or reservation and there was no objection on part of petitioner to recount of votes---Recount of votes at polling stations in question produced result which was not in conformity or consistent with result of polls in such polling stations contained in Forms-XI---Such disparity created doubt in mind of Returning Officer as to legality of process of election at polling stations in question therefore, he requested Election Commission of Pakistan to conduct a re-poll---Election Commission of Pakistan was justified in ordering a re-poll at polling stations in question since dispute could not have been agitated before Election Tribunal through an election petition because consolidation of results had not taken place and name of returned candidate was not published in official gazette---High Court declined to interfere in exercise of Constitutional jurisdiction in re-poll at polling stations in question---Appeal was dismissed in circumstances.

Chaudhary Wajid Ayub and another v. Malik Rizwan Ahmed and others Election Appeal No.01 of 2016 and Ameer Haider Sangha v. Sumaira Malik 2018 SCMR 1166 ref.

Arif Khan Gigyani for Petitioner.

Barrister Umair Majeed Malik for Respondent No.1.

2019 M L D 4

[Sindh (Hyderabad Bench)]

Before Aftab Ahmed Gorar, J

DITTAL alias ALI AHMED and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-368 of 2018, decided on 10th September, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal code (XLV of 1860 ), Ss. 302, 337-A(i), 337-F(i), 337-H(2), 504, 147, 148 & 149---Qatl-i-amd, hurt, harsh or negligent act to endanger human life or personal safety of others, rioting, armed with deadly weapon, unlawful assembly---Bail, grant of---Vicarious liability---Scope---No active role was attributed to present petitioners---Complainant apprehended absconsion of the petitioners if concession of bail was to be granted to them as one co-accused had already absconded---Validity---Petitioners were charged with offence punishable with capital punishment---Bail could not be granted to the petitioners when sufficient grounds appeared to establish their connection with the commission of offence---No active role was attributed to the petitioners , prima facie their vicarious liability with the main accused was the question, which could be determined by the Trial Court ---Absconsion of co-accused did not prohibit the petitioners for the concession of bail---Place of occurrence, as stated in the FIR, was a public place but no indepenedant witness had been cited despite the fact that the parties were, admittedly, on inimical terms---Delay of eleven hours in lodging of FIR without plausible explaination---Alleged injuries to the witnessess were not punishable with capital punishment and did not come within the prohibitory clause of 497(1), Cr.P.C ---Petitioners were behind the bars since their arrest and no fruitful purpose would be served to keep them in jail for an uncertain period---Petitioners were granted bail, in circumstances.

Abdul Rasool Abbasi for Applicants Nos. 1 and 2.

Safdar Ali Charan for Applicant No.3.

Ms. Sana Memo, A.P.G. Sindh for the State.

Sikandar Ali Soomro for the Complainant.

2019 M L D 14

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

Syed SHARAFAT HUSSAIN and 6 others---Applicants

Versus

MOHAMMAD BUX---Respondent

Civil R.A. No. 48 of 2009, decided on 1st August, 2018.

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

----S. 8---Civil Procedure Code (V of 1908), O. XLI, R. 33 & S. 151---Suit for possession of immovable property---Appellate Court, powers of---Scope---Contention of plaintiffs was that they were owners of suit land which was leased out to the defendant by them---Suit was decreed by the Trial Court but Appellate Court dismissed the same---High Court during pendency of revision petition directed the Notified Officer to produce record of Settlement department pertaining to the suit land---District Officer (Revenue) submitted report that subject land was in the names of plaintiffs but same had been cancelled from their names---Validity---Report submitted by the District Officer (Revenue) did not mention the date when the suit land was cancelled from the names of plaintiffs which needed to be probed into whether such cancellation was done before leasing out land to the defendant or subsequently---Such facts were to be adjudicated on merits---Appellate Court had failed to take any step for a just and proper decision rather confined its findings on technicalities---Appellate Court, could on its own, take necessary steps for doing complete justice---Trial Court had committed material illegality in the proceedings---Appellate Court had failed to exercise its jurisdiction and take steps for a just and proper decision based on justice---Impugned judgments and decrees passed by the Courts below were set aside---Suit was remanded to the Trial Court for fresh decision on merits---Trial Court was directed to call report from Deputy Commissioner (Revenue) and bring the same on record and after verification of official documents pass a fresh decision---Revision was allowed, in circumstances.

PLD 1980 Lah. 316; PLD 1989 SC 353; PLD 1980 Kar. 477 ref.

Mohabat v. Asadullah Khan and others PLD 1989 SC 112; Mst. Faal Jan v. Resham Bibi and others PLD 1992 SC 811; Ghulam Hussain and another v. Fazal Muhammad and others PLD 1991 SC 218 and North West Frontier Province Government, Peshawar v. Abdul Ghafoor Khan PLD 1993 SC 418 rel.

(b) Administration of justice---

----No one's right should be infringed due to omission or error committed by the Court.

Iftikhar Baig v. Azam and others 1996 SCMR 762 rel.

(c) Administration of justice---

----Law favours adjudication on merits rather on technicality.

Applicants Nos.2 to 7 in person and Attorney.

Farooq Rasheed for Respondent.

2019 M L D 30

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

AYUB MASIH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application Nos.1811 and 1124 of 2017, decided on 26th March, 2018.

Criminal Procedure Code ( V of 1898)---

----Ss. 497 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 14, 15, 25 & 51---Possession of narcotic drugs, aiding, abetment or association in narcotic offences--- Post-arrest bail, refusal of---Complainant raided the house of one petitioner and recovered more than 14 kilograms of charras; on his disclosure; charas weighing 8 kilograms was recovered from the house of his neighbour, the other petitioner---Petitioners contended that alleged recovery had been conducted in violation of provision contained under S.103, Cr.P.C---For recovery of contraband more than 1 Kilogram S.9 of Control of Narcotic Substances Act, 1997 provided penalty of death or imprisonment for life or imprisonment for a term which could extend to 14 years and also fine up to one million rupees---Case of the petitioners, therefore, was hit by the prohibition contained in S.51, Control of Narcotic Substances Act, 1997 ---Section 25 of Control of Narcotic Substances Act ,1997 excluded the applicability of S.103, Cr.P.C---Petitioners were not entitled for the concession of bail in circumstances.

2009 SCMR 306 and 2011 PCr.LJ 398 ref.

Syeda Zubaida Shah for Applicant. (in Crl. B.A. No.1811 of 2017).

Mustafa Safvi for Applicant (in Crl. B.A. No.1124 of 2017).

Ms. Abida Parveen, Special Prosecutor for A.N.F. for the State.

2019 M L D 43

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

Mst. FARZANA---Petitioner

Versus

PROVINCE OF SINDH through Secretary Education, Karachi and 6 others---Respondents

Constitutional Petition No.D-1295 of 2017, decided on 25th September, 2017.

Sindh Education Foundation Act (VII of 1992)---

----S. 9---Constitution of Pakistan, Chapter-II & Art. 25-A---Promotion of Primary Schools in Rural Sindh Scheme---Allotment of schools---Petitioner was aggrieved of denial of contract of schools under Promoting Primary Schools in Rural Sindh Scheme by Sindh Education Foundation---Validity---If objective of an enactment was for public at large then it should never remain on papers only but fruits thereof must reach to the tail---Main aim of Sindh Education Foundation was to raise standard of education and improvement of literacy rate---Sindh Education Foundation had the domain to accept or decline a request for allotment of schools therefore, petitioner legally could not deprive the Foundation of such prerogative---Mere allegation of corruption or corrupt practice was never sufficient to order an inquiry as such action always brought name and fame of such institution under clouds; order in this regard would always require some substance and not mere allegations---Petitioner, prima facie, placed nothing on record to shoulder her allegations therefore, prima facie petitioner was not able to make out a case in her favour---High Court directed that Sindh Education Foundation or any other person should not cause any harassment to petitioner which however would not prevent them to go in accordance with law---Constitutional petition was dismissed accordingly.

Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530 ref.

Farhad Ali Abro for Petitioner.

Malik Altaf Javed for Respondent No.2.

Sajjad Ahmed Chandio files Vakaltanama on behalf of Respondents Nos.6 and 7, taken on record.

Allah Bachayo Soomro, Additional A.G. for Respondents.

2019 M L D 57

[Sindh]

Before Nazar Akbar, J

FAZAL-UR-REHMAN---Appellant

Versus

The STATE and another---Respondents

Crl. Appeal No. 17 of 2013 and M.A. No.8458 of 2017, decided on 30th July, 2018.

Illegal Dispossession Act (XI of 2005)---

----S. 3(2)----Criminal Procedure Code (V of 1898), 423(1)(b)---Prevention of illegal possession of property---Sentence, reduction in---Scope---Accused had been sentenced for five years imprisonment and Rs. 3,00,000/- as compensation to complainant---Accused had stated that he was not willing to pursue claim over the property in dispute provided compensation amount was forgiven by complainant and the sentence awarded was also waived by reducing the same to the period already spent by him in jail till his release on bail---Complainant had made a statement in writing to forgo compensation amount of Rs. 3,00,000/- imposed by the Trial Court in the impugned judgment---Complainant further stated that if the accused did not pursue or did not claim anything adverse to the interest of complainant in respect of the property in dispute, he had no objection to even reduction of punishment of imprisonment to the period already undergone by the accused---Validity---Record showed that the complainant did not press for conviction and the accused would not interfere with the possession and title of the complainant on the property in dispute---Impugned judgment was modified and sentence awarded to the accused was reduced to the period of his confinement already undergone---Order of compensation was also recalled since the complainant had already forgiven---Appeal was allowed accordingly.

Taj Muhammad and another v. Muhammad Anwar 2009 YLR 559; Jan Muhammad v. The State 1988 MLD 2734 and Kamir and another v. The State NLR 1988 Criminal 620 rel.

Shamroz Khan Termizi, advocate holding brief for Muhammad Nawaz for Appellant.

Naseer Ahmed Khan, advocate for Respondent No.2.

Ms. Rahat Ahsan, Addl. P.G and Abrar Ali Khichi, D.P.G. for the State.

Appellant present in person.

2019 M L D 84

[Sindh]

Before Adnan Iqbal Chaudhry, J

Messrs VENUS PAKISTAN PRIVATE LIMITED through Authorized representative, Karachi---Plaintiff

Versus

Messrs SUPREME FUELS GmbH & CO. and another---Defendants

Suit No. 665 of 2011 and C.M.A. No.14915 of 2017, decided on 27th April, 2018.

Civil Procedure Code (V of 1908)---

----O.XXVI, Rr.1, 2, 4 & S.75---Power of Court to issue commission---Discretion---Scope---Power to issue a commission to examine any person; to make local investigation; to examine or adjust accounts; or to make a partition, stemmed from S.75, C.P.C. was subject to conditions and limitations as might be prescribed by O.XXVI, C.P.C.---Order XXVI, R.2, C.P.C. expressly empowered the court to issue a commission for examination of a witness on its own motion---When the court exercised power under O.XXVI, R.2, C.P.C. to issue a commission to examine witnesses on its own motion, such was largely a matter of discretion of the court not circumscribed by the conditions set out in O.XXVI, Rr.1 & 4, C.P.C.

Shahnaz v. Hamid Ali Mirza 2006 CLC 1736; Khawaja Feroz v. Muhammad Dawood PLD 2008 Kar. 239 and Badar Rahim v. Hammad Asif Dosslani 2009 CLC 459 rel.

Shagufta Noor v. Ishrat Jehan 2012 CLC 1902 ref.

Altamash Arab for Plaintiff.

Qasim Jamal for Defendant.

2019 M L D 94

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

TARIQ MEHMOOD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 152 of 2018, decided on 16th March, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 201, 202, 297 & 34---Qatl-i-amd, causing disappearance of evidence, intentional omission to give information of an offence, trespassing in place of worship or sepulture, disturbing funeral, offer indignity to a human corpse, common intention---Bail, grant of---Further inquiry---Petitioner, along with other co-accused, allegedly provided help to the main accused/husband of the deceased lady (daughter of the complainant) who called an ambulance and later buried dead body in her wearing apparel without observing Islamic rituals of giving her last bath and shroud including Janaza prayer---Complainant contended that main accused with the help of his unknown friends murdered her and in order to conceal their offence they had buried her in the manner described in the FIR---Record revealed that after lodging FIR main accused (husband of the deceased lady) was arrested and on his pointation three co-accused, including the petitioner were arrested---Allegation of the Complainant against the petitioner, was that he, being friend of main accused, had provided help to bury his deceased wife without body ritual purification and prayer, therefore, the complainant had doubt that the petitioner was also involved in murder of his daughter with the main accused---Post-Mortem Report, conducted after exhumation, showed that the death of the deceased lady occurred due to asphyxia caused by constriction of neck and dead body of the deceased was found to be in same dress as disclosed by the complainant in the FIR---No evidence was available on the record that the petitioner provided help to the main accused in commission of murder as private witnesses of the prosecution had claimed that unknown friends of the main accused took the dead body in ambulance and provided help for her sepulture without last bath and shroud which amounted to insult of the human corpse---Allegation levelled by the said witnesses against the petitioner fell under Ss.201, 202 and 297, P.P.C. which provisions of the law were bailable---Allegation of helping of main accused in the murder of the daughter of the complainant required further inquiry---Petitioner was admitted to bail, in circumstances.

Shah Imroz Khan for Applicant.

Ali Anwer Khandro, ADPP, along with Inspector Mir Muhammad for the State.

2019 M L D 117

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

ALI MUHAMMAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.735 of 2018, decided on 5th September, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 409, 420, 468, 471 & 34---Prevention of Corruption Act (II of 1947),S. 5(2)---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, common intention, public servant committed or attempt to commit criminal misconduct---Bail, refusal of---Medical grounds---Scope---Further enquiry---Scope---Loan to the tune of over seven million was sanctioned on the agricultural land already mortgaged with the same Bank---Petitioner, being officer of the Bank, allegedly issued fake pass books on 900 acres lands of elders of the complainant on the basis of the entries of two decades ago---Petitioner contended that his case fell within the ambit of further inquiry as he was respectable officer and in his advance age, suffering from diabetes and hypertension---Complainant contended that huge amount was outstanding against loan obtained by co-accused in connivance with the petitioner and revenue officials---Validity---Record revealed that the Revenue Authorities had passed the orders that entries in revenue record made in the year 1994 were fake---Six pass books were prepared on different dates during the year 2014 in which the said entries were kept and shown to be of 1994---Petitioner issued pass books on the basis of said fake entries and the co-accused, with the connivance of officials of the Bank, obtained loan and caused heavy loss to the national exchequer---Petitioner had not filed any application before the Trial Court to constitute Medical Board to determine as to which of the diseases was detrimental to his life in jail and simply placing record of hypertension and diabetes was not sufficient to consider bail on medical grounds---Every hypothetical question, which could creep into the mind and which could be resolved only after recording evidence during trial, would not make the case as that of further inquiry---Case of further inquiry would only be made out when data collected by the prosecution was not sufficient to provide reasonable grounds for believing that prima facie case did not exist against the accused---Petitioner, was prima facie involved in the present offence; he was nominated in the FIR and specific role was attributed to him---No enmity, mala fide or ulterior motive on the part of the complainant was available on the record---Sufficient material had been collected by the prosecution to show the involvement of the petitioner with the commission of the offence charged with, which came outside the ambit of prohibitory clause of S.497(2), Cr.P.C---Bail was refused to the petitioner, in circumstance.

Nadir Khan Burdi for Applicant.

Abdul Sattar Mahesar for the Complainant.

Abdul Wasey Khan, D.A.G. along with I.O. Aijaz Ali, Sub-Inspector FIA, Sukkur for Respondent.

2019 M L D 127

[Sindh]

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

INTIKHAB A. SYED and others---Petitioners

Versus

CHAIRMAN, NAB and others---Respondents

Constitutional Petitions Nos. D-633 of 2016, D-584, D-585, D-586, D-813, D-1170 of 2013, D-786 of 2012, D-3149, D-8716, D-7058, D-4394 of 2017, D-5148 of 2014, D-5856 of 2016 and D-6538 of 2015, decided on 7th May, 2018.

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

----Ss. 5(r), 25-A & 31-D---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 2(a)(g) [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act (XXXVIII of 2016)]---- Wilful default---Jurisdiction---Significant differences between S. 5(r) of National Accountability Ordinance, 1999 and S. 2(g) of Financial Institutions (Recovery of Finances) Ordinance, 2001 [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act (XXXVIII of 2016)], is that whilst Financial Institutions (Recovery of Finances) Ordinance, 2001 only applies to financial institutions and their customers, whereas National Accountability Ordinance, 1999 is of wider application---Some of the provisions of National Accountability Ordinance, 1999 vis-à-vis wilful default are more advantageous to accused/defaulter as he has safeguard of S. 31-D of National Accountability Ordinance, 1999 and benefit of conciliation committee and ability to make a plea bargain under S. 25(b) of National Accountability Ordinance, 1999---One of the key and most important difference is sentence and disqualification period entailed in each piece of legislation---Period of sentence is up to 14 years imprisonment in National Accountability Ordinance, 1999 whilst in Financial Institutions (Recovery of Finances) Ordinance, 2001 it is up to 7 years imprisonment which is significantly lower--- Disqualification period in National Accountability Ordinance, 1999 is 10 years and disqualification period in Financial Institutions (Recovery of Finances) Ordinance, 2001 [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act (XXXVIII of 2016)], is 5 years.

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

----S. 2(a)(g) [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act (XXXVIII of 2016)]---National Accountability Ordinance (XVIII of 1999), S. 5(r)---Wilful default---Law applicable---Provisions of Financial Institutions (Recovery of Finances) (Amendment) Act, 2016 which amended Financial Institutions (Recovery of Finances) Ordinance, 2001 is later in time than National Accountability Ordinance, 1999---Provisions on "wilful default" are similar but not identical in both laws---Parliament was aware of existence of such a similar offence of wilful default in National Accountability Ordinance, 1999 it has deliberated and consciously intended to give preference to offence of wilful default as provided in Financial Institutions (Recovery of Finances) (Amendment) Act, 2016---As a general principle of statutory interpretation, offence of wilful default under Financial Institutions (Recovery of Finances) Ordinance, 2001, prevails to the exclusion of offence of "wilful default" under National Accountability Ordinance, 1999.

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

----Ss. 5(r), 25-A & 31-D---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 2(a)(g) [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act (XXXVIII of 2016)]---General Clauses Act (X of 1897), S. 6---Wilful default---Forum of trial---Implied repeal, doctrine of---Applicability---Parts of definition of S. 5(r) of National Accountability Ordinance, 1999 relating to wilful default which are covered by definition of 'financial institution' under S. 2(a) of Financial Institutions (Recovery of Finances) Ordinance, 2001 are hit by doctrine of implied repeal---Cases of wilful default have to proceed exclusively under Financial Institutions (Recovery of Finances) Ordinance, 2001 and exclusively before Banking Courts under Financial Institutions (Recovery of Finances) Ordinance, 2001 and not under National Accountability Ordinance, 1999 subject to question of retrospectivity.

State v. Syed Mir Ahmed Shah and another PLD 1970 Quetta 49; Constitutional and Administrative Law" 5th Ed. and Alamdar Hussain's case 2017 CLD 1101 rel.

(d) Interpretation of statutes---

----Act, applicability of---Principle---Any Act takes effect from the date it is promulgated unless it is specifically stated in the Act that it has to take effect from a given date.

Sajid Dadabhoy v. NAB 2015 PCr.LJ 729 and Muhammad Ashfaq v. State PLD 1973 SC 368 distinguished.

(e) Interpretation of statutes---

----Retrospective effect---Applicability---Retrospective effect can only be given to a statute in exceptional cases---Any Act is retrospective or prospective only appears to be whether amendment is procedural only or whether it can be said to effect substantive law and whether holding any Act to be of retrospective effect causes inconvenience or injustice or effects existing vested rights of any parties.

Muhammad Hussain v. Muhammed and others 2000 SCMR 367; Mst. Sarwar Jan v. Mukhtar Ahmed PLD 2012 SC 217; Muhammed Tariq Badr v. NBP 2013 SCMR 214 and MCB Bank Ltd. v. Abdul Waheed Abro 2016 PLC 168 rel.

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

----S. 2(a)(g) [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act (XXXVIII of 2016)]---National Accountability Ordinance (XVIII of 1999), Ss. 5(r) & 9(a)(viii)---Wilful default---Quashing of proceedings---Petitioners were aggrieved of filing of references by National Accountability Bureau against them for committing offence of wilful default---Petitioners contended that promulgation of Financial Institutions (Recovery of Finances) (Amendment) Act, 2016, barred jurisdiction of National Accountability Bureau in cases of wilful default, as provisions of Financial Institutions (Recovery of Finances) (Amendment) Act, 2016 had retrospective effect---Validity---Provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act 2016] applied to and prevailed over all cases of wilful default under National Accountability Ordinance, 1999 as per definition provided in S. 2(g) of Financial Institutions (Recovery of Finances) Ordinance, 2001 from 13-8-2016 when Financial Institutions (Recovery of Finances) (Amendment) Act, 2016, took effect---Other matters relating to wilful default, inquires, investigations and other proceedings of wilful default not covered by S. 2(g) of Financial Institutions (Recovery of Finances) Ordinance, 2001, [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act, 2016] but covered by S. 5(r) of National Accountability Ordinance, 1999 were continued to be governed by National Accountability Ordinance, 1999---Financial Institutions (Recovery of Finances) Ordinance, 2001 [as amended by Financial Institutions (Recovery of Finances) (Amendment) Act, 2016] did not have retrospective effect---All complaint verifications, cases pending before Governor State Bank of Pakistan in connection with National Accountability Ordinance, 1999, National Accountability Bureau inquiries, investigations and references in respect of offence of wilful default under National Accountability Ordinance, 1999 in existence prior to 13-8-2016 were continued to be governed by National Accountability Ordinance, 1999---Any convictions under National Accountability Ordinance, 1999 were subjected to same sentences, disqualifications etc., as provided in Financial Institutions (Recovery of Finances) Ordinance, 2001 and not under National Accountability Ordinance, 1999---All persons already convicted of offence of wilful default under National Accountability Ordinance, 1999 were to remain convicted and their appeals were to proceed with under mechanism provided in National Accountability Ordinance, 1999---Constitutional petition was dismissed accordingly.

Syed Mushahid Shah v. FIA 2017 SCMR 1218; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; The State v. Maulvi Muhammed Jamil PLD 1965 SC 681; Rana Abdul Ghaffar v. Abdul Shakoor PLD 2006 Lah. 64; Malik Gul Hasan and Co. v. Allied Bank of Pakistan 1996 SCMR 237; The State v. Nasim Amin Butt 2001 SCMR 1083; Hafiz Muhammad Abdullah v. Imdad Ali Shah and another 1972 SCMR 173; Yusuf Ali Khan Barrister-at-law Lahore v. Messrs Hongkonk and Shanghai Banking Corporation Karachi and another 1994 SCMR 1007; Rai Naeem Shahadat v. Mst. Qamar Munir and others 2004 SCMR 412; Air League of PIAC Employees through President v. Federation of Pakistan, M/O Labour and Manpower Division Islamabad and others 2011 SCMR 1254; Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa 2015 SCMR 43; Sarwar Jan v. Mukhtar Ahmed PLD 2012 SC 217; Saeed Ahmed v. The State PLD 1964 SC 266; T. Barai Henry Ah Hoe's case AIR 1983 SC 150; Taza Khan v. Ahmed Khan 1992 SCMR 1371; Kohinoor Mercantile Corporation v. Hazera Khatoon PLD 1963 Dacca 238; State of Orissa v. M.A. Tulloch AIR 1964 SC 1284; Sona v. The State PLD 1970 SC 264; Waqar Azim v. The State 2002 YLR 1811; I.G. HQ Frontier Corps v. Ghulam Hussain 2004 SCMR 1397; Amjad Hussain v. NAB 2017 YLR 1; Asfandyar Wali Khan v. Federation of Pakistan PLD 2001 SC 607 and Abdul Aziz Memon v. Federation of Pakistan PLD 2013 SC 594 ref.

Mohammad Anwar Tariq and Muhammad Rehman Ghous for Petitioners (in C.Ps. Nos. D-633 of 2016, D-584, D-585, D-586, D-813 and D-1170 of 2013).

Ahmed Hasan Rana for Petitioners (in C.Ps. Nos. D-4394, D-3149 of 2017 and D-786 of 2012).

Mohammad Anwar Tariq for Petitioner (in C.P. No. D-5856 of 2016).

Nabeel Nazeer Ahmed for Petitioner (C.P. No. D-7058 of 2017).

Sami Ahsan for Petitioners (in C.P. No. D-5148 of 2014, D-6538 of 2015 and D-8716 of 2017).

Mohammad Altaf and Yassir Siddiqui, Special Prosecutors, NAB (in all Constitutional Petitions).

Malik Khurshal Khan and Naveed ul Haq for Respondents (in C.P. No. D-633 of 2016).

Khilji Bilal Arif for Respondents (in C.P. No. D-1349 and 4349 of 2017).

Mansoor ul Haq for Respondents (in C.P. No. D-7058 and D-8716 of 2017).

Abdul Aziz Abro for Respondents (in C.P. No. D-5148 of 2016).

Ms. Naheed A. Shahid for Respondents (in C.P. No. D-5856 of 2016).

Mehmood Nazir Rana for the State Bank of Pakistan (in C.P. No. D-633 of 2016).

Salman Talibuddin, Additional Attorney-General for Pakistan along with Ms. Maria Ahmed on Court's Notice.

2019 M L D 159

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

NASIR ALI---Applicant

Versus

Mst. KAUSAR PARVEEN through General Attorney and 8 others---Respondents

R.A. No.138 of 2000, decided on 8th April, 2018.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Suit for declaration and permanent injunction---Plaintiff claimed ownership of land, which she got converted in "Sikni" land---Trial Court and Appellate Court concurrently decreed the suit---Defendants claiming their ownership on the land sold the same through sale deeds---Plea of defendants was that plaintiff had no title in the said land and conversion of land to "Sikni" should not have been allowed---Validity---While passing conversion order no question was posed nor any clearance was sought as to plaintiff's title in the land---Concerned official was not even cognizant of the fact that formalities had to be complied with when allowing such a request---Courts below without applying their mind as to the title of plaintiff had decreed the suit, which land was otherwise non-existent---Revision petition against the judgments and decrees of Courts below was allowed.

Mushtaque Ahmed Arain for Applicant.

Arbab Ali Hakro for Respondents.

2019 M L D 173

[Sindh (Sukkur Bench)]

Before Irshad Ali Shah, J

Mst. LUBNA---Applicant

Versus

MUHAMMAD SOHAIL and 3 others---Respondents

Civil Revision Application No.S-09 of 2018, decided on 20th August, 2018.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Suit for declaration and mandatory injunction---Non-payment of court-fee---Rejection of plaint---Restoration of plaint---Scope---Defendant filed application for rejection of plaint on the ground that plaintiff had not valued the suit properly for the purpose of payment of court-fee---Trial Court dismissed the application with direction to the plaintiff to value the suit properly for court-fee within two weeks---Trial Court, on account of plaintiff's failure to value the suit properly, rejected the plaint---Appellate Court allowed the appeal with costs---Validity---Valuable rights of the parties were involved in the suit, which could only be resolved on merits and not on technicalities---Revision petition was dismissed, in circumstances.

Federation of Pakistan through Secretary Ministry of Defence, Government of Pakistan and others v. Messrs Rehan Construction Company 2009 SCMR 758; Muhammad Hafiz Khan v. Ali Asghar alias Asghar Ali and others PLD 2002 (Azad J&K) 9 and Mst.Saddiqunnisa v. Khan Sahib Agha Muhammad Sultan Mirza and others PLD 1972 Kar. 103 distinguished.

Sohail-ur-Rehman Shaikh for Applicant.

Shafqat Rahim Rajput for Private Respondent.

Agha Athar Hussain Pathan, A.A.G. for Official Respondents.

2019 M L D 189

[Sindh (Larkana Bench)]

Before Irshad Ali Shah, J

AMJAD ALI and 2 others---Applicants

Versus

The STATE---Respondent

Civil Miscellaneous Application No. S-48 of 2018, decided on 26th September, 2018.

Illegal Dispossession Act (XI of 2005)---

----Ss.3 & 4---Illegal dispossession---Demarcation of property---Scope---Trial Court directed Mukhtiarkar to make demarcation of the property---Validity---Matter between the parties was only to the extent of demarcation of the property, Trial Court could have advised the parties to have recourse of law through civil/revenue court having jurisdiction---Order passed by Trial Court was in excess of its jurisdiction---Criminal miscellaneous application was allowed in circumstances.

Searle IV Solution (Pvt.) Ltd. v. Federation of Pakistan 2018 SCMR 1444 rel.

Sohail Abbas Bhutto for Applicants.

Ghulam Asghar Junejo for Private Respondent.

Sharafuddin Kanhar, A.P.G. for the State.

2019 M L D 212

[Sindh]

Before Adnan Iqbal Chaudhry, J

NAZAR GUL---Plaintiff

Versus

MAYMAR HOUSING SERVICE (PVT.) LTD.

and 4 others---Defendants

Suit No.1593 of 2012 and Suit No. 1934 of 2014, decided on 17th May, 2018.

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

----O. I, R. 10---Suit for declaration---Allotment of suit land in favour of interveners/ applicants---Necessary and proper party---Impleadment of---Object---Allotment letters of suit property were issued in favour of interveners/applicants---Interveners sought impleadment as party to the suit---Validity---Any person could be joined as a proper party even though no relief was claimed against him---Primary object of impleading a "proper party" was to avoid multiplicity of legal proceedings---No person could be added as party so as to set up a new cause of action having no concern with the original parties---Court had discretion to add parties in the suit but said discretion was to be exercised in view of facts and circumstances of a particular case---If a person did not qualify as a "necessary" or a "proper party" Court had no jurisdiction to add him as a party---Interveners, in the present case, had claimed to be necessary party for seeking relief for specific performance of their allotment letters for which they had independent remedy---Interveners could not derive the relief of specific performance of their allotment letter in the present suit---Such relief could only be sought by the interveners by way of an independent suit for specific performance---Decree in the present suit would not in any way adversely affect the separate remedy available to the applicants---Interveners/applicants could not be impleaded as necessary parties in the present suit---Prerogative of plaintiff to add parties as dominus litis was subject to such parties qualifying the test of necessary or property parties---Application for impleadment of party was dismissed in circumstances.

Uzin Export Import Enterprises for Foreign Trade v. Union Bank of Middle East Ltd. PLD 1994 SC 95 ref.

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

----O. I, R. 10(2)---"Distinction between a proper party and necessary party" in terms of O.I, R.10, C.P.C. and prerogative of court to add parties to a suit summarized.

Distinction between a 'proper party' and a 'necessary party' to a suit in terms of Order I, Rule 10, C.P.C., and the prerogative of the Court to add parties to a suit, is summarized as follows:

(i) a 'necessary party' is one who ought to have been joined and in whose absence no effective decree can be passed;

(ii) the non-joinder of a necessary party can be fatal to the suit;

(iii) a 'proper party' is one whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit;

(iv) a person can be joined as a proper party even though no relief is claimed against him but the primary object of impleading a proper party is to avoid multiplicity of legal proceedings and to determine effectually and finally all questions arising in the proceedings. Such person must, therefore, be a person whose interest is likely to be affected even though no relief is claimed against him;

(v) persons cannot be added as parties so as to set up a new cause of action which does not concern the original parties;

(vi) the power of the Court under Order I, Rule 10(2), C.P.C. to add parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case;

(vii) while adding a party, the Court may put the party to terms;

(viii) if a person does not qualify as a necessary or a proper party, then the Court has no jurisdiction to add him as a party under Order I Rule 10(2), C.P.C.;

(ix) in exercising power under Order I Rule 10(2), C.P.C. the Court ought to see that it does not load the record with the parties wholly shown to have no interest in the suit, and that the trial of the suit is not embarrassed by the simultaneous investigation of unconnected controversies.

Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463; Pakistan Banking Council v. Ali Mohtaram Naqvi 1985 SCMR 714; Uzin Export Import Enterprises for Foreign Trade v. Union Bank of Middle East Ltd. PLD 1994 SC 95; Mst. Rani v. Mst. Razia Sultana 1994 SCMR 2268; Ghulam Ahmad Chaudhry v. Akbar Hussain PLD 2002 SC 615; and Muhammad Arif v. District and Sessions Judge, Sialkot 2011 SCMR 1591 fol.

Abid S. Zuberi and Saad Saeed for Plaintiff (in Suit No.1593 of 2012 and the Defendant in Suit No.1934 of 2014).

Yawar Faruqui and Irfan Memon for the Defendants Nos.1 to 4 (in Suit No.1593 of 2012 and the Plaintiffs in Suit No.1934 of 2014).

Athar Ali Memon for Intervenors (in Suit No.1593 of 2012).

Muhammad Ashraf Khan Mughal for Intervenors (in Suit No.1593 of 2012 and Suit No.1934 of 2014).

2019 M L D 249

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

MEHMOOD KHAN MAHAR---Appellant

Versus

QAMAR HUSSAIN PURI and 5 others---Respondents

High Court Appeals Nos.173 and 174 of 2016, decided on 10th July, 2018.

Limitation Act (IX of 1908)---

----S. 5---Condonation of delay---Lack of knowledge---Appellant was aggrieved of order passed by Single Judge of High Court in two consolidated counter suits---Appellant sought condonation of delay on ground of lack of information where property in question was de-sealed and handed over to respondents through judgment and decree passed by the Single Judge of High Court---Validity---Appellant had intermittent or little contact with his counsel could not be sustained as grounds of waiver of limitation---Appellant was unable to justify delay in filing appeals---Division Bench of High Court declined to condone delay in institution of appeal as there was no sufficient grounds were made out to condone admitted delay in institution of appeals and appellant had failed to raise any cogent grounds for grant of condonation applications---Intra-court appeal was dismissed in circumstances.

Muhammad Shafi v. Muhammad Hussain 2001 SCMR 827; Mst. Fatima Bibi v. Nur Muhammad Shah and others PLD 1951 Lah. 147; Gulab v. Mst. Malkani 1992 CLC 2123; Hyderabad Development Authority v. Abdul Majeed and others PLD 2002 SC 84; Board of Governors Area Study Centre for Africa and North America Quaid-e-Azam University Islamabad v. Ms. Farah Zahra PLD 2005 SC 153; Mubarak Ali v. First Prudential Modaraba through Chief Executive 2006 CLD 829; Amir Ullah Jan v. Member Board of Revenue (Colonies) Punjab 2013 PLD Lah. 445; Sh. Bashir Ahmed v. Muddassar Hayat 2005 SCMR 1120; Mst. Khalida Khatoon v. Askari Bank Limited 2012 CLD 194 and Abdul Hamid v. Abdul Qadir PLD 2001 SC 49 ref.

Altaf Hussain and 2 others v. Muhammad Nawaz and 2 others 2001 SCMR 405 and Lt.-Col. Nasir Malik v. Additional District Judge Lahore 2016 SCMR 1821 rel.

Rafiq Ahmed Kalwar for Appellant.

Mayhar Kazi for Respondent No.1.

Ghulam Shabbir Shah, Additional Advocate General Sindh for Respondent No.1.

2019 M L D 267

[Sindh (Larkana Bench)]

Before Rasheed Ahmed Soomro and Irshad Ali Shah, JJ

MOHAMMED ALI---Petitioner

Versus

The RETURNING OFFICER, PS 16 KAMBAR, SHAHDADKOT-III and 3 others---Respondents

Constitutional Petition No.D-514 of 2018, decided on 12th July, 2018.

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

----S. 12---Election for the seat of Member Provincial Assembly---Rejection of nomination papers due to concealment of Bank account by the candidate---Effect---Candidate filed nomination papers with his affidavit stating on oath that statement of his assets and liabilities was correct and complete to his knowledge and belief---Candidate had concealed his Bank account---Nomination papers were filed by the candidate on 11-06-2018 whereas Bank statement allegedly submitted in support of the same was issued by the Bank on 18.06.2018---Bank statement issued on 18-06-2018 could not be filed with nomination papers on 11-06-2018---Bank statement was not filed by the candidate before Returning Officer prior to scrutiny of his nomination papers---Candidate for the first time during course of hearing of appeal confirmed the existence of his Bank account, thus had concealed Bank account in violation of the affidavit he filed in support of nomination papers---Nomination papers were rightly rejected by the Returning Officer---Constitutional petition was dismissed, in circumstances.

Muzaffar Ali Shah and others v. Registrar Co-operative Societies, Karachi and others PLD 1968 Kar. 422; Government of Pakistan through Secretary Ministry of Interior and Narcotics Control (Interior Division) Board Islamabad v. Muhammad Yasin, Sub-Inspector WAPDA Anti-Corruption and another PLD 1997 SC 401; General Manager PEARL Continental Hotel, Lahore/Rawalpindi v. Farhat Iqbal PLD 2003 SC 952; M. Nazir Ahmad v. Muhammad Aslam and others 2013 SCMR 363; Rana Muhammad Hayat Khan v. Rana Imtiaz Ahmad Khan PLD 2008 SC 85; Syed Fakhar Imam v. Chief Election Commission of Pakistan and others PLD 2008 SC 730; Secretary to the Government of Punjab Forest Department Punjab Lahore v. Ghulam Nabi and others PLD 2001 SC 415; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif PLD 2009 SC 644; Muhammad Shamim Siddiqui v. Mrs.Kausar Aziz and others 1982 CLC 1972 and Aftab Shahban Mirani and others v. Muhammad Ibrahim and others PLD 2008 SC 779 ref.

Fahad Malik v. Mir Mumtaz Hussain Jakhrani and another 2008 CLC 457; Malik Muhammad Sameen Khan v. Returning Officer and others 2012 CLC 820 and Fatehullah Khan v. Ikramullah Khan Gandapur 2014 CLC 1725 distinguished.

Muhammad Ahmad Chatta v. Iftikhar Ahmed Cheema and others 2016 SCMR 763 rel.

Nisar Ahmed Bhanbhro for Petitioner.

Athar Abbas Solangi for Private Respondent.

Rafique Ahmed K. Abro for Election Commission of Pakistan and Abdul Rasheed Abro, Assistant Attorney General Pakistan for Respondents

2019 M L D 306

[Sindh (Larkana Bench)]

Before Zafar Ahmad Rajput and Khadim Hussain Tunio, JJ

RAJIB ALI NAICH and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-42, S-73 and Criminal Reference No.D-07 of 2017, decided on 21st November, 2017.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-H(2), 114, 147, 148, 149 & 504---Criminal Procedure Code (V of 1898), S. 353---Constitution of Pakistan, Art.10-A---Qatl-i-amd, attempt to commit qatl-i-amd, act done rashly or negligently as to endanger human life or the personal safety of the others, abettor present when offence was committed, rioting, rioting armed with deadly weapon, unlawful assembly, intentional insult with intent to provoke breach of peace---Appreciation of evidence---Evidence not taken in presence of accused---Effect---Prosecution case was that accused party while armed with deadly weapon assaulted on the complainant party, made firing upon them, due to which the brother of complainant died and his cousin sustained injuries---Record showed that co-accused persons were arrested on 3.8.2011 whereas the accused had absconded and was arrested subsequently on 29.8.2016 and charge was amended---Prosecutor adopted the examination-in-chief of the witnesses already examined---Counsel for the accused adopted the cross-examination of the witnesses already examined except the two witnesses---Trial Court upon the assessment of evidence on record convicted accused persons and awarded death sentence to accused, while co-accused persons were sentenced to undergo imprisonment for life---Validity---Section 353, Cr.P.C. made it mandatory that evidence was to be recorded in presence of accused---In the present case, after framing of amended charge, prosecution witnesses were neither recalled nor their examination-in-chief were recorded in presence of accused and he was convicted on the basis of adopted evidence in violation of Article 10-A of the Constitution---Trial Court had not assigned reasons for resorting to such exceptional procedure, which, otherwise, was not within the spirit of safe administration of justice---Trial Court had committed illegality while adopting such evidence of prosecution witnesses---Such practice was complete departure from the procedural law---Appeal was allowed, in circumstances, by setting aside the conviction and sentences recorded by the Trial Court and matter was remanded to the trial court for decision afresh after recalling the prosecution witnesses for recording of their examination-in-chief and providing opportunity to accused to cross-examine them.

Atta Muhammad and 3 others v. The State 1999 PCr.LJ 1140; The State v. Ali Zaman 1981 PCr.LJ 194 and Mahmood Ahmed v. The State PLD 1983 Lah. 612 rel.

Ghulamullah Memon for Appellants (in both Appeals).

Sardar Ali Shah, Deputy Prosecutor General for the State.

2019 M L D 337

[Sindh]

Before Muhammad Junaid Ghaffar, J

Mrs. REHANA JADOON---Plaintiff

Versus

ARAB KHAN---Defendant

Civil Suit No. 162 of 2009, decided on 18th April, 2018.

Malicious prosecution---

----Suit for damages---Malice---Proof---Plaintiff was aggrieved of FIR registered by defendant alleging stealing of ornaments and other articles---Police cancelled the FIR after investigation---Plaintiff raised the plea that registration of FIR was malicious in nature which not only tarnished her image but made her to suffer mental torture, agony and loss of reputation---Validity---Reasonable and probable cause must be such as would operate on mind of a discreet and reasonable man---Malice and want or reasonable and probable cause had reference to state of defendant's mind at date of initiation of criminal proceedings---Plaintiff was involved in a false case whereas defendant chose not to proceed further in challenging order of Judicial Magistrate accepting report under S.173, Cr.P.C. as (cancelled) 'C-Class'---Plaintiff was not only humiliated but was subjected to malicious prosecution---Exercising powers to grant general damages under rule of thumb, damages were granted to extent of Rs. 200,000/- with 5% simple markup from date of decree till its realization---Suit was decreed accordingly.

Abdul Rauf v. Abdul Razzak and another PLD 1994 SC 476; Abdul Ghafoor v. Riaz Ahmed 2007 YLR 3089; Muhammad Hanif and another v. Muhammad Bashir and others 2004 YLR 173; Muhammad Feroze Panjani v. Mrs. Mehr-un-Nisa and another 2006 MLD 62; Abdul Rehman and another v. Zia-ul-Haque Makhdoom and others 2012 SCMR 954; Themas and 16 others v. Dawar Khan and 7 others PLD 1990 SC 629; Abdul Majeed Khan v. Tawseen Abdul Haleem and others PLD 2012 SC 80; Muhammad Nazir Khan v. Muhammad Ameer 2012 CLC 644; Abdur Rashid v. The State Bank of Pakistan and another PLD 1970 Kar. 344; Mst. Shamim Akhtar v. Muhammad Hanif Qureshi 2013 CLD 456; Abdul Wadood and others v. Muhammad Iqbal and another 2013 MLD 584; Abdul Majeed and others v. Manzoor Hussain and others PLD 2013 Lah. 170; Messrs Summit Bank Ltd. v. Mohammad Ramzan 2016 MLD 139; Mehrban v. Ghulam Hassan 2016 CLC 1585; Muhammad Habib v. Wali Muhammad 2017 MLD 2101 and Dr. Abdul Qadir Akhund v. Ms. Shahila Parveen 2017 MLD 666 and Abdul Majeed Khan v. Tawsee Abdul Haleem 2012 CLD 6 ref.

Niaz and others v. Abdul Sattar and others PLD 2006 SC 432; Rana Shaukat Ali Khan v. Fayyaz Ahmad 2017 MLD 120 and Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478 rel.

Adnan Ahmed and Bilawal Channa for Plaintiff.

Abdul Hayee S.M. Shaikh for Defendant.

2019 M L D 358

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

RAHIM BUX SOOMRO---Petitioner

Versus

The STATE through Director General (NAB)---Respondent

Constitution Petition No.D-869 and M.A. No.4649 of 2018, decided on 16th April, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(b) & 32---Constitution of Pakistan, Art. 199---Suspension of sentence---Short sentence---Accused was convicted by Trial Court and was sentenced for imprisonment for five years---Validity---Sentence awarded to accused was short one and hearing of appeal of accused in wake of huge backlog of cases would take time---High Court suspended sentence awarded to accused till final disposal of his appeal---Bail was granted in circumstances.

Khan Asfandyar Wali's case PLD 2001 SC 607 and Abdul Hameed v. Muhammad Abdullah 1999 SCMR 2589 rel.

Mukesh Kumar Khatri for Petitioner.

Jangoo Khan, Special Prosecutor, NAB for Respondent.

2019 M L D 368

[Sindh]

Before Aqeel Ahmed Abbasi and Aziz-ur-Rehman, JJ

ZEESHAN JAVED and 6 others---Petitioners

Versus

PROVINCE OF SINDH and others---Respondents

Const. Petitions Nos. D-5104 and D-5115 of 2017, decided on 15th February of 2018.

Prospectus for Undergraduate Programme NED University of Engineering and Technology, 2016---

----Clauses 6.8.4, 6.10.1 (a) & (b) & 7.6.3---Students of Bachelor of Civil Engineering Programme---Cancellation of admission of petitioners on the ground that they had failed to acquire 2.00 Cumulative Grade Point Average (CGPA)---Scope---Petitioners had not been confronted through show-cause notice to improve their CGPA---Seven academic years had been allowed for each four year degree programme in the NED University---Admissions/enrolments of petitioners had been cancelled within two academic years---University had not cancelled admission of other students who failed to obtain 2.00 CGPA which was discrimination without any reason---Educational Institution had right to determine educational standard by formulating admission policy and prescribing the criteria for passing various courses during each academic year---Such policy and standard should be to facilitate the students and to provide the maximum opportunity to clear their courses within given academic years---Once a student obtained the required marks and fulfilled the requisite qualification to be given admission in a professional degree/programme then he/she should be given all possible chances to complete such course within maximum academic years---Petitioners had been deprived of an opportunity to improve their CGPA---Order for cancellation of admission of petitioners was set aside---Constitutional petition was allowed accordingly.

Abdul Hafeez Khan for Petitioners (in C.P. No.D-5104 of 2017).

Salman Hamid for Petitioner (in C.P. No.D-5115 of 2017).

Khalid Javed for Respondent along with Ghazanfar Hussain, Acting Registrar/NED University of Engineering and Technology.

Ghulam Shabbir Shah, Additional Advocate General Sindh for Respondents.

2019 M L D 419

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Arshad Hussain Khan, JJ

SHAMSUDDIN DAL---Petitioner

Versus

The DIRECTOR GENERAL NAB SINDH---Respondent

Constitutional Petition No.D-3685 of 2017, decided on 1st February, 2018.

National Accountability Ordinance (XVIII of 1999)---

----S.9(a)(vi) & (b)---Criminal Procedure Code (V of 1898), Preamble---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Petitioner was alleged to have appointed persons in education department against sanctioned and clear vacant posts of particular cadre---Validity---High Court had jurisdiction to grant bail to petitioner while exercising Constitutional jurisdiction but in doing so High Court could not stretch provisions of Criminal Procedure Code, 1898 just to facilitate petitioner to get himself released on bail---Provisions of Criminal Procedure Code, 1898 were specifically ousted in National Accountability Ordinance, 1999 and provisions of special law were to override the general law---Reasonable grounds existed to connect petitioner with offence for which he has been charged and he was involved in commission of crime which ultimately deprived national exchequer for millions of rupees---Petitioner failed to establish that his case fell within ambit of further inquiry justifying exercise of Constitutional jurisdiction by High Court---Bail was refused in circumstances.

M. Siddique-ul-Farooque v. The State PLD 2002 Kar. 24; and The State and others v. M. Idrees Ghauri and others 2008 SCMR 1118 distinguished.

Mohammad Azam Brohi and others v. The State through Chairman, National Accountability Bureau and others 2016 PCr.LJ 1417 and Rai Muhammad Khan v. NAB thorugh Chairman 2017 SCMR 1152 rel.

Malik Naeem Iqbal and Saleem Khaskheli for Petitioner.

Jangoo Khan, Special Prosecutor NAB along with Sarwan Khoso AD/I.O. NAB (Karachi) for Respondent.

2019 M L D 433

[Sindh]

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

Dr. GHULAM RAZA---Petitioners

Versus

DIRECTOR GENERAL (SINDH REGION) NATIONAL ACCOUNTABILITY BUREAU and another---Respondents

C.P. No.D-1508, D-563, D-1509, D-1510 and D-390 of 2012, D-986, D-1260 and D-4008 of 2011 and D-3217 of 2010, decided on 16th January, 2018.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Documents, admissibility of---High Court in its Constitutional jurisdiction could not go into admissibility of any document through seizure memo or otherwise.

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

----S. 540---National Accountability Ordinance (XVIII of 1999), S.17(a)---Additional evidence---Provisions of S.540, Cr.P.C. is applicable to case under National Accountability Ordinance, 1999 and it entitles the Trial Court to call any relevant witness on its own motion.

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

----S. 18(c)--- Reinvestigation--- Pendency of trial--- Scope---Reinvestigation/further investigation can be carried out right up to and during course of trial.

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

----Ss. 16-A, 17(d) & 18(c)---Criminal Procedure Code (V of 1898), S.265-K---Constitution of Pakistan, Art. 13---Double jeopardy, principle of---Filing of supplementary reference---Transfer of case---Principle---Petitioners were accused facing trial before Accountability Court and their application under S. 265-K, Cr.P.C. was dismissed by Trial Court---Plea raised by petitioners was that after transfer of case from court of Special Judge Customs, further investigation could not be made and supplementary reference could not be filed and that filing of different references would amount to double jeopardy---Validity---National Accountability Bureau (NAB) could file supplementary reference especially in cases where matter had been transferred under S. 16-A of National Accountability Ordinance, 1999 and further inquiry/investigation would be necessary to uncover further evidence as case had not originally been inquired into/investigated by NAB---Present was not a case of double jeopardy and Art. 13 of the Constitution was not attracted as all references related to separate containers, separate allegations and separate amounts of loss---One reference only related to illegality claiming sales tax refund whereas, other references concerned different allegations and in some cases they were different companies---Bureau was entitled to file separate references in respect of each container which as had been done in other cases---Provisions of S. 17(d) was only directory in nature and not mandatory, even if it was found to be applicable---For an application to succeed under S. 265-K, Cr.P.C. it must be shown that charge was groundless or there was no probability of accused being convicted---Addition of two witnesses who were granted pardon on their statements were recorded under S. 164, Cr.P.C. and other material on record, petitioners failed to show that there was no probability of them being convicted---Constitutional Petition was dismissed in circumstances.

Raja Muhammad Zarat Khan and another v. Federation of Pakistan through Secretary, Ministry of Cabinet Division and 2 others PLD 2007 Kar. 597; Central Board of Revenue and another v. Khan Muhammad PLD 1986 SC 192; Sajid Dadabhoy v. NAB 2015

PCr.LJ 729; Assistant Collector of Customs v. Messrs Khyber Electric Lamps 2001 SCMR 838; Anti-Corruption Establishment Punjab v.

NAB 2016 SCMR 92; Sajid Dadbhoy v. NAB 2015 PCr.LJ 729; Assistant Collector of Customs v. Messrs Khyber Electric Lamps

2001 SCMR 838; Sardar Ahmed Siyal v. NAB 2004 SCMR

265; Asif Ali Zardari v. Federation of Pakistan 2002 PCr.LJ 310

and Imran Khan v. Mian Nawaz Sharif and others PLD 2017 SC 692 ref.

Bank of Punjab v. Harris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1009 distinguished.

(e) Interpretation of statutes---

----Wordings of statute---Applicability---Court must strictly follow wordings of statute and if that wording is clear and is unambiguous, then court must apply the same.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 rel.

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

----S. 26---Pardon, grant of---Pendency of trial---Scope---Chairman NAB has authority and power under S. 26 of National Accountability Ordinance, 1999 to grant pardon to any accused at any stage of inquiry, investigation or trial---Chairman NAB has power to approve pardon once reference has been filed without substance and untenable---Such pardon does not even need permission of court.

Aamir Raza Naqvi and Shabeeh Ishrat Hussain for Petitioners (in C.P. No.D-1508 of 2012).

Aamir Raza Naqvi for Petitioners (in C.P. No. D-986 of 2011).

Khawaja Shams-ul-Islam for Petitioners (in C.P. No.D-1260 of 2011).

Shabeeh Ishrat Hussain for Petitioners (in C. Ps. Nos. D-4008 of 2011, D-1509, D-1510, D-390 of 2012 and D-3217 of 2010).

Abdul Ghaffar Khan for Petitioners (in C.P. No.D-563 of 2012).

Muhammad Altaf, Special Prosecutor, NAB for Respondents.

2019 M L D 468

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

FAHEEM ALI---Appellant

Versus

The STATE---Respondent

Cr. Appeal No.S-64 of 2016, decided on 20th August, 2018.

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

----S. 13(d)---Possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Prosecution case was that an unlicensed Kalashnikov type rifle with magazine containing ten live bullets was recovered from the possession of the accused---Record showed that complainant left police station under daily diary entry, in connection with the investigation of crime under S. 302, P.P.C. and while he was on the way, he got information on phone that the nominated accused of main case and co-accused duly armed with weapons, were wondering near a bridge---Complainant did not produce the said entry before the trial court---Departure entry by which they had left the police station for investigation of main crime and subsequent information regarding presence of accused and co-accused on certain point had not been produced therefore, without production of said document, it could not be established that the police had left the police station for the purpose mentioned in the FIR---Complainant had categorically mentioned in the memo. of recovery and arrest as well as FIR that they had prepared a joint memo. of recoveries and arrest, which was not permissible under the Police Rules, 1934---Roznamcha entry had not been produced in evidence, therefore, the entire movement as well as proceedings initiated thereupon were not of much consequence---Plea taken by the defence that nothing was recovered from the accused nor he was arrested from the place as shown in the FIR and entire proceedings were completed at police station, carried much weight in circumstances---Complainant had admitted that entire papers, which were tallied before the trial court, were written by one W.P.C, whose name had not been mentioned in the calendar of witnesses, nor the complainant was in a position to disclose his name---Such conduct of the complainant on that score itself showed that he had not conducted the investigation properly or entire proceedings were completed at the police station without his direction and knowledge---Complainant was unable to depose that as to on which date he sent the said weapon to laboratory for opinion---Even the person through whom he had sent the weapon and road certificate, which was also necessary to be accompanied with a person carrying parcel or property of the police station belonging to any criminal case, had ever been produced before the Trial Court, which left the reflection of some doubts in the prosecution story---Private witness had deposed in his examination-in-chief that complainant had sealed the weapon at the spot and prepared such mashirnama in his presence and co-mashir---Said witness further deposed that the complainant had also recorded his statement under S.161, Cr.P.C.---Such deposition of witness was totally belied with the statement/deposition of the complainant, who had categorically deposed that the memo. of recovery as well as FIR and other proceedings were handed down by W.P.C. on his dictation---Such major contradiction could not be overlooked or left untouched---Police party had to cross populated area/villages but failed to associate any independent person rather had chosen to associate mashirs, who were caste-fellows of the complainant of main case---In the present case, the complainant had himself conducted the investigation of the case without offering any explanation/justification as to why he did not handover the case papers to any other Police Officer for conducting the investigation---Such conduct on the part of the Police Officer was deprecated---Circumstances established that prosecution had not succeeded in proving its case against the accused beyond reasonable shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

2011 PCr.LJ 1669; 2004 PCr.LJ 290; 2002 PCr.LJ 51; 2003 PCr.LJ 359; 1999 PCr.LJ 555 and 2007 PCr.LJ 935 ref.

Nazeer Ahmed v. The State PLD 2008 Kar. 191; Mohammad Siddique v. The State 2011 YLR 2261 and Mohammad Akram v. The State 1995 MLD 1532 rel.

(b) Criminal Trial---

----Principle---Criminal case was to be decided on the basis of totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him and the principle that a fact would be deemed to be proved if the witness stating such fact had not been cross-examined.

Nadeem Ramzan v. The State 2018 SCMR 149 rel.

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

----S. 103---Search to be made in presence of witness---Scope---Search recovery and arrest were required to associate private persons, more particularly in those cases in which the presence of private persons was admitted, as to lend credence to such actions and to restore public confidence---Said aspect of the matter must not be lost sight of indiscriminately and without exception.

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

(d) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance created doubt in the case its benefit was to be extended to the accused as a matter of right but not as a matter of grace or concession.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Habibullah G. Ghouri for Appellant.

Raja Imtiaz Ali Solangi, A.P.G. for the State.

2019 M L D 481

[Sindh (Larkana Bench)]

Before Rasheed Ahmed Soomro and Irshad Ali Shah, JJ

QADIR BUX alias BABOO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-39 of 2018, decided on 31st July, 2018.

Penal Code (XLV of 1860)---

----Ss. 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 21-L---Criminal Procedure Code (V of 1898), S. 367---Kidnapping or abduction for extorting property, valuable security etc., rioting armed with deadly weapon, unlawful assembly, act of terrorism---Conviction and sentence in absentia---Language of judgment---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused and others abducted three persons of complainant party for ransom---Challan of the case was submitted by the police placing the name of accused therein to be one of the absconding accused---All the accused were acquitted of the offence/charge, however trial court convicted and sentenced the accused under S. 21-L of Anti Terrorism Act, 1997 which entailed punishment of imprisonment and fine---No fine was imposed upon the accused but his movable and immovable property was forfeited by trial court, which was not permissible at law and as such, could not be approved---No charge or point for determination for the offence punishable under S. 21-L of Anti-Terrorism Act, 1997 was framed against the accused; nor evidence in that respect was recorded---No decision in that respect was arrived at by trial court---Conviction and sentence recorded against the accused being violative of S. 367, Cr.P.C. could not be sustained---Accused had been convicted and sentenced for the offence under S. 21-L of Anti Terrorism Act, 1997 in cursory manner by trial court by adopting the procedure, which was violative of Arts. 9 & 10(1) of the Constitution---Accused was acquitted by setting aside conviction and sentence recorded by the trial court, in circumstances.

Arbab Khan v. The State 2010 SCMR 755 ref.

Mir Akhlaq Ahmed and others v. The State 2008 SCMR 951 rel.

Nemo for Appellant.

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

2019 M L D 491

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput and Khadim Hussain Tunio, JJ

AKBAR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-33 of 2015, decided on 5th December, 2017.

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

----Ss. 365-A, 324, 353, 148 & 149---Anti Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security etc., attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused and co-accused persons while armed with deadly weapons kidnapped the complainant and his relative; on resistance, one of the co-accused made straight fire on nephew of the complainant, which hit the left side of his abdomen---Accused persons then dragged the complainant and his relative towards the western side of the road, meanwhile police reached there and ordered the accused persons to surrender but they opened fire on the police party and made their escape good by leaving the complainant and his relative there---Record showed that the alleged abductee and the injured had not been examined by the prosecution, as such, the prosecution withheld its best evidence; in such situation, it would be presumed that there was some ill motive behind non production of such evidence---Alleged incident was stated to have taken place on a road, but police failed to associate any person from the locality as witness---None of the abductees was recovered from the possession of accused---Prosecution version, was that police party was headed by SHO who reached the spot and encounter took place in between police party and accused persons which lasted 20 to 25 minutes but no body from either side sustained any injury---SHO, however, had deposed nothing about reaching the spot, chasing the accused and taking place of encounter on the alleged day---Record transpired that one co-accused had been acquitted by the trial court of the charge on the basis of same set of evidence---In the present case, evidence available on record was not of such a character which could be relied upon to convict a person as the testimony of the witnesses was having material contradictions, which even did not corroborate with the contents of FIR---Circumstances established that prosecution had failed to prove the guilt against the accused 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.

2008 SCMR 1572; 1997 SCMR 25; 1999 SCMR 1030; 1995 SCMR 599; 1993 SCMR 550; 2001 SCMR 420; 1996 SCMR 167; PLD 2006 Kar. 206 and 2017 SCMR 622 ref.

(b) Criminal trial---

----Benefit of doubt---Principle---Conviction must be based on unimpeachable evidence and certainty of guilt---Any doubt arising in the prosecution case must be resolved in favour of accused.

(c) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating reasonable doubt was sufficient for the acquittal of accused.

Safdar Ali Ghouri for Appellant.

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

2019 M L D 507

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

EJAZ AHMAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1376 of 2017, decided on 7th March, 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---Absconsion---Scope---Active participation of the accused-Effect---Petitioner was nominated in the FIR with specific role that allegedly he along with co-accused, caused serious injuries on the person of the deceased by firing and beating with steel spoon---Petitioner contended that he remained hospitalized after suffering injuries in the fight, started by the deceased and his friends in a marriage ceremony, and it was after his arrest that he came to know about his nomination in the FIR and that Trial Court had declared him an absconder---Petitioner submitted that as co-accused had been released on bail so he was also entitled for concession of bail under rule of consistency---Complainant apprehended that the petitioner would be again fugitive from law once released on bail as enmity over motorcycle dispute existed between the petitioner and the deceased (brother of the complainant)---Validity---Petitioner had admitted that he was injured as a result of fighting whereas, brother of the complainant had died in result of head injuries during the said fight, therefore, active participation of the petitioner in the said fight allegedly happened at the place of incident could not be ignored---Active role of the petitioner showed that the fighting was actually result of the enmity between the petitioner and the deceased---Record revealed that it was actually the marriage ceremony of the co-accused, who was released on bail, as he was on the stage at the time of fighting and also because no role was assigned to him---Evidence of eye-witnesses was yet to be recorded by the Trial Court which had already been delayed due to absconsion of the petitioner---Release of the petitioner on bail, at present stage , would create hindrance in the proceedings---Bail was refused to the petitioner, in circumstances.

2012 YLR 2898 distinguished.

Mian Ashfaq Ahmed for Applicant.

Ms. Rubina Qadir, A.P.G. for the State.

2019 M L D 526

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

Dr. ADEN WAHEED---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Education, Islamabad and 4 others---Respondents

Constitution Petition No. D-3487 of 2017, decided on 10th July, 2018.

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

----S.26---Registration of medical practitioner---Pakistan Medical and Dental Council---Grievance of petitioner was that Pakistan Medical and Dental Council denied registration of petitioner as dental practitioner despite petitioner being duly qualified---Validity---Petitioner was duly qualified and had been validly conferred with Bachelors in Dental Surgery (BDS) degree by Karachi University---Pakistan Medical and Dental Council admitted vide minutes of its meeting dated 11-10-2017 that petitioner was a graduate---Institutions where petitioner undertook her studies were duly accredited and competent to impart requisite education culminating in a BDS degree---Education was a fundamental right and it was equally fundamental for a citizen to be empowered to utilize education in pursuance of a lawful profession---Medical education was a specialized field and it required dedication of significant mental, physical and financial resources---Educational record of petitioner culminating in BDS degree awarded by Karachi University was a testament to her discipline and dedication to noble field of medicine---High Court directed Pakistan Medical and Dental Council to undertake registration of petitioner as dental practitioner upon due completion of requisite procedure in accordance with law---Constitutional petition was allowed in circumstances.

Ali Raza for Petitioner.

Salman Talibuddin, Additional Attorney General for Respondent No.1.

Suhail Hayat Khan Rana for Respondent No.2.

Syed Ahmed Ali Shah and Khawaja Shams-ul-Islam for Respondents Nos.3.

Ameeruddin for Respondent No.4.

S. Noman Zahid Ali for Respondent No.5.

2019 M L D 541

[Sindh]

Before Mohammed Karim Khan Agha, J

ABDUL SATTAR BACHANI---Petitioner

Versus

RETURNING OFFICER and 4 others---Respondents

Election Appeal No.105 of 2018, decided on 27th June, 2018.

Elections Act (XXXIII of 2017)---

----Ss.62 & 63---Constitution of Pakistan, Art. 63(1)(n)---Qualification for membership of Parliament (Majlis-e-Shoora)---Rejection of nomination papers---Bank defaulter---Scope---Returning officer rejected nomination papers of candidate on the ground that he was a loan defaulter of Bank---Contentions of candidate were that loan was obtained by a company of which he was a Director, but the company entered into compromise with the creditor and as such he had no further liability and that his ownership in the company was to only the extent of 1.43%---Validity---Candidate had a minor shareholding in the company with no controlling interest---Personal guarantee given by candidate did not bring him within the definition of a "defaulter"---Order of Returning Officer was set aside and the candidate was allowed to contest the elections.

1997 CLC 719 and 2013 CLC 1068 rel.

1194 SCMR 1299; 2013 CLC 1088; 1993 MLD 2507; 2016 YLR 1404; PLD 2017 Lah. 394; 2014 CLC 94; 2013 CLC 1512 and 2016 YLR 1401 ref.

Farooq H. Naek for Appellant.

Syed Mehmood Alam Rizvi for Respondent No.2.

Luqman-ul-Haque for Respondent No.3.

Riaz Alam Khan for Respondent No.4.

Abdullah Hanjrah, Law Officer of ECP.

Atif-ud-Din, Law Officer of SBP.

Yousif Rahpoto, Assistant Advocate General Sindh.

Ms. Rukhsana Durrani, State Counsel.

2019 M L D 545

[Sindh (Hyderabad Bench]

Before Zulfiqar Ahmad Khan, J

IQBAL AHMED and 6 others---Applicants

Versus

MAQBOOL AHMED and 7 others---Respondents

R.A. No.170 of 2011, decided on 16th May, 2018.

(a) Benami transaction---

----Suit for declaration---Contention of plaintiff was that transaction in favour of defendants was Benami and he was the owner of suit property---Suit was dismissed concurrently---Validity---Plaintiff was bound to prove that impugned transaction in favour of defendant was Benami---No cogent and convincing evidence had been produced before the Trial Court as to why the land in question was purchased in the name of defendant as Benami---Alleged sale deed was executed in the year 1964 and till the death of father of plaintiff same was not challenged---Present suit was filed in the year 1994 which was time-barred---Suit had rightly been dismissed by the Courts below---No illegality or material irregularity had been pointed out in the impugned judgments passed by the Courts below---Revision was dismissed in circumstances.

2006 SCMR 50; 2006 SCMR 1304 and 2010 CLC 528 rel.

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

----S. 115---Exercise of revisional jurisdiction of High Court---Scope---Invoking of revisional jurisdiction of High Court---Requirements.

In the exercise of revisional powers, it is not the duty of the High Court to enter into the merits of the evidence as it has only to see whether the requirements of the law have been duly and properly obeyed by the court whose order is the subject of the revision, and whether the irregularity as to failure or exercise of jurisdiction is such as to justify interference with the order. That's why if someone invokes the jurisdiction under S. 115, C.P.C. he must show not only that a jurisdictional error has been committed by the court below, but also that the interests of justice call for interference by the High Court, as the powers of the Court under S. 115 of the Code are purely discretionary, which are to be exercised in the interests of justice alone where the High Court could legitimately hold that the court below had exceeded its jurisdiction or had refrained from exercising a jurisdiction vested in it or it acted illegally or with material irregularity in the exercise of that jurisdiction, i.e. committed an error of procedure or of a mandatory procedure and that such an error had resulted in failure of justice. The words 'acted illegally' have been inter-preted to mean acting in breach of some provisions of law and the words 'acting with material irregularity' are interpreted to mean committing some error of procedure and in the course of proceedings, which is material in the sense that it may have affected the ultimate decision.

Where a lower Court passes an order in exercise of its jurisdiction, the High Court is not to interfere with it in revision unless the order (being sought revision), if allowed to stand, is likely to occasion a failure of justice or cause an irreparable injury. In the absence of any defect in the concurrent findings of both the Courts below, interference of High Court in civil revision amounts to improper exercise of revisional jurisdiction.

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

----S. 115---'Acted illegally'---Meaning.

Word "acted illegally" mean acting in breach of some provisions of law.

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

---S. 115---'Acting with material irregularity'---Meaning.

Expression "acting with material irregularity" mean committing some error of procedure and in the course of proceedings, which was material in the sense that it might have affected the ultimate decision.

Arbab Alkui Hakro for Applicants.

Rao Faisal Ali for Respondents Nos. 1 to 4.

2019 M L D 558

[Sindh]

Before Muhammad Saleem Jessar, J

MOHAMMAD NASEERUDDIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-381 of 2015, decided on 4th October, 2017.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Statutory ground---Delay in conclusion of trial---Scope---High Court, in the year 2015 granted post-arrest bail to petitioner/accused on the statutory ground of delay but complainant assailed the said order before Supreme Court where with the consent of the parties the petition of the complainant was converted into appeal and Supreme Court disposed off the same remanding the matter to the High Court for rehearing with direction that petitioner/accused was not to be arrested in the meantime, since then the trial had not concluded---Petitioner contended that he had not misused concession of bail for more than two years so he was entitled for the concession of bail on statutory ground of delay---Prosecution contended that petitioner had sought adjournments which had occasioned the delay in conclusion of the trial---Validity---Record revealed that the petitioner was not at fault---Prosecution had failed to establish that the petitioner was a notorious, dangerous or hardened criminal and had misused the concession of bail in any manner---No specific role of causing injury to deceased was assigned to the petitioner---Before being bailed out in the year 2015, he was in continuous custody for about two and half years---Petitioner had not been shown to abuse the concession of bail while enjoying liberty of bail for more than two years since 2015---Record revealed that actually co-accused was to be blamed for the delay in conclusion of trial---No legal or technical purpose would be served by keeping/taking the petitioner in custody for an indefinite period when trial had become uncertain and it was not known as to when the trial would conclude---High Court while maintaining the earlier order of grant of bail passed in the year 2015, directed the trial Court to expedite the trial---Application of the petitioner was accepted, in circumstances.

Meeran Bux v. The State PLD 1989 SC 347 and Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others 2005 SCMR 1539 ref.

Mohammad Ilyas Khan for Applicant.

Farhan Zia Abrar for the Complainant.

Zafar Ahmed Khan Additional Prosecutor General for the State.

2019 M L D 581

[Sindh]

Before Muhammad Iqbal Kalhoro and Mohammed Karim Khan Agha, JJ

Syed MANZAR ABBAS---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU, through Director General---Respondent

C.Ps. Nos.D-4279, D-4797 of 2017 and D-748 of 2016, decided on 20th April, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9 & 16---Constitution of Pakistan, Art. 199---Constitutional petition---Corruption and corrupt practices---Bail, grant of---Ground of delay---Scope---Around three years had passed since arrest of the petitioners/accused yet trial had not concluded---Petitioners (three in number) contended that they were entitled for the concession of bail as there was no fault on their part in conclusion of trial while as many as 36 witnesses were still to be examined---National Accountability Bureau contended that delay was occasioned due to petitioners or their counsel and that only 6 witnesses were left to be examined to conclude the trial---Validity---Diary sheets revealed that only on about a handful of occasions could it be said that the proceedings were delayed on sole account of petitioners---High Court, over a year ago while rejecting bail of one of the petitioners had given direction that the Trial Court would hear the case on day to day basis and decide the same within 6 months of the said order and there were apparently around 13 prosecution witnesses to be examined at that time (as some were to be given-up by the prosecution and that with only 7 witnesses left, it was reasonable to assume that the trial would be completed within a period of 6 months---Direction of the High Court had expired (6 months ago) whereas list of prosecution witnesses on record showed that no prosecution witness had been given-up---Petitioners had spent around 3 years in jail and the delay in completing the trial was largely due to no fault of petitioners and that realistically the trial would not be completed in the near future---High Court observed that NAB cases were not completed within time frame of 30 days while proceeding on day to day basis as envisaged under S.16(a) of National Accountability Ordinance, 1999 which was also contrary to the intent and spirit of the legislature---Bail was allowed to the petitioners, in circumstances.

Shahid Umer v. Chairman NAB SBLR 2018 Sindh 357; Hamood ur Rehman Qazi v. Government of Sindh in Civil Petition No.3381 of 2017 and Chaudhary Mohammed Asharaff v. Federation of Pakistan C.P. No.D-7083 of 2016 ref.

Raj Ali Wahid Kanwar for Petitioner (in C.P. No.D-4279 of 2017).

Zakir Laghari for Petitioner (in C.P. No.D-748 of 2016).

Muhammad Jameel for Petitioner (in C.P. No.D-4797 of 2017).

Muhammad Altaf, Special Prosecutor, NAB for Respondents.

2019 M L D 601

[Sindh]

Before Naimatullah Phulpoto and Zulfiqar Ahmad Khan, JJ

AREEB AHMED and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.573 of 2017, decided on 2nd February, 2018.

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

----S. 9(b)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that three persons in suspicious condition going on motorcycle, were stopped by police and on their personal search, 300-grams of charas in a plastic shopper was found in the right hand of one accused; 310-grams of charas in a plastic shopper in the right hand of other accused and 340-grams of charas held by the co-accused---Record failed to evidence as to how the charas was weighed to show accuracy, as neither weighing scale was being carried by the police nor record suggested that the same was borrowed at the spot---Such factor gave serious jolt to the prosecution case as to the recovery of definite measure of charas being carried by three individuals at the same time---Being a daytime incident at a public place failure of prosecution to include private witnesses tarnished its narration---Record transpired that charas was recovered on 3-8-2016 but the same was sent to the Chemical Examiner on 5-8-2016---No evidence was on record to show that charas was kept in safe custody during that period, coupled with the fact that Police Officer who was mandated to take samples for examination was neither included as a witness nor presented before the court---Accused persons had claimed innocence and stated that they were picked up from their houses four days prior to the incident and their custody were handed over to police, which got foisted charas upon them and managed the false case---No findings had been recorded by the Trial Court on said version of the accused persons, which showed lack of application of mind of the trial court---Said facts and circumstances of the case reflected that prosecution case was full of infirmities and lacunas creating serious doubts in a prudent mind---Circumstances established that prosecution had failed to prove its case against the accused persons beyond shadow of doubt, benefit of which would be extended to them---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

(b) Criminal trial---

----Principle---Benefit of all favourable circumstances would go to the accused regardless of whether he had taken any such plea or not.

(c) Criminal trial---

----Benefit of doubt---Principle---if a single circumstance had emerged which created reasonable doubt in a prudent mind about the guilt of the accused, the accused was entitled to benefit not as a matter of grace or concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

M. Hanif for Appellants.

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

2019 M L D 606

[Sindh]

Before Mahmood Ahmed Khan, J

Dr. NAHEED FATIMA and 3 others---Plaintiffs

Versus

Messrs PAKISTAN INTERNATIONAL AIR CORPORATION (PIAC) through Chairman and another---Defendants

Suit No. 812 of 2007, decided on 6th June, 2018.

(a) Administration of justice---

----Wrong law, reference to---Effect---Reference to a wrong law does not affect relief/entitlement which is to be decided on merits and not technicalities.

(b) Carriage by Air (International Convention) Act (IX of 1966)---

----Ss. 17, 22 & 25, Schedule-II, Rr. 5(2) & 20---Fatal Accidents Act (XIII of 1855), S. 1---Qanun-e-Shahadat (10 of 1984), Arts. 117, 120 & 122---Suit for recovery of damages---Onus to prove---Predecessor-in-interest of plaintiffs died in an aircraft crash---Plaintiffs sought recovery of damages from Airline company on allegations of wilful misconduct, carelessness and negligence---Validity---Onus to prove, non-existence of liability, specially caused on account of accident not having been denied, in presence of language of R. 20 of Sched. II of Carriage by Air (International Convention) Act, 1966 and Art. 122 of Qanun-e-Shahadat, 1984, concept of no-fault liability rested with Airline---Under Carriage by Air (International Convention) Act, 1966, claimant only had to bring up his/their case and onus of proof in that regard rested with Airline to disprove same---Same would be to extent and what was within prescribed limit of 250,000 Francs as provided in S. 22 of Carriage by Air (International Convention) Act, 1966 where applicable as well as under S. 25 of Carriage by Air (International Convention) Act, 1966 for an ultimate loss, if Airline was not able to prove anything in adversity---Special law did not provide availability to Airline to contest and challenge claim other than as provided under Rule 20 of Sched. II of Carriage by Air (International Convention) Act, 1966 which stand defendant had not preferred to take for obvious reasons---Relaxation of limit as provided under S. 25 of Carriage by Air (International Convention) Act, 1966 was also found available as Airline had neither come up with its own version of accident nor report of Civil Aviation Authority was challenged---Suit was decreed accordingly.

Jehanzeb Khan v. Government of Kyber Pakhtunkhwa through Chief Secretary and 14 others 2016 YLR 1832; Hazoor Bakhsh and 2 others v. Mir Nasrullah Khan 2016 CLC 1936; Muhammad Hussain and others v. Pakistan the Secretary Revenue Division and others 2016 PTD 622; Abdullah through L.Rs. and others v. Muhammad Ibrahim 2009 YLR 1408; Samar Gul v. Central Government and others PLD 1986 SC 35; Muhammad Gulshan Khan v. Secretary, Establishment Division, Islamabad and others PLD 2003 SC 102; Clifton and Defence Traders Welfare Association through General Secretary v. President, Clifton Cantonment Board Karachi and 4 others PLD 2003 Kar. 495; Adam Hussain and another v. Muhammad Ayub 1983 CLC 2054; Mrs. Hajra Begum and 2 others v. Aga Khan Hospital, Karachi PLD 1995 Kar. 603; Mureed Fatima and 2 others v. Home Secretary, Government of Sindh, Karachi and others 2008 MLD 1310; Hafiz Tassaduq Hussain v. Lal Khatoon and others PLD 2011 SC 296; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Chief Engineer, Irrigation Department, NWFP Peshawar and 2 others v. Mazhar Hussain and 2 others PLD 2004 SC 682, Australia Court of Appeal (SS. Pharmaceutical Co. Ltd. and another v. Qantas Airways Ltd) , Morris V KLM Royal Dutch Airlines (2001) EWCA Civ 790, Ursulina D'Lima and others v. Orient Airways Limited and another PLD 1960 (W.P.) Kar. 712; Maulana Nurul Haq v. Ibrahim Khalil 2000 SCMR 1305; Maj. Shujait Ali v. Mst. Surraya Begum PLD 1978 SC (AJ&K) 118; Malik Gul Muhammad Awan v. Federation of Paksitan through Secretary M/o Finance and others 2013 SCMR 507; Riaz-ur-Rehman Khan v. Lufthansa German Airlines, Quaid-e-Azam International Airport, Karachi PLD 2002 Kar. 434; Syed Moinuddin v. Abdul Rehman Khan and others 2009 YLR 1914; Messrs Emirates Airline v. Daoud Shami and others PLD 2003 Lah. 358; Dr. Naheed Fatima and 3 others v. Messrs Pakistan International Air Corporation (PIAC) through Chairman and another PLD 2011 Kar. 514; Daoud Shami v. Messrs Emirates Air Lines and another PLD 2011 SC 282; Echo West International (Pvt.) Pakland Cement Ltd. 2008 YLR 206; Anwer Hussain Surya v. Sumair Builders through partners) 2008 CLC 418; Sufi Muhammad Ishaque v. The Metropolitan Corporation Lahore through Mayor PLD 1996 SC 737; Federation of Pakistan v. Messrs Al-Farooq Flour Mills Ltd. 2000 CLC 215; Messrs Klb-e-Hyder and Company (Pvt.) Ltd. through Chief Executive v. National Bank of Pakistan through President and 3 others 2008 CLC 965; Aftab Hussain v. Sohail Yousuf 2007 CLC 1964; National Logistic Cell v. Irfan Khan and others 2015 SCMR 1406; Shaikh Muhammad Yunus v. PIA PLD 1967 Kar. 775; Shahjehan Begum v. Govt. of Sindh and other 1988 CLC 2325; Saadat Pervaz Sayan v. Chief Secretary, Government of Punjab, Lahore and 3 others 2003 PLC (C.S.) 1277; Sidhu and others v. British Airways plc (1997) 2 LRC 149; Morris v. KLM Royal Dutch Airlines (2002) 2 All ER 565; Thibodeau and another v. Air Canada (2015) 4 LRC 324; Stott v. Thomas Cook Tour Operators Ltd. (2014) UKSC 15; Muhammad Mohsin Ghuman and 6 others v. Govt. of Punjab through Home Secretary Lahore and others 2013 PLC (C.S.) 1076 ref.

Zeeshan Abdullah along with Qamar Abbas and Adnan Abdullah for Plaintiffs.

Mahmood Alam along with Muhammad Siddique for Defendant No.1.

Dr. Shahnawaz along with Aga Muhammad Khan for Defendant No.2.

2019 M L D 636

[Sindh]

Before Fahim Ahmed Siddiqui, J

Sheikh REHAN AHMED---Applicant

Versus

JUDICIAL MAGISTRATE-II, SOUTH, KARACHI and 2 others---Respondents

Criminal Miscellaneous Nos.107 and 108 of 2017, decided on 15th December, 2017.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), S. 561-A---Dishonestly issuing a cheque---Quashing of FIR---Scope---Prosecution case was that the petitioner and respondent were engaged in some business dealings during which certain amount was invested by the respondent with the petitioner---Petitioner could not fulfil his obligations due to which dispute arose between the parties---Ultimately, some settlement for repayment was worked out and the petitioner issued certain post-dated cheques, which could not be encashed on account of insufficient balance or other reasons---Criminal cases initiated on the basis of those FIRs, were ultimately compromised as the amount due on those cheques was paid by the petitioner---First Information Reports of the present case pertained to those cheques, which were issued by the petitioner and were bounced---Record showed that issuance of cheques and their failure in negotiation with Bankers was not denied---Admittedly, cheques were issued in respect of certain obligations---Some of the FIRs lodged earlier had been compromised between the parties---Said FIRs were properly investigated and final report was submitted in the courts---Cheques, in the present case, were issued by the petitioner dishonestly, as such criminal trial was initiated and the petitioner had entered into compromise in the earlier cases---Record transpired that in the present case, the cheques were dishonoured in the last quarter of the year 2015 while three earlier FIRs were lodged in a series at different police stations in the year 2016---Said circumstances showed that at the time of lodging of those earlier FIRs, the cheques of the present FIRs were already dishonoured and in possession of the respondent and he could lodge those FIRs easily and described those cheques in any of those earlier FIRs---Respondent after getting decision of one FIR, lodged another FIR and in that way the respondent misused the process of law for twisting the arms of petitioner as a tool of recovery of amount due---Such practice was certainly amounted to misuse the process of law, which could not be allowed---If it was proved that at the time of lodging of earlier FIR, the complainant already had a bounced cheque of the same party and he avoided to lodge FIR with intention to use it at some future stage as a tool of recovery then subsequent FIR should not be allowed---If the subsequent FIR was lodged then it was the duty of the concerned Magistrate to nip the evil in the bud by using the provision of S. 63, Cr.P.C---Dishonoured cheques might still be used for the purpose of a suit for recovery---Mala fide of the respondent being clear, the criminal miscellaneous applications were allowed and the impugned FIRs were quashed accordingly.

Sardar Sher Afzal for Applicant.

Wasi Imam Zaidi for the Complainant/Respondent No.2.

Zaheer Shah, D.P.G. for Respondent.

2019 M L D 644

[Sindh (Hyderabad Bench)]

Before Aftab Ahmed Gorar, J

ALI GHULAM---Applicant

Versus

The STATE and 2 others---Respondents

Criminal Revision Application No.S-123 of 2018, decided on 14th September, 2018.

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

----S. 497(5)---Bail, cancellation of---Scope---Factors for cancellation of bail were conduct of parties after bail as to whether accused was misusing the facility of bail or likely to abscond, whether accused was hampering the investigation or threatening the witness/witnesses and whether accused was creating obstruction in the course of justice.

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

----Ss. 497 & 498---Bail---Bail before arrest and after arrest---Distinguished---Bail before arrest and after arrest could not be equated at all as the pre-arrest bail was usually based if the arrest of the accused was meant for ulterior motives, such as humiliation and unjustified harassment by the prosecution agency, motivation to cause irreparable injury to his reputation and liberty---Post-arrest bail was based on the discretion of the court after assessing merit of the case finding sufficient grounds for further inquiry into the guilt of the accused; on medical ground; that remaining of the accused in jail would be detrimental to his life or on the ground of delay in trial as statutory right.

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

----S. 497---Penal Code (XLV of 1860), Ss. 337-A(i), 337-F(i), 337-L(2), 114, 504, 147, 148 & 149---Causing shajjah-i-khafifah, causing damiyah, causing hurt, abettor present when offence committed, rioting, rioting armed with deadly weapon, unlawful assembly---Bail, grant of---Accused-applicant was taken into custody, remanded him to jail by setting aside the bail granting order passed by the Judicial Magistrate---Allegation against the accused-applicant was that he along with co-accused while armed with hatchets and lathies caused injuries to the brother of complainant and also abused the complainant party---Record showed that case had already been challaned, therefore, there was no apprehension of tampering with the prosecution evidence---Offence was not punishable with death or imprisonment for life and did not come within the ambit of prohibitory clause of S. 497, Cr.P.C.---Injuries of the injured had been challenged before the Special Medical Board by the accused, hence, the gravity of the same was yet to be determined---Application was allowed by setting aside the impugned order---Accused was admitted to bail, in circumstances.

2004 SCMR 231 and PLD 2009 SC 427 ref.

Mian Taj Muhammad Keerio along with Peeral Majeedano for Applicant.

Shahzado Saleem Nahiyoon, Deputy Prosecutor General, Sindh for Respondents Nos. 1 and 2.

Muhammad Aleem Arain for Respondent No.3.

2019 M L D 654

[Sindh]

Before Naimatullah Phulpoto and Rasheed Ahmed Soomro, JJ

ABDUL RASHEED alias ZAHID and others---Appellants

Versus

THE STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 1, 2, 5 and Confirmation Case No.1 of 2018, decided on 8th October, 2018.

Criminal Procedure Code (V of 1898)---

----S. 367---Penal Code (XLV of 1860), Ss. 302, 367 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)--- Qatl-i-amd, kidnapping or abducting in order to subject person to grievous hurt, slavery, common intention, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Contents of judgment---Case had not been decided in accordance with the mandatory provisions of S. 367, Cr.P.C.---Effect---Prosecution and defence jointly pointed out that in the present case, post-mortem of the deceased was not conducted during investigation, but Trial Court in his judgment discussed post-mortem report of some other deceased---Prosecution had further pointed out that Trial Court had mentioned in the judgment that bloodstained helmet of deceased was secured from the place of incident, which was not the case of prosecution---Clarification was called from the Trial Court, which was filed---Trial Court had mentioned in the comments that name of deceased and word helmet had erroneously been entered---Record reflected that accused persons along with absconding accused kidnapped the deceased outside of his house with intention to commit his qatl-i-amd---Later on his dead body was found outside of his house---Section 367, Cr.P.C. provided that a judgment should contain the point or points for determination, the decision thereon and the reasons for the decision but the impugned judgment had been passed in a perfunctory and slipshod manner---Trial Court did not apply judicial mind while passing the judgment---Errors/omissions committed by the Trial Court were not curable under the law---Circumstances established that impugned judgment delivered by the Trial Court was violative of the statutory provisions of S. 367, Cr.P.C., therefore, was not sustainable---Appeal was allowed by setting aside the impugned judgment and case was remanded for re-writing the judgment after hearing the parties.

Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad and others 2004 SCMR 1 rel.

Hashmat Khalid for Appellants.

Mehmood A. Qureshi for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General, Sindh for Respondent.

2019 M L D 659

[Sindh]

Before Salahuddin Panhwar, J

Mst. BUSHRA AMEEN ALVI---Petitioner

Versus

INCHARGE JUDGE, FAMILY JUDGE-VIII, KARACHI and 2 others---Respondents

Constitution Petition No. S-1282 of 2014, decided on 11th April, 2018.

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

----Ss. 12 & 25---Application for guardianship by mother---Minor was residing with father---Trial Court granted interim custody to mother only for visitation periodically---Mother was also directed for payment of travelling charges---Petitioner/mother contended that she could not be compelled to pay charges to father for production of minor--Validity---Status of parents was a consequence of legal contract, which continued even on dissolution of marriage between parents---Liabilities of parents continued towards the child who (child) would always be known of such parents whether they resided together or separately or even they were no more husband and wife---Law favoured the right of visitation of a parent to remain intact even if the custody was awarded to other parent, subject to such terms and conditions determined by Guardian Judge---Said principle, however, would neither be changed nor controlled under well-established principle of law which morally and legally bound the 'father' alone to maintain the child and said liability normally was never shifted---If both the said principles were kept in juxta-position it would result into nothing but that whenever right of visitation was allowed to a mother such right legally could not be made subject to any remuneration---Petitioner , in the present case, was declined permanent custody of minor on the ground of her failure to substantiate her plea and only meeting was allowed---Right to claim custody of the child was always subject to satisfaction of Guardian Judge as to where the welfare of the minor lay---Such satisfaction was never controlled either by financial status of parent being mother or father but to welfare of the minor alone---Requiring mother to pay fare charges, was not justified rather against the basic principle of law---High Court set aside the impugned finding with regard to payment of fare charges---Constitutional petition was disposed off accordingly.

Sardar Hussain v. Mst. Parveen Umer PLD 2004 SC 357; Mst. Nighat Firdous v. Khadim Hussain 1998 SCMR 1593 and Baskhat Bibi v. Bahadur Ali 2014 CLC 1260 ref.

Rizwan Ahmed Siddiqui and Barrister Furqan Siddiqui for Petitioner.

2019 M L D 665

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Mohammed Karim Khan Agha, JJ

MUHAMMAD IKRAM RAJPOOT and another---Petitioners

Versus

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

Constitution Petition No. D-2409 of 2018, decided on 5th September, 2018.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Factual controversy---Office-bearers of Chamber of Commerce---Genuineness of resignation---Proof---Petitioners were office bearers of Chambers of Commerce and Industry (HCCI) and their grievance was that on basis of false and fake resignations they were removed from office---Validity---Question whether resignation letters of petitioners was fabricated or not, required a full inquiry, recording of evidence and even opinion of Hand-writing Expert---Such factual controversy was, as alluded, beyond scope of jurisdiction of High Court under Art. 199 of the Constitution---Constitutional petition was dismissed in circumstances.

Shafique Ahmed Qureshi v. HCCI 2015 CLD 107; Anjuman Fruit Arhtian v. Deputy Commissioner 2011 SCMR 279 and Fida Hussain v. Saiqa 2011 SCMR 1990 ref.

Ishrat Ali Lohar for Petitioners.

Allah Bachayo Soomro, Additional Advocate-General for Respondents Nos. 1 to 6.

Riazat Ali Sahar for Respondents Nos.7 to 11.

2019 M L D 670

[Sindh]

Before Naimatullah Phulpoto and Rasheed Ahmed Soomro, JJ

SAMAD ALI---Appellant

Versus

The STATE---Respondent

Criminal Anti-Terrorism Appeals Nos. 174 and 175 of 2017, decided on 30th August, 2018.

(a) Explosive Substances Act (VI of 1908)---

----Ss.4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to cause explosion, making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused persons were found in possession of one TT pistol .30-bore with four live bullets and one hand grenade without having any license---Record showed that there was delay of three days in sending the pistol to the Forensic Science laboratory for report of ballistic expert for which there was no plausible explanation furnished---Such delay was material and fatal---Witness had deposed in his cross-examination that memo of site inspection was not prepared at the spot nor it disclosed the name of mashirs---Overwriting was found in the month of date of clearance certificate issued by the Bomb Disposal Unit---Prosecution witness had admitted said fact in his cross-examination---Prosecution had failed to establish safe custody of weapons at police station and safe transit to the chemical examiner---Accused had taken the plea that he had enmity with police and applications had been moved by him against the SHO and others and on the background of such enmity, he had falsely been involved by foisting weapons---Said applications and receipt had also been placed on record but the Trial Court had failed to consider the said aspect of the case while passing the impugned judgment---Circumstances established that prosecution had failed to prove the case beyond reasonable 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.

(b) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Anti Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to cause explosion, making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism, possessing unlicensed arms---Recovery of illicit weapon and explosive substance---Reliance---Scope---Record reflected that hand grenade was recovered from the possession of the accused on 1.7.2017 but same was defused on 4.7.2017---No explanation was available as to the fact that during the period of four days where the recovered hand grenade was kept---Admittedly, the place of occurrence was a thickly populated area and the persons from the public despite being present and available were not called upon to become mashirs of recovery of pistol except police officials who were interested witnesses---Circumstances suggested that prosecution case suffered from lack of independent evidence regarding the recovery---Mashirnama of recovery did not disclose the number of recovered pistol but the report of Forensic Science Laboratory disclosed that number was rubbed and such contradiction had created serious doubt in the prosecution case.

(c) Criminal trial---

----Benefit of doubt---Principle---If there was an element of doubt as to guilt of the accused its benefit would be extended to him. [p. 674] H

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Ms. Fatima Jameela Jatoi for Appellant.

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

2019 M L D 680

[Sindh]

Before Muhammad Faisal Kamal Alam and Khadim Hussain Tunio, JJ

NUSRAT HUSSAIN SHAH---Petitioner

Versus

The CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, through NAB(K)/Sindh---Respondent

Constitution Petition No.D-1626 of 2017, decided on 23rd January, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Ground not raised earlier---Fresh ground, absence of---Petitioner was arrested by National Accountability Bureau for acquiring assets beyond known sources of income and his bail application was dismissed earlier---Petitioner again sought bail on ground that properties mentioned in reference were purchased prior to filing of reference by National Accountability Bureau---Validity---Plea was very much available to petitioner at time of dismissal of his request for bail made through Constitutional petition but petitioner did not take such plea either in earlier Constitutional petitions for grant of anticipatory bail or post-arrest bail---Even no suggestions were put forth to prosecution witnesses by petitioner during their cross-examination---Such plea was not only taken but had been entertained and rejected at time of earlier dismissal of bail plea of petitioner---Trial had already been concluded, prosecution had closed its side and statement of accused was recorded by Trial Court---High Court declined to interfere in the matter---Bail was dismissed in circumstances.

PLD 2014 SC 241; PLD 2016 SC 64; PLD 2015 SC 66; PLD 2016 SC 11; 2013 SCMR 1059; Himesh Khan v. NAB Lahore and others 2015 SCMR 1092 and The State through Advocate General, N.W.F.P. v. Zubair and 4 others PLD 1986 SC 173 ref.

S.M. Iqbal for Petitioner.

Muhammad Zubair Malik, S.P.P. NAB for Respondent.

2019 M L D 685

[Sindh]

Before Abdul Maalik Gaddi, J

MUHAMMAD IMRAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.520 of 2017, decided on 11th April, 2018.

(a) Criminal trial---

----Conviction---Heinousness of offence---Scope---Mere heinousness of offence was not sufficient to convict the accused for the accused continued with presumption of innocence until found otherwise at the end of the trial.

(b) Criminal trial---

----Burden of proof---Scope---Burden was always upon the prosecution to prove the case beyond shadow of doubt.

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

----S.23-A(i)---Possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Prosecution case was that .30-bore pistol along with three live bullets was recovered from the accused to which he could not produce the license, hence the FIR---Record showed that it was the case of spy information, despite that fact complainant did not bother to associate with him any independent person of the locality from the place of information or place of incident---No valid reason or plausible explanation had been furnished by the prosecution for non-association of independent witnesses by the police when independent people were available at the place of recovery, which was a thickly populated area---False implication of the accused, in the present case, could not be ruled out in circumstances---Mashirnama of arrest and recovery showed that one .30-bore pistol without number loaded with three live bullets, was recovered from the possession of the accused in presence of mashirs---One of the mashirs in his evidence had not disclosed the proper description of the alleged weapon---Said fact was also not mentioned in the Forensic Science Laboratory report---Memo. of arrest and recovery showed that the weapon allegedly recovered from the accused was without number, but Forensic Science Laboratory report showed that the number was rubbed---Mashirnama of arrest and recovery, showed that body of the alleged recovered weapon had the words "New Border CAL 30 Mouser", marked on the same, but those wordings were not mentioned in the Forensic Science Laboratory report---Record transpired that alleged weapon was received in the Office of the Forensic Agency after the delay of about five days for which no explanation had been furnished by the prosecution---Pistol and bullets were retained or kept by whom during the said intervening period had not been explained---If the case property was lying in the Malkhana, no report/entry of the Malkhana had been produced to corroborate the same---No official from Forensic Agency had been examined in the case---No reliance could safely be placed on Forensic Science Laboratory report for conviction of the accused on the basis of contradictory evidence---Admittedly, there were number of infirmities/ lacunae, which had created serious doubt in the prosecution case---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of reasonable doubt---Appeal was allowed and accused was acquitted in circumstances, by setting aside conviction and sentence recorded by the Trial Court.

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

----S. 103---Search to be made in presence of witness---Object and scope---Section 103, Cr.P.C was mandatory in nature and could not be ignored without any proper justification---Prime object of the said provision was to ensure the transparency and fairness on the part of police during the course of recovery, to curb the false implication and minimize the scope of foisting of fake recovery upon the accused.

(e) Criminal trial---

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

Tariq Pervez v. The State 1993 SCMR 1345 rel.

Muhammad Imran (in custody).

Sagheer Abbasi, Assistant Prosecutor General, Sindh for the Respondent.

2019 M L D 701

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

Mst. ANWARI---Applicant

Versus

ABDUL WAHEED and another---Respondents

R.As. Nos. 100 and 101 of 2009, decided on 29th May, 2018.

(a) Islamic Law---

----Gift--- Requirements---Proof of gift---Procedure---Gift between family members---Essentials---Contention of plaintiff was that gift deed in favour of defendant was based on fraud---Suit was dismissed concurrently---Validity---Defendant was residing in the house of deceased donor on temporary basis---Presence of defendant in the suit property was not as an owner or donee---Mere presence over the property could not be termed as owner---Defendant was bound to prove the delivery of possession of suit property being essential to the validity of gift---Defendant had not alleged anywhere that after execution of gift deed possession of suit property was delivered to him by the donor---Where possession of property was already with the beneficiary then in order to make a valid gift donor was to perform any of the overt act to disassociate himself from the property in order to let the surviving legal heirs know that the property would now solely rest with the donee---No such overt act was done by the deceased in the present case to inform the remaining legal heirs that he had gifted suit land to his nephew---Offer, acceptance and delivery of possession of gifted property did not take place in absence of such overt act---Gift, in such circumstances, had become invalid and no rights could be claimed on the basis of that void gift---If donor had not handed over the possession or if he was still reaping the benefit then the delivery of possession conditionality was not fulfilled and gift remained invalid---Gift would take effect from the date on which the requisite possession of the property was delivered to the donee and not from the date on which declaration was actually made---Gift would be void without delivery of possession of the property to the donee even if it was made through a registered document---Delivery of possession was not necessary in case of father/mother and son (being donor and donee), both in possession of the property being gifted, however, to make such a gift complete the donor had to perform some overt act through which he would indicate his intention to transfer possession and to divest himself of all control over the gifted property---Courts below had committed illegality and irregularity while passing the impugned judgments and decrees---Impugned judgments and decrees were set aside and suit was decreed---Revision was allowed in circumstances.

2003 SCMR 286; 2003 SCMR 41; 2003 MLD 1280 and PLD 1967 Lahore 1087 ref.

Muhammad Javed v. Nisar Ahmed 2012 YLR 1021; Ghulam Rasool v. Rasheeda Bibi 2006 CLC 531; Maqbool Alam v. Khodaija 66 ASC 1194; Ibrahim Haji Musa Haji Rasul Samol v. Sugra bibi 1978 19 G.L.R.; S.M.S. Saleem Hashmi v. Syed Abdul Fateh 72 Pat. 279; Abdul Razzak v. Zainab Bi (1933) 63 Mad. LJ. 887; Haji Muhammad Yaqoob Khan v. Muhammad Riaz Khan 2016 YLR 2492 and Muhammad Nawaz v. Abida Bibi 2010 MLD 352 rel.

(b) Islamic Law---

---'Gift'---Constitution of a valid gift---Essential ingredients summarised.

2003 SCMR 286 ref.

Syed Babar Ali Kazmi for Applicant.

Ayatullah Khuwaja for Respondents.

2019 M L D 716

[Sindh (Hyderabad Bench)]

Before Mehmood A. Khan, J

AIJAZ ALI---Applicant

Versus

1st ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE and 2 others---Respondents

Criminal Miscellaneous No.S-243 of 2018, decided on 9th July, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Application to Ex-Officio Justice of Peace for direction to lodge FIR---Ex-Officio Justice of Peace had refused to issue such directions in respect of the incident, whereby it was alleged that respondents by show of weapon, restrained the applicant and thereafter sprinkled petrol on his hey and grains and put the same to fire---Act of such burning though was present, but as to the details whether the same was in respect of hey or the grain, the value thereof, and as to who acted in that manner, was in dispute---Said dispute, if agitated, could be determined by way of a private complaint---Investigation, in circumstances, was not required for proving any allegation---Infirmity noticed was that District Judge had not granted the applicant a right to file the private complaint---Application was disposed of by the High Court with minor variation in the impugned order that the applicant might, if interested, file a private complaint, if so advised, which would be entertained strictly on merits by the concerned Magistrate.

PLD 2007 SC 539 and 2001 SCMR 1556 ref.

Abdul Hameed Bajwa for Applicant.

Ghulam Murtaza for proposed accused.

2019 M L D 720

[Sindh]

Before Salahuddin Panhwar, J

ZAHID HUSSAIN---Petitioner

Versus

Mst. FARHANA---Respondent

C. P. No. S-1470 and C.M.As. Nos.5941, 5942 of 2015, decided on 21st February, 2018.

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

----Ss. 7 & 8---Family Courts Rules, 1965,R. 6---Family Courts Act (XXXV of 1964), S. 5 & Sched.---Suit for dissolution of marriage---'Ordinarily resides'---Scope---Jurisdiction of Family Court---Khulla, right of---Scope---Petitioner (ex-husband) contended that respondent/ plaintiff did not ordinarily reside at the address shown in her plaint and Family Court had not complied with the provisions of Muslim Family Laws Ordinance, 1961 in granting decree of khulla to the respondent---Validity---Deliberate use of the phrase 'ordinarily resides' in proviso clause of R. 6 of the Family Courts Rules, 1965 was an exception confined to the 'wife' alone---Ordinarily residence must not require proof as would be for permanent residence, such was keeping in view the agony of woman who, on being ousted by husband, sometimes did not find shelter in the house of her parents---Right to claim 'khula' as well 'dower' were absolute rights of 'wife' which legally could not be resisted if the 'wife' persisted to such claim---Such entitlement, was not subject to a proof of permanent or long residence but a claim of stay of few days even would be enough for the wife to file a suit for dissolution of marriage or dower only---Claim of 'ordinarily resides' would not require proof of the standard which normally was necessary for a disputed fact but a claim on oath shouldered by independent support would be sufficient---Record revealed that claim of wife regarding her ordinary residence was backed by an inquiry (physical verification from neighbors) made by the commissioner appointed by the Family Court on the application of the petitioner, which was rightly taken as sufficient proof to take cognizance into the matter---Temporary, even one day, residence, was sufficient to seek relief of Khulla and said proposition of law had taken status of stare decisis, hence the petitioner's objections over Khulla with regard to jurisdiction was not maintainable---Compliance of Ss. 7 & 8 of Muslim Family laws Ordinance, 1961, was up to the Trial Court and the same was a formality---Decree of khulla having already been granted, there was no option to deprive the respondent from her right which was her choice under the law---No illegality or infirmity having been noticed in the impugned order passed by Family Court, constitutional petition was dismissed accordingly.

Rafiq Ahmed v. Judge Family Court 1996 CLC 1820 ref.

Muhammad Ali Waris for Petitioner.

2019 M L D 740

[Sindh (Hyderabad Bench))]

Before Muhammad Junaid Ghaffar and Amjad Ali Sahito, J

GAZI and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Revision Applications Nos.D-13 and M.A. No.2853 of 2018, decided on 19th June, 2018.

Penal Code (XLV of 1860)---

----Ss. 302, 364, 452, 148 & 149---Criminal Procedure Code (V of 1898), S. 512---Qanun-e-Shahadat (10 of 1984), Art. 47---Qatl-i-amd, kidnapping or abducting in order to murder, house trespass after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Transposition of statement in subsequent trial---Effect---Accused was charged for the murder of complainant's cousin's son---Report under S.173, Cr.P.C. was filed under S.512, Cr.P.C. by showing all the accused as absconders---Subsequently, two co-accused appeared before the court and charge was framed against them including the present accused/appellant---Trial Court, at the time of framing of charge, appointed an advocate as defence counsel on State expenses, who cross-examined the witnesses---After concluding trial, Trial Court convicted all the accused by passing impugned judgment---Present accused had preferred appeal, which was allowed by setting aside conviction and consequently, the matter was remanded to the Trial Court for de-novo trial---During the de-novo trial, two prosecution witnesses had expired---During pendency of the case, prosecution filed application under Art. 47 of Qanun-e-Shahadat, 1984 for transposition of statement of deceased witnesses, already recorded by the Trial Court, which was accepted---Validity---Record transpired that Trial Court had relied upon the statements of witnesses recorded during proceedings under S. 512, Cr.P.C., despite the fact that defence counsel was appointed on State expenses, who cross-examined the witnesses---Article 47 of Qanun-e-Shahadat, 1984, described that the evidence given by a witness in a judicial proceedings or before any person authorised by law to take it was relevant for the purpose of proving in subsequent judicial proceedings or in a later stage of the same judicial proceedings---Since both the witnesses died natural death before initiation of the de novo trial, therefore, such evidence was necessary to prove the charge against the accused---Though, the trial was held in absentia but under the special law, it was bounden duty of the prosecution to have brought the said evidence on judicial record---If the evidence of deceased witnesses had not been brought on record in accordance with law then their evidence could not be considered for deciding the case---Record showed that after completing all the formalities, the Trial Court issued proclamation and attachment under Ss.87/88, Cr.P.C. against the accused---Absconsion of the accused had been established on record and then the Trial Court proceeded with the matter under S.512, Cr.P.C.---Trial Court appointed an advocate to represent the accused, who appeared on behalf of the accused, cross-examined the witnesses, hence, they had availed the opportunity of cross-examining the witnesses produced before the Trial Court---If both the witnesses had not been cross-examined during that process then the said evidence could not be used against the accused---In the present case, prosecution witnesses had been cross-examined through their counsel---Moreover, accused would also have the opportunity to present its case in his statement under S.342, Cr.P.C.---Impugned order did not suffer from any material irregularity---Revision application being meritless was dismissed, in circumstances.

Muhammad Siddique v. The State 2018 SCMR 71 and Zafar Iqbal v. The State PLD 2015 SC 307 rel.

Farhad Ali Abro for Applicants.

Syed Meeral Shah Bukhari, Additional P.G. for the State.

2019 M L D 753

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

Mst. SHAHNAZ BIBI and another---Applicants

Versus

NAZEER AHMED and 3 others---Respondents

Criminal Miscellaneous Application No.179 of 2018, decided on 18th July, 2018.

Criminal Procedure Code (V of 1898)---

----S.491---Habeas Corpus petition---Custody of the minors to mother who had solemnized second marriage---Welfare of minors---Scope---Attitude of the mother and step-father---Effect---Sessions Court handed over custody of two male and one female minor from mother to the father of the minors on his application under S. 491, Cr.P.C.---Applicants (mother and her second husband) contended that Sessions Court looked merely at the apparent poor condition of the minors and thus, had wrongly handed over their custody from them to the respondent/father---Respondent/father of the minors contended that minors were intelligent enough to elaborate their dismal condition with their step-father, carpenter by profession who used to take male minors at work and was accustomed to beat them---Upon extensive queries with minors individually by the High Court, all the three minors had flatly refused to join their mother/applicant---One male minor stated that even, at one occasion, applicant/step-father had badly wounded his hand and nose with knife---High Court found the marks of injuries very much visible on both parts of the minor's body---Other two minors also confirmed statement of said minor and explicitly stated that applicant/step-father was in habit to beat them, so they did not want to live with their mother and step father and they were quite happy with their real father---Maternal grandfather of minors also appeared before the High Court and disclosed that his daughter/ applicant had married another man after committing fraud with her ex-husband, who was a gentleman---Applicant (mother), after obtaining divorce from her previous husband, entered into second marriage and then she claimed her minor daughter from her previous husband---Handing over the custody, in circumstances, would amount to place the minor in the custody of new husband of the mother---If mother had contracted a second marriage with a stranger, she would lose her right of hizanat---Father had not, entered into second marriage yet and was looking after the minor children and was living along with his brother while his father (paternal grand father of minors) was also residing nearby---High Court observed that the custody of the minors should continue with their father as per wishes of the minors, being in the interest, well being and welfare of all of them---Attitude of the applicant/step-father with minors, in the present case, could not be ignored---Custody could not be handed over to a person who was brutal, cruel, inhumane and bitter, who did not hesitate to attack innocent children with knife---Mother had also failed to protect and secure her children from said brutality---Applicant/mother could approach the Guardian Court, if she wanted to obtain the custody of the minors---Application of mother and step-father was dismissed, in circumstances.

1981 SCMR 200 ref.

Syed Muddasir Hussain Zaidi for Applicants.

2019 M L D 763

[Sindh (Larkana Bench)]

Before Muhammad Iqbal Kalhoro and Irshad Ali Shah, J

MUHAMMAD IBRAHIM and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-19 and D-20 of 2014, decided on 16th March, 2018.

Penal Code (XLV of 1860)---

----Ss. 302, 365-A, 148 & 149---Anti Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the complainant, his brother, cousin and labourer were loading their vehicle with banana fruit---Accused persons armed with deadly weapons appeared and overpowered the complainant and his witnesses, abducted them by asking the complainant party to arrange for rupees thirty lac as ransom money for the release of said abductees---Later on, said abductees were killed by the accused persons---Complainant had alleged that fifteen culprits, duly armed with weapons overpowered him and others---Complainant had identified eleven culprits and for rest of them, it was stated that he did not remember their names---Non-disclosure of names of rest of the culprits by the complainant under the pretext that he did not remember their names could not be ignored, which smelled of something wrong---Complainant had stated that said culprits were identified by him and others under the light of vehicle, which appeared to be weak piece of evidence---Said vehicle was not produced by the complainant at trial---Complainant had stated that dacoits overpowered him and others and then abducted him and others and after covering some distance, they let him go by asking them to arrange for ransom money of rupees thirty lac for the release of said abductees---By stating so, the complainant belied his FIR wherein it was stated that the said culprits abducted away the witnesses by asking to arrange for ransom money---Said witness also stated that culprits asked on phone to arrange for ransom money for release of the said abductees otherwise abductees would be killed---No such phone number was disclosed by the complainant before the police or Trial Court---Complainant had alleged that on 4.6.2009, he was intimated by the SHO that the said abductees had been killed by the dacoits---Complainant had stated that on such information, he and his witnesses went to collect the dead bodies of the said abductees and on 15.6.2009 lodged FIR of the incident and subsequent to it made further statement on 20.6.2009---Neither the FIR nor the further statement of the complainant contained the names of the accused persons, though FIR was lodged and statement recorded with considerable delay---Complainant had admitted that on the next day of the incident, he and others held a protest and such news was published in the newspaper, but it did not take disclosure of names of the accused---If the complainant was aware of the names of the culprits, he would have disclosed the same to media person at the time when protest was held for abduction of persons---Significantly, cousin of complainant said to be present with the complainant at the time of abduction was not examined by the prosecution---Inference, in circumstances, could be drawn that he (cousin) was not going to support the case of prosecution---Prosecution witness had stated that the culprits in all were fifteen in number and disclosed their names with addition of names of two accused-appellants---Said witness had stated that the culprits abducted away the said abductees by asking the complainant and others to arrange for ransom money for release of the said abductees---By stating so, said witness had belied the complainant that he and others were also taken away by the culprits at the time of the abduction of said abductees and after covering some distance were let go by the culprits to arrange for ransom money for release of the said abductees---Said omissions and inconsistencies in the evidence of complainant and witness, if were judged in the light of unexplained and un-plausible delay in lodging of the FIR, that made the evidence of complainant and witness to be untrustworthy---Investigating Officer had stated that statement of the witnesses under S. 161, Cr.P.C. was recorded by the munshi, but the said munshi was not examined by the prosecution---Non-examination of munshi had deprived the accused of their valuable right of defence at trial---Investigation, in circumstances, could not be considered to be fair---Second Investigating Officer had stated that on 14.6.2009, he and his police party undertook the encounter with dacoits, as result whereof, three were killed---Police party of some other police stations were called for help, then proceeded further, when reached at jungle, he found available fifteen dacoits and they were identified by him and three persons were found tied with trees---Investigating Officer asked the dacoits to release the said persons and surrendered before the police, but they failed to do so, encounter took place, as result whereof dacoits fired and killed the abductees and then made their escape good by taking advantage of jungle---Investigating Officer in cross-examination had stated that accused persons present in court were not the same---By stating so, he made involvement of at least the accused present in the court to be doubtful one---Circumstances established that prosecution had not been able to prove its case against the present accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Asif Jameel and others v. The State 2003 MLD 676; Mehmood and others v. The State 1995 SCMR 127; Tayyab v. The State 1995 SCMR 412; Mst. Saima alias Sobia v. The State 2011 YLR 632; Mst. Mehboob Bibi and others v. The State 2017 SCMR 1835; Khalid Javed and another v. The State 2003 SCMR 1419; Sheera Masih and others v. The State PLD 2002 SC 443; Attaullah alias Qasim and others v. The State PLD 2006 Kar. 206; Abdul Haq v. The State PLD 1996 SC 1; Muhammad Akram v. The State 2009 SCMR 230; Riaz Ahmed v. The State 2010 SCMR 846; Pathan v. The State 2015 SCMR 315; Ashiq Hussain v. The State 1993 SCMR 417 and Nasrallah alias Nasroo v. The State 2017 SCMR 724 ref.

Asif Ali Abdul Razaque Soomro for Appellant (in Criminal Appeal No.D-19 of 2014).

Muhammad Tariq Metlo for Appellant (in Criminal Appeal No. D-20 of 2014).

Sikandar Ali Junejo for the Complainant.

Khadim Hussain Khooharo, Additional Prosecutor General for the State.

2019 M L D 792

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

Messrs ZAIDI ENTERPRISES through Attorney and others---Appellants

Versus

CIVIL AVIATION AUTHORITY through Director General and 2 others---Respondents

H.C.As. Nos. 411 to 418, 423, 424 and 426 of 2016, decided on 24th July, 2018.

Easements Act (V of 1882)---

----S. 60---License, revocation of---Principle of "approbate and reprobate"---Applicability---Interpretation of document---Plaintiffs were engaged in retail business on International Transit Lounge of Airport and their licenses were not extended---Single Judge of High Court rejected the plaint for being incompetent---Validity---Plaintiffs, on the one hand had claimed that they were in a relationship with airport authorities as landlord and tenants but on the other hand they asserted that their license agreement could be deemed to be lease agreement based upon protracted tenure thereof, by fiction of law---Such postures of plaintiffs were self-contradictory and fell squarely within principle of "approbate and reprobate" which put a person to his election between alternative inconsistent courses of conduct---Where a deed professed to make general disposition of property for benefit of a person named in it, such person could not accept benefit under instrument without at same time confirming to all its provisions and renouncing every right inconsistent with them---Single Judge of High Court rightly maintained that plaintiffs were licensees in respect of retail space at the airport and nature of relationship did not stand novated into that of a lease by fiction of law otherwise---High Court appeal was dismissed in circumstances.

Diamond Food Industries Limited v. Joseph Wolf GmBH & CO. and another 2004 CLD 343; M. A. Naser v. Chairman Pakistan Eastern Railways and others PLD 1965 SC 83; Messrs Noorani Traders Karachi v. Pakistan Civil Aviation Authority PLD 2002 SC 83; Bank Alfalah Limited v. Neu Multiplex and Entertainment Square Company (Pvt.) Limited 2015 YLR 2141; Aftab Hussain v. Government of Sindh and 2 others 2015 MLD 1688; Malik Muhammad Jawaid v. Province of Sindh and 6 others 2009 CLC 1022; Khalid and Company v. Cantonment Board Malir PLD 2002 Kar. 502; Messers Zaidi Enterprises and others v. Civil Aviation Authority and others PLD 1999 Kar. 181; Royal Foreign Currency v. The Civil Aviation Authority and another 1998 CLC 374; Messrs Ad-Mass Advertising (SMC-Pvt.) Limited v. Civil Aviation Authority 2010 CLC 625; Daewoo Pakistan Motorway Services Limited v. Sunshine Service (Regd.) and another 2009 CLC 406 and Abdul Rashid Khan and 8 others v. President Services Institute, P.A.F. Base Lahore 1999 MLD 1870 ref.

Mirza Adil Mustafa Baig for Appellants (in H.C.As. Nos.411 to 418 of 2016).

Syed Wajahat Abbas for Appellants (in H.C.As. Nos.423 and 424 of 2016).

Abdul Khalil for Appellants (in H.C.A. No.426 of 2016).

Dr. Shahnawaz Memon along with Muhammad Asim Rasheed, Asstt. Director (Legal), Civil Aviation Authority for Respondents.

2019 M L D 804

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

Mst. HIRA---Petitioner

Versus

7th ADDITIONAL SESSIONS JUDGE, HYDERABAD and another---Respondents

Constitutional Petition No. S-1064 and M.As. Nos.2529, 4031 of 2018, decided on 23rd November, 2018.

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

----Ss. 12 & 25---Application for guardianship by father---Visitation rights---Scope---Petitioner/mother contended that the respondent/father was not entitled to visitation rights allowed by the two Courts below---Respondent contended that though the Trial Court had declined his guardianship application but he, being father, was at least entitled to periodical visitations---Validity---Respondent was real father of minors and his visitation rights involved the rights of minors towards their father---Fatherly supervision, channeling their activities, would be beneficial for the welfare of the minors, which could not be denied---Respondent, undisputedly, had been providing maintenance to the said minors---High Court observed that petitioner, patently, had attempted to deprive the respondent (father) of his love and affection with his children by filing present petition seeking permanent detachment of the respondent/father from his children just to satisfy her ego, which would also deprive the children of their rights towards their father---No illegality or infirmity having been noticed in the impugned orders passed by two Courts below, constitutional petition was dismissed accordingly. Amjad Ali Shar along with Petitioner.

Syed Muhammad Haroon Rashid along with Respondent No.2.

2019 M L D 810

[Sindh (Sukkur Bench)]

Before Adnan Iqbal Chaudhry, J

WAHID BUX alias WAHIDOO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-486 of 2016, decided on 13th June, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 452, 114, 504 & 337-H2---Qatl-i-amd, house trespass, abetment when the abettor is present when the offence is committed, intentional insult to provoke breach of peace, rash or negligent act---Bail, refusal of---Specific role---Collective injury---Scope---Motive not mentioned in the FIR---Effect---Petitioner and three other accused allegedly had made firing on the deceased (brother of the complainant ) while post mortem report showed that fire attributed to the petitioner had hit the deceased on upper side of male organ---Petitioner contended that his case was that of further inquiry as fire/injury attributed to him was not on a vital part and thus, could not be said to be cause of death---Petitioner submitted that no motive was mentioned in the FIR and that Police had declared co-accused as innocent---Complainant contended that death was caused by the collective injuries making it irrelevant as to which fire had hit the vital part of the body---Petitioner had not placed any material to show that the part of the body, where petitioner was said to have caused fire/injury, was not a "vital part" of body, which could not cause death---Cause of death as revealed in post mortem report was cardiopulmonary injury due to shock and haemorrhage and damage of vital organ---Petitioner had relied upon the said excerpt of post mortem report in his favour, however, the same could also be read against him---Deeper appreciation of evidence was neither possible nor desirable at bail stage--As to who caused the fatal injury, would not make any material difference---Police though had declared the co-accused innocent during the investigation but, admittedly, not the petitioner---Even otherwise Police had no role/ authority to opine on the innocence or guilt of an accused ---Absence of motive in the FIR was not helpful for the petitioner as occurrence was not denied---Eye-witnesses had reiterated their version in the FIR, while recording statement under S.161, Cr.P.C.---Crime weapon had been recovered and ocular evidence was supported by medical evidence---Bail was declined to the petitioner, in circumstances.

Shahzaman v. The State PLD 1994 SC 65 and Muhammad Arshad v. The State PLD 2011 SC 350 ref.

Ahsan v. The State 2012 MLD 723; Khan Zada v. The State 2012 PCr.LJ 883 and Gaji alias Dado v. The State 2012 MLD 1298 distinguished.

Abdul Sattar Soomro for Applicant.

Imdad Ali Malik for the Complainant.

2019 M L D 814

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Mohammed Karim Khan Agha, JJ

ALLAH BACHAYO KHASKHELI---Petitioner

Versus

FEDERATION OF PAKISTAN through Chairman (NAB) and 4 others---Respondents

C. P. No. D-810 of 2018, decided on 24th September, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(v)(vi) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Fugitive from law---Petitioner (fugitive from law) applied for pre-arrest bail along with other co-accused persons and same was dismissed by High Court---Petitioner instead of surrendering himself to National Accountability Bureau authorities, absconded from court and became fugitive from law---Petitioner approached Supreme Court for pre-arrest bail along with some of co-accused and was rejected by Supreme Court---Once again petitioner instead of surrendering himself to National Accountability Bureau authorities, absconded from court and became fugitive from law---Effect---Petitioner was finally arrested by National Accountability Bureau which in effect meant that he had been absconding for around six months after High Court rejected his bail---Trial was on its last legs, therefore, if petitioner was granted post-arrest bail there was a high risk of him absconding once again---Prima facie, there was sufficient material on record to connect petitioner with offence for which he had been charged---Bail was declined in circumstances.

Khalid Hussain Shah v. State 2014 SCMR 12; Shoaib Warsi v. Federation of Pakistan PLD 2017 Sindh 243 and Rehmatullah v. State 2011 SCMR 1332 ref.

Ejaz A. Awan for Petitioner.

Jangu Khan, Special Prosecutor NAB for Respondents Nos. 2 to 4.

Date of hearing: 24th September, 2018.

2019 M L D 841

[Sindh]

Before Salahuddin Panhwar and Zulfiqar Ahmed Khan, JJ

JAVEED IBRAHIM---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.201 and 219 of 2015, decided on 19th December, 2017.

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

----Ss. 497 & 426---Bail, grant of---Suspension of sentence---Case of further inquiry---Misreading and non-reading of evidence---Trial Court convicted accused persons and on basis of same evidence, acquitted two co-accused persons---Plea raised by accused persons was that judgment of Trial Court was prima facie result of misreading and non-reading of available material---Validity---Evidence/material was not appreciated properly while convicting accused persons and acquitting those who otherwise were found guilty in internal inquiry and were charged with main allegations in FIR---High Court suspended sentence as prima facie judgment of conviction opened room for further inquiry because Ss. 497 and 426, Cr.P.C. were analogous to each other---Bail was allowed accordingly.

Nazir Ahmed and another v. State and others PLD 2014 SC 241 rel.

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

----S. 439---Revisional jurisdiction of High Court---Principle---Such jurisdiction is never dependent upon written application but notice of patent illegality or excess of jurisdiction is sufficient.

Shahid Mushtaq for Appellant (in Appeal No.201 of 2015).

Muhammad Farooq for Appellant (in Appeal No.219 of 2015 along with appellant).

Ms. Naheed Parveen, D.A.G. for the State.

Date of hearing: 19th December, 2017.

2019 M L D 856

[Sindh]

Before Nazar Akbar, J

PYRAMID LOGISTICS (PRIVATE) LIMITED---Plaintiff

Versus

"AZIA-12" LLC through Director/Principal Officer and 3 others---Defendants

Suit No. 05 of 2019 and C.M.A. No.18687 of 2018, decided on 4th January, 2019.

Arbitration Act (X of 1940)---

----S. 20---Notification SRO No. 932(I)/2012 dated 01-08-2012---Recovery of money---Transit Trade---Arbitration, agreement---Court, jurisdiction of---Effect---Plaintiff sought recovery of amount from defendant company which was operating from Tajikistan on basis of agreement between parties---Plaintiff also impleaded another person who was carrying on business in Afghanistan---Validity---Agreement, on basis of which suit was filed, stipulated an arbitration clause which fact was suppressed by plaintiff while obtaining ex-parte interim orders---Property in transit was perishable item and in terms of Notification SRO No. 932(I)/2012 dated 01-08-2012 jurisdiction of transit trade authorities was not extended to Tajikistan since no agreement existed between Pakistan and Tajikistan---High Court recalled interim order as court had no jurisdiction in terms of arbitration clause and prima facie it was a case of hardship to defendant with whom plaintiff had no direct privity of contract---Suit was dismissed in circumstances.

Pakistan International Airlines Corporation v. ACT Airlines INC 2011 CLC 714 ref.

Ameer Bakhsh Metlo holding brief for Sarfaraz Ali Metlo for Plaintiff.

Mehmood Sherwani for Defendant No.1(a).

Ms. Masooda Siraj for Defendants Nos. 2 to 4.

Date of hearing: 4th January, 2019.

2019 M L D 884

[Sindh]

Before Muhammad Iqbal Kalhoro and Mohammed Karim Khan Agha, JJ

GHULAM HAIDER JAMALI and others---Petitioners

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and others---Respondents

C. Ps. Nos.D-4672, D-2755 of 2016, D-3286, D-2652 of 2017 and 2226 of 2018, decided on 11th May, 2018.

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

----Ss. 9(a)(iv)(vi) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, refusal of---Mala fide---Proof---Prima facie case---Petitioners were police officials who were alleged to have made illegal appointments in police department---Validity---Pre-arrest bail was an extraordinary relief and was only available in cases where there had been mala fide on part of complainant or police---Mere following illegal orders of superiors under pressure was no defense in law---Petitioners would have been aware of relevant recruitment rules and of illegal recruitments made in year 2001 but they failed to act on same and authorized illegal recruitments---Prima facie sufficient material existed on record to connect petitioners through their misuse of authority and/or failure to exercise authority to illegal sanction of 380 police constables during year 2013-14 and illegal recruitment and sanction of 320 police constables in year 2014-15---Pre-arrest bails were declined in circumstances.

Zaigham Ashraf v. The State and others 2016 SCMR 18; Muhammad Asif and others v. Government of Sindh through Secretary Finance Department and Information Technology Department, Sindh and 4 others 2017 PLC (C.S.) 42; Sarfaraz Ahmed and another v. The Chairman National Accountability Bureau (NAB) through Chairman and others 2016 PCr.LJ 79; Hafeezullah Abbasi v. The Director General NAB Karachi and another (Civil Petitions Nos.1542 and 1709 of 2017; Jamil A.Durrani v. The State PLD 2003 Kar. 393; Maqbool Ahmed Lehri v. NAB 2016 SCMR 154; Muhammed Akhtar Shirani v. Punjab Text Book Board 2004 SCMR 1077 and Rai Mohammed Khan v. NAB 2017 SCMR 1152 ref.

Rana Mohammed Arshad v. Muhammed Rafique PLD 2009 SC 427; Mukhtar Ahmad v. The State and others 2016 SCMR 2064; Muhammed Asghar Khan's case PLD 2013 SC 1 and Syed Mahmood Akhtar Rizvi v. Federation of Pakistan PLD 2013 SC 195 rel.

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

----Ss. 9(a)(iv)(vi) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, grant of---Further inquiry---Petitioner was a junior official in finance department of police who was alleged to have released salaries to police officials appointed illegally---Validity---Role of petitioner in illegal recruitment process and payment of salaries was negligible as he was junior officer in finance department---Petitioner was simply processing orders who had little knowledge of broader picture and would not have known that medical certificates placed in files of appointees were fake and managed---Case of petitioner was one of further inquiry as there were slight mala fides on part of NAB in including petitioner in reference---Pre-arrest bail was allowed in circumstances.

Shahab Sarki and Ali Asghar Buriro for Petitioner (in C.P. No. D-4672 of 2016).

Syed Mahmood Alam Rizvi and Zakir Leghari for Petitioner (in C.P. No. D-2755 of 2016).

Mansoor-ul-Haq Solangi and Imtiaz Mansoor Solangi for Petitioners (in C.P. No. D-3286 of 2017).

Syed Mahmood Alam Rizvi and Zakir Leghari for Petitioners (in C.P. No. D-2652 of 2017).

Mian Ali Ashfaq for Petitioner (in C.P. No. D-2226 of 2018).

Yassir Siddique, Special Prosecutor, NAB for Respondents.

Dates of hearing: 17th, 19th, 24th, 25th, 26th April and 8th May, 2018.

2019 M L D 911

[Sindh]

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

Syed NASIR ABBASS---Petitioner

Versus

The CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB), ISLAMABAD and 2 others---Respondents

C. P. No.D-6736 of 2017, decided on 16th March, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss.9(a) (vi) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Misuse of authority---Amenity plots---Petitioner was Director General Development Authority and was arrested for auctioning amenity plots for commercial use through misuse of his position causing loss to the exchequer---Validity---Petitioner was obliged to ensure that amenity plots were used for their allocated purposes e.g., parks, playgrounds, schools, hospitals, mosques etc., which was to benefit the public in the area---Petitioner betrayed trust of people and illegally, by misusing his authority, let out such amenity plots for commercial purposes which deprived the public of valuable and vital facilities such as parks, playgrounds, schools, hospitals, mosques etc.---Petitioner illegally misused his authority in complete disregard of welfare of the people in favour of commercial interests---Prima facie sufficient material was available on record to connect petitioner to the offence---Bail was declined in circumstances.

Rai Muhammad Khan v. NAB 2017 SCMR 1152 ref.

Aamir Raza Naqvi for Petitioner.

Yasir Siddiqui, Special Prosecutor, NAB for Respondents.

Date of hearing: 9th March, 2018.

2019 M L D 925

[Sindh]

Before Abdul Maalik Gaddi, J

MUHAMMAD SHAHID---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 303 of 2013, decided on 9th May, 2018.

(a) Criminal trial---

----Conviction---Heinousness of offence---Effect---Mere heinous nature of offence was not sufficient to convict the accused.

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

----Ss. 395 & 34---Dacoity, common intention---Appreciation of evidence---Delay of about fifteen days in lodging of FIR---Effect---No satisfactory explanation had been furnished for the said delay---False implication of accused in the case with due deliberation and consultation could not be ruled out.

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

----Ss. 395 & 34---Dacoity, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused along with co-accused persons, duly armed with pistols, entered into the office of complainant and on the force of weapons conjointly committed dacoity and took away cash of Rs. 15,000 a repeater from the security guard---Record showed that prosecution had failed to show as to why identification test of the accused through the eye witnesses was not held, when his name did not appear in the FIR---Nothing was on record to show as to how the complainant learnt the name, parentage and place of residence of the accused persons---Non-holding of identification parade after the arrest of the accused would cut the root of prosecution case---Initially FIR was registered against the four unknown persons, but challan was presented against six persons---Out of them, three had been declared as proclaimed offenders by the trial court---Remaining accused were proceeded for trial and two were acquitted---Prosecution had not filed any appeal against the acquitted accused persons---Present accused was convicted on the basis of same evidence and in doing so, the case of the prosecution had become doubtful---Record transpired that nothing was recovered from the possession of the accused---Complainant in his examination-in-chief had not stated anything with regard to the identity and involvement of the accused---Security Guard in his evidence had not implicated the accused for snatching the gun from his possession---Admittedly, Investigating Officer had not recovered any incriminating article from the accused---Accused had been convicted on the basis of footage of CCTV cameras, but neither the said CCTV cameras had been shown as article in the challan sheet, nor as to who had produced the same---Record transpired that no adverse evidence was available against the accused and the case was based upon number of infirmities/lacunas as well as full of doubt---Circumstances established that prosecution had failed to prove its charge against the accused beyond any reasonable shadow of doubt---Appeal was allowed, in circumstances and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

(d) Criminal trial---

----Benefit of doubt---Principle---Slightest doubt arising out of the prosecution case would be sufficient to extend the benefit to the accused.

Umar Farooq Khan for Appellant.

Sagheer Abbasi, Assistant Prosecutor General, Sindh for the State.

Date of hearing: 9th May,2018

2019 M L D 950

[Sindh (Larkana Bench)]

Before Irshad Ali Shah, J

MOHAMMAD RAHIM BROHI---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.S-17 and M.As. Nos. 819, 820 of 2015, decided on 26th September, 2018.

Criminal Procedure Code (V of 1898)---

----S. 514---Bail bond, forfeiture of---Scope---Accused was admitted to interim pre-arrest bail which was not confirmed and his application for pre-arrest bail was dismissed---Surety was called upon to produce accused or to show cause as to why amount of surety bond should not be recovered from him---Petitioner was imposed penalty---Validity---Bail bond was executed by the surety on account of grant of interim pre-arrest bail to accused which was later on not confirmed---With the dismissal of bail application of accused, bail bond executed by surety died its natural death, it was not alive to have been forfeited---Revision application was accepted in circumstances.

Safdar Ali Ghouri for Applicant.

Sharafuddin Kanhar, A.P.G. for the State.

Date of hearing: 26th September, 2018.

2019 M L D 954

[Sindh (Hyderabad Bench)]

Before Muhammad Junaid Ghaffar and Amjad Ali Sahito, JJ

MUHAMMAD IQBAL NAWAZ---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No. D-17 of 2007, decided on 25th June, 2018.

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

----Ss. 9(c) & 26---Possessing and trafficking narcotics---Acquittal of accused---Direction to register case against Police Official for making vexatious entry, search, seizure and arrest of accused---Trial court acquitted accused, but directed SHO concerned to register a criminal case against Police Official concerned under S.26 of Control of Narcotic Substances Act, 1997, who was complainant in the case and allegedly recovered narcotic (charas) weighing 250-grams from accused---Validity---Section 26 of Control of Narcotic Substances Act, 1997, could only be invoked where it appeared that seizure and arrest was vexatious and unnecessary and direction for registration of FIR only be exercised when it was established on the record through cogent evidence that the narcotics had been foisted upon the accused and he was falsely implicated in the case, otherwise, in each and every case of acquittal, it would be pressed by the accused to direct the Police Officer for registration of FIR against the complainant (Police official) or to proceed in terms of S. 26 of the Control of Narcotic Substances Act, 1997 against the complainant (police official), which would certainly damage the scheme of law and the Police Officers would disincline to be the complainant in the case---Contradictions in the evidence of prosecution witnesses, which might have occurred due to lapse of time, could not cause punishment of the complainant (police official)---Criminal revision was allowed by setting aside the impugned judgment to the extent of directions issued for registration of FIR against the accused/appellant as well as initiation of departmental proceedings.

Sulleman v. The State 2007 PCr.LJ 46 ref.

Mir Shakir Talpur for Applicant.

Shahzado Saleem Nahiyoon, D.P.G. for Respondent.

Date of hearing: 21st June, 2018.

2019 M L D 962

[Sindh (Larkana Bench)]

Before Zafar Ahmad Rajput and Khadim Hussain Tunio, JJ

GADA ALI ABRO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.D-54 of 2012, decided on 9th February, 2018.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic substance---Appreciation of evidence---Police officials as sole recovery witnesses---Competence---Principles---Prosecution case was that 383 kilograms and 900 grams charas in different packets were recovered from the possession and pointation of accused---Record transpired that case of prosecution rested upon the evidence of complainant and mashir, supported with the positive report of Chemical Analyzer---Both the witnesses had given full account of arrest of accused from the pointed place and recovery of charas and had supported fully the contents of FIR and memo of arrest and recovery as well as corroborated the evidence of each other---Report of Chemical Analyzer showed that total 350 khaki paper envelops, each bearing one seal, were received for analysis---All the seals were intact, which after the analysis declared as charas---Said witnesses had identified the accused and case property to be the same present/available before the Trial Court at the time of recording their evidence and, during their lengthy cross-examination, defence had failed to shatter the truthfulness of their evidence thus their testimony remained unshaken---Defence had alleged that no witness from the locality was associated to witness the recovery, but S. 25 of Control of Narcotic Substances Act, 1997, had excluded the provisions of S. 103, Cr.P.C.---Neither the alleged recovery of the charas could be held as doubtful due to non-association of any person of the locality to witness the search or recovery nor the deposition of witnesses lost its evidentiary value merely on the grounds that the witnesses were officials of Anti Narcotics Force---Accused had failed to point out any animosity or ulterior motive on the part of complainant for his false implication and foisting upon him the huge quantity of charas---Mere assertion of accused that he was involved falsely in the case due to political enmity was of no consequence being an afterthought---Such defence plea had neither been suggested to the prosecution witnesses during their cross-examination nor did even the accused stated so in his statement recorded under S. 342, Cr.P.C.---Defence witnesses had not uttered even a single word regarding any such political rivalry---Defence witness had stated that the accused was apprehended by the officials of Anti Narcotics Force, while the other defence witness had stated that some Army Officials arrested the accused---Defence witnesses had contradicted each other on the point of arrest of accused, which led to the inference that in fact none of the defence witnesses was present at the relevant place---Circumstances established that prosecution had succeeded to bring the guilt of accused at home and accused had failed to point out any non-reading of the evidence or any material illegality or serious infirmity committed by the Trial Court while passing impugned judgment---Appeal was dismissed accordingly. [pp. 966, 967] A, B, C & D

Moula Jan v. The State 2014 SCMR 862; Muhammad Imran v. The State 2011 SCMR 1954; Muhammad Hashim v. The State PLD 2004 SC 856; Munawar Ali Jatoi v. The State 2012 MLD 1763; Hidayatullah v. The State 2012 PCr.LJ 1927; Muhammad Sarfraz v. The State and another 2017 SCMR 1874; Faiz Muhammad v. The State 2009 SCMR 1403; Muhammad Yousif v. The State 2013 PCr.LJ 1642; Muhammad Shakoor v. The State 2013 PCr.LJ 1633 and Nazar Hussain and another v. The State 2007 YLR 1601 ref.

Muhammad Khan v. The State 2008 SCMR 1616; Zafar v. The State 2008 SCMR 1254 and Anwar Shamim and another v. The State 2010 SCMR 1791 rel.

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

----Ss. 9(c) & 29---Seizure of narcotic---Burden of proof---Section 29 of Control of Narcotic Substances Act, 1997 cast burden upon the accused to establish his innocence absolving him from the allegations of recovered substance---Prosecution had only to show by evidence that accused was in physical custody or directly concerned with recovered narcotic substance.

Asif Ali Abdul Razak Soomro and Habibullah G. Ghouri for Appellant.

Ubedullah Malano Special Prosecutor, A.N.F. for Respondent.

Date of hearing: 5th December, 2017.

2019 M L D 973

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar and Amjad Ali Sahito, JJ

MUHAMMAD ASLAM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-36 of 2013, decided on 25th September, 2018.

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

----Ss. 365-A & 506(2)---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping for ransom, act of terrorism---Appreciation of evidence---Delay of about four months in lodging the FIR---Effect---Record showed that the alleged incident took place on 16.2.2010 but FIR was lodged on 15.6.2010 after four months of the incident---No plausible explanation for such delay had been furnished by the complainant---First Information Report and statements of witnesses including statement of abductee under S.161, Cr.P.C. did not disclose the names and features of the accused---Accused was arrested in offence under S.13(d), Arms Ordinance on 21.6.2011, after sixteen months of the incident, and was shown to the complainant and witnesses at police station, who identified him to be one of the accused---Such delay in lodging the FIR would adversely affect the prosecution case.

(b) Criminal trial---

----Further statement---Scope---Further statement had no value in law.

Khalid Javed and another v. The State 2003 SCMR 1419 rel.

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

----Ss. 365-A & 506(2)---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping for ransom, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for abducting the victim for ransom---Record showed that the alleged abductee was released by the accused after five months but his statement under S.164, Cr.P.C. was recorded on 28.6.2011 wherein he had stated that he identified the accused in the police lock up---Since the names of the accused persons were not disclosed in the FIR and statements of the witnesses under S.161, Cr.P.C., therefore it was necessary that identification parade should have been arranged in presence of Judicial Magistrate before showing the accused to the witnesses at police lock-up---Prosecution examined four witnesses including complainant in order to prove the ocular account of the incident---Complainant and a witness had deposed that the accused were not known to them prior to the incident but other eye-witness had deposed that he knew the accused and complainant and accused were his friends---Other witness had deposed that he knew all the accused prior to the incident and co-accused were his relatives---Abductee had also deposed that he knew co-accused prior to the incident but the complainant party did not disclose the names of accused in FIR and statements recorded under S.161, Cr.P.C. after four months of the incident---Non-mentioning the names of accused in FIR and in statements under S.161, Cr.P.C. created doubt regarding their involvement in the case---Investigating Officer had deposed that since, the names of accused were not disclosed in FIR and statements under S.161 Cr.P.C., therefore report was submitted for disposal of the case under untraced "A" Class---No circumstantial evidence in the case was available, which connected the accused with the commission of offence; neither the abductee was recovered from the accused in presence of any witness nor crime weapon or ransom amount was recovered from his possession---Accused was arrested under S.13(d), Arms Ordinance and memo. of his imaginary arrest was prepared in the case---Record transpired that complainant had deposed that on 15.2.2010 the complainant party went to sleep while witnesses deposed that on 16.2.2010 they went to sleep in the otaq---Complainant and a witness had deposed that at about 2.30 night, they heard noise, opened the door and had seen six persons outside the room---Other witnesses had deposed that at about 2.30 night somebody knocked the door, a witness had enquired name of visitor to which they introduced themselves to be guest of complainant---Door was opened and at the same time six persons armed with weapons entered into the room---Complainant had deposed that after the incident, he informed the police who visited the otaq and followed the culprits but they could not succeed to arrest them---Remaining witnesses had not stated so---Two witnesses had deposed that when they returned back to otaq, they found that the door of the otaq was closed, they opened the door, entered the otaq and noticed that hands and legs of the complainant were tied---Said witnesses, allegedly, untied the hands and legs of the complainant and narrated the story---Complainant and a witness had deposed that after the demise of the mother of abductee, accused person released him---Abductee had stated that accused persons had released him without taking ransom amount but a witness had stated that complainant had paid Rupees twelve lacs to the accused for release of abductee---High Court observed that such contradictions could not be ignored while deciding the case and on the basis of whereof, no conviction could be recorded---Record showed that the case against the accused was identical to that of co-accused who had been acquitted by trial court which had not been challenged---Accused could not be convicted on the same set of evidence without independent corroboration which was lacked---Circumstances established that the prosecution had failed to bring home the guilt of the accused beyond reasonable doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court in circumstances.

Muhammad Asgar alias Nannah and another v. The State 2010 SCMR 1706 and Muhammad Akram v. The State 2012 SCMR 440 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance had created reasonable doubt about the guilt of the accused, he would be entitled to its benefit.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Mehfooz Ahmed Awan and Farhan Ali Shaikh for Appellant.

Nusrat Hussain Memon for the Complainant.

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

Date of hearing: 25th September, 2018.

2019 M L D 1008

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

SHAHNAZ PARVEEN through Attorney---Petitioner

Versus

The ADDITIONAL DISTRICT JUDGE-III, KARACHI EAST and 3 others---Respondents

Constitution Petition No. D-8784 of 2017, decided on 11th June, 2018.

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

----Ss. 54, 56, 57 & 64-A---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Alternate remedy, availability of---Effect---Petitioner was aggrieved of certificate of execution issued by Registrar, Cooperative Societies in order to implement award---Validity---In presence of a statutorily prescribed hierarchy of appeals, proclivity to ignore same and then eventually and unjustifiably challenge orders that attained finality vide Constitutional petition could not be appreciated---Issue of time frame prescribed to exercise rights of appeal also existed---After passage of such time, vested rights were created in beneficiary of such orders and such rights could not be interfered with in an arbitrary manner---Petitioner was unable to point out any infirmity with respect to execution order, which appeared to have been rendered lawfully consequent to issuance of certificate of execution by Registrar, Cooperative Societies---High Court maintained execution order passed by Registrar, Cooperative Societies as no apparent irregularity or illegality was found in and order was found to be in due consonance with law---Constitution petition was dismissed in circumstances.

Syed Ali Suleman Jafri v. Secretary to the Government of Sindh and 3 others 1986 SCMR 1302 distinguished.

Abdul Shakoor for Petitioner.

Sohail Hameed for Respondent No.3.

Ms. Rukhsana Durrani, State Counsel

2019 M L D 1021

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Zulfiqar Ahmad Khan, JJ

NASIR RAJPOOT---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-44 of 2017, decided on 23rd May, 2017.

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

----S. 9(b)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that on spy information, accused was arrested at road and 250-grams charas was recovered from his possession---Record showed that no effort was made by the complainant to call independent persons of the locality to witness the recovery proceedings---Record transpired that there were material contradictions in the evidence of prosecution witnesses with regard to the route adopted by the Police Officials for the purpose of patrolling so also affixation of the seals upon the parcel---No reliance, in circumstances, could be placed upon the evidence of the Police Officials without independent corroboration---Allegedly, charas was kept in the Malkhana from 12.8.2016 to 17.8.2016---Safe custody of the charas during said period had not been established---Charas was allegedly dispatched to the Chemical Examiner through Police Constable but safe transit had not been established through said Police Constable as he had not been examined---Positive report of Chemical Examiner, in circumstances, would not improve the case of prosecution---Circumstances established that prosecution had failed to establish its case against the accused beyond shadow of doubt, benefit of which would be extended to the accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded by the Trial Court.

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

(b) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance which created reasonable doubt in a prudent mind about the guilt of accused then accused would be entitled to its benefit not as a matter of grace and concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Manzoor Ahmed Panhwar for Appellant.

Syed Meeral Shah Bukhari, Addl. P.G. Sindh for the State.

2019 M L D 1029

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

Messrs ISMAIL INDUSTRIES LIMITED through Authorized Officer---Appellant

Versus

MONDELEZ INTERNATIONAL and 2 others---Respondents

High Court Appeal No.369 of 2018, decided on 24th December, 2018.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Interim relief, grant of ---Scope of jurisdiction conferred by O. XXXIX, Rr. 1 & 2, C.P.C.---Nature of an order made under O. XXXIX, Rr. 1 & 2, C.P.C.---Scope---Interim relief under O. XXXIX, Rr. 1 & 2, C.P.C. was intended to be a preventive or prophylactic remedy for purposes of preserving status quo or the corpus of litigation pending final determination thereof---Such an order could not confer unjustifiable rights without such rights ever having been adjudicated or even being within the contemplation of the suit/litigation.

Islamic Republic of Pakistan and others v. Zaman Khan and others 1997 SCMR 1508 and Rahat Khan v. Tahir Naveed 2009 CLC 433 rel.

Mirza Mahmood Baig for Appellant.

Khawaja Shoaib Mansoor for Respondents.

2019 M L D 1044

[Sindh]

Before Nazar Akbar, J

Mst. KISHWAR BEGUM and through L.Rs.---Appellant

Versus

RASHEED AHMED QURESHI and 2 others---Respondents

IInd Appeal No.21 of 2011, decided on 14th December, 2018.

Specific Relief Act (I of 1877)---

----Ss. 12 & 54---Civil Procedure Code (V of 1908), S. 12(2)---Suit for specific performance of agreement and permanent injunction---Agreement to sell---Proof of ownership of vendor---Scope---Plaintiff filed suit for specific performance of agreement and permanent injunction wherein he claimed that he and paternal grandson of original owner entered into sale agreement for which he paid earnest money---Trial Court, on failure of vendor to file written statement, decreed the suit ex parte---During execution proceedings, rival claimant of subject property filed application under S.12(2), C.P.C. and got the ex parte decree set aside---Trial Court decreed the suit of plaintiff---Rival claimant filed an appeal which was allowed; Appellate Court remanded the case and proposed two additional issues---Trial Court, on remand, reversed its earlier findings and dismissed the suit---Appeal filed by plaintiff was allowed and suit was decreed---Validity---Rival claimant had filed application under S.12(2), C.P.C. to set aside the initial ex parte judgment by claiming that she was owner of the subject property on the basis of an agreement of sale with legal heirs of original owner---Perusal of her written statement showed that after setting aside of decree she had given up her claim on the subject property on the basis of sale agreement; she did not mention in her written statement that original owner was survived by three daughters and that she had purchased subject property nor did she made a counter prayer for declaration of ownership of suit property---Said lady had not filed any independent proceedings for seeking declaration of ownership of subject property---Original gift deed in favour of grandson of original owner was produced by plaintiff---Original gift deed in the hands of plaintiff was far more strong and cogent evidence of title as compared to the so-called power of attorney which was executed by unidentified daughters of original owner---Second appeal was dismissed, in circumstances.

Aamir Malik for Appellant.

Zafar Alam Khan for Respondent No.1.

Respondent No.2 in person.

Respondent No.3 in person.

2019 M L D 1053

[Sindh]

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

TELECARD LIMITED through Representative---Petitioner

Versus

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

Constitution Petition No. 2487 of 2012, decided on 21st June, 2018.

National Accountability Ordinance (XVIII of 1999)---

----S. 5(r)---Pakistan Telecommunication (Re-organization) Act (XVII of 1996), S. 23---Wilful default---Recovery notice---Delay in payment---Mala fide---Petitioner was a Telecommunication Company and was aggrieved of issuance of recovery notice under S.5(r) of National Accountability Ordinance, 1999 by Pakistan Telecommunication Authority ---Validity---Record showed that petitioner had been engaged in forum shopping by jumping between different High Courts of Pakistan on different or similar issues in order to obtain continuous relief in avoiding paying its outstanding dues---When petitioner was unable to obtain favourable orders from one High Court then it switched to another High Court with similar or same contentions about (so-called) agreed instalment plan---Petitioner had not been able to place a single document on record to show that installment repayment plan was approved by Economic Coordination Committee---Pakistan Telecommunication Authority had no lawful authority to issue notice under S.5(r) of National Accountability Bureau, 1999---High Court keeping in view conduct of petitioner by approaching various courts of the country with sole object of avoiding payment of his outstanding dues declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Deonath Singh v. Debendranath Rai AIR 1930 Patna 78; Federal Government v. Ms Ayan Ali 2017 SCMR 1179 and Telecard Limited v. Federation of Pakistan and others C.P. No.D-2043 of 2014 rel.

Sajid Dadbhoy v. NAB 2015 PCr.LJ 729; Asim Textile Mills v. NAB PLD 2004 Kar. 638; Mian Munir Ahmed v. State 2004 PCr.LJ 2012; Danish Kaneria v. Pakistan and others 2012 CLC 389; Mir Nabi Bakhsh Khan Khoso v. Branch Manager NBP Jhatpat 2000 SCMR 1017; Commissioner of Income Tax Peshawar v. Messrs Siemens A.G. PLD 1991 SC 368 and Messrs Dancom Pakistan (Pvt.) Ltd. v. Pakistan Telecommunication Authority 2012 CLD 394 ref.

Arshad Tayebaly and Aimal Kansi Khan for Petitioner.

Mohammed Altaf, Special Prosecutor, NAB for Respondent.

Badar Alam for Respondent No.2.

Saeed A. Memon, D.A.G. for Respondent No.1.

2019 M L D 1066

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput and Aga Faisal, JJ

GHULAM NABI---Petitioner

Versus

Syed AHMED SHAH and 6 others---Respondents

Constitution Petition No. D-764 of 2017, decided on 3rd October, 2018.

Criminal Procedure Code (V of 1898)---

----S. 22-A(6)---Ex-officio Justice of Peace---Powers of---Nature and scope---Civil dispute---Demarcation of land---Jurisdiction---Petitioner assailed order of Ex-officio Justice of Peace whereby Mukhtiarkar was directed to demarcate the land of respondent as per his share---Validity---Ex-officio Justice of Peace had the power to issue appropriate directions to the police authorities on a complaint regarding non-registration of criminal case, transfer of investigation from one police officer to another and neglect, failure or excess committed by a police authority in relation to its function and duties---Powers of Ex-officio Justice of Peace were very limited which had been given to aid, assist and authorize the criminal jurisdiction system---Office of the Ex-officio Justice of Peace was not a court as envisaged under S.6 of Cr.P.C. or the relevant provisions of C.P.C.---Powers and duties of Ex-officio Justice of Peace under S.22-A(6), Cr.P.C. were only administrative and purely ministerial in character, which did not involve any jurisdiction that could be termed as judicial in nature or character---Section 22-A(6), Cr.P.C. did not confer jurisdiction on the Ex-officio Justice of Peace to entertain complaint/application aimed to pass direction to a person or official relating to his duties in respect of dispute regarding immovable property---Order by Ex-officio Justice of Peace was declared as without lawful authority and of no legal effect---Constitutional petition was allowed, in circumstances.

Anwar Ali Janwari for Petitioner.

Sarfraz Khan Jamali for Respondent No.1.

Shakeel Ahmed Abro for Respondents Nos.2 and 3.

Ameer Ahmed Narejo, State Counsel for Respondents Nos. 5 to 7.

2019 M L D 1075

[Sindh]

Before Aftab Ahmed Gorar and Khadim Hussain Tunio, JJ

ABDUL GHANI and others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.259 of 2014, decided on 25th April, 2018.

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

----S. 9(c)---Possessing of narcotics---Appreciation of evidence---Prosecution case was that on spy information that accused persons were indulged in running a narcotic den, the complainant along with informer reached at the pointed place and apprehended the accused persons---On their personal search, 5400-grams charas, 420-grams opium and three bottle liquor were recovered---On their pointation, 71-kilogram charas in two fiber drums were recovered from the kachizameen, 52-kilograms charas from a car belonging to accused and 170 bottles of desi liquor from the cart owned by accused persons were recovered---Samples from each and every packet were taken for chemical analysis---All the material witnesses had fully corroborated the version of each other more particularly the eye-witnesses---No contradictions existed regarding receiving spy information, conducting raid and recovery of the narcotics from the personal possession as well as on the pointation of the accused persons---Witnesses were subjected to lengthy cross-examination but their evidence remained un-shattered---Report of the Chemical Analyst was in positive and the defence had not disputed the nature of substance nor challenged the authenticity of the report of the Chemical Analyst---Neither the accused persons had brought on record any substantive material to show that the report of the Chemical Analyst was the result of tampering or manipulation nor any illegality or irregularity had been found in the test performance report of the Chemical Analyst---Defence had objected that the Investigating Officer acted as complainant, but Police Officer was not legally prohibited to be a complainant, if he was a witness to the commission of offence and also to be the Investigating Officer so long as it did not in any manner cause prejudice to the accused---Circumstances established that prosecution had succeeded to prove the guilt of accused---Appeal was dismissed being devoid of any merit.

PLD 2012 SC 380; 2017 YLR 878; 2017 PCr.LJ 668; 2015 SCMR 1002; 2007 YLR 2559; 2000 PCr.LJ 374 and 2008 SCMR 991 ref.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6---Seizure of narcotics---Appreciation of evidence---Chemical analysis---Non-mentioning of quantity of consumed narcotics for testing and unconsumed narcotics in report---Effect---Defence had objected that the quantity of narcotic substance consumed for testing and the quantity left un-consumed had not been mentioned in the Chemical Examiner Report after testing the same---Record showed that the un-consumed case property was de-sealed at the time of recording evidence of prosecution witnesses and re-sealed in the presence of accused persons---None of them had raised objection on its production in evidence nor put any question from the witnesses in respect of Chemical Examiner's report---Reason had been given in the Chemical Examiner's report, but due to oversight, the quantity consumed while testing the narcotic substance and quantity of un-consumed narcotic substance had not been mentioned by the Chemical Examiner---Record transpired that it had been given full protocol and the examiner had applied complete mechanism as per Rules 5 & 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001---Said Rules were directory and not mandatory, which could not control the substantive provisions of the Control of Narcotic Substances Act, 1997 and to be applied in such a manner that its operation should not frustrate the purpose of the Act under which said Rules were framed---Failure to follow the Rules would not render the search, seizure and arrest under the Act an absolute nullity and non-set and made the entire prosecution case doubtful, except for the consequence provided in the Rules.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possessing of narcotics---Appreciation of evidence---Non-association of private witness---Effect---Prosecution case was that on personal search of accused persons, 5400-grams charas, 420-grams opium and three bottle liquor were recovered---On their pointation, 71-kilogram charas in two fiber drums were recovered from the kachizameen, 52-kilograms charas from a car belonging to accused and 170 bottles of desi liquor from the cart owned by accused persons were recovered---Prosecution witnesses were police officials---Defence had alleged that no private witness was associated at the time of recovery, which was violation of provision of S. 103, Cr.P.C.---Validity---Section 25 of Control of Narcotic Substances Act, 1997, excluded the applicability of S.103, Cr.P.C.---Appeal against conviction was dismissed in circumstances.

Mehmood A. Qureshi for Appellants.

Mehmood Baloch for Appellants.

Muhammad Hanif for Appellant.

Habib Ahmed Special Prosecutor Anti-Narcotic Force for the State.

2019 M L D 1092

[Sindh]

Before Aftab Ahmed Gorar, J

The STATE through Prosecutor General, Sindh---Appellant

Versus

MANSOOR MUJAHID---Respondent

Criminal Acquittal Appeal No. 132 of 2014, decided on 26th November, 2018.

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

----S. 417(2A)---Appeal against acquittal---Limitation---Scope---Appellant has to explain and give reasons for each and every day of delay in filing appeal, if it is time-barred.

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

----S.417(2A)---Appeal against acquittal---Benefit of doubt---Appeal against acquittal has distinctive features and approach to deal with the appeal against conviction because presumption of double innocence is attached in the later case---Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and lead to gross miscarriage of justice---Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference---Judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order---While examining facts in the order of acquittal, substantial weight was to be given to the finding of the lower courts, whereby accused was exonerated from the commission of crime---Acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect---Whenever there is doubt about the guilt of accused, its benefit must go to him and court would never come to the rescue of prosecution to fill up lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.

Muhammad Ijaz v. Fahim Afzal 1998 SCMR 1281 and Jehangir v. Amin Ullah and others 2010 SCMR 491 ref.

Ms. Seema Zaidi, Deputy Prosecutor General for Appellant.

Shahadat Awan for Respondent.

2019 M L D 1101

[Sindh]

Before Muhammad Saleem Jessar, J

Mst. HUMA JAMEEL---Applicant

Versus

Mst. RABIA TARIQ RIZVI and 5 others---Respondents

Criminal Miscellaneous Application S. No.156 of 2017, decided on 26th July, 2018.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Claim of ownership of vehicle by applicant---Findings by two courts below, setting aside of---Technicalities---Effect---Respondent had also got an FIR registered against applicant for the ownership of vehicle in question---Both parties sought possession of vehicle and application of respondent was allowed---Applicant assailed order passed by Trial Court before Lower Appellate Court but her revision was dismissed on account of non-supply of memo of revision and its annexures to respondent---Validity---Applicant had already supplied copies of revision application as well as its annexures in office of concerned court as per prevailing practice---Court could only decide matters/disputes on merits and not on basis of technicalities---Court was to refrain from ousting any party from proceedings on basis of technicalities as it would amount to 'technical knockout'---High Court set aside order passed by Lower Appellate Court as same had not been passed in accordance with law and norms of justice---Matter was remanded to Lower Appellate Court for decision afresh---Application was allowed accordingly.

Syed Mustafa Alam Zaidi v. The State 1999 YLR 774; Ghulam Hussain v. The State and another 1971 PCr.LJ. 352; Muhammad Mahfooz v. The State 1998 PCr.LJ 457; Mst. Shaheen Begum v. S.H.O. (ACLC) and others 2005 MLD 176; State v. Zafaryaz and others 1999 YLR 2087; Din Muhammad and 5 others v. The State 2005 YLR 816; Dewan Hashmat Hayat v. The State and 3 others 2005 YLR 2864; Bhagmal v. Himmat Khan and others 1985 PCr.LJ 1175; Lal Wazir v. Muhammad Zubair and another 2007 MLD 970; Ali Muhammad v. Addl. Sessions Judge and others 2007 MLD 1096; Mst. Nadira Naeem v. Azizuddin and another 1997 PCr.LJ 1006; Muhammad Khan v. Inayat and 3 others 2007 PCr.LJ 883; Muhammad Sajjad v. The State and others 2014 PCr.LJ 1733; Nawab Ferozuddin v. The State and 5 others 2009 MLD 94; Usman. Nasir Dar v. The State 2009 SCMR 911; Muhammad Ramzan v. Additional Sessions Judge, Faisalabad and 9 others 2009 PCr.LJ 1117; Aziz Ur Rehman v. Atiq Ur Rehman 2016 YLR 2413 and Republic Motors Ltd. v. Muhammad Anwar and others 1980 SCMR 954 ref.

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

Haseeb-ur-Rehman for Applicant.

Nisar Ahmed for Respondent No.1.

Jamshed Qazi for Respondent No.2.

Nemo for Respondents Nos. 2 to 3.

Nazeer Ahmed Bhangwar, A.P.G. for the State.

2019 M L D 1114

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar, J

BAHAWAL KHAN and 2 others---Applicants

Versus

The STATE and 4 others---Respondents

Criminal Miscellaneous No.S-378 and M.A. No.2709 of 2018, decided on 8th October, 2018.

Criminal Procedure Code (V of 1898)---

----S. 173---Powers of Magistrate taking cognizance on final report---Scope---Names of the petitioners were showed in column No. 2 of the challan and Magistrate joined them as accused while taking cognizance on said charge sheet---Petitioners (three in number ) contended that Magistrate had wrongly taken the cognizance of offence which was not triable by the Court of Magistrate and that Magistrate had not considered the material collected by the Investigating Officer---Validity---Magistrate was to take cognizance of the offence as a whole and not against a particular person---Once the Magistrate found that there was prima facie evidence connecting a person with the commission of crime, he could summon even the person who had been found innocent by the Investigating Officer---Magistrate while dealing with final report submitted by the Investigating Officer was competent under S.173, Cr.P.C. to agree or disagree, considering the facts and circumstances of the case prudently---Impugned order passed by the Magistrate was self-explanatory and speaking one, hence did not require interference by the High Court---Criminal miscellaneous application was dismissed, in circumstances.

Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 and Syed Muhammad Ahmed v. The State and others PLD 2006 SC 316 ref.

Dareshani Ali Hyder Ada for Applicants.

Haji Shamsuddin Rajpar for the Complainant.

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

2019 M L D 1120

[Sindh (Hyderabad Bench)]

Before Zafar Ahmed Rajput, J

AWAIS SHAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-919 of 2018, decided on 28th December, 2018.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 324, 335, 452, 109, 337-A(i) & 337-F(i)---Attempt to commit qatl-i-amd, Shajjah-i-khafifah, Ghayr-jaifah damiyah, Itlaf-i-salahiyyat-i-udw, house trespass---Bail, recalling of---Itlaf-i-salahiyyat-i-udw---Scope---Petitioner allegedly inflicted knife blows to the wife of complainant in attempt to cut her neck---Petitioner contended that his case called for further inquiry as alleged injuries were declared as Shajjah-i-khafifah and Ghayr-jaifah damiyah in Medico-Legal Report---Validity---Petitioner had been nominated in the FIR by name---Brother and sister of the complainant, after the incident, immediately took the injured to concerned police station and after obtaining a letter of treatment they took her to the hospital for treatment and thereafter, the complainant lodged the FIR---Delay in lodging FIR, even otherwise, ispo facto was no ground for grant of bail---Alleged incident took place at 2 A.M. (night) in the house of the complainant where the petitioner entered duly armed with knife---Petitioner was identified by the brother and sister of the complainant---Injured had also implicated the petitioner in her statement recorded under S.161, Cr.P.C wherein she deposed that she resisted his attempt which resulted in sustaining injuries over her arm and other parts of body---Medical Board, constituted on the application of the complainant, had declared two injuries out of four, as Itlaf-i-salahiyyat-i-udw, as the same had caused permanent disfigurement of the vital parts of the body of the victim i.e. her neck, as defined under S.335, P.P.C., carrying punishment of arsh and imprisonment of either description for a term which could extend to ten years---Section 324, P.P.C., was prima facie also attracted in the present case, therefore, the alleged offence fell within prohibitory clause of S.497, Cr.P.C---Sufficient material was available on record to connect the petitioner with the commission of alleged offence---Grounds of malice and ulterior motive were not available to the petitioner---Court, under S.497(2), Cr.P.C. was not to make probe into defence version in order to advance a plea of bail, rather it had to assess tentatively the material produced before it and to see if reasonable grounds existed to believe, prima facie, involvement of the accused in the commission of offence and if the accused was found connected with the commission of offence, he would not be released on bail on the basis of further inquiry---Ad-interim pre-arrest bail already granted to the petitioner was recalled, in circumstances.

Khalida Bibi v. Nadeem Baig PLD 2009 SC 440 ref.

Farhad Ali Abro for Applicant.

Ms. Rameshan Oad, A.P.G. for the State.

Waqar Ahmed Laghari for the Complainant.

2019 M L D 1124

[Sindh]

Before Abdul Maalik Gaddi, J

UTILITY STORES CORPORATION OF PAKISTAN (PVT.) LTD. through Regional Manager---Appellant

Versus

The STATE and another---Respondents

Criminal Acquittal Appeal No. 140 of 2018, decided on 26th March, 2018.

Penal Code (XLV of 1860)---

----Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Limitation Act (IX of 1908), S. 5---Criminal Procedure Code (V of 1898), S. 417---Criminal breach of trust by public servant, cheating, forgery for purpose of cheating, using as genuine a forged document---Appeal against acquittal---Delayed sanction for appeal by authorities---Condonation of delay---Plea raised by authorities that delay had been caused due to lengthy procedure of sanction from concerned quarters---Record showed that appeal was filed after the delay of about twenty-three months---Validity---Government could not be treated differently from a private litigant on question of limitation under S.5 of the Limitation Act, 1908---Grounds/explanations for filing appeal after expiry of limitation were not convincing---Appeal being time-barred, was dismissed, in circumstances.

Mst. Sirajun Munira v. Pakistan through Assistant Deputy Director General (Admn), Islamabad 1998 SCMR 785; Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Ltd. 1990 SCMR 1059; 2002 SCMR 1903 and The State v. Syed Ali Baqar Naqvi and others 2014 SCMR 671 rel.

Ayaz Ali Hingoror for Appellant.

2019 M L D 1139

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

The STATE through Deputy Attorney General for Pakistan and others---Applicants

Versus

PRESIDING OFFICER, SPECIAL JUDGE (OFFENCES IN BANKS), KARACHI and others---Respondents

Criminal Revision Applications Nos.06 and 13 of 2017, decided on 3rd September, 2018.

Criminal Procedure Code (V of 1898)---

----S. 173---Penal Code (XLV of 1860), Ss. 409, 420, 468 & 471---Supplementary challan, filing of---Criminal breach of trust, cheating and forgery---Case was pending before Trial Court where prosecution intended to file supplementary investigation report (Challan) against accused persons who had been declared proclaimed offender---Trial Court declined to accept supplementary investigation report---Validity---Case pertained to "White Collar crime" allegedly committed by accused, who had been declared as proclaimed offender---Nominated accused shown in supplementary investigation report were beneficiary of misappropriated amount and they were also liable to be prosecuted---Trial Court had out-rightly rejected supplementary investigation report without giving due weight to documents and evidence collected during investigation by Investigating Officer---Such approach of Trial Court was not tenable under law because law stipulated decision of controversies on merits rather than on technicalities---Reinvestigation of a case even after submission of final challan was not barred under law but Trial Court completely ignored such aspect of the matter---High Court set aside order passed by Trial Court as it was unjust and improper and could not be sustained in eyes of law---High Court directed the Trial Court to accept supplementary investigation report (Challan) and proceed with matter in accordance with law---Revision was allowed accordingly.

Raja Khurshid Ahmed v. Muhammad Bilal and others 2014 SCMR 474 and Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 rel.

Muhammad Hanif Pathan v. The State and 3 others PLD 1999 Kar. 121; Mustafa and others v. The State 2009 YLR 1375; Muhammad Akbar v. The State and another 1972 SCMR 335; Mitho alias Muhammad Mithai v. Province of Sindh through Secretary Home Department and 15 others 2018 PCr.LJ 101; Asif Ali v. Province of Sindh and 10 others 2016 PCr.LJ 1484; Rao Muhammad Shakir v. Province of Sindh and 6 others PLD 2015 Sindh 213 and Munir Ahmad v. Additional Inspector General of Police, Punjab and 6 others 2016 MLD 2039 ref.

Salman Talibuddin Additional Attorney General for Pakistan and Miss Maria Ahmed for Applicant (in Criminal Revision Application No.6 of 2017).

Zeeshan Abdullah for Respondents Nos.16 and 17 (in Criminal Revision Application No.6 of 2017).

Altaf Ahmed Sahar for Respondent No.5 (in Criminal Revision Application No.6 of 2017).

Ali Asghar Buriro for Respondents Nos.6 and 11 (in Criminal Revision Application No.6 of 2017).

Respondents Nos.18, 19 and 20 in person (in Criminal Revision Application No.6 of 2017).

SLK Shahbaz Inspector FIA/I.O., Investigating Officer (in both Criminal Revision Applications Nos.6 and 13 of 2017).

Yawar Faruqui for Applicant (in Criminal Revision Application No.13 of 2017).

Zeeshan Abdullah for Respondent No.7 (in Criminal Revision Application No.13 of 2017).

Altaf Ahmed Sahar for Respondent No.10 (in Criminal Revision Application No.13 of 2017).

Ali Asghar Buriro for Respondent. No.3 (in Criminal Revision Application No.13 of 2017).

Respondents Nos.19, 20 and 21 in person (in Criminal Revision Application No.13 of 2017).

2019 M L D 1152

[Sindh (Larkana Bench)]

Before Amjad Ali Sahito, J

SIKANDAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-91 of 2017, decided on 11th May, 2018.

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

----S. 365-B---Qanun-e-Shahadat (10 of 1984), Art. 47---Kidnapping, abducting or inducing woman to compel for marriage---Appreciation of evidence---Benefit of doubt---Transposition of statement in subsequent trial---Effect---Prosecution case was that accused with co-accused persons abducted the wife of complainant along with his two minor daughters---Record showed that during the course of trial of the accused, alleged abductee being star witness of the case was not examined by the Trial Court---Accused was convicted on the basis of evidence of complainant and his two witnesses---Co-accused was arrested by the police later, and he joined the trial but during course of trial, the alleged abductee was examined by the Trial Court---Alleged abductee in her evidence did not implicate any of the accused cited in the FIR including the present accused---Alleged abductee had denied her abduction or detention by anybody and also deposed that she had contracted freewill marriage at her own with co-accused---Trial Court, in view of the statement of abductee, acquitted the co-accused persons under S.265-K, Cr.P.C.---By virtue of Art. 47 of Qanun-e-Shahadat , 1984, evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, was relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding---Alleged abductee having appeared before the Trial Court and in her evidence, did not implicate any of the accused including the present accused as nominated in the FIR by complainant, alleged abductee had also denied her abduction or detention by anybody and further deposed about her freewill marriage with co-accused on her own, as such the prosecution had failed to bring home the guilt against the accused beyond any reasonable doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court accordingly.

(b) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance created reasonable doubt in a prudent mind, its benefit was to be extended in favour of the accused not as a matter of grace or concession, but as the matter of right.

Muhammad Masha v. The State 2018 SCMR 772 rel.

Ameer Ahmed Narejo and Muhammad Munaf Shaikh for Appellant.

Raja Imtiaz Ali Solangi, A.P.G. for Respondent.

2019 M L D 1163

[Sindh (Larkana Bench)]

Before Irshad Ali Shah, J

GHULAM ALI---Appellant

Versus

ABU BAKAR---Respondent

Criminal Appeal No.S-57 of 2012, decided on 28th September, 2018.

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

----Ss. 3 & 5---Prevention of illegal possession of property---Appreciation of evidence---Benefit of doubt---Scope---Non-examination of Police Officer and Revenue officer---Effect---Prosecution case against appellant/accused was that he and ten other persons encroached upon the property of respondents---Respondents filed direct complaint under the provisions of Illegal Dispossession Act, 2005 and Trial Court sought reports from SHO and Mukhtiarkar and same were brought on record---Trial Court convicted the accused and acquitted all others---Validity---None of the reporting officers was examined by prosecution at trial---Reports of SHO and Mukhtiarkar nowhere disclosed that land owned by respondents was occupied by anyone---To maintain conviction under S.3 of Illegal Dispossession Act, 2005, complainant must establish either illegal dispossession by means of unauthorized entry into or upon disputed property or by proving forcible or wrongful possession---Complainant must be owner or occupier of disputed property and must have been forcibly or wrongfully removed but in the present case, reports, on the basis whereof, cognizance was taken, nowhere indicated that appellant was in possession of land of respondents---When it was never established that appellant and acquitted co-accused had been in illegal possession of property of respondents, no conviction legally could sustain under S. 3 of Illegal Dispossession Act, 2005---Allegations against all the accused persons were same but on same set of evidence, Trial Court had acquitted co-accused persons, excepting the present accused---Evidence was to be believed or disbelieved as a whole and not in parts unless exceptions so justified---Thing which prevailed with Trial Court was that he himself had lodged an FIR against respondents and others for having taken away his bricks from the plot---Legally a counter claim/version might, at the most, be taken as a circumstance for a certain part of allegations but not as proof of guilt for whole allegations---Lodgment of FIR of theft of bricks by appellant himself even would never relieve prosecution/complainant from its bounden obligation to prove the offence which too in the manner as claimed---Burden of proof in a criminal case could not be shifted to the accused---Any failure or a reasonable dent in such proof would be sufficient for acquittal by extending benefit of doubt---Report from Mukhtiarkar was also called for during the course of hearing of appeal, and as per the said report, not a single inch of land owned by the respondents was in possession of the accused---Conviction and sentence recorded against accused being not sustainable was set aside and accused was acquitted of the charge.

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

----S. 3---Prevention of illegal possession of property---Scope---To maintain conviction under S.3 of Illegal Dispossession Act, 2005, complainant must establish either illegal dispossession by means of unauthorized entry into or upon disputed property or by proving forcible or wrongful possession---Complainant must be 'owner' or 'occupier' of disputed property and must have been forcibly or wrongfully removed.

(c) Criminal trial---

----Benefit of doubt---Evidence was to be believed or disbelieved as a whole and not in parts unless exceptions so justified because criminal administration of justice insist on giving benefit of doubt to accused.

Sardar Bibi and others v. Munir Ahmed and others 2017 SCMR 344 fol.

(d) Criminal trial---

----Counter version/claim---Legally counter claim/version may, at the most, be taken as a circumstance for certain part of allegations but not as proof of guilt for whole allegations.

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

----Ss. 117 & 118---Criminal trial---Burden of proof---Benefit of doubt---Scope---Whoever made the allegation was to prove the same---Burden of proof in a criminal case could not be shifted to the accused---Any failure or a reasonable dent in such proof would always be sufficient for acquittal by extending benefit of doubt.

Muhammad Azeem Soomro for Appellant.

Abdul Rehman Bhutto for Respondents.

Raja Imtiaz Ali Solangi, A.P.G. for the State.

2019 M L D 1170

[Sindh]

Before Khadim Hussain M. Shaikh and Amjad Ali Sahito, JJ

JALAL HASSAN---Appellant

Versus

AMEER HAMZA AWAN and 2 others---Respondents

Criminal Acquittal Appeal No. D-212 of 2010, decided on 13th March, 2018.

(a) Criminal trial---

----Circumstantial evidence---Sentence---Scope---Capital punishment could be awarded if unbroken chain of circumstances from the stage of last seen evidence till death of the deceased was established by conclusive evidence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal ---Prosecution case was that brother of complainant was done to death by unknown persons by using firearm---Accused were involved in the case on the basis of circumstantial evidence---Record showed that Investigating Officer reached the accused/respondents by scrutinizing the Call Data Record of the deceased and found that there were so many calls from a mobile number---Investigating Officer interrogated the person, in whose name the said number was registered---Said person disclosed that he exchanged SIM with respondent/accused, who was brother of his friend---On such information, police started investigation against the respondent/accused and arrested him and subsequently the original owner of the SIM was made as witness---Statement of said witness was recorded before the Trial Court---Said witness, in his cross-examination, admitted that he, while recording his statement under S.164, Cr.P.C. before Judicial Magistrate did not disclose regarding exchange of SIM---Driver of the deceased/witness had disclosed that at 6.00 a.m. he went to offer Fajar prayer and came outside the building and saw one car, wherein he found one person already boarded while other was about to board therein---Driver, in his examination-in-chief, admitted that he knew respondent/accused who used to come at the place of incident with deceased prior to the occurrence, but he did not disclose his name before the Investigating Officer that he had seen the respondent/accused at 6.00 a.m. outside the building---Said witness had simply disclosed about the features of the culprits---Version of said witness was not supported by Chowkidar of the building or any other person to believe that at about 6.00 a.m. the respondents/accused were seen outside the building---Investigating Officer had failed to record the statement of any inhabitant of the said area to substantiate the version of said witness---Record transpired that police had secured seven sikka (charra) from the place of incident---Investigating Officer had deposed that he secured two empties of pistol and five other empties from the place of incident while he did not know their bore, which reflected that the deceased was murdered by way of gunshot, pistol shot and other means---No one was produced to state that murder of the deceased was committed by the respondents/accused who were boarding the car, when the place of incident was said to be surrounded by number of flats---Said witness in his evidence had deposed that the respondents/accused were found outside the building, hence it could not be said that the respondents/accused were seen lastly with the deceased---Driver of the deceased had not disclosed that he had seen the respondents/accused while entering or coming out from the flat of the deceased---Circumstances established that, so many links were missing in the chain and the evidence of prosecution witnesses was not found inspiring confidence and trustworthy for recording conviction against the accused/respondents---Impugned judgment did not call for any interference hence the appeal against acquittal merited dismissal.

Muhammad Zafar and another v. Rustam and others (2017 SCMR 1639 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that accused were arrested on 3-9-2008 and on 5-9-2008, they led the police party to their house and produced the crime weapon, DBBL gun with three live cartridges, from the bedroom---Report of Forensic Science Laboratory showed that said gun was found in working condition but it did not say that any empty secured from the place of incident was fired from the said gun---Recovery of said gun carried no weight.

Muhammad Farooq for Appellant.

Azam Khan Awan for Respondents.

Ali Haider Saleem, D.P.G. for the State.

2019 M L D 1192

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto, J

SHUHABUDDIN and another---Applicants

Versus

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

Constitution Petition No. D-188 of 2017 converted in Criminal Miscellaneous Application No. S-418 of 2017, decided on 27th April, 2018.

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

----Ss. 22-A, 22-B & 154---Ex-officio Justice of Peace---Information in cognizable cases---Registration of FIR---Police encounter---Scope---Petitioner assailed order of Ex-officio Justice of Peace whereby he refused to issue direction to SHO for registration of FIR---Plea of petitioner was that three persons were murdered by respondents/police officials in a fake encounter---Validity---Complaint filed before Ex-officio Justice of Peace revealed that deceased persons left village to visit the fare---Respondents/police officials in civil dresses caught hold of them and brought them to police station where SHO demanded money for their release---Respondents/police officials threatened that if the amount demanded by them was not paid abducted persons would be murdered in fake encounter---Said persons were murdered in fake encounter when their relatives could not pay the amount demanded by respondents/police officials---Contents of FIR revealed that during encounter not a single injury or scratch was caused to any of the police officials nor damage was caused to the police mobile but three young persons sustained firearm injuries and died---Under S.154, Cr.P.C. statutory duty had been cast upon the officer incharge of police station to enter information regarding commission of a cognizable offence but the SHO failed to perform his statutory duty---SHO had no discretion to refuse to register FIR in the matter---High Court directed to register FIR against the accused/police officials, Senior Superintendent of Police concerned shall entrust investigation to the officer not below the rank of ASP/DSP who will conduct the investigation in accordance with law---Criminal miscellaneous application was allowed, accordingly.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 and Hyder Ali and another v. DPO Chakwal and others 2015 SCMR 1724 ref.

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

----S. 154---Information in cognizable cases---Registration of FIR---Scope---Statutory duty had been cast upon the officer incharge of police station under S.154, Cr.P.C. to enter information regarding commission of a cognizable offence---SHO had no discretion to refuse the registration of FIR.

Riazat Ali Sahar for Applicants.

Nisar Ahmed Durani for proposed accused.

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

Proposed accused/police officials present in person.

2019 M L D 1214

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD TAHIR---Petitioner

Versus

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

C. P. No. S-919 and C.M.A. No.4708 of 2017, decided on 18th February, 2019.

(a) Administration of justice---

----Final terminal (disposal) of a lis on merits resulted in closing all rooms upon such Court to extent of such disposed off lis except by way of 'review'.

(b) Jurisdiction---

----'Territorial jurisdiction' and 'pecuniary jurisdiction'---Scope---No Court could take cognizance unless the barrier of 'territorial jurisdiction' and 'pecuniary jurisdiction' stood lifted by law---When the Court lacked the jurisdiction on count of 'territorial jurisdiction' or 'pecuniary jurisdiction' it was not advisable to the Court to proceed further, otherwise any subsequent order, determining rights of parties, shall be nothing but a nullity.

Multan Electric Power Company Ltd. v. Muhammad Ashiq and others PLD 2006 SC 328 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition, dismissal of---Restoration of lis---Scope---Restoration could only be sought where the lis was disposed of either for non-prosecution or for non-compliance but course of restoration shall never be available where the lis was disposed of on merits, including on point of territorial or pecuniary jurisdiction(s).

Ms. Kausar Anwar Siddiqui for Petitioner.

Abdul Qadir Laghari for Respondents.

Chaudhry Khalid Nawaz, Asstt. A.G. Sindh. for Respondents.

2019 M L D 1238

[Sindh]

Before Nadeem Akhtar and Mrs. Kausar Sultana Hussain, JJ

Messrs ZAMZAMA BUILDERS AND DEVELOPERS through Partner---Appellant

Versus

CANTONMENT BOARD FAISAL through Executive Officer and 4 others---Respondents

High Court Appeal No. 440 of 2018, decided on 20th December, 2018.

Civil Procedure Code (V of 1908)---

----O. XXVI, R. 16---Specific Relief Act (I of 1877), Ss. 12, 42 & 54---Suit for specific performance, declaration and injunction---Local Commission---Delay in appointment of---Plaintiff alleged serious allegations of breach of contract by defendant and also that of handing over possession of units illegally---Plaintiff filed two applications seeking report through local commission but on both the applications only notices were issued---Validity---Single Judge of High Court exercised his discretion by issuing notice on first application filed by plaintiff for appointment of commission---In view of serious allegations and apprehensions repeated by plaintiff in its second application particularly with regards to violation of status quo order, commission should have been appointed as no prejudice would have been caused to any of defendants/ respondents who were already on notice---Actual and correct factual position at site would have come on record and same had set allegations and apprehensions of plaintiff at rest---Division Bench of High Court appointed local commission to inspect suit property and to file his report in court---Appeal was allowed accordingly.

Nabeel Kolachi for Appellants.

Muhammad Junaid Farooqui and Naeem Ahmed Rana for respondent No.1.

2019 M L D 1244

[Sindh]

Before Adnan Iqbal Chaudhry, J

MANZOOR AHMED SHAHZAD---Plaintiff

Versus

MUHAMMAD SHAKIR SHAN and 5 others---Defendants

Suit No. 370 of 2005 and C.M.A. No.1222 of 2011, decided on 15th August, 2018.

Civil Procedure Code (V of 1908)---

----O. VIII, R. 6 & O. XX, R. 9---Sindh Chief Court Rules (O. S.), R. 162---Specific Relief Act (I of 1877), Ss. 39 & 12---Suit for cancellation of agreement to sell---Counter-claim made in the written statement for specific performance of sale agreement---Maintainability---Plaintiff filed suit for cancellation of agreement to sell wherein defendant made counter-claim with additional prayer for specific performance of sale agreement---Contention of plaintiff was that counter-claim could be made only in a money suit---Validity---Although counter-claim (incorporated in written statement), which was not a set-off was not permitted under O.VIII, R. 6, C.P.C., the court could nonetheless construe such counter claim as a plaint of a cross-suit---Written statement of defendant which incorporated the counter-claim did contain all the necessary requisites sufficient to be treated as a plaint in a suit of specific performance of subject sale agreement---Plaintiff had not been afforded an opportunity to reply the said counter-claim---Plaintiff was allowed to file reply to the counter-claim, in circumstances.

Civil Aviation Authority Quaid-e-Azam International Airport v. Japak International (Pvt.) Ltd. 2009 SCMR 666 and Niamat Ali v. Dewan Jairam Dass PLD 1983 SC 5 rel.

Kashif Paracha for Plaintiff.

Zayyad Khan Abbasi for Defendants Nos.1 to 4.

Muhammad Sadiq for Defendants Nos.5 and 6.

2019 M L D 1259

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

TARIQ AZIZ and others---Petitioners

Versus

PROVINCE OF SINDH and others---Respondents

C. Ps. Nos. D-8179, D-8774 and D-8484 of 2018, decided on 8th February, 2019.

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

----Ss. 21(3) & 22---Pakistan Medical and Dental Council Ordinance (II of 2019), Ss. 4, 22(2), 23, 34, 35 & 39---Inspection of medical institutions---Procedure---Reduction of seats---Effect---Petitioner sought directions to restrain Pakistan Medical and Dental Council in curtailing seats of Medical College on grounds that Pakistan Medical and Dental Council inspectors restricted such seats even before second inspection was initiated---Plea raised by Pakistan Medical and Dental Council was that under S.39 of Pakistan Medical and Dental Council Ordinance, 2019 suit and other proceedings regarding any matter within jurisdiction of Medical Tribunal (not constituted so far) pending in court were abated---Validity---Pakistan Medical and Dental Council firstly warned to rectify deficiencies before second inspection but before second inspection, Pakistan Medical and Dental Council in a hasty manner informed the college ahead of time through admitting University---Fifty seats were curtailed and only to justify this act of curtailment of seats, second inspection was carried out after drastic action which was neither fair nor within spirit or quintessence of new or old Pakistan Medical and Dental Council laws---Medical Tribunal had neither been constituted nor functional, plea with regards to bar of jurisdiction could not be considered nor petitioner could be non-suited on such ground---High Court set aside decision of Pakistan Medical and Dental Council curtailing fifty seats of the college---Petition was allowed accordingly.

Muhammad Asif Javed for Petitioner (in C.P. No. D-8179 of 2018).

Ahmed Ali Ghumro for Petitioner (in C.P. No. D-8874 of 2018).

Obaid-ur-Rehman for Petitioners (in C.P. No.D-8484 of 2018) along with Noor Z. Khattak, Advocate.

Abdul Waheed Siyal for JSMU.

Sohail H.K. Rana for PMDC.

Jawwad Dero, Addl. A.G. Sindh along with D.M. Imran Khan, (Internee).

Kafeel Ahmed Abbasi, Deputy Attorney General.

Waheed Ahmed, Additional Secretary (Health) and Ibrahim Memon, Deputy Secretary Health, present.

Dr. Jamaluddin Jalalani, Ex-Additional Health Secretary (Tech) present.

Saleem Ali, Executive Engineer, Prov. Buildings, Division Karachi, Works and Services Department present.

M. Anwar Alam, Officer Incharge, PMDC Karachi office present.

Dr. Abdul Rehman Rajput, Deputy Director Admission Cell, Jinnah Sindh Medical University, Karachi present.

Prof. Dr. Anjum Rehman, Principal, Shaheed Mohtarma Benazir Bhutto Medical College Lyari, Karachi present.

Dr. Ameer Ali, Vice-Principal, Shaheed Mohtarma Benazir Bhutto Medical College Lyari, Karachi present.

Ms. Umme Habiba from Students Affairs, Shaheed Mohtarma Benazir Bhutto Medical College Lyari, Karachi present.

2019 M L D 1279

[Sindh]

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

AFROZ ALAM alias NAKAM GUDDO---Appellant

Versus

The STATE---Respondent

Spl. Criminal A.T.As. Appeals Nos. 29 and 30 of 2018, decided on 15th October, 2018.

Explosive Substances Act (VI of 1908)---

----Ss. 3 & 4---Sindh Arms Act (V of 2013), S. 25(i)A---Recovery of explosive substances and automatic rifle---Appreciation of evidence---Benefit of doubt---Disclosures by accused---Proof---Benefit of doubt---Accused was arrested by Rangers and then the custody was handed over to local police---Accused was convicted and sentenced to imprisonment for fourteen years by Trial Court for recovery of explosive substances and Kalashnikov Sub-Machine Gun---Validity---No entry existed at police station showing that before the accused had left police station accompanied by police he did so in order to show the police the hidden arms and explosives at the address of vacant plot---Such omissions had raised doubts in prosecution case---Unexplained delay of eight months in dispatching recovered explosives to National Forensic Science Agency for chemical analysis and during such period there was no evidence that the explosive substance was kept in safe custody---No design or intention to create any terror existed and accused was entitled to benefit of doubt---High Court set aside conviction and sentence awarded to accused and acquitted him of the charge as prosecution had failed to prove its case against accused---Appeal was allowed accordingly.

Ajab alias Rajab and another v. The State 2004 MLD 180 and Shamsud Doha v. The Sate 2005 PCr.LJ 310 ref.

Pardumen Manji v. State of Jharkhand 2011 Cri.LJ 1604 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Hashmat Khalid for Appellant.

Muhammad Iqbal Awan, Addl. P.G. and Rana Khalid Hussain, Special Prosecutor for Rangers for the State.

2019 M L D 1291

[Sindh]

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

MOHAMMAD BILAL---Appellant

Versus

The STATE---Complainant

Criminal Appeal No. 543 of 2017 and Confirmation Case No.12 of 2017, decided on 30th October, 2018.

Criminal Procedure Code (V of 1898)---

----S.342---Examination of accused---Evidence not put to accused---Effect---Appellant was convicted under S.302(b), P.P.C. and was sentenced to death---Contention of appellant was that while recording his statement under S.342, Cr.P.C. certain pieces of evidence which Trial Court relied upon to convict him, had not been put to him for his explanation which was a mandatory requirement of law---Plea of appellant was that he was entitled to acquittal on account of the defect---Validity---Every piece of evidence which was used against the accused to form a part of his conviction must be put to him in his statement under S.342, Cr.P.C. so that he might have the opportunity to explain the same otherwise it could not be relied upon to convict him---Judgment passed by Trial Court was set aside and case was remanded for recording appellant's statement under S.342, Cr.P.C. afresh.

Muhammed Shah v. The State 2010 SCMR 1009 fol.

Qaddan v. The State 2017 SCMR 148 ref.

Nadeem alias Kala v. The State 2018 SCMR 153 distinguished.

Munawar Ali Memon for Appellant.

Ghulam Rasool Mangi for the Complainant.

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

2019 M L D 1295

[Sindh]

Before Adnan-ul-Karim Memon and Agha Faisal, JJ

ASIF SEEMAB SINDHU---Appellant

Versus

ADMINISTRATOR, PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI and 4 others---Respondents

High Court Appeal No. 425 of 2016, decided on 10th September, 2018.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Plaint, rejection of---Scope---Impugned order was passed with regard to one ground and remaining dispute was not addressed in its required perspective---Additional grounds and prayers contained in the plaint had been disregarded erroneously on the ground that no arguments were advanced at the time of hearing---Only contents of the plaint were to be given primacy for considering an application under O. VII, R. 11, C.P.C.---Court was to consider whether plaint was barred by any law---Plaint had been rejected in the presence of additional grounds and prayers contained in the same exclusive to the issue whereupon findings were rendered on unsustainable ground that no arguments were advanced in such regard---Plaint could not be declared to be barred by law in presence of additional grounds and prayers clauses---Plaint being not a suit could not be rejected in piecemeal---Impugned order passed by the Trial Court was set aside---Matter was remanded to the Trial Court with the direction for further proceedings in accordance with law---Appeal was allowed accordingly.

Mst. Nishat Ishaq v. Amjad Khan and others 2014 CLC 71; Haji Abdul Karim and others v. Messrs Florida Builders (Private) Limited PLD 2012 SC 247 and Jewan and others v. Federation of Pakistan and others 1994 SCMR 826 rel.

Farhan-ul-Hassan for Appellant.

Malik Altaf Javed for Respondents.

2019 M L D 1307

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

TAHIRA BANO through Legal Heirs---Applicant

Versus

MUHAMMAD BILAL and others---Respondents

Civil Revision Application No. S-126 of 2018, decided on 16th January, 2019.

Specific Relief Act (I of 1877)---

----S. 42---Suit for negative declaration---Maintainability---Scope---Prayer of plaintiff was that defendant be declared as having no right to use the suit property---Suit was decreed concurrently by the Courts below---Validity---Section 42, Specific Relief Act, 1877 did apply to the cases where a person filed a suit claiming entitlement to any character or to any right to property which was denied by the defendants---When a person's right and title was clouded by an instrument then he might seek a declaration under S.42 of Specific Relief Act, 1877 to nullify the effect of such an instrument---Suit for mere declaratory relief under S.42 of Specific Relief Act, 1877 without stating anywhere in the plaint as to legal 'character' or 'status' of the plaintiff disentitled him to such a prayer---Such a plaint should be rejected in exercise of inherent powers of the Court---Suit was not filed to clear the title in the suit property rather negative declaration as to the defendants right in the suit property had been sought---Findings recorded by the Courts below suffered from mis-reading and non-reading of evidence---Suit was not maintainable as S.42 of Specific Relief Act, 1877 did not envisage negative declaration---Suit was dismissed while setting aside the judgments and decrees passed by the Courts below, in circumstances.

Mobeen Raza v. Alloo & Minocher Dinshaw 2016 CLC Notes 10 and Karachi Muncipal Corporation v. Islamuddin 2017 YLR 804 rel.

Irfan Ahmed Qureshi for Applicants.

Abdul Aziz Shaikh for Respondents Nos. 1 to 3.

2019 M L D 1342

[Sindh (Hyderabad Bench)]

Before Aftab Ahmed Gorar, J

MANIK and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. S-75 of 2018, decided on 15th August, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 162---Penal Code (XLV of 1860), Ss. 302, 311, 337-H(2), 449 & 34---Qatl-i-amd, when waived/compounded, a rash or negligent act to endanger human life or personal safety of others, house trespass in order to the commission of an offence punishable with death, common intention---Bail, grant of---Vicarious liability---Scope---Witness involved the accused through further statement---Effect---Four accused (including one unknown) allegedly armed with pistols, surrounded the cot of the brother of complainant and main accused made straight fire shot on the deceased while the rest pointed their pistols towards the complainant and witnesses were directed not to come near, otherwise they would be killed---Complainant contended that petitioners (two in number) shared vicarious liability with the main accused in murdering his brother, who contracted court marriage with the lady hailing from accused side---Record revealed that one petitioner was nominated in the FIR whereas, the name of the other petitioner did not appear in the FIR, and had been implicated on the basis of subsequent statement of the complainant recorded under S.162, Cr.P.C.---No active role against the petitioners (said accused) was alleged in the FIR and only their presence was alleged ---Sharing vicarious liability with the main accused by the petitioners, prima facie, could be determined during the trial---FIR was lodged with the delay of 21 hours without plausible explanation---After one day of lodging of the FIR, witnesses implicated the unknown accused with specific role of firing and in statement recorded under S. 162, Cr.P.C, the complainant disclosed the name of said (unknown ) accused without an active role, hence the FIR and statements of the witnesses had contradicted each other---Mere involvement of the accused in the offence punishable with capital punishment, falling within ambit of prohibitory clause under S. 497(1), Cr.P.C, did not exclude the accused from benefit of bail until and unless sufficient grounds appeared to establish his connection with the commission of offence---Investigating agency had not found any material against the petitioner against whom active role of firing was assigned and his name was kept in Column-II---Motive of the murder, as per complainant, was contracting of court marriage of the deceased with the lady but the complainant had not alleged anywhere the anger of the petitioners, as such, prima facie, S. 311, P.P.C. did not attract against the petitioners---No fruitful purpose would be served to keep the petitioners in jail for uncertain period as bail could not be withheld as punishment---Improved version as to witnessing the incident in the supplementary statement appeared to be well thought and deliberate move on the part of the complainant to fill in the gaps of the present case---Case of the petitioners called for further inquiry into their guilt as envisaged under S.497(2), Cr.P.C---Petitioners were admitted to bail, in circumstances.

Ahsan Gul Dahri for Applicants.

Ms. Reshman Oad, Assistant Prosecutor General Sindh for Respondent.

Ayaz Ali Gopang for the Complainant.

2019 M L D 1362

[Sindh (Sukkur Bench)]

Before Muhammad Faisal Kamal Alam, J

ALLAH BUX KHAN ALMANI---Appellant

Versus

MUKHTIAR AHMED SAHITO and 11 others---Respondents

Election Appeal No.S-1 of 2018, decided on 5th October, 2018.

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

----S. 54---Sindh Local Councils (Elections) Rules, 2013, Rr. 60, 61 & 62---Corrupt and illegal practices---Proof---Counting of votes---Appellant was returned candidate who was aggrieved of order passed by Election Tribunal accepting election petition filed against his election---Validity---Proper appraisal of evidence of other witnesses was not done nor statements of count in question was discussed---Forms-X1 of disputed polling stations which were accepted and those which were disputed were not appraised---Standard of proof in election matter was higher than that of civil proceedings because allegations of corrupt practices was a quasi-criminal charge---High Court set aside findings of Election Tribunal on issue relating to corrupt and illegal practices as same could not be sustained so were other findings which were dependent on findings of earlier issue---High Court directed Election Tribunal to decide matter afresh on relevant issues and to examine official respondents who had filed their written statements---High Court set aside judgment and remanded matter to Election Tribunal---Appeal was allowed accordingly.

Asghar Ali Sheikh and another v. Liaquat Ali Jatoi and others 2016 SCMR 690; Sheikh Muhammad Akram v. Abdul Ghafoor and 19 others 2016 SCMR 733; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280; Muhammad Hussain and others v. Dr. Zahoor Alam 2010 SCMR 286; Engr. Inam Ahmad Osmani v. Federation of Pakistan and others 2013 MLD 1132; Jehan Khan v. Province of Sindh and others PLD 2003 Kar. 691 and Overseas Pakistanis Foundation and others v. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another 2007 SCMR 569 ref.

Usman Dar and others v. Khawaja Muhammad Asif and others 2017 SCMR 292 rel.

(b) Constitution of Pakistan---

----Art. 10-A---Right of fair trial and due process of law---Scope---Where a person is condemned unheard or an action against a person is taken without resorting to due process of law, provision of Art.10-A of the Constitution is applicable but Art.10-A does not aid an indolent or delinquent party who is avoiding to delay proceedings---If delay is caused in a proceeding same amounts to impeding course of justice and party guilty of such act cannot be extended any benefit under Art. 10-A of the Constitution.

Nisar Ahmed Bhanbhro for Appellant.

Manoj Kumar Tejwani for Respondent No.1.

Jamshed Ahmed Faiz, Assistant Attorney General for Respondents.

2019 M L D 1374

[Sindh]

Before Salahuddin Panhwar and Khadim Hussain M. Shaikh, JJ

ABDUL SAMI KHAN and others---Appellants

Versus

The STATE through IXth Anti-Terrorism Court at Karachi---Respondent

Special Anti-Terrorism Appeals Nos.D-92 to D-94 of 2017, decided on 10th October, 2017.

Explosive Substances Act (VI of 1908)---

----Ss.4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---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, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused persons were found in possession of explosive substance, illicit arms and ammunition without having any license---Record showed that mother of co-accused persons had lodged FIR that her sons/co-accused persons had been abducted by the Law Enforcing Agencies---Petition and FIR showed that both were much prior to lodgement of FIR of the case---Recovery mashirnama showed that at the time of arrest one Kalashnikov was in hand of one of the co-accused and same was referred to Forensic Science Laboratory---Report of Forensic Science Laboratory revealed that one .44-bore rifle was examined which entirely negated the claim of recovery of Kalashnikov and its referral to Forensic Science Laboratory---Report of Bomb Disposal Unit showed that occurrence took place on 10.6.2016, whereas FIR and mashirnama showed that occurrence allegedly happened on 18.6.2016---Said contradiction was not challenged nor even was attempted to be claimed as mistake---Question that case property was foisted upon the accused persons could not be ruled out and the defence version appeared to be more reasonable---Circumstances established that prosecution had failed to prove the case beyond reasonable doubt---Appeal was allowed and accused persons were acquitted by setting aside conviction and sentence recorded by the Trial Court.

Muhammad. Akram v. State 2012 SCMR 440 rel.

Mumtaz Ali Khan Deshmukh for Appellants.

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

2019 M L D 1383

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqui, JJ

MAKHAN---Appellant

Versus

ALLAHDINO and 4 others---Respondents

Criminal Acquittal Appeal No.D-08 of 2016, decided on 13th November, 2018.

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

----Ss. 302, 324, 114 & 34---Qatl-i-amd, attempt to commit Qatl-i-amd, abettor present when offence committed, common intention---Appreciation of evidence---Appeal against acquittal---Accused were charged for committing murder of sister of the complainant---Trial Court acquitted the accused---Record showed that ocular evidence produced by three witnesses including complainant, was inconsistent, contradictory and discrepant on material particulars, hence could not be relied upon against the accused---Circumstantial evidence produced by the prosecution was also effectively lacking the strength of independent corroboration---Medical evidence was not fully consistent with the ocular version---All the witnesses except Police Officials were close relatives inter se, hence, in the circumstances, it was unsafe to rely upon them---Record transpired that the alleged incident took place in cattle pen but the owner of said cattle pen had not been examined in the case to corroborate the version of the complainant party---Accused in his defence had examined a witness, who in his statement had denied that any incident had occurred in the cattle pen of his father---Said witness though cross-examined at length by the complainant but he could not be shattered---Contradictions between the statements under Ss.161, Cr.P.C. & 164, Cr.P.C. had been noticed---Pistol allegedly recovered from accused was not produced before the complainant and witnesses during evidence to show whether the same was used in the commission of offence or otherwise---In the present case, complainant had failed to produce convincing and cogent evidence with regard to motive of the case---Post-mortem report of the deceased showed that no marks, or signs of manure, blood, particles of chaff of wheat were observed on the dead body, on its clothes nor on hair---Said aspect of the case led to inference that the incident had not taken place in the manner and at the place, as alleged by the prosecution---Circumstances established that trial court had rightly acquitted the accused persons through impugned judgment, which was neither perverse nor arbitrary---Appeal against acquittal was dismissed in circumstances.

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

----Ss. 302, 324, 114 & 34---Qatl-i-amd, attempt to commit Qatl-i-amd, abettor present when offence committed, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that the accused was arrested on 16.6.2014 and pistol was recovered from his possession---Said pistol and ten empties were received by the Forensic Science Laboratory after the delay of about eight days---No satisfactory explanation was furnished by the prosecution for said delay---Question had arisen as to where the case property was lying during the said intervening period---If it was lying in the malkhana, no entry of malkhana had been produced in the case---Tampering in the case property could not be ruled out in circumstances---Such recovery was inconsequential.

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

----S. 417---Appeal against acquittal---Presumption---Double presumption of innocence was attached to order of acquittal and interference would warrant, if the acquittal judgment/order was arbitrary, capricious or against the record.

Badal Gahoti for Appellant.

Shafique Ahmed Shah for Respondents.

Ms. Rameshan Oad, A.P.G. for the State

2019 M L D 1401

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

ASIF ALI---Applicant

Versus

ALLAH RAKHIO and another---Respondents

Criminal Revision Application No. S-30 of 2017, decided on 25th January, 2019.

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

----Ss. 227 & 403---Constitution of Pakistan, Art.13---Penal Code (XLV of 1860), Ss. 302, 342, 220, 148 & 149---Amendment of charge---Accused were acquitted under S.265-K, Cr.P.C.---Prosecutor, after lapse of two years, filed application in Trial Court under S.227, Cr.P.C. for framing amended charge by adding Ss.449 & 364, P.P.C. on the ground that charges of criminal trespass in a dwelling house and abduction for murder were omitted---Trial Court allowed the said application---Validity---Provision of S.265-K, Cr.P.C. described the power of court to acquit accused at any stage---Legislature had permitted the court to exercise such powers at any time which was not subject to framing of charge even---In the present case, the prosecutor had moved application under S.227, Cr.P.C. for framing amended charge against accused-petitioner for offences punishable under Ss.449 & 364, P.P.C. on the basis of the material which, otherwise, was available with the prosecution at the time of acquittal of petitioner---Such request, prima facie, was illegal because it was not made with reference to any new facts but on the same facts and material which the Trial Court had not found to be sufficient to result in convicting the accused-petitioner for any offence---If such exercise was allowed, it would negate the guarantee, provided by Art. 13 of the Constitution as well S.403, Cr.P.C. that person once convicted or acquitted not to be tried for the same offence---Such guarantee had restricted trial of an acquitted or convicted accused even where, on the same facts, a charge for any other offence might have framed---Such legal position appeared to have been ignored by the Trial Court---Revision was allowed, in circumstances, by setting aside the impugned order.

Syed Alamdhar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121 and Mahmood and another v. Mumtaz Ali and another 2007 PCr.LJ 1623 ref.

Manzoor Hussain v. The State PLD 1998 Lah. 239 and The State through Advocate-General v. Raja Abdul Rehman 2005 SCMR 1544 rel.

(b) Criminal trial---

----Once court passes an order of acquittal or conviction, it becomes functus officio against the accused---If such order is not challenged, by way of appeal or revision, it attains finality.

Ali Nawaz Ghanghro for Applicant.

Allah Rakhio, as per order dated 06.08.2018 was present before the court and stated that he has forgiven the applicant/accused and such statement was taken on record, hence, he called not in attendance today.

Sharafuddin Kanhar, A.P.G. for Respondent No.2.

2019 M L D 1411

[Sindh (Larkana Bench)]

Before Khadim Hussain Tunio, J

GHULAM UMAR---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No. S-52 of 2015, decided on 29th June, 2018.

Sindh Arms Act (V of 2013)---

----S.23-A(i)---Possessing unlicensed arms---Appreciation of evidence---Benefit of doubt---Empty pistols were recovered from the accused persons, for which they failed to produce licence ---Prosecution had examined three witnesses including complainant---Contradictions existing on the point of patrolling of police party raised serious doubt in the prosecution case---Witnesses (police officials) had deposed that they did not make any effort to call for independent witnesses though the place of incident was located in a populated area and the otaq surrounded by houses---Complainant had deposed in his examination-in-chief that he did not remember the name of SHO who followed the accused that escaped on foot---Such statement was hostile to the prosecution case and raised further doubt as to the statement of the complainant as a whole---Contradictions in depositions of witnesses existed about the time of occurrence; in completion of formalities and about the time of reaching back to the police station---Such circumstances raised doubts in the prosecution case, benefit of which would resolve in favour of accused---Petition was allowed and accused were acquitted.

Muhammad Ilyas v. The State 1997 SCMR 25; Hashim Qasim and another v. The Slate 2017 SCMR 986 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

Habibullah G. Ghouri for Applicant.

Raja Imtiaz Solangi, A.P.G. for Respondent.

2019 M L D 1428

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

ALI AKBAR---Applicant

Versus

2nd ADDITIONAL SESSIONS JUDGE, BADIN and 4 others---Respondents

Criminal Revision Application No. S-161 of 2018, decided on 14th November, 2019.

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

----Ss. 3 & 4---Illegal dispossession---Proof---Government land---Scope---Petitioner was aggrieved of Trial Court's order whereby his complaint filed under Ss. 3 & 4 of Illegal Dispossession Act, 2005 was dismissed---Validity---Spot inquiry furnished by Mukhtiarkar revealed that respondents had encroached upon the subject property by constructing katcha hut---Earlier property in question was lying vacant for last more than 30 years---Petitioner had failed to prima facie establish that he was owner and/or occupier of subject property; moreover, nothing was placed on record to remotely suggest that respondents had any right or vested interest over the property encroached upon by them---High Court, while dismissing the criminal revision application, directed Deputy Commissioner to take appropriate action for removal of encroachments from the Government property.

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

----S. 3(1)---Prevention of illegal dispossession of property etc.---Scope---Complainant, in order to obtain benefit of subsection (1) of S.3, Illegal Dispossession Act, 2005, has to prima facie establish that he is owner or was occupier of subject property; that accused has entered into or upon the subject property without having any lawful authority and that accused has done so with the intention to dispossess or to grab or to control or to occupy the said property.

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

----Ss. 3, 2(c) & 2(d)---Prevention of illegal dispossession of property, etc---Owner---Occupier---Scope---Person who can approach the court of competent jurisdiction for seeking relief under the provisions of Illegal Dispossession Act, 2005 is owner and/or occupier of the subject property.

Bilawal Bajeer for Applicant.

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

Muhammad Ayoub Qassar for Respondents Nos.2 to 4.

2019 M L D 1436

[Sindh]

Before Abdul Maalik Gaddi, J

FAISAL JAFFARI---Petitioner

Versus

The STATE---Respondent

Criminal Bail Application No. 1864 of 2017, decided on 30th April, 2018.

Criminal Procedure Code ( V of 1898 )---

----S. 497---Penal Code ( XLV of 1860 ), Ss. 302, 365, 109 &34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, abetment, common intention---Bail, refusal of---Statutory delay in conclusion of trial---Scope---Police encounter---Petitioner (Police Official ) was amongst ten accused persons, some of whom were in uniform and some in civilian clothes, who came in police mobile van and two private vehicles at night and took away the son of the complainant; the complainant was later told that his son had been killed in the police encounter---Complainant contended that in his presence, the petitioner caught hold of his son and made him sit in the mobile van---Petitioner contended that he was entitled for the concession of bail as present case was an old one yet the same had not been decided even after lapse of statutory period for the conclusion of the trial---Validity---Act of the petitioner, tentatively, fell within the ambit of "terrorism" and "extra judicial killing" and on said ground alone, the petitioner was not entitled to bail---Record revealed that out of twenty nine witnesses, eight material witnesses including complainant had been examined which showed that substantial progress had been made in trial by the Trial Court and the case was about to conclude---Record also revealed that the petitioner was apprehended after more than four years of lodging of the FIR---Petitioner was well aware of the charge against him, but he opted not to surrender before the Trial Court for a long period, which showed that the petitioner by his conduct thwarted the process of investigation as well as trial---Unexplained noticeable abscondence of an accused deprived him some of the normal rights granted to him by procedural as well as substantive law---Case diaries and progress report submitted by the Presiding Officer of the Trial Court, showed that the delay in conclusion of trial was on the part of petitioner as he consumed one year time to complete the cross-examination of the complainant---Progress report categorically stated that the petitioner had shown mistrust upon the Court and emphasized to refer for transfer of the case to any other Court, therefore, reference was made to the Registrar of the High Court,for transfer of the case---Sufficient efforts were made by the Trial Court to conclude the trial, but it was the petitioner who delayed the conclusion of trial and even approached revisional court for the transfer of his case---High Court directed Trial Court to decide the trial as early as possible in accordance with law since the present case was an old one---Bail was refused to the petitioner, in circumstances.

Javid-ur-Rehman and another v. The State 2010 SCMR 1744; The State v. Haji Kabeer Khan PLD 2005 SC 364 and Muhammad Faiz alias Bhoora v. The State and another 2015 SCMR 655 ref.

Shabeer v. The State 2012 SCMR 354; Jamshed Khan v. National Accountability Bureau through Chairman and others 2018 PCr.LJ 341; Zulfiqar Ali Jatoi v. The State 2012 MLD 1726; Sajawal alias Bhola v. The State and another 2012 MLD 583; Naheem Hussain v. The State 2012 MLD 246; Jamsheed Ali v. The State 2012 PCr.LJ 1022; Ghazanfarullah Khan Pathan v. The State 2012 PCr.LJ 1613; Zameer v. The State 2012 YLR 477 and Syed Hasnain Raza Zaidi v. The State 2012 YLR 1496 distinguished.

Aamir Mansoob Qureshi and Muhammad Hanif Samma for Applicant.

Sagheer Abbasi, Assistant Prosecutor General, Sindh for the State.

Muhammad Akbar Khan for the Complainant.

2019 M L D 1455

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

BAQAI MEDICAL UNIVERSITY through authorized representative and another---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of National Health Service, Islamabad and others---Respondents

C.P. No. D-243 of 2019, decided on 18th February, 2019.

Pakistan Medical and Dental Council Ordinance (II of 2019)---

----Ss. 22 & 35---Pakistan Medical and Dental Council Ordinance (XXXII of 1962), Ss. 21(2) & 22---Inspections of Medical Colleges by Pakistan Medical and Dental Council---Council, formation of---Petitioners were medical colleges who were restrained to admit students in session 2018-19 due to discrepancies found during inspections even after redressal of issues---Contention of Pakistan Medical and Dental Council was that post-dissolution of old Council and prior to constitution of new Council, Pakistan Medical and Dental Council was unable to inspect petitioners (colleges) to verify regarding improvements demonstrated from record---Validity---Pakistan Medical and Dental Council was responsible to provide fair opportunity to defend before taking drastic action of suspending intake of new students for first MBBS Professional for year 2019---No inspection could be carried out at such stage due to non-availability of new Council but administrative ground and inability of Council authorities, petitioners could not be oppressed---High Court directed petitioners (Colleges) to apply to Pakistan Medical and Dental Council for inspection---High Court also directed one university to send list of merits for admissions in Colleges/institutions in line with its entitlement thereto prior to the impugned letter---Constitutional petition was disposed of accordingly.

Pakistan Medical and Dental Council and others v. Ziauddin Medical University PLD 2007 SC 323; Messrs Inbox Business Technologies Ltd. v. Pakistan and others 2018 PTD 621 and Warid Telecom (Pvt.) Limited v. Pakistan Telecommunication Authority 2015 SCMR 338 ref.

Afnan Saiduzzaman Siddiqui for Petitioners along with Iftikhar Ahmed, Principal of Baqai Medical College.

Sohail H.K. Rana, for Respondent No.2 (Pakistan Medical and Dental Council)

Ishrat Zahid Alavi, Assistant Attorney General.

Dr.Abdul Rahman Rajput, Deputy Director, Admission Cell, Jinnah Sindh Medical University, Karachi.

2019 M L D 1491

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqui, JJ

HAKEEM ALI MOMIN---Appellant

Versus

GHULAM NABI and 6 others---Respondents

Criminal Acquittal Appeals Nos. D-11 and D-12 of 2014, decided on 6th November, 2019.

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

----Ss. 365-A, 109, 34, 324, 353, 147, 148 & 149---Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Criminal Procedure Code (V of 1898), S.417(2)---Kidnapping or abduction for extorting property, valuable security, abetment, common intention, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, rioting armed with deadly weapon, unlawful assembly, possessing illicit weapons---Appreciation of evidence---Delay of about sixteen days in lodging the FIR---Effect---Record showed that incident took place on 21.4.2012---Facts remained that the distance in between the place of incident and the police station was about three kilometres, but the FIR was lodged on 7.5.2012 with a delay of about sixteen days---No plausible explanation had been furnished by the prosecution for such delay, which was fatal to the prosecution case.

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

----Ss. 365-A, 109, 34, 324, 353, 147, 148 & 149--- Pakistan Arms Ordinance (XX of 1965), S.13(d)---Criminal Procedure Code (V of 1898), S. 417(2)---Kidnapping or abduction for extorting property, valuable security, abetment, common intention, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, rioting armed with deadly weapon, unlawful assembly, possessing illicit weapons---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused persons-respondents kidnapped the victim for ransom---Police received spy information that kidnapee was made to sit by seven armed persons under the tree of a graveyard---Police reached there, but the culprits started firing straight upon the police party---Police party also fired and arrested four accused, whereas the remaining three succeeded to run away---Police recovered weapons from the arrested accused---Trial Court acquitted the accused persons---Validity---Record showed that the accused were not nominated in the FIR---Accused were arrested on 20.5.2012 after encounter with police---Repeater .12-bore with magazine and three T.T. pistols .30-bore with magazines were recovered from the arrested accused persons---Record transpired that all the said weapons had not been sent to Forensic Science Laboratory for report---In the present case, no identification parade was held---Abductee was recovered on 20.5.2012, but his statement under S.164, Cr.P.C. was recorded before Judicial Magistrate on 31.5.2012 after a delay of about eleven days---No plausible explanation for such delay had been furnished by the prosecution---Possibility was that the accused persons, during the intervening period, were shown to the abductee before recording his statement---Abductee had not named any of the culprits, he had stated that he was kidnapped by four armed persons but the FIR had been lodged against five accused persons---Complainant had only identified three accused persons and did not recognize the rest of the accused persons, whereas the FIRs had been lodged with regard to the same incident against five accused persons---Circumstances suggested that either the complainant had stated lie with regard to number of the accused and their names, or the FIR had been falsely registered against the remaining accused---Abductee had deposed that he was kidnapped by four armed persons and they forcibly took him in their car---Accused persons had folded his eyes with cloth and took him to an unknown place---Allegedly, the eyes of abductee were folded throughout the incident, then how he had identified the accused persons---Abductee, in his evidence recoded before the Trial Court, had not recognized one accused and stated that six accused persons, present in court, were the same, thus, by such way, he had improved his statement under S.164, Cr.P.C.---Circumstances showed that either said statement of the abductee mentioning four accused persons was a false statement or his evidence recorded before the Trial Court, wherein he had implicated six accused persons, was incorrect---Abductee had stated in cross-examination that after his release from the captivity of the accused persons, the police had shown him the accused and also disclosed him their names---Cross-examination of the abductee showed that case of the prosecution was based upon the contradictory evidence and the judgment of acquittal was passed by the trial court was legal, proper and based upon sound reasons---Appeal was dismissed in circumstances.

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

----Art. 22---Non-holding of identification parade---Effect---If the accused was not nominated in the case and was arrested subsequently, identification parade in such like case was necessary---Non-holding of the identification parade would create serious doubt in the prosecution case.

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

----S. 417---Appeal against acquittal---Scope---Accused after acquittal acquired double presumption of innocence---Court would interfere only if the impugned judgment was arbitrary, capricious or against the record.

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

----S. 417---Appeal against acquittal and appeal against conviction---Appreciation of evidence---Principles---Appreciation of evidence in the case of appeal against conviction and appeal against acquittal were entirely different---Interference in case of appeal against acquittal was to be made when there was gross misreading of evidence, resulting in miscarriage of justice.

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

Aslam P. Sipio for Appellant (in Criminal Acquittal Appeal No.D-11 of 2014).

Syed Meeral Shah Bukhari, Additional Prosecutor General for the State Appellant/Respondent No.7 (in Criminal Acquittal Appeal No.D-12 of 2014 and Cr. Acq. Appeal No.D-11 of 2014).

Respondent No.3 in person (in both Criminal Acquittal Appeals)

None present for private Respondents Nos.2 to 6 (in both Acquittal Appeals).

2019 M L D 1508

[Sindh (Hyderabad Bench)]

Before Aziz-ur-Rehman and Muhammad Faisal Kamal Alam, JJ

ABDULLAH LAGHARI---Petitioner

Versus

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

C. P. No. D-222 and M.As. Nos. 1206, 2342 and 13013 of 2018, decided on 3rd December, 2018.

Sindh Building Control Ordinance (V of 1979)---

----Ss.3(o), 6(2) & 7(e)---Qanun-e-Shahadat (10 of 1984), Arts. 92, 93 & 129---Construction of "public building"---Official documents and acts---Presumption---Petitioner sought removal of encroachment made by respondent while constructing a multi-storied commercial building---Validity---Order passed by Deputy Commissioner and documents produced were official acts and official documents---Presumption of validity and genuineness was attached to such documents and acts in terms of Arts. 92, 93 & 129 of Qanun-e-Shahadat, 1984---Petitioner failed to show that official approvals and approved building plan for construction of Mall in question which was a multi-storied project, were granted in favour of respondent by not fulfilling codal formalities---Sindh Building Control Authority was under obligation to ensure that project was completed in conformity with Ss.3(o), 6(2) & 7(e) of Sindh Building Control Ordinance, 1979 and Building Planning Regulations and the approved Building plan---High Court directed the authorities to re-inspect subject public road and if it was found encroached upon by any person including the petitioner or respondent then the encroachment be removed---Constitutional petition was dismissed accordingly.

2003 SCMR 1773 ref.

Mir Naeem Talpur and Wali Muhammad Khoso for Petitioner.

Nadeem Abbasi for Respondent No.4.

Adnan Kareem Khurram for Respondent No.6.

Allah Bachayo Soomro, Additional A.G. along with Muhammad Khan Khatti, A.C. Taluka Hussain Bux Mari for D.C. Mirpurkhas and Abdul Qayoom, Mukhtiarkar, Taluka Hussain Bux Mari.

2019 M L D 1542

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar and Amjad Ali Sahito, JJ

ROSHAN ALI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-149 and Confirmation Case No.D-07 of 2011, decided on 18th October, 2018.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Prosecution case was that the accused being brother-in-law of complainant demanded Rs. 30/40 thousands as a loan, on refusal, he got annoyed and committed the murder of mother and daughter of complainant---Record showed that occurrence had taken place in broad daylight inside the house of complainant and the parties were known to each other prior to the incident, hence there was no question of mistaken identity---Incident was reported at police station within 45 minutes wherein the accused was nominated with specific role of committing the murder of two innocent ladies by causing blows with sharp edge side of wooden piece---Accused was arrested after 10 minutes of the occurrence by witnesses and Police Official and blood-stained wooden piece and clothes of accused were recovered---Prosecution had produced ten witnesses to prove the case against the accused including complainant and two other eye-witnesses, who fully supported the prosecution version---Said witnesses had deposed that accused in their presence caused blows to deceased ladies---Despite cross-examination, nothing adverse to the prosecution was brought on the record---Eye-witnesses remained consistent on all material aspects of the case---Some minor contradictions in the statements had come on record due to passage of time which could be ignored---Complainant being inmate of the house was natural witness and eye-witnesses had adjoining houses, they reached on the cries and followed the accused and apprehended him---Evidence appeared to be confidence inspiring---No enmity or motive for false implication of the accused was suggested to both the eye-witnesses---Circumstances of the case indicated that the act of accused was gruesome and merciless as he had committed murder of mother of complainant aged about 70 years and daughter aged about 25 years---Appeal was dismissed accordingly.

Mureed Hussain v. The State through Prosecutor General Sindh 2014 SCMR 1689 and State v. Muhammad Yasin Memon alias Yaseen Memon 2011 SCMR 401 ref.

(b) Criminal trial---

----Minor contradictions in the statement of witnesses---Effect---Minor contradictions and improvements in the statements of the witnesses were to be overlooked and only material contradictions were to be considered.

Zulfiqar Ahmed and another v. The State 2011 SCMR 492 rel.

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

----S. 302(b)---Qatl-i-amd--- Appreciation of evidence--- Medical evidence---Scope---Medical Officer, who conducted post-mortem examination of the dead bodies, had fully corroborated the version of eye-witnesses---Evidence of Medical Officer had shown that deceased ladies sustained five injuries each on different parts of their bodies---Injuries were anti-mortem in nature and were sufficient to cause death in ordinary course of life---Unnatural death of both the deceased ladies had not been denied---Medical evidence was confirmatory with the ocular evidence, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Circumstantial evidence---Scope---Record showed that accused was arrested by the police and witnesses immediately---Blood-stained wooden piece (weapon of offence), earth and clothes were secured by Police Official in presence of private mashirs---Said articles were sent to the Chemical Examiner and the reports produced by Investigating Officer revealed that said articles were stained with human blood---Mashirs and Investigating Officer had fully supported the prosecution case---Said witnesses were also subjected to cross-examination but their credibility could not be shaken as they not only corroborated each other but also remained consistent on all material particulars of the prosecution case---Prosecution had proved its case against the accused beyond reasonable doubt, in circumstances.

Ranjha v. The State 2007 SCMR 455 and Ashiq Hussain v. The State 2017 SCMR 188 rel.

(e) Criminal trial---

----Witness---Statement of related witness---Reliance---Scope---Mere relationship of the witnesses with the deceased in a murder case, was not sufficient to discard their evidence.

Hasil Khan v. The State and another 2012 SCMR 1936 rel.

Sikander Ali Junejo for Appellant.

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

2019 M L D 1554

[Sindh]

Before Ahmed Ali M. Shaikh, C.J. and Adnan Iqbal Chaudhry, J

SHAKEEL and another---Appellants

Versus

The STATE---Respondent

Spl. Cr. A.T. Appeal No. 66 and Spl. Cr. A.T. Jail Appeal No. 103 of 2018, decided on 10th August, 2018.

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

----Ss. 384 & 385---Anti-Terrorism Act (XXVII of 1997), S.7(i)(h)---Sindh Arms Act (V of 2013), S. 23(1)(a)---Extortion, putting a person in fear of injury in order to commit extortion, act of terrorism, possessing illicit arms---Appreciation of evidence---Benefit of doubt---Prosecution case was that both the accused made their way into the factory of complainant, held the complainant at gun point and demanded Rs. 5000 from him as Bhatta---Record showed that complainant stated that at the time of incident, his father arrived and the accused agreed to let the complainant go outside to get the money, but the culprit held his son aged eleven years who was available in the factory---Complainant also stated that his sister who was also watching the incident from first floor had raised cries---Complainant did not make any mention in the FIR, of his father arriving at the scene to witness the incident and also did not make any mention of his son being present at the time or being detained by any of the accused nor did he make any mention of his sister witnessing the incident---During the cross-examination, the complainant for the first time introduced his brother as a witness of the incident---Neither in FIR nor in examination-in-chief complainant made any mention of his brother being present along- side him at the time of the incident---Father and brother of the complainant were not enlisted as witnesses---No explanation was furnished as to why the prosecution did not enlist the said persons as witnesses---Prosecution case was that the accused were apprehended just outside the house of the complainant after a chase of 10/15 paces---On cross-examination, the complainant stated that the police had apprehended the accused just outside his factory but about twenty minutes were spent in the search of the accused persons by the Police Officials---Circumstances established that prosecution had not been able to prove the charges against the accused persons beyond reasonable doubt---Appeal was allowed and accused were acquitted, in circumstances, by setting aside conviction and sentences recorded by the trial court.

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

----Art. 129(g)---Non summoning of material witnesses---Effect---If material witnesses were neither enlisted nor summoned, the court could only draw the adverse presumption under Art. 129 (g) of the Qanun-e-Shahadat, 1984 that had such person been called as witnesses their evidence would have not supported the case of the prosecution.

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

----Ss. 384 & 385---Anti Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)A---Extortion, putting a person in fear of injury in order to commit extortion, act of terrorism, possessing illicit arms---Appreciation of evidence---Recovery of weapon of offence from the accused---Reliance---Scope---Prosecution case was that pistol was recovered on a physical search of co-accused---Police Official had stated that memo. of arrest and recovery was prepared on spot in presence of witnesses and case property was sealed on the spot---Complainant, during the cross-examination, had stated that Police Officials had prepared memo of arrest and recovery while sitting in the factory and the parcel bag of the recovered pistol did not bear the date and time and the crime weapon was sealed at police station---Said two witnesses examined by the prosecution to give evidence of the recovery of the pistol, contradicted each other in stating the time and place of preparation of the memo of arrest and recovery, and the time and place of sealing the pistol---Such contradictions had given reason to doubt the recovery of the pistol itself.

Muhammad Rahib Lakho for Appellant (in Sp. Cr.A.T. Appeal No.66 of 2018).

Ahmed Ali Dewan for Appellant (in Sp. Cr.A.T. Jail Appeal No.103 of 2018).

Zafar Ahmed, Deputy Prosecutor General Sindh for the State (in Sp. Cr.A.T. Appeal No.66 and Sp. Cr.A.T. Jail Appeal No.103 of 2018).

2019 M L D 1569

[Sindh (Sukkur Bench)]

Before Amjad Ali Sahito, J

GANGOO MAL and others---Applicants

Versus

The STATE---Respondent

Crl. Bail Applications Nos.S-328, S-335 and S-346 of 2018, decided on 1st October, 2018.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302 & 365--- Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person---Pre-arrest bail, refusal of---Specific role was attributed to the accused---Scope---Two petitioners, owners of godown, allegedly, with active participation of Police Officials (other three petitioners), kidnapped and murdered their employee on his demand of arrears/ salary---Petitioners contended that medical evidence was not in line with the ocular account---Record revealed that prosecution witnesses had fully supported the version of the complainant---Investigation Officer also recorded statements of Police Constables (other than the petitioners), who disclosed in their statement that accused police officials took away the deceased---Investigation Officer found all the petitioners guilty of committing the murder of deceased---Only tentative assessment was to be made at bail stage---Names of petitioners transpired in the FIR with specific role that owners of the godown (petitioners) called Police officials (petitioners), who took away the deceased and thereafter threw his dead body in front of shop of the petitioners (owners)---Petitioners had failed to bring on record any material to show that they had been falsely involved due to malice/ ulterior motives of the complainant or they had not committed the alleged offence--- Contention of the petitioners regarding medical evidence not being in line with the ocular account, could not be considered without a deeper appraisal of evidence---Ample evidence/ material, prima facie, was available on record to connect the petitioners with the commission of alleged offence---Order granting ad interim pre-arrest bail to the petitioners was recalled by the High Court, in circumstances.

Riaz Ahmed v. The State 2009 SCMR 725 and Mumtaz v. The State 2012 SCMR 556 ref.

Qamar Naseem alias Baitu Masih and others v. The State 2006 YLR 1221; Malik Sajid Ismaeel and others v. The State 2017 MLD 446; Sohail Zubair and 3 others v. Dildar Ali Khan and another 2017 MLD 836; Shah Zaman v. The State 2018 YLR 1800 and Muhammad Bashir v. Mirza Ali 2003 PCr.LJ 619 distinguished.

Mukesh Kumar G. Karara and Sajjad Muhammad Zangejo for Applicants.

Imdad Ali Malik for Applicant (in Crl. Bail Application No.S-335 of 2018).

Muhammad Ali Napar for Applicants (in Crl. Bail Application No. S-346 of 2018).

Abdul Rehman Kolachi, Deputy Prosecutor General for the State(in Crl. Bail Application No. S-346 of 2018).

Muhammad Juman Sahito for the Complainant (in Crl. Bail Application No. S-346 of 2018).

2019 M L D 1580

[Sindh]

Before Salahuddin Panhwar, J

MOHAMMAD MESUM ABBAS---Applicant

Versus

Ist ADDITIONAL SESSIONS JUDGE, KARACHI and 3 others---Respondents

Criminal Revision Application No.157 of 2016 and M.A. No.11318 of 2017, decided on 10 May, 2018.

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

----S. 227---Penal Code (XLV of 1860), Ss. 324, 506-B & 34---Attempt to qatl-i-amd, criminal intimidation, common intention---Application for alteration of charge was dismissed by the Trial Court---Scope---In the present case, initially charge was framed by trial court under Ss.324, 506-B & 34, P.P.C.---Subsequently, case was transferred to other court, who amended the charge and S. 324, P.P.C. was excluded which was mentioned in the earlier charge---Validity---Record transpired that first Trial Court found the offence under S. 324, P.P.C. having been made out---Other court, directed for trial of accused persons under Ss. 506(B) & 34, P.P.C.---If the Trial Court was of the opinion that S. 324, P.P.C. was no more applicable then Court was required to have followed the rule of propriety and to make a reference for return of file to court of the Magistrate---First Information Report was lodged with the allegation of qatl-i-amd which legally was not dependant upon nature of injury---Merely for reason of medical report, the Trial Court was not competent to have excluded S. 324, P.P.C., particularly when the court itself had observed in the impugned order that nature of allegation was the same so framing of charge under Ss. 506-B & 34, P.P.C. would not change the scenario---If nature of allegation was same then how S. 324, P.P.C. could be excluded particularly when on same allegation S. 324, P.P.C. was included while framing first charge---Allegedly, respondent had attacked upon complainant with iron rod to commit his murder and complainant received injuries---Impugned order nowhere suggested that there came any such material during trial which had allowed trial court to form opinion that prosecution parted from such allegation---Circumstances established that trial court had completely ignored the legal position while framing charge---Revision petition was allowed, in circumstances, by setting aside the impugned order.

Muhammad Farooq v. Ahmed Nawaz Jagirani PLD 2016 SC 55 rel.

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

----S. 227---Amendment of charge---Trial Court was competent to alter or add any charge at any stage of trial before pronouncement of judgment.

Muhammad Jameel Azeem v. Ghulam Shabbir 2011 SCMR 1145 rel.

Syed Nasir Hussain Jafri for Applicant.

Abdul Mateen Khan for Respondents and Abrar Ali Khichi, A.P.G.

2019 M L D 1588

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

Hafiz MOHAMMAD SHEHZAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-344 of 2018, decided on 1st April, 2019.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-J, 324 & 511---Hurts by poison, attempt to commit qatl-i-amd---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Scope---Positive chemical report--Effect---Allegation against the petitioner was that he administrated poison, through sweet, to his wife---Petitioner contended that during trial his advocate made the suggestion to the alleged victim that " you do not want to live with the accused(petitioner) as his wife at any cost" on which she kept mum for considerable time and later stated that she wanted time---First Information Report had been lodged with delay and the parties were husband and wife---Alleged offence was unseen and only piece of evidence against the petitioner was a positive chemical report; however, the same did not suggest that the petitioner was the person who administered poison to the victim---Prosecution could not justify the factum of non-replying the question/suggestion by the victim before the Trial Court whereby she, instead of replying the same in affirmative, or negative, preferred to seek time---Case of the petitioner called for further inquiry as envisaged under S. 497(2), Cr.P.C---Ad-interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances.

Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others 2005 SCMR 1539 ref.

Syed Kamran Ali along with Applicant (on interim pre-arrest bail).

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

2019 M L D 1594

[Sindh]

Before Aftab Ahmed Gorar and Amjad Ali Sahito, JJ

Mst. BUSHRA and another---Petitioners

Versus

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

Constitutional Petition No.D-5938 and C.M.A. No.24656 of 2017, decided on 17th April, 2019.

Constitution of Pakistan---

----Arts. 9 & 35---Right to contract marriage of one's own free will---Scope---Harassment caused to married couples by their families and the police---Major and sane persons, both male and female had the right to contract marriage with their own free will guaranteed under Art. 35 of the Constitution---Where a duly married couple was compelled to separate through coercive measures by police or any other person, Art. 9 of the Constitution stood violated---Said right inhered that the married couple was entitled to enjoy each other's company and to live together without fear or hindrance---Duty of the police was to act in aid of the Constitution and the law---Neither the police nor any other functionary of the State had any right to cause harassment to a married couple or their family members with a view to disturb their marital life or cause separation between the spouses---If a complaint was made to the police, it should ascertain whether a valid marriage had taken place or not---Once the police officials came to know that a valid marriage had taken place, then, brushing aside any other social consideration, they must not act to disrupt or otherwise interfere in the marital life of the spouses.

Mst. Sajida Bibi and others v. Incharge Chouki No.2 Police Station Saddar, Sahiwal PLD 1997 Lah. 666 ref.

None present for the Petitioner.

Jan Muhammad Khuro, A.A.G., Sindh for Respondents.

Ali Haider Saleem, D.P.G. Sindh for Respondents.

S.I.P. Zulfiqar Ali Police Station Zaman Town.

2019 M L D 1603

[Sindh]

Before Muhammad Saleem Jessar, J

Khawaja MUHAMMAD ASGHAR---Applicant

Versus

MUHAMMAD IRFAN and 4 others---Respondents

Criminal Miscellaneous Application No. 15 of 2018, decided on 2nd August, 2018.

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

----Ss. 324, 427, 109 & 34---Criminal Procedure Code (V of 1898), S. 173---Attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, abetment, common intention---Complainant-applicant had alleged that he and his son while going on a car, driven by the driver, were hit by the accused and suddenly other culprits duly armed with dandas and iron bars emerged at the spot and attacked them---Car was badly damaged but its windows could not be opened---Driver came out from the window of the car and raised lalkara which attracted other people whereupon the culprits fled away by extending threats for dire consequences---Complainant-applicant alleged that Investigating Officer while submitting report/charge sheet under S. 173, Cr.P.C. had deleted/changed the sections of P.P.C. mentioned in the FIR at the instance of the accused to extend them undue favour---Judicial Magistrate had approved the charge sheet without applying his judicious mind---Validity---Section 324, P.P.C. had two limbs, firstly, that if any act was done by anyone with intention or knowledge that by such act he could be held guilty of committing qatl-i-amd of any person then he would be punished, secondly, if any hurt was caused to any person by such act of the offender, he would also be punished for that hurt---For holding such offender to be guilty of offence under S.324, P.P.C., it was not necessary that the victim should have sustained injuries---On the other hand, if any intentional attempt was made to commit qatl, without causing any injury to the victim, even then such offender would be guilty of committing offence under S.324, P.P.C.---If injuries were caused by lathi/danda, which had been declared as lethal weapon, such offence could fall under S. 307, P.P.C. parallel to the present S. 324, P.P.C.---No material was available in the present case to establish that the complainant and his son got injured due to alleged infliction of danda or iron bars blows by the accused as the complainant himself contended that the doors of the car could not be opened and the accused inflicted danda blows on the doors of the car---However, from the conduct of the accused persons, it was clear that they, in fact, intended to inflict the danda blows on the inmates of the car but could not accomplish their act as they could not succeed in opening the doors of the car---Circumstances suggested that accused persons made attempt to commit offence but could not succeed in concluding their attempt---Ingredients of S. 324, P.P.C. were attracted in circumstances---Investigating Officer although termed the alleged incident as road accident, however, in the challan he had mentioned that the accused persons had given beatings to the complainant and his son under the garb of road accident, therefore, offences under the provisions of law as mentioned in the challan had been made out against them---Investigating Officer was also of the opinion that, in fact, the accused had the intention to commit qatl of the complainant and his son because they used lethal weapons for committing such offence which might have caused death---Impugned order passed by the Judicial Magistrate being a non speaking order required interference of the High Court, therefore, application was admitted for hearing.

Ghulam Hussain v. The State 1982 SCMR 1113(2) ref.

Ghulam Hussain v. The State 1982 SCMR 1113(2); Gul Nawaz alias Gul Mowaz and 2 others v. The State 1970 SCMR 667; Abdul Majeed v. The State 1973 SCMR 108 and Arshad Mehmood v. The State, 1986 PCr.LJ 330 rel.

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

----S. 173---Power of Judicial Magistrate to agree or disagree with police report/challan---Scope---Judicial Magistrate was not bound by the report submitted by police under S.173, Cr.P.C.---Judicial Magistrate had to apply his own judicious and independent mind to the material placed before him and form his own opinion about the matter.

Mohammad Shahid Khattak and another v. The State PLD 2013 Sindh 220 rel.

Applicant present in person.

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

2019 M L D 1618

[Sindh (Hyderabad Bench)]

Before Muhammad Faisal Kamal Alam, J

MANSOOR ALI ABBASI---Applicant

Versus

AMIR BUX and another---Respondents

Civil Revision No. 38 of 2009, decided on 25th November, 2016.

Civil Procedure Code (V of 1908)---

----O. XVI, R. 1---Suit for declaration, permanent injunction and rendition of account---Pleadings, proof of---Plaintiff filed suit against defendant but failed to produce witnesses as well as evidence---Trial court dismissed suit and Lower Appellate Court maintained the same---Validity---Plaintiff was to prove his case on its own merits---Contents of plaint/pleadings did not carry weight unless same were proved by leading evidence and for that purpose plaintiff had to enter witness box and lead evidence---Plaintiff was neither present on the day when his evidence was to be recorded nor filed list of witnesses as required under O.XVI, R.1, C.P.C.---Trial Court had rightly passed order in question and same was rightly maintained by Lower Appellate Court---High Court declined to interfere in judgments below in exercise of its revisional jurisdiction as there was no infirmity or material irregularity---Revision was dismissed in circumstances.

PLD 2006 Kar. 252 and 2007 MLD 1945 ref.

None present for Applicant.

Aziz Ahmed Leghari for Respondents.

2019 M L D 1625

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

HAIDER ALI RAVJANI---Appellant

Versus

GULZAR FEROZ---Respondent

F. R. A. No.63 of 2016, decided on 28th June, 2018.

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

----Ss. 17(6)(9) & 24---Eviction of tenant---Wilful default in payment of monthly rent---Personal bona fide need---Scope---Appellant/landlord contended that Additional Rent Controller had wrongly dismissed his eviction application by holding that he (landlord) was very much confused to specify particular ground on which he wanted to evict the tenant/respondent from the demised premises---Respondent/tenant contended that the plea of the appellant for personal need of demised premises was inconsistent and self-contradictory---Validity---Record revealed that appellant/landlord extended different reasons at various stages of the case, however, all such reasons were directed to personal bona fide use---Mere technicalities could not infringe his right of personal use as all varied reasons given by the appellant were based on personal need---If the appellant would use the premises for personal need in one month time period, as provided in S. 17(6) of Cantonments Rent Restriction Act, 1963 possession could be reverted to the tenant---Landlord was the sole arbiter in the matter of personal need of his own premises---Appellant/landlord had made out a good case for eviction of the tenant---High Court set aside the impugned order passed by the Additional Rent Controller and directed the tenant to vacate the premises within three months---Appeal was allowed accordingly.

1992 SCMR 1292; 1985 CLC 2455; 1985 CLC 1053; 1986 CLC 1485; 1982 CLC 1324; 1986 CLC 2628; 1993 CLC 1080; 1986 CLC 448; 1988 CLC 1297; 1988 CLC 1833; 1982 CLC 1444; 1986 CLC 648 and 2013 YLR 2705 distinguished.

Nisar Ahmed Tarar for Appellant.

Muhammad Atiq Qureshi for Respondent.

2019 M L D 1653

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

Maulana MUHAMMAD MOHSIN FAIZ---Applicant

Versus

Sheikh SIKANDAR HUSSAIN and 2 others---Respondents

Criminal Revision Application No. 7 and Criminal Miscellaneous Application No. 209 of 2013, decided on 11th June, 2018.

Penal Code (XLV of 1860)---

----Ss. 295-B, 295-C, 298-A, 423, 469, 471, 196, 195, 192 & 34---Criminal Procedure Code (V of 1898), S. 202(2)---Postponement of issuance of process---Magistrate to conduct investigation on the order of Court of Session---Defiling, etc., copy of Holy Quran---Use of derogatory remarks, etc., in respect of the Holy Prophet and personages---Respondent had filed private complaint against applicants under Ss. 295-B, 295-C, 298-A, 423, 469, 471, 196, 195, 192 and 34, P.P.C. in the court of Judicial Magistrate---Judicial Magistrate sent the record of the case to the Sessions Judge---Sessions Judge recorded the statement of complainant under S. 200, Cr.P.C. and ordered for sending the record to Judicial Magistrate for conducting preliminary enquiry---Sessions Judge, later on, directed the complainant to produce the objectionable material---Said orders were not complied with---Session Judge, after that, registered the complaint and issued bailable warrants of the applicants--- Validity---Held, orders passed by Sessions Judge were not complied with, yet the complaint was registered---Preliminary enquiry should have been conducted while taking benefit of proviso (2) of S.202, Cr.P.C.---Investigation conducted by Magistrate would have been more appropriate in the circumstances of the case, who could also get assistance from specialized branch of police, which was mandated to conduct sensitive investigation---Preliminary enquiry was directed to be held accordingly---Bail bonds furnished by accused persons, as a consequence of registration of complaint, were discharged---Applications were disposed of accordingly.

Mohammad Nazeer Tanoli for Applicant (in Crl. Revision Applications No. 07 of 2013 and 209 of 2013).

Syed Tasawar Hussain Zaidi for Respondents Nos.1 and 2 (in Crl. Revision Application No. 07/2013 and 209 of 2013 respectively).

Ms. Rubina Qadir, A.D.P.P. for Respondent.

2019 M L D 1659

[Sindh]

Before Naimatullah Phulpoto and Rasheed Ahmed Soomro, JJ

Rao NAEEM alias GOGA---Appellant

Versus

The STATE---Respondent

Special Criminal AT Appeals Nos. 160 and 161 of 2018, decided on 5th September, 2018.

(a) 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---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 on 25.4 2016 at 1.50 a.m., the police found the accused in suspicious manner, who on seeing the police party tried to run away from there but police surrounded and caught hold of him---One bomb wrapped in plastic shopper and a 9-MM pistol containing five bullets in the magazine without license were recovered on the search of accused---Record showed that source of light had not been disclosed by the prosecution witnesses---Description of bomb and 9-MM pistol had not been disclosed---Weapons and explosive substance were sent to the experts with delay---Safe custody of said articles at the police station had not been established---Investigating Officer had failed to inquire/ interrogate about the filing of constitutional petition by accused against the police as alleged in his defence---Investigating Officer was duty bound to find out the truth of the matter under investigation but he failed---Investigation conducted was dishonest and colourful---Evidence of Police Officials brought on record was not trustworthy and reliable---Circumstances established that trial court had failed to appreciate the evidence according to the settled principles of law---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Asif Khan v. The State 2018 YLR 661; Muhammad Imran Afridi v. The State 2018 YLR 2394; Mehboob Alam alias Mandi v. The State 2018 YLR 1726; Muhammad Umair and others v. The State 2017 YLR 1097 and Muhammad Hafeez v. The State SBLR 2017 Sindh 2231 ref.

(b) 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---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---Recovery of weapon---Scope---Simple recovery of weapon could not be considered as corroborative piece of evidence until it was supported by positive report of Forensic Science Laboratory.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

(c) 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---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---Safe custody of weapon at police station and its safe transit---Scope---Safe custody of weapon at police station and its safe transit was requirement of the law.

Kamaluddin alias Kamala v. The State 2018 SCMR 577 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---If there was a circumstance which created reasonable doubt in a prudent mind about the guilt of the accused the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Zaman v. The State 2014 SCMR 749 rel.

Shah Imroz Khan for Appellant.

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

2019 M L D 1679

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

ABDUL RASHID---Appellant

Versus

MAQBOOL AHMED---Respondent

Second Appeal No. 77 of 2013, decided on 14th June, 2018.

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

----S.16---Limitation Act (IX of 1908), Art. 110---Arrears of rent---Suit for recovery of arrears of rent---Limitation---Commencement of---Expression "when the arrears become due" occurring in Art.110, Limitation Act, 1908---Scope---Suit for recovery of arrears of rent could be filed within three years which would be reckoned when the arrears became due---Expression "when the arrears become due" would mean the date on which the rent had become payable and same did not include any other subsequent event---Claim of plaintiff was based upon month to month basis and cause of action did accrue on every month which continued till filing of the suit---Major period of rent in the present case did come within three years prescribed by the law, in circumstances.

Almas Ahmed Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another 2006 SCMR 783; Zahir Hussain and 4 others v. Bashir Muhammad and 5 others 2012 CLC 377 and PLD 1993 Kar. 308 ref.

1996 CLC 348; 2013 CLC 980 and Attaullah Malik v. Rashid and another PLD 1972 Kar. 273 distinguished.

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

----S. 9---When the time under limitation had started it would not stop by subsequent disability or inability.

Ms. Darakhshan Jehan for Appellant.

Amir Saleem for Respondent.

2019 M L D 1692

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

Shaikh NOOR MUHAMMAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1259 of 2016, decided on 9th March, 2018.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 489-F, 420, 468& 471---Dishonestly issuing a cheque, cheating, forgery for the purpose of cheating, using as genuine a forged document which is known to be forged---Ad-interim pre-arrest bail, confirmation of---Offence not falling within the prohibitory clause of S. 497(1), Cr.P.C.---Scope---Cheque to the tune of Rs. 45,00,000/- was dishonored , which was issued by the petitioner in connection with business and employment but letters of employment were found to be forged and fabricated---On submission of challan before the concerned Magistrate, Ss. 468 & 471, P.P.C. were also added for the reasons that petitioner was found involved in the case of forgery for the purpose of cheating under S. 468, P.P.C. and using fake and forged documents as genuine, punishable under S. 471, P.P.C.---Magistrate had taken cognizance against the petitioner under said sections---Petitioner had not challenged the order of Magistrate, however, the case of the petitioner did not fall within the prohibitory clause of S. 497(1), Cr.P.C. as offences under Ss. 420 & 471, P.P.C. were bailable and offence under S. 489-F, P.P.C. required evidence to prove the basic ingredients of the section i.e. issuance of cheque dishonestly and intentionally---Offence under S. 489-F, P.P.C. entailed punishment for three years, however, said offence did not fall within the prohibitory clause of S. 497(1), Cr.P.C.---Record also showed that the statement of the complainant had already been recorded by the Trial Court and it was to be proved at trial whether cheque was issued with dishonest intention, therefore, the matter required further inquiry---Ad-interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances.

2013 SCMR 51; PLD 2016 SC 171; 2017 YLR Note 72; 2017 MLD 100 and PLD 2005 Lah. 607 ref.

Deen Dar Ali for Applicant.

Ms. Rubina Qadir, A.P.G. for the State.

2019 M L D 1705

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Fahim Ahmed Siddiqui, JJ

FAROOQUE JAMEEL DURRANI and others---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary Sindh and 9 others---Respondents

Constitutional Petitions Nos. D-562 and D-563 of 2019, decided on 1st April, 2019.

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

----Ss. 82, 81 & 79---Council and Town Committee---Functions of the Council---Executive powers and conduct of business---Meetings of Council---Motion for no-confidence---Scope----Petitioners, who were Chairman and Vice-Chairman of Town Committee/Council formed under the Sindh Local Government Act, 2013; impugned notification under which process for presiding of "motion for no confidence" was set out, which was moved by certain members of the Committee---Contention of petitioners was that such motion was mere political rivalry and contrary to law---Validity---"No confidence motion" was part of democratic process and persons who had been democratically elected for leading a house in any capacity should be prepared to face any move of "no confidence" and try to defeat the same through democratic process instead of taking refuge under technicalities---Process of "no confidence" had been given in the Sindh Local Government Act, 2013 and High Court could not restrain members of Council from taking part in a process which was permissible---Constitutional petition was dismissed, in circumstances.

Kanji Mal Meghwar for Petitioners (in C.P. No. D-562 of 2019).

Nisar Ahmed Durani for Petitioners (in C.P. No. D-563 of 2019).

No notice issued to Respondents.

2019 M L D 1713

[Sindh]

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

RAJAB ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 135 of 2016, decided on 16th October, 2018.

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

----S. 9(c)---Constitution of Pakistan, Art. 10-A---Possessing and trafficking of narcotics---Right of accused to be defended by a counsel---Fair trial---Counsel of accused was absent at the time of examination-in-chief of a prosecution witness---Article 10-A, of the Constitution had provided the right of a fair trial and due process to accused which included his right to be represented by a counsel of his own choice or at least a counsel in order to protect his rights especially when the offence was of a capital nature---Most accused persons were laymen who had little, if any, knowledge of the law and in the absence of defense counsel they were unable to adequately defend themselves---For example, during the examination-in-chief of a prosecution witness the accused would not know which questions he could object to and which documents he could oppose being exhibited---Such inability on accused's part would lead to an unfair trial---Onus was on the Trial Court to ensure that an accused, in a trial of an offence carrying capital sentence, was represented by defence counsel throughout even if it was pauper counsel appointed by the court at State expense in order to protect his rights and ensure that he received a fair trial---Case was remanded to the Trial Court for recording the evidence afresh---Appeal was disposed of, accordingly.

Shafique Ahmed v. The State PLD 2006 Kar. 377 and Abdul Ghaffar v. State 2011 SCMR 23 fol.

Kanwar Altaf Bhatti for Appellant.

Habib Ahmed, Spl. Prosecutor ANF for the State.

2019 M L D 1722

[Sindh]

Before Salahuddin Panhwar, J

JAHAN ARA---Petitioner

Versus

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

Constitutional Petition No. S-2057 of 2017, decided on 2nd May, 2018.

Criminal Procedure Code (V of 1898)---

----S. 491---Guardians and Wards Act (VIII of 1890), S. 7---Habeas corpus petition during pendency of guardianship application---Scope---Petitioner/mother contended that right of hizanat would control jurisdiction under habeas corpus---Validity---Mere pendency of a guardianship application or availability of such jurisdiction would not ipso facto debar jurisdiction of habeas corpus yet it would not control the absolute and exclusive jurisdiction of Guardian Court in such like matter but could only be availed under certain criterion/situation---Record revealed that the petitioner had, almost a year back, filed a suit for maintenance of one minor (who was with her) but had not moved to any lawful forum for custody of present minors (alleged detenues) who were still with respondent (father)---Said fact prima facie showed that at time of entering into legal fight with the respondent, petitioner was neither having a complaint of recent removal of present minors nor had felt any, urgency, though they were with the respondent at such time---Petitioner, after about two months , filed habeas corpus petition but without detailing those exceptional circumstances which could justify invoking of habeas corpus which legally was not a substitute to a proper guardianship application but an exception available in exceptional situation only, which too for temporary arrangement---In absence of exceptional circumstances, resort to habeas corpus jurisdiction could not be exercised, particularly when the petitioner had already filed application before Family Court under S. 7 of Guardians and Wards Act, 1890---Present case, prime facie, did not involve question of recent removal of minor from lawful custody as well no great urgency was shown to be existing which could justify removal of minors from otherwise lawful custody of their father (respondent)---Minors (alleged detenues) were , admittedly, not suckling child (very tender age) but were school going children and there had not been any allegation or apprehension of any harm/legal injury to minors if they stayed with respondent (father) during the course parties would get question of welfare of minors determined by a proper Guardian Court which she (petitioner) had approached---Petitioner had also not alleged that there was apprehension of removal of minors from custody of respondent with an object to defeat the jurisdiction of Guardian Court where such matter was pending rather the present petition was solely based on the count of hizanat---No apprehension had been shown by the petitioner that the father would shift the custody of minors out of the country---Continuous custody of the minors with the father, on the other hand, was not disputed---No harm to the welfare of minors having been shown, justifing the exercise of jurisdiction under habeas corpus particularly when the same would surely affect the minors towards their education as well emotion if they (alleged detenues) would be parted from atmosphere/circumstances which included their friends, school, teachers etc.---Petition for habeas corpus was dismissed , in circumstances.

Mirjam Aberras Lehdeaho v. SHO, PS Chung, Lahore and others 2018 SCMR 427 ref.

Mst. Ghulam Fatima v. The State 1998 SCMR 289; Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852 and Mst. Nadia Parveen v. Mst. Almas Naureen PLD 2012 SC 758 distinguished.

Hussain Bukhsh Saryo for Petitioner.

Wajid Ali Khaskheli for Respondent No.4.

2019 M L D 1732

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar and Irshad Ali Shah, JJ

MUHAMMAD SALEEM---Appellant

Versus

MULLAN alias NOORUDDIN and 3 others---Respondents

Criminal Acquittal Appeal No. D-183 of 2018, decided on 29th January, 2019.

(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---Appeal against acquittal---Prosecution case was that the accused-respondents committed murder of the brother of the complainant by strangulation---Record reflected that incident occurred during the night and identification of accused was shown on torch light, which was a weak piece of evidence and the said torch was not produced before the police---In the present case, tracker dogs were called and later on FIR was lodged, wherein the names of accused-respondents were given by the complainant---Such circumstances showed that it was unseen incident, hence, possibility of false implication of accused-respondents could not be ruled out---Investigating Officer had deposed that on 5.1.2013 the complainant came at police station and stated that his brother had been killed by respondent four others but he did not give their names, however on 8.1.2013, complainant lodged the FIR wherein he did not give the name of one respondent but disclosed the names of other three respondents---Nothing was recovered from the place of incident or from respondents during investigation---Prosecution had examined co-mashir of inspection of dead body, place of incident and arrest of accused, who did not support the prosecution case---Said witness was declared hostile, therefore, his evidence was not helpful to the prosecution---Circumstances established that impugned judgment was based on proper appreciation of evidence which was not fanciful and complainant had failed to point out any misreading or non-reading of the evidence---Appeal against acquittal was dismissed accordingly.

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

----Ss. 302, 147, 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Delay of about three and half days in lodging of FIR---Record showed that the FIR was lodged after the delay of three and half days---No plausible explanation to such delay had been furnished by the complainant---Complainant tried to explain that FIR was lodged after burial of the dead body and charity, which did not appeal to a prudent mind---Delay in lodging the FIR remained unexplained.

(c) Criminal trial---

----Medical evidence---Evidentiary value---Medical evidence was supporting corroborative piece of evidence.

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

----Ss. 302, 147, 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Medical evidence---Scope---Complainant and his son had deposed that the accused strangulated the deceased by a cloth on his neck but the Medical Officer deposed that there was no ligature mark on the neck of the deceased---Medical evidence did not corroborate the ocular evidence, given by the eye-witnesses, in circumstances.

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

----S. 417---Appeal against acquittal---Presumption---If the accused was acquitted by a competent court of law having jurisdiction then double presumption of innocence was attached to its judgment and interference was unwarranted unless the impugned judgment appeared to be vague, perverse and arbitrary or against the record.

Haji Amanullah v. Munir Ahmed and others 2010 SCMR 222 and Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985 rel.

Mohammad Arif Malik for Appellant.

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

2019 M L D 1743

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

MUHAMMAD JABIR alias VIKI---Appellant

Versus

The STATE---Respondents

Criminal Jail Appeal No.D-4 of 2017, decided on 28th September, 2017.

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

----S. 9(c)---Possession of narcotic drugs---Appreciation of evidence---Non-association of private witness---Non-sealing of case property on the spot---Effect---Safe custody and transmission---Scope---Prosecution case was that Police on receiving spy information apprehended the accused with hashish (charas)---Validity---Incident took place at a populous surroundings but no effort was made by the police to arrange private witness---Case property was not sealed on the spot which fortified the assumption that 'Memo of Arrest and Recovery' was not prepared on the spot---Offence took place on 30/07/2016 but the case property was received in the office of Chemical Analyzer on 03/08/2016---Date of letter through which case property was handed over to the bearer was blank in the report of chemical analyzer---No date was mentioned in the letter through which the property was sent to the chemical analyzer---Bearer was not examined to clarify as to in whose custody the case property was from 30/07/2016 to 03/08/2016. WHC (Writing Head Constable) of the police station was not examined to verify that the property remained in the police station---Prosecution failed to establish the case against accused, as such he was acquitted of the charge, in circumstances.

2013 PCr.LJ 635 ref.

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

----S. 9(c)---Possession of narcotic drugs---Safe custody--- Prosecution is duty bound to establish the safe custody of narcotics through credible evidence.

2015 SCMR 1002; 2007 YLR 3087 and 2015 PCr.LJ 1413 ref.

Ms. Ambreen Sial for Appellant.

Shahzado Saleem Nahiyoon, D.P.G. for Respondents.

Date of hearing: 28th September, 2017.

2019 M L D 1749

[Sindh (Sukkur Bench)]

Before Zafar Ahmed Rajput, J

ADAM ALI and another---Applicants

Versus

The STATE---Respondent

Pre-Arrest Bail Application No. S-378 of 2018, decided on 5th April, 2019.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 34, 114, 148 & 149---Qatl-i-amd, common intention, abettor present when offence committed, rioting armed with deadly weapon, unlawful assembly---Ad-interim pre-arrest bail, refusal of---Accusation against petitioner was supported by medical evidence---Complainant (mother of the deceased) alleged specific role against the petitioner of causing fatal gun-shot to deceased on his head---Bail before arrest, in a heinous crime like murder, was an exception and would be allowed only if it was established to the satisfaction of the Court that the implication of the accused in the case was motivated by ulterior motives---Petitioner had been nominated in promptly lodged FIR with specific role of causing fatal gun-shot to deceased on his head and the accusation against him was supported by medical evidence---Prosecution version given in the FIR got support from the fact that other prosecution witnesses had also sustained number of injuries on their persons--- Recovery of crime weapon was yet to be made by the police, hence, grant of pre-arrest bail to said petitioner would cause setback to investigation and would stand as a stumbling block in the way of recovery of incriminating article, therefore, discretion for grant of extraordinary concession of bail before arrest had to be exercised with utmost care and caution and the underlying principle was that neither the prosecution nor the case of defence should be prejudged and prejudiced---Sufficient evidence, prima facie, was available against the petitioner to connect him with the alleged offence, carrying punishment of death or imprisonment for life---Petitioner had failed to point out any special feature entitling him for grant of extra-ordinary concession of pre-arrest bail---Pre-requisites for such concession i.e. malice and ulterior motives, either on the part of complainant or police, were conspicuously missing in the case as the complainant, who was the eyes witness and mother of the deceased, prima-facie, had no ulterior motive to implicate him falsely with commission of alleged offence, hence, it was not a fit case to grant him pre-arrest bail---Bail was refused to the petitioner , in circumstances.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 34, 114, 148 & 149---Qatl-i-amd, common intention, abettor present when offence committed, rioting armed with deadly weapon, unlawful assembly---Ad-interim pre-arrest bail, confirmation of---No direct role had been attributed to the accused---Complainant (mother of the deceased) alleged against the petitioner that he, being present at the scene of occurrence armed with lathi, instigated co-accused persons---Case of the petitioner, for the grant of pre-arrest bail, however, appeared to be on different footings from his co-accused persons , as no direct role had been attributed to him---Allegation against him was that he was present at the scene of occurrence armed with lathi and instigated co-accused persons---Petitioner was father of two co-accused persons , hence, possibility of his mala fide involvement in the commission of crime could not be ruled out---Question whether he had called out the principal accused and exhorted them to commit alleged act needed further inquiry as envisaged under subsection (2) of S. 497, Cr.P.C ---Petitioner was admitted to bail, in circumstance.

Alam Sher Bozdar for Applicants.

Aftab Ahmed Shar, A.P.G. for the State.

Zohaib-ur-Rehman for the Complainant.

2019 M L D 1766

[Sindh (Sukkur Bench)]

Before Zulfiqar Ahmad Khan, J

GHULAM QAMBAR---Applicant

Versus

The STATE and 6 others---Respondents

Criminal Miscellaneous Application No. S-769 of 2018, decided on 28th December, 2018.

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

----Ss. 22-A & 154---Powers of Ex-officio Justice of Peace---Information in cognizable cases---Civil and criminal proceedings---Scope---Petitioner assailed order of Ex-officio Justice of Peace whereby his application for registration of FIR was dismissed---Petitioner had alleged that respondent defaulted in payment of certain amount and assaulted him with the help of other respondents---Validity---Ex-officio Justice of Peace had not taken medical certificate into consideration and had directed the petitioner to seek civil remedy, when there was no restriction to seek criminal as well as civil remedy, if the conduct of any of the parties had paved way for such a cause---Civil dispute resulting into a cognizable offence was not to be totally refuted by the Ex-officio Justice of Peace as an impossibility---High Court set aside the impugned order and directed the SHO to record the statement of petitioner.

Wasal Khan v. Dr. Niaz Ali Khan 2016 SCMR 40; Asif Ali Jatoi v. SHO Police Station Qasimabad 2018 YLR 318; Mst. Haseena v. SHO Police Station Kotdiji 2015 PCrLJ 790 and Muhammad Mushtaq v. Additional Session Judge Lahore 2008 YLR 2301 rel.

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

----Ss. 154 & 157---Information in cognizable cases---Procedure where cognizable offence suspected---Scope---Section 154, Cr.P.C. provides one of the most expeditious modes of putting criminal law into motion in respect of commission of cognizable offences, which requires that substance of every information relating to the commission of a cognizable offence, if given to an officer in-charge of a police station, shall be entered in a book kept by such officer in the form prescribed in this behalf---Law requires that on receiving such information, the said officer to immediately send report to the Magistrate empowered in this behalf and to take necessary steps for discovery and arrest of the offender---Even in cases under proviso (b) to S. 157(1) and subsection (2) of S. 157, if the said officer is of the view that there is no sufficient ground to conduct the investigation, he, after recording reasons to that effect, may decline to investigate, however he cannot refuse to enter substance of such information in the book---Section 154, Cr.P.C., thus, gives mandatory directions to the officer for the registration of a case where a cognizable offence has been reported to him, irrespective of the fact that information downloaded upon him is correct or otherwise---Police officer cannot refuse to record FIR where the information conveyed to him discloses the commission of a cognizable offence.

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

----S. 154---Information in cognizable cases---Scope---When a person makes a statement relating to the commission of an offence, SHO (station house officer of Police Station) is bound to record his version in verbatim, thereafter if from the contents thereof it appears that a cognizable case is made out, further proceedings in accordance with law are to be ensued in the alternate the person has to be informed accordingly so that he may seek remedy from the competent forum.

Munawar Alam Khan and Sikandar Ali Junejo for Applicant.

Saifullah Soomro for Respondents Nos. 4 to 7.

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

Date of hearing: 28th December 2018.

2019 M L D 1781

[Sindh (Sukkur Bench)]

Before Muhammad Shafi Siddiqui, J

FEDERATION OF PAKISTAN through Secretary Ministry of Religious and Minority Affairs, Islamabad and 3 others---Applicants

Versus

DEVRI SAHIB OF BHAI STRAMDASS OF RAHARKI through Care Taker Bhai Niranjan Lal---Respondent

Civil Revision Application No. S-78 and C.M.A. No.428 of 2004, decided on 1st June, 2017.

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

----S. 9---Civil Court, jurisdiction of---Scope.

Civil court is a court of ultimate jurisdiction and is always competent to examine whether the orders brought before it for judicial scrutiny are in accordance with legal framework and do not suffer from mala fides. The paramount rule, is to keep in mind while scrutinizing the ouster clause of any Act wherein the jurisdiction of civil court has been barred, is that if the order passed under an Act is within the competence and jurisdiction of a person who has passed the order, then certainly the debarring clause is available and that order passed by such person or authority cannot be challenged in the civil court, and if the order passed by a person or authority, is without jurisdiction or beyond the authority conferred through an Act upon the person or authority, then the civil court certainly has jurisdiction to scrutinize the decision rendered.

Evacuee Trust Property and others v. Muhammad Ramzan and others 2000 MLD 100; Begum Syeda Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914 and Gul Shah v. Hafiz Ghulam Muhammad and others 2009 SCMR 1058 ref.

Federal Government of Pakistan v. Khursheed Zaman Khan and others 1999 SCMR 1007 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope.

The jurisdiction of court is confined to the extent:

(a) where the trial court exercised its jurisdiction not vested in it by law, (b) failed to exercise a jurisdiction so vested, (c) acted in the exercise of the jurisdiction illegally or with material irregularity.

The exercise of revisional jurisdiction is limited only to the correction of the errors of jurisdiction committed by the courts below or if they are based on mis-reading or non-reading of evidence. Where courts below had applied their mind to the factual and legal aspect of the case and had given cogent reasons in support of the conclusion arrived at by them and no material mis-reading or non-reading of evidence was pointed out, interference in revisional jurisdiction has always been declined.

(c) Pleadings---

----Written statement could not be considered as evidence.

Jamshed Ahmed Faiz, Assistant Attorney General for Applicants.

Manoj Kumar Tejwani for Respondents.

Date of hearing: 29th May, 2017.

2019 M L D 1797

[Sindh]

Before Mahmood A. Khan, J

Messrs AHMED BROTHERS---Plaintiff

Versus

PAKISTAN STATE OIL COMPANY LIMITED through Managing Director and another---Defendants

Suit No. 2336 of 2014, decided on 21st December, 2018.

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

----Ss. 8 & 42---Sindh Rented Premises Ordinance (XVII of 1979), Ss. 2(f), 2(j), 13 & 18---Transfer of Property Act (IV of 1882), Ss. 105 & 109---Suit for declaration, possession, mesne profits and damages---Change of leasehold rights---Relationship of landlord and tenant---Scope---Plaintiff claimed possession, mesne profits/usage charges and damages on the ground that it had acquired leasehold rights of the suit property as such defendant was not entitled to possession of the property because it had acquired tenancy from the previous lessor, whose leasehold right had expired---Defendant contended that since the relationship of landlord and tenant existed between the parties therefore, Rent Controller had exclusive jurisdiction to adjudicate the matter---Validity---Defendant being a person in possession of the premises after termination of tenancy was well covered under the definition of "tenant" as defined in subsection (j) of S. 2 of Sindh Rented Premises Ordinance, 1979, however, tenant had to have a landlord without whom the relationship could not exist---Person who had not acquired a right from the earlier landlord could not be included in the definition of "landlord"---Plaintiff had acquired the same leasehold rights but the same were independent to the person having the same status earlier---Suit of plaintiff was decreed for possession of the subject property and rent, however, claim of damages was declined by the High Court.

(b) Administration of justice---

----Change in circumstances during pendency of suit--- Inquiry---Scope---Court of law is competent to consider the actual circumstances in existence and such change apparent on record does not require any inquiry. [p. 1807] D

Saadat Yar Khan for Plaintiff.

Naseer Hussain for Defendant No. 1.

Neil Keshav for Defendant No. 2.

2019 M L D 1821

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

ASAD alias NAZIR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-93 of 2017, decided on 6th March, 2019.

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

----Ss. 302, 337-H(ii), 265-H(ii) & 34---Qatl-i-amd and common intention---Appreciation of evidence---Benefit of doubt---Supplementary statement after 12 years---Night-time occurrence---Source of light---Dishonest improvement---Scope---Prosecution case was that complainant and prosecution witnesses on the relevant night heard commotion of firearms from the house of deceased---Complainant and witnesses went towards the house where they saw four persons coming out of the house of deceased whose faces were open---Deceased, then injured, on enquiry disclosed that four unidentified persons had got him injured by making fire-shots---Complainant party after consultation with nekmards lodged FIR (first information report) against four unknown accused persons---Complainant and witnesses despite claimed identification could not name the culprits in the FIR which was recorded with due consultation---Wife of deceased, an eye-witness of the occurrence, deposed that she had identified two accused persons and knew one of them---Eye-witness had not disclosed the name of accused to the complainant or anyone else at the time of incident so that their names could be mentioned in the FIR---Eye-witness had not disclosed the source of light in which she had identified the accused persons---Disclosure of names of accused persons came on record after lapse of 12 years of the incident---Eye-witness had not implicated the accused persons in her statement under S. 161, Cr.P.C.; her silence and taking U-turn at the time of recording her evidence before Trial Court created doubt as well it was an improvement which was not permitted by law---Lodgment of FIR with considerable delay and consultation had further tightened the already closed door for introduction of familiar/known persons as culprits---Accused persons, after arrest, were not even subjected to identification parade---Prosecution, in circumstances, had not been able to prove its case against appellants beyond reasonable doubt as doubts had crept in the evidence of the prosecution witnesses---Appeal was allowed and accused were acquitted of the charges.

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

----Art. 71---Eye-witness---Scope.

No person shall be clothed as 'eye-witness' unless he or she, as the case may be, claims to have seen the incident or least his/her claimed evidence falls within meaning of 'oral evidence', as defined by Article 71 of Qanun-e-Shahadat, 1984 regarding the incident. The person, if claims, not to have seen incident but only points out presence of accused near/ around place of incident should be taken to such fact, which, however shall qualify being a circumstantial one.

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

----S. 161---Qanun-e-Shahadat (10 of 1984), Art. 117, 118 & 119---Supplementary statement---Burden of proof---Scope--- Where a witness introduces familiar/known persons as 'culprits' at later stage then the first burden shall be that of explaining reasons which prevented him/her from naming familiar/known persons in unchallenged FIR against 'unknown persons'.

(d) Criminal trial---

----Witness---Dishonest improvement---Scope---When one makes improvements or omissions in his deposition, he agrees to own dishonesty, which alone is sufficient to discard evidence of such dishonest person.

Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 rel.

(e) Criminal trial---

----Evidence---Touchstone for an evidence to be natural and confidence inspiring is nothing but that narration must not only be acceptable to a prudent mind but must stand well to normal reactions of an ordinary person.

Haq Nawaz and others v. State 2018 SCMR 95 rel.

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

----S. 161---Supplementary statement---Scope---Any statement or further statement of the first informant recorded during investigation by police would neither be equated with FIR nor read as part of it and it is fake statement.

Muhammad Rafique and others v. The State and others 2010 SCMR 385 rel.

(g) Criminal trial---

----Benefit of doubt---Scope---Accused is entitled to be extended benefit of doubt as a matter of right---Accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story.

Asia Bibi v. State PLD 2018 SC 64 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Ghulam Shabbir Shar and Athar Abbas Solangi for Appellants.

Aftab Ahmed Channa for the Complainant.

Aitbar Ali Bullo, D.P.G. for the State.

2019 M L D 1840

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

GHULAM HYDER and others---Applicants

Versus

CHUTTAL KHAN and others---Respondents

Criminal Revision Applications Nos. S-21 and S-22 of 2016, decided on 22nd December, 2018.

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

----Ss. 7 & 2(c)---Eviction and mode of recovery of possession as interim relief---"Occupier"---Scope---Applicants sought restoration of possession as interim relief in their respective complaints under Illegal Dispossession Act, 2005---Trial court had dismissed the respective applications for restoration of possession---Validity--- Prima facie, the possession of the applicants' over the subject property could not be established as no evidence or any document had been produced by the applicants' to establish that they were occupiers of the subject property within the meaning of S. 2(c) of Illegal Dispossession Act, 2005---Applications were dismissed.

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

----S. 3---Prevention of illegal possession of property---Scope---Owner and/or occupier of the property can approach the court of competent jurisdiction for seeking relief under the provisions of Illegal Dispossession Act, 2005.

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

----Ss. 3 & 7---Prevention of illegal possession of property---Eviction and mode of recovery of possession as interim relief---Scope---Complainant, in order to avail the benefit of S. 3 of Illegal Dispossession Act, 2005 has to prima facie establish before the court that he is lawful owner or was occupier of the subject property; that accused had entered into or upon the said property without having any lawful authority; that the accused had done so with the intention to dispossess or to grab or to control or to occupy the said property---Order as an interim relief regarding restoration of the possession of the subject property to the complainant under the provisions of section 7 of Illegal Dispossession Act, 2005 can only be passed when prima facie it is established to the satisfaction of the court that the complainant is a lawful owner of the subject property; that he was illegally and forcibly dispossessed by the accused and that the accused is in an unlawful possession of the subject property.

Ishrat Ali Lohar for Applicants.

Ms. Sana Memon, A.P.G. for the State.

Abdul Latif Bhatti for Private Respondents.

2019 M L D 1849

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

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

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of National Health and Services, Regulation and Coordination, Islamabad and 3 others---Respondents

Constitutional Petitions Nos. D-398 to D-401, D-917, D-939, D-695, D-940, D-1185, D-1354 and D-1355 of 2019, decided on 16th April, 2019.

(a) Drugs Act (XXXI of 1976)---

----Preamble---Drug Regulatory Authority of Pakistan Act (XXI of 2012), Preamble---Interim relief pending decision of appeal---Scope---High Court observed that notwithstanding the contention that the Drugs Act, 1976, the Drug Regulatory Authority of Pakistan Act, 2012 and the Rules and Regulations framed thereunder contained no provision for interim relief, it could not be presumed that the said law contained any bar in respect of interim relief---Forum empowered to grant final relief is also empowered to grant final interim relief.

Sindh Employees Social Security Institution and another v. Adamjee Cotton Mills Limited PLD 1975 SC 32; Imran Raza Zaidi v. Government of Punjab and others 1996 SCMR 645 and Pak Saudi Fertilizers Limited v. Federation of Pakistan and others 2002 PTD 679 rel.

(b) Administration of justice---

----Interim relief---Statutory forum empowered to grant final relief was also empowered to grant interim relief and if a statute did not contain provision for interim relief, the same did not mean that an Authority, while exercising appellate jurisdiction, was powerless to grant such relief---Power to grant interim relief was a necessary concomitant out of the power to grant final relief.

Sindh Employees Social Security Institution and another v. Adamjee Cotton Mills Limited PLD 1975 SC 32; Imran Raza Zaidi v. Government of Punjab and others 1996 SCMR 645 and Pak Saudi Fertilizers Limited v. Federation of Pakistan and others 2002 PTD 679 rel.

Raashid Anwar, Abdul Sattar Pirzada, Bar-at-Law and Ms. Umaima Anwer Mansoor Khan for Petitioners.

Ishrat Zahid Alvi, Assistant Attorney General, Amanullah, Deputy Director - Pricing Drugs Regulatory Authority Pakistan for Respondents.

2019 M L D 1882

[Sindh]

Before Salahuddin Panhwar, J

Lt.-Col. (Retd.) MUHAMMAD WALI KHAN DURRANI---Plaintiff

Versus

UNIVERSITY OF KARACHI and others---Defendants

Suit No. 1211 of 1996, decided on 18th May, 2016.

(a) Torts---

----Defamation---Libel---Suit for damages---Issuance of public notice---Wrong impression about plaintiff---Quantum of compensation---Scope---Plaintiff filed suit for damages and claimed that the defendants published and got published defamatory allegations (public notice) against him without verification of the facts---Validity---Public notice got issued by defendant prima facie had a reason of its publication i.e.the claim of land---Public notice was issued to put public onto notice about claims of the defendant and its intended action was to protect every inch of its property, hence to such extent public notice was within its object and purpose---Deliberate use of the name of plaintiff in public notice seemed to allow general public to have wrong impression about the plaintiff that he had illegally allotted its lands---Mere claim of bona fide or to have acted in the interest of defendant did not absolve the defendants from establishing bona fide---Public notice to the extent of mentioning the name of plaintiff was not in public interest rather was causeless resulting in damage to the reputation of plaintiff---Plaintiff, on establishing defamation, had only become entitled to compensation but quantum thereof was an entirely different thing which had got its own peculiar requirements/ingredients and mere claim of certain amount as a damages did not earn plaintiff a right to insist decree to such extent---Plaintiff had never attempted to differentiate damages with regard to mental torture, agony, defamation and financial loss but had claimed damages to the tune of Rs. 50 million---High Court, in absence of proof of mental shock and bifurcation of claimed damages, found it proper and justified to award an amount of Rs. 80,00,000/-(eighty lac) to the plaintiff---Suit was partially decreed.

Malik Gul Muhammad Awan v. Federation of Pakistan 2013 SCMR 507 rel.

(b) Torts---

----Defamation---Libel---Suit for damages---Issuance of public notice---Liability of initiator of news---Liability of publisher--- Scope---Plaintiff filed suit for damages and claimed that the defendants published and got published defamatory allegations against him without verification of the facts---Validity---Publisher had published an unchanged piece of the press release, therefore, he could not be held responsible for any loss (defamation), particularly when no mala fide had been pleaded on the part of publisher---Press release was issued by an institution which had nothing to do with the defendant---Said institution was not made party nor the plaintiff at later stage had sought joining of it in the suit---Plaintiff had not impleaded the initiator of the news, hence, the claim of plaintiff against the publisher was not legally justified---Suit was dismissed against the said defendant.

(c) Torts---

----Defamation---"Public notice" and "news"---Distinguished---"Public notice" is different from a "news" or a "story", flashed in the newspaper---Public notice is an information got flashed in a newspaper to put people onto notice about the matter with which they may likely to be affected or may have interest.

(d) Torts---

----Defamation---Public notice---Maintenance of decency---Scope---Liability of publisher---Scope---Public notice is got flashed in a newspaper yet it is always based on request of some specific person hence, normally no responsibility is attached to the publisher except that he shall always keep the line of decency in view even while flashing the public notice because the phrase "freedom of press" is not synonym to unfettered powers to publish whatever one (publisher) wishes.

Liberty Papers Ltd. and others v. Human Rights Commission of Pakistan PLD 2015 SC 42 and Muhammad Rashid v. Majid Nizam PLD 2002 SC 514 rel.

(e) Constitution of Pakistan---

----Art. 14---Inviolability of dignity of man---Scope---Dignity of man is guaranteed by the Constitution hence everybody, regardless of his status and position, has to show due respect to the dignity of a man while using words either in speaking or in writing.

Liberty Papers Ltd. and others v. Human Rights Commission of Pakistan PLD 2015 SC 42 rel.

(f) Torts---

----Defamation---Public notice---Maintenance of decency--- Scope---Claim of a person, acting bona fide, in matters of public notice does not give him a license to couch such 'public notice' in a manner and fashion which may or is likely to result in crossing the limits, violation of ethical values, decency and other laws of the land.

(g) Torts---

----Defamation---Presumption---Scope---Public notice---Where it is established that a public notice contained an allegation, direct or indirect, which caused prejudice or harm to the plaintiff, then it shall be presumed that the maker of such public notice has defamed the plaintiff, particularly when plaintiff claims to have been defamed in result of such public notice.

(h) Torts---

----Defamation---Public notice---Maintenance of decency--- Liability of publisher---Liability of initiator of news---Scope--- Even an admission of the publisher that the news has caused defamation shall not entitle the plaintiff for a relief against him, unless it is established that he had any malice on his part or that he had added or substituted any 'indecent' word in press release, provided by a person (initiator of the news).

(i) Words and phrases---

----Public notice---Meaning.

Black's Law Dictionary ref.

Khawaja Naveed Ahmed for Defendant No.4.

Younus Ahmed Khan for Defendant No.5.

2019 M L D 1908

[Sindh (Sukkur Bench)]

Before Irshad Ali Shah, J

Mst. GULSHAD---Applicant

Versus

MANSOOR QAIM and another---Respondents

Criminal Revision Application No.S-71 and M.A. No.4651 of 2018, decided on 29th March, 2019.

Criminal Procedure Code (V of 1898)---

----S. 528---General Clauses Act (X of 1897), S. 24-A---Transfer of case---Sessions Judge may withdraw cases from Assistant Sessions Judge---Non-speaking order---Reasons for decision---Scope---Petitioner assailed order of Sessions Judge whereby he had transferred the case to another District---Validity---No reason was assigned by Sessions Judge for ordering transfer of the case from one to another District, which was against the spirit of S. 24-A, General Clauses Act, 1897---High Court set aside the order with the direction to the Sessions Judge to pass the order afresh, in detail, explaining the reasons for transferring the case from one to another court, after providing chance of hearing to all the concerned---Revision application was disposed of accordingly. [p. 1909] A & B

Achar Khan Gabole for Applicant.

Manzoor Hussain Lashari for Respondent No.1

Shafi Muhammad Mahar, Deputy Prosecutor General for the State.

2019 M L D 1914

[Sindh]

Before Muhammad Faisal Kamal Alam, J

S. M. INAM-UL-HAQ---Plaintiff

Versus

Mirza AMJAD BAIG and another---Defendants

Suit No. 315 of 2000, decided on 28th January, 2019.

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

----S. 62--- Novation of contract---Parties to earlier agreement, rights of---Plaintiff sought recovery of balance amount from defendants on basis of agreement executed between parties in an earlier litigation---Validity---Earlier agreement/arrangement stood novated in terms of S. 62 of Contract Act, 1872---Subsequent agreement did not contain any such clause or covenant that earlier agreement/arrangement between parties would continue and was not effected by terms of subsequent agreement---On the contrary, subsequent agreement expressly stated that even plaintiff and defendant had released each other from any claim, obligation and undertaking---High Court declined to give any finding on relevant issues as defendants had already paid share of plaintiff to him---Suit was dismissed in circumstances.

Muhammad Bashir and others v. Iftikhar Ali and others PLD 2004 SC 465; Hafiz Tassaduq Hussain v. Lal Khatoon and others PLD 2011 SC 296; Captain Syed Warasat Hussain v. Muhammad Ahad Saad PLD 2013 Sindh 513; Abdul Latif Khan and another v. Gul Rehman and others 1993 MLD 643; Ghulam Rasool v. Muhammad Saleem and others 2002 CLC 1770; Haji Baz Muhammad Khan and another v. Noor Ali and another 2018 SCMR 1586; Messrs Ittefaq Foundries (Pvt.) Ltd. and 4 others v. Federation of Pakistan, through Secretary, Ministry of Law, Federal Secretariat, Islamabad and 2 others 2015 PCr.LJ 1240 and Agha Wazi r Abbas v. The State 2003 PCr.LJ 1353 ref.

(b) Words and phrases---

----Waiver---Defined.

Black's Law Dictionary, 9th Edition rel.

Syed Muhammd Abbas Haider for Plaintiff.

Nemo for Defendants.

2019 M L D 1936

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

Mst. NAUREEN---Petitioner

Versus

NADIR ALI RAJPUR and 2 others---Respondents

Constitutional Petition No. S-1062 of 2012, decided on 28th June, 2018.

Family Courts Act (XXXV of 1964)---

----S.5 & Sched.---Suit for dissolution of marriage by way of Khulla, recovery of maintenance allowance for minor and wife and dowry articles---Financial status of father---Scope---Non-production of receipts of dowry articles---Effect---Wife refused to reconcile---Effect---Petitioner/plaintiff did not produce any receipt of her alleged dowry articles---Courts below rightly held that petitioner had not proved her claim of any gold ornaments given by her parents as mentioned in the list which was, admittedly, prepared later-on after the birth of minor and before filing the suit---Trial Court , however , did not consider the status and income of the respondent while fixing monthly maintenance allowance of the petitioner and minor, as he did not belong to low income group family---Minor daughter was studying in a reputed school and fee of the school was more than 9000/- per quarter, therefore, respondent was to pay sufficient amount for her school fee, books, uniform, school activities, food, clothes and health---High Court increased the amount from Rs.12000/- per month to Rs.20000/- per month from date of institution of suit with 10% increase per annum till dissolution of marriage---Maintenance was neither a gift nor a benefit but an undeniable legal obligation on the shoulders of the husband/ father---Petitioner had not produced any witness to corroborate her version that respondent had turned her out in midnight in three clothes---Wife, during reconciliation proceedings, had refused to join the respondent even for the sake of welfare of her daughter and preferred to live separate from her husband and kept the daughter away from her father---Petitioner had not made any claim that during her stay with respondent she was not being maintained by him---Trial Court and Appellate Court had not misread the evidence of the parties---High Court set aside the judgment of both the Courts below for fixation of monthly maintenance of the petitioner from date of institution of suit to the date of pronouncement of Khulla, however, she was held entitled for main-tenance for iddat period at the rate of Rs.20000/- per month---Consti-tutional petition was disposed off accordingly.

2004 CLC 1200 and 2003 YLR 1006 ref.

Aziz-ur-Rehman Akhund for Petitioner.

Muhammad Arshad Khan Tanoli for Respondent No.1.

2019 M L D 1947

[Sindh]

Before Abdul Maalik Gaddi, J

IQBAL HUSSAIN---Appellant

Versus

MUSHTAQ AHMED and 2 others---Respondents

Criminal Acquittal Appeal No.136 of 2018, decided on 26th March, 2019.

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

----Ss. 392, 427, 377-A(i) & 34---Robbery---Mischief causing damage to property---Shajjah-e-Khafifah---Common intention---Delay in lodging FIR---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Complainant's case against accused was that he abused complainant's son, beat him, issued threats of killing him and thereafter sent three persons to his house, who gave beating to him, snatched his wallet and damaged the wind-screen of his vehicle---Prosecution failed to prove its case against accused for the reason that eye-witness deposed in the court that he had seen three persons who were beating complainant's son, but during examination-in-chief he could not identify the accused person even though he was present before the court---Second eye-witness deposed that he was passing by the place of occurrence when incident took place and he had seen the incident but he could not identify the accused before the court---First Information Report was lodged with a delay of 9 days for which no satisfactory explanation was furnished---False implication of accused in the case with due deliberation and consultation could not be ruled out---Appeal against acquittal was dismissed.

(b) Appeal against acquittal---

----Double presumption of innocence---Accused, after acquittal, acquires double presumption of innocence and the High Court interferes in the matter only if the judgment/order is arbitrary, capricious or against the record.

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

----Ss. 410 & 417---Appeal against conviction and appeal against acquittal---Distinction---Distinction has to be made, while evaluating evidence between appeal against conviction and appeal against acquittal---Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice.

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

Appellant in person.

Ms. Humaira Aftab for Respondent No.1.

Khadim Hussain Kooharo, APG for the State.

2019 M L D 1955

[Sindh]

Before Salahuddin Panhwar, J

HAZARA EFFICIENT GAS through Partner---Plaintiff

Versus

OIL AND GAS REGULATORY AUTHORITY (OGRA) through Chairman, Islamabad and another---Respondents

Suit No. 1043 and C.M.As. Nos.7856, 7156 of 2016, decided on 30th May, 2016.

(a) Licence and licensee---

----Revocation of licence---Scope---Plaintiff assailed direction of Regulatory Authority whereby it had directed the plaintiff to pay certain amount of sum as compensation to the families of deceased and injured persons involved in a road accident---Regulatory Authority had during pendency of suit cancelled the license of plaintiff for non-compliance of said direction---Validity---Everyone had a right to enjoy freedom of doing lawful business and trade but at the same time he was obliged to follow the law, regulating/governing such right---Negligence or violation of obligation/duty exposed him to legal action, but compliance with regulations could not be achieved unless authorities were always on their toes to ensure a sense of fear prevailed in public that no single negligence/violation would go unchecked---Plaintiff had consented to proposal of restoration of its license by Regulatory Authority on payment of compensation amount---Purpose of the suit stood served and the same was dismissed as such.

(b) Constitution of Pakistan---

----Art.199---Mandamus---Direction to authorities---Scope---Court can direct the authorities to do what the mandate of law demands to do, being ultimate guardians of rights of individuals, when it comes to the lives and safety of the general public.

(c) Words and phrases---

----"Compensation" and "help"---Distinguished.

The terms 'compensation' and 'help' are not synonym to each other. Former is a legal obligation / duty failure whereof shall bring its consequences while the latter, being a pure act of kindness, if done should be respected and regarded but failure thereof shall bring no earthly consequences. In short, the help, if any, done by plaintiff to grieved family(ies) shall not be an excuse towards compliance of an ordered 'compensation'

Khawaja Shamsul Islam for Plaintiff.

Asim Iqbal and Farmanullah Khan for defendant No.1.

Salman Talibuddin, Additional Attorney General.

2019 M L D 1994

[Sindh]

Before Nazar Akbar, J

GHULAM MUJTABA---Appellant

Versus

Syed HUSSAM and 2 others---Respondents

Criminal Acquittal Appeal No.237 of 2018, decided on 30th May, 2019.

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

----S. 182---False information with intent to cause public servant to use his lawful power to the injury of another person---Appeal against acquittal---"Aggrieved person"---Scope---Station House Officer (SHO) requested the trial court for prosecution of respondent under S. 182, P.P.C. on the ground that he had furnished false information for lodgment of first information report (FIR) under Ss. 506 and 34, P.P.C. read with S. 25 of Telegraph Act, 1885---Trial court acquitted the respondent of the charge---Validity---Appellant, nominated accused in earlier FIR, could not be aggrieved by the decision of the Magistrate on the complaint under S. 182, P.P.C. filed by public servant---Section 182, P.P.C. did not refer to any private person and it related "to cause public servant to use his power" and in case such information was found false then such public servant could initiate proceedings---Appellant was not a public servant nor the alleged false information was given to him---Right of appeal on the orders passed by Magistrate did not lie with the nominated accused for the reason that an appeal was continuity of original proceedings and admittedly the proceedings were not initiated by the appellant---Appeal against acquittal was dismissed.

Khuwaja Muhammad Waseem v. Syed Jalees Anjum and others 2018 PCr.LJ 1230 rel.

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

---S. 182---False information with intent to cause public servant to use his lawful power to the injury of another person---Scope--- Proceedings under S. 182, P.P.C. are not a remedy of any humiliation or insult suffered by the accused nominated in the false information given by the complainant to the Incharge Police Station.

Abdul Samad Khattak and Ghulam Rasool for Appellant.

Samsam Ali Raza and Ms.Touqeer Fatima for Respondent No.1.

Respondent No. 2 in person.

Ms. Rahat Ehsan, Addl.P.G. for Respondent No.3.

2019 M L D 2016

[Sindh]

Before Muhammad Faisal Kamal Alam, J

MAZHAR SAYEED---Plaintiff

Versus

ATIF MAZHAR and 2 others---Defendants

Civil Suit No. 1682 of 2009, decided on 23rd January, 2019.

Gift---

----Oral gift---Proof---Non-transfer of possession---Effect---Plaintiffwas father of defendants who sought cancellation of gift deed issued in favour of defendants---Plea raised by plaintiff was that possession was not transferred and that he still maintained control over the suit property through general power of attorney verified by defendants and a "No Objection Certificate"---Validity---Defendant failed to discharge onus of a valid gift in his favour---Defendant also did not cross-examine two attesting witnesses of gift deed in question to corroborate version of defendant---Non-examination of attesting witnesses by defendant further weakened case of defendant---Plaintiff was in effective control of suit property, dealing with tenant and receiving rentals and managing other affairs in respect of suit property---Original documents in respect of suit property including instrument of gift were all in possession of plaintiff---High Court cancelled gift deed because plaintiff never divested himself of ownership rights and interests in respect of suit property---Suit was decreed in circumstances.

Ashiq Hussain and another v. Ashiq Ali 1972 SCMR 50; Muhammad Sharif Khan v. Muhammad Aziz Khan and another 2008 CLC 131; Chief Engineer, Irrigation Department, N.-W.F.P. Peshawar and 2 others PLD 2004 SC 682; Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Sakhi Zaman v. Mst. Shazia and 3 others PLD 2004 Pesh. 104; Rab Nawaz and others v. Ghulam Rasul 2014 SCMR 1181; Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others 2010 SCMR 1370 and Abdul Sattar and others v. Muhammad Ashraf and others 2008 SCMR 1318 ref.

Maqbool Ahmed for Plaintiff.

Shahzad Afzal for Defendant No.1.

Nemo for Defendants Nos. 2 and 3.

2019 M L D 2042

[Sindh]

Before Mohammed Karim Khan Agha and Omar Sial, JJ

ROSHAN ALI LAKHANI---Petitioner

Versus

SAEED ULLAH SHAH and 51 others---Respondents

Constitutional Petition No. D-5841 of 2018, Misc. No.395 of 2019 and Misc. Nos.39356, 39357 and 36802 of 2018, decided on 11th February, 2019.

Contempt of Court Ordinance (V of 2003)---

----Ss.3 & 4---Constitution of Pakistan, Art. 204---Contempt of Court---Non-implementation of directions of the Supreme Court regarding social welfare and development projects---Judicial restraint, exercise of---Contempt proceedings against Provincial Chief Secretary---Prima facie, the Provincial Chief Secretary had now taken meaningful steps to implement the directions contained in the judgment of the Supreme Court in both letter and spirit--- In such circumstances by exercising judicial restraint for the time being, the High Court chose to pend the issue of contempt proceeding against the present Provincial Chief Secretary and other Chief Secretaries who were in office after the year 2012 subject to the performance of the Chief Secretary in implementing the directions of the Supreme Court in the near future in both letter and spirit---Adopting such approach of judicial restraint, and giving last chance to the Chief Secretary, was the most productive way of achieving one of the primary objectives of the directions of the Supreme Court in the shortest and most efficient way, namely the building of welfare works for the benefit of the local community--- Such judicial restraint however should not be considered as weakness on the part of the High Court but rather as magnanimity on its part---High Court directed that if the current Chief Secretary failed to avail the last chance given to him the Court would not hesitate to revive the contempt proceedings against both him and all other Chief Secretaries from 2012 to date---Implementations proceedings were listed for next date of hearing along with certain directions that had to be followed before the next date.

Petitioner in person.

Shahab Sarki for Respondent No.27 (PPL)

Khaleeq Ahmed, along with Arshad Iqbal, Legal Advisor, Mari Petroleum.

Abid Naseem for Respondent (OGDCL) Mr. Salman Talibuddin, Advocate General Sindh.

Ghulam Mustafa Mahesar, Addl. Advocate General.

Mohammad Ahmed, Assistant Attorney General along with Kashif Ali, Director (Technical), Qazi Saleem Siddiqui, DGPC and Hafiz Naeem, Legal Advisor Legal Advisor DGPC.

Syed Mumtaz Ali Shah, Chief Secretary Sindh.

Fateh Muhammad Qureshi, Director General Audit. Musaddiq Ahmed Khan, Secretary Energy.

Raheem Bux Metlo, DC Shikarpur, Jamil Adil, UEP, Islamabad, Rehan Iqbal Baloch, A.S. (Admn.) Energy and Syed Amir Mujtaba Section Officer (Oil and Gas Energy).

2019 M L D 2088

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh and Khadim Hussain Tunio, JJ

MOHAMMAD SALLAH through Attorney and 5 others---Petitioners

Versus

The FEDERATION OF PAKISTAN through Chairman WAPDA and 4 others---Respondents

C. P. No. D-1205 of 2014 and C.M.A. No.2551 of 2017, decided on 6th March, 2019.

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

----S. 114 & O. XLVII, R. 1---Limitation Act (IX of 1908), Art. 162---Constitution of Pakistan, Art. 199---Review---Scope---Constitutional petition having been disposed of on the statement of counsel that petitioners had alternate remedy---Restoration of petition---Limitation---Constitutional petition was disposed of on the statement of counsel that petitioners had alternate remedy---Petitioners had filed present petition for review of order whereby constitutional petition was disposed of on the statement of their counsel---Validity---Petition for review of order of High Court could be filed within twenty days---Present application had been filed after delay of one day which had not been explained---Application in question was time barred, in circumstances---Choice for not pressing the constitutional petition for availing remedy before competent forum was with the counsel of the petitioners---High Court was not to hold an inquiry to determine whether there did exist any legal remedy or not to the petitioners---High Court was bound only to examine competence of the person making such request for disposal of the case on his statement---Such like disposal did not create jurisdiction nor attached any legality to what the counsel or party had said---Nothing was on record that counsel for the petitioners was not authorized to withdraw the constitutional petition---Neither any mistake nor error was apparent on the face of record to review the impugned order passed by the High Court---Review petition was dismissed, in circumstances.

Mrs. Sajeeda Nushat v. Shaikh Muhammad Hussain Qureshi and others PLD 2013 Sindh 320; Land Acquisition Officer v. Gul Muhammad PLD 2005 SC 311; PLD 2005 SC 512; Ikramul Haq v. Province of Sindh and others 2012 CLC 655; Mir Ghulam Abid v. Land Acquisition Officer/Collector 2004 YLR 77; Muhammad Hussain v. Chairman, N.H.A. and others 2009 MLD 1381; Adil Khan v. Secretary to Government of Pakistan 2017 MLD 937; Karachi Water and Sewerage Board v. Province of Sindh 2005 MLD 725; Government of N.W.F.P. v. Akbar Shah 2010 SCMR 1408; Mir Afzal v. Land Acquisition Collector/Assistant Commissioner 2005 MLD 168; Qamar Peroz Khan v. WAPDA 2011 CLC 886; Subah Sadiq v. Secretary 2011 YLR 2500; Province of Sindh v. Jan Muhammad 2015 MLD 1525; Mst. Sarwar Jan v. Mukhtar Ahmed and others PLD 2012 SC 217 and Inayat Rasool v. Managing Director 2017 CLC 452 ref.

2010 YLR 904 rel.

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

----O. XXIII, R. 1---Absolute right of party to withdraw lis---Procedure---Absolute and exclusive right of the party, bringing the lis, to continue with such lis or to abandon it at any time---Court, unless the matter is one of pro bono publico, can't compel such party to continue with such lis nor can legally be the 'judge' of wishes (acts or omission) of such party to such extent because a 'judge', in all cases, is believed to have no personal interest in consequences of litigation---Party, at any stage of proceedings, if wishes to unconditionally withdraw / not press the lis such right can't be denied---Court shall not be required to ask for a 'reason' for such withdrawal, however, the Court must examine the competence of the person, seeking withdrawal.

OXFORD University Press v. Messrs Ferozesons and others 2008 YLR 2116 rel.

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

----S. 114 & O. XLVII, R. 1---Review---Maintainability.

In-review the entire matter cannot be reopened, its scope is limited and confined to the aspects of the case that are shown to have not been considered in the judgment. A review application can be filed only on discovery of new and important matter or evidence, which was not within the knowledge of aggrieved person or the same he could not produce at the time when the order or decree was passed against him, or he is able to show that there is some mistake or error apparent on the face of record. The limitation for application seeking a review of the order, passed by Court, is 20 days as provided under Article 162 of Limitation Act, 1908.

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

----Art. 162---Review of judgment of High Court---Limitation---Petition for review of order of High Court could be filed within twenty days.

Soomar Das R. Parmani for Petitioners along with Kanayalal.

Bashir Ahmed Dargahi for Respondents Nos. 3 to 5 along with Abdul Rehman Shaikh, Executive Engineer, RBOD-I Project WAPDA, Larkana on behalf of Respondent No.3.

2019 M L D 1

[Lahore]

Before Amin-ud-Din Khan, J

Malik RAB NAWAZ through Legal Heirs---Petitioner

Versus

Mst. SABAN and another---Respondents

Writ Petition No.15389 of 2011, heard on 24th September, 2018.

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

----S.12(2) & O. VII, R.11---Remand order---Decree, setting aside of---Scope---Trial Court rejected application for setting aside of decree but Appellate Court set aside the said order on the ground that O.VII, R.11, C.P.C. was not applicable to application under S.12(2), C.P.C.---Validity---Parties to the application under S.12(2), C.P.C. had not been impleaded in the constitutional petition; necessary parties had been left without any justifiable reasons---Constitutional petition was not competent in circumstances---Order VII, R. 11, C.P.C. was not applicable for rejection of an application filed under S.12(2), C.P.C.---Constitutional petition was dismissed in circumstances.

Akbar Ali and 18 others v. Mukhtar Ahmad and 14 others 2007 CLC 768; Mst. Salim-un-Nisa and 5 others v. Aziz and another 2009 CLC 860; Muhammad Ilyas Khan v. Muhammad and others 1986 SCMR 251 and Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Maintainability---Remand order---Constitutional petition would lie against final adjudication of case---Remand order being not final adjudication, Constitutional petition against remand order was not maintainable.

Malik Saleem Iqbal Awan for Petitioner.

Arshad Malik Awan and Muhammad Abbas Hayat Awan for Respondents.

2019 M L D 39

[Lahore (Bahawalpur Bench)]

Before Shujaat Ali Khan and Jawad Hassan, JJ

ABDUL MALIK and others---Appellants

Versus

PROVINCE OF THE PUNJAB and others---Respondents

I.C.A. No.75 of 2017/BWP, decided on 3rd September, 2018.

Land Acquisition Act (I of 1894)---

----S.18---Limitation Act (IX of 1908), S. 5---Reference to court---Limitation---Condonation of delay---Scope---Appellants filed intra-court appeal against order passed by Single Judge of High Court, whereby order of Land Acquisition Collector was upheld by which reference filed by appellants under S.18 of Land Acquisition Act, 1894 was not referred to the Referee Court---Contentions of appellants were that Single Judge of High Court did not consider that appellants along with the Reference, had also filed an application under S.5 of Limitation Act, 1908 for condonation of delay in filing the Reference and that without deciding the application for condonation of delay, no order could be passed on their Reference---Validity---Appellants had submitted Reference beyond the prescribed period of limitation---When Collector came to the conclusion that the Reference filed by any party was barred by law, he could straight-away refuse to forward the same to Referee Court and could not condone the delay of his own or on the application of the aggrieved party---Intra-court appeal was dismissed, in circumstances.

Port Qasim Authority through Secretary v. Executive District Officer (Revenue) Karachi and others 2017 YLR Note 14 fol.

Muhammad Farooq Warind for Appellants.

2019 M L D 79

[Lahore]

Before Ali Baqar Najafi, J

FAMIR ASGHAR---Petitioner

Versus

ASGHAR ALI and 2 others---Respondents

Writ Petition No.211556 of 2018, decided on 6th September, 2018.

Punjab Local Government (Conduct of Elections) Rules, 2013---

----R. 65---Civil Procedure Code (V of 1908), O. XVI, Rr. 1 & 2---Election of Chairman of union council---Election petition---Witness, production of---Good cause---Scope---Petitioner's application seeking permission to submit the list of witnesses was dismissed by Election Tribunal on the ground that it was not submitted within the stipulated time---Plea of petitioner was that he had filed such application which somehow went missing---Validity---Election Tribunal could require the parties to file, within 15 days of the date on which the case was fixed for evidence, a list of witnesses whom they wanted to produce in evidence or to produce documents by such witnesses alongwith a precise evidence which they were expected to give through affidavit---Election Tribunal could call such witnesses for the purpose of examination---Under O. XVI, Rr. 1 & 2, C.P.C., within seven days of framing of issues, the list of witnesses were to be produced and that if such list was not presented, the evidence could be produced with permission of the court after showing good cause to produce the said witness from the list---Missing application could have been located through a probe by the Election Tribunal on the basis of relevant statements of Tribunal's functionaries but the same was not done---Order passed by Election Tribunal was not sustainable, being violative of R. 65 of Punjab Local Governments (Conduct of Elections) Rules, 2013 and O.XVI, R.1, C.P.C.---Application to produce the witnesses filed by the petitioner before the Election Tribunal was allowed with direction to the Tribunal to decide the matter within three months---Constitutional petition was allowed, accordingly.

Umar Hayat v. Additional District Judge and others 2004 SCMR 1367 rel.

Ch. Ameer Hussain for Petitioner.

2019 M L D 112

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Mst. IRAM SHAHZADI---Petitioner

Versus

MUHAMMAD IMRAN-UL-HAQ and others---Respondents

W.P. No.335 of 2016, decided on 4th September, 2018.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), S. 2(a)---Suit for recovery of maintenance allowance, dowry articles, dower and gold ornaments---Dissolution of marriage on the basis of Khula---Entries against Serial/Column Nos.13 to 16 of the Nikahnama---Effect---Jurisdiction of the Family Court---Scope---Family Court declared the petitioner/plaintiff owner of 22-Tolas gold ornaments as per entry in Column 16 of the Nikahnama, however, Appellate Court set aside the decree to the extent of said gold ornaments---Petitioner/ex-wife contended that bridal gifts were in addition to and not in lieu of Haq Mehr (dower) thus, the same, being not part of the dower, were not liable to be returned to the respondent on the ground of Khulla---Respondent contended that Appellate Court had rightly reversed decree with regard to the said gold ornaments as Family Court had no jurisdiction to entertain claims regarding entries in Nikahnama---Validity---Held, matter in question called for the perusal of entries made at serial Nos. 13, 14, 15 and 16 of the exhibited Nikahnama which showed that Haqmahr of Rs. 5000/- fixed in the entry against serial No. 13, payment of which was deferred since the entry against serial No. 14 had been left empty---Entry against serial No. 15 showed that no part of Haqmahr was paid at the time of marriage---Entry of gold ornaments, weighing 22-Tolas, having been given to the bride by family of respondent was shown at serial No. 16 of the Nikahnama which became ownership of the petitioner---Mentioning of Rs. 5000/- as dower in column No. 13 left no doubt that gold ornaments were in addition to the Haqmahr and not in lieu thereof and did not form part of dower---Such gold ornaments were not part and parcel of dower but had to be regarded as bridal gifts in contradistinction to dower---Said gold ornaments, being bridal gifts, could not be withheld by the husband in lieu of Khulla as the same were not part of dower---Even otherwise respondent had shown his consent to return 22-Tolas gold ornaments to the petitioner while deposing before the Family Court---Section 2(a) of Dowry and Bridal Gifts (Restriction) Act, 1976 stipulated that the articles of dowry, bridal gifts, presents or all other moveable property were the belongings of the bride---Consideration for marriage was dower amount which had not been paid to the wife---Petitioner had waived her dower amount in consideration of Khulla which was enough---Family Court had the jurisdiction to entertain and adjudicate any matter arising out of the Nikahnama---High Court set aside impugned order passed by the Appellate Court and restored decree and judgment passed by the Family Court---Constitutional petition was allowed accordingly.

Shakeel Saood Khan v. Rizwana Khanum and another PLD 2012 Lah. 43; Tania Naseer v. Muhammad Zubair and 2 others 2017 YLR 1481; Mst. Mussarat Iqbal Niazi v. Judge Family Court and others 2013 CLC 276; Muhammad Imran v. Additional District Judge, Multan and 3 others PLD 2018 Lah. 429 and Mst. Mithan v. Additional District Judge, Jatoi and 7 others 2017 MLD 1101 ref.

Tahir Khan for Petitioner.

Inzar Rasool for Respondents.

2019 M L D 169

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed, J

MUHAMMAD ILYAS and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous Nos. 921/B, 936/B, 945/B and 1144/B of 2018, decided on 30th August, 2018.

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

----S. 497---Penal Code (XLV of 1860), Ss.420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Cheating, forgery and illegal gratification---Bail, refusal of---Prima facie case---Accused were officials from Revenue Department who were arrested by Anti-Corruption authorities for forging revenue record---Reliance upon copies of revenue record by accused to raise plea of valid transaction was besides mark as same were fabricated by no other than accused themselves which were never authenticated by officers in the hierarchy---Accused persons could not take refuge behind court decree---In appropriate cases, concession of bail could be declined though outside ambit of prohibition---Accusation and formidable material in support thereof with a large number of affectees, departure from rule would not be unconscionable---Bail was refused in circumstances.

(b) Delegation of authority---

----Delegated authority---Exercise of power---Principle---State is an abstract entity, manifests and exercises sovereign authority over territories and subject through functionaries passed with legislative, executive and judicial responsibilities---Functionaries run affair of Republic and their acts are protected by statutory immunity, presumably being genuinely with bona fide---Delegated authority is a sacred trust to be discharged justly, fairly and honestly to accomplish designated purposes under rule of law---Breach of trust may result into chaos and turmoil and must be received without condonation.

Mudassar Khalid Abbasi, Muhammad Asif Choudhry, Ansar Nawaz Mirza, G. M. Shah and Muhamma Faisal Malik for Petitioners.

Hassan Raza Pasha, Sardar Tariq Anees, Sardar Muhammad Fida Hussain, Sardar Muhammad Abbas, Sardar Muhammad Amin for the Complainant.

Naveed Ahmad Warraich, DDPP with Ghulam Asghar Chandia, Circle Officer, ACE Rawalpindi.

2019 M L D 201

[Lahore]

Before Ch. Muhammad Iqbal, J

The PUNJAB COOPERATIVES BOARD FOR LIQUIDATION---Petitioner

Versus

Dr. NAZIR SAEED and others---Respondents

Writ Petition No. 173-R of 2011, heard on 19th November, 2018.

(a) Fraud---

----Effect---Fraud vitiates most solemn proceedings and any edifice so raised on basis of such fraudulent transaction stands automatically dismantled and any ill-gotten gain achieved by committing fraud cannot be validated under any law.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Muhammad Younus Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Khadim Hussain v. Abid Hussain and others PLD 2009 SC 419; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited 2010 SCMR 1097 and Messrs Beach Luxury Hotels, Karachi v. Messrs Anas Muneer Ltd. and others 2016 SCMR 222 rel.

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

----Ss. 10, 11 & 41---Transfer of property---Restrictions---Caveat emptor---Principle---Scope---Under provision of S.41 Transfer of Property Act, 1882 purchaser is saddled with extraordinary responsibility of taking care and caution and to deeply scrutinize genuineness or originality or legality of title of vendor before purchasing land under principle of caveat emptor subject to incidence of Ss. 10 & 11 of Transfer of Property Act, 1882---Any infirmity or deficiency in title found later will always travel with land and purchaser is precluded to subsequently raise plea of protection available under S.41 of Transfer of Property Act, 1882 rather they have to face rigors of their own committed negligence for non-conducting a bona fide and reasonable investigation into title of vendor under principle of caveat emptor.

Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549; Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489; Bashir Ahmad and others v. Additional Commissioner with powers of Settlement Commissioner (L) and others 1983 SCMR 1199; Abdul Hamid v. M.B.R. and others 1994 CLC 1160; Mst. Aziz Bibi and 22 others v. Additional Commissioner (Revenue) with the Powers of Settlement Commissioner (Lands), Lahore Division and another 2002 YLR 3268 and Rasheed Ahmad and 2 others v. Additional Commissioner (Rev.) Notified Officer Gujranwala Division, Gujranwala and others 2007 CLC 1801 rel.

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

----S. 3---Notification No. 1624/78/854 dated 19-06-1978---Notified officer, powers of---Cancellation of allotment letter---Petitioner was Punjab Cooperatives Board for Liquidation and it was aggrieved of order passed by Chief Settlement Commissioner as Notified Officer canceling allotment in question by declaring same as bogus resultantly, land was resumed in favour of the State---Validity---Allotment order was passed in 1972 whereas allottee after about period of more than 12 years sought implementing of allotment order without advancing a reason for being dormant for such a long time---Such act of allottee had made allotment in question as non-existent as such, entire proceedings of allotment were fictitious and fake in nature---Robkar in favour of allottee was issued and incorporated in revenue record much after promulgation of Notification No.1624/78/854 dated 19.06.1978 whereby a clear ban was imposed on incorporation of any entry regarding ancient allotment orders in revenue record---Allotment order was passed in 1972 whereas same was belatedly incorporated in revenue record in year 1984---Such was violation of Notification No. 1624/ 78/854 dated 19.06.1978---Notified Officer had rightly passed order in question and committed no illegality calling for interference in orders in question---Constitutional Petition was dismissed in circumstances.

Custodian of Evacuee Property, Lahore v. Syed Saifuddin Shah (represented by his heirs) PLD 1981 SC 565; Shamrooz Khan v. Muhabbat Khan and another 1989 SCMR 819; Syed Wajihul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 801 and Muhammad Baqir v. Haji Shokat Ali and 3 others 2005 CLC 1106 ref.

Syed Aal-e-Ahmad for Petitioner.

Mian Subah Sadiq Wattoo, A.A.G. for Respondents.

2019 M L D 244

[Lahore (Bahawalpur Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

MUHAMMAD SHARIF---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.296 and Murder Reference No.36 of 2015, heard on 17th October, 2018.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Impugned judgment passed by Trial Court was primarily based upon position of accused taken during his examination under S.342, Cr.P.C.; holding that aspect of the case in abeyance for a whole, there were many questions that warranted answers; of them, the most intriguing was participation of five real brothers in the crime---Violance suffered by the deceased was not commensurate with number of accused, nor the weapons held by two of them---Contention that net had been cast wide to involve the entire family did not sound unrealistic---Question as to why the accused shifted the deceased after murder to their home was not understandable; there was no apparent purpose likely to be served, except for incurring embarrassment with a formidable proof of crime inside their precinct---Accused was acquitted from the charge and was ordered to be released forthwith, in circumstances.

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

----S. 342---Examination of accused---Purpose of examination of accused was to confront him with the evidence produced by prosecution, and likely to be used against him---Said exercise was carried out to acquaint the accused with incriminatory material with a view to enable him to vindicate his position---Procedural fairness required that accused was not taken by surprise---Question though could be put to accused at any stage of trial, however, more often than not, attention of accused was invited after closure of the prosecution case---In the face of rejection of prosecution evidence or its failure to drive home the charge, explanation offered by accused could not be allowed to substitute the declared proof---Statement of accused had to be viewed in toto without quantification or dissections in pieces, adverse to accused.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

Mian Muhammad Tayyab Wattoo for Appellant.

Jehanzeb Arbab for the Complainant.

Asghar Ali Gill, Deputy Prosecutor General for the State.

2019 M L D 294

[Lahore]

Before Shahid Waheed, J

USAMA AHMAD MELA---Petitioner

Versus

MOHSIN NAWAZ RANJHA and others---Respondents

Election Petition No.40 of 2018, heard on 19th November, 2018.

(a) Interpretation of statutes---

----Role of a Court---While interpreting any statute Court/Tribunal was not to alter its provision(s) but to iron out its creases so as to avoid any absurdity, inconsistency or redundancy---Court/Tribunal was duty-bound to avoid "head on clash" between two sections of the same statute and, whenever it was possible to do so, to construe provisions which appeared to conflict so that they harmonized ----Statute was an edict of the Legislature and elementary principle of interpreting or construing a statute was to gather the mens or sententia legis of the Legislature.

(b) Elections Act (XXXIII of 2017)---

----Ss. 144 & 145---Election petition---Contents of petition before Election Tribunal---Requirement---"Material facts" and "full particulars / material particulars"---Distinction and scope--- Distinction existed between "material facts" and "full particulars/material particulars" used in S.144(1) of the Elections Act, 2017 and the same was important because different consequences may flow from deficiency of such facts or particulars in the pleadings---Failure to plead even a single material fact led to an incomplete cause of action and if the election petition was based solely on those allegations which were vague and general in nature or lacking in material facts, such petition was liable to be summarily rejected for want of cause of action---Petition which suffered from a deficiency of material particulars, Election Tribunal had discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.

H.D. Revana v. G. Puttaswamy Gowda and others AIR 1999 SC 768 rel.

(c) Elections Act (XXXIII of 2017)---

----Ss. 144(4) & 145---Election petition--- Maintainability ---Verification of election petition---Object and procedure---Summary rejection of election petition ---Scope---Non-compliance of mandatory requirements of S.144 of the Elections Act, 2017 and defective / incomplete or non-verification of election petition and annexure(s)---Effect---Respondent raised objection as to the maintainability of the election petition on ground that the same had not been verified in terms of S.144(4) of the Elections Act, 2017---Validity---Object of requiring verification of election petition was to fix the responsibility for the averments and allegations in the petition on the person signing verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts---Verification of contents of the election petition was required to be made on oath to be administered by the Oath Commissioner, who was bound to record and to endorse verification/attestation, that oath had been actually, physically and duly administered to petitioner---Perusal of the rubber stamp of the Oath Commissioner, in the present case, made it clear that the petitioner was not present at the time of verification before the Oath Commissioner because he was not identified with reference to his computerized national identity card and was not clear from the stamp as to at what place, the oath was practically and physically administered---Words "declared on oath before me" used in the stamp of Oath Commissioner were not sufficient being ambiguous as they did not indicate as to what was declared on oath or whether the contents of the verification were made on oath before the Oath Commissioner and said statement being patently ambiguous did not meet with the criterion for due attestation of verification---Non-verification of the election petition in accordance with S.144(4) of Elections Act, 2017 was fatal and such defect after the expiry of limitation could not be allowed to be rectified.---Election petition was rejected under S.145 of the Elections Act, 2017, accordingly.

Lt.-Col. (Retd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585 rel.

Muhammad Arshad Khan v. J & P Coats Pakistan Ltd. Karachi and 2 others PLD 1977 Kar. 83; Usman Dar and others v. Khawaja Muhammad Asif and others 2017 SCMR 292; Mir Saleem Ahmed Khosa v. Zafarullah Khan Jamali and others 2017 SCMR 664; Nawab Ali Wassan v. Syed Ghous Ali Shah and others 2018 SCMR 87; Saifi Development Corporation Ltd. v. Workers Union PLD 1965 (W.P.) Kar. 347; Muhammad Hussain v. The Additional District Judge, Lahore and others PLD 1966 (W.P.) Lah. 128; Khan Nasrullah Khan v. The Member, Election Commission, Government of Pakistan, Lahore and others PLD 1966 (W.P.) Lah. 850; Farooq Ahmad Khan Laghari and 37 others v. Sh. Muhammad Rashid, Chairman, Federal Land Commission and another PLD 1981 Lah. 159 and Khadim Hussain and another v. The Addl. District Judge, Faisalabad and others PLD 1990 SC 632 ref.

Muhammad Shahzad Shoukat and Taha Asif for Petitioner.

Khalid Ishaque for Respondent No.1.

Respondents Nos.2 to 5: Ex parte.

Shan Gul and Muhammad Arif Raja, Additional Advocates General, amicus curie.

2019 M L D 328

[Lahore (Bahawalpur Bench)]

Before Jawad Hassan and Asjad Javaid Ghural, JJ

UMAR HAMEED and others---Petitioners

Versus

PRESIDING OFFICER and another---Respondents

Writ Petition No.7195 of 2018, decided on 27th August, 2018.

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

----Ss. 7 & 23--- Penal Code (XLV of 1860), Ss. 382, 506-B, 427, 148 & 149---Theft after preparation made for causing death, hurt, or restraint in order to the committing of the theft, criminal intimidation, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapons, unlawful assembly, act of terrorism---Request for deletion of offence under S.7 of the Anti-Terrorism Act, 1997 at remand stage was turned down by the Judge Anti-Terrorism Court and petition for transfer of case from Anti-Terrorism Court to an ordinary criminal court was dismissed---Petitioners contended that from bare perusal of the crime report and the investigation conducted so far, no element of causing intimidation, awe, fear or insecurity in the public or society or the mens rea and actus reus as specified in S.6 of the Anti-Terrorism Act, 1997 was attracted in the present case; investigation was still under-way and the challan had not yet been submitted before the Trial Court---Trial Court had passed the impugned orders at premature stage and the same were not sustainable---Validity---Record showed that the accused-petitioners along with their five co-accused were implicated in the present case through supplementary statement---Investigating Officer, after arresting the accused-petitioners, made application before the trial court seeking their physical remand for fifteen days---Trial Court while granting physical remand had given specific observations that offence under S.7 of the Act was attracted to the facts and circumstances of the case---Later on, accused-petitioners were sent to judicial lockup by the Trial Court---On the same day, application, submitted by the accused-petitioners to transfer the case to the court of ordinary jurisdiction was dismissed by the Trial Court---Admittedly, investigation process was underway and complete or incomplete report under S.173, Cr.P.C. had not yet been submitted before the Trial Court---Trial Court had expressed his view while granting physical remand of the accused under S.167, Cr.P.C., which was totally against the law causing prejudice to the case of either side and also amounting to hamper the investigation process---Accused-petitioners made application under S. 23 of the Act, before taking cognizance of the matter, which had been decided by the Trial Court without taking into consideration that it was premature---Trial Court was neither authorized to express such view at the stage of physical remand nor to decide the application seeking transfer of case to the court of ordinary jurisdiction before taking cognizance of the matter---Constitutional petition was allowed by setting aside impugned orders with the observation that the accused-petitioners could approach the Trial Court to seek the selfsame relief at appropriate stage.

Ch. Riaz Ahmad and Sardar Zafar Iqbal Tareen for Petitioners

Ch. Saeed Ahmed, A.A.G. for the State.

2019 M L D 346

[Lahore]

Before Malik Shahzad Ahmad Khan, J

MUHAMMAD IMRAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.239740/B of 2018, decided on 18th October, 2018.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860 ), S. 406---Criminal breach of trust---Ad-interim pre-arrest bail, confirmation of---Trust (Amanat)---Scope--- Detail of money allegedly entrusted was not mentioned in the FIR---Effect---Complainant, who had friendly relations with the petitioner, allegedly handed over Rs. 900,000/- to him (petitioner) as trust---Petitioner/accused contended that ingredients of criminal breach of trust were not attracted---Complainant contended that his amount was yet to be recovered from the petitioner---Held, question was when there were so many Banks in the city, then why the complainant handed over the Rs. 900,000/- to the petitioner for keeping the said amount as trust with him---Word 'amanat' (trust) had malafidely been mentioned by the complainant in the FIR, prima facie, in order to make the same a cognizable offence punishable under S.406, P.P.C.---Mere mentioning the word 'amanat'(trust), in the contents of FIR would not attract the provisions of S.405, P.P.C., punishable under S.406, P.P.C., when otherwise ingredients of the said offence were not attracted from the contents of FIR---No specific denomination, identification, marks or number of the currency notes, which were handed over by the complainant to the petitioner, had been mentioned in the FIR, therefore, bail petition could not be dismissed merely on the ground of possible recovery of the amount of the complainant from the petitioner---Possibility of mala fide involvement of the petitioner in the present case by the complainant due to money dispute, could not be ruled out at bail stage---Ad-interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 and Shahid Imran v. The State and others 2011 SCMR 1614 ref.

Naveed Inayat Malik for Petitioner.

Nisar Ahmad Virk, Deputy Prosecutor General for the State.

Rana Zia Ullah for the Complainant.

2019 M L D 352

[Lahore (Bahawalpur Bench)]

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

ABDUL MALIK and others---Appellants

Versus

The STATE ---Respondent

Criminal Appeals Nos.274-J, 275-J and Murder Reference No.30 of 2013, heard on 10th October, 2018.

Penal Code (XLV of 1860)---

----Ss. 302(b), 337-A(iii), 337-F(iii), (vi) & 336---Qatl-i-amd, causing Shajjah-i-Hashimah, Mutalahimah, Mudihah, Itlaf-i-Salahiyat-i-Udw---Appreciation of evidence---Story of accused persons' assault resulting into deceased's death as well as injuries to the witnesses, in view of cited motive, calculated to once again inflict trauma upon their opponents/complainant party---Deceased was certainly done away under circumstances altogether different and prosecution could not escape consequences thereof, merely with the support of injured witnesses---Injuries, confirmed their presence alone without conferring title of truth upon their recipients---Unanimity of prosecution witnesses had merely constituted an alliance, inherently weak as well as suspect---Presence of dead body at the place other than one where the deceased received fatal shot was yet another dilemma confronting the prosecution---Accused persons were not expected to take pains to remove dead body, once they had accomplished the task---No dragging marks were observed by Medical Officer---Prosecution story was fraught with doubts---What actually happened on the day of occurrence could not be determined through any method of human contemplation, without potential risk of error---Accused persons were acquitted from the charge and were released forthwith, in circumstances.

Ms. Gulraiz Abbasi for Appellants.

Muhammad Sharif Bhatti for the Complainant.

Asghar Ali Gill, Deputy Prosecutor General for the State.

2019 M L D 363

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

KHADIM HUSSAIN SHAH---Petitioner

Versus

JUDICIAL MAGISTRATE and others---Respondents

Writ Petition No. 29548 of 2017, decided on 12th June of 2018.

Criminal Procedure Code (V of 1898)---

----Ss.167 & 61---Penal Code (XLV of 1860 ), S.406---Misappropriation of an amount of Rs. 17,00,000/---Remand of accused---Scope---Power of Magistrate to discharge accused---Scope---Petitioner/complainant contended that Investigation Officer sought physical remand of the accused, involved in misappropriation of huge amount, but Magistrate wrongly discharged the accused only after one day of his arrest---Validity---Record revealed that Magistrate, while declining the request of the Investigation Officer for remand of accused for ten days, proceeded to discharge the accused instead of taking into consideration the material available on record in its true perspective---Allegation against accused was that he misappropriated a huge amount to the tune of Rs. 17,00,000/- belonging to the complainant---Held, Magistrate had discharged the accused in haste without affording proper opportunity to the Investigating Officer to conclude his investigation in accordance with law---High Court set aside impugned order passed by the Magistrate and remanded the matter to the Magistrate to pass order afresh taking into consideration available material---Constitutional petition was allowed accordingly.

Muhammad Ajmal Adil and Muhammad Wasif Shahzad for Petitioner.

Ch. Muhammad Jawad Yaqoob, Assistant Advocate General for Respondent.

2019 M L D 377

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun, J

SHAHID HAMEED CHANDIA---Petitioner

Versus

The PRESIDING OFFICER ELECTION TRIBUNAL, D.G. KHAN DIVISION and others---Respondents

Writ Petition No.15814 of 2018, decided on 27th November, 2018.

Punjab Local Government Act (XVIII of 2013)---

----Ss. 37, 39 & 46---Punjab Local Government (Conduct of Elections) Rules, 2013, R. 62---Constitution of Pakistan, Art. 199---Constitutional petition---Election petition---Interlocutory order---Scope---Recount of votes---Petitioner was returned candidate and was aggrieved of order passed by Election Tribunal accepting application for recounting of votes---Validity---Interlocutory order passed by Election Tribunal could not be questioned in Constitutional jurisdiction until same was patently illegal and for some reasons could not even be challenged in form of statutory remedy conferred upon parties aggrieved of order on conclusion or final disposal of election petition---If outcome of election petition went against a person/party who was also aggrieved of interlocutory order passed during proceedings, besides assailing main judgment, such person was entitled to assail very legality of interim order and consequences that had flown from it---If order was patently illegal and left a party without any remedy, then an interlocutory order could be challenged for exercising extraordinary Constitutional jurisdiction of High Court---High Court declared that petitioner was not remediless having a remedy for challenging order in question, after passing of final order in election petition by way of an appeal under S. 46 of Punjab Local Government Act, 2013---Petition was dismissed in circumstances.

Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others 2015 SCMR 233 rel.

Imam Bakhsh and another v. Presiding Officer, Election Tribunal, Dera Ghazi Khan and others (in C.P. No.1138/2016); Sajid Hussain Khan v. Presiding Officer, Election Tribunal, Dera Ghazi Khan and others (in C.P. No.1139/2016); Mst. Ashifa Riaz Fatyana v. Mst. Nazia Raheel and 10 others 2011 CLC 48; Chaudhary Pervez Elahi v. Muhammad Faiz Tamman and 2 others 2010 CLC 1490; Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483 and Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others 2015 SCMR 233 ref.

Syed Athar Hassan Shah Bukhari for Petitioner.

Zafar Ullah Khan Khakwani for Respondent No.2.

Mian Adil Mushtaq, Assistant Advocate General for the State.

2019 M L D 390

[Lahore]

Before Mamoon Rashid Sheikh and Shahid Waheed, JJ

SECRETARY, HEALTH DEPARTMENT---Appellant

Versus

Dr. MUHAMMAD KHALID MASOOD and others---Respondents

I.C.A. No.1032 of 2016, decided on 22nd January, 2019.

Law Reforms Ordinance (XII of 1972)---

----S.3---Constitution of Pakistan, Arts. 174 & 199---Civil Procedure Code (V of 1908) S.79---Intra-court appeal---Maintainability---Suits/ appeals by Provincial Government---Question before High Court was whether intra-court appeal filed by Secretary of a Provincial Government Department against order passed in a Constitutional petition regarding affairs of the Provincial Government, was maintainable---Held, that impugned order passed in the present case related to matters which were concerned with affairs of Provincial Government and no officer of the said provincial government in his / her official capacity or otherwise, could be said to be an "aggrieved person" in relation to a judicial order regarding affairs of the Government---High Court observed that Provincial Government was a party to the Constitutional petition and it could have preferred intra-court appeal against the same if it so wanted, and the present appeal filed by Secretary of a Provincial Government Department was not maintainable, and was dismissed, in circumstances.

Secretary, B. & R. Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625 and Manthar and another v. Province of Sindh through Deputy Commissioner, Sanghar and 4 others 1996 MLD 1510 rel.

Asif Mehmood Cheema, Addl. Advocate General for Petitioner.

2019 M L D 415

[Lahore]

Before Amin-ud-Din Khan, J

SARFRAZ AHMAD---Petitioner

Versus

MUHAMMAD YOUSAF and 2 others---Respondents

Civil Revision No.85366 of 2017, heard on 23rd November, 2018.

Civil Procedure Code (V of 1908)---

----S. 47 & O. XXI, Rr. 89 & 90---Limitation Act (IX of 1908), Art. 166---Execution petition---Attachment of property of judgment-debtor---Auction of attached property---Objection petition, filing of---Requirements---Agreement to sell---Property of judgment-debtor was auctioned wherein objection petition was moved but same was dismissed by the Executing Court---Contention of petitioner was that suit for specific performance was filed with regard to suit property and same had been decreed---Validity---Applicant for filing objection petition was required to deposit 5% of the purchase money for payment to the auction purchase and also must have deposited the amount mentioned in the proclamation of sale---No formal order of the Court or permission was required for deposit of the said amount---If said amount was not deposited then objections were not competent---Objections were filed under O. XXI, R. 89 of C.P.C. but without fulfilling requisite compliance of the said provisions and it would be considered as if no such application had been preferred---Objection petition could not be moved after 30 days of auction---Agreement to sell did not create or confer right or title in the suit property except it did extend a right to file a suit for specific performance---Alleged agreement to sell had been executed for avoidance of execution of present decree---Attachment of property in question was in the knowledge of applicant even before entering into agreement to sell and thereafter at the time of alleged judgment and decree passed in the suit for specific performance---Present objection application had not been moved in accordance with O. XXI, R. 89, C.P.C.---Frivolous objections had been raised only to delay the process of execution and drag the decree-holder and auction purchaser into litigation---Revision was dismissed with cost of Rs. 1,00,000/- which was directed to be distributed equally between the decree-holder as well as auction purchaser.

Mst. Anwar Sultana through L.Rs. v. Bank Al-Falah Ltd. and others 2014 SCMR 1222; Messrs Abdur Razzaq and Company, through Mian Abrar Ahmed v. Bank of Punjab and others 2005 CLD 1170; Mst. Noor Khatoon and others v. Messrs Habib Bank Ltd. and another 2013 CLC 702; Messrs Stiletto (Pvt.) Ltd. through Director and 6 others v. Banking Court No.II, Gujranwala, camp at Sialkot and 5 others 2004 CLD 1126; Kashif Imran and another v. Altaf Hussain and another PLD 2018 Lah. 60; Industrial Development Bank of Pakistan v. Messrs French Food Products (Pvt.) Ltd. and others 2009 CLD 93; Muhammad Sadiq v. Dr. Sabira Sultana 2002 SCMR 1950; Kuwait Flour Mills Co. SAK v. m. v. Kashmir and others 1990 SCMR 2196 and Saima Perveen and 2 others v. Naeem Ahmad Nasir and 3 others 2015 CLC 667 rel.

Nadeem Ahmad Sheikh for Petitioner.

Tahir Munir Malik, Malik Shahid Iqbal for Respondent No.3.

2019 M L D 429

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD REHAN and another---Petitioners

Versus

AKBAR SHAHZAD and others---Respondents

Review Application No.25 of 2014, heard on 5th December, 2018.

Civil Procedure Code (V of 1908)---

----S. 114 & O. XLVII, Rr. 1 & 2---Review---Scope---Conscious, deliberate and reasoned verdict passed by Court after appreciating the material available on record could not be called in question through the process of review either on the ground of erroneousness of decision or incorrectness of the view arrived at---Philosophy of finality attached to a judgment was the paramount consideration with the aim to put an end to litigation and review was merely an exception to the said principle---Review jurisdiction could only be invoked if the error of fact or law was certain, evident, patent and apparent on the face of record, which should not require any elaborate probe to prove its correctness, otherwise it would be a case of appeal.

Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others 2007 SCMR 755 foll.

M. Baleegh-uz-Zaman Ch. for Petitioner.

Munnawar Hussain for Respondent.

2019 M L D 455

[Lahore (Multan Bench)]

Before Syed Muhammad Kazim Raza Shamsi and Asjad Javaid Ghural, JJ

MUHAMMAD SHAH NAWAZ---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.207 and Murder Reference No.56 of 2017, heard on 17th May, 2018.

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

----Ss. 302 & 311---Qatl-i-amd, tazir after waiver or compounding of right to qisas in qatl-i-amd---Appreciation of evidence---FIR was lodged after the delay of more than one hour---Effect---Incident had taken place in the night on 9.12.2015 at 11.00 p.m., which was reported to the police station for the registration of the crime report promptly at 11.35 p.m. and the case was registered at 12.05 on 10.12.2015---Information was furnished by complainant being eye-witness of the occurrence within the shortest span of time---Such circumstance would exclude every hypothesis of deliberation, consultation and fabrication prior to the registration of the case---Promptness in lodging the crime report by an independent eye-witness contained the presumption of its correctness.

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

----Ss. 302 & 311---Qatl-i-amd, tazir after waiver or compounding of right to qisas in qatl-i-amd---Appreciation of evidence---Double murder---Sentence reduction in---Prosecution case was that the accused had murdered both the deceased persons by giving it the colour of Kara Kari and caused Fasad-Fil-Arz---Ocular account was furnished by two witnesses including complainant---Complainant while appearing had reiterated the contents of the crime report---Eye-witness had made consistent statement to that of the complainant on each and every minute detail of the incident in respect of time, date, place, mode and manner of the occurrence, name of the accused, the weapon of offence used and the role assigned to him for committing the murder of both the deceased persons---Admittedly, both the witnesses were Police Officials, had no relation or concern whatsoever with either party and they, being independent witnesses, had made straightforward statement what they had seen at the time of occurrence---Nothing favourable material could be extracted from their mouth by the defence during cross-examination---Both the witnesses of ocular account had no grudge, ill-will or animosity to falsely implicate the accused in the case---Even the accused, in his statement recorded under S.342, Cr.P.C., had not questioned their being not independent or biased witnesses---Defence had claimed that incident had taken place at spur of the moment in the heat of passion on seeing both the deceased in compromising position---Record showed that the deceased lady was first paternal cousin of the accused and they were residing in the same compound in different rooms but it was quite possible for the accused to bolt the door from outside or to make both the deceased hostage on gun point, called other inmates of the house and then reported the matter to the police for taking them to task instead of taking the law in his own hands---Accused had not taken plea of killing both the deceased in the heat of passion either during cross-examination upon the eye-witnesses or in his statement recorded under S. 342, Cr.P.C.---Contention raised by the defence in that regard, subsequently, appeared to be afterthought had no legs to stand---Offence committed by the accused could not be considered to have taken place at the spur of the moment or in the heat of passion rather he had committed murders as Kara Kari on his own and on account of honour---Said fact had further been fortified by positive report of the Forensic Science Agency verifying that the swabs of deceased were found stained with semen, which showed that the motive behind the occurrence that both the deceased were in compromising position, was fully proved---Foundation of the occurrence that the accused had murdered both the deceased on account of Ghairat did not hit the provisions of S.302(c), P.P.C. as it fell within the exception clause of said provision---Seat of injuries, the number of injuries and the weapon of offence used and duration between the injuries and death as well as death and post-mortem examination were in consonance with the ocular account furnished by the prosecution---Circumstances suggested that the medical evidence lent full support to the ocular account furnished by the prosecution---Record transpired that the recovery of crime weapon remained inconsequential and the occurrence had taken place inside the bounds of the compound of accused in the adjacent room of his house and on seeing both the deceased in objectionable condition, he being paternal cousin of the deceased, lady, had reacted blindly without considering its consequences---Such factors constituted mitigating circumstances, thus appeal was dismissed by maintaining the sentence of the accused under S.302(b), P.P.C., however his sentence of death was modified to the one of imprisonment for life on two counts.

(c) Criminal trial---

----Decision of a case---Principle---Every criminal case was to be decided in its entirety while gathering whole circumstances.

Nadeem Ramzan v. The State 2018 SCMR 149 rel.

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

----Ss. 302 & 311---Qatl-i-amd, tazir after waiver or compounding of right to qisas in qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Scope---Investigating Officer had secured two crime empties of .12-bore pistol lying near the dead body of male deceased---One empty of .12-bore pistol was also secured from the place where the first fire hit to the deceased---One crime empty of .12-bore pistol was secured from the eastern side of cot of lady deceased---Four shotshells, secured from the place of occurrence, were deposited in the office of Forensic Science Agency on 20.12.2015---Accused was arrested in the present case on 23.12.2015, who on 1.1.2016, in pursuance of his disclosure, led to the recovery of .12-bore pistol along with three live bullets, which were taken into possession---Said weapon of offence was dispatched and deposited in the office of Forensic Science Agency on 8.1.2016 for its comparison with the crime empties already secured and sent to the said office on 29.12.2015 after six days of the arrest of accused without any legal justification---Report of Forensic Science Agency though was received with positive result yet the possibility could not be ruled out of consideration that the said shotshells had been maneuvered by the prosecution after arrest of the accused, by making fire shots from the weapon recovered from him, just to strengthen the prosecution story---Recovery of weapon of offence etc., in circumstances, rendered it unsafe to be relied upon especially on the charge of capital sentence.

Nazeer Ahmed v. The State 2016 SCMR 1628 rel.

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

----S.302---Qatl-i-amd---Sentence---'Death sentence' and 'imprisonment for life'---Scope---If at any stage, both the sentences of death and the imprisonment for life could possibly be awarded, the better option for the court was to give preference to the lesser sentence, as a matter of caution.

Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 rel.

Malik Muhammad Saleem for Appellant.

James Joseph, Mubashar Khosa and Ali Akhtar Botla for the Complainant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

2019 M L D 485

[Lahore]

Before Rasaal Hasan Syed, J

JAMEEL AHMAD ZAHID---Petitioner

Versus

RASHEEDA BEGUM and others---Respondents

Civil Revision No.1354 of 2014, heard on 6th November, 2018.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Transaction by an illiterate lady---Proof---Procedure---Contention of plaintiff was that defendant had executed agreement to sell in his favour---Suit was decreed by the Trial Court but Appellate Court dismissed the same---Validity---Executant of alleged agreement to sell being an illiterate lady, was privy to the document executed---Plaintiff was with her free will and volition and that she had independent advice of some male member---Contradictions in the deposition of witnesses produced by the plaintiff were on record which had been noted by the Appellate Court---Plaintiff had not attempted to get the alleged thumb-impression and signatures on agreement to sell verified from the expert/forensic laboratory---Adverse inference could be taken against the plaintiff and it could not be ruled out that he expected adverse report---Impugned judgment passed by the Appellate Court was correct analysis of evidence on record---Judgment passed by the Trial Court was based on mis-reading and non-reading of evidence---No error of law had been pointed out in the impugned judgment passed by the Appellate Court---Revision was dismissed in circumstances.

Arshad Khan v. Mst. Rasham Jan and others 2005 SCMR 1859; Taleh Bibi and others v. Mst. Maqsooda Bibi and others 1997 SCMR 459 and Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi and others 2013 SCMR 868 rel.

Naseer Ahmad Awan for Petitioner.

Mudassar Ali Gill for Respondent.

2019 M L D 503

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Farooq Haider, JJ

Mian IMDAD SARWAR---Appellant

Versus

EX-OFFICIO JUSTICE OF PEACE and others---Respondents

I.C.As. Nos.186259 and 186261 of 2018, heard on 22nd January, 2019.

Criminal Procedure Code (V of 1898)---

----Ss.22-A, 22-B & 154---Registration of FIR---Civil and criminal proceedings---Exercise of judicial restraint vis-à-vis direction for registration of criminal case by the courts---Appellant had impugned order passed in Constitutional petition whereby direction by Justice of Peace for registration of criminal case against respondents, was set aside---Validity----Civil suit and ejectment petition between the parties, relating to the matter, were pending before courts of competent jurisdiction, and such fact was overlooked by the Justice of Peace---Trend of availing pre-mature criminal remedies to achieve shortcuts was deprecated by the High Court---Court had rightly observed restraint in the matter for registration of cases---No illegality existed in the impugned order---Intra-court appeals were dismissed, in circumstances.

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

Miss Aqsa for Appellant.

Mrs. Azra Israr, Assistant Advocate General for Respondent No.2.

Ahsan Javed for Respondent No.3.

2019 M L D 511

[Lahore]

Before Ch. Muhammad Iqbal, J

NAWAZ SHARIF SOCIAL SECURITY HOSPITAL through Chief Executive---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 4 others---Respondents

Writ Petition No. 232496 of 2018, heard on 22nd November, 2018.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. VII, R. 11---Central Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1965), S. 10---Punjab Government Lands and Buildings (Recovery of Possession) Ordinance (IX of 1966), S. 10---Suit for declaration---License agreement---Jurisdiction of Civil Court---Scope---College of Medicine and Dentistry-plaintiff entered into license agreement with the hospital-defendant for medical facilities of said hospital for teaching purposes to its students for a period of ten years---Hospital issued notice to the College to vacate its premises after expiry of the stipulated period of agreement---College filed suit for declaration wherein application for rejection of plaint was moved but same was dismissed---Validity---Licence agreement for affiliation of College with the hospital was executed between the parties after settlement of terms and conditions---Said agreement was terminable after expiry of five years from its execution by giving five years notice in advance from terminus date---Hospital served notice during existence of licence agreement for termination as well as non-extension of said agreement---Tenure of license agreement was completed on 08-11-2016 and College was bound to vacate the demised premises---College moved application to the Commissioner Punjab Employees Social Security Institution, concerned department of the hospital, for extension of agreement of affiliation with the hospital, no extension was granted in favour of the college and hospital served another notice to the college to vacate the hospital premises and for payment of outstanding dues---Hospital also served notice for non-compliance of terms and conditions settled between the parties---College remained unresponsive to the said notices and defaulted in payment of hospital dues but kept on utilizing the premises without any legal right or permission of the hospital---License agreement was initially for a period of ten years extendable with consent of the defendant---College was bound to pay Rs. 5,00,000/- in advance as affiliation fee and Rs. 6,00,000/- per month to the hospital for payment to the employees of the hospital---Present suit was filed on the basis of misrepresentation of record---Period of license agreement had already expired and no renewal had been accorded by the competent authority---College had no right to retain the possession of hospital premises on the basis of restraining order passed by the Civil Court---Jurisdiction of Civil Court was barred to issue any restraining order---Present suit was barred under S. 42 of Specific Relief Act, 1877 as in absence of any agreement college had no right which could be enforced through process of law---Hospital had refused to extend the period of alleged agreement and after expiry of the same no enforceable rights were attached with the said agreement---College was occupying the premises of hospital without any permission of licensor---Any admission made against the record or against admitted document did not create any right to declare the plaintiff as tenant of defendant---College had not challenged the notice for vacation of the premises of the hospital---Present suit had been filed after two years of the expiry of lease agreement which itself had left no right enforceable under any law---Jurisdiction of civil Court was barred in the present matter---Present suit was barred by law and suffered from the lack of cause of action---Impugned orders dismissing application for rejection of plaint had no sanctity in the eyes of law which were set aside---Plaint was rejected in circumstances---Constitutional petition was allowed.

A.R. Khan v. P.N. Boga through legal Heir PLD 1987 SC 107; Federation of Pakistan v. Amir Hamza 2001 SCMR 1959; Overseas Pakistanis Foundation and others v. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another 2007 SCMR 569; M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83; Muhammad Hayat Khan v. Province of Punjab through Secretary Communication and Works and others 2007 YLR 719; Messrs Recto International through Partner v. Messrs Pakistan Telecommunication Company Ltd. through Director Telegraph and another 2008 CLC 562; Syed Ali Asghar Shah v. Pakistan International Airline Corporation through Managing Director and others 2016 CLC 189; Saeed Ahmad Malik v. Naval Estate Officer 1989 CLC 1204; Dr. Munir Ahmed, M.B.B.S. Medical Officer v. Chairman, House Allotment Committee, Government of Baluchistan, Quetta and another 1983 CLC 1783 and Imtiaz Hussain v. Govt. of Pakistan through Secretary, Ministry of Works, Estate, Islamabad and 2 others 1992 CLC 1122; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322; Ahmad Khan v. Malik Fazal Dad 1983 CLC 74 and Pakistan Development Corporation Ltd. v. The Bank of Bahawalpur Ltd. PLD 1960 (W.P.) Kar. 885 rel.

Saqib Mubarik Bhatti for Petitioner.

Pir Masood Ahmad Chishti for Respondents Nos. 3 to 5.

2019 M L D 537

[Lahore]

Before Shahid Mubeen, J

MUHAMMAD IQBAL---Petitioner

Versus

SAJID HUSSAIN BHATTI and others---Respondents

C.R. No.231 of 2014, decided on 12th November, 2018.

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

----S. 52---Civil Procedure Code (V of 1908) S. 12(2)---Setting aside of decree---Plea of fraud, or misrepresentation---Immoveable property purchased during pendency of litigation relating ownership of the same---Locus standi of such purchaser to file application under S. 12(2), C.P.C. for setting aside of decree---Application of S. 52 of the Transfer of Property Act, 1882---Scope---Plaintiff's suit for declaration whereby he impugned cancellation of his plot by the Development Authority was decreed in plaintiff's favour, whereafter upon application of respondent under S. 12(2), C.P.C., said decree was set aside inter alia, on the ground that respondent was purchaser of said property---Validity---Under S. 52 of the Transfer of Property Act, 1882 if property was purchased during pendency of litigation , then such purchaser of property had no locus standi to challenge the decree and judgment by filing an application under S. 12(2), C.P.C.---Impugned order was set aside, in circumstances---Revision was allowed, accordingly.

Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 and Muhammad Mubeen v. Messrs Long Life Builders and others PLD 2006 Kar. 278 rel.

Ijaz Ahmad Khan for Petitioner.

Ch. Tanveer Akhtar for Respondent No.1.

Mian Tahir Maqsood for Respondents-LDA.

2019 M L D 551

[Lahore]

Before Ch. Mushtaq Ahmad and Farooq Haider, JJ

MUHAMMAD AZAM---Appellant

Versus

SHAHZAD AKHTAR and another---Respondents

Crl. Appeal No.2045 of 2011, decided on 1st November, 2018.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused along with his co-accused persons armed with deadly weapons assaulted on complainant party---Accused made straight firing upon the brother of the complainant, due to which he died---Occurrence took place over a dispute of plot and some money transaction---Version of the complainant in his fard bayan was that on the day of occurrence accused/respondent along with his acquitted co-accused came at the place of occurrence and after raising lalkara, one of the acquitted co-accused fired with rifle .7-MM at the deceased, which hit on upper part of his left thigh and accused made two firearm shots upon deceased hitting at his back---Complainant had stated during trial that co-accused made fire which hit deceased, accused made two fires, which hit deceased on left side of hip---Said deposition was contradictory to his previous statement got recorded by him and during confrontation, it had been observed that complainant had dishonestly suppressed seat of injury allegedly caused by acquitted accused and also introduced dishonest improvement about locale of injuries allegedly caused by accused just to bring ocular version in line with medical evidence---Prosecution had alleged that three fire shots hit the deceased, one by acquitted accused and two by accused, but Medical Officer had observed two injuries at the hip of the deceased---Blackening was found on two injuries but according to site-plan, distance from where accused allegedly fired at deceased was thirteen feet---Admittedly, in case of blackening, maximum range of firing was six feet, thus medical had contradicted ocular account---Record transpired that besides the complainant, the occurrence was witnessed by three other persons but they were not produced in court to prove the charge against accused by mentioning them as being won-over---Non-production of said witnesses, in circumstances, would go against the prosecution---Complainant, during cross-examination, denied his relationship with said witnesses but he had admitted relationship with them in his previous statement---Complainant had denied his relationship with a witness, whereas said witness had clearly stated during his statement that he was son of sister-in-law of complainant---Circumstances suggested that complainant had suppressed his relationship with prosecution witnesses---Complainant had also suppressed the factum of receipt of injury by acquitted accused which would go against the prosecution---Said facts and circumstances led to the conclusion that occurrence did not take place as alleged by the complainant---Evidently, three co-accused had been acquitted in the present case and now strong corroboration was required to prove charge against present accused/ respondent but prosecution failed to do so---Prosecution itself brought on record documentary evidence before the court to prove that accused/ respondent was not involved in the alleged occurrence rather he was in foreign country on the day of occurrence of the case---No recovery of any incriminating material was made during investigation---Circumstances established that prosecution had failed to prove the charge against accused/respondent beyond shadow of doubt---Prosecution case was fraught with doubts---Appeal against acquittal was dismissed, in circumstances.

Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644; Muhammad Ali v. The State 2015 SCMR 137; The State v. Iqbal and 3 others 1986 PCr.LJ 215; Mst. Zahida Saleem v. Muhammad Naseem and others PLD 2006 SC 427; Muhammad Rahim and others v. Bakht Muhammad and others 2006 SCMR 1217; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Irfan Ali v. The State 2015 SCMR 840 rel.

(b) Criminal trial---

----Abscondance---Scope---Mere abscondance is no proof of guilt---When direct evidence is not trustworthy and reliable then abscondance is of no avail and can not cure or repair defects of the case of prosecution---Abscondance is merely a suspicion and cannot prove charge as a substantive piece of evidence.

Rasool Muhammad v. Asal Muhammad and another 1995 SCMR 1373 rel.

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

----S. 417---Appeal against acquittal---Appreciation of evidence---Principles---Acquitted accused had acquired double presumption of innocence, with which the court did not interfere unless the impugned order was found to be arbitrary, capricious, fanciful and against the record.

Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 rel.

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

----S. 417---Appeal against acquittal---Interference---Scope---Interference was to be made when it appeared that acquittal was result of misreading or non-reading of evidence.

Muhammad Usman and 2 others v. The State 1992 SCMR 498 and The State v. Muhammad Sharif and others 1995 SCMR 635 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating a reasonable doubt in prudent mind about the guilt of accused would be sufficient to extend its benefit to the accused.

Muhammad Zaman v. The State and others 2014 SCMR 749 and and Muhammad Ashraf and others v. The State and another PLD 2015 Lah. 1 rel.

2019 M L D 625

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

MUMTAZ HUSSAIN---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 284 of 2009, heard on 8th November, 2017.

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

----Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence of the offence, common intention---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Scope---Accused was charged for committing murder of the brother of the complainant---Unseen occurrence---Complainant had deposed that on 14.8.2006 two persons came to his house and took his brother with them---On 15.8.2006 at about Fajarwaila, dead body of brother of complainant was found in the fields---Nothing in the statement of complainant or even in his complaint to suggest that the present accused was also accompanying the said persons when they took his brother---Both the accused had made extra-judicial confession before them that they had murdered the deceased---On 14.8.2006 when they went to the house of present accused and found it chained from inside, they opened it by some means and found deceased committing zina with wife of accused---Said lady managed to flee but they apprehended deceased on the spot---Acquitted accused locked his arms while the present accused cut his throat with ustra that he had with him at that time---Subsequently, they also cut his lips, ear and nose and then threw the dead body in the field at 3.00/4.00 a.m., the following day---Said witness had further stated that the accused persons asked him to help settle the matter with the complainant party---Said witnesses informed complainant on 9.9.2006 about the extra-judicial confession of the accused persons---Complainant took them to the police station where the Investigating Officer recorded their statements under S.161, Cr.P.C.---Other witness testified that on 8.9.2006 the accused persons made extra-judicial confession when he was with the witness but did not give the details which he had mentioned in his statement---Complainant had confirmed that witnesses came to him on 9.9.2006 to inform about the said confession and then he took them to the Investigating Officer---Record transpired that witnesses were small cultivator and employed with a landlord on a salary of Rs. 3000 per month respectively---No reason was available for the accused to make extra-judicial confession before them, particularly when there was no motivating factor therefor---Falsity of their testimonies was also evinced from their conduct---Statements of witnesses showed that accused made the alleged confession before them on 8.9.2006 while they got their statements under S. 161 Cr.P.C. recorded with the Investigating Officer on 10.9.2006---Said witnesses did not advance any plausible explanation for said delay---Witnesses also lied to the court that they made statement to the Investigating Officer on 9.9.2006---Investigating Officer categorically stated that he recorded their statements on 10.9.2006---Deposition of witnesses did not inspire confidence---Joint extra-judicial confession, was not admissible---Prosecution relied on the recovery of Ustra to incriminate the accused, but the alleged recovery did not advance its case inasmuch as it was made in violation of S. 103, Cr.P.C.---Circumstances established that present case was a case of no evidence, therefore the conviction and sentence could not be sustained---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

(b) Criminal trial---

----Evidence---Corroboration---Principle---One tainted piece of evidence could not corroborate other tainted piece of evidence.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence was only confirmatory in nature and did not identify the culprits.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

(d) Criminal trial---

----Extra-judicial confession---Evidentiary value---Scope---Reliance on such confession for recording conviction---Principles.

Courts are always cautious in placing reliance on extra-judicial confession of an accused person while deciding criminal cases. This is essentially because they can be easily procured. When the Investigation Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions. Such confessions are the sign of incompetent investigation.

The principles with regard to its nature, evidentiary value and reliance for conviction of accused enumerated.

(i) Extra-judicial confession is normally considered as a weak piece of evidence as it can be easily procured whenever direct evidence is not available.

(ii) An extra-judicial confession is not a direct evidence. It can be used against an accused only when it comes from unimpeachable sources. Further, it must be corroborated in material particulars through trustworthy evidence.

(iii) Since extra-judicial confession is a weak type of evidence, conviction on capital charge cannot be recorded in its basis alone.

(iv) There are four essentials to believe an extra-judicial confession: firstly, that the extra-judicial confession was in fact made; secondly, that it was made voluntarily; thirdly, that it was truly made, and fourthly, that the motivating force behind it was proved.

(v) In criminal cases great responsibility rests upon the courts to determine if the confession is voluntary and true or is lacking within the scope of either term "voluntary" and "true". If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority, it would be treated as not voluntary.

(vi) The extra-judicial confession must be received with utmost caution. The court should enquire into all material points and surrounding circumstances to satisfy itself fully that the confession cannot but be true. It is but a natural curiosity to ask as to why a person of sane mind should at all confess. No doubt the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated and consequented upon purely in the back of a human conduct. Why a person guilty of offence entailing capital punishment should at all confers. There could be a few motivating factors like: (a) to boast off, (b) to ventilate the suffocating conscience, and (c) to seek help when actually trapped by investigation. Where the accused had been fully trapped during the investigation, what is the nature and gravity of the offence involved, what is the relationship of the accused with the person before whom confession is made.

(vii) The status of the person before whom the extra judicial confession is made must be kept in view. A person may make confession before a third person to seek help from him. Help is sought when a person is sufficiently trapped and he feels that the other person is in a position socially or otherwise to provide him some relief. Extra-judicial confession of murder made by accused to witnesses who were neither respectable persons of locality nor enjoyed such a commanding position so as to have an access or influence on the police or the relatives of the deceased to get pardon for accused. In such situation, what prompted the accused to confess his guilt voluntarily without any duress, coercion or inducement leaves room for consideration.

(viii) Evidence of witnesses before whom accused made extra-judicial confession would not be worth reliance when witnesses exhibited unnatural and inhuman conduct after accused had made confession to them.

(ix) The Court should also look at the time lag between the occurrence and the confession and determine whether the confession was at all necessary.

(x) Joint confession cannot be used against either of them.

(xi) Extra-judicial confession made by the accused when he is in the custody of the police is inadmissible in evidence. Article 38 of the Qanun-e-Shahadat Order, 1984 lays down that a confession made to a police officer shall not be proved against a person accused of any offence. The rule embodied in above Article is for the reason that a police officer shall not be encouraged to extort confession for showing efficiency by securing convictions. Under this Article a confession made to a police officer is to be ignored even if it was made in the immediate presence of a Magistrate, as the Article 38 is independent and is not controlled by Article 39.

(xii) Article 39 of the Qanun-e-Shahadat, 1984 deals with confessions which are made not to police officers but to persons other than police officers i.e. to a fellow prisoner, a doctor or a visitor and makes such confessions inadmissible, if they were made while the accused was in the custody of police officer. Articles 38 and 39 lay down different rules.

(xiii) As per Article 40 of the Qanun-e-Shahadat, 1984 when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the accused, under Article 40 ibid, relating to incriminatory articles is admissible.

Ahmad v. The Crown PLD 1951 FC 107; Sarfraz Khan v. The State and 2 others 1996 SCMR 188; Tayyab Hussain Shah v. The State 2000 SCMR 683; Ziaul Rehman v. The State 2001 SCMR 1405; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Rasab Khan v. The State 2003 SCMR 1385; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Tahir Javed v. The State 2009 SCMR 166; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Rehmat Ullah v. The State 2006 PCr.LJ 358 rel.

Khurshid Ahmad Solangi for Appellant.

Iftikhar ul Haq, A.P.G. for the State.

Complainant in person.

2019 M L D 662

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed, J

MUHAMMAD SHAKIR KHAN---Petitioner

Versus

Mst. SANAM SIDDIQUE and others---Respondents

Writ Petition No.418 of 2019, decided on 4th February, 2019.

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

----S. 7---Custody of minor---Welfare of minor---Emotional attachment with maternal aunt---Father/petitioner sought custody of daughter residing with maternal aunt---Under personal law, the petitioner being real father was preeminently placed to claim custody of her daughter, however, his entitlement was subordinate to the paramount consideration of welfare of the minor---Child appeared to be emotionally attached with her maternal aunt, and, thus, an incremental approach for her transition into the family fold (of her father) would be a wiser course than to abruptly force her to rejoin her father, which would inflict an emotional trauma and setback to the child---Child was presently studying in one of the best schools---Given the age of the minor (about 13 years), it would be more expedient for the Guardian Judge to settle the present matter---Constitutional petition was dismissed in circumstances.

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

----S. 7---Constitution of Pakistan, Art. 199---Custody of minor---Constitutional jurisdiction of the High Court---Scope---Such jurisdiction was not to be exercised in every run of the mill case of custody while pre-empting jurisdiction of a forum statutorily designated to settle claims of custody through a procedure conducive for the child.

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

2019 M L D 692

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

Syed WAJAHAT ALI through Special Attorney---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary and 3 others---Respondents

Writ Petition No. 222029 of 2018, decided on 18th December, 2018.

Constitution of Pakistan---

----Arts. 4, 9, 14, 18, 20 & 37(c)---Constitutional petition---Right of education---Children of petitioner were studying aboard in Medical College and due to circumstances beyond his control petitioner and his family had to return to Pakistan---Initially authorities issued "No Objection Certificate" to children of petitioners for their admissions in Medical College in Pakistan but later on it was withdrawn---Validity---Right of education was denied to both children of petitioner only due to the act of a forum which had earlier granted permission to them after fulfilling all legal requirements considering it special circumstances beyond the control of petitioner or family---Denial in such regard was in conflict to the Fundamental Rights guaranteed under Arts. 4, 9, 14, 18 & 20 read with Art. 37(c) of the Constitution---High Court declared the notification, withdrawing "No Objection Certificate", having been passed without any legal justification and against basic norms of the Constitution and was set aside---Constitutional petition was allowed in circumstances.

Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others 1998 SCMR 1404; Pakistan through Ministry of Finance Economic Affairs and another v. Fecto Belarus Tractors Limited PLD 2002 SC 208; Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others 2007 PLC (C.S.) 824; Mst.Basharat Jehan v. Director Genl, Fedl. Government Education, FGEI (C/Q) Rawalpindi and others 2015 SCMR 1418; Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others 2018 SCMR 1956; Pakistan and others v. Public-at-Large and others PLD 1987 SC 304; Imdad Hussain v. Province of Sindh through Secretary to Government of Sindh, Karachi and 3 others PLD 2007 Kar. 116 and Fiaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others PLD 2012 SC 224 rel.

Saad Rasool, Ch. Qamar uz Zaman Tarar, Aitzaz Aslam and Shan Saeed Ghumman for Petitioner.

2019 M L D 732

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

MEHBOOB-UD-DIN and others---Petitioners

Versus

Mst. ZUBAIDA and others---Respondents

Civil Revisions Nos. 784-D and 785-D of 2006, decided on 20th December, 2018.

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

----S. 17---Qanun-e-Shahadat (10 of 1984), Art. 129, Illus. (e)---Registered document---Presumption---Document, registered by an authority while performing its official function, attains presumption of truth but only in cases where authenticity and genuineness thereof is not challenged.

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

----Art. 85(5)---Registered document---Execution, proof of---Whenever execution or contents of any such document are disputed, presumption so attached to it loses its significance; it becomes sine qua non for beneficiary thereof to have it proved through mode required to prove a private document.

Muhammad Sher and 2 others v. Muhammad Azim and another PLD 1977 Lah. 729; Abdul Majeed and others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others 2006 SCMR 1144; Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others 2018 SCMR 30 and Fareed and others v. Muhammad Tufail and another 2018 SCMR 139 rel.

(c) Gift---

----Registered gift deed---Onus to prove---Plaintiffs claimed to be owners of suit property and asserted that registered gift deed relied upon by defendants was a forged and fake document---Suit was dismissed by Trial Court but Lower Appellate Court reversed said findings and decreed the suit in favour of plaintiffs---Validity---Construction of gift deed in question as well as transaction referred by defendants was attacked with serious allegations---Onus was shifted on defendants to prove facts but from first day defendants failed to assert and prove ingredients of their purported transaction to the effect that when, where and before whom declaration of gift was offered by donors which was accepted by them and possession changed hands in lieu thereof---Stamp paper for gift deed in question was not purchased by any of the purported donors rather it was issued to father of donees who admittedly had no authority on their behalf---Purchase of stamp paper by an unauthorized person despite availability of ladies on whose behalf it was written, made it dubious from day of its inception---Defendants did not succeed to establish authenticity and veracity of document in question because none among stamp vendor, petition writer, registry Muharir, sub-registrar and attesting witnesses was examined---High Court declined to interfere in the judgment and decree passed by Lower Appellate Court as no wrong was committed---Revision was dismissed in circumstances.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Muhammad Qayyum and 2 others v. Muhammad Azeem Through Legal Heirs and another PLD 1995 SC 381; Sadar Abbas v. Province of Punjab and others 2015 CLC 822; Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938; Mst. Manzoor Begum (deceased) through L.Rs. v. Mst. Fateh Bibi and others 2016 SCMR 1596 and Allah Ditta and others v. Manak alias Muhammad Siddique and others 2017 SCMR 402 rel.

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

----O. VII, R. 1(e)---Cause of action---Principle---No right to sue existed until an accrual of right is asserted in the plaint and its infringement or clear unequivocal threat to injure that right by defendant against whom suit is instituted is also pleaded in clear terms.

Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346 and Khair Din v. Mst. Salaman and others PLD 2002 SC 677 ref.

Syed Tajammul Hussain Bukhari for Petitioners.

Rana Muhammad Aslam for Respondents (in C. R. No. 784-D of 2006)

Muhammad Saleem for Respondent No.2(b) in person (in C.R. No.785-D of 2006) on behalf of legal heirs of Mst. Rashida Begum.

2019 M L D 758

[Lahore (Multan Bench)]

Before Mujahid Mustaqeem Ahmed, J

FAYAZ HUSSAIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 2888 of 2017, heard on 30th October, 2018.

Family Courts Act (XXXV of 1964)---

----S. 5---Qanun-e-Shahadat (10 of 1984), Art. 129, illus. (e) & Chap. VI, [Arts.102 to 110]---Exclusion of oral evidence by documentary evidence---Nikahnama, contents of---Scope---Suit for recovery of house as dower filed by wife was concurrently decreed in her favour by two Courts below---Plea raised by husband was that house mentioned in Nikahnama was of 5 Marlas whereas two Courts below passed decree for house of 10 Marlas---Validity---Nikah Nama was public document and presumption of truth was attached to entries made therein---Where there was gross misreading, non-reading or jurisdictional defect flouting on the surface of record, High Court was justified to interfere with the same under its Constitutional jurisdiction to undo injustice---High Court modified judgments and decrees passed by two courts below and decreed the suit to the extent of house measuring 5 Marlas with necessary amenities or in alternate its market price---Claim of wife contrary to the terms and conditions of Nikah Nama was dismissed---Constitutional petition was allowed accordingly.

Jan Muhammad v. Mst. Salamat Bibi and others 2002 SCMR 1408; Abdul Malik and others v. Mst. Subbha Mai alias Sabbah Mai 2016 MLD 925; Mst. Nabeela Shaheen and others v. Zia Wazeer Bhatti and others PLD 2015 Lah. 88; Sher Muhammad and others v. Muhamad Khalid and others 2004 SCMR 826; Shamshad v. Arif Ashraf Khan and others 2010 SCMR 473 and Saqib Pal v. Mst. Beenish Khushnud and others 2017 YLR 252 ref.

Zargham Haider Jafri for Petitioner.

Syed Nasir Abbas Bukhari for Respondent.

2019 M L D 772

[Lahore]

Before Mamoon Rashid Sheikh, J

Messrs IRIS COMMUNICATIONS (PVT.) LTD.---Appellant

Versus

AHMAD KHALID---Respondent

F.A.O. No. 219035 of 2018, heard on 13th September, 2018.

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

----S. 17---Transfer of Property Act (IV of 1882), S. 107---Registration Act (XVI of 1908), S. 17(d)---Ejectment petition---Unregistered lease agreement for a period of ten years---Where the lease agreement was beyond a period of one (1) year, under the provisions of S. 107 of the Transfer of Property Act, 1882, read with S. 17(d) of the Registration Act, 1908, such lease agreement was compulsorily registerable---Lease of immovable property from year to year or for a term exceeding one year or reserving yearly rent could only be made through a registered instrument---Since the lease agreement for ten years, in the present case , was unregistered, the tenure of the lease agreement was only binding between the parties for the initial eleven (11) months, where after the relationship between the parties was to be regulated by the terms of the statute in question, i.e. the Cantonments Rent Restriction Act, 1963---Tenancy between the parties shall, therefore, be considered to be a statutory tenancy on a month to month basis beyond the initial period of eleven (11) months.

Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCMR 1185; Mst. Rukhsana Bhatti v. K & N's Foods (Pvt.) Ltd. and others PLD 2013 Lah. 119 and Messrs Shama Soap Factory, Faisalabad v. Commissioner of Income Tax, Zone, Faisalabad 2006 PTD 178 ref.

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

----Ss. 17(2)(i) & 17(2)(ii)(b)---Ejectment petition---Grounds---Default in payment of rent---Residential property used for commercial purposes---Admittedly, the appellant was unable to bring on record any evidence, oral or documentary, regarding the payment of rent to the landlord after a specific date---In such circumstances tenant was rightly held to be a "willful defaulter"---Furthermore as per the lease agreement the tenant took the property on rent for residential purposes, but he had converted the property to commercial use, thus he violated the terms of the lease agreement---Court below had rightly allowed the ejectment petition of the landlord and ordered the tenant to vacate the premises---Appeal was dismissed accordingly.

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

----O. XLI, R. 27---Appeal---Additional evidence, production of---Scope---In order to be able to produce additional evidence, whether oral or documentary, at the appellate stage, a party had to establish that the Court against whose decree/order the appeal had been filed refused to admit evidence which ought to have been admitted or that the documents in question were not available or traceable during the trial---In absence of any of the said conditions being met additional evidence was not normally allowed to be led by an appellate Court---Appellate Court in exercise of its power to allow additional evidence normally did not favour a delinquent litigant---Such power was only exercised in genuine cases.

Muhammad Hanif and another v. Sultan 1994 SCMR 279; Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051; Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822 and Zar Wali Shah v. Yousaf Ali Shah and others 1992 SCMR 1778 ref.

Syed Muhammad Kalim Ahmad Khurshid for Appellant.

Muhammad Ahsan Bhoon and Rana Abdul Sattar Khan for Respondent.

2019 M L D 790

[Lahore (Rawalpindi Bench)]

Before Qazi Muhammad Amin Ahmed, J

Sheikh MUHAMMAD NADEEM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 68-B of 2019, decided on 18th January, 2019.

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

----Ss. 498 & 144---Penal Code (XLV of 1860), Ss. 188 & 341---Disobedience to the order duly promulgated by public servant---Wrongful restraint---Pre-arrest bail, refusal of---Petitioner was charged for obstruction of public movement at public pathway---Freedom of expression and right to peaceful protest were undoubtedly most sacrosanct, nonetheless, exercise thereof was subject to law and there was no right in derogation to citizen's primary and fundamental responsibility of loyalty to the State---No cause, howsoever, sublime or sacred could be allowed to disrupt civic life or question the writ of State---Bail was refused accordingly.

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

----S. 498---Pre-arrest bail---Scope---Cognizable offence---Non-bailable offence---Scope---Grant of pre-arrest bail in cognizable offence, Scheduled as non-bailable is a most extraordinary measure---Diversion of usual course of law wherein arrest was a rule, has to be averted only in cases actuated by abuse of process of law under motives manifestly ulterior.

Malik Jawad Khalid with Petitioner.

2019 M L D 820

[Lahore]

Before Jawad Hassan, J

KHALID MAHMOOD---Petitioner

Versus

NASEEM AKHTAR and others---Respondents

Writ Petition No.24596 of 2017, heard on 30th January, 2019.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.17-A(4)---Suit for recovery of maintenance allowance---Quantum of maintenance allowance---Scope---Financial status of father; documentary proof ---Scope---Petitioner/father contended that both the courts below had ignored his salary slip tendered in the evidence and decreed maintenance allowance to the tune of Rs. 5000/- each for two minors---Validity---Section 17-A(4) of the Family Courts Act, 1964 stipulated that in order to fix maintenance allowance of the minors, Family Court could summon the relevant documentary evidence from any organization , body or authority to determine the estate and resources of the defendant---Record revealed that both the Courts below had not discussed any document on the basis of which they determined the financial status of petitioner for fixation of the quantum of maintenance for minors---Section 17-A(4) of the Family Courts Act, 1964, provided that paramount duty of the Family Court was to keep in mind the financial status of the father before fixing quantum of maintenance---Financial status and resources of father (petitioner) and his capacity to pay could only be ascertained through summoning of documentary evidence from the concerned organization, body or authority where he was employed---Both the Courts below had failed to do so---Record showed that the petitioner had tendered in his documentary evidence the salary slip in the Court, but the same was not reflected in the impugned judgments---Without discussing said material piece of evidence, Family Court had decided the issue of quantum of maintenance which was contrary to the law---No judgment could be passed without discussing the evidence---Both the Courts below had not adverted to the said salary slip of the petitioner which showed his net pay as Rs. 18,252/- while the petitioner also had to support his ailing mother and other family members as well as his handicapped daughter who was living with him---Verbal assertion of the wife that the monthly income of the husband was Rs. 35,000/- had not been substantiated by any documentary evidence---Documentary evidence would exclude the oral evidence---High Court modified the impugned judgments and decrees passed by the two Courts below, by reducing monthly maintenance allowance from Rs.5000/- to Rs.3,000/- for each minor---Constitutional petition was allowed accordingly.

Asif Rafique v. Mst. Quratullain and 3 others 2016 MLD 425 ref.

Ms. Sadia Malik and Moin Ahmad for Petitioner.

Respondents proceeded against ex parte vide order dated 22.1.2019.

Rai Shahid Saleem Khan, A.A.G. on Court's call.

Date of hearing: 30th January, 2019.

2019 M L D 859

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

NOOR NAWAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 889-J of 2016 and Murder Reference No.23 of 2017, heard on 17th December, 2018.

(a) Criminal trial---

----Each criminal case had its own peculiar facts and circumstances and the same seldom coincided with each other on salient feature.

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

----Ss. 302, 114 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Delay of about eleven hours in lodging the FIR---Effect---Record showed that there was an inordinate delay of 11 hours in lodging crime report for which no plausible explanation had been rendered by the prosecution---Allegedly, occurrence had taken place on 16.12.2015 at about 8.00/9.00 p.m. while the matter was reported to the police on 17.12.2015---Facts remained that inter se distance between the place of occurrence and police station was only one and half kilometres---Such inordinate delay would be sensed with suspicion.

Azhar Ali and others v. The State 2008 SCMR 6 and Mehmood Ahmed and 2 others v. State 1995 SCMR 127 rel.

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

----Ss. 302, 114 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of the son of complainant---Motive behind the incident was that the deceased had developed illicit relationship with the wife of the son of the accused---Ocular account in the present case consisted of the statements of two witnesses---Record showed that accused was not named in the crime report rather the same was lodged against co-accused---Complainant, through supplementary statement, involved the accused on the basis of statement of witnesses recorded under S.161, Cr.P.C.---Facts remained that both the witnesses claimed to have seen the occurrence were also closely related to the complainant as well as the deceased---Record transpired that both the witnesses were resident of some other place, had visited the place of occurrence in connection with getting some labour work---One witness during trial had admitted that he was running a general store in his village including items of bakery---It did not appeal to reason that said witness would visit a place 500-kilometers away from his residence for getting labour, particularly when the deceased had allegedly got labour job against the wages of a meagre amount of Rs. 10,000---Similar was the position with other witness who during the course of trial had admitted that he was operated upon at his right kidney, however, it did not appeal to reason that said witness would go for search of labour work while covering such a huge distance in presence of his health condition---Both the said witnesses had claimed that the accused had made firing upon the deceased in their eye view---Despite the fact that they were cousins of the complainant but there was nothing on record that why they did not opt to report the matter to complainant although they had his mobile number---Said witnesses even did not disclose the details of the occurrence to other family members in which a young boy was done to death---Other witness had stated that soon after the occurrence they disappeared from the place of occurrence and rushed towards lorry adda where they stayed overnight; however, they did not inform the local police or even made call at Emergency-15---Such passive conduct subsequent to the occurrence by not informing the complainant, other family members or police when they were closely related to the deceased, had spoken volumes and led to the conclusion to believe that they were not present at the place of occurrence at the relevant time---No specific role was assigned to the accused rather he was not even named as accused, therefore, the same was of least importance in the present case---Nothing was recovered from the place where accused had thrown away his pistol, therefore, mere memo of pointation could not be given any legal credence---Moreover, on the same set of evidence three persons arrayed as accused in the crime report had been acquitted of charge and no appeal against acquittal was filed by the prosecution---Prosecution had failed to prove culpability of the accused in the present case through reliable trustworthy and confidence inspiring evidence---Appeal was allowed and accused was acquitted, in circumstances, by setting aside the sentence and conviction recorded by the Trial Court.

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

----Ss. 302, 114 & 34---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Delay in recording the statement of witnesses---Effect---Statements of witnesses under S.161, Cr.P.C. were recorded with a delay of two days without any plausible explanation, which had reduced their value.

Abdul Khaliq v. The State 1996 SCMR 1553; Sahib Gul v. Ziarat Gul and others 1976 SCMR 236 and Muhammad Iqbal v. The State 1984 SCMR 930 rel.

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

----Ss. 302, 114 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Motive not proved---Effect---Motive behind the incident was that the deceased had developed illicit relationship with the wife of the son of the accused---Record showed that the son of accused was married in the village of the complainant, who had suspicion that the deceased had developed illicit relationship with his wife---Such motive was not alleged against the accused, therefore, the same had not been proved by the prosecution.

(f) Criminal trial---

----Benefit of doubt---Principle---One circumstance, which created a reasonable dent in the veracity of the prosecution version, could be taken into consideration for giving its benefits to the accused as a matter of right rather as a matter of grace.

Tariq Pervez v. The State 1995 SCMR 1345; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Ahsan Bhoon and Imtiaz Noor Malik for Appellant.

Sultan Mehmood Khan, A.P.G. for the State.

Nemo for the Complainant.

Date of hearing: 17th December, 2018.

2019 M L D 908

[Lahore]

Before Jawad Hassan, J

Mst. SHAHLA FAIZ---Petitioner

Versus

VICE-CHANCELLOR, UNIVERSITY OF EDUCATION, LAHORE and others---Respondents

Writ Petition No. 106730 of 2017, heard on 21st February, 2019.

(a) Educational institution---

----Delay in submission of thesis---Scope---Petitioner was aggrieved of University authorities' order whereby University refused to receive her thesis on the ground of delay in its submission---Validity---Clause 4.2 of prospectus of the University revealed that minimum period for submission of thesis was two years to be counted from the start of classes while under clause 4.3 of the Prospectus, maximum period for submission of thesis was three years to be counted from the start of classes---Where there was contradiction amongst the clauses of the Prospectus the one which was beneficial had to be adopted in favour of the affected person---Petitioner had, therefore, submitted thesis within time as per clause 4.3 of the Prospectus, as such impugned order was not sustainable in the eyes of law---Constitutional petition was allowed, in circumstances and university was directed to receive/collect the thesis of petitioner.

(b) Interpretation of statutes---

----Contradiction amongst clauses---Where there was contradiction amongst clauses, the one which was beneficial should be adopted in favour of the affected person.

Raja Ahmad Nawaz and Mian Abid Hussain for Petitioner.

Muhammad Aamir Sohail, Rai Shahid Saleem Khan, Assistant Advocate-General on Court's call for Respondents.

Date of hearing: 21st February, 2019.

2019 M L D 932

[Lahore (Multan Bench)]

Before Ch. Mushtaq Ahmad and Sadiq Mahmud Khurram, JJ

MUHAMMAD HASHIM and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 47, 92 of 2015, Criminal Revision No.60 of 2015 and Murder Reference No.19 of 2015, decided on 14th February, 2019.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-Amd---Appreciation of evidence---Presence of eyewitnesses---Proof---Recovery proceedings---Benefit of doubt---Four accused persons were sent to face trial out of which two were acquitted of charge and two were convicted with death sentence to one accused and imprisonment for life to the second---Validity---Investigating officer did not take clothes of eyewitnesses, which were stained with blood, into possession---If clothes were sent to chemical examiner for examination and grouping with that of blood-stained clothes of deceased, same would have proved strongest corroboration to testimony of eyewitnesses---Deceased was real brother of complainant and other prosecution witnesses who neither identified dead body at time of post-mortem examination nor they were mentioned as present near dead body at the time of preparation of inquest report---Police did not associate any resident of locality in investigation for purpose of recovery---Recovery proceedings were conducted in violation of S.103, Cr.P.C. and same were hit by exclusionary rule of evidence and could not be considered--- High Court set aside conviction and sentence awarded to accused persons and acquitted them of charge---Appeal was allowed accordingly.

Zahir Yousaf and another v. The State and another 2017 SCMR 2002; Muhammad Rafiq v. State 2014 SCMR 1698; Nasrullah alias Nasro v. The State 2017 SCMR 724; Muhammad Ashraf v. State 2012 SCMR 419; Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Muhammad Hussain v. The State 2008 SCMR 345; Irfan Ali v. The State 2015 SCMR 840; Gulfam and another v. The State 2017 SCMR 1189; Muhammad Ismail and others v. The State 2017 SCMR 898; Muhammad Javed v. The State 2016 SCMR 2021; Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Akram v. The State 2009 SCMR 230 ref.

Malik Muhammad Saleem for Appellants.

Adnan Latif, Deputy District Public Prosecutor for the State.

Mehr Zameer Hussain Sandhal for the Complainant.

Date of hearing: 14th February, 2019.

2019 M L D 959

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

MUHAMMAD RAMZAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.6962-B of 2018, decided on 11th February, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code ( XLV of 1860 ), Ss. 302, 337-A(i), 496-A & 34---Qatl-i-amd, Shajjah-i-Khafifa, enticing or taking away or detaining with criminal intent a woman, common intention---Bail, grant of---Further inquiry---Rule of consistency---Two versions---Scope---Allegation against the petitioner as recorded in the cross-version was that he threw down the boy (deceased) while beating his mother along with other co-accused persons---Record revealed that after about a month of registration of FIR, mother of the deceased appeared before the Investigating Officer and got recorded her statement without explaining the cause of said delay---Though she attributed said delay to her stay at Darul Aman but such explanation was also bereft of clarification as, after more than ten days of alleged occurrence, in respect of getting herself lodged in the Darul Aman, she had recorded her statement under S.164, Cr.P.C. and even that delay had also not been explained---Record showed that complainant of FIR had also lodged a private complaint against four respondents including mother of the deceased---Trial Court would decide as to which of the two versions was the correct one---Mere involvement in a heinous offence was no ground for refusing bail to accused who otherwise became entitled to the concession of bail---Petitioner was behind the bars since his arrest, he was pervious non-convict, never involved in any case---Investigation was complete and petitioner was no more required for further investigation, therefore, his continuous incarceration would not serve any beneficial purpose---Case of the petitioner called for further inquiry as envisaged under S.497(2), Cr.P.C---Petitioner was admitted to bail, in circumstances.

Muhammad Ashraf Asim v. Sajjad Ahmad and others 2011 SCMR 1725 ref.

Mian Muhammad Shafi Mirali for Petitioner.

Bashir Ahmad Malik, Deputy District Public Prosecutor with Mushtaq, S.I. for the State.

Prince Rehan Iftikhar Sheikh for Sumera Bibi.

2019 M L D 968

[Lahore]

Before Mamoon Rashid Sheikh and Shahid Waheed, JJ

The LAND ACQUISITION COLLECTOR, PAK-ARAB REFINERY LIMITED and others---Appellants

Versus

KHAN (deceased) and others---Respondents

R.F.As Nos. 150 and 302 of 2011, decided on 26th March, 2019.

Land Acquisition Act (I of 1894)---

----Ss. 18, 19, 20 & 21---Acquisition of land---Award of Collector---Reference to Civil Court by Collector under S.18 of the Land Acquisition Act, 1894 ---Jurisdiction of Civil Court---Scope---Condition precedent for maintainability of reference before Civil Court---Scope---Question before High Court was whether any person seeking to object to an award made by Collector, could directly invoke jurisdiction of Civil Court under S.18 of the Land Acquisition Act, 1894 without making an application to the Collector---Held, that Land Acquisition Act, 1894 was a complete code by itself and was a special enactment dealing with a particular subject, and any relief claimed in respect of its subject-matter must be found within the four corners of said enactment as a general rule---Jurisdiction of Civil Court under Land Acquisition Act, 1894 was therefore a special one and was for determination of adequacy or otherwise of the amount of compensation paid under the award made by the Collector---Certain conditions under Ss. 18, 19, 20 & 21 of the Land Acquisition Act, 1894 had to be fulfilled before Collector was empowered to make reference under S.18 Land Acquisition Act, 1894 to the Civil Court---Such jurisdictional facts, and their compliance was a condition precedent to the exercise of the power of reference under S. 18 of Land Acquisition Act, 1894---Order made by Collector referring the matter to Civil Court, provided foundation of the jurisdiction of Civil Court to decide the objections referred to it and Civil Court was bound by said reference and could not widen the scope of its jurisdiction or decide matters which were not referred to it---High Court observed that it was not within domain of Civil Court to entertain any application under the Land Acquisition Act, 1894 pro intersse suo or in the nature thereof and that S.18(1) of the Land Acquisition Act, 1894 did not authorize or permit or provide for a person aggrieved, to make an application directly to the Civil Court.

Nusserwanjee Pestonjee and others v. Meer Mynoodeen Khan Wullud Meer Sudroodeen Khan Bahadoor (1855) 6 MIA 134 = VI Moore Ind. App. 134 = (1855) UK PC 15; Mansab Ali v. Amir and 30 others PLD 1971 SC 124; Rashid Ahmed v. The State PLD 1972 SC 271 and Government of West Pakistan (Now Government of N.W.F.P.) through Collector, Peshawar v. Arbab Haji Ahmed Ali Jan and others PLD 1981 SC 516 rel.

Mian Abdul Quddoos for Appellants (in R.F.A. No.150 of 2011).

Javed Gill for Respondents (in R.F.A. No.150 of 2011).

Javed Gill for Appellants (in R.F.A. No.302 of 2011).

Mian Abdul Quddoos for Respondents (in R.F.A. No.302 of 2011).

Date of hearing: 26th March, 2019.

2019 M L D 982

[Lahore]

Before Shehram Sarwar Ch. and Farooq Haider, JJ

MUHAMMAD IQBAL---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 481 of 2016 and Murder Reference No. 140 of 2016, heard on 5th December, 2018.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Delay of about three hours in lodging the FIR---Record showed that occurrence took place at 6.30 a.m. on 14.9.2012, but FIR had been recorded at 9.30 a.m.---No explanation for such delay had been given by the prosecution---Complainant tried to introduce dishonest improvement while stating in his examination-in-chief that he had already informed the police telephonically about the occurrence---Complainant was confronted with his statement, during cross-examination, it was not found therein---Such delay led to the view that same was an afterthought, and time had been consumed for procuring and engaging witnesses and concocting version for registration of the case---Such aspect had given fatal blow to the case of prosecution.

Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of father-in-law of the complainant---Record showed that complainant had stated that his statement was recorded for registration of FIR before the Investigating Officer after half an hour of the occurrence---Investigating Officer reached at the place of occurrence after half an hour---If Investigating Officer reached at the place of occurrence after half an hour and complainant got recorded his statement to him after half an hour of the occurrence then the occurrence had not taken place at 6.30 a.m. rather at 8.00 a.m. because the time of recording of statement of complainant at the bottom of complaint was mentioned as 8.30 a.m.---Occurrence in circumstances, had not taken place at 6.30 a.m. and prosecution could not prove the exact time of the occurrence---Ocular account was furnished by two witnesses including complainant---Said witnesses were not the residents of the house of occurrence and could not give any plausible reason about their presence at the place of occurrence---Said witnesses were residents of the same village and claimed that they were sleeping in the house of deceased but without furnishing any plausible cause for sleeping there---Presence of said witnesses at the place of occurrence seemed to be improbable and they were not only chance and casual witnesses rather interested and related also, thus, they could not be believed/relied---Fard bayan showed that complainant along with eye-witnesses were sleeping when at once accused came and made fire shot---When only one fire shot had been allegedly made by the accused, which had hit the deceased, and after hearing report of said fire shot, the complainant and eye-witnesses awoke, how it was possible for them to see that who had made said fire shot and where it had landed---Said factor clearly hit the claim of the complainant and eye-witnesses regarding seeing the episode---Complainant in his fard bayan had not recorded the nature of firearm weapon allegedly carried by accused and only firearm had been mentioned therein---Complainant had introduced dishonest improvement in that regard while appearing before the court and in his examination-in-chief had stated that accused was armed with .30-bore pistol---Complainant was duly confronted during cross examination where it was not so recorded---Same was the position regarding eye-witness---Factum of not deposing about kind of firearm (weapon) by said witnesses raised eyebrows regarding their presence at the place of occurrence and further introduction of dishonest improvement in that regard shattered value of their evidence---Conduct of said witnesses did not establish their presence at the place of occurrence and they were not reliable---Allegedly, accused made fire shot which hit deceased at his head---In the post-mortem report and statement of Medical Officer, said injury was carrying burning, blackening, greasing and collar of abrasion---Site plan with scale depicted that fire was made at deceased from a distance of sixteen feet---In such situation, ocular account had been negated by the medical evidence because if a fire was made from a distance of sixteen feet then no burning or blackening could occur---No weapon/ incriminating material could be recovered from accused inspite of his physical remand for a period of thirteen days---Record transpired that the investigation conducted in the case had also negated the version of complainant party and had signalled about non-involvement of accused in the alleged occurrence---Opinion of the police though was not binding upon the court yet in the peculiar facts and circumstances of the case, same had not been found to be biased---Circumstances established that prosecution had failed to prove its case against the accused---Accused was acquitted, in circumstances, by setting aside the conviction and sentence recorded by the Trial Court.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Ameer and another v. Riyat Khan and others 2016 SCMR 1233; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474; Muhammad Nadeem alias Banka v. The State 2011 SCMR 1517; Muhammad Akram v. The State 2010 PCr.LJ 1515; Ghulam Qasim v. The State 2007 YLR 1067; Muhammad Ali v. The State 2015 SCMR 137; Faiz Meeran v. Muhammad Khan and others 2016 SCMR 1456 and Sikandar Shah v. Raza Shah and another 2015 SCMR 10 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Motive not proved---Effect---Motive of the occurrence as mentioned in fard bayan that accused persons had got registered a case against nephew of the deceased and deceased was pursuing the same---Due to said grudge, accused had committed murder of deceased---Record showed that such person was not nephew of the deceased---If accused persons had got registered any case against the alleged nephew and nourished any grudge due to said case then he would have been targeted and murdered---Motive of the occurrence had not been proved by the prosecution, in circumstances.

Muhammad Adil Khan Defence Counsel at State expense for Appellant.

Rai Akhtar Hussain, Deputy Prosecutor General for the State.

Imtiaz Hussain Khan Baloch for the Complainant.

Date of hearing: 5th December, 2018.

2019 M L D 1002

[Lahore]

Before Shehram Sarwar Ch. and Farooq Haider, JJ

MUHAMMAD MUSHTAQ---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 584 and Murder Reference No. 155 of 2016, heard on 12th December, 2018.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder---Motive behind the occurrence was that wife of accused had filed a suit for dissolution of marriage and got divorce---Accused had suspicion that the deceased helped his wife in getting divorce---Ocular account was furnished by two witnesses including complainant, who were residents of a place situated at a distance of about 200-kilometers from the place of occurrence---Said witnesses who were related to deceased and inimical to the accused could not establish their presence at the place of occurrence by offering any plausible explanation---Non-proving of presence of said witnesses at the place of occurrence was fatal for the case of prosecution---Occurrence took place on 15.12.2009 at 9.15 a.m. whereas post-mortem examination was conducted after lapse of about twenty six hours---Said factor was sufficient to establish that no eye-witness including complainant was present at the place of occurrence rather it was an un-witnessed occurrence---Time had been consumed by the prosecution in engaging and procuring the witnesses and tailoring story for the case of prosecution---Distance between assailant and victim had been shown as six feet at the time of receipt of firearm shot by the deceased---No blackening on the injuries were found at the time of post-mortem examination---Medical evidence, in circumstances, had not supported ocular version---No time of occurrence had expressly been mentioned on the application for registration of the case---Investigating Officer had concluded that deceased was all alone at the time of occurrence---Said investigation was neither challenged in police hierarchy nor any complaint was filed in that regard---No one was produced by the prosecution to prove that he apprehended the accused at the time of incident---Safe transit of weapon of offence to the Forensic Science Laboratory could not be established, therefore, report of the Laboratory was of no avail---Pistol and empties remained at police station for a considerable period and dispatched with unexplained delay which raised doubt about its evidentiary value---Prosecution could not prove the motive of the incident---Prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed, in circumstances---Accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

Irshad Ahmad v. The State 2011 SCMR 1190; Muhammad Rafique v. The State 2014 SCMR 1698; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Arshad Khan v. The State 2017 SCMR 564; Shahbaz v. The State 2016 SCMR 1763; Imtiaz alias Taj v. The State and others 2018 SCMR 344 and Haroon Shafique v. The State and others 2018 SCMR 2118 rel.

(b) Criminal trial---

----Motive---Scope---Motive was double edged weapon and cut both ways---If substantial evidence had been disbelieved then motive would lose its evidentiary value.

Tariq v. The State 2017 SCMR 1672 rel.

Asif Javed Qureshi for Appellant.

Tariq Javed, D.P.P. for the State.

Date of hearing: 12th December, 2018.

2019 M L D 1013

[Lahore]

Before Mamoon Rashid Sheikh, J

Syed ATTA UL HASSAN---Petitioner

Versus

AHMAD NAWAZ and others---Respondents

Election Petition No.4 of 2018, decided on 15th April, 2019.

(a) Elections Act (XXXIII of 2017)---

----S. 144(4)---Civil Procedure Code (V of 1908), O. VI, R. 15---Election petition, verification of---Mandatory for the petitioner to verify the petition in terms of S. 144(4) of the Elections Act, 2017---Said verification had to be done in accordance with the procedure laid down in O. VI, R. 15, of the C.P.C., before an Oath Commissioner---In case the petition was not so verified it was deemed to be not maintainable and merited outright dismissal.

Lt.-Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana 2015 SCMR 1585 rel.

(b) Elections Act (XXXIII of 2017)---

----S. 144(4)---Civil Procedure Code (V of 1908), O. VI, R. 15---Election petition, verification of---Affidavit appended to the petition---Place and date of swearing of the affidavit on oath was not mentioned on the stamp endorsed thereon by the Oath Commissioner---Moreover, there was no statement as to who identified the petitioner to the Oath Commissioner---In absence of the said particulars, especially those of the identifier, the. verification of the affidavit could not be deemed to have been made in accordance with the law---Election petition was liable to be dismissed in circumstances.

Lt.-Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana 2015 SCMR 1585 rel.

(c) Elections Act (XXXIII of 2017)---

----Ss. 142, 143 & 144(2)(c)---Contents of election petition---Affidavit of service---Plea of petitioner that in absence of the affidavit of service, the postal receipts were sufficient to serve the purposes of S. 144(2)(c) of the Elections Act, 2017 ('the Act')---Held, that under S. 145 of the Act if any of the provisions of Ss. 142 to 144 of the Act had not been complied with by a petitioner, the petition was not maintainable---Filing of the affidavit of service was one of the mandatory (requirements) under S.144(2)(c) of the Act---Petitioner has not filed the said affidavit, therefore, his petition was bad in law and liable to be dismissed.

Shahzad Sarwar for Petitioner.

Nemo for Respondents.

2019 M L D 1041

[Lahore]

Before Farooq Haider, J

Mst. RASOOLAN BIBI---Petitioner

Versus

MUHAMMAD ASLAM and others---Respondents

Writ Petition No. 4554 of 2019, decided on 31st January, 2019.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus, petition for---Custody of minor---Right of hizanat of father after death of mother---Scope---Petitioner claimed recovery and custody of her maternal granddaughter---Plea of petitioner was that minor used to live with her after the death of minor's mother---Respondent (father) had forcibly snatched the minor from the custody of petitioner (maternal grandmother)---Petitioner did not report the incident of snatching the minor to the police or concerned authority---Ex-facie, it could not be said that minor had been snatched from the petitioner---Minor appeared to be very much attached to her father, who had the right of hizanat after the death of mother---Custody of minor with her father was not found to be improper/unlawful or illegal---Either party could move to the Guardian Court for settlement of custody of minor on regular basis---Habeas corpus petition was disposed of, accordingly.

Nasir Raza v. Additional District Judge, Jhelum and another 2018 SCMR 590 ref.

Mian Ghulam Rasool for Petitioner.

Malik Javed Maqbool, District Public Prosecutor.

2019 M L D 1061

[Lahore]

Before Amin-ud-Din Khan, J

ALAM SHER and others---Petitioners

Versus

AHMED (since died) through legal heirs and others---Respondents

Civil Revision No. 2805 of 2014, decided on 11th January, 2019.

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

----S. 42---Suit for declaration---Limitation---Inheritance---Custom (riwaj)---Contention of plaintiffs was that they were entitled for the inheritance of deceased and widow being limited owner, was not entitled to transfer the suit property through sale or gift---Suit was dismissed concurrently being time-barred---Validity---Mutation in favour of widow did not suggest that same was attested on the basis of custom prevalent in the family of propositus of the parties---Property of a propositus did devolve either on the basis of Sharia or custom (riwaj) prevailing in the family upon his legal heirs---If mutation was to be attested on the basis of custom then reference of custom should be made in the order of Revenue Officer on the basis of Shart Wajib ul Arz---Nothing was on record that custom prevailed in the family of propositus for distribution of inheritance of immovable property---Findings of Courts below that widow was limited owner were result of mis-reading and non-reading of evidence available on record---Pleadings could not be admitted unless it was proved through cogent and confidence inspiring oral as well as documentary evidence---Present suit had been filed after 64 years from the attestation of impugned mutation---Suit was time barred, in circumstances---Revision was dismissed accordingly.

Muhammad Farooq and 5 others v. Muhammad Haneef and others PLJ 2011 SC 44; Muhammad Din through L.Rs. and 16 others v. Zulfiqar and 2 others 2008 SCMR 1054; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217; Hashmat Ali and another v. Mst. Jantan and others 1993 SCMR 950; Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869; Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447; Mst. Grana through Legal Heirs and others v. Sahib Kamal Bibi and others PLD 2014 SC 167; Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501; Bashir Ahmed v. Abdul Aziz and others 2009 SCMR 1014; Atta Muhammad v. Maula Bakush and others 2007 SCMR 1446; Mst. Shahi Lal and 5 others v. Khurshid Ali Khan and 13 others 2015 YLR 2443; Muhammad and others v. Mst. Khatoon and others 2013 YLR 2036; Shakil Haider and others v. M. Tufail and others 2013 CLC 241 and Muhammad Asghar and 3 others v. Rehmat Ullah and 2 others 2012 MLD 1791 ref.

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

----S. 115---Suo motu revisional powers of High Court---Scope---High Court had vast powers to correct the wrong findings of Courts below when said Court had exercised jurisdiction illegally and committed material irregularity.

(c) Pleadings---

----Pleadings could not be admitted unless same was proved through cogent and confidence inspiring oral as well as documentary evidence.

Muhammad Tariq Bashir Awan for Petitioners.

Malik Sahib Khan Awan, Mian Hamid Yasin and Sajjad Ahmad for Respondents.

2019 M L D 1087

[Lahore]

Before Muzamil Akhtar Shabir, J

MUHAMMAD IQBAL SHAH---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 177395 of 2018, decided on 13th November, 2018.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Policy decision---Petitioner was aggrieved of restrictions imposed by Federal Government on pilgrimage to India---Validity---Restrictions that had been placed upon travel of Zaireen of Pakistan under official arrangements to accommodate maximum number of Zaireen in limited permissible number fixed for visiting under government supervision based on policy decision of Government---High Court in its Constitutional jurisdiction was not competent to revisit policy of Government or set aside same unless some illegality, arbitrariness or established mala fide or violation of any law was pointed out which was not forthcoming---Policy fixing number of Zaireen had been framed by Government of Pakistan in consultation with government of India and power to issue directions to foreign government was not within jurisdiction---High Court declined to interfere in policy decision of government---Petition was dismissed in circumstances.

Ministry of Inter Provincial Coordination v. Major (R) Ahmad Nadeem Sadal and others 2014 CLC 600; Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shopo (Pvt.) Ltd. and others PLD 2014 SC 1 and National Engineering Services Pakistan (NESPAK) (Pvt.) Limited and others v. Kamil Khan Mumtaz and others 2018 SCMR 211 rel.

Manzar Abbas Khokhar for Petitioner.

2019 M L D 1128

[Lahore]

Before Muzamil Akhtar Shabir, J

HANZLA KHALID and others---Petitioners

Versus

KHALID PARVAIZ and others---Respondents

Writ Petition No.10200 of 2019, decided on 21st February, 2019.

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

----S. 5, Sched.---Suit for maintenance for miners---Source of income of father, proof of---Courts below partially decreed the suit for maintenance of petitioners/minors---Petitioners sought enhancement of maintenance allowance on the ground that father of minors was working abroad and was earning substantial amount---Contention of father was that he was settled back in Pakistan and was an agriculturist by profession---Validity---Petitioners were required to prove their stance and negate the stance of father by producing some evidence on the record but the same was not done---Appellate Court was justified in partially decreeing the claim of petitioners in absence of any documentary evidence---Constitutional petition was dismissed in limine.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Findings of fact---Scope---High Court while exercising constitutional jurisdiction does not ordinarily reappraise the evidence produced before the courts below to substitute findings of facts recorded by them, nor gives its opinion regarding quality or adequacy of the evidence unless any misreading, non-reading of record or any illegality was pointed out.

2019 M L D 1145

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD FARHAN---Petitioner

Versus

Mst. SAMINA SADDIQUE and others---Respondents

Writ Petition No.31094 of 2014, decided on 5th January, 2015.\

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Civil Procedure Code (V of 1908), O. XLI, R. 31---Suit for recovery of dowry articles---Poor financial status of parents of bride---Effect---List of dowry articles was not exhibited during evidence---Petitioner/husband contended that two Courts below should have decreed the gold ornaments receiving of which respondent had herself admitted and submitted that Appellate Court had not complied with the provisions of O.XLI, Rule 31, C.P.C. by not giving issue-wise findings---Validity---Record revealed that the petitioner in his written statement as well as in exhibited affidavit evasively denied the possession of the dowry articles and nowhere stated that due to financial constraints parents of the wife were not in a position to give her dowry articles---List of dowry articles was though not exhibited during the evidence but the same could not be made a basis to refuse her claim as the Family Courts Act, 1964 was a special enactment and the provisions of C.P.C. were not stricto sensu applicable to such matters---If the Appellate Court had decided to affirm the findings of the Trial Court, it would be sufficient compliance of the provisions of law if the evidence was essentially discussed and the findings were recorded---Mere non-adherence to the provisions of O. XLI, R. 31, C.P.C. did not make the judgment nullity in the eye of law---Petitioner in his written statement had not prayed for the recovery of the gold ornaments---Gift given to a bride at the time of marriage by the bridegroom became exclusive property of the bride and was not returnable---Custom was that parents do give dowry articles to their daughters merely as a token of love and symbol of honour---Petitioner had failed to bring on record anything from which it could be inferred that something contrary to the settled norms happened in respondent's case---Two Courts below had already decreed the matter, keeping in view the financial status of respondent's parents, the dowry articles of ordinary nature, which were almost given to a bride even hailing from a family having average financial background--Alternate price of dowry articles had also been very cautiously assessed by the Family Court and affirmed by the Appellate Court---High Court in the Constitutional jurisdiction declined to interfere with the concurrent findings of facts recorded by the two Courts below---No infirmity or illegality having been noticed in the impugned judgment and decrees passed by the two Courts below, constitutional petition was dismissed accordingly.

Mst. Roshi and others v. Mst. Fateh and others 1982 SCMR 542 and Muhammad Habib v. Mst. Safia Bibi and others 2008 SCMR 1584 ref.

Shehzad Ali Dhillon for Petitioner.

2019 M L D 1157

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

NASIM BIBI---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 6278-B of 2012, decided on 25th May, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 411, 460 & 34---Qatl-i-amd, dishonestly recieving stolen property, person jointly concerned in lurking house-trespass or house-breaking by night and common intention---Bail, grant of---Case of two prosecution versions---Scope---Prosecution case was that two unknown accused persons entered the house of deceased and in addition to stealing made fire shot which landed on the chest of deceased, who succumbed to the injury---Complainant had cited the petitioner as a witness of ocular account and thereafter while taking a somersault involved the star witness of the occurrence as an accused---Prosecution case became case of two versions and the presence of complainant at the place of occurrence, prima facie became doubtful---Material collected by Investigating officer with regard to telephonic data and recovery of intoxicant tablets from petitioner was not sufficient to disentitle petitioner from post-arrest bail---Petitioner being a woman as such her case was covered within the first proviso of S.497, Cr.P.C.---Petitioner was behind bars since the date of her arrest and investigation being complete, her person was not required by the police for further investigation---Petitioner was admitted to post arrest bail, in circumstances.

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

----S. 497---Bail---Accused a female having suckling baby---Suckling baby was not to be made to suffer in jail for the act allegedly committed by mother---Rights of a suckling baby were of paramount importance and significance in Islam.

Zarina v. The State 1991 MLD 518; Sughran Bibi v. The State 1991 PCr.LJ Note 238; Mst. Nasreen v. State 1998 MLD 1350; Mst. Ansar Jan v. State and another 2000 PCr.LJ 586 and Mst. Nusrat v. The State 1996 SCMR 973 ref.

Tariq Javed Chaudhry for Petitioner.

Humayoun Aslam, Deputy Prosecutor General for the State.

Sardar Liaquat Ali Dogar for the Complainant.

2019 M L D 1168

[Lahore]

Before Muhammad Waheed Khan, J

MUHAMMAD RAMZAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 236595/B of 2018, decided on 17th January, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.376---Rape---Bail, grant of---Negative DNA report---Further inquiry---Allegation against accused was that he along with co-accused persons abducted the daughter of complainant on gun point with intent to commit zina-bil-jabr and subsequently subjected her to rape---Complainant leveled allegation of rape against four unknown persons while lodging the crime report and the alleged victim, during medical examination, leveled allegation of rape against three unknown persons---Doctor, who conducted medical examination of victim observed that hymen was old ruptured with healed margins and no tear, laceration, bruise, abrasion and swelling was found at her private parts---DNA report qua accused was negative and the medico legal report issued by the doctor did not connect accused in any manner with the alleged crime---Report under S.173, Cr.P.C. had already been sent before the Trial Court and there was no progress in trial---Further incarceration of accused would not serve any beneficial purpose for the prosecution---Case of accused called for further probe into his guilt---Bail petition was allowed and the accused was admitted to post-arrest bail, in circumstances.

Abdul Ghaffar v. The State and others 2016 SCMR 1523 fol.

Rai Muhammad Hussain Kharral for Petitioner.

Shabbir Ahmad, D.P.G. for the State.

2019 M L D 1197

[Lahore (Bahawalpur Bench)]

Before Farooq Haider, J

MUHAMMAD ASIF---Petitioners

Versus

The STATE and others---Respondents

Criminal Appeal No. 207 of 2014, heard on 5th March, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Allegation against accused was that he, along with co-accused, committed murder of the brother of complainant---Motive behind the occurrence was that co-accused abducted the wife of deceased, who after getting the decree for dissolution of marriage contracted marriage with her against which some suits were filed---Ocular account had been furnished by two witnesses including complainant---Record showed that complainant was not resident of place of occurrence rather his house was at a distance of one kilometer---Usual routine of complainant was that he remained engaged with his work at the time when alleged occurrence took place---Complainant could not offer any plausible reason for his alleged visit to the house of his sister (place of occurrence) on the day of incident and even his sister did not come forward during investigation or trial of the case to verify visit of complainant in her house---Complainant had no meeting with the accused persons prior to occurrence---Complainant had claimed that his clothes were smeared with blood when he shifted the victim in injured condition to the hospital but said clothes were not produced by him during investigation; however, Investigating Officer had clearly negated that stance and stated that clothes of complainant and witnesses were not stained with blood when he met them---Circumstances suggested that complainant was related, interested and chance witness---Other witness was resident of house adjacent to the place of occurrence but time of occurrence was his job time and he was working as a motorcycle mechanic during the day of occurrence and running a shop, which was not near the place of occurrence; at the time of occurrence, he was supposed to be present at his job---Said witness could not offer any reason for his presence on the day and time of the occurrence---Clothes of said witness were not stained with blood of deceased and if those were stained with blood, the same had not been produced before the Investigating Officer---Said witness was also inimical witness because co-accused got registered case against him prior to the occurrence---Said witness had categorically stated that complainant had started confrontation with the accused on the day of occurrence---Record transpired that joint role of catching hold of deceased was given to co-accused and present accused-appellant but co-accused had been acquitted then accused-appellant also deserved the same relief particularly when there was no independent corroboratory evidence against him---No recovery whatsoever had been effected from the present accused---Motive was not attributed to the accused---Circumstances established that prosecution had not been able to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Irfan Ali v. The State 2015 SCMR 840; Zafar v. The State and others 2018 SCMR 326; Imtiaz alias Taj v. The State and others 2018 SCMR 344 and Haroon Shafique v. The State and others 2018 SCMR 2118 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Chance witness---Scope---Chance witness could not be relied upon without strong corroboration from unimpeachable, independent and strong evidence.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Ameer and another v. Riyat Khan and others 2016 SCMR 1233; Arshad Khan v. The State 2017 SCMR 564 and Nazir Ahmad v. The State 2018 SCMR 787 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---FIR was lodged after deliberation and consultation---Effect---Record showed that occurrence took place at 4.30 p.m on 25.7.2010 and FIR was recorded on the same day at 5.45 p.m., but record showed that post-mortem examination was conducted at 11.00 a.m. on 26.7.2010---Said circumstances indicated that post-mortem examination was conducted with the delay of about 16½ hours---Medical Officer had categorically stated that no delay was caused by him in conducting post-mortem examination and the delay was only due to the reason of police papers---Said aspect of the case established that case was not registered promptly and it was registered after consultation, deliberation and concoction---None of the cited witnesses were present at the time and place of occurrence---Complainant was not aware about the name of the accused persons and same were told to him by his brother-in-law in the hospital---Such FIR could not be considered having any substantial value nor its registration could provide much help to the case of prosecution.

Shahbaz v. The State 2016 SCMR 1763 and Haroon Shafique v. The State and others 2018 SCMR 2118 rel.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence was not corroborating piece of evidence because injury could not speak about its author but could only confirm its nature and kind of weapon used.

Israr Ali v. The State 2007 SCMR 525 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

Syed Zeeshan Haider along with Appellant.

Malik Mudassar Ali, Deputy Prosecutor General for the State.

2019 M L D 1210

[Lahore]

Before Muhammad Farrukh Irfan Khan, J

ADVOCATE MIAN ASIF MEHMOOD---Petitioner

Versus

FEDERATION OF PAKISTAN through Principal Secretary and 2 others---Respondents

Writ Petition No.8796 of 2019, decided on 14th February, 2019.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Policy decision---Scope---Policy decision exclusively falls within domain of Executive and is not open for any judicial review in absence of any illegality, arbitrariness or established mala fide.

Tata Cellular v. Union of India (36(1994)6 SCC 651 rel.

(b) Hajj Policy and Plan, 2019---

----Constitution of Pakistan, Art. 199---Constitutional petition---Mala fide---Factual controversy---Petitioner assailed Hajj Policy Plan on grounds that government had unnecessarily increased cost of Hajj and withdrew subsidy given by former governments---Validity---Allegation of mala fide was a question of fact requiring factual inquiry---Judicial review of an administrative order/action in absence of un-rebuttable material on record regarding mala fide could not be intervened by court as order of Executive authority which otherwise was free from any illegality or jurisdictional flaw---High Court declined to interfere in matter as there was no illegality and established mala fide on part of Executive---Constitutional petition was dismissed in circumstances.

R. v. Deptt. of Constitutional Affairs 2006 All ER (D) 201; Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151 and Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. PLD 2014 SC 1 rel.

2019 M L D 1255

[Lahore]

Before Asim Hafeez, J

SAQIB SUBHANI BHATTI and another---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and 6 others---Respondents

Writ Petition No.16810 of 2019, decided on 21st March, 2019.

Punjab Local Government Act (XVIII of 2013)---

----Ss. 38 & 46---Election for the seat of Chairman/Vice-Chairman of Union Council---Election petition---Additional evidence, production of---Interim/interlocutory order---Scope---Application for production of additional evidence was moved but same was dismissed by the Election Tribunal---Validity---Interlocutory/interim order was not appealable---Constitutional jurisdiction could be invoked in exceptional cases where orders passed by the Election Tribunal were illegal---Election Tribunal had jurisdiction to decide qua the relevancy of the witness and might summon any witness it deemed essential---Election Tribunal had exercised discretion properly in the present matter---High Court in constitutional jurisdiction could not interfere unless exercise of such discretion suffered from any illegality, error of law or if not set aside then it would leave a party without any remedy---Discretion exercised by the Election Tribunal did not suffer from any illegality or misapplication of law---Petitioner might question the legality of interlocutory/interim order by filing an appeal against final order---No reason existed to exercise constitutional jurisdiction to set aside the interlocutory order passed by the Election Tribunal---Constitutional petition was dismissed in limine, in circumstances.

Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others 2015 SCMR 233 rel.

2019 M L D 1286

[Lahore]

Before Masud Abid Naqvi, J

NOOR MUHAMMAD and others---Petitioners

Versus

Mst. RABIA BIBI and others---Respondents

Civil Revision No. 137 of 2014, decided on 28th March, 2019.

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

----S. 12---Suit for specific performance---Oral agreement to sell---Proof---Requirements---Suit filed on the basis of oral agreement to sell was dismissed concurrently---Validity---Plaintiffs had not mentioned in their plaint the time, place, names of witnesses and period for completion of oral agreement---Plaintiffs even failed to depose the facts necessary for proving the oral sale agreement and payment of sale consideration as such requirements were sine qua non for proving oral sale agreement---Oral agreement to sell could only be proved through evidence of unimpeachable character---Statements of witnesses produced by the plaintiffs were contradictory to each other---Facts having been admitted in the pleadings did not require any further proof---Revision was dismissed in circumstances.

Nazir Ahmad and another v. Yousaf PLD 2011 SC 161 and Muhammad Nawaz through L.R.s v. Haji Muhammad Baran Khan through L.R.s and others 2013 SCMR 1300 rel.

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

----S. 8---Suit for possession of immovable property on behalf of one of the co-sharers---Maintainability---Principles.

In an undivided immovable property one of the co-sharers can maintain a suit for ejectment of a possessor in respect of the entire property and in such a case the following may ensue:

Firstly, the said suit of the co-sharer cannot be considered as evidence of his-denial of the title of the other co-sharers;

Secondly, that the suit brought by said co-sharer would be deemed to be for the benefit of the other co-sharers; and

Thirdly, when the said co-sharer acquired possession in consequence of the said proceedings, he would be in possession of the entire property, on behalf of all co-sharers and his said possession cannot be deemed as adverse to the other co-sharers.

Taj Wali Shah v. Bakhti Zaman 2019 SCMR 84 rel.

(c) Maxim---

----"Secundum allegata et probata"---Connotation---Such rule not only excludes the elements of surprise but also precludes the party from proving what has not been alleged or pleaded.

Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Hail Muhammad PLD 1976 SC 469; Binyameen and 3 others v. Choudhary Hakim and another 1996 SCMR 336 and Major(Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562 rel.

Sheikh Naveed Shahryar, Bashir Ahmad Mirza, Ms. Humaira Bashir, Ch. Ghulam Rasool Tarar and Ch. Tariq Bashir Tarar, for the Petitioners.

2019 M L D 1313

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

MUSHTAQ AHMED---Petitioner

Versus

Sardar AFTAB AKBAR KHAN and others---Respondents

Election Petition No. 2 of 2018, heard on 8th February, 2019.

Elections Act (XXXIII of 2017)---

----Ss. 139, 142, 143, 144 & 148---Elections Rules, 2017, Rr. 139 & 140---Civil Procedure Code (V of 1908), O. VII, R. 11---Rejection of election petition---Non-compliance of mandatory procedure---Petitioner assailed election of returned candidate on allegations of corruption and corrupt practices---Returned candidate sought rejection of petition on grounds that mandatory requirement of security for cost of petition was not deposited in treasury---Validity---Election Tribunal had to proceed with election petition in accordance with procedure as nearly as possible to Code of Civil Procedure, 1908 applicable to trials of suits unless Elections Act, 2017 or Elections Rules, 2017 prescribed otherwise---Law placed no embargo or restriction on powers of Tribunal to reject election petition at any stage if same suffered with material legal flaws---Mandate of law was to nip evil in the bud and Code of Civil Procedure, 1908 bestowed upon to reject plaint summarily in terms of O. VII, R. 11, C.P.C. if same suffered with flaws mentioned in that provision---Election Tribunal could proceed on same parameters and reject election petition at any stage---Election Tribunal was even vested with power to adopt any other procedure for expeditious disposal depending upon circumstances of case---Election petition lacked necessary verification and a duty was cast upon petitioner under S. 114(1)(b) of Elections Act, 2017 to narrate full particulars of any corrupt and illegal practices or other illegal acts alleged to have been committed including names of parties who were alleged to have committed such corrupt or illegal practice or illegal acts and date and place of commission of such practice or act---Election Tribunal declined to interfere in the matter as such aspect was lacking in the petition---Election petition was rejected in circumstances.

Lt. Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585; National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited 2016 SCMR 550; Suo Motu Case No. 13 of 2009; PLD 2011 SC 619; Civil Appeals Nos.2296 to 2412 of 2001 Federation of Pakistan through Secretary, Ministry of Finance and others versus Haji Muhammad Sadiq and others PLD 2007 SC 133 and Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305 rel.

Sardar Abdul Razaiq Khan for Petitioner.

Muhammad Taimoor Malik and Muhammad Wajid Hussain Mughal for No.1.

2019 M L D 1347

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

MUHAMMAD UNEEB AHMED---Petitioner

Versus

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

Writ Petition No.1286 of 2016 with other connected Petitions, decided on 13th March, 2019.

(a) Pakistan Engineering Council Act (V of 1976)---

----Ss. 9(1) & 25-A---Constitution of Pakistan, Arts. 25 & 199---Equality before law---Principle---Petitioners were holders of Diploma in Associate Engineer (DAE) and sought direction to Pakistan Engineering Council to grant admission in BSc. Engineering on open merit---Pakistan Engineering Council stated that petitioners were not qualified to seek admission on open merit as they fell into 2% reserved seats category---Discrimination---Validity---Provisions of S.25-A of Pakistan Engineering Council Act, 1976 did not show that governing body was authorized to restrict number of seats of diploma holders of Associate Engineering for purposes of admission in relevant engineering programs offered by universities/institutes on open merit---Power of governing body had been regulated through a statutory provision leaving no scope of unfettered and arbitrary powers to make regulations---Fixation of maximum 2% seats for DAE was discriminatory in nature while jeopardizing rights of petitioners---Principle on which doctrine of equality was founded was that persons in similar circumstances were to be governed by same laws---Assumption that circumstances were similar for whole society held good only in case of laws which operate equally on all persons in realm and such laws were founded by experience to be wholly inadequate to cover all activity of society---Established practice was to supplement body of general laws with special laws---Fixation of maximum 2% seats for candidates who had passed examination of Diploma of Associate Engineer was declared ultra vires the Constitution---High Court declared letter issued by governing body of Pakistan Engineering Council with regards to fixation of reserved seats for DAE as illegal and without lawful authority---Constitutional petition was allowed in circumstances.

Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another PLD 1990 SC 295; Khawaja Ahmad Hassaan v. Government of Punjab and others PLD 2004 SC 694; Arif-ur-Rehman v. Government of N.-W.F.P. through Secretary Education, N.-W.F.P. and others 2005 SCMR 340; Miss Shazia Batool v. Government of Balochistan and others 2007 SCMR 410; United Bank Limited v. Messrs Azmat Textile Mills Limited 2002 CLD 542; Muhammad Younus Shaikh v. Federation of Pakistan through Secretary Revenue Division, Central Board of Revenue, Islamabad and 3 others 2006 PTD 1036; Dr. Abdul Rasheed and another v. Government of Balochistan, Health Department through Secretary and 51 others PLD 2014 Bal. 186; Muhammad Ikram v. Principal and Chairman Admission Committee, Sukkur and 2 others 2014 MLD 1; Miss Asma Javaid and another v. Government of Punjab through Secretary, Health Department and 2 others 2015 CLC 907; Government of the Punjab, Secretary Home Department through Deputy Secretary (Police) Interior Department and others v. Qanoot Fatima and others 2018 PLC (C.S.) 22; P. Lakshmipathi v. College of Engineering 1982 AIR (A.P.) 424 = 1982 (2) An. WR 276 = 1982 (2) APLJ 37; Miss Neelam Sharma v. Rajasthan Public Service Commission, (Rajasthan) 2005 (4) S.C.T. 304 = 2005 LIC 2736 = 2006(2) SLR 166 = 2005(4) RLW 2736 = 2005(3) Rajasthan L R 203 = 2005(3) W.L.C. 679 = 2005(2) DNJ 910; Independent Newspapers Corporation (Pvt.) Ltd and others v. Federation of Pakistan and others PLD 2017 Lahore 289 and Samee Ullah and others v. Govt. of Punjab and others W.P. No.2500 of 2015. ref.

(b) Interpretation of statutes---

----Rules and regulations---Applicability---Scope---Rules/Regulations can neither go beyond scope of parent statute nor can they, by themselves, enlarge scope of statutory provisions---Rules/Regulations cannot militate against provisions under which they were made---Rule-making power is an incidental power that must follow and not run parallel to parent statute---Only requirement of law in such situation is to insist that subordinate body charged with duty of making rules or regulations must strictly confine itself within sphere of its authority for exercise of its subordinate legislative power and in each case it is the duty of courts in appropriate proceedings to be satisfied that rules/regulations so made are (a) by authority mentioned in Act and (b) within scope of power delegated therein---Rule making body cannot frame rules/regulations in conflict with substantive provisions of law or statute under which rules/regulations are framed---Courts of law as a general rule, do not give effect to rules/regulations etc., unless all conditions precedent to validity of rules/regulations are fulfilled.

Suo Motu Case No. 13 of 2009 (PLD 2011 Supreme Court 619; Suo Motu Case No.11 of 2011 (PLD 2014 Supreme Court 389), Abdul Farid v. N.E.D. University of Engineering and Technology, Karachi and another 2001 CLC 347 and Malik Naz v. University of Peshawar through Registrar, Peshawar and 3 others 2003 PLC (C.S.) 180 rel.

(c) Constitution of Pakistan---

----Art. 25---Reasonable classification, principle of---Intelligible differentia---Classification must be reasonable and must have nexus with objects sought to be achieved by such classification---What needs to be seen is whether classification assailed before the Court can be termed reasonable or not---Provisions of Art. 25 of Constitution apart from stipulating equality and equal protection of law to all citizens, expressly prohibits discrimination and provides that State may make special provisions for protection of women and children---'Valid Classification Test' of any enactment is that regulation or rule must not be arbitrary in nature and is founded on intelligible differentia.

Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lah. 343 and I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 rel.

Aamir Majeed Rana, Khalid Masood Butt, Rafae Saigal, Qasim Tarar, Barrister Hamid Azeem Leghari and Suleman Jehangir for Petitioner.

Hina Hafeez Ullah, Assistant Attorney General, Ch. Ibrahim, Mian Jaffer Hussain, Mian Waseem, Barrister Lehrasib Hayat Dahar and Malik Abdul Munir for Respondents.

2019 M L D 1390

[Lahore (Bahawalpur Bench)]

Before Qazi Muhammad Amin Ahmed and Ch. Abdul Aziz, JJ

SHAMEER AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 365 and Murder Reference No.50 of 2013/BWP, heard on 18th September, 2018.

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

----Ss.302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Promptly lodged FIR---Occurrence took place on 11.07.2009 at about Maghrab prayer in an area situated at a distance of about 2-kilometers from Police Station---Occurrence was reported by complainant to the police official who arrived at the crime scene at about 08:45 p.m.---Record showed that the defence had not brought forward any material which might have casted even an iota of doubt regarding the claim of prosecution about the case having been registered at the time mentioned in the crime report---Such prompt reporting went long way in excluding the hypotheses of false implication, fabrication of facts etc.---Promptitude in lodging FIR was a step forward in establishing the presence of complainant and the witnesses on the spot at the time of occurrence.

Muhammad Raza alias Gulai v. The State 1997 SCMR 1420 rel.

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

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Sentence, reduction in---Accused was charged for committing murder of son of complainant by firing---Motive behind the occurrence was that the wife of accused after getting divorce from him contracted marriage with the deceased, whereupon accused and his brothers developed grudge and committed the offence---Prosecution in order to prove its case against the accused and co-accused produced ten witnesses including two as eye-witnesses of the occurrence---Record showed that the narrators of ocular account were none other than the inmates of the house, where the occurrence took place---Nothing was brought on record by defence that the witnesses were not residents of the same house---Complainant and eyewitness were the most natural witnesses of the occurrence---Ocular account showed that accused was overpowered and nabbed by the witnesses immediately after the incident at the crime scene---Accused was also disarmed by the witnesses and the weapon of offence was snatched from him---Such stance of the eye-witnesses stood corroborated from the investigation---Such factor provided strength to the case of prosecution and proved the presence of eye-witnesses at the spot---Testimony of two eye-witnesses revealed that accused had caused all the firearm injuries to the deceased---Deceased having suffered three firearm entry wounds witnesses opted to implicate only single accused---Witnesses remained stuck to their stance during their court deposition and successfully provided all the features of occurrence including its time, the manner of appellant's ingress in the house, the mode of occurrence and the way he was apprehended at the spot---Detail of post-occurrence events provided by the eye-witnesses like the arrival of police, the time of recording of statements, shifting of dead body to the hospital etc. were impressive---Both the eye-witnesses stood firm by budging not an inch during cross-examination and gave no leverage or concession to defence---Medical evidence was in consonance with the case of prosecution as emanating from the ocular account---Site-plan was never regarded as a substantive piece of evidence and could only be used to discredit a witness if he was duly confronted with it---Admittedly, during cross-examination, the two eye-witnesses were never confronted with the contents of site-plan, hence, no inference adverse to the case of prosecution could be drawn---Prosecution had successfully proved its case against the appellant on the basis of confidence inspiring medical evidence which is found to be in line with medical record---Two eye-witnesses had no animus against the accused so as to substitute him with the actual culprit---Apprehension of accused from the spot was factor, from which conviction could be maintained---Motive having not been proved, death sentence of accused was converted into imprisonment of life---Appeal was dismissed with the said modification.

Sajid v. The State 2007 SCMR 1014; Zulfiqar Ahmad and another v. The State 2011 SCMR 492 and Muhammad Iqbal and others v. Muhammad Akram and another 1996 SCMR 908 rel.

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

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Motive was not proved---Effect---Motive of the occurrence was that the wife of accused after getting divorce from him contracted marriage with the deceased, whereupon accused and his brothers had developed grudge and committed the offence---Record showed that the motive canvassed by the prosecution, from face of it, appeared to be far-fetched---Ex-wife of accused had entered into matrimonial contract with deceased two years before the occurrence---Admittedly, during that period, no untoward incidence ever took place between both sides---Immediate cause behind the occurrence was shrouded in mystery and as such the motive put forth by the prosecution remained unproved---Failure to prove the motive itself warranted the court to have resorted to the alternate sentence---Death sentence of accused was converted into imprisonment for life, in circumstances---Appeal was dismissed with the said modification.

Amjad Shah v. The State PLD 2017 SC 152; Hasil Khan v. The State 2012 SCMR 1936 and Zeeshan Afzal alias Shani v. The State and another 2013 SCMR 1602 rel.

Rana Rizwan Ahmed for Appellant.

Muhammad Afzal Chaudhry for the Complainant.

Asghar Ali Gill, Deputy Prosecutor General for the State.

2019 M L D 1408

[Lahore]

Before Muzamil Akhtar Shabir, J

Syed QUTAB ALI SHAH---Petitioner

Versus

Mst. SONIA and 4 others---Respondents

Writ Petition No. 256731 of 2018, decided on 7th February, 2019.

(a) Elections Act (XXXIII of 2017)---

----S.95---Consolidation of election results---Recount of votes---Scope---Petitioner secured 53,105 votes while respondent secured 53,145 votes out of total 1,28,140 polled votes and there was a difference of only 40 votes between the candidates, whereas 4,555 votes were rejected and excluded from polling---Petitioner filed application for recounting of votes which was dismissed by Returning Officer whereas the Supreme Court directed Returning Officer to conduct the recount of total votes---Returning Officer in compliance of Supreme Court order proceeded with recount of votes of 188 polling stations out of total 209 polling stations and did not count the votes of remaining 21 polling stations on the ground that previously the said votes had been counted as a result of recounting conducted under S.95(5), Elections Act, 2017 and submitted his report to Election Commission of Pakistan---Election Commission, on objections filed by petitioner, held that directions of Supreme Court were being complied with---High Court directed the Returning Officer and Election Commission of Pakistan to ensure compliance of the order passed by the Supreme Court in letter and spirit.

(b) Constitution of Pakistan---

----Art. 189---Decision of Supreme Court binding on other courts---Scope---Decision of Supreme Court is binding on all the parties and the same is to be implemented in letter and spirit.

Muhammad Ramzan Chaudhry and Mian Tariq Hussain for Petitioner.

Sardar Latif Khan Khosa, Muhammad Amir Javaid Bhatti and Wajahat Ali for Respondent No.1.

Mehr Muhammad Iqbal for respondent No.2.

Imran Arif Ranjha, Legal Advisor, Election Commission of Pakistan.

2019 M L D 1431

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

AKBAR ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 5866-B of 2012, decided on 25th May, 2012.\

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 148, 149, 302, 324, 337-F(iii) & 337-F(v)---Qatl-i-Amd, attempt to Qatl-i-Amd, Mutalahimah, Hashimah and rioting armed with deadly weapons---Bail, grant of---Rule of consistency---Applicability---Petitioner was found innocent during investigation and sought bail on grounds that case to his extent was not proved during investigation---Validity---Despite remaining on physical remand with police for a considerable time, nothing incriminating was recovered by police from petitioner---Name of petitioner, was placed in column No. 2 of report under S.173, Cr.P.C.---Co-accused having identical role was already admitted to bail by Supreme Court---Petitioner, held, was also entitled to concession of bail on principle of rule of consistency---Bail was granted to petitioner, in circumstances. [p. 1433] A & B

Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506 and Muhammad Fazal alias Bodi v. The State 1979 SCMR 9 rel.

Muhammad Latif Khawaja for Petitioner.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General for the State.

2019 M L D 1474

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Sadiq Mahmud Khurran, JJ

RAB NAWAZ and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 82-J of 2013, 570 of 2012 and Murder Reference No.47 of 2012, heard on 19th November, 2018.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of maternal uncle of complainant and injuring the witness---Motive of occurrence was that a few days back deceased had an altercation with the accused---Prosecution case revolved around the statements of three eye-witnesses including the complainant and the injured---Said witnesses were related to each other and their relationship with the deceased was also on record---Admittedly, none of the witnesses had their residences or their houses at the place of occurrence and as such they were all chance witnesses---Sealed and un-scaled site-plans showed that neither any house nor any place of business belonging to the said eye-witnesses was located there---No fruit sellers or shops selling eatables were shown in the site-plans---In absence of physical proof of the reason for the presence of the witnesses at the crime scene, could not be relied upon---Record showed that statement of complainant was reduced into writing by Police Officer/witness at 5.50 p.m.---Report revealed that the postmortem of the dead body was conducted at 5.30 p.m., which was prior to the registration of FIR and even prior to recording the statement of complainant by Police Officer---Said documentary proof produced and relied by the prosecution itself shattered the whole case of the prosecution---Said fact proved conclusively that firstly the post-mortem examination was conducted after consultation---Prosecution had failed to examine that error in recording the time of the oral statement of complainant---Injured had not been able to identify the accused and subsequently he made a dishonest statement---Complainant, during cross-examination, had stated that the accused were residing at a distance of 15/16 kilometers from the place of occurrence---As to how the accused came to know about the travelling plans of the complainant party was not understandable---Inference could be drawn that injured who was a step brother of deceased and resident of two kilometers away from place of occurrence, was not a truthful witness as he remained unable to prove himself being injured in the present case---Injured witness during cross-examination had stated that he produced the blood-stained clothes to Investigating Officer---Investigating Officer did not support the said assertion of injured witness---Investigating Officer did not take the clothes of the eye-witnesses, stained with blood, into possession---High Court observed that if those were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided the strongest corroboration for the testimony of the eye witnesses---Said omission attacked at the roots of the case of the prosecution and laid bare the untruthful and false claim of the witnesses to have been present at the place of incident at the time of occurrence---Prosecution failed to produce even a single witness whose shop or house had been shown in the scaled site-plan or un-scaled site-plan of the place of occurrence---Prosecution had failed to prove its case against the accused beyond shadow of doubt, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Abdul Khaliq v. The State 1996 SCMR 1553; Muhammad Khan v. Maula Bakhsh 1998 SCMR 570; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-Amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Statement of injured witness---Scope---Stamp of injuries on the person of a witness could be a proof of his presence at the place of occurrence, however, it could never be held that he would tell the truth---Facts which an injured witness narrated were not to be implicitly accepted rather they were to be attested and appraised on the principles applied for the appreciation of evidence of any prosecution witness regardless of his being injured or not.

Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 and Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Statement of injured witness---Prosecution had failed to establish that the witness was injured in the occurrence or otherwise---No entry had been made in the column relating to brief history given by the patient in the Medico Legal Certificate---Had the injured witness known the identity of the assailants, he would have definitely mentioned their names---No reason existed for the said witness not to do so---No opinion was given regarding the nature of injuries and probable duration of injuries in the Medico Legal Certificate---Injuries as observed by Medical Officer did not find mention as to whether injuries were bleeding---When duration of injuries had not been mentioned by the Medical Officer, it could not be said with certainty that the injuries were received during the occurrence or otherwise---Injured had deposed falsely in respect of the facts of the incident, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Contradiction and improvements in the statements of witnesses---Scope---In the present case, complainant had stated that they shifted the deceased and injured to the Hospital and the Investigating Officer reached there---Said statement was opposed to the record because the oral statement of complainant was recorded at 5.50 p.m. whereas the Medico-Legal Certificate as prepared by the Medical Officer had mentioned the date and time of arrival of injured as 5.30 p.m., the name and number of Police Officer---Said Medico-Legal Certificate mentioned the name and thumb impression of the injured which proved that it was Police Officer who had brought the injured to the hospital and complainant was not present there---Witnesses made dishonest and blatant improvements in their statements before the Trial Court, in order to bring in line with the medical evidence---Said three witnesses were confronted, in cross-examination, with the said improvements to their statements---Said witnesses had not mentioned number of entry wounds in their statements during the investigation, so while appearing before the Trial Court, they improved the number of fires from "three" to "many shots"---Evidence of said witnesses having no worth were rejected outright, in circumstances.

Muhammad Ashraf v. State 2012 SCMR 419 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

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

----Ss. 302(b), 324 & 34---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation, of evidence---Delay in recording statements of witnesses under S.161, Cr.P.C.---Effect---Investigating Officer had stated that he recorded the statements of four witnesses, five days after the occurrence---During cross-examination Investigation Officer had admitted that he had not recorded the statement of injured and other witnesses on the first day despite the fact that they were present in the hospital---Injured witness had stated that although he was conscious in hospital for four days, however, Investigating Officer never met him at the hospital---Failure of Investigating Officer to record the statements of witnesses in time could not be taken lightly---Conclusion could be drawn, in circumstances that the injured had nothing to tell.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Effect--- Motive of occurrence was that a few days ago deceased had an altercation with the accused---Record showed that complainant had made a statement regarding the motive of occurrence, however, it had no details---Complainant had admitted during cross-examination that he did not mention the place, time and reason of the altercation between the accused and deceased---Prosecution had failed to prove the motive of the occurrence, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Weapon of offence recovered from accused---Reliance---Scope---Record showed that .30-bore pistol was recovered from accused---Perusal of the report of Forensic Science Laboratory revealed that five crime empties of .30 bore and two pistols of 30-bore were received on the day of its recovery---Weapons and the crime empties having been sent together for analysis, such recovery was of no consequence, in circumstances.

Nasrullah alias Nasro v. The State 2017 SCMR 724 rel.

(h) Criminal trial---

----Medical evidence---Scope---Medical evidence by its nature and character could not recognize a culprit in case of an unobserved incidence---Conviction could not be upheld on the basis of medical evidence alone.

Hashim Qasim and another v. The State 2017 SCMR 986 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creating reasonable doubt in a prudent mind was available, its benefit would be extended to accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Tahir Mehmood, Javed Iqbal Bhatti and Zafar Ullah Khan Khakwani for Appellants.

Malik Riaz Ahmad, Deputy Prosecutor General for the State.

Amjad Mushtaq for the Complainant.

2019 M L D 1518

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

SAFDAR IQBAL---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 1226 of 2016, heard on 13th March, 2019.

(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 90 bags of Bhang weighing 45 maunds was recovered from the dera of accused, which was taken into possession by the complainant---Out of the recovered substance, a sample of 200 grams from each sack was separated for analysis---Prosecution had failed to connect the accused-appellant with the alleged recovered Bhang and also could not establish that the dera wherefrom 90 bags containing Bhang were recovered, was owned and possessed by the accused-appellant---Nothing was available on the record to show that the contraband substance was recovered from the dera---Investigating Officer, who had placed on record the site plan in relation to the place of recovery, which depicted totally different place of recovery---Said circumstances showed that the prosecution had failed to prove that the accused-appellant was in conscious possession of the alleged contraband---Ninety numbers of samples, each having 200 grams Bhang were described in the recovery memo.---Narration regarding the samples showed that samples taken from the spot were not shown as specifically marked with alphabets or numbered, but nowhere it was stated that items were marked with alphabets or numbered---Said fact created a suspicion about the identity of the properties seized from the spot and those produced before the court---Seizure memo. showed that, samples and each sack/bag seized from the spot had not been described as marked with alphabets or numbered to link specific sample with specific sack/bag---Prosecution could not convince the court that specimen seal impression was put on the case property in question---Explanation of any nature not coming from the complainant, would be fatal to the prosecution and the accused was entitled to the benefit of doubt---No scope for the prosecution, even to maintain a stand that seal was affixed by the complainant on the parcels of samples and case property---When reference of the seal impression was not deposed by the complainant, there was absolutely no basis to connect the case property with the substance recovered from the place of recovery---Court, in circumstances, could doubt the identity of the case property seized and the samples forwarded for the purpose of analysis---Appeal was allowed, in circumstances and accused was acquitted of the charge by setting aside conviction and sentence recorded by the Trial Court.

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

----S.9(c)---Control of Narcotic Substances (Government Analysts) Rules , 2001, R.4(2)---Possession of Narcotics---Appreciation of evidence---Benefit of doubt---Chemical analysis---Report of the Forensic Science Agency revealed that it was a collective report of all samples, which was total non-compliance of the Control of Narcotic Substances (Government Analysts) Rules, 2001---Narcotics analysis report of the Forensic Science Laboratory was not as per requirement of law, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Case property /recovered substance, safe custody of ---Principles---Complainant had stated that the seized case property had been handed over to the Investigating Officer at the spot---Neither complainant nor Investigating Officer had a case that the samples drawn from the case property had been kept in the safe custody of either of them---Said witnesses had not even stated that the samples drawn from the case property had been handed over to any other officer or Moharrar for keeping it in safe custody---Moharrar had deposed during court statement that Investigating Officer handed over to him 90 sealed parcels containing Bhang---Moharrar did not depose that the complainant or the Investigating Officer had handed over to him 90 parcels of the samples drawn from the case property---Neither the complainant nor the Investigating Officer had explained those aspects during their examination before the court---Even the complainant did not depose that he handed over parcels of samples to the Investigating Officer---No explanation was available to establish safe custody of the parcels of samples drawn from 90 bags of Bhang weighing 18,00-kilograms from the time of seizure till its submission in the office of Forensic Science Agency---Mere oral evidence as to preparing of parcels of samples drawn from the substance recovered from the possession of the accused-appellant would not discharge the heavy burden which laid on the prosecution.

Sarfraz Khan Gondal for Appellant.

Muhammad Waqas Anwar, Deputy Prosecutor General for the State.

2019 M L D 1532

[Lahore]

Before Muhammad Waheed Khan, J

NAZIM ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals No. 2137 and Criminal Revision No.1124 of 2014, decided on 11th April, 2019.

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

----Ss. 302, 324, 337-A(i), 337-F(v), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, Shajjah-i-khafifah, hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Ocular account was not corroborated by medical evidence---Prosecution case was that the accused party made firing on the sons of complainant due to which one son of complainant died and other was injured---Motive was that accused persons wanted to take forcible possession of land of complainant---Complainant, being dissatisfied by the police investigation, had filed private complaint---Ocular account was furnished by the complainant and injured---Perusal of contents of FIR, private complaint and depositions made by the witnesses before the Trial Court, transpired that the complainant while lodging the FIR had narrated that co-accused, since declared as proclaimed offenders, made fire shots with their pistol which hit on the belly of deceased but the Medical Officer, who examined the deceased in injured condition and thereafter conducted postmortem examination, found only one firearm entry wound available on the person of the deceased and that too on his chest and the other injury was an exit wound---Complainant took somersault and filed private complaint wherein he while making dishonest improvement in his version stated that it was the present accused-appellant whose fire shot hit the deceased at his chest---Other aspect of the case was that the complainant was father of deceased and injured whereas accused was the real brother of the complainant and co-accused persons were real sons of the accused, thus they were real nephews of the complainant---Factum of close relationship between parties had never been highlighted by the complainant while lodging the crime report---Even otherwise, the complainant had also made other improvements while deposing before the Trial Court---Other eye witness/injured of the alleged incident had stamp of injuries on his person---Presence of injured on the place of occurrence apparently could not be denied but in his statement under S. 161, Cr.P.C. he categorically stated that after receiving injuries, he became unconscious and thereafter what happened at the place of occurrence, he had no knowledge about that---Admittedly, deceased received the injuries thereafter but said witness never claimed that he had seen the accused-appellant while firing on the deceased---Said witness, while deposing before the Trial Court, made an improvement in his statement, wherein he claimed to be a witness of fire shot made by accused persons on the person of the deceased---Said witness had also improved his statement qua the other aspect of the case and the Court categorized the same as dishonest improvements---Credibility of both the eye-witnesses became doubtful in circumstances---Complainant had implicated five persons in the case---Out of them two were found innocent by the police, which meant that story of prosecution had been falsified to the extent of said two accused---Principle of "falsus in uno, falsus in omnibus" was attracted in the present case---Prosecution story qua the role played by accused persons-appellants could be discarded on that sole ground alone---Prosecution had failed to prove its case against the accused-appellants beyond reasonable doubt---Appeal was allowed and accused were acquitted by setting aside the conviction and sentences recorded by the Trial Court, in circumstances.

(b) Criminal trial---

----Dishonest improvements in the statement of eye-witnesses---Effect---Improvement once found deliberate and dishonest casted serious doubts on the veracity of eye-witnesses.

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

----Ss. 302, 324, 337-A(i), 337-F(v), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive was not proved---Effect--- Motive for commission of offence was that accused persons wanted to take forcible possession of land of complainant---Prosecution had not produced any independent witness to establish the motive---Motive, held, was not proved.

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

----Ss. 302, 324, 337-A(i), 337-F(v), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Weapons of offence recovered from accused persons---Reliance---Scope---Admittedly, the hatchet got recovered by co-accused was not sent to Forensic Science Agency for comparison---Although, the crime empties recovered by the police from the place of occurrence and the pistol which was allegedly got recovered by accused were sent to the Forensic Science Agency but the recovered pistol was sent after the arrest of accused-appellant---Such recovery had no value in the eye of law.

(e) Criminal trial---

----Benefit of doubt---Principle---Even a single doubt is sufficient for acquittal of the accused.

Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048; Muhammad Akram v. The State 2009 SCMR 230 and Munir Ahmad and another v. The State and others 2019 SCMR 79 rel.

Ali Aman Mohsin for Appellant.

Ch. Muhammad Anwar Bhinder and Faisal Sagheer Rana for the Complainant (also in Criminal Revision No.1124 of 2014).

Tariq Javed, District Public Prosecutor for the State.

2019 M L D 1574

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

MUHAMMAD NAWAZ---Appellant

Versus

The STATE and others---Respondents

Crl. Appeal No.5981 of 2019, decided on 9th May, 2019.

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

----S. 9(c)---Possession of narcotic---Safe custody and transmission of samples for Forensic Report etc.---Failure of Investigating Officer to seize parcels of sample---Effect---Charas comprising of two pieces weighing 1000 grams and 570 grams in a shopping bag was recovered from accused---Complainant while appearing as witness stated that he handed over the accused and case property to the Investigating Officer and had not handed over the parcels of sample to the Investigation Officer rather but to the Moharir---Cross-examination of complainant proved that such portion of his statement was improvement---Complainant was required to hand over the parcels of sample to the Investigating Officer---Case property produced in the court was only 750 grams comprising of four pieces in the parcel, meaning thereby that the recovered case property was not produced in the court---Moharir had stated that he handed over one parcel of sample to Investigating Officer for transmission to Forensic Science Agency on 25/1/2018 while Investigating Officer stated that sample was handed over to him on 29/1/2018---Said fact demolished the safe custody of parcel of sample---Appeal was allowed, in circumstances.

Maula Jan v. The State 2014 SCMR 862 ref.

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

---S. 9(c)---Possession of narcotic---Safe custody and transmission of samples for Forensic report etc.---Scope---Proving unbroken chain of Safe custody of parcel of sample from point/date of recovery to its receipt in the office of Government Analyst is mandatory because in such cases recovery is not mere corroboratory piece of evidence rather it constitutes the charge and entails punishment.

The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039 and Abdul Ghani and others v. The State and others 2019 SCMR 608 rel.

Muhammad Parvez Akhtar Kamoka for Appellant.

Muhammad Waqas Anwar, Deputy Prosecutor General for the State.

2019 M L D 1610

[Lahore]

Before Asjad Javaid Ghural, J

MUJAHID ISLAM alias ZAHID alias ZAHIDU---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 630 and Criminal Revision No. 471 of 2014, decided on 29th March, 2019.

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

----Ss. 364-A & 376---Criminal Procedure Code (V of 1898), S. 342---Kidnapping or abducting a person under the age of ten years, rape---Appreciation of evidence---Plea of alibi, proof of----Accused-appellant had taken the plea of alibi while relying upon his roll number slip showing that he was appearing in annual examination of the Board of Intermediate and Secondary Education---Accused, on the day of occurrence, had to appear in the examination and the time was 1.30 to 3.30 p.m.---Roll number slip had not been produced by the accused-appellant before the Investigating Officer to verify the factum as to whether he had appeared in the examination or not---Accused had produced a photocopy of provisional result intimation showing that he had obtained 11 marks in the said paper---Student was always allowed to leave the examination center after half an hour from the initial time---Facts remained that the distance between the place of occurrence and the examination center was hardly 4/5 kilometers, which was not far away to make the alleged offence impossible---Roll number slip and photocopy of result intimation could not favour the accused and the same were not sufficient to discard the eye-witnesses especially the victim with whom that brutal act had been committed by the accused.

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

----Ss. 364-A & 376---Kidnapping or abducting a person under the age of ten years, rape---Appreciation of evidence---Accused-appellant had alleged to have committed forcible sexual intercourse with minor daughter of the complainant, when she was present in the school after closing hours---In the present case, evidence showed that the prosecution had been able to prove the charge against the accused-appellant through cogent, reliable and confidence inspiring evidence---Eye-witnesses including the victim herself were quite natural and straightforward raising their finger towards none else but the accused-appellant being a sole perpetrator---Substitution of accused was considered to be a rare phenomenon in such like cases---To approach the police station while taking the minor girl in the lap smeared with blood with the allegation of rape was difficult---Ocular account was supported by the medical evidence---Accused-appellant did not deserve any sympathy---Appeal was dismissed, in circumstances.

Muhammad Zubair Khalid Chaudhary for Appellant.

Syed Muhammad Anees, District Public Prosecutor for the State.

Khadim Hussain Sidhu and Tahir Mahmood Mughal for the Complainant.

2019 M L D 1689

[Lahore]

Before Farooq Haider, J

Mst. ZAHIDA TARIQ and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 258695-B, of 2018, decided on 24th May, 2019.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302, 34 & 109---Qatl-i-amd---Common intention---Abetment---Pre-arrest bail, grant of---Allegation of raising lalkara---Further inquiry---Single fire shot---Accused was empty-handed---Single fireshot was attributed to main accused---No other injury of any nature was found on the body of deceased during postmortem examination---Co-accused while empty handed had allegedly raised lalkara to main accused, who with pistol had already come at the place of occurrence, prior to the arrival of co-accused---Question of raising lalkara necessarily required further inquiry within the meaning of S. 497(2), Cr.P.C.---Age of accused was about 12 years at the time of occurrence---Co-accused, as per FIR, was empty handed, although allegedly present at the place of occurrence, yet no specific overt act was alleged against him---General allegation of grappling and beating the deceased was falsified by postmortem examination report which showed no such injury---Exaggeration on the part of complainant by joining hands with police, widening net and roping first accused (being mother) and second accused (being brother) of main accused in the case, with mala fide intention, could not be ruled out---Accused persons had already joined the investigation---Investigating officer had categorically stated that nothing was to be recovered from the accused persons---Application for pre-arrest bail was allowed, ad-interim pre-arrest bail already granted to petitioners was confirmed, in circumstances.

Mian Abdul Jabbar for Petitioner along with Petitioners.

Malik Mudassar for the Complainant.

2019 M L D 1696

[Lahore (Multan Bench)]

Before Mujahid Mustaqeem Ahmed and Shakil-ur-Rehman Khan, JJ

Mst. SANOBER BIBI---Appellant

Versus

DEPUTY COMMISSIONER, D.G. KHAN and 2 others---Respondents

Intra Court Appeal No. 397 in Writ Petition No.16609 of 2017, heard on 19th February, 2019.

Policy for Recruitment of Educators in Government Schools (2008-09)---

----Appointment criteria for Senior School Educator---Recruitment Policy, violation of---Awarding mandatory marks---Appellant was candidate who applied for post of Senior School Educator and was aggrieved of non-adding of two marks for being computer literate by respondents---Plea raised by appellant was that she was already selected for Elementary School Educator and two marks for being computer literate were given to her, therefore, same may be awarded---Validity---Appellant had every right to be awarded two additional marks for being computer literate---Authorities were not legally justified, to have deprived her from such marks when she was being considered for post of Senior School Educator whereas she had been granted those marks when she was considered for post of Elementary School Educator---High Court directed authorities to reconsider merit of appellant after awarding her 2 marks for being computer literate and to pass lawful order as per merit for appointment of appellant against any vacant post---Intra-court appeal was allowed accordingly. [pp. 1704, 1705] A & B

Parks and Horticulture Authority v. Muhammad Saleem 2018 PLC (C.S.) 12; Jahanzaib Malik v. Balochistan Public Procurement Regulatory Authority through Chairman Board of Directors and others 2018 SCMR 414; Miss Breshna Haq Tareen v. Selection Committee, Bolan Medical College Quetta and others 2005 SCMR 351; M. Nazir Ahmad v. Muhammad Aslam and others 2013 SCMR 363; Mst. Mehmooda Arif v. District Coordination Officer (DCO)/Chairman Recruitment Committee and 3 others 2013 PLC (C.S.) 492 and Mst. Nusrat Rafi v. Executive District Officer (Education) Faisalabad and 3 others 2010 PLC (C.S.) 257 ref.

Appellant in person.

Muhammad Augrangzeb Khan, Assistant Advocate General, Punjab for Respondents.

Iqbal Hussain Pawar Hajwari for Respondent No.3.

Date of hearing: 19th February, 2019.

2019 M L D 1707

[Lahore]

Before Muhammad Waheed Khan, J

MUHAMMAD AFZAAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1803 of 2014, decided on 22nd May, 2019.

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

----S. 376---Rape---Appreciation of evidence---Benefit of doubt---Non-examination of victim---Scope---Prosecution case against accused was that he committed rape of the minor daughter of complainant and the incident was witnessed by complainant and two eye-witnesses---Doctor opined that rape was committed with the victim but while giving her final opinion reported that no fresh semen was detected and that DNA test was not performed---Accused was not subjected to medical examination to verify his potency---Investigating Officer although stated that he had produced the accused before the doctor, got him medially examined and also got copy of Medico-legal Certificate (MLC) regarding his potency test but neither MLC was available on record nor the prosecution had produced said doctor---Victim was never associated with the investigation as admitted by the investigating officer---Evidence of complainant and medical evidence was not put to the accused during his statement under S. 342, Cr.P.C.---Appeal was allowed, conviction and sentence awarded by Trial Court was set aside, in circumstances.

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

----S. 342---Examination of accused---Scope---Where any piece of evidence was not put to the accused in his statement under S. 342, Cr.P.C., the same could not be used against him for conviction.

Imtiaz alias Taj v. The State and others 2018 SCMR 344 rel.

Muhammad Nawaz and others v. The State and others 2016 SCMR 267 and Muhammad Shah v. The State 2010 SCMR 1009 ref.

(c) Criminal trial---

----Benefit of doubt---Prosecution was obliged to prove its case against the accused beyond reasonable doubt and if it failed to do so accused was entitled to the benefit of doubt as of right and any element of doubt as to the guilt of accused shall be resolved in favour of accused.

Mian Muhammad Sikandar Hayat and Muhammad Asif Hayat for Appellant.

Muhammad Waseem Khan and Makhdoom Muhammad Adnan Qureshi for the Complainant.

Ms. Tahira Parveen, District Public Prosecutor for the State.

2019 M L D 1738

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

Mehr MUHAMMAD YOUSAF GILL---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No. 7182 of 2019, decided on 7th May, 2019.

Constitution of Pakistan---

----Art. 199---Contractual matter---Constitutional petition---Maintainability---Alternate remedy available---Effect---Contract in favour of petitioner was rescinded---Petitioner earlier filed constitutional petition which was disposed of with the direction to the authorities to decide the issue in accordance with law after providing proper hearing to all concerned including the petitioner---Authorities refused to commence the arbitration proceedings in the matter---Contention of petitioner was that rescission of contract was illegal and subject matter be referred to the arbitrators---Validity---Contractual matters requiring factual inquiry could not be resolved through constitutional petition---Where contract had provided for a mechanism of settlement of dispute through arbitration and dispute was of factual nature then parties should follow the mechanism agreed for the resolution of disputes---Petitioner had an adequate alternate remedy in accordance with the agreed mechanism in the contract itself therefore, he could not invoke constitutional jurisdiction of High Court---Constitutional petition was not maintainable, in circumstances---High Court observed that petitioner might, if so advised, approach the competent forum for reference of matter to arbitration and for resolution of the same through mechanism as agreed between the parties---Constitutional petition was dismissed accordingly.

Mumtaz Ahmed v. Zila Council, Sahiwal through Administrator and others 1999 SCMR 117 and Messrs Syed Bhais (Pvt.) Ltd. through Director v. Government of Punjab and 3 others PLD 2012 Lah. 52 rel.

Sh. Jamshed Hayat for Petitioner.

2019 M L D 1753

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ

MUHAMMAD IMRAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 17 and Murder Reference No. 7 of 2014, heard on 20th November, 2018.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt--- Dishonest improvements--- Night-time occurrence--- Non-availability of source of light---Effect---Chance witness---Absence of witnesses from hospital---Scope---Prosecution case against accused was that at about 2:00 am he committed murder of deceased---Complainant admitted during cross-examination that he got registered the case against two accused persons and that he considered the sacks of wheat as accused persons---Statement of complainant led to the irresistible conclusion that the witnesses had not seen anything at the crime scene---Two other eye-witnesses had also fell into the same mistake due to lack of light at the crime scene---No source of light was mentioned by the witnesses while recording their statements before Investigating Officer and before Trial Court---Investigating Officer did not take into possession any article so as to prove that sufficient light was present at the place of occurrence---Complainant and the eye-witness were not permanent residents of the place of occurrence rather they resided at a distance of about 3/4 kilometers---Complainant had stated that he ran an agency for the sale of wheat and cotton at the place of occurrence, which was the reason for his presence on the crime scene---Investigating officer took only one cot into possession which belonged to the deceased but did not take into possession any cot being used by complainant and the eye-witness---Investigating officer did not collect documentary evidence to prove that any agency was established at the crime scene---Investigating officer failed to take into possession any wheat sacks which were statedly available at the crime scene---Post-mortem was conducted after six hours of the occurrence, still none of the witnesses identified the dead body of the deceased in the hospital---Eye-witnesses were not present near the place of occurrence as per inquest report---Appeal was accepted and conviction and sentence awarded by trial court was set aside---Murder reference was answered in the negative.

Gulfam and another v. The State 2017 SCMR 1189 rel.

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

----S. 302(b)---Qatl-i-amd---Motive---Motive for the occurrence as alleged by complainant was that the accused suspected illicit liaison of the deceased with his sister---Complainant admitted during cross-examination that sister of accused had died 5/6 years prior to the occurrence---Held; when the sister of accused had died prior to the occurrence and that too many years ago, then it was beyond reason that the occurrence would have been committed on suspicion of illicit relations---Motive was not believed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Recording of statement after preliminary investigation---Scope---Statement of complainant, while he was proceeding towards police station, was recorded by investigating officer at his patrolling duty---High Court deprecated the practice of receiving complaints on the crime spot after preliminary investigation---Witnesses were held to be not present at the place of occurrence at the time of occurrence---Oral statement was declared to be fake.

Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 fol.

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

----S. 302(b)---Qatl-i-amd---Delayed post-mortem---Scope--- Incident was reported to the police at 3:15 a.m. by oral statement of complainant---Post-mortem was conducted after a delay of about five hours from the time of registration of FIR---Doctor had given the probable duration of time between death and post-mortem as 4 to 8 hours---Held; delay was reflective of absence of witnesses and the sole purpose of causing delay was to procure the presence of witnesses and to further advance the false narrative to involve any person.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 rel.

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

----S. 302(b)---Qatl-i-amd---Medical and ocular evidence---Contradictions---Dishonest improvements---Complainant had stated before investigating officer that the fire shot hit the deceased on the right side of the temporal region whereas while appearing as witness he had not mentioned as to where the fire shot hit the deceased---Second eye-witness had also improved his version in the same way and had not mentioned any side where the alleged fire shot hit the deceased---Doctor had observed the wound on the left side of the head and not on the right---Held; improvements in the statements of witnesses were not only dishonest but were proved to be incorrect.

Muhammad Sharifan Bibi v. Muhammad Yasin and others 2012 SCMR 82 rel.

(f) Criminal trial---

----Witness---Chance witness---Chance witness is the one who claims to be present at the place of occurrence at the relevant time though his presence there was a sheer chance in ordinary course of business.

(g) Criminal trial---

----Cross-examination---Principles---Principle that failure to cross-examine a witness would result in a fact to be proved is applicable to civil cases and not to criminal cases---Court has to decide criminal cases on the basis of totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact.

Nadim Ramzan v. The State 2018 SCMR 149 rel.

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

----S. 302(b)---Qatl-i-amd---Recovery of weapon---Scope--- Recovery of .30 bore gun from accused was held to be inconsequential where report of Forensic Science Laboratory revealed that one crime empty of .30 bore and one pistol of 30 bore were received on the same day.

Nasrullah alias NASRO v. The State 2017 SCMR 724 fol.

(i) Criminal trial---

----Benefit of doubt---Benefit of only a single circumstance creating doubt in the mind of a prudent person is to be extended to accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Rana Muhammad Asif Saeed and Javed Iqbal Bhatti for Appellant.

Malik Riaz Ahmad, Deputy Prosecutor General for the State.

Rana Muhammad Akram for the Complainant.

Date of hearing: 20th November, 2018.

2019 M L D 1788

[Lahore]

Before Muhammad Waheed Khan, J

LUQMAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.2138 of 2016, heard on 23rd May, 2019.

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

----Ss.302(b) & 364---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Night-time occurrence---Chance witness---Accused not named in FIR---Joint identification parade---Acquittal of co-accused---Non-availability of independent corroboration---Effect---Maxim: Falsus in uno, falsus in omnibus---Applicability---Scope---Accused was not nominated in the first information report (FIR)---Accused was identified along with co-accused in joint identification parade---Eye-witnesses had identified both the accused persons by putting hands on their heads without mentioning the details and roles played by them during the incident---Eye-witnesses had not even named the accused in the court---Eye-witnesses reached the place of occurrence in the dark and one eye-witness stated that they had identified the accused from a distance of 10 acres---Identification of accused from such a distance was not confidence inspiring rather it was impossible to identify anyone from such distance---Availability of eye-witnesses at the place of occurrence was questionable and they could be categorized as chance witnesses---No explanation regarding their presence had been advanced by the eye-witnesses while appearing before trial court---No independent corroborative evidence was available on record regarding their claim---Eight accused persons who had been charged with the offence were acquitted by the Trial Court---Principle of "falsus in uno, falsus in omnibus" was applicable to the case---Accused deserved the similar treatment---Independent corroboration regarding culpability of accused was not available on record---Prosecution was bound to prove its case against the accused beyond reasonable doubt by producing cogent, trustworthy and reliable evidence and on its failure to do that, entire benefit arising out of the same would be resolved in favour of the accused---Criminal appeal was allowed, conviction and sentence awarded by trial court was set aside, in circumstances.

PLD 2019 SC 527 rel.

(b) Criminal trial---

----Identification parade---Joint identification parade---Effect--- Joint identification parade is illegal, besides being unsafe, it looses its value and cannot be relied upon.

PLD 2019 SC 488; Kamal Din alias Kamala v. The State 2018 SCMR 577; Gulfam and another v. The State 2017 SCMR 1189; Hakeem and others v. The State 2017 SCMR 1546; Shafqat Mehmood and others v. The State 2011 SCMR 537; Bacha Zeb v. The State 2010 SCMR 1189; Ziaullah alias Jajj v. The State 2008 SCMR 1210; Imran. Ashraf and 7 others v. The State 2001 SCMR 424 and Lal Pasand v. The State PLD 1981 SC 142 ref.

(c) Criminal trial---

----Benefit of doubt---Scope---Even a single doubt is sufficient for acquittal of the accused.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Munir Ahmad and another v. The State and others 2019 SCMR 79; Muhammad Akram v. The State 2009 SCMR 230; Ayub Masih v. The State PLD 2002 SC 1048 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

Rai Zamir ul Hassan for Appellant.

Nemo for the Complainant.

Tariq Javed, District Public Prosecutor for the State.

Date of hearing: 23rd May, 2019.

2019 M L D 1808

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ

AZHAR ABBAS and another---Appellant

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 447, 515 and Murder Reference No.76 of 2012, heard on 14th November, 2018.

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

----Ss. 302(b), 337-A(i), 148 & 149---Qatl-i-amd, causing shajjah-i-khafifah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of son of complainant and injuring his maternal grandson---Motive for the occurrence was of hurling abuses---Ocular account was furnished by complainant and the injured---Record showed that a person was cited by the complainant as eye-witness of the occurrence while getting his oral statement recorded by Investigating Officer---Complainant while appearing before the court again deposed that on hue and cry of his son said eye-witness came at the spot before the occurrence---Injured had also mentioned that said eye-witness came at the spot before the occurrence---Statement of alleged eye-witness was recorded by the Trial Court and the said eye-witness was administered oath, however, the Trial Court instead of recording his statement recorded the statement of his counsel to the effect that said witness would only furnish evidence regarding the recoveries effected by the Investigating Officer during the investigation and not regarding theocular account---Adverse inference, in circumstances, could be drawn against whole prosecution case due to the fact that a purported eye-witness of the occurrence failed to depose anything regarding the same when he appeared as a witness before the trial court---Scrutiny of the statement of alleged eye-witness resulted in only one irresistible conclusion that the other two witnesses deposed falsely---Circumstances suggested that none of the said witnesses were present at the crime scene at the relevant time---Statement of alleged eye-witness, as recorded, had put the whole ocular account in obscurity and hit at the very root of the prosecution case--- Complainant while being cross-examined replied that clothes of the witnesses were stained with blood and the same were handed over to the police---Investigating Officer of the case did not take the clothes of the eye-witnesses, which were stained with blood, into possession---Had said clothes been sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided the strongest corroboration of the testimony of the two eye-witnesses---Said omission struck at the roots of the case of prosecution---Both the said witnesses were under a duty to provide convincing explanation of their presence at the crime scene at the relevant time---Allegedly, the occurrence took place in a street---Investigating Officer during cross-examination had stated that 11-12 persons joined the investigation---Said persons did not state in their statements that the eye-witnesses were present at the crime scene at the time of occurrence---Admittedly, no one other than the related witnesses were examined during the trial of the case---Prosecution had failed to prove its case beyond any shadow of doubt, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 rel.

(b) Criminal trial---

----Witness---Statement of injured witness---Scope---Mere stamp of injuries on the person of a witness was not a proof of him being a truthful witness.

Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 rel.

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

----Ss. 302(b), 337-A(i), 148 & 149---Qatl-i-amd, causing shajjah-i-khafifah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Statement of injured witness---In the present case, injured even had failed to prove that he was injured in the same occurrence to which he was deposing---Medical evidence had not confirmed that he was injured in the present occurrence for the reason that Medical Officer, while preparing the Medico Legal Certificate, had not mentioned the probable duration of injury---Injured was alleged to have received the said injury as a result of the back side of hatchet hitting his head---However, even after receiving such a forceful blow of a weapon made of metal, injured had only suffered a superficial wound without bone being exposed---Investigating Officer had also received evidence to the fact that injured had not received that injury at the hand of accused, (since acquitted) rather the same was caused by co-accused---Said facts had concluded that injured witness deposed falsely in respect of the facts of the incident.

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

----Ss. 302(b), 337-A(i), 148 & 149---Qatl-i-amd, causing shajjah-i-khafifah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Improvements made by witnesses---Scope---Complainant made a dishonest improvement to his oral statement while appearing before the Trial Court---Complainant, while recording his examination-in-chief had stated that accused fired two shots with his Kalashnikov, which hit his son on his chin/neck and when deceased tried to take a turn, accused again fired which hit on the back of his right shoulder---Said improvement with respect to the number of fires made by accused was not only dishonest but incorrect also---Deceased had received only two fire shots on his person which were declared as entry wounds whereas the injury on the front of the chest was declared as a wound of exit---Complainant and injured were at variance to each other regarding the time of occurrence---Time of occurrence was mentioned as 9.30 p.m. by the complainant whereas injured had mentioned the same as 8.30 a.m.---Said inconsistency regarding the time of occurrence was irreconcilable---Evidently, injured witness lived at a distance of one kilometer from the house of deceased---Injured witness in order to prove his presence at the place of occurrence had stated during the cross-examination that he used to live in the house of deceased---Said version of injured witness was not supported by the complainant---Said improvements had impeached the character of the witnesses and made them unworthy of being trusted.

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

----Ss. 302(b), 337-A(i), 148 & 149---Qatl-i-amd, causing shajjah-i-khafifah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapons of offence and empties---Reliance---Scope---Record showed that crime empties were recovered from the spot and a Kalashnikov got recovered by accused---Report of Forensic Science Agency militated against the prosecution evidence---Two empty cartridges of Kalashnikov were sent for comparison with the Kalashnikov allegedly got recovered by accused---Comparison of the said articles showed that the two empty cartridges of Kalashnikov were not fired from the Kalashnikov allegedly got recovered by the accused---Prosecution had failed in establishing the culpability of accused, in circumstances.

(f) Criminal trial---

----Evidence---Corroboration---Principle---One tainted piece of evidence could not corroborate another tainted piece of evidence.

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

----Ss. 302(b), 337-A(i), 148 & 149---Qatl-i-amd, causing shajjah-i-khafifah, rioting armed with deadly weapon, common intention---Appreciation of evidence---Motive not proved---Effect---Motive of the occurrence was of hurling abuses---Record showed that prosecution did not produce any independent evidence regarding the motive---Complainant neither gave any detail nor mentioned any factors related to the episode of hurling abuses---Circumstances established that the prosecution failed to prove any motive with the accused to commit the occurrence.

(h) Criminal trial---

----Medical evidence---Scope---Medical evidence by its nature and character could not identify a culprit in case of an unseen occurrence---Medical evidence was of no help in such case---Conviction could not be upheld on the basis of medical evidence alone.

(i) Criminal trial---

----Benefit of doubt---Principle---If only a single circumstance creating reasonable doubt in a prudent mind was available then its benefit would be extended to accused not as a matter of concession but as of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Badar Raza Gilani for Appellant.

Muhammad Ali Shahab, District Prosecutor General for the State.

Malik Muhammad Saleem for the Complainant.

2019 M L D 1836

[Lahore]

Before Muhammad Ameer Bhatti, J

PROVINCE OF PUNJAB and others---Petitioners

Versus

SHUKAR DIN and others---Respondents

Civil Revision No.3985 of 2010, heard on 1st April, 2019.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Allotment of land---Review of mutation---Past and closed transaction---Scope---Plaintiffs, through suit for declaration, assailed order of Deputy Commissioner whereby he had held that mutation in favour of plaintiffs was sanctioned on the direction of incompetent authority---Trial Court and appellate court decreed the suit and dismissed the order of Deputy Commissioner---Validity--- Notification issued by Secretary had addressed Assistant Commissioners to grant proprietary rights to all the occupants---Plaintiffs had, under the direction of the concerned Assistant Commissioner, deposited requisite cost/price---Deputy Commissionerhad passed a non-speaking and terse order without issuing any notice and hearing the plaintiffs---No evidence was available on record to establish that land in dispute was got allotted while committing fraud and forgery---Matter became a past and closed transaction after grant of proprietary rights and sanctioning of mutation---No legal infirmity was found in the concurrent findings of the courts below---Revision petition was dismissed. [pp. 1837, 1838, 1840] A, B, C & D

Muhammad Arshad Jehangir Jhoja, Additional Advocate General for Petitioners along with Afzal Hayat, A.C., Gujrat and Irshadullah, Naib Tehsildar, Gujrat.

Ghulam Hussain for Respondents Nos.1 to 4.

2019 M L D 1876

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

NAZAR HUSSAIN and another ---Petitioners

Versus

MEMBER BOARD OF REVENUE (JUDICIAL-III), PUNJAB and others---Respondents

Writ Petition No. 7967 of 2018, decided on 20th May, 2019.

Civil Procedure Code (V of 1908)---

----O. XX, R. 14---Decree in pre-emption suit---Implementation of---Transaction pendente lite---Effect---Petition for implementation of decree passed in pre-emption suit was moved which was accepted by the District Collector but Member Board of Revenue dismissed the same on the ground of limitation---Validity---Decree passed in favour of petitioners had attained finality---Revenue authorities were bound to sanction mutation on the basis of decree passed by the Civil Court---Attestation of mutation could not be refused on the ground that decree was not put into execution within the prescribed period of limitation---Board of Revenue had acted on legal misconception in assuming that implementation of decree of Civil Court could be declined by a revenue officer on the plea that execution had become barred by time---Where Court had passed decree subject to payment of sale price within time frame stipulated in the judgment then on deposit of pre-emption money the ownership of land would vest in the pre-emptor---Title of property on deposit of decretal amount had vested in favour of petitioners---Revenue functionaries were to take steps to record entries in the revenue record in accordance with decree of Civil Court---No fresh direction of Court was required for execution of decree passed in pre-emption suit---Revenue authorities were required to give effect to the decree of Civil Court and were not expected to adjudicate upon any question of title---Implementation of decree was unnecessarily delayed in seeking permission to review intervening mutations without appreciating that rule of lis pendens would take care of the same---Any transaction made pendente lite during suit till the decree or thereafter in violation of decree would be deemed in law to be void ab initio---Transfer pendente lite was bound by the decree and could not claim any title of his own even on the plea of alleged bona fide purchase---District Collector had proceeded to act in accordance with law by attesting mutation in favour of petitioners---Impugned order passed by the Member Board of Revenue was illegal and without lawful authority which was set aside and that of District Collector restored---Constitutional petition was allowed, in circumstances. [pp. 1879, 1880, 1881, 1882] A, B, C, D, E, F, G & H

Ali Ahmad and another v. Muhammad Fazal and another 1972 SCMR 322; Allah Ditta v. Ghulam Muhammad and 3 others 2008 SCMR 1021; Dr. Niaz Muhammad Mann and others v. Sh. Muhammad Ahmad and another 1988 SCMR 1016; Mst. Niaz Bibi through LRs v. Ghulam Mustafa and others PLD 2011 SC 520; Shahra and others v. Member Board of Revenue Punjab and others 2004 SCMR 117; Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 and Farzand Ali and another v. Khuda Bakash and others PLD 2015 SC 187 rel.

Kabir Ahmed for Petitioner.

Mian Mumtaz Ahmad and Ahmed Nadeem Gehla, A.A.G. for Respondents.

2019 M L D 1900

[Lahore (Multan Bench)]

Before Muhammad Sajid Mehmood Sethi and Asim Hafeez, JJ

HANIA NAJEEB---Appellant

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL (PMDC), ISLAMABAD through President and 4 others---Respondents

Intra Court Appeal No.404 of 2018 in W.P. No. 14689 of 2018, decided on 7th February, 2019.

MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018---

----Rgln. 9(1)---MBBS and BDS (Admissions, House job and Internship) Regulations, 2016, Rgln. 9---Eligibility criteria for admission in MBBS and BDS---Vested right---Appellant was a candidate who had applied for admission in MBBS and BDS---Grievance of appellant was against mandatory appearance in Medical and Dental Colleges Admission Test (MDCAT) in year 2018 and sought admission on basis of SAT-II score---Validity---Mere appearance in MDCAT Examination by appellant, conducted by University of Health Sciences, in pursuance of advertisement would not deprive her of claiming vested right to be assessed for purposes of admission in MBBS and BDS on basis of SAT-II scores---By the time mandatory condition of MDCAT was advertised, which was even before approval extended to MBBS and BDS (Admissions, House job and Internship) Regulations, 2018 by Supreme Court, appellant had completed her A-levels and she already undertook SAT-II---Division Bench of High Court declared that appellant was entitled to be considered/assessed for admission in MBBS and BDS on basis of her SAT-II score provided she fulfilled all other conditions prescribed for eligibility other than condition of MDCAT---Order of Single Judge of High Court was modified but declaration of validity of MBBS and BDS (Admissions, House job and Internship) Regulations, 2018 was sustained---Intra-court Appeal was allowed accordingly.

Muhammad Fahad Malik v. PMDC and others PLD 2018 Lah. 75; Pakistan Medical and Dental Council Through President and 3 others v. Muhammad Fahad Malik and 10 others 2018 SCMR 1956 and Pir Baksh v. Chairman Allotment Committee PLD 1987 SC 145 ref.

Raja Naveed Azam for Appellant.

Abdul Salam Alvi for Respondents.

M.A. Hayat Hiraj for UHS.

2019 M L D 1931

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

ZIAULLAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 379 of 2015, decided on 9th May, 2019.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody---Scope---Accused was apprehended by the police party while cutting flowers of poppy plants---"Doda" was separated from cultivated "poast", which was 2½ kilograms, out of which, 10 "Dodas" weighing 120 grams were separated for chemical analysis and secured into a sealed parcel of sample while the remaining case property was also sealed into a parcel---Report of Chemical Examiner revealed that sample parcel was dispatched by Excise and Taxation Officer of the district through a constable on 14.4.2011 and it was received in the Laboratory on 19.4.2011---Statements of prosecution witnesses revealed that sample parcel was handed over by the Constable to the witness on 19.4.2011 for its onward transmission to the office of Chemical Examiner and the witness delivered the same on 19.4.2011---Constable who had delivered the sample parcel was not produced by the prosecution and he was not even cited as a witness in the case---Safe custody of sample parcel from the point of its preparation till its receipt in the office of Chemical Examiner was not proved---Prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accepted, in circumstances.

Muhammad Abbas v. The State 2006 YLR 2378 rel.

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

----S. 9---Possession of narcotics---Safe custody---Scope--- Unbroken chain of safe custody of parcel of sample has to be proved, otherwise conviction is not possible because in such cases recovery is not mere corroboratory piece of evidence rather it constitutes the offence itself and entails punishment.

Abdul Ghani and others v. The State and others 2019 SCMR 608 rel.

(c) Criminal trial---

----Benefit of doubt---Scope---Single dent in the case of prosecution is sufficient for acquittal of accused.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Zaman v. The State and others 2014 SCMR 749; Muhammad Mansha v. The State 2018 SCMR 772; Abdul Jabbar and another v. The State 2019 SCMR 129 and Mst. Asia Bibi v. The State and others PLD 2019 SC 64 ref.

Shahid Rafiq Mayo for Appellant.

Muhammad Waqas Anwar, Deputy Prosecutor General for the State.

2019 M L D 1952

[Lahore]

Before Rasaal Hasan Syed, J

KANEEZ BEGUM through L.Rs.---Petitioners

Versus

ABDUL KHALIQ and another---Respondents

T.A. No. 14998 of 2019, heard on 22nd April, 2019.

Civil Procedure Code (V of 1908)---

----Ss. 24, 16(a) & (d)---Suit for declaration---Transfer of suit was sought at the place where defendant was residing---Validity---Section 16(a) & (d), C.P.C. provided that the suit for recovery of immovable property with or without rent or profit or for determination of any right to or interest in immovable property should be instituted in the Court within the local limits of whose jurisdiction the property was situated---Suit property in the present case was situated at place "A" and mutation under challenge was attested at the same place---Petitioner was seeking determination of rights and interest in the immovable property and possession of the same which was situated at place "A"---Present suit could competently be filed at place "A"---Request of petitioner for transfer of suit from a place where the property subject-matter of dispute was located and the mutation under challenge was attested could not be acceded to---Application for transfer of suit from a competent Court to a Court which did not have jurisdiction in the matter could not legally sustain---Revenue officials and record would be required in the suit which did pertain to the area located in the jurisdiction of the Court concerned---Transfer of suit from the said area to a different place would result in lot of inconvenience in production of evidence---Trial should be continued by the Court where suit land was situated and where office of revenue officials who attested the mutation and were holding the record was located---Application for transfer of suit was dismissed in circumstances.

Haji Abdul Malik and 10 others v. Muhammad Anwar Khan and 26 others 2003 SCMR 990 rel.

Awais Nisar for Petitioner.

Abdul Ghafoor for Respondent.

2019 M L D 1982

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

MUHAMMAD SOHAIL alias SAILA---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.265 and Murder Reference No.51 of 2014, decided on 25th June, 2019.

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

----Ss. 302(b), 397, 324 & 337-F(iii)---Qatl-i-amd, robbery with attempt to cause death or grievous hurt, attempt to commit qatl-i-amd and Mutalahimah---Appreciation of evidence---Benefit of doubt---Delay in lodging FIR---Delayed post-mortem---Identification parade---Indolence of prosecution against co-accused---Independent corroboration, non-availability of---Effect---Prosecution case against accused was that he along with co-accused persons committed murder of two persons and injured others in an attempt to commit robbery---Matter was not reported to the police with such promptness as claimed by the prosecution, the reason of which was that the alleged occurrence took place at 11:30 p.m., post-mortem of the deceased was conducted on the following day at 4:00 pm---Accused and other assailants were not nominated in the FIR, which was lodged against unknown accused with their description but no separate role was attributed to them, rather joint role was given to two assailants---Accused was subjected to test identification parade but the proceedings of identification parade were not exhibited by the prosecution in its evidence---Accused was not identified with reference to any role, he allegedly played in the incident---Such identification parade was not only illegal but also not proper besides being unsafe to be relied upon---Identification parade had not corroborated the ocular version at all---After submission of report under S. 173, Cr.P.C., two co-accused persons were declared to be juvenile and a separate report under S.173, Cr.P.C. to their extent was submitted, which was consigned to record due to non-appearance of the complainant and private witnesses---Appellant was the only accused who had been tried and convicted---Medical evidence only verified the injury on the person of the deceased and injured witnesses but it had not corroborated the version of prosecution---Pistol recovered from the accused was not found wedded with the crime empties allegedly secured from the place of occurrence---Ocular account was not worth reliance and no independent corroboration was available qua veracity and truthfulness of prosecution witnesses---Appeal was accepted and murder reference was answered in the negative.

Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No.259 of 2018 PLD 2019 SC 488; Kamal Din alias Kamala v. The State 2018 SCMR 577; Gulfam and another v. The State 2017 SCMR 1189; Hakeem and others v. The State 2017 SCMR 1546; Shafqat Mehmood and others v. The State 2011 SCMR 537; Bacha Zeb v. The State 2010 SCMR 1189; Ziaullah alias Jajj v. The State 2008 SCMR 1210; Imran Ashraf and 7 others v. The State 2001 SCMR 424 and Lal Pasand v. The State PLD 1981 SC 142 ref.

(b) Criminal trial---

----Identification parade---Corroborative evidence---Scope---Identification parade is not a substantive piece of evidence and it only corroborates the ocular version.

(c) Criminal trial---

----Benefit of doubt---Prosecution is duty bound to prove its case against the accused beyond reasonable doubt by producing cogent, trustworthy and reliable evidence and on its failure to do that the entire benefit shall be resolved in favour of the accused---Even a single doubt is sufficient for acquittal of the accused.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Munir Ahmad and another v. The State and others 2019 SCMR 79; Muhammad Akram v. The State 2009 SCMR 230; Ayub Masih v. The State PLD 2002 SC 1048 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

Nisar Ahmad Kausar for Appellant.

Nemo for the Complainant.

Khurram Khan, Deputy Prosecutor General for the State.

2019 M L D 2005

[Lahore]

Before Shehram Sarwar Ch. and Anwaarul Haq Pannun, JJ

IFTIKHAR AHMAD and another---Appellants

Versus

The STAE and another---Respondents

Criminal Appeal No.1612 and Murder Reference No.348 of 2016, heard on 6th May, 2019.

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

----Ss. 302(b), 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---Accused were charged for committing murder of two persons---Motive for the occurrence was previous enmity---Occurrence took place at 1:00 a.m. night, FIR was lodged at 7:30 a.m. at the spot---Keeping in view the time of occurrence, non-production of any source of light, was safely concluded that due to darkness, the identity of the accused appeared to be doubtful---Even second part of occurrence, in which deceased had been done to death through strangulation, took place outside the village in complete darkness near Dera---Behaviour of the deceased as well as the witnesses, as stated, appeared to be very strange---Feeling danger at the hands of the accused not only the deceased but also the witnesses, instead of rushing towards populated area for seeking some shelter/asylum, started running/going out of village, which was against the common sense---Accused made no fire at the witnesses when they were chasing them---Prosecution version was that firstly the acquitted co-accused caught hold of the deceased reducing him helpless then the accused-appellant strangulated him with his torn 'qameez'---Apparently, without the alleged assistance/help of acquitted co-accused, it was not possible for the accused-appellant to strangulate deceased single handedly---Trial Court while disbelieving evidence of the prosecution had acquitted the co-accused, which had also caused serious repercussion upon the veracity of the evidence of prosecution witnesses---Applying the principle of falsus in uno, falsus in omnibus, the evidence was liable to be disbelieved once again---Occurrence had taken place in the darkness of night---Claim of the prosecution witnesses having seen the occurrence by chasing/running after the accused who were following the deceased appeared to be preposterous and unbelievable, therefore, the same was accordingly disbelieved---Prosecution's case was that enmity existed with appellant only---Besides appellant, six persons were also arrayed as accused, out of them, five were acquitted of the charge on the same set of evidence---If evidence of the prosecution was disbelieved qua bulk of accused, it could not be believed qua the other in absence of very strong corroboration---Said facts and circumstances, when evaluated on judicial parlance, reflected that prosecution had failed to establish culpability of the accused-appellants in the case through reliable, trustworthy and confidence inspiring evidence---Accused were acquitted, in circumstances.

Akhtar Ali and others v. The State PLJ 2008 SC 269; Shera alias Sher Muhammad's case 1999 SCMR 697 and Sher Bahadur's case 1972 SCMR 651 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Weapon of offence was recovered from accused---Reliance---Scope---Record showed that recovery of .12 bore gun had been affected from the house of one "B" and not from a place exclusively in possession of the accused, hence the same was of no use---Recovery was deemed to be corroborative in nature and used for support of direct evidence.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive not proved---Effect---Motive was a double edged weapon which could cut either way---Prosecution case was that there existed enmity between accused only---Complainant had opted to involve as many as six other persons besides accused-appellants, in the FIR, when there existed no earthly reasons for sharing of their intention with the principal accused.

(d) Criminal trial---

----Benefit of doubt---Principle---One circumstance which created reasonable dent in the veracity of the prosecution version could be taken into consideration for extending benefit of doubt.

Tariq Pervez v. The State 1995 SCMR 1345; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Shahid Azeem and Uzma Razzaq for Appellant.

Rai Akhtar Hussain, D.P.G. for the State.

Nemo for the Complainant.

2019 M L D 2036

[Lahore]

Before Shakil-ur-Rehman Khan, J

SUGHRAN BIBI---Petitioner

Versus

MUNAWAR AKRAM and 2 others---Respondents

Writ Petition No. 20639 of 2019, decided on 10th April, 2019.

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

----S. 25---Custody of minor---Welfare of minor---Propinquity of siblings---Scope---Petitioner/paternal aunt assailed order of Guardian Judge and District Judge whereby they had allowed the petition of real mother for custody of minor---Petitioner contended that minor was given to the petitioner after three days of his birth; that petitioner was maintaining the minor as her own child and that the minor considered her to be his real mother since his birth---Validity---Reply to the petition under S. 25, Guardians and Wards Act, 1890 was vague and it was for the first time stated in evidence that minor was handed over to the petitioner after three days of his birth by the father with the understanding that the petitioner would look after the said minor---Petitioner, paternal aunt of the minor, had five sons and two daughters out of her own wedlock---Elder son of the petitioner worked in a workshop and the other son worked at a hotel---Real mother of the minor had not entered into second marriage---Minor could not be allowed to be kept away from his real mother, as the mother's lap is the cradle of God---Minor's father had passed away, however, since his real mother was alive and his two sisters were also living with her, therefore, the scale of welfare of minor tilted in their favour---No illegality or perversity was found in the impugned judgments and decrees passed by courts below---Constitutional petition, being devoid of merits, was dismissed.

Mehmood Akhtar v. District Judge, Attock 2 others 2004 SCMR 1839; Mst. Rabia Bibi v. Abdul Qadir and others 2016 CLC 1460; Tariq Mehmood and others v. Additional District Judge and others 2016 MLD 1767 and Mst. Nazli v. Muhammad Ilyas and another 2010 MLD 477 ref.

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

----S. 17---Matters to be considered by the court in appointing guardian---Welfare of minor---Propinquity of siblings---Scope--- Rights, if any, of the parents are to be given a second place and the 'child's welfare' will always be the key consideration---Welfare of the child/minor includes, but is not limited to, his health, education, physical, mental and psychological well-being as well as his development---Right of togetherness with his siblings is also very relevant---No check-list under the Guardians and Wards Act, 1890 is available to determine the welfare of the minor, therefore, each case has to be decided on its own facts and evidence brought on record---Court has to enter into a 'balancing exercise' while applying the test of 'welfare of the child'.

2019 M L D 2056

[Lahore]

Before Amin-ud-Din Khan, Muhammad Ameer Bhatti and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD UMAIR ASHIQand 25 others---Petitioners

Versus

HIGHER EDUCATION COMMISSIONand others---Respondents

Writ Petition No.872 of 2017, decided on 3rd July, 2019.

Per Amin-ud-Din Khan, J; Malik Shahzad Ahmad Khan, J agreeing and Muhammad Amir Bhatti, J, dissenting [Majority view]

(a) Higher Education Commission Ordinance (LIII of 2002)--

----S. 10(1)(e) & (o)---Guidelines for the Establishment of New University or an Institution of Higher Education, Para. 3.1---Unregistered sub-campus of University---Effect---Petitioners were students of Preston Institute of Management, Science and Technology (PIMSAT) Karachi and were enrolled at sub-campus at Lahore---Grievance of petitioners was that they had paid tuition fees and other charges and completed their courses but Higher Education Commission refused to verify their degrees and transcripts on pretext that sub-campus was established illegally---Validity---No Objection Certificate granted to PIMSAT by Higher Education Department, Punjab for opening of sub-campus was conditional and that too for a period of six months---Such period was never extended and there was nothing on record to show that conditions were fulfilled---On basis of Para.4.3(xvi) of Guidelines opening of sub-campus without permission of Higher Education Commission was not competent--- Board of Governors of PIMSAT Karachi did not ever discuss agenda item and did not approve any mechanism for establishment of sub-campus at Lahore--- Only record available was purchase of land for establishment of sub-campuses at Lahore and nothing more---Record did not show that faculty members were appointed by Board of Governors of PIMSAT and what was faculty for each degree program---No record was available of proper appointment of faculty members of degree classes by authority and record of students was also not proper--- Invitation to Higher Education Commission for inspection of campus to see that campus otherwise met with criteria of building library and other facilities required to be given to students for a degree program was also not available---High Court declined to interfere in the decision made by Higher Education Commission---Constitutional petition was dismissed in circumstances [Majority view]. Per Muhammad Ameer Bhatti, J. [Minority view]

(b) Higher Education Commission Ordinance (LIII of 2002)--

----S. 10(1)(e) & (o)---Guidelines for the Establishment of New University or an Institution of Higher Education, Para. 3.1---Unregistered sub-campus---Effect---Contributory negligence, principle of---Applicability---Petitioners were students of Preston Institute of Management, Science and Technology (PIMSAT) Karachi and were enrolled at sub-campus at Lahore---Grievance of petitioners was that they had paid tuition fees and other charges and completed their courses but Higher Education Commission had refused to verify their degrees and transcripts on pretext that sub-campus was established illegally---Validity---Higher Education Commission had knowledge of sub-campus being operational from "No Objection Certificate" by Provincial Government---Higher Education Commission raised objection regarding lack of any provision of opening of campus outside Karachi/Sindh but did not take steps to inform public at large restraining them to obtain admission in campus in question and there was no evidence about shortfall/deficiency regarding performance of sub-campus---Proper/Legal steps were neither taken by the Higher Education Commission or Authorities to close sub-campus nor measures were adopted to warn students/parents despite having knowledge of legal deficiencies of opening of sub-campus, therefore, permitting to impart education was contributory negligence on part of Higher Education Commission/authorities---Students at such stage could not be abandoned to suffer if proper measures were adopted at relevant time and position would have been otherwise and campus could have been closed in year 2016---High Court declared action of the Higher Education Commission refusing to recognize degrees of petitioners as illegal, unlawful and without any legal justification and directed the Higher Education Commission to verify degrees of petitioners forthwith---Constitutional petition was allowed accordingly. [Minority view].

Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161 and Muhammad Fahad Malik v. Pakistan Medical and Dental Council and others PLD 2018 Lah. 75 ref.

Ch. Ghulam Sarwar Nihung, Muhammad Saad Khan and Sultan Mehmood for Petitioners.

Sajid Ijaz Otiana and Tanzil ur Rehman for Respondent No.1.

Shan Gull and Asjad Saeed, Additional Advocates General Punjab for Respondents Nos. 2, 3,4 and 8.

Saad Rasul, Abid Saqi, Muhammad Ahsan Bhoon, Shan Saeed Ghumman for Respondents Nos. 5 to 7 and 9.

2019 M L D 2082

[Lahore]

Before Rasaal Hasan Syed, J

AMJAD MEHMOOD and others---Petitioners

Versus

Mst. SARDARAN and others---Respondents

Writ Petition No.31894 of 2016, decided on 22nd April, 2019.

Civil Procedure Code (V of 1908) ---

----S. 12(2)---Arbitration Act (X of 1940), S. 14---Arbitration agreement on behalf of attorney who was not authorized to execute the arbitration agreement---Effect---Such award was made rule of the court---Fraud and misrepresentation---Decree, setting aside of---Contention of applicants was that decree was obtained through fraud and misrepresentation---Petition for setting aside of decree was accepted concurrently---Validity---Special power of attorney did not contain any clause authorizing the attorney to execute the arbitration agreement or refer any matter for arbitration---Alleged arbitration agreement and subsequent proceedings on the basis thereof were not legal or operative in law to make such award a rule of the court---Impugned order making award a rule of the court was without jurisdiction and result of fraud which was rightly annulled---Where award did declare or assign rights in the immovable property then it would not have any legal effect unless it was registered---Property worth more than Rs. 100/- could not be conveyed nor any declaration of title could be given with regard to immovable property through an award which was unregistered---Invalid award was made a rule of the court through concealment of facts and misrepresentation---No mis-reading or error of law had been pointed out in the impugned orders passed by the Courts below---Findings recorded by the Courts below were based on correct analysis of evidence---Constitutional petition was dismissed, in circumstances.

Mst. Muhammdi v. Fazlur Rehman and others PLD 1954 Pesh. 61; Rashida Begum v. Ch. Muhammad Anwar and others PLD 2003 Lah. 522; Mst. Farida Malik and others v. Dr. Khalida Malik and others 1998 SCMR 816 and Haji Nawab Din v. Sh. Ghulam Haider and anothers 1988 SCMR 1623 rel.

2019 M L D 2095

[Lahore]

Before Shahid Jamil Khan, J

SHERAZ PERVAIZ MUSTAFA---Petitioner

Versus

The SPECIAL JUDGE (RENT), LAHORE and others---Respondents

Writ Petition No. 25703 of 2019, decided on 27th June, 2019.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 5, 8, 9, 19 & 21---Ejectment of tenant---Tenancy being oral---Payment of fine---Effect---Ex-parte proceedings---Scope---Petition for leave to contest was dismissed and eviction petition was accepted ex-parte---Validity---Payment of fine would authorize the Rent Tribunal only to entertain an eviction petition---Mere entertainment of ejectment application did not confer jurisdiction to the Rent Tribunal nor could it be assumed unless relationship of landlord and tenant was accepted or its existence had been established through evidence---Rent Tribunal was to assume jurisdiction if eviction petition was supported by a registered tenancy---Relationship of landlord and tenant stood proved by operation of law in existence of written and registered tenancy agreement---Rent Tribunal was to determine the question of tenancy in absence of registered tenancy agreement for which relationship of landlord and tenant was sine-qua-non---Rent Tribunal to determine the terms and conditions of tenancy before determining the grounds of seeking an eviction order---If Rent Tribunal had proceeded ex-parte after denying leave to contest then existence of tenancy and its breach was prima facie to be proved by a non-compliant applicant through unimpeachable and undeniable evidence---Impugned order had been passed in a mechanical manner and no findings with regard to existence of tenancy or non-payment of rent had been passed---Rent Tribunal had failed to discharge its duty, in circumstances---Impugned orders passed by the Courts below were set aside---Ejectment petition was to be deemed to be pending before the Rent Tribunal---Constitutional petition was allowed, in circumstances.

Umer Ikram-ul-Haq v. Dr. Shahida Hussnain 2016 SCMR 2186; Rana Abdul Hameed Talib v. Additional District Judge PLD 2013 SC 775; Afzal Ahmad Qureshi v. Mursaleen 2001 SCMR 1434; Haji Khudai Nazar v. Haji Abdul Bari 1997 SCMR 1986; East and West Steamship C. v. Queensland Insurance Co. PLD 1963 SC 663; Qureshi Salt and Spices Industries, v. Muslim Commercial Bank 1999 SCM R 2353; Haji Ali Khan v. Messrs Allied Bank of Pakistan Limited PLD 1995 SC 362 and and Provincial Government through Collector, Kohat v. Shabbir Hussain PLD 2005 SC 337 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court in constitutional jurisdiction could not replace a finding of fact recorded by the Court of competent jurisdiction.

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

----Art. 129(e)---Presumption of truth was attached to the judicial proceedings.

Muhammad Khalil Rana for Petitioner.

Masood A. Malik for Respondent No.3.

2019 M L D 7

[Peshawar]

Before Qalandar Ali Khan, J

ANDAZ KHAN---Petitioner

Versus

SALMA GUL and 2 others---Respondents

Cr. M/QP No.87-P of 2018, decided on 12th October, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 154 & 561-A---Police Order (22 of 2002), Art.156---Khyber Pakhtunkhwa Maintenance of Public Order Ordinance (XXXI of 1960), S.3---Ex-officio Justice of Peace---Power to direct arrest and detain suspected persons---Penalty for vexatious entry, search, arrest, seizure of property, torture---Direction by Justice of Peace to District Police Officer instead of SHO---Effect---Petitioner, being SHO, had filed petition for quashing of order of Ex-officio Justice of Peace, whereby application of respondent was accepted and District Police Officer was directed to proceed under S.154, Cr.P.C.---Respondent's application against the SHO/petitioner and his other companions had revealed that they had trespassed her house at midnight---Station House Officer/petitioner and other police officials, after inquiring about respondent's father, allegedly had subjected women folks to severe beating, used abusive language, taken away gold ornaments and cash amount---Respondent's contention was that no one in the house was required to the Police---Order of Deputy Commissioner against father and uncle of respondent under Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960 had been suspended by the High Court---Station House Officer/petitioner, through comments filed before Ex-officio Justice of Peace, had tried to justify the midnight raid for arrest of father and uncle of respondent on the orders of Deputy Commissioner under S.3 of Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960---Ex-officio Justice of Peace had arrived at the conclusion that allegations contained in application constituted a cognizable offence under Art.156, Police Order, 2002---Veracity of allegations regarding maltreatment, taking away of valuables and cash amount during the raid and also whether order of suspension of warrant of arrest had been conveyed to petitioner, were 'area of investigation' and could not be determined prior to registration of FIR---Held, Ex-officio Justice of Peace had rightly directed the District Police Officer to proceed with the matter in accordance with law as provided under S.154, Cr.P.C., which, though, meant for Incharge of the Police Station, was not expected to be invoked by the local police in view of the fact that the complaint was against SHO and other police officials---Station House Officer could not point out any illegality or legal infirmity in the order of Ex-officio Justice of Peace---Petition for quashing of order of Ex-officio Justice of Peace was dismissed in limine.

Fazal-e-Wahid for Petitioner.

2019 M L D 50

[Peshawar (Bannu Bench)]

Before Abdul Shakoor and Shakeel Ahmad, JJ

SHER JAN---Petitioner

Versus

The STATE and another---Respondents

Cr. M. Petition No. 36/B of 2018 in Cr. A. No.101/B of 2018, decided on 4th September, 2018.

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

----S. 426---Suspension of sentence---Scope---Tentative assessment of evidence on the basis of which finding of guilt was given was not barred for the purpose to consider the application of suspension of sentence under S.426(1), Cr.P.C.

Altaf Hussain Shah v. The State 1986 PCr.LJ 2202; Allah Yar and another v. The State 1996 PCr.LJ 211 and Mumtaz Ali and another v. The State 2012 YLR 2204 rel.

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

----S. 426---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Application for suspension of sentence pending appeal---Prosecution case was that the accused raised lalkara and issuing command to co-accused to kill the son of complainant; upon which co-accused started firing and son of complainant was hit---Accused-petitioner remained present before the court during the whole trial---Accused was convicted under S.302(b) read with S.34, P.P.C., whereas there was no such evidence, which could attract the provision of S.34, P.P.C.---Such fact even otherwise would be determined at the time of hearing the main appeal, which was not at sight in the near future---Scope---Record showed that the only allegation against the petitioner was that he raised lalkara/issued command to his son to commit murder of deceased and facilitated the crime---Genuineness or otherwise of allegation against the accused-petitioner would be adjudged at the time of final adjudication of main appeal---Accused had made out a case for suspension of sentence---Accused was released on bail by suspending the sentence.

Muhammad Ashfaq v. The State 2005 YLR 2314; Noor Muhammad v. The State and another 2013 YLR 235; Muhammad Ali v. The State 2007 YLR 2986; Mst. Nasreen Bibi v. The State PLD 2007 Lah. 531; Muhammad Yaseen v. The State 2007 MLD 1066 and Mumtaz Hussain v. The State 2006 YLR 2385 rel.

Muhammad Rashid Khan Dirma Khel and Muhammad Ashraf Marwat for Petitioner.

Shahid Hameed Qureshi, Addl. A.G. for the State.

Salahuddin Marwat for Respondent.

2019 M L D 76

[Peshawar]

Before Qalandar Ali Khan, J

HASNAIN OBAID---Petitioner

Versus

ASIF SHAKOOR and another---Respondents

Criminal Revision No.14-P of 2018, decided on 10th September, 2018.

Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), S. 428---Dishonestly issuing cheque---Appreciation of evidence---Additional evidence---Scope---Accused-petitioner was charged for dishonestly issuing cheque for payment of Rs. 6.8 million to the complainant---Accused-petitioner claimed that he was psychological patient and that the cheque in question had fraudulently been obtained from him and he had already paid Rs. 2.7 million to the complainant as against Rs.2.4 million due against him---Accused-petitioner claimed that the said record could not be placed on the file as he was in jail and had no access to the same, being handicapped---Application under S.428 Cr.P.C. was submitted to the appellate court, but was dismissed ---Validity---Main stress of the petitioner was on his mental ill health, which, indeed, had never been pleaded as a defence either in the criminal case or in the civil suit filed by complainant against the petitioner for the recovery of Rs.6.8 million---During his statement recorded under S.342, Cr.P.C., petitioner was specifically asked whether he wanted to produce any defence evidence and his answer was no---Petitioner raised the said plea of additional evidence after his conviction in the case that was apparently an after-thought---Accused-petitioner had refused to avail the opportunity of recording defence evidence, so as to invoke the jurisdiction of the appellate court for taking further evidence---Earlier recording of evidence by a party would be the essential pre-requisite for recording of further evidence, which was non-existent in the present case---Petitioner did not avail the opportunity of recording his defence evidence during trial proceedings---Revision petition was dismissed in circumstances.

Muhammad Alamzeb Khan for Appellant.

Malik Akhtar Hussain, A.A.G. assisted by Muhammad Zarshad Khan for Respondents.

2019 M L D 87

[Peshawar (Abbottabad Bench)]

Before Syed Afsar Shah and Syed Arshad Ali, JJ

Dr. SHAMSHER ALI KHAN and 27 others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Finance and 2 others---Respondents

Writ Petition No. 1124-A of 2016, decided on 25th October, 2017.

Estoppel---

----Promissory estoppel---Medical house job---Stipend, payment of---Petitioners being MBBS qualified from private Medical Colleges were offered house job against payment of stipend---Non-releasing of funds by the Government---Promissory estoppel, doctrine of---Applicability---Petitioners were offered house jobs against payment of stipend for a particular period and they joined their duties---Authorities, Teaching Hospital stopped the payment of stipend owing to non-releasing of funds by the Government---Validity---Petitioners had been offered house job against payment of stipend and they joined their duties---Right to receive stipend had been accrued in favour of petitioners as agreed and promised by the authorities---Authorities being State functionaries could not be allowed to resile from the commitment made with their subjects---If action of Government while dealing with the people was unfair or unreasonable then same could be corrected by the Constitutional Court on the principles of legitimate expectations and promissory estoppel---Government could not refuse to abide by its promise---Petitioners had performed their duties as house officer against stipend and authorities could not refuse the stipend to them ---Impugned order whereby stipend to the petitioners was disallowed was declared illegal---Authorities were directed to pay stipend to the petitioners as offered---Constitutional petition was allowed, in circumstances.

Federation of Pakistan v. Chaudhary Mohammad Aslam 1986 SCMR 916; Fecto Belarus Tractors Limited v. Pakistan through Ministry of Finance Economic Affairs 2001 PTD 1829 and Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others 1998 PTD 2728 rel.

Hafiz Iftikhar Ahmed Khan for Petitioners.

Yasir Zahoor Abbasi, Assistant Advocate General for Respondent No.1.

Shahid Aziz for Respondents Nos.2 and 3.

2019 M L D 107

[Peshawar]

Before Qaiser Rashid Khan and Muhammad Nasir Mahfooz, JJ

Messrs WAHID BUILDERS AND TECHNO TIME CONSTRUCTION COMPANY PRIVATE LTD. through Attorney and 4 others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary SAFRON, Pak Secretariat, Islamabad and 6 others---Respondents

Writ Petition No.4065-P of 2018, decided on 28th August, 2018.

Khyber Pakhtunkhwa Public Procurement Regulatory Authority Act (XI of 2012)---

----Ss. 14-A, 23, 3, 35 & 35-A---Khyber Pakhtunkhwa Procurement Rules, 2014, Rr.7, 8 & 26---Auction proceedings---Bidding process---Pre-qualification for bidding---Injunction, grant of---Scope---Petitioners challenged refusal of authorities to let them participate in the bidding process---Petitioners submitted their proposals but failed to prequalify for the bidding process---Validity---Petitioners were legally bound to provide documentary proof depicting their past performance---Documents annexed with the petition fell short of the requisite standard---Petitioners had not even challenged the action of authorities whereby they had been refused pre-qualification, rather they had prayed for issuance of directions to the authorities to allow them to participate in the bidding process---Held, subject-matter being question of public interest, relating to construction of road, therefore, grant of injunction in such like matters would be more inconvenient for public at large and less inconvenient for the petitioners---Constitutional petition was dismissed in circumstances.

Shakirullah Afridi for Petitioners.

Syed Sikandar Hayat Shah, A.A.G. along with Inayatullah XEN Highway Bajawar, Ziaul Islam XEN Highway Kurram and Muhammad Ali, Project Driector PMU, FATA Secretariat for Respondents.

2019 M L D 122

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

Syed IJAZ HUSSAIN SHAH---Appellant

Versus

KHALID AZIZ---Respondent

R.F.A. No.83-A of 2016, decided on 12th March, 2018.

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

----S. 12---Exclusion of time in legal proceedings---Computation of---Principle---Time consumed in obtaining attested copy of the judgment and decree would be excluded from the time "requisite" for filing appeal, however, even during the said interval, i.e. applying for attested copy and the time when the attested copy is ready for delivery, due diligence on the part of litigant is required and there must be no delay on the part of litigant, unless the same is caused by circumstances over which he had no control

Fateh Muhammad and others v. Malik Qadir Bakhsh 1975 SCMR 157; Gul Muhammad v. Allah Ditta PLD 1960 Lah. 443; Muhammad Afzal v. Islamic Republic of Pakistan PLD 1968 Lah. 1205; West Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1973 SC 222; Mst. Jameela Khatoon v. Mst. Tajunnisa PLD 1984 SC 208 and Cantonment Board, Harian Cantt: v. Muhammad Shafi PLD 1991 SC 400 ref.

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

----O.XXXVII, R.2---Negotiable Instruments Act (XXVI of 1881), S.118---Suit for recovery of money on the basis of negotiable instrument---Burden of proof---Scope---Presumption attached to the negotiable instrument---Scope---Plaintiff/decree holder, in the present case, by producing the original cheque and Bank Officer had discharged his initial burden, however the judgment-debtor failed to appear as witness or to produce any other witness in support of his plea that the cheque was executed and handed over to the plaintiff as security---Decree issued by Trial Court in favour of plaintiff was upheld---Appeal was dismissed.

Muhammad Shoaib Khan for Appellant.

Muhammad Ayub Khan for Respondent.

2019 M L D 176

[Peshawar]

Before Muhammad Nasir Mahfooz, J

Mst. HASEENA---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.1615-P of 2018, decided on 20th August, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances (XXV of 1997), S.9(c)---Possession of heroin weighing more than three kilograms---Bail, grant of---Lady accused confined along with her infant baby---Welfare of child---Scope---Lady accused having minor girl in her lap, deboarded from passenger van and on search by lady constable five packets of heroin were allegedly recovered from her which she had tied with her body---Effect---Considerable quantity of heroin though had been recovered from the possession of petitioner but she was also having suckling baby girl, eight months of age---Baby was kept in jail with her mother for no sin of her own---Concept of welfare of minor was incompatible with jail life, so instead of detaining the innocent baby in jail for the crime allegedly committed by her mother, it would be in the interest of justice as well as welfare of minor if her mother/petitioner was to be released on bail---Petitioner was admitted to bail, in circumstances.

Sawar Khan for Petitioner.

Waqas Ahmad Khan Chamkani for the State.

2019 M L D 195

[Peshawar (Mingora Bench)]

Before Mohammad Ibrahim Khan, J

MUHAMMAD SHOAIB---Petitioner

Versus

MUHAMMAD AYUB and 9 others---Respondents

Civil Revision No.100-M of 2017 with C.M. 361 of 2017, decided on 6th September, 2017.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), Ss. 12, 42 & 54---Agreement to sell---Suit for declaration, permanent injunction and possession---Maintainability---Plaint, rejection of---Scope---Defendants moved application for rejection of plaint on the ground that suit for declaration on the basis of contract of sale between the parties was not competent---Application for rejection of plaint was accepted concurrently---Validity---Plaintiff had sought decree for declaration and permanent injunction on the basis of agreement to sell---Sale agreement was for consideration of Rs. 15,00,000/- and its registration before Registrar was mandatory---Sale agreement in question was not registered and no sale had been completed---Suit for declaration on the basis of sale agreement was not competent except that plaintiff was in possession under enforceable contract of sale---Plaintiff could not seek declaration and only course available for him was to file a suit for specific performance for completion of sale---Plaint had rightly been rejected in the present case---Revision was dismissed in circumstances.

Muhammad Saeed v. Nahid Shagufta and 3 others PLD 1990 Lah. 467; Khalid Khan v. Haji Muhammad Anwar 2015 YLR 1845; Gohar Rehman v. Riaz Muhammad 2011 YLR 888; Muhammad Iqbal and others v. Mst. Baseerat and others 2017 SCMR 347; Noor Din and another v. Additional District Judge Lahore and others 2014 SCMR 513; Sher Khan through LRs v. Gul Zar Khan 2016 CLC 663 and 2000 CLC 1546 rel.

2019 M L D 238

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

MIR AFZAL---Petitioner

Versus

MOHAMMAD FAREED and 14 others---Respondents

Writ Petition No. 44-A of 2017, decided on 9th August, 2018.

Civil Procedure Code (V of 1908)---

----Ss. 36 - 74 & O. XXI & O. XXXIX---Contempt of Court Ordinance (V of 2003), Ss. 3 & 4---Penal Code (XLV of 1860), Ss. 182 - 190 & 228---Criminal Procedure Code (V of 1898), S. 195---Specific Relief Act (I of 1877), S. 54---Suit for permanent injunction---Dispossession of plaintiff from the suit property---Decree, execution of---Violation of decree or order of the Civil Court---Contempt proceedings, initiation of---Forum---Suit was decreed and execution petition for satisfaction of decree passed in favour of decree-holder was moved but same was dismissed---Decree-holder filed contempt petition against judgment-debtor for violation of order of the Court but same was also dismissed---Validity---Civil Court had power to execute decree against judgment-debtor through arrest, detention, attachment and sale of his property---Civil Court was competent to prosecute any person under O. XXXIX, C.P.C. who had violated any order with regard to temporary injunctions---Any person who had insulted a Judicial Officer while conducting judicial proceedings could be punished under S.228, P.P.C.---Civil Procedure Code, 1908 and Penal Code, 1860 did not provide remedy against any act of judgment-debtor in violation of Court decree---Any person who had violated decree or order of civil Court could be punished under Contempt of Court Ordinance, 2003 by the High Court---Jurisdiction to initiate contempt proceedings for violation of Civil Court decree or order would vest in the High Court---Subordinate Courts were not vested with any such jurisdiction to initiate contempt proceedings---Subordinate Courts had been provided with the jurisdiction to initiate proceedings and convict the persons for interrupting any judicial proceedings or insulting Judicial Officer---Violation of orders, judgments and decrees of subordinate Courts would amount to contempt of Court but cognizance to initiate contempt proceedings was with the High Court---Allegations contained in the application moved before Trial Court by the petitioner might constitute an offence under Contempt of Court Ordinance, 2003 but subordinate Court had no jurisdiction either to initiate any action against the alleged contemnor under Contempt of Court Ordinance, 2003 or Civil Procedure Code, 1908 for contempt of Court---High Court had jurisdiction under S.4 of Contempt of Court Ordinance, 2003 to initiate contempt of Court proceedings against any person who had allegedly committed contempt of any civil Court---Contempt petition filed by the petitioner before Civil Court was not maintainable---Constitutional petition was dismissed in circumstances.

Gh. Muhammad Ramzan v. The State and 2 others 1982 PCr.LJ 1061; Yar Muhammad v. The State 1990 PCr.LJ 1736 and Said Muhammad v. Sultan Ahmad and 7 others 2000 CLC 387 rel.

Syed Altaf Hussain Shah for Petitioner.

Muhammad Saleem Awan for Respondents.

2019 M L D 262

[Peshawar]

Before Ikramullah Khan, J

FAZAL MALIK through L.Rs. and others---Petitioners

Versus

ARSALA KHAN and others ---Respondents

Civil Revision No.1409 of 2004, decided on 24th September, 2018.

Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act (VI of 1935)--

----S. 3---Suit for declaration---Succession---Limitation---Co-sharer---Effect---Contention of plaintiff was that he was owner in possession of his share in the suit property inherited to himon the death of his father---Suit was dismissed being time-barred---Validity---No question of limitation would arise in cases where the controversy before the Court was with regard to legacy of a Muslim died before 1935 in the era of Riwaj (Custom)---Mere attestation of mutation which excluded a co-sharer or female co-sharer could not be made basis for holding that limitation would run against plaintiff from the date of attestation of impugned mutation---Where matter was exclusively with regard to illegal entries made during course of Riwaj (Custom) which were kept intact even after promulgation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 then question of limitation or adverse possession would not operate as a barring factor in the way of correction of said entries or readjustment of shares of legal representatives in accordance with Injunctions of Islam---Findings recorded by both the Courts below could not sustain, in circumstances---Impugned judgments and decrees passed by the Courts below were set aside---Revenue authorities were directed to make relevant correction in the Record of Rights keeping in view S.3 of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 the whole suit property---Revision was allowed, in circumstances.

Mst. Suban v. Allah Ditta and others 2007 SCMR 635; Mst. Muridan Bibi and another v. Ghulam Fareed and 7 others 2014 CLC 1362; Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801; Mst: Zinat-un-Nisa and 2 others v. Abdul Wahab and another 2005 CLC 1383 and Miskeen and others v. Mst. Khudeja alias Mirza Noor and others 2001 MLD 1790 rel.

Syed Rifaqat Shah for Petitioners.

Abdul Munim Khan for Respondents.

2019 M L D 314

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

ISHTIAQ HUSSAIN SHAH---Petitioner

Versus

MUSHTAQ HUSSAIN SHAH and another---Respondents

C. R. No. 217-A of 2010, decided on 11th December, 2017.

(a) Malicious prosecution---

----Suit for damages---Essential elements---Criminal case was got registered against the plaintiff wherein he was acquitted on benefit of doubt---Plaintiff filed suit for recovery of damages on the basis of malicious prosecution which was decreed---Validity---Plaintiff had filed suit for award of general damages on account of malicious prosecution---Every criminal prosecution which ended in the acquittal of accused would not per se entitle the accused to file a suit for damages/ compensation---Original proceedings must have been malicious and without cause---Action for malicious prosecution was available as a remedy to one who had been wrongly involved/implicated in a criminal or civil proceedings---Plaintiff was required to establish the connection between reasonable and probable cause and the malice---Mere fact that plaintiff was prosecuted and acquitted would not suffice for the purposes of an action for malicious prosecution so long as he also proved the absence of reasonable and probable cause and malice---Burden to prove malicious prosecution would be on the plaintiff---Defendant-complainant was inflicted injuries by the accused and he was examined by the medical officer who appeared before the Court in support of his statement---Initiation of criminal proceedings against the plaintiff was neither without any reason and probable cause nor based on any malice---Acquittal of accused on the basis of some earlier compromise and extending him benefit of doubt would not clothe him with a cause to bring a suit for damages---Courts below had failed to appreciate the law and facts of the present case---Impugned judgments and decrees passed by the Courts below were set aside---Revision was allowed in circumstances.

Nayeb Ali Dafadar v. Abdul Ghani alias Gutu Mia PLD 1969 Dacca 985; Glinski v. McIver [1962] AC 726 at 765; Tempest v. Snowden 1952 1 K.B. 130; Abdur Rashid v. State Bank of Pakistan and another PLD 1970 Kar. 344; Fazale Rahim v. Rab Nawaz 1999 SCMR 700; Ishtiaq Ahmed v. Raees Ahmed 1991 CLC 1114; Muhammad Ashraf v. Inayat Ali 1993 CLC 576; Savile v. Robert (1698) 1 Ld. Raym. 374; Ali Mohammed v. Zakir Ali AIR 1931 All. 665; Ismat Ullah Cheema v. Sarfaraz Ahmad and others PLD 2006 Lah. 503 and Muhammad Akram v. Farman Bi PLD 1990 SC 28 rel.

(b) Malicious prosecution---

---Essential elements.

Glinski v. McIver 1962 A.C. 726 at p.742; Evans v. Alabama Professional Health Consultants, Inc. 474 So.2d 86; Nagendra Kumar v. Etwari Sahu AIR 1958 Pat. 329; Niaz and others v. Abdul Sattar and others PLD 2006 SC 432; Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6; Rana Shaukat Ali Khan and others v. Fayyaz Ahmad and others 2017 MLD 120; Marine Management Company v. Government of Pakistan PLD 2000 Kar. 215; Hussain Gul v. Soorat Shah and others 2014 MLD 1008; Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Muhammad Saeed v. Jan Muhammad 2006 YLR 2201; Gregory v. Portsmouth Council (2001) 1 ALL ER 560 and Dr. Abdul Qadir Akhund v. Shahila Perveen 2017 MLD 666 rel.

(c) Words and phrases---

---'Malicious prosecution'---Meaning.

Johnson and wife v. Browning (1704), 6 Mod. 216; Anwarzeb v. Mushtaq Ahmed 2015 MLD 601; Ghulam Hussain and another v. Muhammad Rafique 2015 MLD 1583; Black's Law Dictionary; Ballentine's Law Dictionary; Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478; Mehrban v. Ghulam Hassan 2016 CLC 1585; Israr Ali v. Mst. Ahmedi Begum and others 1990 MLD 1834; Black's Law Dictionary; Paton v. Rose (Dist Col App) 205 A2d 609; Blenn v. Morrill, 90 NH 109, 5 A2d 42); McDonald v. Carper, 252 NC 29, 112 SE2d 741; Melvin v. Pence, 76 App DC 154, 130 F2d 423, 143 ALR 149; Rosario v. Amalgamated Ladies' Garment Cutters' Union Local 10, I.L. G.W.U., C.A.N.Y., 605 F2d 1228; 100 S.Ct. 1853, 446 U.S. 919, 64 L.Ed. 2d 273, 749 F.2d 1000; National Surety Co. v. Page C. C.A Va, 58 F.2d 145; 59 F.2d 370; Laney v. Glidden Co., 194 So. 849, 239, Ala. 396; Summit Bank Ltd. v. Mohammad Ramzan 2016 MLD 139; Hicks v. Faulkner (1881) 8 QBD 167; Herniman v. Smith (1938) A.C. 305; Mitchell v. John Heine & Sons Ltd., Supreme Court of New South Wales, 1938 38 N.S. W.S.R. 466; Willers v. Joyce and another 2016 SCMR 1841; Salmond on the Law of Torts, 9th Edition, pages 658-659; Abdul Shakur v. Lipton & Co., AIR 1924 Lah. 1; Vogiozis v. Pappa Demisrian 20 I.C. 180; Province of East Bengal and others v. S.M. Faruque and others PLD 1959 Dacca 268; Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir 1984 CLC 325; Walayat Khan v. Abdul Usman 1990 CLC 37 and Muhammad Aslam v. Muhammad Ibrahim 2000 CLC 154 rel.

(d) Words and phrases---

---'Malice'---Meaning.

Salmond, Jurisprudence at p. 374 (1966), Baron Parke, Brown v. Hawkes (1891) 2 Q.B. 718; Adams v. Home Owners' Loan Corporation C.C.A. Neb., 107 F.2d 139; Owens v. Kroger Co., 430 So.2d 843; Allstate Ins. Co. Moulton, 464 So. 2d 507; Freezer v. Miller, 176 S.E. 159, 163 Va. 180; Hickland v. Endee, D. C.N.Y., 574 F.Supp. 770, affirmed 732 F.2d 142; Shepard v. Byrd, D.C.Ga., 581 F.Supp. 1374; Finally, in Brodrib v. Doberstein, 140 A. 483, 107 Conn. 294; Jamnadas v. Chunni Lal (1920) I.L.R. 45 Bom. 227; Imperial Tobacco Co. v. Bonnon, AIR 1928 Cal. 1; Mushoorappa v. Hanumanthappa, AIR 1947 Mad. 236; Laxmichand v. Union of India AIR 1955 Nag. 265; Babu Sumat Prasad v. Ram Sarup Sastry AIR 1946 All 204; Afroz Qureshi v. Muhammad Ikram Siddiqui 1995 CLC 735 and Abdul Rauf v. Abdul Razzak PLD 1994 SC 476 rel.

Tahir Faraz Abbasi for Petitioner.

Mrs. Raheela Mughal for Respondent.

2019 M L D 350

[Peshawar]

Before Waqar Ahmad Seth, C.J.

MUHAMMAD YASEEN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous/Bail Application No.1330-P of 2018, decided on 27th July, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860 ), Ss. 489-F, 420, 467, 408 & 109---Dishonestly issuing cheque, cheating, forgery, criminal breach of trust, abetment of offence; if abettor was present when offence was committed---Post arrest bail, refusal of---Admission of accused---Effect---Petitioner incharge of (warehouse of a fertilizer company), in connivance with co-accused, was allegedly involved in misappropriation of fertilizer and for repayment he issued 10 cheques to the tune of Rs. 9,50,00,000/- but the same were dishonored on presentation to the Bank---Complainant/company contended that huge amount worth Rs. 14,10,00,000/- was involved and the petitioner had admitted the claim of the company by tendering an affidavit---Petitioner was working in the Company as In-charge Warehouse/Godown and he not only committed criminal breach of trust through cheating/fraud by misappropriating fertilizer worth Rs. 14,10,00,000/- but he had also admitted the claim of the Company/complainant by furnishing an affidavit and issuing 10 cheques amounting to Rs. 9,50,00,000/- to the complainant---Said cheques were dishonoured on presentation for insufficient funds in the account---Huge amount being involved, which had been misappropriated through cheating/fraud, High Court declined bail to the accused.

Shabir Hussain Gigyani for Petitioner.

Malik Muhammad Tariq Rajwana for the Respondent.

Syed Sikandar Hayat Shah, A.A.G. for the State.

2019 M L D 361

[Peshawar]

Before Waqar Ahmad Seth, C.J.

TAHIR KHAN and another---Petitioners

Versus

The STATE---Respondent

Bail Application No.1898-P of 2018, decided on 8th October, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic substance weighing four Kilogram---Bail, grant of---Further inquiry---Petitioners ( two brothers ) were arrested while one was sitting on driving seat and the other on the front seat of the vehicle---Two kilograms of Charas each was allegedly recovered from beneath both the seats---Petitioners were alleged to be smuggling the contraband but neither their destination nor their alleged place of communication, from where the Charas was dispatched, had been brought on record---Nature of contraband, either Garda or Pukhta, had not been mentioned in the FIR---Nothing was brought on record in respect of seized vehicle; whether the same was in the name of accused or otherwise---Previous history of the petitioners regarding involvement in such like activities had not been brought on record ---Petitioners had been investigated/ interrogated but neither any further recovery had been made nor they had confessed their guilt---Investigation was complete and petitioners were no more required to the prosecution hence, keeping them behind the bars for indefinite period would serve no useful purpose when their case fell within the ambit of S.497(2), Cr.P.C, entitling them to the concession of bail---Bail was granted to the petitioners, in circumstances.

Zaigham Ashraf v. The State and others 2016 SCMR 18 ref.

Muhammad Saleem Shakir for Petitioners.

Rab Nawaz Khan, Additional Advocate General for the State.

2019 M L D 384

[Peshawar (D.I. Khan Bench)]

Before Ijaz Anwar, J

MUHAMMAD HANIF SULTAN and others---Appellants

Versus

Pir SULTAN NOOR AHMAD---Respondent

R.F.A. No. 51-D of 2017, decided on 30th October, 2018.

(a) Malicious prosecution---

----Damages, recovery of---Essential elements---Criminal case was got registered against the plaintiffs wherein they were acquitted holding that prosecution was biased and mala fide---Plaintiffs filed suit for recovery of damages on the basis of malicious prosecution which was dismissed---Validity---Complaint/prosecution initiated against the plaintiffs culminated in their acquittal with observations of the Court that the registration of case was result of extreme mala fide and malice---Plaintiffs faced agonies of trial and they were arrested by the police and their precious time was spent in facing criminal case---Criminal trial proceeded for about two years and plaintiffs had incurred financial expenditures as well---Plaintiffs and defendant were brothers inter se and were children of a respectable person---Service of legal notice before filing of suit was mandatory only for suits under Defamation Ordinance, 2002 and not in suits of like nature---Where plaintiffs were acquitted honourably with positive findings in their favour that they were prosecuted with mala fide intention then main cause of their prosecution had been established to be rivalry over "Sajada Nasheeni"---Loss of reputation could not be determined in terms of money nor it was necessary to produce general public in whose estimation reputation was downgraded---Where plaintiffs had claimed certain amount as damages then Court was empowered to award general damages keeping in view the facts and circumstances of the case---Trial Court in absence of any method to determine a fair assessment of damages was still under obligation to decide an amount of money as compensation keeping in view facts and circumstances placed on record by the plaintiffs---High Court while considering evidence led by the parties and agonies of plaintiffs in facing the trial assessed and allowed general damages under the rule of thumb and granted a decree to the tune of Rs. 10,000,000/- to the plaintiffs---Impugned judgment and decree passed by the Trial Court was set aside and suit of plaintiffs was decreed to the extent of general damages of Rs. 10,000,000/- to be recovered from the defendant---Appeal was allowed, in circumstances.

2015 MLD 601 ref.

2013 SCMR 507; Muhammad Sharif v. Nawab Din PLD 1957 Lah. 283; Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 CLD 6; Dr. Muhammad Raza Zaidi v. Glaxo Wellcome Pakistan Limited, Karachi 2018 MLD 1268; Mubashar Pesh Iman v. Federation of Pakistan 2016 PTD 518 and Government of Khyber Pakhtunkhwa v. Syed Jaffar Shah 2016 MLD 223 rel.

(b) Malicious prosecution---

---Guiding and mandatory ingredients enumerated.

In order to maintain suit for malicious prosecution, there are certain guiding and mandatory ingredients. Following are the elements of tests for malicious prosecution.

i. That the plaintiff was prosecuted by the defendant;

ii. That the prosecution ended in plaintiff's favour;

iii. That the defendant acted without reasonable and probable cause;

iv. That the defendant was actuated by malice;

v. That the proceedings had interfered with plaintiff's liberty and has also affected their reputation, and

vi. That the plaintiff had suffered damages.

Malik Muhammad Bilal for Appellants.

Sarwar Khan Kundi for Respondent.

2019 M L D 401

[Peshawar (Abbotabad Bench)]

Before Syed Arshad Ali, J

IQBAL RABBANI and 3 others---Petitioners

Versus

NOOR UL AIN and 2 others---Respondents

W.P. No.1144-A of 2017, decided on 5th December, 2017.

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

---Ss. 5, Sched, 7, 9, 17-A & 18---Family Courts Rules, 1965, R. 4---Civil Procedure Code (V of 1908), S. 132 & O. VI, R. 15---Suit for recovery of maintenance allowance, dower and dowry articles---Appearance of parties in person---Scope---Representation through counsel/attorney---Scope---Defendant-husband living abroad submitted wakalatnama and written statement without his signatures---Striking of defence---Scope---Personal appearance of a party before Family Court---Pardanasheen lady---Appearance through agent---Exemption from personal appearance---Appointment of a counsel---Authority of agent---Irregularity in the wakalatnama---Effect---Wife filed suit against her husband who lived abroad and his father---Wakalatnama and written statement signed by the father of husband were filed but without signatures of defendant-husband---Family Court struck-off defence of defendant-husband---Validity---Suit with regard to family matters could be filed before Family Court by presentation of a plaint---Court on presentation of plaint was to fix a date for appearance of defendant issue summons for appearance on the date fixed therein---If defendant received summon then he should appear before the Family Court and file written statement with list of witnesses---Pardanasheen lady/party to a family suit might be permitted to be represented by a duly authorized agent---Defendant was not bound to appear in person before Family Court---Right to be represented through counsel was a statutory right---Any person who was of the age of majority and was of sound mind might employ an agent through an express or implied authority---Said agent could perform every lawful action which was necessary in order to do such act---When a party was not required to personally appear then he could be represented through attorney or counsel---Appearance of the parties before the Court would include appearance through duly constituted attorney---Court had to confirm genuineness of pleadings/presentations and consent of parties to be represented having not been obtained by way of force, fraud or undue influence---Counsel appointed by a party to the proceedings could represent his/her client before the Court---Execution of wakalatnama was the written instrument and proof of such appointment---If from the record it was clear that party to the proceedings had appointed a counsel, mere omission of certain particulars in the wakalatnama was irregularity which would not vitiate the relations between the counsel and client---Family Court could strike-off defence if order for interim maintenance had not been complied with and decree the suit---If conduct of defendant was contumacious and he had willfully disobeyed the lawful order of Family Court then Court had jurisdiction to strike off the defence---Written statement was signed by one of the defendants and counsel in the present case---Submission of power of attorney at belated stage was not fatal---Order for striking-off defence in presence of valid written statement and that too without notice was unwarranted and not sustainable in the eyes of law---Non-signing of pleadings as well as wakalatnama were mere irregularity and said defect could be cured at any stage by allowing the party to put his/her signatures on the same---If any of the defendants had signed written statement then it would be deemed as valid written statement before the Court---If there was any defect in the power of attorney then same could be cured by filing power of attorney duly attested by the Consulate of Pakistan abroad---Defendant had been restrained from defending his case through impugned order which was against law; said order being illegal and final in nature was amenable to the constitutional jurisdiction of High Court---Defendant could be represented through duly authorized agent---Wakalatnama should be returned to the counsel for the defendant for resubmitting the same before the Trial Court---Defendant-husband was allowed to place on file the power of attorney executed in his favour---Impugned order passed by the Family Court was set aside---Constitutional petition was allowed in circumstances.

2011 CLC 1836; PLD 1996 SC (AJ&K) 13; 2010 MLD 904; PLD 2001 Lah. 495; PLD 2015 Lah. 612; PLD 2016 Lah. 73 and 2015 MLD 265 ref.

Mst. Saeeda v. Lal Badshah 1981 SCMR 395; Ghulam Qadir v. Abdul Sattar PLD 1984 SC 12; Liaqat Hayat v. Muhammad Sarwar 1985 SCMR 1386; Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore 2014 SCMR 1365; 1997 CLC 487; Mst. Ruqayya Bibi v. Additional District Judge, Khushab PLD 2012 Lah. 408; Shahida Perveen v. Sher Afzal 2006 MLD 1752; Noreen Rehman v. Raja Javed Akhtar 1997 CLC 142; Toor Gul v. Mst. Mumtaz Begum PLD 1972 SC 9; Sabir Ali v. Mst. Zubaida Bibi 1993 MLD 321; Ismail and another v. Mst. Razia Begum 1981 SCMR 687; Taj Muhammad v. Muhammad Azam Sattar 1998 CLC 787 and Muhammad Munshi v. Rikiya Bibi 1990 CLC 301 rel.

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

---S. 9---'Appearance'---Meaning stated.

Blacks Law Dictionary IInd Edition; Wikipedia and Oxford Living Dictionary rel.

Malik Shujahat Ali for Petitioner.

Malik Waseem Fazal for Respondents Nos.1 and 2.

2019 M L D 477

[Peshawar]

Before Rooh-ul-Amin Khan, J

BAKHTIAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous B.A. No.2305-P of 2018, decided on 12th November, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 164 & 203-C---Penal Code (XLV of 1860), Ss. 496-A & 496-B---Enticing or taking away or detaining with criminal intent a woman, fornication---Bail grant of---Non-compliance of proper procedure in case of fornication---Effect---Complainant alleged that , while he was abroad for his livelihood, his nephew ( Petitioner) , developed illicit relations with his wife whom he (complainant ) had also charged as she eloped with him leaving the children behind---Petitioner contended that complainant had registered F.I.R instead of adopting proper procedure under S. 203-C, Cr.P.C for lodging complaint before the competent Court---Complainant contended that the petitioner had recorded his confessional statement---Validity---Record revealed that mandatory provisions of S. 203-C, Cr.P.C. had not been complied with, nullifying all the proceedings to the extent of S. 496-B, P.P.C.---Section 496-B, P.P.C. was deleted from the FIR notwithstanding the confessional statement of petitioner, authenticity and voluntariness of which was yet to be determined during trial---Petitioner had been shown arrested five days prior to recording of his alleged confession---Complainant in his statement under S. 164, had charged both the accused for keeping illicit relation and he had not specifically charged the petitioner for enticing or taking away his wife with intent that she would have illicit intercourse with him, which were the essential ingredients to constitute the offence under S. 496-A, P.P.C.---Even otherwise, punishment provided for the offence under S. 496-A did not fall within the prohibitory clause of S. 497, Cr.P.C. and in such like cases grant of bail was rule and refusal an exception---Bail was granted to the petitioner, in circumstances.

Bakht Nawaz Khan for Petitioner.

Wajahat Hussain for the State.

2019 M L D 496

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali, J

RAHIM KHAN and another---Petitioners

Versus

GUL BADSHAH and 5 others---Respondents

C.R. No.265-A of 2012, decided on 8th December, 2017.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 114---Suit for declaration---Sale mutation---Agreement between parties---Comparison of thumb impression of vendor---Binding effect---Estoppel, principle of---Applicability---Parties filed suit against each other wherein plaintiff moved application for comparison of thumb impression on the impugned sale mutation and volunteered that if same proved to be identical of vendor then his suit be dismissed and suit of defendant be decreed---Trial Court got compared the thumb impression of vendor on the mutation in question and it was reported that same was identical to the vendor---Suit filed by the plaintiff was dismissed whereas that of defendant decreed---Appellate Court reversed the findings of Trial Court on the ground that Expert evidence was non-conclusive on the fact in issue---Validity---Particular mode was adopted by the parties to settle the issue by referring the disputed mutation for Expert opinion---Parties agreed that if Expert confirmed the thumb impression of vendor on the mutation in question then suit of plaintiff should have been dismissed and that of defendant decreed---Parties with their mutual consent had adopted a procedure for decision of their suits by referring the matter to the opinion of Expert and had agreed that his opinion would be binding on them---Procedure agreed by the parties, in the present case, did not offend any law---Trial Court had rightly decreed the suit of defendants and dismissed that of plaintiff---Plaintiff could not be allowed to approbate and reprobate and change his position after the Expert report which had confirmed his thumb impression on the impugned mutation---Appellate Court had failed to appreciate that fact of the case and had only relied on the evidentiary value of Expert opinion---Impugned judgment passed by the Appellate Court was set aside and that of Trial Court maintained---Revision was allowed in circumstances.

Hashim Ali v. Asghar Ali 2014 YLR 2150 and Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 rel.

Muhammad Naeem Anwar for Petitioners.

Syed Ajjad Hassan Shah for Respondents.

2019 M L D 648

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz, J

RAHMATULLAH KHAN and 3 others---Petitioners

Versus

ABU KHAN and others---Respondents

Civil Revision No. 42-B of 2013, decided on 7th November, 2018.

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

----Ss. 3 & 4---Muslim Family Laws Ordinance (VIII of 1961), S. 3---Specific Relief Act (I of 1877), S. 42---Succession---Custom (riwaj)---Scope---Limited owner---Scope---Suit for declaration---Limitation---Co-sharer---Contention of plaintiff was that he was entitled to his shari share in the legacy---Suit was dismissed by the Trial Court on the ground of limitation but same was decreed by the Appellate Court---Validity---When inheritance opened it would be distributed according to sharia---Suit filed by a co-sharer could not be barred by limitation---Provision of Muslim Family Laws Ordinance, 1961 allowed inheritance to the children of propositus---Section 3 of Muslim Family Laws Ordinance, 1961 had provided that the provisions of said Ordinance would have effect notwithstanding any law, custom or usage---Muslim male heir who had acquired any agricultural land under the custom was to be deemed to have become an absolute owner upon acquisition of such land as if such land had devolved on him under the West Pakistan Muslim Personal Law (Sharia) Application Act, 1962---Mutation in question was attested in favour of the mother of plaintiff when she married the father of plaintiff---Appellate Court had discussed all the evidence and question of law as well as facts while passing the impugned judgment and decree---No irregularity or illegality had been pointed out in the impugned judgment passed by the Appellate Court---Revision was dismissed in circumstances.

Muhammad Bakhsh v. Muhammad Shafi and others 1997 SCMR 1218; Nazir Ahmad and others v. Abdullah and others 1997 SCMR 281; Bashir Ahmad v. Abdul Aziz and others 2009 SCMR 1014 and Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema 2016 SCMR 763 rel.

Hafeez Ullah Khan for Petitioner.

H. Zafar Iqbal for Respondents.

2019 M L D 675

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

RASHID KHAN---Appellant.

Versus

THE STATE and another---Respondents

Criminal Appeal No.22-A of 2015, decided on 8th November, 2018.

(a) Criminal trial---

----Evidence---Related witness, testimony of---Reliance---Scope---Evidence of witness could not be discarded on the ground of his/her being related to the victim---If testimony of a related witness was not corroborated by attending circumstances of the case or the conduct shown by witness at the time of occurrence or just thereafter was such, which could not be expected from a prudent person, the evidence furnished by such related witness could be discarded.

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

----Ss. 302(b), 452, 109 & 34---Qatl-i-amd, house-trespass after preparation for hurt, abetment, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused-appellants assaulted on son of complainant and made firing upon him, due to which victim died on the spot---Motive for the offence was stated to be some previous blood feud---Ocular account was furnished by complainant and widow of deceased---Record reflected that the occurrence had taken place at Fajar Azaan Vela whereas same was reported to police by the complainant at 8.30 a.m. and that too at the place of occurrence---Conduct of the complainant by not shifting the dead body of his son either to a hospital or the police station suggested that at the time of occurrence he was not present on the spot---If the complainant was present on the spot at the time of occurrence, he would have taken the dead body either to a hospital or to the police station, which admittedly he did not do---If the complainant was unable to take the deceased either to the hospital or police station, he could have deputed someone for the purpose---Waiting for police on the spot with the dead body from Fajar Azaan Vela to 8.30 a.m. for lodging report was such conduct of the complainant, which ordinarily was not expected from a father---First Information Report and prosecution evidence showed that complainant was asleep in the courtyard of his house at the time of incident, which occurred during the month of April when people rarely sleep under the open sky---Complainant had advanced a reason for his sleeping in the open sky that he was a patient of asthma, but same was not justifiable---Testimony of complainant could not be relied upon in circumstances---First Information Report and statement of widow of deceased showed that she had come out of her room at the time of occurrence and had seen the incident---No material was on record to show that prior to the occurrence there was any noise, scuffling or any hue and cry in between the deceased and his assailants which had prompted her to leave her room and come to the spot---Coming out of room of a bride by following her groom in Suhaag Rat for no justifiable reason was not appealable to a prudent mind---Besides, the widow did not inform any member of the deceased family about the occurrence in due course of time and she also kept waiting till 8.30 a.m.---Conduct of widow of deceased showed that the occurrence did not take place the way it had been reported---Circumstances established that prosecution had not proved its case through any reliable and confidence inspiring evidence---Appeal was allowed, in circumstances and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

----Ss. 302(b), 452, 109 & 34---Qatl-i-amd, house-trespass after preparation for hurt, abetment, common intention---Appreciation of evidence---Recovery of weapons of offence and empties---Reliance---Scope---Record showed that crime empties were recovered from the spot and the two pistols were taken into possession on pointation of the accused persons---Report of Forensic Science Laboratory reflected that the crime empties recovered from the spot did match with the pistol recovered on the pointation of accused---Said recoveries were of no help to the prosecution as both the pistols were recovered from the open place which was accessible to all and sundry---Besides, both the pistols were recovered through a joint recovery memo, which fact had eclipsed the evidentiary worth of the recoveries.

Fazal-e-Haq Abbasi for Appellant.

Yasir Zahoor Abbasi, Assistant A.G. for the State.

Javed Khan Tanoli for the Complainant.

2019 M L D 781

[Peshawar]

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

SANA ULLAH KHAN---Petitioner

Versus

SECRETARY, KHYBER PAKHTUNKHWA, PESHAWAR and 2 others---Respondents

Writ Petition No. 1119-P of 2018, decided on 26th April, 2018.

Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----Ss. 22, 25, 26 & 31---Appointment against post of Civil Judge-cum-Judicial Magistrate---Enrolment as an advocate---Experience, reckoning of---Procedure---Bar Council and Bar Association, functions of---Petitioner having requisite qualification and experience applied for the post in question but his application was rejected on the ground that his experience certificate did not show period served as a practicing lawyer---Validity---Enrolment as an advocate was to be considered when he was granted license by the Enrolment Committee of Bar Council and his name was brought on its roll for the first time---Period for the purpose of experience as an advocate was to be reckoned from the date of enrolment as an advocate with the Bar Council---Bar Council regulate the enrolment and Bar Association provide facilities to the members---Petitioner was enrolled as an advocate with Bar Council on 18-05-2015 and thereafter he was registered with Bar Association on 28-09-2015---Experience of petitioner was to be reckoned and considered from the date of enrolment as an advocate with the Bar Council and not from the date of his registration with the Bar Association---Petitioner had been enrolled as an advocate with Bar Council on 18-05-2015 and he had acquired requisite experience of two years---Petitioner was entitled to be considered for onward process of recruitment against the post in question---Public Service Commission was directed to consider the petitioner for onward recruitment process and final recommendations in accordance with law---Constitutional petition was allowed, in circumstances.

Malik Naeem Khalid for Petitioner.

Syed Zahid Jamal for Respondent.

Rabnawaz Khan, A.A.G. for Respondent.

2019 M L D 853

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

SANA NOOR and another---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Health, Peshawar and 5 others---Respondents

Writ Petition No. 1251 of 2018 along with C.M. No.978-A of 2018, decided on 4th December, 2018.

MBBS and BDS (Admission, House Job and Internship) Regulations, 2018---

----Regln. 13---Admission in medical college against dropout students seat---Scope---Petitioners claimed that they were granted admission in the institution in lieu of dropout students/vacant seats, however, their admission forms were not sent to the University for appearance in upcoming examination---Plea of institution was that petitioners were granted provisional admission in the institution and father of petitioners had sworn affidavit wherein he specifically mentioned that in case of non-admission, petitioners would have no right to sue the institution---Validity---Regulation 13 of MBBS and BDS (Admission, House Job and Internship) Regulations, 2018 provided that no institution shall allow admission against dropout and vacant seats---Petitioners could not claim admission in the institution on the basis of dropout students/vacant seats as their vested right---Constitutional petition was dismissed.

Tipu Muhammad Sultan and Kiran Ayub Tanoli for Petitioners.

Niaz Khan Jadoon on behalf of Respondent No.5.

Yasir Zahoor Abbasi, A.G. Khyber Pakhtunkhwa for Respondents.

Date of hearing: 4th December, 2018.

2019 M L D 882

[Peshawar (Bannu Bench)]

Before Shakeel Ahmad, J

IJAZ MUHAMMAD alias IJAZ KHAN---Petitioner

Versus

MUHAMMAD JAMAL and another---Respondents

Criminal Bail Petition No. 150-B of 2018, decided on 10th January, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, armed with deadly weapon, common object---Bail, refusal of---Medical ground---Scope---Accused was charged for double murder and attempting at the life of complainant---Accused sought bail on medical ground---Validity---Medical reports showed that accused was suffering from aliment and he was in need of the treatment in a tertiary care hospital, however, Medical Board had not opined that ailment from which accused was suffering, was likely to have hazardous effects on his life and his health would be deteriorated if remained inside the jail---Accused could get proper treatment for the diseases, which were easily available to him in the tertiary care hospital as an under-trial prisoner---Bail petition was dismissed.

Pir Liaqat Ali Shah and Farooq Khan Sokari for Petitioner.

Qudrat Ullah Khan Gandapur, Asstt. A.G. for the State.

Abdul Latif Khan Baloch and Sultan Mehmood for the Complainant.

Date of hearing: 10th January, 2019.

2019 M L D 906

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz, J

Malik ZAFARULLAH KHAN---Petitioner

Versus

MURAD ALI and another---Respondents

Crl.B.A. No. 94-B of 2017, decided on 31st January, 2019.

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

----S. 497(5)---Bail granted on ground of statutory delay---Application for cancellation of bail---Complainant sought cancellation of bail granted to accused on the ground of statutory delay---Validity---Eleven prosecution witnesses had been examined, while statement of Investigating Officer of the case was yet to be recorded---Delay in conclusion of trial had been occasioned due to submission of successive bail applications by accused and fresh investigation on his request---Bail to accused on completion of statutory period in conclusion of trial could only be granted when there was no prospect of completion of trial in near future, while in the present case trial was almost complete---Bail granted to accused was cancelled.

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

----S. 497---Bail---Delay in conclusion of trial---Principle---Bail to accused on completion of statutory period in conclusion of trial could only be granted when there was no prospect of completion of trial in near future.

Pir Liaqat Ali Shah for Petitioner.

Anwar-ul-Haq and Faqir Mehboob-ul-Hameed for Respondent.

Qudrat Ullah Khan, A.A.G. for the State.

Date of hearing: 31st January, 2019.

2019 M L D 951

[Peshawar]

Before Qaiser Rashid Khan and Qalandar Ali Khan, JJ

SHAKEEL KHAN---Petitioner

Versus

The STATE and 3 others---Respondents

Writ Petition No.5186-P of 2018, decided on 15th January, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 561-A---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Inherent powers of High Court---Accused was charged for driving a vehicle wherefrom heroin was recovered---Trial Court granted bail to accused which was later on recalled on the ground that after the bail granting order report of Forensic Science Laboratory was received showing the chasis number of the vehicle tampered---Held, bail granted to accused could not have been cancelled/recalled/reviewed on the ground of tampering of chassis number of vehicle---Accused was not arrested or granted bail for tampering of chassis number by Trial Court so as to justify cancellation of bail thereunder---High Court set aside the order for cancellation of bail.

Noor Alam Khan for Petitioner.

Syed Sikandar Hayat Shah, A.A.G. for Respondents.

Date of hearing: 15th January, 2019.

2019 M L D 996

[Peshawar (Bannu Bench)]

Before Shakeel Ahmad, J

MUHABAT KHAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.103-B of 2018, decided on 1st November, 2018.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), Ss. 324 & 353---Pakistan Arms Ordinance (XX of 1965), S.13---Forfeiture of surety bond---Petitioners stood surety for accused involved in a case registered under Ss. 324 & 353, P.P.C. read with S.13 Pakistan Arms Ordinance, 1965 and executed a bond on behalf of accused---On failure of the said accused to appear on the date fixed for hearing, Trial Court cancelled his bail, forfeited surety bonds, directed the petitioners to deposit the amount of Rs. 60000/- each as penalty out of amount of surety of Rs. 80000/----Validity---Record showed that petitioners stood surety of the accused out of benevolence and not for ulterior motive or monetary gain, therefore, they were not to be treated harshly nor punished severely without there being extra-ordinary circumstances---Accused for whom the petitioners had stood surety was fugitive from law in a murder case and as such it was humanly not possible for the petitioners to ensure his availability before the court---Taking into consideration financial position of petitioners, forfeiture of bonds, submitted by them to the extent of Rs. 60,000/- each, seemed to be aggressive, hence, the petitioners deserved leniency---High Court observed that default would be adequately punished by requiring each of petitioners to pay Rs.40,000---Revision petition was allowed accordingly.

Sardar Khan and others v. The State 1969 PCr.LJ 447; Ghulam Haidar v. Karim Bakhish PLD 1963 SC 47; Muhammad Khan v. The State 1986 PCr.LJ 2028; Bahadur Khan v. The State 1976 PCr.LJ 1283 and Dilshad Alam v. The State 2000 PCr.LJ 172 rel.

Appellants in persons.

Qudrat Ullah Khan Gandapur, Asstt. A.G. for Respondents.

Date of hearing: 1st November, 2018.

2019 M L D 1016

[Peshawar (D.I. Khan Bench)]

Before Ijaz Anwar and Shakeel Ahmad, JJ

ALLAH NAWAZ---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Respondents

Writ Petition No.1047-D of 2018, decided on 3rd December, 2018.

Khyber Pakhtunkhwa Maintenance of Public Order Ordinance (XXXI of 1960)--

----S.3(1) & (6)---Constitution of Pakistan, Arts. 9, 10 & 199---Preventive detention---Representation to government---Scope---Petitioner was aggrieved of order passed by authorities taking him in preventive detention for a period of 30 days---Authorities raised the plea that Constitutional petition was not maintainable due to non-filing of representation under S. 3(6) of Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960, to Provincial Government, which had power to rescind or modify order passed by the Deputy Commissioner---Validity---Order of detention must show on the face of it that detaining authority was satisfied to the effect specified under relevant law and if there was no record of satisfaction of detaining authority, the order of detention could be declared to have been passed without lawful authority and ab initio void---Objection of authorities was not tenable as order in question was passed in utter disregard of law and was coram non-judice and nullity in the eyes of law---Petitioner need not have filed representation before Provincial Government as contemplated under S.3(6) of Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960---Representation could only be made when order was passed within four corners of the provisions of S.3(1) of Khyber Pakhtunkhwa Maintenance of Public Order Ordinance, 1960---No adequate or efficacious remedy was available to petitioner which could debar him from filing Constitutional petition before High Court---High Court declared order passed by Deputy Commissioner as illegal, without lawful authority, without jurisdiction, void ab-initio and the same was set aside---Constitutional petition was allowed in circumstances.

Liaquat Ali v. Government of Sindh through Secretary Home and another PLD 1973 Kar. 78; M.R.S. Mani v. District Magistrate AIR 1950 Mad. 162; M.R.S Mani v. District Magistrate 51 Cri.L.Jour 525; Seetamma v. Kotareddi AIR 1949 Mad. 586; PLR 1957(2) W.P. 215 and A.K.Khalid PCS Section Officer, Ministry of Interior Government of Pakistan, Rawalpindi v. Ghulam Qadir Khan PLD 1962 (WP) Lahore 411 ref.

Ahmad Ali Khan for Petitioner.

Adnan Ali, Asstt. A.G. for Respondents.

Assistant Commissioner, Tank in person.

2019 M L D 1082

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

FAZAL KARIM and 4 others---Petitioners

Versus

HUSSAN DIN and 8 others---Respondents

Writ Petition No.93-A of 2012, decided on 13th September, 2017.

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

----O. IX, R. 13---Limitation Act (IX of 1908), Art. 164 & S. 5---Suit for declaration and permanent injunction---Ex parte decree, setting aside of---Limitation---Condonation of delay---Provisions of Art.164, Limitation Act, 1908---Applicability---Scope---Defendants submitted their written statement but thereafter absented themselves from the Court and ex parte decree was passed---Application for setting aside of ex parte decree was accepted by the Trial Court but Revisional Court dismissed the same---Validity---Once defendant appeared before the Court, joined the proceedings and thereafter disappeared in consequence thereof an ex parte decree was passed against him then provisions of Art. 164 of Limitation Act, 1908 would be applicable---Ex parte decree was passed on 15-06-2010 whereas application for setting aside of the same was moved on 15.11.2010---Application for setting aside of ex parte decree was barred by five months in circumstances---Petitioners had not submitted any application for condonation of delay under S. 5 of Limitation Act, 1908---Period of limitation for setting aside of ex parte decree was thirty days---Petition for setting aside of an ex parte decree was time barred which was rightly dismissed by the Revisional Court---High Court declined to interfere in the findings rendered by the Revisional Court in its discretionary and equitable jurisdiction under Art. 199 of the Constitution---Constitutional petition was dismissed in circumstances.

Messrs Rehman Weaving Factory (REGD), Bahawalangar v. Industrial Development Bank of Pakistan PLD 1981 SC 21 distinguished.

Honda Atlas Cars (Pvt.) Limited v. Honda Sarhad (Pvt.) Limited and others 2005 SCMR 609; Shahzad Pervez alias Shahzad Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 and Secretary Education Department Government of NWFP, Peshawar v. Asfandar Yar Khan 2008 SCMR 287 rel.

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

----Art. 164---Ex parte decree, setting aside of---Limitation---Period of limitation for setting aside of ex parte decree was thirty days.

Khalid Rehman Qureshi for Petitioners.

Haq Nawaz Khan for Respondents.

2019 M L D 1107

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

AKHTAR SALEEM and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.147-A of 2015, decided on 28th November, 2018.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of two persons---Motive for the offence was stated to be desertion of wife of accused---Ocular account had been furnished by complainant, father of one deceased and a witness, who was allegedly residing in the cattle-shed of the complainant---Witnesses of ocular account, during cross-examination, had admitted that they had not informed the police about the occurrence, however, police came to know about the occurrence from some other person---Said witnesses had not raised hue and cry when they saw the accused having firearms in their hands coming towards them or at-least they should have prevented them not to altercate with the deceased or to make some efforts to save them from the hands of accused---Said conduct on the part of the complainant and eye-witness was absolutely unnatural, as despite death of two persons, they made no effort to inform the police about the occurrence, which created doubt regarding their presence at the spot at the relevant time---Complainant during cross-examination had stated that they remained at the spot from 7.00 a.m. to 11.00 a.m., whereas eye-witness had stated that he remained present at the spot up to 1.00 p.m.---Eye-witness had stated that at the time of occurrence, deceased was working in his own land, whereas, in the site plan, the said deceased was shown present in the land of some other person---Statements of both the eye-witnesses were contradictory with the site plan prepared by the Investigating Officer on their pointation---Complainant had stated that they were working in their fields, where other people were also working and after the occurrence, those, who were working in their field, arrived at the spot---Complainant showed ignorance about their names---Eye-witness contradicted the complainant in that regard by saying that there was no other person in the surrounding fields at the time of occurrence---Complainant had stated that soon after the occurrence two witnesses, related to him, came to the spot, whereas the said statement of complainant was contradicted by eye-witness who stated during cross examination that after the occurrence police arrived at the spot and no other civil person arrived there---Complainant had admitted in his cross-examination that they were busy in farming work with the pick-axes in the tomatoes fields; however, the those were neither produced to the Investigating Officer nor the Investigating Officer took the same into his possession---All the said material contradictions in the statements of both the alleged eye-witnesses would lead to obvious inference that the occurrence was not witnessed by them and their presence at the spot was doubtful---Record showed that medical evidence did not support the version of the complainant---Circumstances established that prosecution had not been able to prove its case beyond shadow of doubt---Appeal was allowed, in circumstances and accused were acquitted by setting aside the convection and sentences recorded by the Trial Court.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence---Record showed that complainant in his statement though had not disclosed the exact time of taking breakfast, however, he stated that they had their breakfast before leaving the house at 6:30 a.m.---Medical Officer, who conducted post-mortem examination on the dead bodies of the deceased found digested food in their stomach which showed that deceased might have taken food four to five hours prior to the occurrence---Ocular account furnished by the eye-witnesses, therefore, was in clear conflict with the medical evidence---Evidence of the alleged eye-witnesses in the peculiar facts and circumstances of the case could not be believed.

Mst. Sughra Begum's case 2015 SCMR 1142 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Weapons of offence recovered from the accused---Reliance---Scope---Record showed that .12-bore shot gun was recovered on the pointation of co-accused---Recovery of .12-bore shot gun from the possession of accused at the time of his arrest could not be proved---Marginal witnesses to the recovery memos were related to the complainant and no independent person was associated by the Investigating Officer to prove the said recovery---Investigating Officer had taken into possession two empty shells of .12-bore from the spot, where presence of accused persons was shown in the site plan---However, the empty shell allegedly recovered from the place of co-accused did not match with the .12-bore shotgun recovered on his pointation---Recovery of alleged .12-bore shot gun from possession of accused and positive report of the firearm expert would be of no avail to the prosecution, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive was not proved---Effect---Motive alleged by the complainant in the case did not directly relate to the deceased party---Wife of accused was daughter of prosecution witness, therefore, the aversion, if any, existed on the part of the accused persons would be with the family of his wife not the complainant, who was maternal grandfather of his wife---Such motive, in facts and circumstances, would not be considered sufficient to prompt the accused persons to commit the murder of deceased.

(e) Criminal trial---

----Benefit of doubt---Principle---Even a single doubt, if found reasonable, would entitle the accused person to acquittal.

Ghulam Qadir v. The State 2008 SCMR 1221; 2009 SCMR 230; 1995 SCMR 1345; 2017 SCMR 596 and 2017 SCMR 709 rel.

Wajih-ur-Rehman Khan Swati for Appellants.

Yasir Zahoor Abbasi, A.A.G. and Ghulam Mustafa Khan Swati for Respondents.

2019 M L D 1148

[Peshawar (Abbottabad Bench)]

Before Lal Jan Khattak and Syed Muhammad Attique Shah, JJ

MUHAMMAD YOUNIS---Petitioner

Versus

DISTRICT POLICE OFFICER, ABBOTTABAD and 2 others---Respondents

Writ Petition No. 118-A of 2015, decided on 22nd November, 2018.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Powers of Ex officio Justice of Peace---Nature---Quasi-judicial powers---Scope---Petitioner was aggrieved of the order passed by Ex-officio Justice of Peace whereby he had not issued notice to the respondents though on the date fixed counsel appeared on behalf of respondents and submitted vakalatnama and Ex-officio Justice of Peace allowed him to submit arguments---Validity---Functions performed by Ex-officio Justice of Peace under S.22A, Cr.P.C. were quasi-judicial in nature and he had not committed any illegality or irregularity while accepting vakalatnama and allowing submission of arguments, as there was no bar to hear the other side before passing an appropriate order---Constitutional petition being, bereft of merit, was dismissed.

Younas Abbas and others v. Additional Sessions Judge, Chakawal PLD 2016 SC 581 and Malik Muhammad Sadiq v. Station House officer and others 2013 PCr.LJ 1177 fol.

Malik Masood ur Rehman for Petitioner.

Yasir Zahoor Abbasi, Assist. A.G. for Official Respondents.

2019 M L D 1242

[Peshawar]

Before Syed Afsar Shah and Abdul Shakoor, JJ

INAMULLAH KHAN MARWAT---Petitioner

Versus

CHAIRMAN, NAB, ISLAMABAD and 5 others---Respondents

Writ Petition No. 1752-P of 2019, decided on 24th April, 2019.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 12 & 23---Caution placed on house, removal of---Property of Benamidar---Petitioner was shown as benamidar in reference and his house was placed under caution and restriction was imposed upon his property under S.23 of National Accountability Ordinance, 1999---Petitioner sought setting aside of caution on grounds that no freezing order was passed against house owned by him---Validity---Though house in question was in knowledge of NAB but even then no freeing order as required under S.12 of National Accountability Ordinance, 1999 was passed which otherwise, if at all, unless confirmed by court, would not remain in field beyond 15 days---National Accountability Authorities were having no power to place any embargo on transfer of house in question of petitioner by invoking provision of S.23 of National Accountability Ordinance, 1999---Letter restraining embargo on house was not issued in accordance with law---High Court directed authorities to remove caution placed on house in question---Constitutional petition was allowed in circumstances.

Jehanzaib Khan Muhammadzai for Petitioner.

Syed Azeem Dad, Addl. D.P.G. for Respondents.

2019 M L D 1283

[Peshawar (Bannu Bench)]

Before Shakeel Ahmad, J

JAHAN DARAZ alias JAHAN GULLY---Petitioner

Versus

KHAN BAHADAR and another---Respondent

Criminal Miscellaneous Bail Application No. 158-B of 2018, decided on 7th June, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860 ), S. 302---Qatl-i-amd---Bail, refusal of---Noticeable abscondence---Effect---Allegation against the petitioner was that he committed murder of the brother of complainant and absconded for almost twenty years---Record revealed that the petitioner had specifically been nominated in a promptly lodged FIR for committing murder of the deceased ruling out the possibility of contemplation, deliberation and consultation---Besides complainant, the occurrence was also witnessed by paternal cousin of complainant---Petitioner, after commission of offence, remained absconder for a period of about twenty years---Medico Legal Report supported the contention of the complainant---Petitioner was not charged for causing fire arm injury to the minor in FIR, but subsequently it was disclosed that the said minor also sustained injuries at the hands of the petitioner, and his presence had been shown at specific point in the site-plan---Petitioner was arrested after twenty years of the occurrence---Fugitive from law lost some of the normal rights granted by the procedural and substantive law and noticeable abscondence disentitled the absconder to the concession of bail notwithstanding the merits of the case---Trial, in the present case , had already commenced and charge had been framed against the accused---Bail is not allowed in such a case---In view of specific charge supported by the eye-witnesses coupled with noticeable abscondence provided reasonable grounds to believe that the petitioner was guilty of offence charged with, which fell within the prohibition contained in S. 497, Cr.P.C, therefore, he was not entitled to the concession of bail---Bail was refused to the petitioner, in circumstances.

Awal Khan and others v. The State PLD 1985 SC 402; Raza Khan v. State 2013 MLD 810; Mindad v. State 1992 SCMR 1448 and Syed Akbar and another v. Gul Akbar and another 1996 SCMR 931 ref.

Muhammad Nisar Khan Sokari for Petitioner.

Shahid Hameed Qureshi, Addl. A.G. for the State.

Iftikhar Ahmad Khan Durrani for the Complainant.

2019 M L D 1371

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

SHAFI-UL-IBRAR through L.Rs.---Petitioners

Versus

CENTRAL GOVERNMENT through Secretary Defence Division, Rawalpindi and 2 others---Respondents

Civil Revision No. 341-A of 2010, decided on 16th October, 2017.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Limitation---Sale mutation---Allegation of fraud---Proof of---Contention of plaintiff was that impugned mutation was based on fraud and misrepresentation---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Vendor in her lifetime did not challenge the mutation in question---Burden of proof was on the beneficiary to prove the mutation attested in his favour---Defendant had discharged the said burden by producing the entire documentary record with regard to impugned mutation---Person who had alleged fraud was bound to prove the same---Impugned mutation was attested on 15-12-1976 whereas present suit was filed on 23-05-2001---Present suit was time-barred, in circumstances---No mis-reading or non-reading of evidence had been pointed out in the impugned judgment and decree passed by the Appellate Court---Plaintiff had failed to establish his case through cogent, reliable and confidence inspiring evidence---Findings recorded by the Appellate Court were based on proper appreciation of evidence and material available on record---Revision was dismissed, in circumstances.

Khan Muhammad v. Muhammad Din 2010 SCMR 1351; Manager, State Bank of Pakistan v. Ch. Muhammad Ikram 1999 SCMR 2578 and Jamila Khatoon and others v. Aish Muhammad and others 2011 SCMR 222 rel.

Shah Nawaz Iqbal for Petitioners.

Aurangzeb Mughal, Deputy Attorney General for Respondents.

2019 M L D 1469

[Peshawar (Mingora Bench)]

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

MUHAMMAD DOST and 3 others---Petitioners

Versus

CIRCLE OFFICER ANTI-CORRUPTION ESTABLISHMENT, SWAT and 9 others---Respondents

Writ Petition No. 956-M of 2018, decided on 19th November, 2018.

Khyber Pakhtunkhwa Anti-Corruption Establishment Ordinance (XX of 1961)---

----S. 3---Criminal Procedure Code (V of 1898), S. 561-A---Allegation of fraud on private persons and officials---Application for quashing of order demanding original registered deed, which was also subject matter of civil litigation pending adjudication---Record showed that the bone of contention between the parties was a registered deed dated 26.03.2018---Said deed would show that original owner of the property had distributed his certain properties among his children---Said registered deed was allegedly executed by appointing a local commission---Report of local commission which was available at the back of the said deed showed that the original owner had impressed thumb on the same---On 18.04.2018, the original owner filed a suit for cancellation of the deed and attestation of the mutations on the basis of the said deed before the civil court---Present petitioners were contesting the said suit---During the pendency of said suit, the original owner filed a criminal complaint before the Circle Officer, Anti-Corruption Establishment, who had taken cognizance of the matter and even got recorded the statement of the original owner under S. 164, Cr.P.C before the Magistrate concerned---Original owner had attributed the offence of fraud to the petitioners as well as the officials---During the investigation, the Investigation Officer had issued notices to the present petitioners which had been challenged---Allegations, prima facie would constitute a cognizable offence which could be inquired into and investigated by the Anti-Corruption Establishment---Anti-Corruption Establishment had the exclusive domain to investigate certain offences relating to corruption by the public servants and their accomplices---Assumption of jurisdiction by the Anti-Corruption Establishment, therefore, was within their jurisdiction---In the present matter, prima facie, connivance of the public servants was obvious---High Court had no jurisdiction, to take the role of Investigation Agency and to quash the FIR in its constitutional jurisdiction except in certain exceptional circumstances, which inter-alia included the lack of jurisdiction of the investigating agency---If civil litigations were pending on the same subject-matter, the criminal proceedings ought to be stayed; however, at present stage, the criminal court had so far not taken cognizance of the matter and the present matter was at inquiry and investigation stage, therefore, interference in investigation of the competent authority was not warranted---Constitutional petition having no force, was accordingly dismissed.

Allied Bank Limited through Manager v. Anti-Corruption Establishment and 4 others 2018 CLD 145; Muhammad Akbar v. The State and another PLD 1968 SC 281 and Firdos Aziz v. Asif Aziz and 3 others 2018 PCr.LJ 392 ref.

Shahnaz Begum v. The Hon'ble Judges of the High Courts of Sindh and Balochistan and another PLD 1971 SC 677; Brig. (Rtd.) Imtiaz Ahmad's case 1994 SCMR 2142; Dr.Ghulam Mustafa v. The State 2008 SCMR 76; Akhlaq Hussain Kiyani v. Zafar Iqbal Khan Kiyani 2010 SCMR 1835 and Shahnaz Begum's case PLD 1971 SC 677 rel.

Barrister Asad-ur-Rahman and Abdul Nasir for Petitioners.

Rahim Shah, Asstt. Advocate General and Barrister Dr. Adnan Khan for Respondents.

2019 M L D 1526

[Peshawar (D.I. Khan Bench)]

Before Syed Muhammad Attique Shah and Shakeel Ahmad, JJ

MIRA JAN---Appellant

Versus

Mir ABBAS and others---Respondents

Criminal Appeal No. 46-D of 2014, decided on 13th February, 2019.

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

----Ss. 302, 427 & 34---Qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Appeal against acquittal---Accused was charged for committing murder of brother of complainant by fire shot---Motive was stated to be illicit relations of the deceased with the wife of accused---Complainant had stated that accused had fired at his brother through firearm, which hit his brother who died on the spot---Report in the present case was made at 2:45 p.m, i.e. within thirty minutes of the occurrence---Complainant had stated that after the occurrence he shifted the dead body of deceased to hospital in Rickshaw---Complainant, during cross-examination, had deposed that as soon as he reached the hospital the dead body of his brother was shifted towards the doctor, thereafter, he lodged the report in the hospital---Said fact clearly showed that neither complainant witnessed the occurrence nor the dead body of deceased was shifted by him to the hospital---Complainant deposed that on the day of occurrence, he came to deliver clothes to his deceased brother and according to him the clothes were lying in the vehicle---Record transpired that those clothes were neither recovered by the Investigating Officer nor the same were handed over to police in order to establish presence of the complainant on the spot at the time of occurrence---Complainant had mentioned in the FIR the weapon of offence as firearm, despite the fact that as per site-plan, the accused were at a close distance from where the alleged weapon of offence could easily be identified---Site-plan mentioned the weapon of offence as .30-bore pistol---Postmortem report showed that the deceased sustained single injury on the back of right side of the head with an exit wound through internal meatus of left ear---Record was silent as to why the accused spared the complainant by not repeating the fire shot for becoming an eyewitness of the occurrence---Recovery memo showed that empty of 30-bore, recovered from the place of accused, giving fresh smell, whereas complainant had stated during cross-examination that he handed over the empty to the police on the spot which he took from the seat of vehicle---Such glaring infirmities in the prosecution story, particularly in the statement of alleged eyewitness/ complainant, his presence was rightly disbelieved by the Trial Court---Occurrence had not taken place in the mode and manner as stated by the prosecution---Trial Court had rightly extended the benefit of doubt to the accused on valid and cogent reasons by correctly appreciating the evidence on record and acquittal of the accused did not call for any interference by High Court---Appeal was dismissed accordingly.

Bagh Ali v. State PLD 1973 SC 321 rel.

(b) Criminal trial---

----Benefit of doubt---Quality of evidence must be of first degree and sufficient enough to dispel the apprehension of the court with regard to the implication of innocent persons along with the guilty one by the prosecution.

(c) Criminal trial---

----Benefit of doubt---Principle---Even a single doubt, if found reasonable, would be sufficient to acquit accused, giving him benefit of doubt.

Riaz Masih alias Mithoo v. State 1995 SCMR 1730; Muhammad Luqman v. The State 1PLD 970 SC 10; Tariq Parvez v. The State 1995 SCMR 1345; Muhammad Khan and another v. The State 1999 SCMR 1220 and Muhammad Akram v. The State 2009 SCMR 230 rel.

(d) Criminal trial---

----Abscondence---Scope---Abscondence alone could not be a substitute for real evidence because people abscond though falsely charged in order to save themselves from agony of protracted trial and also to avoid duress and torture at the hands of police.

Niaz Muhammad alias Niazi v. The State 1996 PCr.LJ 394; Muhammad Khan and another v. The State 1999 SCMR 1220; Mehr Khan and another v. The State PLD 1977 SC 41 and State v. Iftikhar 2002 MLD 347 rel.

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

----Ss. 417 & 410---"Appeal against acquittal" and "appeal against conviction"---Principles---Standards of assessing evidence in appeal against acquittal were quite different from those of appeal against conviction---Appraisement of evidence in the appeal against conviction was different from appeal against acquittal---Appraisal of evidence in the appeal against conviction, was done strictly and in appeal against acquittal, the same rigid method of appraisement was not to be applied as there was already finding of acquittal given by the trial court after proper analysis of evidence on record---Interference in the appeal against acquittal, was made only when it appeared that there had been gross misreading of evidence amounting to miscarriage of justice.

Muhammad Usman and 2 others v. The State 1992 SCMR 498 and The State v. Muhammad Sharif and others 1995 SCMR 635 rel.

Saif ur Rehman Khan for Appellant.

Salimullah Khan Ranazai and Ilyas Ahmad Damani for the State.

2019 M L D 1590

[Peshawar (D.I. Khan Bench)]

Before Shakeel Ahmad, J

MUHAMMAD YAR---Appellant

Versus

REHMATULLAH---Respondent

R.F.A. No. 17-D of 2017, decided on 31st January, 2019.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R. 2---Negotiable Instruments Act (XXVI of 1881), S. 118---Qanun-e-Shahadat (10 of 1984), Arts. 17(2)(a) & 79---Summary suit on the basis of pronote---Document, proof of---Procedure---Trial Court decreed the suit along with fee of counsel for the plaintiff---Validity---Plaintiff had examined scribe of pronote and its second marginal witness---Requirements of Arts. 79 & 17(2)(a) of Qanun-e-Shahadat, 1984 had been fulfilled in circumstances---Witnesses of plaintiff were consistent with regard to venue, time, date of execution of documents and payment of loan to the defendant---No discrepancy in the statements of witnesses produced by the plaintiff had been pointed out---Negotiable instrument for consideration had presumption under Section 118 of Negotiable Instruments Act, 1881---Consideration paid earlier in time was a good consideration---Admission of promissory note could not be called in question at a belated stage---Claim of plaintiff for fee of his counsel had not been established on record---Findings of Trial Court with regard to said extent were reversed in circumstances---Plaintiff was entitled for the amount as decreed by the Trial Court except to the extent of payment of fee to his counsel---Appeal was allowed accordingly.

Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639; Ghulam Asghar and 3 others v. Mst. Aisha and 13 others 2004 YLR 1376; Muhammad Sarwar Khan through Legal Heirs v. Salamat Ali and 2 others 2012 CLC 94; Sardar Muhammad Ramzan v. Muhammad Yahya Khan 2000 CLC 296 and Mst. Sajida Abbas Zaidi v. Syed Arshad Ali Jafri 1990 CLC 1018 rel.

Shakeel Ahmad Katikhel for Appellant.

Chaudhary Javed Akhtar for Respondent.

2019 M L D 1622

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz, J

Pir FARMAN ALI SHAH and 10 others---Appellants

Versus

YOUSAF KHAN and 4 others---Respondents

Criminal Appeal No.274-B of 2017, decided on 9th April, 2019.

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

----Ss. 3 & 5---Criminal Procedure Code (V of 1898), S. 200---Prevention of illegal dispossession from property---Investigation and procedure---Examination of complainant---Detailed investigation to be conducted by police---Scope---Appellants had filed complaint under Illegal Dispossession Act, 2005 wherein they had claimed that they were actual owners in possession of certain property and respondents forcibly occupied their property by driving out their tenants---Trial court dismissed the complaint---Validity---Appellants had given details of their forcible dispossession from the suit property comprising several khasras and their cultivators were allegedly restrained from cultivation---Trial court had not recorded the statements of complainants under S. 200, Cr.P.C. which was essential requirement for proceeding with the complaint---Police had submitted a vague report---Police officer was bound to conduct an in-depth inquiry associating both the parties by recording their statements as it was legally done in a case initiated through first information report (FIR) under S. 154, Cr.P.C., for the reason that a private complaint had all the characteristics of an FIR---Vague report further lost its value when patwari halqa specifically stated in cross-examination that he had prepared the report in patwar khana and had handed over the same to the police officer---Complainant or accused were not even present at that time---Procedural irregularity had rendered the impugned order to be null and void---High Court accepted the appeal, set aside the impugned order and remanded the case to the Trial Court for de novo trial after detailed investigation by police.

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

----S. 9---Criminal Procedure Code (V of 1898), S. 417---Application of Criminal Procedure Code, 1898---Scope---Appeal against acquittal---Provisions of Criminal Procedure Code, 1898 are applicable---Where no specific provision existed in Illegal Dispossession Act, 2005, relevant provisions from the Code of Criminal Procedure, 1898 could be resorted to---Appeal against acquittal lay before the High Court under S. 417, Cr.P.C.

Pir Amjad Ali Shah and Tariq Mehmood Khan for Appellants.

Bashir ur Rehman, Matiullah Khan Marwat and Sultan Mehmood for Respondents.

2019 M L D 1686

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz, J

ABID HUSSAIN---Petitioner

Versus

GUL TIAZ KHAN and another---Respondents

Criminal Miscellaneous Quashment Petition No. 2-B of 2019, decided on 26th March, 2019.

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

----Ss. 227, 561-A & 238---Penal Code (XLV of 1860), Ss. 337-A(i) & 336---Shajjah-e-Khafifah---Itlaf-i-Salahiyyat-i-udw---Court may alter charge---When offence proved included in offence charged---Scope---Petitioner had filed a complaint before Magistrate regarding beating by accused as a result of which he had received severe injuries and had become incapacitated from his left eye---Magistrate framed the charge against the accused under S. 377-A(i), P.P.C.---Petitioner moved application for alteration of charge from S. 337-A(i) to S. 336, P.P.C., but the same was declined---Criminal revision filed before the Sessions Judge was dismissed---Validity---Doctor, who had checked the petitioner, categorically stated that he "found patient having left traumatic contract and was booked for contract surgery"---Magistrate was bound to form his own opinion with regard to the offence so made out from the complaint and available record, while he was not bound by the opinion of local police---Available record was not considered by the trial court, while framing the charge---Record of the case clearly demonstrated that S. 336, P.P.C. attracted to the case---Moreover, if the accused was charged for a major offence but the same was not proved, then accused could be convicted for a minor offence but not if the case was adverse---Impugned orders of both the courts below were set aside and charge framed under S. 337-A(i), P.P.C. was altered to S. 336, P.P.C.---Magistrate was directed to send the case to the court concerned as the offence was triable by a Sessions Judge.

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

----S. 227---Court may alter charge---Scope---Section 227, Cr.P.C. provides in explicit and unambiguous terms that the court may alter or add any charge at any time before pronouncement of judgment.

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

----S. 231---Re-calling of witnesses when charge altered---Scope---Where the charge is altered, the court is bound to allow the prosecution and accused to re-call and re-examine witnesses, already examined under S. 231, Cr.P.C.

Peer Muhammad Yasin Wazir for Petitioner.

Shahid Hameed Qureshi, Addl. A.G. for Respondents.

2019 M L D 1745

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

MOHAMMAD RAHIM SHAH and another---Petitioners

Versus

MUHAMMAD GHAMASH and 8 others---Respondents

Civil Revision No. 49-P of 2011, decided on 13th March, 2019.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-i-Ishhad, performance of---Requirements---Pre-emptor had neither produced registered acknowledgement due before the Court nor the postman who delivered the postal envelops to the defendants---Defendants had denied to have received the notices of Talb-i-Ishhad---Plaintiff was required to establish that said notices were served upon the defendants---Pre-emptor in order to prove that notices were received by the vendees-defendants was required to produce the postman who had delivered the said notices---Non-production of postman as witness was fatal to the case of pre-emptor---Plaintiff had failed to place on record the "acknowledgement-due" which he had allegedly sent along with registered envelop to the defendants---Pre-emptor, in circumstances, had failed to perform Talb-i-Ishhad, and his suit must fail despite the fact that he had established performance of Talb-i-Muwathibat---Suit filed by the plaintiff was dismissed, in circumstances---Revision was allowed accordingly.

Allah Ditta through LRs and others v. Muhammad Anar 2013 SCMR 866; Dayam Khan and others v. Muslim Khan 2015 SCMR 222 and Khan Afsar v. Afsar Khan and others 2015 SCMR 311 rel.

Asif Fasih-ud-Din Wardag for Petitioners.

Naeem-ud-Din for Respondents.

Date of hearing: 13th March, 2019.

2019 M L D 1924

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

MUKARRAM KHAN and 5 others---Petitioners

Versus

MAAB ZADA and 3 others---Respondents

Civil Revision No. 1225 of 2009, decided on 28th November, 2018.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 79---Transfer of Property Act (IV of 1882), S. 41---Suit for specific performance of agreement to sell---Document---Proof of---Procedure---Trial Court decreed the suit but Appellate Court dismissed the same---Validity---Beneficiary of a document was not only bound to establish the deed by producing marginal witnesses of the same but also to prove the contents of said deed---Executant of impugned agreement to sell was not owner of suit property and transaction was shaky---Second marginal witness of agreement to sell was not produced by the plaintiffs---Plaintiffs had failed to establish agreement to sell before the Trial Court---Plaintiff had to establish his case on his own evidence and could not get benefit from the weakness of defence---No one could transfer to another a title or a right greater than what he himself possessed---None of the plaintiffs had appeared before the Trial Court to establish that they were bona fide purchasers of suit property---Non-appearance of plaintiffs before the Court was fatal to their claim of being bona fide purchasers---Revision was dismissed, in circumstances.

Muhammad Afzal's case PLD 2006 SC 84; Haji Abdul Ghafoor Khan's case PLD 2007 SC 433; Mst. Bilqees Begum and others case PLD 2003 SC 899; Maulana Riazul Hassan's case 1991 SCMR 2513; Mst. Noor-un-Nisa's case 1994 SCMR 2087; Muhammad Bashir's case 2003 SCMR 774; Moulvi Abdul Qadir and others' case 2010 SCMR 1877 and Noor Hassan and others' case 2015 SCMR 452 rel.

(b) Maxim---

----"Nemo dat qui non-habet"---Connotation.

Rahman Ali Khan for Petitioners.

Fazli Ghafoor for Respondents.

2019 M L D 1942

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

FARIDOON through Legal heirs and others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Respondents

Civil Revision No. 495-M of 2012, decided on 16th January, 2019.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Contention of plaintiffs was that they were owners of suit property---Suit was dismissed concurrently---Validity---Suit property was a protected forest which was in the possession of Forest Department---Presumption of correctness was attached to the entries in the periodical record made in ever first settlement---Plaintiffs had challenged the impugned notification at a belated stage; present suit was time-barred---Plaintiffs could not rebut through confidence inspiring evidence that entries entered in the first settlement were without any justification---Findings recorded by the Courts below were based on correct appreciation of facts and law---Revision was dismissed, in circumstances.

Allah Bakhsh's case 2001 SCMR 363; Evacuee Trust Property Board v. Chulam Rasul Khokhar 1990 SCMR 725 and Fida Hussain v. Abdul Aziz PLD 2005 SC 343 rel.

Malak Ahmad Jan for Petitioners.

Haq Nawaz, Assistant A.G. for Respondents.

2019 M L D 1991

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz, J

GUL SHER ABAT KHAN---Petitioner

Versus

MUMTAZ ALI KHAN and others---Respondents

Writ Petition No. 351-B of 2019, decided on 22nd April, 2019.

(a) Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 115---Eviction petition---Bona fide personal need of landlord---Default in payment of rent---Denial of relationship of landlord and tenant by tenant---Scope---Respondents/landlords filed ejectment petition wherein they had claimed that tenant had committed default in payment of monthly rent and that the suit shop was required for their personal need---Appellate court accepted the appeal and directed the tenant to vacate the premises within a period of 3 months---Validity---Petitioner/tenant stressed that he had purchased part of suit property on the basis of registered deed which in fact was a withdrawal of any encumbrance relating to some part of suit property in possession of the tenant---Tenant had asserted his possession as a mortgagee---Assertions made by tenant showed that relationship of landlord and tenant existed between the parties---Tenant had dragged landlords in unnecessary litigation on the oral pretext of being co-sharer---Case of tenant fell within the purview of Art. 115, Qanun-e-Shahadat, 1984 which estopped tenant from denying title of a landlord once he entered into possession as such---Constitutional petition by tenant was dismissed in limine.

PLD 2009 SC 71 distinguished.

(b) Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(6)---Eviction petition---Tentative rent order---Scope---Rent Controller, after receiving written reply would pass an order for deposit of tentative rent by the tenant but if the tenant makes default in the compliance of such order his defence shall be struck off and the landlord shall be put into possession without further proceedings.

Sawal Nazir Khan for Petitioner.

2019 M L D 2029

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

SHER ZADA---Petitioner

Versus

SHAUKAT ALI and another---Respondents

Civil Revision No. 142-M of 2017, decided on 16th January, 2019.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 24(2)---Pre-emption suit---Non-deposit of Zar-e-Soam within a period of 30 days---Effect---Pre-emptor failed to deposit one-third of the sale consideration within a period of 30 days--Defendant moved application for dismissal of suit on the said ground---Trial Court dismissed the suit but Appellate Court extended the time by 20 days on the ground that order for deposit of Zar-e-Soam was ambiguous---Validity---Pre-emptor was bound to deposit Zar-e-Soam within the time period fixed by the Trial Court---Court had no jurisdiction to extend said period in view of S. 24 (2) of Khyber Pakhtunkhwa Pre-emption Act, 1987---Once suit was dismissed by the Trial Court owing to non-deposit of one-third of sale consideration as mentioned in the mutation then Appellate Court had no jurisdiction to extend the said period---Pre-emptor had made no effort to make good the deficiency of Zar-e-Soam till the decision of Trial Court on the said issued---Non-deposit of exact amount pursuant to the order of Trial Court was based on mala fide of pre-emptor---Impugned order passed by the Appellate Court was set aside and that of Trial Court was restored--- Revision was allowed, in circumstances.

Wasal Khan and others v. Dr. Niaz Ali Khan 2016 SCMR 40 distinguished.

Rehman-ud-Din and another v. Sahibzada Jehanzer 2004 SCMR 418; Jehanzeb Khan v. Muhammad Iqbal 2000 SCMR 365; Wahid Bakhsh v. Abdul Qayum 1997 MLD 2945; Nardullah Khan v. Haji Zarif Khan 3 others 1997 CLC 428 and Awal Noor v. Disrict Judge Karak and 8 others 1992 SCMR 746 rel.

Muhammad Nisar Banoorkhail for Petitioner.

Muhammad Arif for Respondents.

2019 M L D 2053

[Peshawar (Abbottabad Bench)]

Before Syed Muhammad Attique Shah, J

MUHAMMAD KHURSHEED---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 91-A of 2018, decided on 14th December, 2018.

(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 3 & 4---Criminal Procedure Code (V of 1898), Ss. 412, 423 & 265-E---Possession of intoxicants---Appreciation of evidence---Scope---Appellant assailed order of trial court whereby he was convicted on the basis of his admission qua selling and possessing charas---Accused had pleaded guilty under S. 265-E, Cr.P.C., therefore, he was barred under S. 412, Cr.P.C. to challenge his conviction and sentence by filing appeal---Convict could only challenge the extent or legality of the sentence---Appellant had challenged the extent and legality of the sentence in an implied manner---High Court in peculiar facts and circumstances of the case, when the appellant was a first offender, not previously convicted and the only bread earner of his family, ordered for moderate reduction in the quantum of sentence---Second appeal filed by convict/appellant was not maintainable, therefore, High Court converted the same into revision petition under S. 439, Cr.P.C.---High Court reduced the sentence to the extent of the period already undergone.

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

----S. 265-E---Plea of guilty---Scope---Where a person involved in a criminal case pleads guilty to the charge leveled against him and places himself at the mercy of the court, he becomes a friend of the court and the court takes lenient view in respect of his sentence.

Shahzad Ahmad Khan for Appellant.

Sardar Muhammad Asif, Assistant, A.G. for Respondents.

2019 M L D 22

[Balochistan]

Before Abdullah Baloch, J

Mir FATEH MUHAMMAD and 5 others---Petitioners

Versus

MUHAMMAD ALAM and another---Respondents

Civil Revision No.63 of 2010, decided on 19th September, 2018.

Constitution of Pakistan---

----Art. 175(2)---Installation of Crash Plant for excavating stones---Suit for declaration and permanent injunction in an environmental dispute---Maintainability---Environmental dispute, resolution of---Special forum, availability of---Jurisdiction of Civil Court exercised for resolution of environmental dispute---Scope---Plaintiffs filed suit with regard to environmental disputes which was dismissed by the Trial Court but Appellate Court decreed the said suit---Contention of defendants was that suit of plaintiffs was not maintainable as alternate forum under special law (Environmental Protection Tribunal) was available---Validity---Court was to decide whether legal authority which the Court could exercise with regard to the matter brought before it for decision was proper---Relief sought by the plaintiffs was with regard to special law (Environmental law) which could not be claimed under declaratory suit---Special forum constituted under the special law (Tribunal) would have overriding effect in the present matter for redressal of grievance of plaintiffs---Civil Court could not exercise its jurisdiction to resolve the environmental dispute under civil jurisdiction---Trial Court had rightly dismissed the suit filed by the plaintiffs---Findings by the Appellate Court were result of mis-reading and non-reading of evidence---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Plaintiffs would be at liberty to approach the proper forum for redressal of their grievances---Revision was allowed in circumstances.

Hitachi Limited v. Rupali Polyester 1998 SCMR 1618 and Muhammad Mohsin Ghuman v. Government of Punjab 2013 SCMR 85 rel.

Irfanullah for Petitioners.

Syed Jameel Ahmed Agha for Respondents

2019 M L D 69

[Balochistan (Sibi Bench)]

Before Abdullah Baloch, J

ALLAH DAD---Petitioner

Versus

MUHAMMAD NAWAZ and 3 others---Respondents

Civil Revision Petition No.(s) 01 of 2016, decided on 27th January, 2018.

Civil Procedure Code (V of 1908)---

----O. XXIII, Rr. 1 & 2---Fresh suit after withdrawal of earlier one---Fresh cause of action---Effect---Contention of plaintiff was that he purchased suit land from the defendants against sale consideration---Trial Court decreed the suit but Appellate Court dismissed the same---Validity---Plaintiff produced five witnesses and also recorded his own statement but no marginal witness of sale consideration was got examined---Land measuring 3000 square feet was transferred in the name of plaintiff through mutation---Defendant who was owner of land measuring 3000 square feet had admitted said sale and mutation in the name of plaintiff---Plaintiff after withdrawal of earlier suit had filed the present suit---Both the parties remained satisfied after withdrawal of earlier suit and did not raise any hurdle to each other---Defendant again started interference in the suit land while interrupting the plaintiff for construction of land in question---Fresh cause of action was accrued to the plaintiff---Bar of limitation would not come in the way of plaintiff for filing a fresh suit---Impugned judgment passed by the Appellate Court was perverse and result of mis-reading and non-reading of evidence---Judgment passed by the Appellate Court was set aside and that of Trial Court was restored---Suit filed by the plaintiff was decreed to the extent of 3,000 square feet---Revision was allowed in circumstances.

Jamal-ud-Din for Petitioner.

Abdul Ghani Mithal for Respondents.

Attaullah Marri, State Counsel for the State.

2019 M L D 272

[Balochistan (Sibi Bench)]

Before Abdullah Baloch, J

MUHAMMAD KHAN and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. (S)115 of 2018, decided on 8th October, 2018.

Criminal Procedure Code ( V of 1898 )---

----S.497 (2)---Penal Code (XLV of 1860), Ss. 302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, armed with deadly weapon, unlawful assembly---Bail, grant of---Further inquiry---Aggressor and victim---Scope---Cross-FIRs by both the parties were registered against each other with regard to same incident---Two persons of the complainant party were murdered and others were injured---One person died and others injured from the accused side---Petitioners (two brothers ) contended that almost their entire family had been dragged in the case---Record revealed that both the parties had leveled allegation of similar nature by claiming the other party as the aggressor---Determine as to which party was the aggressor and who were the victims was very different at bail stage---Occurrence was of two versions recorded in separate FIRs---Place of occurrence in both the FIRs was the same---First Information Reports were lodged on the same day---Case of the petitioners called for further inquiry as envisaged under S. 497(2), Cr.P.C.---Petitioners were admitted to bail, in circumstances.

Ghulam Abbas alias Gaman and others v. The State, 2017 SCMR 1730 and Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and others 2011 SCMR 606 ref.

Ahsan Rafiq Rana for Applicant.

Abdul Kareem Malghani State Counsel.

2019 M L D 746

[Balochistan]

Before Jamal Khan Mandokhail and Zaheer-ud-Din Kakar, JJ

NASEEBULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.317 of 2016, decided on 31st July, 2018.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction of---Mitigating circumstances---Accused was charged for the murder of his wife and her paramour, on seeing them in compromising position---Record showed that dead bodies of both the deceased were found in the baithak of the accused and as per his confessional statement that he found the deceased in compromising position in his baithak, due to which he had committed their murder---Accused had not taken the plea of grave and sudden provocation, during the trial, but the confessional statement of the accused and circumstantial evidence suggested that accused had acted under grave and sudden provocation---Accused had taken specific plea that on the day of occurrence, he found his wife with a person in a compromising position in his baithak and committed their murder---Said plea of the accused was strengthened by the statement of Medical Officer, who conducted post-mortem examination of the deceased and found gunshot injuries on their bodies---Chemical Examiner Report and recovery of .30-bore pistol and Report of Firearm Examiner also supported the plea of accused---Confessional statement of accused and circumstantial evidence transpired that the present case appeared to be where the accused lost his self-control after seeing the deceased in a compromising position in his baithak, which constituted mitigating circumstance---Offence was apparently committed in the manner as stated by the accused---Circumstances established that the accused had acted under grave and sudden provocation and the result was that the two deceased lost their lives from his hand---Conviction under S.302(b), P.P.C. awarded to the accused was converted from clause (b) to clause (c) of the S.302, P.P.C. in circumstances and he was sentenced to suffer fourteen years R.I.---Appeal was dismissed with the said modification in quantum of sentence.

Malik Muhammad Mumtaz Qadri's case PLD 2016 SC 17 rel.

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

----S. 302(b)---Qatl-i-amd---Grave and sudden provocation, plea of---General principles in order to examine such plea.

Following principles can be generalized in order to examine the plea of human killing on account of provocation:

(i) An act of one person towards another;

(ii) Such act may ignite rage, resentment or fury in the mind of another;

(iii) In order to reduce the charge of murder to manslaughter, the act must be such, which may in the ordinary course of nature stir resentment in the mind of the others, forcing him to resort to violence;

(iv) The person resorting to violence must not have a cool down period;

(v) The retaliation should be in proportionate to provocation. [p. 752] C

Chairman Pakistan Railway, Government of Pakistan v. Shah Jehan Shah PLD 2016 SC 534 and Ali Muhammad v. Ali Muhammad and others PLD 1996 SC 274 rel.

Muhammad Aslam Chishti for Appellant.

Muhammad Ali Rakhshani for the Complainant.

Ameer Hamza Mengal, Deputy Prosecutor-General for the State.

2019 M L D 836

[Balochistan]

Before Naeem Akhtar Afghan and Zaheer-ud-Din Kakar, JJ

Syed ABDUL NABI---Appellant

Versus

BAZ MUHAMMAD and 4 others---Respondents

Criminal Acquittal Appeal No.259 of 2017, decided on 29th October, 2018.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-i-amd, common intention---Appeal against acquittal---Appreciation of evidence---Extra-judicial confession---Accused-respondents were charged for committing murder of brother of complainant's brothers---Incident was unseen---No weight could be attached to memo of disclosure which was in police custody---Disclosure of accused-respondents was not corroborated by other independent piece of evidence, therefore, Trial Court had rightly discarded the same---No incriminating material had come on record, which could connect the accused-respondents with the commission of crime---Appeal against acquittal was dismissed accordingly.

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.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, common intention---Appreciation of evidence---Disclosure of accused---Effect---Disclosure of accused during custody was inadmissible.

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

----Ss. 164 & 364---Extra-judicial confession---Scope---Extra-judicial confession is a very weak type of evidence and no conviction can be awarded without strong corroboration.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of crime empties---Reliance---Scope---Record showed that five crime empties of pistol were recovered from the place of occurrence---Such recovery was deemed to be corroborative in nature and used for the support of direct evidence---If direct evidence was disbelieved, it would not be safe to maintain conviction on confirmatory evidence.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence is a supporting type of evidence, which may confirm the ocular account with regard to receipt of injury, nature of injury, and kind of weapon used in the occurrence---Medical evidence cannot identify the assailants.

Muhammad Tasweer v. Hafiz Zulqarnain and 2 others PLD 2009 SC 53 and Mursal Kazmi v. State 2009 SCMR 1040 rel.

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

----S. 417---Appeal against acquittal---Double presumption of innocence---Scope---When an accused is acquitted from the charge by a court of competent jurisdiction then double presumption of innocence is attached to the order---Acquittal order would not be interfered with unless it is found arbitrary, capricious, fanciful and against the record.

Rahimullah Jan v. Kashif and another PLD 2008 SC 298 and Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 rel.

Alla-ud-Din Saeed for Appellant.

Date of hearing: 23rd October, 2018.

2019 M L D 1130

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

Mir MUHAMMAD SADIQ UMRANI and others---Petitioner

Versus

RETURNING OFFICER, PB-11, NASIRABAD-I and others---Respondents

Election Petitions Nos.12 and 25 of 2018, decided on 7th December, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 139, 144, 156 & 86---Constitution of Pakistan, Art. 162(1)(f)---Election petition---Election for the seat of Provincial Assembly---Allegations of illegal and corrupt practices---Proof---Requirements---Omission to declare an asset---Effect---Petitioner had failed to put forward particulars of corrupt and illegal practice or other illegal acts alleged to have been committed by the respondent and his supporters---Nothing was on record with regard to the persons who allegedly committed corrupt or illegal practices---Petitioner had relied on vague and general allegations of corrupt and illegal practices during the course of election---Election of returned candidate could not be declared to be void even if any corrupt or illegal practice had been committed if Election Tribunal was satisfied that it was not committed by or with the consent or connivance of that candidate or his election agents---Strong, convincing and cogent evidence was required to un-seat a returned candidate---Petitioner had failed to prove beyond reasonable doubt that respondent or any of his election agents had committed any corrupt or illegal practice---Allegation made by the petitioner being vague and non-specific did not meet the requirements of S.144 of Elections Act, 2017---Omission to declare an asset by an elected member could only be considered material when non-disclosure was meant to conceal a wrongdoing---Election petition was dismissed, in circumstances.

Muhammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189 rel.

Ishaq Nasar, Arbab Muhammad Tahir, Aurangzeb Kakar and Ehsan Rafiq Rana for Petitioners (in Election Petition No.12 of 2018).

Muhammad Aamir Rana and Barrister Zahoor Hassan Jamot and Arif Achakzai for Respondent No.2 (in Election Petition No.12 of 2018).

Jameel Ramzan, Legal Advisor, ECP for Official Respondents (in Election Petitions Nos.12 and 25 of 2018).

Ehsan Rafiq Rana for Petitioner (in Election Petition No.25 of 2018).

Muhammad Aamir Rana and Barrister Zahoor Hassan Jamot and Arif Achakzai for Respondent No.2 (in Election Petition No.25 of 2018).

2019 M L D 1250

[Balochistan (Sibi Bench)]

Before Abdullah Baloch, J

SHER MUHAMMAD alias SHERO---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.(s) 70 of 2019, decided on 24th April, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Qatl-i-amd, abetment and common intention---Bail, grant of---Further inquiry---Scope---Although applicant was nominated in the FIR, but only his presence was shown at the relevant time and place and no role was ascribed to him by the complainant---Role of firing upon the deceased was ascribed to main accused and the role of directing the main accused was attributed to an unknown accused person---Applicant's role was that he took deceased towards the main accused, where he was murdered---Whether the murder was pre-planned and in order to practically accomplish such plan the deceased was taken to the place of occurrence or that the incident occurred at the spur of the moment without planning, was yet to be ascertained---Case of accused was that of further inquiry---Bail was granted, in circumstances.

Ahsan Rafiq Rana for Applicant.

Abdul Karim Malghani for the State.

2019 M L D 1335

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

Mir TARIQ MEHMOOD KHETRAN---Petitioner

Versus

RETURNING OFFICER, NA-259 and others---Respondents

Election Petition No. 21 of 2018, decided on 7th December, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 139 & 101---Civil Procedure Code (V of 1908), S. 151---Qanun-e-Shahadat (10 of 1984), Art. 18 & 164---Election petition---Election for the seat of Provincial Assembly---Allegations of illegal and corrupt practices---Application for Biometric Verification of ballot papers---Scope---Narrow margin of votes between the returned candidate and petitioner did not per se give rise to a presumption that there was an irregularity or illegality in the counting of votes---Petitioner was required to mention material facts in the election petition and then to prove the same through cogent evidence---Facts in issue could be proved through oral as well as documentary evidence---Biometric verification of thumb impression from National Database and Registration Authority was also a kind of documentary evidence being modern device---Six hundred and twenty four votes received by the petitioner had not been shown by the Returning Officer in the Consolidated Statement which fact was sufficient to establish that irregularities had been committed in the counting of votes---Petitioner had made out a case for biometric verification of thumb impression of voters---Election Tribunal could order for opening of packets of counterfoils and certificates or the inspection of any counted ballot paper and could also refuse to issue such order if it did not have an impact on the result of election---Evidence could be given in any proceedings of existence or non-existence of fact in issue or other fact which was relevant---Court could allow production of any evidence that might become available through modern devices---Evidence of National Database and Registration Authority would provide more authentic and accurate account of what had transpired at the polling stations---Application for biometric verification of ballot papers was allowed, in circumstances.

Aijaz Hussain Jakhrani v. Illahi Bux Soomro and 16 others PLD 2014 Sindh 90 rel.

Muhammad Aamir Rana and Zahoor Hassan Jamote for Petitioner.

Syed Ayaz Zahoor for Respondent No.4.

Muhammad Rafique Langove, Legal Advisor, ECP for Official Respondents.

2019 M L D 1377

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

SAMIULLAH and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 214 and 225 of 2018, decided on 16th March, 2019.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---Recovery of narcotic substance---Appreciation of evidence---Benefit of doubt---Delay in sending samples for analysis---Effect---Accused persons were charged for possession of charas concealed in secret cavities of the vehicle---Samples were drawn on the same date and sealed in parcels---Samples ought to have been sent for analysis to the Chemical Examiner within 72 hours of the seizure as required by R. 4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001---Samples were sent for analysis after a delay of 20 days---Investigating officer failed to tender any plausible explanation for the delay in sending the samples for analysis---Safe custody of contraband for a period of 20 days was not established on record---Delay in sending the samples to Forensic Science Laboratory rendered the analysis report as doubtful---Naib Tehsildar who had sent the samples for analysis to Forensic Science Laboratory was not produced before the trial court to ascertain as to when the samples were delivered to him for its onward transmission and during the intervening period whether the same was in the safe custody, as such the safe custody and safe transmission of the contraband was not proved---Prosecution failed to establish that appellants were owner or possessor of vehicle from which contraband was recovered---Judgment passed by trial court was set aside and appellants were acquitted of the charge, in circumstances.

Siraj-ud-Din v. The State (Criminal Appeal No.579 of 2017) rel.

(b) Administration of justice---

----When a specific method was provided for doing any legal act in a specified procedure, such act was required to be done in that manner, deviation would amount to violating the law.

Muhammad Yousaf v. The State 2017 MLD 1471 rel.

(c) Criminal trial---

----Benefit of doubt---Accused is entitled to get the benefit of the slightest doubt.

Najam-ud-Din Mengal for Appellant (in Criminal Appeal No. 214 of 2018).

Ghulam Mohey-ud-Din Sasoli for Appellant (in Criminal Appeal No. 225 of 2018).

Habibullah Gul, Additional P.G. for the State.

2019 M L D 1415

[Balochistan]

Before Muhammad Hashim Khan Kakar, J

Mir MUJIB-UR-REHMAN MUHAMMAD HASSANI---Petitioner

Versus

RETURNING OFFICER PB-41 WASHUK and 16 others---Respondents

Election Petition No. 53 of 2018, decided on 18th December, 2018.

(a) Elections Act (XXXIII of 2017)---

----Ss. 139 & 144---Election petition---Election for the seat of Provincial Assembly---Allegations of illegal and corrupt practices---Proof---Requirements---Recounting of ballot papers---Petitioner had failed to put forward particulars of corrupt and illegal practice or other illegal acts allegedly committed by the respondent and his supporters---Nothing was on record with regard to the persons who allegedly committed corrupt or illegal practices---Petitioner had relied on vague and general allegations of corrupt and illegal practices during the course of election---Election Tribunal had power to order recounting of ballot papers but said power should be exercised on the basis of some material prima facie establishing illegalities, corrupt practices and illegal acts during process of election---No one could claim recounting of votes as a matter of right---Party had to show that there had been improper reception, refusal or rejection of votes, corrupt practices and illegal acts---Inspection or recounting of ballot papers could not be granted to support vague pleas made in the election petition not supported by the material facts to fish out evidence to support such pleas---Petitioner had not made any written complaint with regard to rigging, corrupt and illegal practices committed by the returned candidate---Order for inspection/recounting of votes could not be passed on the ground that no prejudice would be caused to the returned candidate---Petitioner was to prove the factual controversy of corrupt and illegal practices alleged to have been committed during the election process but he had failed to do so---Election petition was dismissed, in circumstances.

(b) Elections Act (XXXIII of 2017)---

----S. 139---Election petition---Allegations of illegal and corrupt practices---Inspection/Recount of ballot papers---Object and conditions enumerated.

The purpose of a recount/inspection is to verify and determine the authenticity and truthfulness of the allegations on the basis whereof the election result is challenged, however, in order to secure the sanctity of the election result and with a view not to encourage the loosing candidates to attempt and to frustrate the will of the people, a conscious effort is to be made that it is only in the circumstances, which clearly justify, rather demand a recount/inspection, the recount is allowed. Undoubtedly, the Election Tribunal while seized of the election petition is vested with the power to order recount, however, such power is to be exercised on the basis of some material prima facie establishing illegalities, corrupt practices and illegal acts during the process of election. A party is not entitled to claim recount of votes as a matter of right and it is to be shown that there had been improper reception, refusal or rejection of votes, corrupt practices and illegal acts. The inspection or recount of ballot papers cannot be granted to support vague pleas made in the petition and not supported by the material facts or to fish out evidence to support such pleas, however, the Tribunal can grant such permission for inspection of ballot papers, subject to fulfilment at least of the following conditions:

(i) that for setting aside an election of a returned candidate, the petition shall contain an adequate statement of the material facts on which the petitioner relies in support of his case;

(ii) that the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary;

(iii) that it should also be kept in mind that the secrecy of the ballot should not be violated on the basis of frivolous, vague and totally unfounded allegations and that the primary object should be to do full justice in the matter;

(iv) that the Tribunal must be prima facie satisfied on the material produced before it regarding the truth of the allegations made for inspection/recounting; and

(v) that the discretion conferred on the Tribunal should not be exercised in such a way so as to enable the petitioner to indulge in a roving enquiry with a view to fish materials for declaring the election to be void.

Arbab Muhammad Tahir and Aurangzaib Khan Kakar for Petitioner.

Kamran Murtaza and Asif Reki for Respondent No.2.

Jameel Ramzan and Muhammad Rafique Langov, Legal Advisors, ECP for Respondents.

2019 M L D 1505

[Balochistan]

Before Abdullah Baloch, J

NAJEEBULLAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.128 of 2019, decided on 10th April, 2019.

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---Common intention---Scope---Mere presence of the petitioner was alleged in the FIR---Complainant, however, through supplementary statement, attributed role of controlling the deceased by the petitioner---Record revealed that though the petitioner had been nominated in the F.I.R, but no role of firing was attributed to him---Petitioner was, admittedly, empty handed at the place of occurrence , while as per the Medical Report the deceased had received bullet injuries---Contents of FIR showed the presence of the petitioner at the place of occurrence, but the same was silent with regard to any kind of role played by the petitioner , which alone had made his case that of further inquiry in order to ascertain as to whether the petitioner had common intention and common object to commit the crime or his presence was unintentional---Complainant, through supplementary statement, had attributed to the petitioner, a role of controlling the deceased but the complainant had failed to disclose as to why he had not mentioned the role of the petitioner in the first information report--- Such role assigned to the petitioner subsequently through supplementary statement created a reasonable doubt about his participation in the commission of offence---Tentative assessment of record prima facie suggested that it was a case of further inquiry---Investigation in the matter had been completed, trial had commenced and the petitioner was no more required for the purpose of investigation or probe---Keeping petitioner behind the bars would not serve any fruitful purposes; he was admitted to bail, in circumstances.

Allah Ditta v. The State and another 2014 PCr.LJ 658 ref.

Asmatullah Khan Tareen for Applicant.

Saeed Ahmed Kakar, State Counsel.

2019 M L D 1562

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

ZAHIR SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 365 of 2018, decided on 13th April, 2019.

(a) 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 and his co-accused committed murder of the nephew of complainant by firing---Complainant and others were saved and they apprehended the accused, C.D. motorcycle, one Kalashnikov along with six live cartridges, while co-accused persons decamped on their motorcycle---Ocular account of the occurrence had been furnished by three witnesses including complainant---Record showed that accused was caught red-handed along with Kalashnikov---Subsequently, on arrival of police, the accused along with recovered crime weapon was handed over to the Investigating Officer---Assertions of the witnesses would establish the fact that no role of firing was attributed to the accused rather such role had been ascribed to the absconding accused persons---Record transpired that deceased was the nephew of complainant and the close relative of the remaining two eye-witnesses, who soon after the commission of crime caught the accused red-handed along with crime weapon---Nothing had come on record that a single scratch was found on the person of the accused rather the witnesses handed over the accused to the police authorities unhurt---Conduct of all the three witnesses depicted to be unnatural and not believable and even unreliable to a prudent mind---Accused persons were armed with sophisticated weapons, while to the contrary the complainant party were empty handed, but despite such fact the accused was caught at the spot along with Kalashnikov, whereas the absconding accused persons had not made any attempt to rescue the accused from the clutches of the complainant party---Conduct of the accused persons also appeared to be unnatural on another angle---Admittedly, all the witnesses including the deceased were on the target of accused and other absconding accused, but the deceased was hit and the witnesses were let free, which did not appeal to logic that by killing a person in presence of his close relatives, accused would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to be hanged---Investigating Officer arrived at the place of occurrence and collected 34 empties of Kalashnikovs---Collection of 34 empties from the place of occurrence was suggestive of the fact that indiscriminate firing was made---Admittedly, the deceased along with eye-witnesses were standing closely and after making indiscriminate firing, there were no chances of witnesses to escape unhurt and there was every possibility that the deceased had received multiple bullet injuries, but the picture was quite different from the presumptions and expectations as suggested by the situation, when the deceased had only received two bullet injuries on his person, while all the witnesses escaped unhurt---Facts and circumstances of the case created doubts with regard to the presence of witnesses at the time and place of occurrence and witnessing the crime rather at the best, the circumstances suggested that it was a blind murder and the accused was dragged in the case due to suspicion otherwise the accused could not be handed over to the police unhurt and alive---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 by the Trial Court, in circumstances.

Muhammad Farooq v. State 2006 SCMR 1707 and Dohlu v. State 2002 PCr.LJ 690 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence from accused---Reliance---Scope---Record showed that accused was apprehended from the spot along with weapon of offence, Kalashnikov---Complainant had alleged that they handed over the Kalashnikov to Naib Tehsildar/Investigating Office, while Investigating Officer had contradicted the same and stated that the same was handed over to him by the Assistant Commissioner---Neither the name of said Assistant Commissioner had come on record nor he was cited as prosecution witness in order to attest the recovery---Even otherwise, said Kalashnikov along with recovered 34 empties was not sent to Forensic Science Laboratory for analysis in order to establish as to whether such empties were fired from the recovered Kalashnikov or otherwise---In absence of any solid evidence, it could not be presumed that recovery of Kalashnikov was effected from the exclusive and conscious possession of the accused---Circumstances suggested that the recovery of Kalashnikov was foisted upon the accused by the complainant party in order to strengthen its case.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence was only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used---Medical evidence itself did not constitute any corroboration qua the identity of accused persons to prove their culpability.

Muhammad Sharif and another v. The State 1997 SCMR 866 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Slightest doubt had to be extended in favour of accused.

Soorat Khan Kethran for Appellant.

Abdul Mateen, Deputy Prosecutor General for the State.

2019 M L D 1597

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

MUHAMMAD AZAM and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.(s) 14 and Criminal Revision No.(s) 9 of 2019, decided on 6th May, 2019.

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

----Ss. 302 & 34---Qatl-i-amd and common intention---Appreciation of evidence---Benefit of doubt---Hearsay evidence---Unnatural conduct of eye-witnesses---Interested witnesses---Scope---Complainant claimed that his brother while grazing goats disappeared, he searched for him, but could not succeed and that through Balochi Hal-o-Awal he came to know that accused along with co-accused persons had committed the murder of his brother and had buried his dead body at an unknown place---Validity---Complainant's statement reflected that it was based on hearsay evidence---Complainant had not directly witnessed the crime---Complainant had failed to report the matter to police of disappearance of his brother---Complainant's statement was not helpful for the case of prosecution---Both eye-witnesses had failed to maintain the exact date, month and year of the occurrence; had remained mum for two years despite having relations with the complainant party and belonging to the same tribe---Statement of second eye-witness was silent regarding burial of the dead body---Both eye-witnesses had unanimously admitted that complainant had brought Holy Quran and had enquired about his brother to which they had informed the complainant about the murder and burial of his brother---Complainant's source of knowledge that both eye-witnesses had secrets of his missing brother was not disclosed---Eye-witnesses were close relatives of the complainant party, thus for a prudent mind it was difficult to presume that neither they had resisted the occurrence nor the culprits had harmed them to become witnesses of the occurrence---Conduct of witnesses created reasonable doubt with regard to their presence at the place of occurrence or witnessing the crime with their open eyes---Police surgeon did not take into possession the bone marrow of the dead body for DNA test to establish that the exhumed dead body was not of someone else, but of the brother of complainant---Prosecution failed to establish that either the missing brother of the complainant was murdered or that he was buried at the place pointed out by the second eye-witness---Nomination of accused persons after two years of the occurrence was based on presumptions---False implication of accused person could not be ruled out of consideration---Accused was entitled to be extended the benefit of doubt as a matter of right---Appeal was accepted and the judgment passed by Trial Court was set aside.

Arshad Mehmood Khan v. The State 2017 YLR Note 370 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

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

----Ss. 302 & 34---Qatl-i-amd and common intention---Ocular and medical evidence---Contradictions---Statement of sole eye-witness was contradictory to the medical evidence---Eye-witness had stated that deceased was slaughtered with knife but he did not state anything about culprits making fire shots upon the deceased---Post-mortem report prepared after exhumation of dead body of deceased showed that two bullets were recovered from the dead body---Prosecution failed to establish its case.

(c) Criminal trial---

---Benefit of doubt---Accused is entitled to be extended the benefit of doubt as a matter of right.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Ahsan Rafiq Rana for Appellant.

Jameel Akhtar Gajani, D.P.G. for the State.

Nemo for the Complainant.

2019 M L D 1719

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

MUHAMMAD SALEEM---Petitioner

Versus

INVESTIGATION OFFICER LEVIES STATION HANNA, QUETTA and another---Respondents

C.P. No. 350 of 2019, decided on 28th June, 2019.

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

----Ss. 22-A(6) & 173---Ex-officio Justice of Peace---Transfer of investigation after submission of challan---Scope---Petitioner assailed order of trial court whereby his application for transfer of investigation was dismissed---Validity---Challan against the accused persons had been submitted and they were facing trial---One of the accused persons was absconding in the case, therefore, the complainant claimed transfer of investigation simply on the ground that the Investigating Officer was not making serious efforts for arrest of the absconding accused---Petitioner had neither pointed out any mala fide of the investigating officer nor any association with the absconding accused---Trial court after receiving challan had issued non-bailable warrants of arrest against the absconding accused and in that regard proceedings under Ss. 87 & 88, Cr.P.C. were already initiated against the absconding accused---Petitioner failed to point out any illegality, irregularity or perversity in the impugned order---Constitutional petition was dismissed.

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

----S. 22-A---Constitution of Pakistan, Art. 199---Constitutional jurisdiction---Ex-officio Justice of Peace---Scope---Article 199 of the Constitution has empowered the High Court to review or set aside the order passed under S. 22-A, Cr.P.C., but such power can only be exercised if lower court has not applied its mind or has overlooked some material aspect of the case---Where the lower court has passed a well reasoned order keeping in view the facts of the case, no interference is required.

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

----Ss.22-A, 22-B, 173 & 190---Powers of Ex-officio Justice of Peace---Report of police officer---Cognizance of offence---Scope---Sections 22-A & 22-B, Cr.P.C. provide remedy to the citizens at their door steps against the highhandedness of the police, if they fail to perform their duties regarding registration of criminal case, proper investigation or excess is committed by them in relation to their functions and duties---Said provisions are not meant to interfere in the judicial functions of the courts where challan is submitted and cognizance is taken by the court of competent jurisdiction.

Qari Rehmatullah Khan for Petitioner.

Muhammad Younas, A.P.G. for Respondents.

2019 M L D 1873

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

Mst. SABIHA---Appellant

Versus

Dr. AKBAR and 2 others---Respondents

Criminal Acquittal Appeal No.397 of 2015, decided on 1st July, 2019.

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

----S. 337-A(iv)---Criminal Procedure Code (V of 1898), S. 249-A---Shajjah-i-Munaqqilah---Appreciation of evidence---Benefit of doubt---Acquittal at any stage---First Information Report, registration of---Unexpected delay---Magistrate, powers of---Complainant was aggrieved of order passed by Trial Court whereby accused persons were acquitted of charge under S. 249-A, Cr.P.C.---Glaring contradictions existed in statements of prosecution witnesses, medical evidence followed by false implication of accused persons---Complainant reported matter with police with delay of more than 10 hours without any plausible explanation and under such circumstances, consultation and deliberation on part of complainant could not be ruled out---First Information Report was treated to be a cornerstone of case of prosecution to establish guilt against culprits involved in crime and it had got a very significant role to play---Any doubt in lodging of FIR and commencement of investigation gave rise to a benefit in favour of accused---First Information Report lodged after inquiry loses its evidentiary value---Judicial Magistrate had power under S. 249-A, Cr.P.C. to acquit accused person at any stage of trial if he had found that charge was groundless or that there was no probability of accused being convicted of any offense---High Court declined to interfere in the judgment passed by Trial Court as same was unexceptional---Appeal was dismissed in circumstances.

Akhtar Ali v. State 2008 SCMR 6; Iftikhar Hussain v. State 2004 SCMR 1185; Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 and Ajmeel Khan v. Abdur Rahim PLD 2009 SC 102 rel.

(b) Criminal trial---

----Benefit of doubt---Conviction---Principle---Conviction must be based on unimpeachable evidence with certainty of guilt---Any doubt arising in case of prosecution must be credited in account of accused.

Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 rel.

H. Shakil Ahmed for Appellant.

Behlul Kasi for Respondents Nos.1 and 2.

Abdul Latif Kakar, Additional Prosecutor General for the State.

2019 M L D 1929

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

ABDUL RAHEEM---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 78 of 2019, decided on 1st July, 2019.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Recovery of narcotics---Proof---Case of further inquiry---Accused was arrested by authorities who recovered 2 kilograms baked Charas from his possession while 3400 grams opium was recovered from rickshaw in which he was travelling---Recovery of two kilograms baked Charas from possession of accused and recovery of 3400 grams opium from rickshaw lacked independent corroboration---Prosecution was yet to prove conscious knowledge of accused about allegedly recovered opium---Case against accused fell within ambit of further inquiry and court while hearing an application of bail was not to keep in view maximum sentence provided by Statute but one which was likely to be entitled in facts and circumstances of case---Accused after facing investigation was already shifted to jail custody thus his further detention did not serve any useful purpose---Bail was allowed in circumstances.

Jamal-ud-Din alias Zubair Khan v. The State 2012 SCMR 573 rel.

Qasim Khan for Applicant.

Shams-ud-Din Achakzai, Special Prosecutor, ANF for the State.

2019 M L D 1962

[Balochistan]

Before Abdul Hameed Baloch, J

NASIBULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 67 of 2018, decided on 22nd July, 2019.

Pakistan Arms Ordinance (XX of 1965)---

----S. 13(e)---Criminal Procedure Code (V of 1898), S. 103---Qanun-e-Shahadat (10 of 1984), Art. 129, Illus. (g)---Possession of unlicensed firearm---Appreciation of evidence---Recovery---Proof---Presumption by court---Delay on forensic analysis---Effect---Authorities arrested accused on prior information of possession of unlicensed firearm---Investigating Officer recorded statement of private witness but prosecution did not produce such witness during trial without any justification---Non-production of private witness left a big dent in veracity of story of prosecution---Prosecution was required to comply with S. 103, Cr.P.C. to associate two respectable persons from locality---In absence of any independent witness, it was mandatory upon prosecution to show that in circumstances it was not possible to have a mashir from public---Statements of police officials indicated that no steps were taken to secure two mashirs from public and as such, recovery became doubtful---Accused was arrested on 16.07.2018 but suspected weapon was received by Forensic Science Laboratory on 13.08.2018---Investigating officer failed to explain as to why weapon was kept for 27 days which created serious doubt in case of prosecution---Prosecution failed to establish guilt of accused and commission of offence---High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of charge---Appeal was allowed in circumstances. [p. 1965] A & B

2018 MLD 1608; 2019 MLD 670; Muhammad Rafique and others v. State and others 2010 SCMR 385; Mushtaq Ahmed v. State PLD 1996 SC 574 and Tariq Pervaiz v. State 1995 SCMR 1345 rel.

Amir Jan for Appellant.

Habibullah Gul, Additional Advocate General for Respondents.

2019 M L D 2048

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

The STATE through Regional Director Anti-Narcotic Force Balochistan---Appellant

Versus

ABDUL WAHAB and 11 others---Respondents

Criminal Appeal No.238 of 2019, decided on 9th August, 2019.

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

----S. 540---Control of Narcotic Substances Act (XXV of 1997), Preamble---Power to summon material witness or examine persons present---Scope---Appellant was aggrieved of trial court's order whereby his application under S. 540, Cr.P.C. for re-summoning Investigation Officer to submit reports of Federal Government Analyst containing the detail of analysis process/protocol was dismissed---Validity---Trial remained pending for two years; evidence of prosecution was complete; statement of accused under S. 342, Cr.P.C. was recorded and the case was fixed for final arguments when the application was filed---Reports of Federal Government Analyst were prepared after two years from the date of framing of charge upon the accused---Accused did not know about the reports at the time of framing of charge and recording of his statement under S. 342, Cr.P.C.---Accused have had to be confronted with all the evidence deposed by the witnesses against him and all the duly exhibited documents, otherwise non-exhibited documents could not be used against him for the purpose of conviction---Complainant, at belated stage, could not be permitted to examine or place on record any document in the shape of detail of process/protocols through proposed witnesses, which description was not mentioned in the calender of witnesses---Court while exercising power under S. 540, Cr.P.C. did not assume the role of prosecutor nor the said power could be used to fill the lacunas of the prosecution case, as the court was supposed to act as arbitrator or judge---Appeal was dismissed. (b) Criminal Procedure Code (V of 1898)---

----S. 540---Interpretation of S. 540, Cr.P.C.---Power to summon material witness or examine persons present---Scope---Provisions contained in S. 540, Cr.P.C. can be bifurcated into two parts, the first part is discretionary in nature, wherein the summoning of a witness depends upon the sole discretion of the court, while the second part is mandatory, and leaves the court with no discretion to refuse to summon a witness, as his evidence is material and essential for a just and fair decision of the case.

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

---S. 540---"Power to summon material witness or examine persons present"---Purpose---Power conferred upon the court, under the provisions of S.540, Cr.P.C. can be used to find out the truth but cannot be exercised to fill up the gaps and lacuna left by either party.

Muhammad Khan v. The State 2003 PCr.LJ 1778 ref.

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

----S. 265-C---Supply of statements and documents to the accused---Scope---Non supply of essential documents before framing of charge vitiates the trial. [p. 2053] F

Nadeem Ahmed Khan v. The State 2007 PCr.LJ 233 ref.

Shamsuddin Achakzai, Special Prosecutor, ANF for Appellant/ State.

2019 M L D 184

[Shariat Court (AJ&K)]

Before Muhammad Sheraz Kayani, J

IBRAR MUZAFFAR and another---Petitioners

Versus

STATE through Advocate-General Azad Kashmir and another---Respondents

Criminal Revision No. 297 of 2018, decided on 25th September, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 499---Bail bond of accused and sureties---Accused was released on bail with a condition that the surety should be her maternal or paternal uncle---Scope---Accused were apprehended and a case under Ss.10/11, 16/19, Offence of Zina (Enforcement of Hudood) Act, 1985 and 14, EHA was registered against the accused petitioners---Accused-petitioners had moved bail petitions---Accused was refused to bail, whereas co-accused/female was allowed bail, however, a condition was imposed that the surety should be her Mehram (real maternal or paternal uncle)---Allegedly, accused-petitioner had developed illicit relations with the wife of complainant---Accused-petitioner had abducted wife of co-accused for committing zina and thereafter prepared a forged Nikhanama---Held, accused person had a right to furnish surety of his choice---Liberty of a person could not be curtailed due to his or her sex as the Constitution prohibited such gender discrimination---Shariat Court observed that approach of the Trial Court in that regard seemed to be result of subjective sense of morality which was against the law and norms of justice---Women accused should not be treated like a thing, her legal and constitutional right could not be snatched due to personal thinking or preference of a Presiding Officer---Court was not supposed to compel the accused to get surety bond from a particular person---Section 499, Cr.P.C. provided terms and condition of the surety bond, it did not visualize any particular individual as a surety---Surety should be a solvent person only---By imposing a condition of "Mehram" as surety, the Trial Court had travelled beyond its jurisdiction---Prima facie reasonable grounds existed to believe that accused was connected with the offence---Record revealed that co-accused-petitioner was already married with complainant and prima facie her Nikah with complainant was not doubtful---Case of accused fell within the prohibitory clause of S.497 Cr.P.C.---Impugned order of Trial Court to the extent of accused-petitioner was found to be quite in accordance with law---Revision petition was partly accepted by setting aside the impugned order to the extent of condition of particular surety---Co-accused would be released forthwith on furnishing bail bond of her own choice---Revision petition to the extent of accused-petitioner was dismissed.

PLJ 2011 Lah. 127; 2012 YLR 990; 1988 PCr.LJ 564; PLD 1985 Lah. 512 and 1982 PCr.LJ 948 ref.

1988 PCr.LJ 564 rel.

Muhammad Saghir Javed for Petitioners.

Raja Ayaz Ahmed, Asst. A.G. for the State.

2019 M L D 259

[Shariat Court (AJ&K)]

Before Raja Sajjad Ahmad Khan, J

SADIA KANWAL and 3 others---Petitioners

Versus

SUPERINTENDENT OF POLICE SUDNOTI and 3 others---Respondents

Miscellaneous Criminal Petition No.74 of 2017, decided on 26th September, 2018.

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

----Ss. 561-A & 249-A---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act (XI of 1985), Ss.10 & 19---Zina liable to tazir and common intention---Inherent powers of High Court---Quashing of FIR---Factual controversy---Alternate remedy---Scope---Petitioner sought quashing of FIR which had been registered against him on the ground that petitioner and wife of complainant had developed illicit relations---Validity---Held; challan had been submitted before Trial Court after completion of investigation---Order for quashing of FIR would tantamount to blocking the process of law and any opinion with regard to offence committed by petitioner would be premature---Alternate remedy in the shape of S. 249-A, Cr.P.C. was available to the petitioner---Petitioner could take his pleas before Trial Court but Shariat Appellate Bench of High Court could not sit as investigating officer or the Trial Court---Petition for quashing of FIR was dismissed.

PLD 2013 Pesh. 117; 2015 SCR 837 and 2002 MLD 1250 ref.

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

----S.561-A---Inherent powers of High Court under S.561-A, Cr.P.C.---Scope---Quashing of FIR---Factual controversy---Abuse of process of court---Scope---Court under S. 561-A, Cr.P.C. was not supposed to determine the truthfulness or innocence of the accused and allegations levelled in the FIR---Investigating Officer and thereafter Trial Court was empowered to resolve the question of facts after recording evidence---High Court generally declined to interfere with investigation and trial proceedings---FIR could be quashed under inherent powers of High Court only when case had been registered with unlawful authority and from the contents of FIR no case was made out---First Information Report could be quashed only when it appeared that process of court was abused---Quashing of FIR was ordered only in exceptional cases---Order accordingly.

Sardar Iftikhar Ahmad for the Petitioners.

A.A.G. for the State.

2019 M L D 10

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C J Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

AZAD JAMMU AND KASHMIR JOINT ADMISSION COMMITTEE FOR MBBS/BDS SEATS through Chairman, Rawalakot and 2 others---Appellants

Versus

HABIBA TASAWAR and 6 others---Respondents

Civil Appeal No.163 of 2018, decided on 7th August, 2018.

(On appeal from the judgment of the High Court dated 22.03.2018 in Writ Petitions Nos. 2063 and 2127 of 2017).

Educational Institution---

----Admission to medical college---Nomination for MBBS/BDS course---Withholding of entry test result by the University of Health Sciences on the ground that candidates were not possessing their national identity cards---Effect---Candidates were issued admittance cards for the purpose of entry test by the University of Health Sciences---Petitioners were not in possession of their national identity cards at the time of entry test and they were provisionally allowed subject to condition that their parents would provide their identity cards before closing of entry test---Parents of candidates could not provide their identity cards therefore result of entry test was withheld---Writ petition filed by the candidates was allowed by the High Court and competent authority was directed to declare their result---Validity---University of Health Sciences had allowed the candidates provisionally despite the fact that they were not in possession of identity cards---Competent authority after allowing the candidates to participate in the entry test could verify their identity even otherwise from the record---Withholding of result of entry test of the petitioners was not justified in circumstances---Nomination of successful candidates had not been challenged by the petitioners and 1st year's course had been completed---Petitioners could not get rid of the consequences of not challenging the admission of the candidates with whom they were competing despite declaration of their result---Right of declaration of result could not be withheld on the ground that petitioners were not in possession of their identity cards as said condition had been waived by the authority---Declaration of result of petitioner would not affect the admission of duly nominated candidates---Appeal was dismissed in circumstances.

Haji Muhammad Ashraf and another v. Development Authority, Muzaffarabad through its Chairman and another 1995 MLD 1343 rel.

Sardar Shoukat Ali, Advocate for Appellants.

Mushtaq Ahmed Janjua, Advocate for Respondents.

Ch. Muhammad Attique, Legal Advisor for Respondent No.6.

2019 M L D 178

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C J Ghulam Mustafa Mughal, J

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Secretary Health, Muzaffarabad and 2 others---Appellants

Versus

ISMA SHARIF and another---Respondents

Civil Appeal No.104 of 2018, decided on 17th May, 2018.

(On appeal from the judgment of the High Court dated 08.03.2018 in Writ Petition No. 95 of 2018).

Azad Jammu and Kashmir Council Disabled Persons (Employment and Rehabilitation) Act, 1984--

----S. 8---Admission Policy, 2017, Cl.10---Admission of disabled persons in medical colleges---Increase of reserved quota---Candidate, who applied for admission in MBBS for academic year 2017-18 against the quota reserved for disabled persons, filed writ petition before High Court, seeking direction for increase in the quota allocated to the disabled persons, as increased in the Medical Colleges of Punjab, from 1% to 3%---High Court accepted writ petition of the candidate directing the authorities to modify clause 8.3 of the Admission Policy by raising quota of disabled persons from 1% to 2% and consider the candidate for admission in Medical College against said quota---Proposition requiring resolution was whether the direction given by High Court in the impugned judgment for modifying clause 8.3 of the Admission Policy and enhancing the disabled candidates quota from 1% to 2%, was according to law---Except the provisions of S.8 of the Azad Jammu and Kashmir Council Disabled Persons (Employment and Rehabilitation) Act, 1986, no other notification or statutory provisions, existed or enforced providing 2% quota for disabled persons in the service---Conclusion drawn by the High Court regarding 2% quota for disabled persons in Azad Jammu and Kashmir appeared to be result of misconception hence, not sustainable---Contention that due to unprecedented disastrous earthquake, number of disabled persons had increased which demanded for increase in quota for disabled persons, upto more than 3% as prevailed in Punjab, Supreme Court observed that it was the job of Government, Executive or Legislature and the court could not legislate---Concerned authorities and legislative bodies should take necessary steps in that regard---Direction issued by the High Court was not sustainable---Appeal was accepted and order of the High Court was recalled by the Supreme Court.

Sardar Shoukat Ali, Advocate for Appellants.

Kh. Attaullah Chak and Syed Hazoor Imam Kazmi, Advocates for Respondent No.1.

2019 M L D 332

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

AJ&K BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, through Chairperson and 4 others---Appellants

Versus

MUHAMMAD MESHIF MEHMOOD through Natural Guardian and 2 others---Respondents

Civil Appeal No.60 of 2018, decided on 25th April, 2018.

(On appeal from the judgment of the High Court, dated 26.2.2018 in Writ Petition No.104 of 2017).

Educational institution---

----Re-evaluation of answer sheet of a subject---Equality before law---Scope---Candidate moved application for re-checking of answer sheet but same was dismissed by the Education Board on the ground that grand total of answer sheet had correctly been calculated and no portion had been left un-marked---Candidate filed writ petition with the plea that his paper had not rightly been marked by the Examiner which was accepted with the direction to the Education Board to re-evaluate the paper through an academician of high repute---Validity---Application by the candidate was processed and paper was re-checked in his presence but nothing was found wrong on re-checking---No provision was available in the Board Calendar for re-evaluating, re-checking or re-marking of the paper---High Court was influenced by the marks sheet of the candidate which showed that he had secured more than 90% marks in the other subjects---No direction in deviation of statutory provisions of law could be issued on sympathetic ground which might affect the rights of other students---Right of equality before law was available to every citizen of the State and nobody could be discriminated---Same Examiner had checked the papers of other students and no objection had been brought on record by any other student with regard to marking---Candidate could not be singled out while giving the relief which could not be extended beyond the rules and regulations---High Court while issuing the direction in the impugned judgment had travelled beyond the statutory provision of law---Impugned judgment passed by the High Court was set aside---Appeal was allowed in circumstances.

Abdul Baseer Tajwar v. A&K Public Service Commission and 2 others 2016 SCR 1599 ref.

University of Punjab through Vice-Chancellor Lahore and another v. Mrs. Ruhi Farzana and 3 others 1996 SCMR 263; Khurshid Ahmad v. Bahauddin Zakariya University, Multan and 3 others 1999 CLC 694; Ali Zain-ul- Abadeen v. Controlling Authority AJ&K Board of Intermediate and Secondary Education, Mirpur and 5 others 2014 CLC 890; Ms. Shakeela v. University of Peshawar through Vice-Chancellor and another PLD 2003 Pesh. 8 and Rabial Piaz v. Board of Intermediate and others 2011 YLR 1656 distinguished.

Tahir Saeed Qureshi v. Board of Intermediate and Secondary Education Sargodha and 3 others 1996 SCMR 1872 rel.

Syed Nishat Kazmi, Advocate for Appellants.

Ch. Mehboob Ellahi, Advocate for Respondents.

2019 M L D 564

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Ghulam Mustafa Mughal, J

INHABITANTS OF VILLAGE PRENIA through Hafeez Ahmed and 4 others---Petitioners

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 9 others---Respondents

Civil Appeal No.259 of 2018, decided on 5th October, 2018.

(On appeal from the judgment of the High Court dated 24.04.2018 in Writ Petition No.141 of 2017)

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

----S. 44---Writ of Prohibition---Scope---Change of approved development scheme---Scope---Contention of petitioners was that a scheme for construction of road was approved but authorities due to political intervention had changed the said scheme---High Court disposed of writ petition with the direction to the authorities to accommodate the people who were affected from change in the site plan and provide them facility of road---Validity---Court was not to not interfere in the policy decisions of Government provided same were not violative of law on the subject and Fundamental Rights---Supreme Court could not act as an appellate authority over the administrative decisions of public functionaries responsible for carrying out public projects approved in accordance with law---Amendment could not be made in approved development scheme by a subordinate functionary except with the approval of Planning and Development Department/Cabinet Development Committee---Writ of prohibition in circumstances could not be issued rather a direction could be passed to the authorities not to change the development scheme without approval of Planning and Development Department and Azad Jammu and Kashmir Cabinet Development Committee---Impugned judgment passed by the High Court was vacated---Appeal was allowed accordingly.

Watan Party and another v. Federation of Pakistan and others PLD 2013 SC 167; Sardar Attique Ahmed Khan and another v. Azad Govt. and 7 others 2017 SCR 1327; AJ&K Government and 2 others v. Ch. Abdul Majeed and another 2004 MLD 844; Azad Govt. and others v. Inhabitants of village Baghar 2016 SCR 696 and Ch. Latif Akbar and 261 others v. Azad Government and 10 others 2017 SCR 305 rel.

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

----S.44---Writ petition against policy decision of government---Scope---High Court could interfere in policy decision of Government if same was arbitrary.

Ch. Shoukat Aziz, Advocate for Petitioner.

Raja Ikhlaq Hussain Additional Advocate-General for Respondents.

Asghar Ali Malik, Advocate for Respondent No.5.

2019 M L D 576

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

Syed IQBAL SHAH and another---Appellants

Versus

Syeda TAHIRA BIBI and 2 others---Respondents

Civil Appeal No.203 of 2018, decided on 7th December, 2018.

(On appeal from the judgment and decree of the High Court dated 26.04.2018 in Civil Appeal No.22 of 2017)

Specific Relief Act (I of 1877)---

----S. 42---Azad Jammu and Kashmir Family Courts Act (XI of 1993), S.5---Suit for declaration regarding land given as dower---Maintainability---Plaintiff-wife filed suit for declaration with regard to the land given to her as dower and also challenged therein the gift deed relating to the said land executed in favour of a third party---Suit was decreed concurrently---Validity---Entries of Nikahnama had presumption of truth vis-à-vis oral evidence---Suit land given as dower had not been abandoned by the wife---In case of controversy regarding payment of dower in respect of any property between the spouse and third party the civil court was an appropriate forum for determination of the matter---No misreading or non-reading of evidence had been pointed out in the impugned judgments passed by the courts below---Appeal was dismissed, in circumstances.

Zafar alias Mumtaz and another v. Mst. Sajjad Begum and 7 others 2014 SCR 1549 ref.

Shahzad Rauf v. Shabana Yasmin PLD 2018 SC (AJ&K) 31; Liaquat Ali v. Additional District Judge, Narowal and 2 others 1997 SCMR 1122 and Muhammad Arif and others v. District and Sessions Judge, Sialkot and others 2011 SCMR 1591 rel.

Sajjad Ahmed Khan, Advocate for Appellants.

Raja Muhammad Mushtaq, Advocate for Respondents.

2019 M L D 640

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

HAMZA RASHEED BAIG---Appellant

Versus

MINISTER INDUSTRIES AND MINERALS DEPARTMENT OF AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 9 others---Respondents

Civil Appeal No.105 of 2018, decided on 10th October, 2018.

(On appeal from the judgment/order of the High Court dated 26.1.2018 in Writ Petition No.1604 of 2017).

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

----S. 44---Azad Jammu and Kashmir High Court Procedure Rules, 1984, R. 39---Writ petition---Lease of land, cancellation of---Mining permit was issued in favour of petitioner by the Government---Petitioner filed petition for writ of prohibition for protection of said lease/permit but same was dismissed on the ground that petitioner was minor and no lease could be granted in his favour---Petitioner challenged the said order before the Supreme Court and during pendency of petition for leave to appeal respondents cancelled mining permit---Petition for leave to appeal was dismissed by the Supreme Court having become infructuous---Petitioner being aggrieved from the cancellation order filed appeal before department which was dismissed---Writ petition was filed against the said order before High Court but same was dismissed in limine on the ground that on same cause of action earlier writ petition had been dismissed and subsequent writ petition was not competent---Contention of petitioner was that nature of both the writ petitions was different and subsequent writ petition was maintainable---Validity---Facts of both the writ petitions were different in the present case---Prohibition was sought in the earlier writ petition whereas in the subsequent writ petition the order for cancellation of mining permit was challenged---Nature of both the writ petition was different, in circumstances---Second writ petition was not competent only if the same was filed on the same facts as were involved in the first writ petition decided by the Court---Impugned judgment being based on misconception was not maintainable which was set aside---Writ petition was admitted for regular hearing and matter was remanded to the High Court with the direction to decide the same on merits---Appeal was allowed, in circumstances.

Muhammad Pervaiz Mughal, Advocate for Appellant.

Raja Akhlaq Husssain Kiani, Addl. Advocate-General, Syed Hazoor Imam Kazmi and Muhammad Hanif Khan Minhas, Advocates for Respondents.

2019 M L D 799

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

Criminal Appeal No. 4 of 2018

MUHAMMAD AZAD KHAN---Appellant

Versus

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

Criminal Appeal No.5 of 2018

ASIF RATHORE---Appellant

Versus

The STATE OF AZAD JAMMU AND KASHMIR

through Advocate-General, Muzaffarabad and another---Respondents

Criminal Appeals Nos. 4 and 5 of 2018, decided on 18th March 2018.

(On Appeal from the judgment of the High Court dated 23.12.2017 in Criminal Revision Petitions Nos. 144 and 167 of 2018).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 427, 436, 109, 147, 148 & 149---Azad Jammu and Kashmir Anti-Terrorism Act (VI of 2014), S. 6---Azad Jammu and Kashmir Arms Act (XI of 2015), S.15(2-AB)---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees mischief by fire or explosive substance with intent to destroy house etc. rioting armed with deadly weapon, unlawful assembly, keeping arms without licence, act of terrorism---Bail, refusal of---Allegation against the accused-petitioners were commission of the offence falling under the provisions of Anti Terrorism Act, 2014---None of the counsel for the accused-petitioners had advanced any argument that in view of the provisions of Azad Jammu and Kashmir Anti Terrorism Act, 2014, the judgment of the Trial Court was against law, arbitrary or perverse---All the arguments lacked the proper appreciation of the provisions of the special law---Impugned order passed by the Trial Court appeared to be speaking order and based upon appreciation of the relevant material---Accused-petitioners had failed to make out any convincing ground for exercising of revisional jurisdiction to their extent---As per provisions of special law, the nature and quantum of punishment was quite different from the nature and quantum of punishment provided in the ordinary laws---Special law laid down some special conditions and procedure in matters related to bail---Circumstances established that the judgment under appeal was speaking judgment based upon settled principles of law and did not suffer from any legal infirmity---Expeditious disposal of the case would serve the purpose, therefore, Trial Court was directed by the Supreme Court to take all necessary steps, conduct expeditious proceedings of the case and ensured disposal of the same as early as possibly while strictly complying with the provisions of S. 46 of Azad Jammu and Kashmir Anti Terrorism Act, 2014---Appeals were dismissed in circumstances.

Naseer Ahmed and 7 others v. The Stae 1998 PCr.LJ 11; Zaheer Ahmed and another v. Ibrar Hussain and others 2014 SCR 1667; Sanwan v. The State 2003 PCr.LJ 756; Muhammad Arif v. The State 2004 PCr.LJ 1347; Saghir Ahmed v. Zulfiqar Ahmed and another 2005 SCR 422; M. Ajmal and others v. M. Naeem and others 2001 PCr.LJ 1073; M. Sagheer v. State 2004 PCr.LJ 1925; Shafi Muhammad and others v. The State 2003 PCr.LJ 862 and Abdul Khaliq v. State and another 2010 SCMR 402 ref.

Kh. Attaullah Chak, Advocate for Appellant (in Criminal Appeal No. 4 of 2018).

Sardar Javaid Naz, Additional Advocate General for the State (in Criminal Appeal No. 4 of 2018).

Tahir Aziz Khan, Advocate for Appellant (in Criminal Appeal No.5 of 2018).

2019 M L D 846

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J., Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

MUHAMMAD HANIF and 2 others---Petitioners

Versus

MUHAMMAD SADIQ and 14 others---Respondents

Civil Review No.1 of 2017, decided on 25th October, 2018.

(In the matter of review of judgment of this Court dated 06.12.2016 in Civil Appeal No.150 of 2015).

(a) Land Acquisition Act (I of 1894)---

----S.30---Award of compensation---Reference under S.30, Land Acquisition Act, 1894---Scope---Determination of shares of landowners by Collector Land Acquisition---Effect---Once the Collector Land Acquisition determines the shares of the landowners' and award is issued, reference under S.30 of the Act was not competent---Even the competent reference was to be filed within reasonable time.

(b) Precedent---

---When there were conflicting judgments contrary to the principle of law by the bench of equal strength, judgment later in time had to be followed.

Muhammad Rafique Khan v. Province of Punjab and others 1992 CLC 1775; Government of West Pakistan and others v. Mst. Asmatun Nisa and others PLD 1983 SC 109; Government of West Pakistan v. Arbab Haji Ahmed Jan and others PLD 1981 SC 516; Fazal Karim v. Azad Government and others PLD 1998 SC (AJ&K) 26 and Ghulam Muhammad v. Government of West Pakistan PLD 1967 SC 191 ref.

Government of Pakistan and another v. Syed Ghulam Haider Shah and others 2007 SCR 175; Azad Government and others v. Riaz Ahmed and another 2007 SCR 468; Fazal Karim v. Azad Government and others PLD 1998 SC (AJ&K) 26; Gujarat Housing Board v. Nagajibhai Laxmanbhai and others AIR 1986 Gujarat 81; Vasant Tatoba Hargude and others v. Dikkaya Muttaya Pujari AIR 1980 Bombay 341; Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. and others AIR 1980 Karnataka 92; Gopal Krishna Indley v. 5th Additional District Judge and others AIR 1981 Allahabad 300; Engineer Jameel Ahmad Malik v. Shaukat Aziz and others 2007 CLC 1192; Muhammad Riasat and others v. The Secretary of Education and others 1997 SCMR 1626; Mst. Hira Rehman v. Chancellor Government College and others 2011 CLC 377; Javed Iqbal v. Province of Sindh and others 2003 MLD 22 and Muhammad Rasheed and 4 others v. Adalat Khan and 3 others 2016 SCR 1406 rel.

Muhammad Younas Arvi, Advocate for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd October, 2018.

2019 M L D 919

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

Ch. GHAZANFAR, REGISTRAR, CO-OPERATIVE SOCIETY and 2 others---Appellants

Versus

MUHAMMAD MAQSOOD BUTT and 31 others---Respondents

Civil Appeal No.276 of 2017, decided on 27th November, 2018.

(On appeal from the judgment and decree of the High Court dated 26.5.2017 in Civil Appeal No.110 of 2009).

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

----O. VII, R. 2---Co-operative Development Corporation converted into a Banking Society---Allegation of illegal business by the Banking Company---Recovery suit by the employee of Banking Company on the ground that Banking Company had caused loss to him and others by doing Banking business---Maintainability---Suit for recovery of amount filed against the Banking Company by its employee was decreed which was upheld by the High Court---Validity---Suit filed by the plaintiff was not maintainable, as he being participant in the illegal business, was estopped by his conduct to approach the Court---Plaintiff on the one hand was involved in the illegal business and on the other he had filed suit against the defendants on the ground that they caused loss to him and others through illegal Banking business---No one could be allowed to approbate and reprobate in the same breath---Impugned judgments and decrees passed by the Courts below were set aside and suit was dismissed being not maintainable---Appeal was allowed, in circumstances.

Mst. Sabira Begum v. Hakim Muhammad Akhtar and another 1993 MLD 955 rel.

(b) Approbate and reprobate---

----No one could be allowed to approbate and reprobate in the same breath.

Abdul Rashid Abbasi, Advocate for Appellants.

Barrister Hamyun Nawaz Khan, Advocate for Respondents.

Syed Hazoor Imam Kazmi, Tahir Aziz Khan, Advocates and Raja Akhlaq Hussain Kiani, Addl. Advocate-General for Proforma Respondents.

Date of hearing: 12th November, 2018.

2019 M L D 1329

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C J and Ghulam Mustafa Mughal, J

WAPDA through Director Legal WAPDA and another---Appellants

Versus

FAHMIDA BEGUM and 7 others---Respondents

Civil Appeals Nos.86 and 87 of 2018, decided on 28th November, 2018.

(On appeal from the judgment and decree of the High Court dated 22.03.2018 in Civil Appeal No.845 of 2009).

Land Acquisition Act (I of 1894)---

----Ss. 9, 10, 18 & 25(2)---Land acquisition---Notice by the Collector Land Acquisition to interested persons---Landowner having not claimed enhancement in the compensation before Collector Land Acquisition---Reference to court---Maintainability---Landowner appeared before Collector Land Acquisition but did not claim any enhancement in the compensation or object to the compensation determined by the Collector---Landowners only submitted to the Collector Land Acquisition that other co-sharers have been included in the Khasra and payment of compensation be deferred---Collector Land Acquisition deferred the disbursement of the compensation, in circumstances---Landowners who had not claimed enhancement in the compensation determined by the Collector Land Acquisition after receipt of notice was not entitled to file reference under S.18 of Land Acquisition Act, 1894---Enhancement in the compensation assessed by the Collector Land Acquisition could not be made by the Referee Judge as well as High Court, in circumstances---Impugned judgments passed by the Courts below were set aside and reference filed by the landowner was dismissed---Appeal was allowed, accordingly.

Malik Mumtaz Khan v. Water and Power Development Authority, Pakistan through Chairman WAPDA Lahore and 5 others 2011 CLC 1586 rel.

Ch. Munsif Dad, Advocate for Appellants (in Civil Appeal No.86 of 2018).

Arshad Mehmood Mallick, Advocate for Respondents (in Civil Appeal No.86 of 2018).

Arshad Mehmood Mallick, Advocate for Appellants (in Civil Appeal No.87 of 2018).

Mehmood Hussain Chaudhary, Additional Advocate-General and Ch. Munsif Dad, Advocate for Respondents (in Civil Appeal No.87 of 2018).